MHG and MD

[2005] FMCAfam 77

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MHG & MD [2005] FMCAfam 77

FAMILY LAW – Children – residence – where children have resided in a shared care (week about) arrangement for an extended period – where husband intimidates wife, and lacks insight into the impact of his personality on her – where husband remains hostile to and unreasonably critical of the wife – where the parties’ relationship is not such that they are able to communicate effectively (including hearing and understanding each other’s point of view) and come to a joint understanding about strategies and actions that might be in the best interests of the children – where the husband has applied a degree of “moral coercion” upon the children in order to persuade them to express a wish for the continuation of the shared care arrangement – where husband has involved children in his dispute with the wife, and his given them to understand that he was the innocent party in the breakdown of the marriage – where husband lacks the capacity to provide for the children’s emotional needs – weight to be attributed to “status quo”.

FAMILY LAW – Property settlement – evaluation of parties’ contributions and s.75(2) factors – husband’s financial contributions significantly outweigh wife’s financial contributions – wife’s contributions to the welfare of the family significantly outweigh husband’s contributions to the welfare of the family – where husband expended considerable time and effort in constructing parties’ second home – where wife assisted in construction of parties’ second home – where wife continued to work in paid employment as well as engage in the shared care of the children, whilst the husband did not.

Family Law Act 1975

Re: F – Litigants in Person Guidelines (2001) FLC 93-072
Dearman (1908) 7 CLR 549 at 561
B & B: Family Law Reform Act1995 (1997) 21 FamLR 676 at 734
Smith (1994) 18 FamLR 55
Paskandy (1999) 25 FamLR 607
Burton (1978) 4 FamLR 783
A v A: Relocation Approach (2000) 26 FamLR 382
Re: G: Children’s Schooling (2000) 26 FamLR 143
U v U (2002) 29 FamLR 74 at 101
M & R (2003) FamCA 622
K & W (2003) FamCA 446
Pastrikos (1980) FLC 91-987
Ferraro (1993) FLC 92-335
Lee-Steere (1985) FLC 91-626
Clauson (1995) FLC 92-595
Whitely (1996) FLC 92-684
Norbis (1986) FLC 91-712
McMahon (1995) FLC 92-606
Hickey (2003) FamCA 395
OSF & OJK [2004] FMCAfam 63
Leslie [2004] FMCAfam 357
Bremner (1995) FLC 92-560
Way (1996) FLC 92-702
Money (1994) FLC 92-485
Pierce (1998) 24 FamLR 377
Gleeson (2004) FamCA 1179
Waters & Jurek (1995) FLC 92-635
Russell (1999) FLC 92-877

Applicant: MHG

Respondent: MD

File No: MLM 4639 of 2003

Delivered on: 4 March 2005

Delivered at: Melbourne via video link to Shepparton

Hearing dates: 30 July 2004, 19 November 2004

Judgment of: Walters FM

REPRESENTATION

Counsel for the Applicant: Mr Puckey

Solicitors for the Applicant: Morrison & Sawers

Counsel for the Respondent: In person (30 July 2004), Ms Smallwood (19 November 2004)

Solicitors for the Respondent: Pearsons

Counsel for the Child Representative: Mr Testart

Solicitors for the Child Representative: Suzanna Sheed & Associates

ORDERS

1. I shall hear counsel as to the precise orders necessary to give effect to these Reasons.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 4639 of 2003

MHG

Applicant

And

MD

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court are the parties’ competing applications in relation to residence of their four children and property settlement.

Preliminary Information

1. The husband was born in September 1960. He is now 44.  The wife was born in March 1962, and is now nearly 43. The husband is a cabinet maker, but described his occupation at the time of the trial as “pensioner”. The wife is a pre school teacher.

2. The parties commenced cohabitation in 1984. They married in November 1987 and separated in August 2001.

3. There are four children of the marriage — E (born 1 November 1989), D (born 25 November 1991), M (born 10 July 1994) and A (born 23 September 1996).  Since the parties separated in August 2001, the children have — generally speaking — lived with each parent on alternate weeks.

4. Since June 2002, the husband and the wife have lived very close to each other.

5. In December 2002, the wife commenced living with her present partner, Mr K, and on 18 September 2003 she gave birth to their daughter, T.

6. The husband also repartnered after the date of separation. His partner is Ms I. The husband and Ms I lived together for part of the period after separation and prior to the commencement of the trial. They were living together when the trial ended in mid November 2004, but the precise nature of their present relationship is unclear.

Documents Relied Upon

1. The only document relied upon by the child representative was the family report prepared by Mr Paul Ban. The report is dated 4 May 2004.

2. The wife relied upon her amended application filed 27 January 2004, her trial affidavit sworn 23 January 2004 and her financial statement sworn 17 April 2003.

3. The husband relied upon his response filed 23 July 2004, and his affidavits sworn 1 July 2003, 9 February 2004 and 9 July 2004.  I shall refer to these affidavits as the husband’s first, second and third affidavits. The husband also relied upon his financial statement sworn 1 July 2003.

4. The child representative and the wife filed Case Outline documents. The husband (who was self-represented at the commencement of the trial) did not.

5. The trial took place on 30 July 2004 in Shepparton, and on

   
   

   19 November 2004 in Melbourne. The husband represented himself on 30 July 2004, but was represented by Ms Smallwood on 19 November 2004.

6. Given that the husband was initially self-represented, I was very conscious of the obligation upon the Court to provide a fair trial — for all parties. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072.[1] I applied those guidelines during the course of the proceedings, and am comfortable that the trial was indeed fair.  In summary:

   a)Procedural fairness was afforded to all parties.

   b)The “mechanics” of the trial, and the right of the husband to cross-examine witnesses, were explained to him.

   c)Other relevant procedures were explained to the husband as they arose.

   d)I explained to the husband that he had the right to object to inadmissible evidence, and explained to him — in very broad terms — the types of evidence that might be considered inadmissible.

   e)Where appropriate, I attempted to clarify the substance of the husband’s submissions.

   f)Where appropriate, I took steps as authorised by the Full Court in Guideline #9 in paragraph 253 of the decision in Re: F – Litigants in Person Guidelines.

   [1] See, in particular, paragraphs 209-253 of the decision.

Structure of Judgment

1. I shall deal first with the issue of residence, and then with the issue of property settlement.

Children — Preamble

1. During the period of the parties’ cohabitation, the wife was the primary carer for the children. For most of the time, the husband worked full time — but he assisted the wife with the care of the children.  The wife felt that the husband could have done more to assist her.

2. In his affidavit material, the husband raised a number of criticisms of the wife, for example:

   a)In paragraph 50 of his first affidavit, the husband suggested that the wife “… only wants the children so as she can leave work and claim social security payments for them”.

   b)In paragraph 2(i) of the husband’s second affidavit, he said that the wife “became obsessed with jealousy” after the husband commenced a relationship with another woman.

   c)In paragraph 2(m) of the husband’s second affidavit, he said that the wife “walked out on him so as she could have affairs with other people”.

   d)In paragraph 2(o) of the husband’s second affidavit, he complained of having to put up with the wife’s “manipulation” and “constant interference”.

   e)

   In paragraph 2(p) of the husband’s second affidavit, he said that the wife “… will never understand that the children have feelings; she only treats them as possessions and always will”.  

   
   

   In the same paragraph, the husband said that the wife is “out to destroy (him) at all costs”.

   f)In paragraph 2(s) of the husband’s second affidavit, he said:

   I have never called (the wife) a slut in front of the children.  If I have something to say to her, I will say it to her face.  I think it only natural that there would be animosity between both parties in the early stages of a separation after a twenty year relationship which ended due to her adultery.  Many people have the view that she is a dirty, unclean, and untidy person (my short comment was pig).

   g)In paragraph 6 of the husband’s second affidavit, he said:

   It is true that I have lost all respect for the wife. I have been raised in a family with strong moral standards and family values. The wife has proved to me on many occasions that she does not deserve my respect.

   h)In paragraph 19 of his third affidavit, the husband alleged that his then de facto partner, Ms I, had been obliged to move into a flat in Cobram due to continual harassment by the wife.

3. The husband later alleged that “… the wife’s plan is to drive (him) out of Strathmerton” — and (by implication) away from the children.

4. During the course of his oral evidence, the husband attempted to distance himself from certain of the criticisms of the wife contained in his affidavit material.  For example:

   a)he conceded that he has no doubts about the wife’s ability to care for the children;

   b)he said that he no longer regards the wife as having acted immorally;

   c)he said that he holds the wife in high regard as a mother to his children (although not as a friend);

   d)he conceded that he said to the wife that she was “useless and brain dead”, but asserted that he did not make such comments in front of the children;

   e)he conceded that he should not have called the wife “a pig” — although he said that the wife “does have a problem with tidiness” (and that he had had to deal with that problem for twenty years); and

   f)he said that he has “moved on”, and no longer bears resentment towards the wife.

5. Many of the husband’s comments reflect unfavourably on him, and are regrettable. It appears that the husband did not cope well with the breakdown of the marriage, and, in my opinion, he has failed to understand the impact upon others (including the wife and the children) of his negativism, self pity and intemperate comments.

6. I paid careful attention to the wife as she gave her evidence. She remained calm, the comments that she made were balanced, and she gave appropriate responses to the questions that she was asked. She also made appropriate concessions when necessary. She gave credit when it was due. I was impressed by her as a witness, and I find that she is a witness of truth.

7. I also paid careful attention to the husband as he gave evidence. Although he (like the wife) remained calm, I am of the view that he was not candid with the Court. He remained wary and guarded throughout his evidence. He was not always willing to make concessions when it was appropriate that he do so. At times he was either non-committal or evasive. His attempts to distance himself from the criticisms that he had made of the wife in his affidavits were unconvincing. He often demonstrated by his evidence that he was self centred, or self absorbed. And towards the end of his cross examination by Mr Puckey (for the wife), he reasserted that the wife would do anything to upset his relationship with the children.

8. There were many examples of the type of conduct described in the previous paragraph. Amongst those examples was an exchange with Mr Puckey which had its genesis in paragraph 5 of the husband’s second affidavit. That paragraph is as follows:

   My first concern is the fact (that) the wife seems to only want the children so as she can benefit financially from me. She does not seem to care what the children might want to do and has never asked them what they would like to do. I have discussed the wife’s demands with all the children and have asked if they have been informed. They were all in shock. M started to cry and said that the Court has no right to make these decisions and it was up to him to decide what he wanted to do. All the children want to be able to have their say in what happens to them. … Since the wife is not even prepared to let them have any say in this matter, I feel I am justified in my views that she has always only treated and will always treat the children as objects and not as real people with feelings, wants and needs.

9. The cross examination of the husband proceeded as follows:

   Mr Puckey:You explained to them that they should have their say… that it was up to them to decide?

   Husband:Yes, I think it’s up to them to decide where they want (to live) — they have a right. I’m not going to make them stay with me, and we had an agreement, they were happy with it. I think it was up to them to have their say whether they thought it was OK or they wanted to live with their mother, yes.

   Mr Puckey:If they were in shock at their mother’s demands, as explained by you, and that they’re crying and upset, they perceive the Court has no right to make those decisions, you didn’t seek to explain to them that perhaps that was something that mum and dad could worry about and sort out for them, did you?

   Husband:They were upset (at) the fact that their mother wanted to take them away from me, yes.

   Mr Puckey:You told them, “it’s up to you and you’ll get to have your say”, didn’t you?

   Husband:I said that it is — yes — if they want to go to their mother’s, that’s okay I’m not going to stop them, so I said “If you want to keep it the same, I will fight for your rights to keep it the same”. If they didn’t want to live with me, I wouldn’t be here in Court today.

   Mr Puckey:The only impression they were left with was that it was up to them, they had to decide.  Right?

   Husband:Maybe they had a right to a say, that’s what I’m saying.

   Mr Puckey:You didn’t try and persuade them otherwise when they said “The Court has got no right to decide that”?

   Husband:That was then.

   Mr Puckey:You didn’t try and persuade them that mum and dad should decide?

   Husband:Well, we had an agreement.

   Mr Puckey:You confirmed for them that it was up to them to decide didn’t you?

   Husband:If they wanted to change the agreement, yes, I thought it was their choice.

10. A further example (again, one of many) of the husband’s generally unsatisfactory evidence occurred during the early stages of his cross examination by Mr Testart (for the Child Representative) —

    Mr Testart:The opinion you really have about this case is that your wife wants to take you to the cleaners.  Isn’t that right?

    Husband:She has stated that to me on numerous occasions.

    Mr Testart:No, I didn’t ask you that. Listen to the question. The view you have about the case is that she wants to take you to the cleaners?

    Husband:My view is based on what she told me.

    Mr Testart:So is the straight answer to my straight question, “Yes, my view is that she wants to take me to the cleaners?” … Your belief is that your wife wants to take you to the cleaners. That’s why she’s doing this?

    Husband:Based on the evidence, yes.

    Mr Testart:So the answer is, “yes”?

    Husband”Based on the evidence.

    Mr Testart:So the answer is “yes”?

    Husband:Why can’t I say “based on the evidence”?

    Mr Testart:Why can’t you say “yes”?

    Husband:Because without — if I wasn’t told that …

    Mr Testart:Why can’t you say “yes” … ? Is there a problem with giving a straight answer to a straight question?

    Husband:No, there’s not. Well, yes.

11. Overall, and where the evidence of the parties is in conflict, I prefer the evidence of the wife.

12. My preference for the wife’s evidence over that of the husband does not arise simply because of the observations that I have made in the preceding paragraphs of these Reasons. I accept that litigants can appear to be confident (or overly confident), or calm, or anxious in the witness box, and that such aspects of a witness’s demeanour are not, of themselves, bases for disbelieving the witness. Nevertheless, I had ample opportunity to observe the sorts of factors described by Isaac J in Dearman (1908) 7 CLR 549 at 561:

    A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type.

13. I was (of course) present throughout the trial — from its commencement to its conclusion. I heard the evidence in its entirety, and saw and heard the husband as both a self-represented litigant and as a witness. I make no finding to the effect that the husband is a generally dishonest witness. I have found, however, that I prefer the wife’s evidence where it is in conflict with that of the husband. I find, as well, that the husband was an unimpressive witness. The discrepancies between his written and his oral evidence (particularly where the evidence related to his view of the wife) were of concern to me.  Similarly, his refusal to accept, during cross examination, that he had involved the children in the residence dispute was unsustainable when regard is had to the contents of the husband’s affidavit material. For example, in paragraph 2(g) of the husband’s second affidavit he said:

    I have explained to all the children what orders the wife is proposing and that I will have no other choice but to sell up to pay the wife if I lose shared custody of them. I feel that this decision will affect the children for the rest of their lives and that they have the right to know. All of the children have asked the wife if it is true, but she walks away and never says a word.

14. I refer, as well, to the passage from the husband’s second affidavit quoted in paragraph 22 above.

15. To the extent that the husband’s evidence (whether oral or affidavit) suggested that the wife was vindictive, manipulative, dishonest, wasteful, greedy, financially irresponsible, uncaring, controlling, inappropriately aggressive or assertive, lazy or indolent, and even grubby, I am not prepared to find that the wife is any of those things.

    
    

    I find, instead, that the husband’s criticisms of the wife were spiteful and inappropriate. Further, I do not accept that the wife harassed Ms I. It follows that I do not accept that the wife was the cause of Ms I’s move to Cobram.

16. I do not accept that the wife’s motivation for seeking residence of the children is (as alleged by the husband) “so as she can benefit financially from (the husband)”.  I reject the husband’s assertion that the wife “does not seem to care what the children might want to do”.  

    
    

    I find that the husband raised these matters[2] in an attempt to influence the Court in some way to question the wife’s motivation, and to cause it to conclude that the wife is greedy and uncaring. During the trial

    
    

    I described certain of the husband’s affidavit (and oral) evidence as falling under the general category of “spin”. I do not think that description was either unfair or inappropriate.

    [2] See paragraph 5 on page 8 of the husband’s second affidavit.

17. The wife was not cross examined in relation to many of the husband’s criticisms of her. Having regard to the primary issues in the trial, it is appropriate that no such cross examination took place. To the extent that the attitude or behaviour of the parties might be relevant to the issues that must be determined in these proceedings, I shall endeavour to make reference to such matters in their appropriate context.

Further background material

1. The parties commenced living together in the first half of 1984. They lived in a flat in Melbourne for approximately one year. They then lived with the wife’s parents in their home.

2. In or about September 1985, the husband purchased a property at Strathmerton, and soon afterwards the parties commenced living in the house on the property. The house needed work, and the husband (who is a cabinetmaker) was able to do much of the work without the assistance of other tradesmen.

3. In 1999, the parties commenced building a second, larger home on the Strathmerton property (as owner builders). The husband was principally responsible for the construction of the new house.

   
   

   He employed tradesmen when the need arose.

4. The new house on the Strathmerton property took approximately two years to build. The wife assisted the husband by cleaning up inside and outside the house and by involving herself in various other tasks. She also cared for the children for much of the time that the husband was involved in construction work.

5. During the trial, the newer house on the Strathmerton property was referred to as “the big house”, whilst the older house was referred to as “the small house”. I shall adopt the same terminology in these Reasons.

6. Although the address of the big house is 84 Findlay Street, Strathmerton, and the address of the small house is 87 Main Street, Strathmerton, the two houses are adjacent.

7. In his second affidavit,[3] the husband alleged that he built the big house with very little help from the wife.  He said:

   … I had to care for the children as well as build the house.  It was the kids that helped me and kept the building site clean for me. … For most of the building process the wife was conspicuously absent for most of the time gallivanting around doing her own thing as per usual.  When I really needed a helping hand, she would say “you want this bloody house, you build it”. …

   [3] See paragraph (i) on page 15.

8. I do not accept the husband’s evidence that he cared for the children at the same time as he worked on the house. I find that the wife assisted the husband in the manner that she alleged, and that she was responsible for caring for the children whilst the husband undertook physical tasks associated with the construction of the big house. The passage referred to in the previous paragraph exemplifies the husband’s unwillingness to give the wife credit for the tasks that she has performed as both wife and parent.

9. For the last six months of the construction of the big house, the husband had no other job. As the wife described the arrangement, the husband effectively “retired” in order to work on the house. At that stage, the wife was working in a family day care centre, and her income was the family’s sole income.

10. The wife was the primary carer for the children until the parties separated in 2001. For most of the marriage, the husband had worked full time. Although he would assist the wife with the care of the children, the wife said (and I accept) that the husband considered that it was her responsibility to care for the children, and he usually assisted her only if she had to go out.

11. It was the wife’s role to attend parent-teacher interviews, although the parties jointly attended school concerts and open classroom nights.

12. The wife was also primarily responsible for most of the cooking, cleaning and washing in the household. From approximately 1996 the husband assisted the wife by doing the dishes each night.

13. Although the husband did some work outside the home, the wife was primarily responsible for maintaining the garden and (for example) chopping firewood.

14. In his second affidavit, the husband alleged that the wife was “out socialising four nights a week for most of the marriage”[4] and that the wife was “incapable of performing her home duties”. I do not accept the husband’s evidence in this regard.

    [4] See page 1 of the affidavit.

15. Shortly after the parties commenced living together, the wife obtained part time employment at Numurkah Pre School. In May 1986, she commenced full time work at Shepparton Pre School, where she remained until October 1989. The wife then took twelve months maternity leave.

16. Between 1990 and 1994, the wife did relief work as a pre school teacher — averaging 2 to 3 days per week.

17. The wife did not work for a period after the birth of each of the parties’ children. Whilst the children were young, the wife continued relief teaching and arranged family day care for the children.

18. In 1999, the wife obtained a full time position as a family day care provider, caring for children in the parties’ home (being the small house). The wife continued in this position until January 2002. She then had two part time jobs at pre schools until December 2002.

    
    

    In January 2003, the wife worked full time in one pre school until September 2003 when she took maternity leave (following the birth of her daughter, T). Since that time the wife has worked part time at one pre school.

19. At cohabitation, the husband was employed as a builders labourer. He then held a number of positions (including in sales, fruit picking and cabinetmaking). When the parties returned from Melbourne to the Goulburn Valley, the husband returned to fruit picking. He later obtained a position with a firm in Numurkah as a cabinetmaker. He continued in that employment until 1993 (although he took six months off in or about 1989).

20. The husband subsequently commenced employment at Kraft Strathmerton. He later worked at Denbros in Cobram, where he managed the joinery. In February 2001, and as described above, the husband “retired” (to use the wife’s description).

21. The husband’s description of his decision to cease employment in February 2001 is as follows:[5]

    I left a very good job so as to finish the house I was building. The wife had allowed a friend with three children to move into our small house. It was unbearable with nine people in the house, plus all the day care children. My four children had to sleep on the floor in one room and were all getting very upset. I felt I had no choice but to quit (employment) to finish the house. We moved in May 2001.

    [5] See the husband’s second affidavit, page 12.

22. From May until August 2001, the husband worked part time in Bendigo. In September 2001, he ceased employment and applied for social security benefits.

Arrangements for children after separation

1. When the parties separated in August 2001, they entered into a shared care arrangement. The arrangement involved the children spending alternate weeks with each of the parties. In the early stages following separation, the children remained living in the big house, and the husband and the wife stayed elsewhere when it was not his/her turn to care for the children. At a later stage, the husband stayed in the big house and the wife lived elsewhere. She spent some time in a unit at her parents’ property. She also lived with Mr K in his flat or unit from time to time.

2. On a date which is difficult to identify, but which may have been in mid or late 2002, the wife commenced living in the small house. Since that time, the children have moved back and forth between the two houses (which are a few hundred metres apart) on a week about basis.

3. In or about December 2002, Mr K commenced living with the wife in the small house.

4. The wife said, and I accept, that the husband was often verbally abusive towards her after she commenced living in the small house. She said to Mr Ban (and, again, I accept) that the husband was not happy with the children moving freely back and forth between the two houses — especially during the week that he was their primary carer. Although the wife built a fence between the two properties (so that she could have some privacy), the children sometimes jumped the fence during their father’s week and sought to spend time with her.

5. It appears that A (who was only five when the parties separated) had difficulty adjusting to the week about arrangement. Both parties encouraged her to attend with the other children and, after a time, she settled down — although she would continue to visit the wife regularly during the week that she was staying with the husband.

The husband questions A’s parentage

1. In September 2002, the husband took the children away for a few days (for a holiday). A did not want to join the others. The husband endeavoured to encourage her to go, but when she would not be persuaded, he said to the wife, in front of A:

   How do I know that she is even mine? I want a DNA test done.

2. In the family report, Mr Ban wrote:

   … (The husband) has some doubt that he is the biological father to A. He stated that he and (the wife) were distant from each other, and that he would not be surprised if she had a child to someone else as she was keen to have more children. However, he acknowledged that he loves A and treats her no differently to the other three children. (The wife has told him that he is definitely her biological father).

3. The husband did not deny — in his affidavit material — that he had questioned A’s paternity in front of her.

4. In cross examination, the husband admitted that he had made the comments attributed to him by the wife in September 2002. He denied, however, that the comments were made in front of A, and suggested that the wife was being dishonest when she said that A was present. I do not accept the husband’s evidence in that regard, and find that he did make the comments to the wife in A’s presence.

5. The husband is clearly an intelligent man, and his affidavits were carefully crafted. He answered almost every paragraph of the wife’s affidavit in some detail, and I do not accept that he simply overlooked the need to deny such an important assertion on the part of the wife. Further, the husband had little respect for the wife, and had shown a willingness to involve the children in his dispute with the wife. It follows that the wife’s description of the husband’s behaviour is more likely, and more credible, than the husband’s version.

6. A later began to refuse to stay with the husband, in spite of the wife encouraging her to go. In paragraph 19 of her trial affidavit, the wife said (and I accept):

   On one occasion when A refused to get out of the car, the husband grabbed her. She was screaming:

   Help me mummy, mummy, don’t leave.

   He carried A kicking and screaming into the house. I went back to my home but I could still hear her screaming. About ten minutes later, E arrived at my home with A in her arms, sobbing. The husband banged on my front door, opened it and said that he did not want her and that I could have her.

7. After the incident described in the preceding paragraph, A refused to attend on any contact with the husband for approximately three or four months (although she saw him on occasional day visits). The normal week about arrangement resumed in or about February 2003.

Further problems after separation

1. The wife describes certain of the difficulties that the children experienced between approximately October 2002 and the date that she swore her trial affidavit (being January 2004) in paragraphs 21 to 26 of that affidavit. I accept the wife’s evidence in that regard. I also accept the wife’s evidence (set out in paragraphs 27 to 31 of her trial affidavit) regarding the husband’s behaviour towards her, and his denigration of her to the children.

2. The wife denied that she has spread rumours about the husband and that she has “set out to destroy” him. I accept her denials in that regard.

The husband’s attitude and behaviour

1. During the course of her cross examination by the husband, the wife emphasised that, in her opinion, the shared care arrangement was not working. She said it was not working because of the husband’s behaviour. In response to a question from the husband as to why the shared care arrangement is not working, the wife said:

   Because you won’t let it. You continuously put me down in front of the kids. I say yes, you say no. There’s no consistency …

2. Later in the cross examination, the husband asked the wife why she finds it difficult to deal with him. The wife replied:

   Because I can’t talk to you. I say yes, you say no and it always ends up in an argument and it always ends up with you telling me how useless and hopeless and how psycho I am and I don’t need to listen to that. That’s why I can’t talk to you.

3. During cross examination, the husband suggested that the wife’s “accusations” towards him “may not necessarily be the truth but (might be) interpreted as the way the wife feels at the time.” The wife replied that her “accusations” are the way that she genuinely feels.

4. The husband’s lack of respect for the wife was apparent from his affidavit material (and from much of his oral evidence as well). Their inability to communicate was obvious.

5. During the course of his oral evidence, Mr Ban (who had had the opportunity of sitting in court and observing part of the husband’s cross examination) described the parties’ inter-relationship as follows:

   (The wife) presents as a more fragile person than (the husband). She admitted that herself, that he is quite a forceful personality. I don’t think he has any insight into the impact of his personality on her, even though they were married for twenty years, and he can’t understand how he could intimidate her by matters that he would think are just exchanges or conversational pieces where (the wife) would feel as though she was being denigrated. I think that’s been the pattern in their relationship for a long time. (The husband) just can’t tolerate that. I think what I heard today (in Court) was just what I thought when I first assessed the situation. (The wife) finds it very difficult to deal with (the husband) because he just doesn’t understand how he can intimidate her.

6. I then asked Mr Ban whether, in his opinion, the husband understands the impact of his actions and words on the children. Mr Ban replied:

   I think that (the husband) is a man who felt as though he was unfairly hurt by his wife when she left, that he was the victim, that he was innocent, that he wants the children to know that about him, that he’s done nothing wrong. I really think that’s how the children would understand that’s the way he views what’s happened when their parents split up. I think that E and D have worked out for themselves what they think and E has sided with her mother anyway, emotionally. But I think for the younger two, they don’t know. So they’re hearing things being said and sharing their lives between their parents, but there’s this ongoing animosity from their father toward their mother that is beyond their comprehension, and they want to please both their parents. …

   What (the husband) needs is insight into the fact that he’s not a victim, that the relationship ended. He’s not simply an innocent party. It took (both) of them in a relationship for it not to work. He’s pushing all the blame onto (the wife) and he doesn’t seem to have backed off from that. That’s a real problem. That’s going to be played out in his dealings with her and the children are observing that and forming their own views.

7. In my opinion, Mr Ban’s description and analysis (as set out in the previous two paragraphs) are very important. And, to the extent that I am able to do so, I agree with his observations.

Family Report

1. After dealing with background issues, and recording what he was told by each of the parties, Mr Ban described his interviews with each of the children as follows:

   E

   E presented as somewhat reserved when talking about her living situation, and took a little while to open up. She stated she has become used to the shared living arrangement between her parents, although there were problems in the past with the houses so close together as ‘they could yell at each other’. The main advantage E could see was the convenience of getting things such as clothes if they were accidentally left behind.

   She stated she sometimes does not like it at her father’s house if he argues with (Ms I), and wants to leave and live with her mother. E acknowledged that lately A has been spending more time with her mother than her father. After some reflection, E stated ‘sometimes I want things to change about where I am living and sometimes I don’t’. She stated she has a better relationship with her mother than her father, as they do not argue. However, she admitted she has not had an argument with her father ‘for ages’.

   E stated ‘no matter what the Court decides, I will still see both my parents when I want anyway’. She acknowledged there is still some tension between her parents, and stated ‘usually it is Dad who is running down Mum’. E does not feel she has any problems with her parents’ partners, and stated ‘they are both nice.’

   D

   D presented as a quietly spoken but confident teenager, with both his parents acknowledging he was trustworthy and independent. … D told me that he was happy with the current situation and there was nothing negative about it as far as he was concerned. He stated ‘I want things to stay the way they are’.

   D finds it convenient to have his two homes close together as he can get things from either house if he leaves something behind. He stated he wants to see both parents for an equal time, and likes being able to see the other parent when it is not their week to care for him. His only complaint was that it is harder to go to his father’s house when with his mother, as his father is usually away at work.

   D stated he gets on well with both parents’ partners. He is aware his parents have disagreements from time to time, but stated ‘they usually yell at each other over the phone rather than over the fence’. On most weekends D usually spends a good deal of time with his friends at the bike track, with both parents allowing him freedom to see his friends.

   M

   M presented as slightly shy when interviewed, but appeared not to be anxious about the process when asked how he felt about his living situation. He stated he likes spending each week with both parents, as ‘it is good to see them the same amount of time.’ M feels it is fair for them to see their children for seven days each, and does not think there are any problems. He stated he ‘gets on good with (Ms I) and (Mr K)’.

   A

   A appeared to be overawed by the interview, and sat looking at me with a smile on her face when I told her about the purpose of the interview. Once she realized I was interested in how she saw her present living situation, A stated clearly she wanted things to remain the way they were. She proceeded to tell me about her father having two dogs and her mother having two chooks, and appeared to accept her living situation as ‘normal’.

2. Under the heading “Summary”, Mr Ban wrote:

   Since their parents’ separation in June 2001, the children have had almost three years to adjust to the current shared parenting arrangement. Consequently alternate week residence feels ‘normal’ to the children, with all of them stating to varying degrees that they are satisfied with it. (The parties) appear to have shown some flexibility with the arrangement according to the children’s needs. I noted in particular the co-operative way they agreed for A to spend more time with her mother recently as she was going though a period of insecurity.

   E made it clear that although she feels more comfortable with her mother, she did not have strong feelings about changing the status quo. I believe she will continue to see both parents according to the quality of the relationship she has with them. It appears that her relationship with her father has improved over time and I do not think she would benefit by spending less time with him.

   Both parents acknowledge they need to work together for M’s sake, and admitted there is a difference in the way they manage him. I support (the husband’s) desire to develop a joint parenting strategy, and do not feel the issue will be resolved if he lives primarily with his mother and sees his father on alternate weekends. M was clear he wanted to continue seeing his parents equally, and I believe they need to develop a plan to ensure this can continue for him.

   (The parties) both agree that D is coping the best with the shared parenting arrangement, and attribute his capacity to manage as being largely due to his trustworthy and mature outlook.

   Despite (the wife) still feeling uncomfortable dealing with (the husband), I believe the tension between them has decreased since the separation and do not think the close proximity of the houses is a significant problem. The houses are not side-by-side or facing each other, which would maximize the chance of (the parties) seeing each other or monitoring the other’s movements. The disagreements between them take place over the phone rather than over the fence.

   Both (parties) spoke of (the wife’s) fragile state of mental health during the latter stages of their relationship. I believe that (the wife) would prefer to minimize her contact with (the husband) as she continues to feel vulnerable when dealing with him. (The husband) needs to acknowledge that (the wife) still finds it difficult to discuss issues to do with the children with him, as she believes he will try to over-rule her. However I believe they have already shown some capacity to work together for the good of the children, and do not think the children will benefit from altering an arrangement that has been working for almost three years.

Mr Ban’s Evidence

1. During cross examination by Mr Testart (for the child representative), Mr Ban conceded that he had not read any of the affidavits filed by the husband. He also conceded that — from hearing the passages that were read out during the course of the husband’s cross examination — there were “a lot of things that have been said in (the husband’s) affidavits that are quite concerning”. Mr Ban also said that the level of hostility between the husband and the wife is “quite significant” — although it is not mutual. The hostility is directed by the husband towards the wife.

2. Mr Ban described the wife as “wilting under the pressure of trying to cooperate in a joint parenting situation up until now”.

3. In relation to the parties’ ability to communicate, and to act cooperatively for the benefit of the children, Mr Ban said:

   … (the husband) is still hostile. I mean, that’s quite clear from his affidavits. Now, even if he has moved on, he still hasn’t moved on to a point where he can consider (the wife) an equal parent, somebody to share information with about the children and put the children’s joint interests before … the level of animosity he has for (the wife). … I consider (the husband) is stuck on the issue that he’s losing something, whereas (the wife) is gaining something and he wants to maintain the status quo that he believes is working.

4. Mr Testart later asked Mr Ban about the conditions under which a shared arrangement can work effectively. Mr Ban replied :

   There has to be a level of communication where issues to do with the children … can rise above the issues that each parent feels about each other; and I mean that in the negative sense. There will always be situations that will arise where there’ll be a difference in a point of view about what might be the best strategy to undertake and there has to be enough give and take in the way parents relate to be able to hear each other out and then come to a joint understanding about what’s the best thing to do. My concern … is that (the wife) just doesn’t feel as though she has that quality of relationship with (the husband).

5. Later in his cross examination of Mr Ban, Mr Testart turned to the husband’s questioning of A’s parentage in front of her (being an event that I have found occurred in the manner described by the wife). Mr Ban’s response was that A would have thought “the person who I have always thought is my father, is that person trying to disown me?” The event would have been “quite devastating” for A. Mr Ban said that such a comment on the part of the husband would have caused A to feel insecure, and to react to that insecurity by attempting to please, placate and appease the person who caused the insecurity.

6. Mr Testart later raised with Mr Ban the passage from the husband’s second affidavit quoted in paragraph 27 above.

7. Clearly, the husband made the comment referred to in the previous paragraph to the children before the preparation of the family report.

8. Mr Ban eventually recognised that the likely effect of such a comment would be to place the children in a position in which the most appropriate response for them (during the report interviews) would be to request that matters be left as they are.

9. Mr Testart’s final exchange with Mr Ban was as follows:

   Mr Testart:What I’m suggesting to you is that the choice for the children is a stark one, because they don’t have the resources, do they, to determine what is or is not a toxic situation? I’m suggesting to you that what their father is asking them to do is to keep on going in a toxic situation, to keep the status quo; the toxic situation being his continued hostility and animosity towards his former wife and the tension, the undercurrent of tension, that that has all the way through. That’s what I’m suggesting to you, Mr Ban, is the problem with this affidavit material: that it discloses something, unfortunately for the children, that is darker and more sinister than what presents on the surface. The children present very cogently on the surface, I would agree with you; but underneath that there’s a level of moral coercion of the children that asks them to put up with things which are uncomfortable for them on various levels. And in the face of that discomfort they’re asked to make a clear choice in favour of the continuation of an arrangement which on other bases might not be a workable one?

   Mr Ban:Yes, I agree.

   Mr Testart:You agree with that?

   Mr Ban:Yes.

10. Mr Ban was then cross examined at length by Ms Smallwood (who appeared for the husband on 19 November 2004). Ms Smallwood suggested that the children had not been inappropriately influenced — in any relevant way — by the husband’s comments, behaviour and animosity to the wife. Mr Ban conceded that the older two children were able to express themselves, but said that the younger two children had a more limited capacity in that regard. Mr Ban was concerned about M’s capacity to be able to deal with the situation of conflict between his parents. He felt, however, that the parties had demonstrated that they were able to adjust and give information about what A’s needs might be, and to act in her best interests.

11. In answer to questions that I put to Mr Ban at the completion of his cross examination, he conceded that the husband’s actions in discussing the wife’s proposals with the children, in telling them that he would have no other choice but to sell up the house in which he had been living with them on a week about basis since the date of separation if he lost shared custody of them and in telling them that he may leave the area (and that they may not see him for a period of time) if he was unsuccessful in the case, would have had a traumatic impact on the two younger children — because they would have thought that they might lose their father if they didn’t tell Mr Ban that they preferred a shared care arrangement.

12. To the extent that Mr Ban recommended a continuation of the shared care arrangement, I have considerable discomfort with that concession. It seemed to be based almost solely upon the fact that, in his view, the arrangement had been working satisfactorily (or at least adequately) since the date of separation. He recognised (belatedly) that the children’s expressed preference for the arrangement was likely to have been compromised by the husband’s actions and statements. Even so, Mr Ban was principally concerned — in that regard — with the expressed wishes of the younger two children, and not so much with those of the older two children.

13. In my opinion, Mr Ban attempted to minimise or excuse certain of the husband’s inappropriate behaviour, and the more florid of the statements made in the husband’s affidavit material. He even suggested that the husband’s affidavits would have been “cleaned up” (as it were) if they had been prepared by a legal practitioner. The implication from Mr Ban’s comment in that regard is that many (if not all) litigants have unreasonable or inappropriate views which are effectively hidden from the court by the skilful drafting of their legal practitioners. I am unable to accept Mr Ban’s explanations or justifications for the more concerning comments contained in the husband’s affidavit material. Further, those comments are consistent with the husband’s attitude to the wife as I observed it to be during the course of the proceedings.

14. In my opinion, Mr Ban lacked a degree of balance and objectivity in relation to his task. I formed the view, during the course of his oral evidence, that he was prepared to defend the recommendation that he had made in the Family Report irrespective of factors that may legitimately impact upon its validity. I have referred to a number of those factors already in these Reasons.

15. In my opinion, Mr Ban’s recommendation must be approached with caution for the reasons that I have expressed. As well, it is unfortunate that he did not read all of the affidavit material available to him at the time of preparing the report, and that he did not immediately recognise the significance of the (perhaps unwitting) pressure placed on the children by the husband during the period prior to the preparation of the Family Report.

16. I have read and reread the Family Report, and the transcript of Mr Ban’s evidence. The court is not bound to accept Mr Ban’s recommendation, although it is important that appropriate weight be given to it. In all the circumstances, I am of the view that Mr Ban’s recommendations should not be accepted. Mr Ban’s conclusion that the current status quo is worthy of continuation must be given appropriate weight — but other factors adverse to the husband’s case appear (as I have indicated) to have been minimised or overlooked. Relevantly, I find that the husband has not acknowledged that the wife finds it difficult to discuss issues to do with the children with him — and that he is probably incapable of acknowledging that fact with any degree of sincerity.

17. Further, I find that —

    a)the wife is intimidated by the husband;

    b)the husband lacks understanding as to the effect of his rather forceful personality on the wife, and as to his capacity to intimidate her;

    c)the level of hostility between the husband and the wife is significant (but not mutual) — it is directed by the husband towards the wife;

    d)the parties’ relationship is not such that they are able to communicate effectively (including hearing and understanding each other’s point of view) and come to a joint understanding about strategies and actions that might be in the bests interests of the children; and

    e)the husband has applied a degree of “moral coercion” upon the children, in such a manner as to indicate to them that they should endure an arrangement that it is not entirely comfortable for them.

The Husband’s Case

1. As I have already indicated, the husband initially represented himself. Ms Smallwood appeared for him on the second (and final) day of the trial.

2. At the commencement of the trial, the husband’s case was that all four children should reside with him and that the wife should have certain defined contact with them. Towards the end of the first day of the trial (30 July 2004), however, the husband withdrew his application for residence of the children and indicated that his preferred position is that the present, shared residence arrangement should continue indefinitely.

3. I advised the husband that he could argue his residence case in the alternative, but he elected not to do so. From the husband’s point of view, therefore, the available options are that the children reside with the wife (and have contact with him), or that the current shared arrangement continue.

4. Ms Smallwood argued that the present arrangements have been in place for approximately three years and that they are working satisfactorily.

5. Ms Smallwood also argued that:

   a)the wife’s wish to “place distance” between herself and the husband must defer to the bests interests of the children;

   b)Mr Ban’s recommendation (that the shared residence arrangement should continue) should be accepted;

   c)Mr Testart (for the child representative) had demonstrated “a degree of antipathy” towards the husband which was unjustified, and the child representative’s submission to the effect that the court should grant sole residence to the wife should be rejected;

   d)the husband’s evidence should be preferred to that of the wife — in relation, for example, to the issue of whether or not the husband referred to the question of A’s parentage in front of her;

   e)although the bitterness and hostility that the husband has felt towards the wife may not have subsided, and although it may be “just beneath the surface”, the children have not been compromised by the husband’s attitude in that regard;

   f)irrespective of any comments that the husband may have made during the course of his evidence to the contrary, the husband will not “abandon” the children and will “be there for them” into the future; and

   g)the husband does the type of things with the children that he has described in paragraph 17 of his affidavit sworn 9 July 2004, and he has the attitude described in paragraph 18 of that affidavit.

The Husband asserts that he will not abandon the children

1. In order to understand Ms Smallwood’s submission in paragraph 98(f) above it is important to record that, at the commencement of the second day of the trial (19 November 2004), Mr Puckey advised the court that the wife had altered her proposals in relation to the issue of property settlement. I shall deal with the parties’ competing cases in relation to property settlement later in these Reasons, but it is of significance that the alteration to the wife’s property proposal presented to the court at the commencement of the second day was substantial, and reflected a willingness on the part of the wife to accept far less by way of property settlement than she had previously claimed.

2. The wife gave evidence that she had decided to alter her property proposal between the first day of the trial (30 July 2004) and the second day of the trial (19 November 2004) because the husband “… has been indicating to the kids that if the properties are to be sold, then he’ll be moving to Bendigo or Darwin, and he won’t see the kids again”. The wife said that she was aware that the husband had made such a statement because she had been told of it by the children. She put forward the amended proposal in relation to property settlement in the hope that it would mean that the husband would not relocate.

3. The wife later described the situation in terms of the children having been presented with a dilemma. The dilemma was that if they did not place some kind of pressure on the wife to come to a deal in relation to the issue of property settlement (on terms that are acceptable to the husband), then he will “just up and leave”.

4. In relation to the wife’s evidence as described above, the husband said (during examination in chief):

   Husband:… I have explained (to the children) that if I do lose custody fifty-fifty, that I will probably move to Bendigo where there’s more opportunities for me, but that will not stop me from seeing them whenever I can, and I’ll be over to visit whenever they need me, and I will never walk away from my kids. But I have explained that I may not be able to stay in Strathmerton.

   Ms Smallwood:   Have you ever told the children that you’ll be moving to Darwin and never seeing them again?

   Husband:No, I’ve never said I’d move to Darwin and never see them. My brother is intending to build a house in two years, he would like me to go up and do, like, maybe a month’s work every six, seven months, so I have explained that I may be going there, and if that’s the case, maybe we could all go up for a holiday.

5. Later in his examination in chief, the husband said:

   Basically, it’s economics. I mean, if I can’t afford to live and keep the houses, I can’t afford to do it and I’ll have to find some other alternative. The only alternative I can see is to move to Bendigo where my brother has a house, and try and start my life again. There’s more opportunities, there’s more work.

6. During the husband’s cross examination by Mr Puckey, he was less than clear as to his intentions regarding employment and his place of residence — whether he was successful or unsuccessful in the orders that he was seeking. The following exchange occurred:

   Mr Puckey:You’re not going to seek employment are you?

   Husband:Probably not full time, no. Also, if I lose the kids, I would like to travel a little bit too. … I suppose I’m indecisive. A lot hinges on what happens, then I make my life choices. …

   Mr Puckey:What was it you said?

   Husband:… yes, if I lose care, I would like to travel, Europe first, then settle down. I have a lot of family in Europe I would like to go visit. If I don’t have the responsibility of the children, yes, I’d probably do that.

   Mr Puckey:How long might you do that for?

   Husband:Who knows?

   Mr Puckey:I’m wondering whether it’s for a period of weeks, months or years. Can you narrow it down?

   Husband:How can anyone say? You go, you’ve got no commitments, except I would like — you know, if I’m here, of course I’ll want to spend time with the kids.

7. The husband later endeavoured to assure the court that he would be available for his children each alternate weekend and during the holidays, but I was less than impressed with the husband’s evidence in that regard. It was clear to me that the husband had carefully thought out all other aspects of his case, and I do not accept that he had not given careful thought to the arrangements that he would make in the event that his proposal for continued shared residence of the children was unsuccessful.

8. The husband eventually conceded that, irrespective of comments in his affidavit material, or made during the course of his oral evidence, he would always “be there for the children”.

9. I find, however, that it is necessary to treat the husband’s proposals in relation to the future arrangements for the children with considerable caution. His attitude towards the wife (including his lack of respect for her and suspicion of her motives) has, in my opinion, caused him to adopt a defensive and less than reasonable posture. Again, in my opinion, he has little insight into the effect of his hostility towards the wife upon his own thinking and upon his relationship with the children. For example, at the same time as the husband appeared willing to concede that the wife, in modifying her claim for property settlement, was attempting to accommodate the husband’s financial circumstances so that he could remain in Strathmerton, he continued to assert that her plan was to drive him out of Strathmerton.

10. On balance, I find that the likelihood is that the husband did indicate to the children (or one or more of them) — directly or indirectly — that if the wife obtained the orders that she initially sought by way of residence and property settlement, then he would leave Strathmerton.

    
    

    I also find that the likelihood is that the husband gave the children (or one or more of them) to understand (either directly or indirectly) that he would either never see them again, or — which is more probable — that he would be unable to see them for an extended period or time (or that he would only be able to see them on an irregular basis). Mr Ban commented upon the effect of those sorts of comments on the children.

11. As I suggested to Mr Puckey during the course of his closing address, the evidence reveals that the children were well aware — and had been for a long time — that the likely effect of telling Mr Ban that they wish to live with their mother was that their father could be “sold up”.

The Wife’s Case

1. The wife’s case is that the children should live with her, and that they should have certain defined contact with the husband (amounting, in essence, to each alternate week and half of the school holidays).

2. Mr Puckey argued as follows:

   a)To the extent that the children may have indicated that they want the current arrangement to continue, little weight should be placed upon their wishes in that regard because of the dilemma in which they were placed as a result of the husband’s comments to them.

   b)Although the children love both parties, the husband has seen fit to burden the children with adult concepts and other adult issues, and he has (directly or indirectly) allowed himself to be seen as a victim in relation to the circumstances of the marriage breakdown. He has, in short, denigrated the wife in the presence of the children.

   c)The two younger children (in particular), have a closer relationship with the wife, and it would be appropriate for all four children to live with her on a full time basis.

   d)The wife can be trusted to promote a close and loving relationship between the children and their father (whereas the husband seems incapable of promoting such a relationship between the children and their mother).

   e)Because the husband lacks insight into the effect upon the children of his behaviour and comments, and because he seems incapable of respecting the wife in a co-parenting role, his ability to meet the children’s needs is compromised.

1. I shall discuss other aspects of the wife’s case (and the husband’s case) when I deal with the s.68F(2) factors.

Child Representative’s Case

1. Mr Testart said in closing that the child representative had formed a view that, irrespective of the manner in which Mr Ban’s report and oral evidence might be interpreted, the shared care arrangement should be brought to an end and the wife should be granted sole residence of the children (with the husband having contact each alternate weekend and half of the school holidays — along with special days). It was clear from Mr Testart’s address that the child representative’s view in this regard was very firmly held.

2. Mr Testart made reference to the level of hostility demonstrated by the husband towards the wife, the parties’ apparent lack of ability to communicate effectively and as equals, and the reaction of the children to those factors.

3. Mr Testart urged the court to consider the evidence in relation to each of the children separately — but to focus, in particular, upon the two younger children. He also argued that A appears either unwilling or unable to accommodate the shared care arrangement at the present time.

4. Mr Testart also summarised the child representative’s “concerns” as follows:

   (The husband) is a man who clearly loves his children and clearly remains a person with a great deal to offer them. His own hurt at the end of the relationship, his own attitude as to why that relationship ended and the consequences of the end of that relationship, the conflicts that continue with relation to the children, and his own confusion about what his future holds for him are all matters which concern the child representative. The evidence which he gave about really not knowing how long he might go on holiday for was of concern to the child representative.

5. In summary, the child representative’s case is that both parties are capable of providing for the children’s physical and intellectual needs, and whilst the wife is also capable of providing for the children’s emotional needs, the husband’s ability to do so is compromised as a result of his attitude to the wife. Further, the husband’s attitude to the wife impedes his ability to cooperate with her in a manner that is necessary if a shared residence arrangement is to continue indefinitely.

The Law

1. Residence and contact orders are parenting orders. They arise in proceedings conducted under part VII of the Family Law Act. Section 60B sets out the object of part VII and the principles which underlie that object. Residence and contact orders are subject to s.65E in that, in determining the outcome, the best interests of the child comprise the paramount consideration.

2. The importance of the s.60B principles varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive — not only because they are contained in s.60B, but also because they accord with what is generally accepted to be in the best interests of children[6].

   [6] See B & B: Family Law Reform Act1995 (1997) 21 FamLR 676 at 734

3. In deciding the residence and contact arrangements that will promote the best interests of a child, the Court must consider the various matters set out in s.68F(2).

4. Section 60B is in the following terms:

   60B Object of Part and principles underlying it

   (1)     The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

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

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

   (b)     children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

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

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

5. The Full Court discussed the effect of sections 60B and 68F(2) in B & B: Family Law Reform Act 1975 (1997) 21 FamLR 676 as follows:

   9.53…the Court "must consider" the various matters set out in (a)-(l) of (section 68F(2)). That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge…The list is not intended to be exhaustive. That is made clear by par.(l) "any other fact or circumstance that the court thinks is relevant". This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.

   9.54Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s.65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s.68F(2) and to the overall requirement of s.65E. The matters in s.68F(2) are to be considered in the context of the matters in s.60B which are relevant in that case. But s.65E defines the essential issue.

   9.55Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case… 

6. In Smith (1994) 18 FamLR 55, the Full Court, referring to the manner in which the Court should discharge its obligation under the Family Law Act in coming to a decision relating to the custody, guardianship or welfare of or access to a child said:

   …the preferable approach to be adopted is to consider each of the matters referred to in the section (being the equivalent of section 68F(2)) separately and, having regard to the evidence upon each of those matters, make findings in relation to them. In the course of this exercise, the trial judge should consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out.

7. In Paskandy (1999) 25 FamLR 607, the Full Court said (at page 618):

   The Judgment of the Full Court in Smith (above) was delivered before the amendments to the Family Law Act made as a result of the Family Law Reform Act 1995 (Cth). However, the comments referred to remain apposite.[7]

   [7] See also A v A: Relocation Approach (2000) 26 FamLR 382 at 400-1.

8. In relation to the significance of an existing status quo, the Full Court in Burton (1978) 4 FamLR 783 said (at page 786):

   …we are of the view that no legal onus rests upon a party with whom a child is residing to show that a change would be detrimental to the child and no legal onus rests upon a party seeking a change to justify the change either by establishing that a change would be positively advantageous to the child or in any other way. An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case. When weighing that factor, the quality of the status quo would require examination — and if a long standing status quo is disturbed, then the factors which influence the Court to come to that conclusion should be clearly identified.

9. The Full Court’s remarks in Burton (above) were re-affirmed by the Full Court in Re: G: Children’s Schooling (2000) 26 FamLR 143 at 154[8].

   [8] See also A v A: Relocation Approach (2000) 26 FamLR 382 at 405-6.

Discussion/Preamble

1. I have re-read, and have reminded myself of the object of, Part VII of the Family Law Act, and the principles underlying that object — as set out in s.60B. I have kept that object, and those principles, firmly in mind as I have considered the matters set out in s.68F(2) and all other relevant matters. Indeed, I had that object and those principles in mind at all times during the trial, and during preparation of this Judgment.

2. I was at all times conscious of all of the following matters:

   a)The welfare or best interests of all the children comprise the paramount consideration in this case.

   b)I understand that it is necessary to evaluate each of the proposals advanced by the parties, and will do so (or have already done so) — directly or indirectly — in these Reasons.

   c)I understand that the evaluation of the parties’ competing proposals involves weighing the evidence and submissions as to how each proposal would hold advantages and disadvantages for the children (and for their best interests). I have performed that evaluation (or will perform it) — directly or indirectly — in these Reasons.

   d)I understand that it is necessary to follow the legislative directions set out in sections 60B and 68F of the Family Law Act, and that I must consider the various matters set out in s.68F(2).

   e)I understand that none of the parties to these proceedings bears an onus to establish that a proposed change to an existing situation, or a continuation of an existing situation, will best promote the children’s interests. I have taken into account the whole of the evidence which I consider to be relevant to the children’s best interests.

3. Before proceeding further with these Reasons, I refer to paragraph 74 of the Full Court’s decision in A v A: Relocation Approach (2000) 26 FamLR 382:

   In our view, the use of a structured series of analytical steps is an aid to the decision-making transparency and minimises the risks of a court falling into appealable error… In weighing the advantages and disadvantages of the proposal, we agree with the recent observations made by a differently constituted Full Court in Findlay and Boniface [2000] FamCA 676. In dismissing a ground of appeal that challenged the adequacy and clarity of the steps taken by a trial Judge in reaching her decision in a parenting order case, the Full Court said...:

   Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) … which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties, and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child’s best interests as paramount and did consider the relevant matters arising under s 68F(2).

4. I have kept in mind at all times the principles and dicta to which I have referred and remind myself that the Full Court’s occasionally stated direction to itself to avoid “an overly critical, or pernickety, analysis” of Reasons such as these necessarily recognises the “large element of judgment, discretion and intuition” involved in the decision making process[9]. I interpret these comments as inferring that a Judicial Officer should not “lose sight of the wood for the trees” (as it were). The principles and dicta to which I have referred form the foundation upon which these Reasons are constructed (and have structured the thought process that I have employed). I understand them and the need to apply them.

   [9] See U v U (2002) 29 FamLR 74 at 101, A v A: Relocation Approach (2000) 26 FamLR 382 at 410 and Re G: Children’s Schooling (2000) 26 FamLR 143 at 150; see also (for example) M & R (2003) FamCA 622 and K & W (2003) FamCA 446.

Some Issues

1. A number of issues were raised during the course of the proceedings. They included (in broad terms):

   a)The wife’s mental or emotional health.

   b)The husband’s attitude to the wife.

   c)The quality of the husband’s care of the children.

   d)The husband’s relationship with Ms I, and her mental and emotional health.

2. Obviously, many other issues were explored during the course of the trial, but I propose to deal briefly with each of the above matters before turning to a discussion of the s.68F(2) factors.

Wife’s Mental/Emotional Health

1. The wife told Mr Ban that she had suffered from anxiety and panic attacks. She attributed these to pressures that she felt within the marriage and from the husband’s family.

2. Mr Ban wrote:

   (The wife) felt (the husband) was emotionally abusive toward her during the time he was building their new house, which was next door to the house they were living in. She stated he continually ran her down and told her that nothing she ever did was right. (The wife) realised pressure was building due to her being a full time family day caregiver, (the husband) not earning an income as he was working on the new house, and (the husband’s mother) continually interfering in their lives.

   Consequently (the wife) suffered from another period of panic attacks and anxiety that resulted in two seizures. She decided to try a series of natural treatments before finally taking Arapax to help her remain calm. (The wife) stated that after five years use she had a short break, but is again taking 10 mg of Arapax …

3. In his third affidavit, the husband suggested that the wife had suffered from post natal depression following M’s birth. He also suggested that “ … the feelings of emotional abuse and worthlessness felt by the wife are symptoms of depression and not a result of any mistreatment by myself”.[10]

   [10] See paragraph 12 (b) of the husband’s third affidavit.

4. In my opinion, the passage quoted in the previous paragraph further exemplifies the husband’s attitude to the wife, and his lack of insight regarding the effect of his behaviour on her (and, indirectly, on the children). The husband’s suggestion that the wife might in some way be deluded when she raises criticism of his behaviour was also pressed during his cross examination of the wife.[11]

   [11] See, for example, paragraph 70 above.

5. In paragraph 13 of his third affidavit, the husband left no doubt as to his attitude to the wife’s complaints:

   Due to the depression suffered by the wife, I believe her allegations and resentment towards me may appear to be real to her. However, I dispute all allegations as not a true representation of the actual facts.

6. As I have discussed elsewhere in these Reasons, however, I accept that the husband did insult and belittle the wife during the final years of their cohabitation.

7. During the course of her oral evidence, the wife confirmed that she still takes ten milligrams of Arapax each day. She said that the dosage had been higher, but that it had remained at ten milligrams per day for two and a half years.

8. The wife also said that:

   a)she was seeing a doctor in relation to her anxiety and panic attacks;

   b)her medication was prescribed by the doctor;

   c)she saw the doctor every three months or thereabouts; and

   d)she does not have anxiety and panic attacks whilst she is on her medication.

9. During cross examination by the husband, the wife denied that she had been suffering from depression since M’s birth. She did not resile from her description of the condition as “anxiety”. She conceded, however, that “there is a fine line between depression and anxiety and panic attacks”.

10. Neither party produced expert evidence regarding the wife’s state of health. Whether she suffers or suffered from depression or anxiety is, however, of little significance in the overall context of the case.  The fact of the matter is that neither the husband (when he was representing himself) nor Ms Smallwood submitted that the wife is not capable of properly caring for the children on a full time basis. Indeed, the husband’s proposal is that the shared care arrangement should continue indefinitely.

11. Whatever might be the correct diagnosis for the wife’s state of anxiety or nervousness, I find that that the condition is being properly and effectively monitored and managed by the wife (with the assistance of her GP). I find that the wife has a good insight into her own mental and emotional state, and that she is compliant with appropriate medication as prescribed for her by her doctor.

12. Clearly, the wife has been able to cope with a very stressful situation since the parties separated. The husband’s attitude to her has been as I have described it in these Reasons, the parties have lived in close proximity, the wife has continued her relationship with Mr K (and they have had a child together), the wife has cared for the children at least as much as the husband has cared for them, and the wife has continued to work in paid employment as described elsewhere in these Reasons. I find that the wife has considerable emotional strength, and that she has the capacity to properly and adequately care for the children at all times — and that she will have such capacity for the foreseeable future.

Husband’s Attitude to Wife

1. I have dealt with this subject elsewhere in these Reasons.

2. At this stage, I record that Ms Smallwood made no attempt to submit that there was merit in the husband’s suggestion that the wife was deluded when she complained of his behaviour towards her. Indeed, the husband’s attitude to the wife was not directly addressed by Ms Smallwood in her closing — although she argued that the wife’s version of events should not necessarily be preferred to that of the husband and that, even if the husband continues to feel bitterness and hostility towards the wife, “ ... there is nothing to say you have to like the other side — but you do have to avoid compromising the children’s welfare if you want to stay as a residential parent”.

3. The husband’s affidavit evidence, and much of his oral evidence, demonstrates that he does not like the wife and does not respect her.

   
   

   I have already made findings in relation to these matters.

4. The parameters of the dispute before the Court in this matter are somewhat unusual — in that the husband does not seek that the children live primarily with him. Unlike the wife, he seeks a continuation of a shared parenting arrangement — one which requires the type of cooperation, and the attitudinal postures, described by Mr Ban.[12] The husband’s attitude to the wife, and its various manifestations, have served to cause the shared arrangement to become progressively less workable, and progressively more stressful from the wife’s point of view. It is an arrangement that can only work if both parties are able to cooperate adequately with each other. Although the parties have — demonstrably — caused or enabled the shared parenting regime to operate adequately since they separated, the evidence before me reveals that the wife is having considerable difficulty continuing with that regime.[13] So also are the younger two children of the marriage.

   [12] See paragraphs 75 to 83 above.

   [13] Mr Ban’s evidence was that the wife is “wilting under the pressure of trying to cooperate in a joint parenting situation up until now”.

1. I also accept that the wife received a resignation payment of approximately $6,090.00 in late 1989, and that these moneys were used to assist with the renovations of the original home at Strathmerton.

2. It is clear from the above that, during the course of the parties’ relationship, the husband made lump sum contributions totalling approximately $40,600.00 (and possibly as much as $45,000.00 or $46,000.00).  This figure is approximately seven times the value of the lump sum contribution made by or on behalf of the wife.

3. It is clear, of course, that the various lump sum financial contributions made by or on behalf of the husband were received at various times during the party’s relationship.  Nevertheless, such contributions are clearly of significance.

4. Until the time that the husband ‘retired’ (to use the wife’s term) in order to devote more time to the construction of the big house, it would appear that the husband was the primary “breadwinner” (as it were) in the family. Nevertheless, and I have described elsewhere in these Reasons, the wife worked outside the home and made a financial contribution in her own right.  Whether her financial contribution was to the acquisition, conservation or improvement of the parties’ assets or to the welfare of the family in the broadest sense is difficult to ascertain.  I am conscious of the need not to double count the wife’s financial contributions during the period of cohabitation and propose to take them into account under the general heading of the wife’s contributions to the welfare of the family.

5. In paragraph 44 of the wife’s affidavit, she deposed to the fact that she always applied her income towards the benefit of the family, paying for food, clothes, utility costs, mortgage payments and entertainment.

   
   

   I accept the wife’s evidence in this regard, and will deal with it as I have indicated in the previous paragraph.

6. In my opinion, it is of significance that the wife became the principal breadwinner for the family after the husband ceased employment in order to continue the construction of the big house.

7. It was not in dispute that, in 2001, the parties cashed in AMP policies and shares that they had set up in the names of the children.  The total that they received from the policies and the shares was just over $24,000.00. — which funds were used to assist in the construction of the big house.

8. It follows from the above that the financial contributions (in all their various guises) made by or on behalf of the husband during the whole of the period of the parties’ cohabitation significantly outweighed the financial contributions made by or on behalf of the wife. I shall deal with the period after separation later in these Reasons.

9. In paragraph 51 of her affidavit, the wife said:

   The husband and I moved into the property at Strathmerton (the small house) in 1986. Over time we renovated the property. We put in a new bathroom, pine ceilings, replastered the entrance and replastered other rooms. The husband is a qualified cabinetmaker and he was able to do much of the work without the assistance of other tradesmen. I assisted in all the renovations, knocking out walls, taking rubbish to the tip, acting as gofer and doing whatever was necessary to facilitate the renovations. It was also my job to clean up while the renovations were being performed.

10. The wife continued:

    In 1999, the husband and I built the home on the property at Strathmerton as owner/builders (the big home). Again, the husband primarily built the home, employing tradesmen as required. It took approximately two years to complete. We worked primarily on weekends. I assisted the husband in the building by cleaning up inside and outside, plastering, sweeping, doing the tip runs and caring for the children.

    For the last six months of the building process, the husband had no other job than building the home. He effectively “retired” in order to do this. I was working at a family day care and my income was the sole income.

    The husband’s family members assisted in the building of the home, as did my family. We also had friends assist us at times. At all times there was never any expectation that these people would be paid for their time or work .

11. Although the husband did not agree with the wife’s description of the parties’ contributions as described in the passages quoted above, I prefer the wife’s evidence in this regard.  I note, as well, that the alleged debts to the husband’s family (as referred to in the husband’s affidavit material) were not included in the agreed schedule of assets and liabilities.

12. I accept that the husband worked hard in renovating the small house and in constructing the big house. I also accept that his skills and labour saved the parties many thousands of dollars. But I am not prepared to accept the husband’s assertions that:

    a)the wife would refuse to help the husband when she was asked;

    b)the husband had to care for the children as well as build the house;

    c)the children helped the children more than the wife did, and kept the building site clean for the husband; and

    d)the wife was disinterested in the overall project of building the big house.

13. Overall, I find that the husband’s contributions under s.79(4)(b) also outweighed those of the wife to a significant extent. That is not to say that the wife’s contributions in this regard were not worthy of recognition.  She worked hard to assist the husband in renovating the small house and in constructing the big house, and she looked after the children whilst the husband worked on the buildings.  Appropriate credit must be given to her for these contributions.  She also performed the tasks referred to in paragraph 44 above.

14. Section 79(4)(c) requires the Court to take into account the contribution made by the parties to the welfare of the family (including any contribution made in the capacity of homemaker or parent).

    
    

    I accept that the wife was primarily responsible for caring for and supervising the children until the parties separated.  I also accept that the wife was primarily responsible for homemaking duties — such as cooking, cleaning and washing.  Again, that is not to say that the husband did not care for and supervise the children at times, or that he did not perform various housekeeping tasks.  I find, however, that the wife’s evidence in relation to her contributions in these areas is to be preferred to that of the husband.  As a consequence, I find that the wife’s contributions under s.79(4)(d) significantly outweighed those of the husband. In reaching this conclusion, I have not overlooked the fact that the wife also made a financial contribution to the welfare of the family as discussed in paragraph 228 above.

15. It has been the law for many years that a significant contribution as a home maker and parent must be recognised in a substantial way (and not in a token way).  There is no rule that direct or indirect financial contributions from one party (or non-financial contributions to the construction or improvement of a capital asset) are to be given greater weight than contributions made by the other party in the capacity of home maker and parent.

16. After separation, the parties effectively shared the care of the children. It is difficult to see, therefore, how either party’s contribution to the welfare of the family was significantly greater than that of the other.

17. Since the date of separation, the wife paid close to $6,000.00 in respect of the mortgage encumbering the two homes.  It is difficult to ascertain how much the husband has paid in respect of the mortgage, but it is likely to be significantly less than the wife has paid.

18. The husband continued to work on the big house after the date of separation. He painted and carpeted the lounge room, and built, painted and installed doors for the kitchen. He also purchased, painted and installed four sets of double wood robe doors for the children’s bedrooms. Although the husband suggests that the work done by him after separation would have increased the value of the property, I am unable to reach any definite conclusion in this regard in the absence of expert evidence. Still, I accept that the husband made these contributions and they are likely to have increased the value of the asset to some extent.

19. Overall, in relation to the period after the parties separated, I am unable to conclude that one party’s contributions (taken as a whole) significantly outweighed the other party’s contributions.

Conclusions Regarding Contribution

1. The question of how to deal with the totality of the contribution factors is always a difficult one.  The Court is obliged to compare like with unlike. I am conscious that the husband’s initial contributions were substantial. In Bremner (1995) FLC 92-560 and Way (1996) FLC 92-702, the Full Court cited with approval a passage from the judgment of Fogarty J in Money (1994) FLC 92-485, as follows:

   … an initial contribution by one party may be “eroded” to a greater or lesser extent by the later contributions of the other party, even though those later contributions do not necessarily at any particular point outstrip those of the other party.

2. In Pierce (1998) 24 FamLR 377 (at 385), the Full Court sought to put Fogarty J’s quotation “in its correct context”. After referring to an expanded passage from Fogarty J’s judgment in Money — in which his Honour said that: “… the respective contributions of the parties over a long period of marriage ‘offset’ the significance which might otherwise be attached to a greater initial contribution by one party” — the Full Court said:

   In our opinion, it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution … regard must be had to the use made by the parties of that contribution.

3. When I have regard to the parties’ contributions (in all there various guises) over the whole of the period of their relationship, I conclude that the husband’s contributions outweighed those of the wife for the following reasons:

   a)The husband contributed not less than $10,000.00 to the purchase price of the Strathmerton property at the outset.

   b)The husband received significant injections of funds from outside sources during the course of the relationship.

   c)The husband was primarily responsible for the work done in renovating the small house and in building the large house.

4. In highlighting the above matters, I do not suggest that other contributions made by or on behalf of the husband are unimportant. Nor do I minimise the important contributions made by or on behalf of the wife. I recognise her input, and have not given it “token” weight.

   
   

   I am endeavouring to do no more than list the most obvious factors that tilt the balance in the husband’s favour (as it were).

5. Overall, and doing the best that I can with the evidence available to me, I conclude that an appropriate division of the parties’ property available for distribution between them (as described in the schedule contained in paragraph 212 above) – on the basis of contribution alone – is something between 55% and 60% to the husband, and the balance to the wife.  As it would be intellectually dishonest of me to choose either of those two figures, I conclude that the appropriate split on the basis of contribution should 57.5% to the husband and 42.5% to the wife.

6. In Gleeson (2004) FamCA 1179, the Full Court said (in relation to an exercise of judicial discretion such as that which I have performed in in the previous paragraph):

   73.…(Words) will often (perhaps always) fall frustratingly short of an incontestable explanation for any particular exercise of discretion – or, for that matter, for a finding by an appellate court that a particular exercise was wrong.  All the relevant factors can be described, with modifiers in abundance, but still the analysis will beg the question, “Yes, but why that figure and not another?” or “Why was that the range rather than some other parameters?”

   74.The deficiency is unavoidable.  When there are a number of “right” results available, the explanation for the choice of one over others can never be incontestable.  Nor can the reasons for saying that a result is outside a range be beyond challenge.  The very nature of a discretionary exercise that ascribes mathematical consequences to a batch of actions and events amenable only to descriptive evaluation, means that it is impossible to place beyond argument the explanation for all the steps to the ultimate selection of result.

   …

   81.…(In) respect of virtually every exercise of discretion, by definition, it will not be possible to deliver a judgment which excludes reasoned argument that another result was available.

7. For what it is worth, I concur with the Full Court’s view as expressed in the passage from Gleeson quoted above.  The “balancing exercise” that the court must perform is rarely an easy or non-contentious one.

Section 75(2) Factors

1. So far, in considering the question of property settlement, I have dealt with the identification of the parties’ property and the question of contribution.  The Court has power to make an adjustment to a party’s property settlement entitlement on the basis, amongst other things, of both parties’ respective means and needs.  The Family Court has been critical of shorthand terms being used to describe this step in the property settlement exercise, preferring to refer to it simply as “the section 75(2) factors”[24] In essence, s.75(2) is concerned with the process of arriving at a just and equitable result.[25]

   [24] See Clauson (1995) FLC 92-595.

   [25] See, in that regard, Waters & Jurek (1995) FLC 92-635.

2. I have already recorded the parties’ ages. Both parties are in reasonable health.

3. The wife is presently employed as a pre-school teacher earning approximately $720.00 per week.  Her de facto husband, Mr K, earns approximately $520.00 per week.  I am satisfied that the wife has the physical and mental capacity to continue to work as a pre-school teacher for the foreseeable future, and I find that she is properly and effectively exercising her earning capacity.

4. In his first affidavit, the husband described himself as “extremely employable”. He did not resile from that description in his oral evidence. He asserted, however, that he did not return to paid employment after separation because he was “more interested in the children’s welfare than (his) employability”[26]

   [26] See, page 12 of the husband’s first affidavit.

5. During cross-examination, the husband said that he is trying to start up his own business. He said that he is starting to build furniture and that he collects timber. He had in mind that he would work form home and care for the children at the same time.

6. I have already commented upon the husband’s decision not to work in paid employment since the date of separation.  Whilst the husband’s desire to continue in his role of a parent is important, I am not persuaded that he could not have sort and obtained some sort of paid (part time) employment during the weeks when the children were not with him. The husband’s approach in this regard can fairly be compared to that of the wife, who has continued to work in paid employment for most of the periods since the date of separation, notwithstanding the fact that her responsibilities in relation to the care and supervision of the children have been no less than those of the children.

7. In any event, the orders that I propose to make in relation to residence will have the effect of reducing the husband’s workload associated with his care of the children.  That is not to say that the children (in particular, the two older children) will not continue to spend a significant amount of their time with him.  They will, but I find that the husband has the physical and mental capacity to obtain various forms of appropriate gainful employment notwithstanding that fact. Alternatively, he can continue to build up the small business that he has commenced. He is an intelligent and capable person who – in his own words – is extremely employable.  I have already commented upon his attitude to the wife and to this litigation.  I am of the view that he has temporarily lost focus on what is clearly a significant component or aspect of the children’s best interests – namely, their financial security and well being. As I have already remarked, the husband’s attitude in this regard is exemplified by his answer to Mr Puckey’s question regarding the length of time for which he is likely to travel if he is not successful in his claim for shared custody.  The husband implied that he would have “no commitments” in such a circumstance (other than – if he were in Australia – to spend time with the children).  The thrust of the husband’s evidence was that he seems to place very little weight upon his obligation to financially maintain the children.

8. The effect of the orders that I propose to make in relation to children’s issues is that the wife will have the primary responsibility for the care and supervision of the four children of the marriage (none of whom has attained the age of 18).  Again, that is not to imply that the husband will have no such responsibility, but the likelihood is that the two younger children of the marriage (at least) will be living with the wife on a full-time basis.  Further, it is likely that the older two children will be spending most of their time with the wife.

9. The commitments of the parties that are necessary to enable them to support themselves and others do not appear to be a relevant consideration in this case.  I am not dealing (directly or indirectly) with maintenance issues. Nevertheless, the wife will clearly have a financial commitment to support herself and her children (including T).

10. The husband has no responsibilities to support anyone other than the children.  The wife has responsibilities to support the children and T.

11. Clearly, both parties are entitled to a reasonable standard of living.

    
    

    It appears that the two houses provide a reasonable standard of living for the husband, the wife and the children.  Neither party has argued that one home provides a significantly better quality of accommodation than the other (although the big house is clearly newer, larger, and more comfortable than the small house).  In some ways, it is unfortunate that the wife – who is to return to being the children’s primary care giver – is unlikely to be able to reside in the big house. Logic would dictate that – from the children’s point of view – it would be more appropriate for them to live in the big house with the wife, Mr K and T than for this largish family to live in the little house.

12. The wife is cohabitating with Mr K, and I am satisfied that the financial circumstances relating to their cohabitation are accurately described in the wife’s financial statement sworn 17 April 2003.  I have already recorded Mr K’s income, and it is apparent that he is making a (relatively modest) contribution to the household of which he is a member. I am not aware of other aspects of Mr K’s financial position.

13. I have already found that the nature of the husband’s relationship with Ms I is unclear. I am not aware Ms I’s financial position.

    
    

    I have already commented that the husband left open the possibility of Ms I continuing or returning to live with him in the future.

14. Given the husband’s attitude to the wife, and his apparent inability to appreciate the need or desirability for him to put himself into a position to assist with the financial support of the children, I find that the likelihood is that the wife will have difficulty obtaining a reasonable level of child support from the husband (at least, in the foreseeable future). If this is not a relevant factor under s.75(2)(na), then it may well be a relevant factor under s.75(2)(o).

Conclusions as to s.75(2) Factors

1. Having regard to all the evidence before me, I am persuaded that it is appropriate to make an adjustment on the basis of the s.75(2) factors. This is so because the purpose of the s.75(2) factors adjustment is to assist the court in the process of arriving at a just and equitable result. To refuse to make an adjustment in the present proceedings would be to run the risk of making orders which are neither just nor equitable.

2. In my opinion, the most significant of the s.75(2) factors is the fact that the wife will have the primary responsibility for the care and supervision of the four children of the marriage and the likely problems that the wife will encounter in endeavouring to ensure that the husband provides a meaningful level of financial support for the child.  That is not to say that the other s.75(2) factors are of no significance, but the balancing exercise required by s.75(2) is an imprecise process and the comments from the Full Court’s decision in Gleeson to which I have referred above also apply to it.

3. When I have regard to the above matters, together with all the other matters discussed under the general heading of the s.75(2) factors, I conclude that an appropriate adjustment of the wife’s entitlement on the basis of contribution alone is to increase that entitlement by 12.5%.

4. It follows that the overall distribution of the property between the parties should be on the basis of 55% to the wife and 45% to the husband.

Just and Equitable?

1. Section 75(2) is concerned with the process of arriving at a just and equitable result.  It follows that there may be circumstances in which the justice and equity of the case, and the specific provisions of section 75(2), support an adjustment in a party’s favour for matters which cannot comfortably be described as being of financial or economic significance.[27]

   [27] see McMahon (1995) FLC 92-606 at 82,043

2. Under section 79(2), the court is required to be satisfied that the order to be made is just and equitable — and not simply that the underlying percentage division of the net value of the parties’ assets is appropriate.  In other words, in the consideration of whether the overall result of property settlement proceedings is just and equitable, it is the justice and equity of the actual orders, and not of the percentage distribution, which must be considered[28].

   [28] see Russell (1999) FLC 92-877

Overall Conclusion

1. I have already recorded that the total, net value of the property currently available for distribution between the parties is $215,600.00. 55% of $215,600.00 is $118,580.00.

2. It is apparent from the schedule contained in paragraph 212 above and the orders sought by the parties that the items to be retained by the wife comprise the small house (valued at $97,500.00), the commodore motor vehicle (valued at $3,000.00), the loan associated with the commodore (also amounting to $3,000.00) and her superannuation values at $8,300.00). These items have a total net value of $105,800.00). Accordingly, if the wife’s overall entitlement is to amount to $118,580.00, then she must receive from the husband (who will be retaining all the other property and liabilities) a total amount of $12,780.00.

3. One of the more difficult aspects of the property settlement component of the present case is the relatively modest size of the asset pool.  The Full Court has cautioned against assessing s.75(2) factors in percentage terms without considering the real impact of any proposed adjustment. In other words, the real impact in money terms is “the critical issue”[29] In the present case, the s.75(2) adjustment equates to approximately $26,950.00 (being 12.5% of $215,600.00).  I am satisfied such an adjustment is proper and just and equitable – even when regard is had to the differential between the wife’s overall entitlement and the husband’s overall entitlement, which differential equates to 10% of the asset pool (or approximately $21,560.00).

   [29] See Clauson (1995) FLC 92-595.

Orders

1. I shall now hear counsel as to the precise orders necessary to give effect to these Reasons.

I, Paul O’Halloran, certify that the preceding two hundred and seventy-four (274) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate: 

Date:  3 March 2005