Moore and Tillotson & Anor

FAMILY COURT OF AUSTRALIA

MOORE & TILLOTSON AND ANOR

[2017] FamCA 456

FAMILY LAW – CHILDREN – Magellan List – final parenting orders – father historically convicted and imprisoned for knowingly possessing child pornography and subsequently convicted of indecent act with a child under 16 being his step child and sentenced to a Community Correction Order – benefit to the biological children of having a meaningful relationship with the father considered – whether there is an unacceptable risk to the children of sexual abuse by the father – where the father is an unacceptable risk to the children – order made that the children spend no time with the father – order made that the father be restrained from contacting the children – whether the presumption of equal shared parental responsibility applies – where equal shared responsibility is not in the best interests of the children – order that the mother have sole parental responsibility.

FAMILY LAW – PROPERTY – alleged loan agreement – where the applicant and second respondent allege the second respondent loaned the applicant monies – where the first respondent denies knowledge of any loan agreement – whether money provided by the husband’s mother was a loan and whether if it was a loan there is a genuine expectation of repayment- assessment of the party’s contributions – just and equitable division of property – Where the Court finds the parties’ contributions should be assessed as equal – Where the Court finds section 75(2) factors favour an adjustment of fifteen per cent to the wife due to the disparity between the parties’ income earning capacities –whether any adjustment should be made in the husband’s favour for funds retained by the wife post separation pursuant to repayment of a loan to church members – where the husband is to transfer to the wife the only real property owned by the parties

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 65DAC, 75(2), 79, 79(2), 79(4)
Family Law Rules 2004 (Cth)

Af Petersens and Af Petersens (1981) FLC 91-095
Bevan & Bevan (2013) FLC 93-545
Bolger & Headon (2014) FLC 93-575
Graham & Callan and Anor (No 2) [2013] FamCA 615
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Marsh & Marsh (2014) FLC 93-576
N & S and the Separate Representative (1996) FLC 92-655
Slater & Light (2013) 48 Fam LR 57
Stanford & Stanford (2012) 247 CLR 108
W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Moore

FIRST RESPONDENT:

Ms Tillotson

SECOND RESPONDENT:

Ms Moore

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

8041

2014

DATE DELIVERED:

30 June 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

30 & 31 January 2017 and

1, 2, 3, 6, 8 & 9 February 2017

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE FIRST RESPONDENT:

Ms McCreadie

SOLICITOR FOR THE FIRST RESPONDENT:

Lander & Rogers

COUNSEL FOR THE SECOND RESPONDENT:

Mr Kanarev

SOLICITOR FOR THE SECOND RESPONDENT:

Tyler Tipping & Woods

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Brennan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

Parenting

The wife have sole parental responsibility for the children B born … 2009, C born … 2010 and D born … 2012 (“the children”).
The children live with the wife.
The children not communicate or spend time with the husband and the husband be restrained by himself, his servants and agents from having any form of contact with the children.
The wife be entitled to obtain and maintain a current and valid passport for each of the children B born … 2009, C born … 2010 and D born … 2012, together with any necessary visas, without the need to obtain the consent of the husband.
The appointment of the Independent Children’s Lawyer be discharged.

Property

Paragraph 2 of the second respondent’s Amended Response to Initiating Application filed 18 January 2017 is dismissed.
Each party do all things necessary to effect a division between them of the monthly repayment of the loan to Mr and Mrs E to be paid as follows:
(a) 35 percent to the husband; and
(b) 65 percent to the wife.
Within 30 days, the husband and wife do all things necessary to cause all of the husband’s right, title and interest in the property at F Street, G Town Victoria to be transferred to the wife at the wife’s expense and the wife retain same to the exclusion of the husband.
In the event the husband does not execute the necessary documents to effect the transfer at Order (8) herein, a Registrar of the Melbourne Registry of the Family Court of Australia is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deeds and instruments on behalf of the husband.
Unless otherwise specified in these orders, each party be solely entitled to the exclusion of the other to all superannuation and all other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders.
All extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moore & Tillotson and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8041 of 2014

Mr Moore

Applicant

And

Ms Tillotson

First Respondent

And

Ms Moore

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant father brings an application for final parenting orders for three children of a six year marriage and for property settlement. The father has not spent time with the children for over three years since January 2014. The children have always lived with the mother.
The catalyst for the separation of the parties was the father’s arrest and subsequent conviction for committing an indecent act with a child under 16, being his step daughter H who lived with the family and who was aged 12 at the time of the offence.
The three children of the marriage are B aged eight, C aged six, and D aged five. (“the children”) H born in 2001, the victim of the sexual offending by the father during the marriage, is the mother’s child from a previous relationship. She is aged 15 and lives with the three children and the mother.
The first respondent mother seeks final parenting orders and property settlement.
The Independent Children’s Lawyer was appointed to independently represent the interests of the three children. The Independent Children’s Lawyer supported the mother’s parenting proposals which were supported by the recommendations of the family consultant.
In 2014 the father pleaded guilty in the Magistrates’ Court to committing an indecent act with a child under 16. That child was H. He was convicted and sentenced to a 12 month Community Corrections Order with a condition that he complete a sex offender program, be under supervision and perform 200 hours of community work.
The father is a registered sex offender for a period of 15 years and was subsequently convicted and fined $1,000 at the Magistrates’ Court in 2015 for failing to comply with reporting obligations.
The father had a prior criminal history before the parties met. He was convicted of knowingly possessing child pornography in 2006 for which he served a non-parole period of 12 months imprisonment from a sentence of 18 months imprisonment (Exhibit ICL 1).
The offending against H occurred in the context of both parents having signed an agreement with the Department of Health and Human Services (“DHHS”) incorporating a safety plan relating to H, C and B. The offending occurred on a morning when the mother drove herself to the hospital to seek urgent medical treatment.
The second respondent is the paternal grandmother of the children who initially sought parenting orders for the children to communicate and spend time with her supervised at a contact centre. She ultimately withdrew her application at the conclusion of the evidence in the trial, when consent orders were made for limited communication with the children.
The second respondent seeks an order that the mother and the father pay to her $62,560 pursuant to an alleged loan agreement between her and the father dated 5 December 2013.
The focus of the trial concerning parenting issues was whether the presumption of equal shared parental responsibility applied and whether the father was an unacceptable risk to the children, such that they should spend no time with him and he should be restrained from having any contact with them.

The parenting applications

The father seeks the following parenting orders:
·That the mother and father have equal shared parental responsibility for the children;
·That the children live with the mother;
·That the father spend time with and communicate with the children as follows:
oEach alternate weekend from 6.00pm Friday until 6.00pm Sunday;
oDuring the 2017/2018 long summer holiday period and alternate years thereafter from 10.00am on 27 December until 6.00pm on 12 January
oDuring the 2018/2019 long summer school holiday period and alternate years thereafter from 6.00pm on 12 January until 6.00pm on 26 January;
oIn 2018 and all even years thereafter from 4.30pm on Christmas Eve until 11.00am on Boxing Day;
oIn 2018 and all even years thereafter from 6.00pm on the Thursday preceding Good Friday until 6.00pm on Easter Saturday
oIn 2019 and all odd years thereafter from 6.00pm on Easter Saturday until 6.00pm on Easter Monday;
oFrom 10.00am until 5.00pm on Father’s Day;
oFrom 10.00am until 6.00pm on each of Labour Day, Queen’s Birthday and Melbourne Cup Day;
oBy telephone each Tuesday and Thursday between 5.00pm and 6.00pm;
oAs otherwise agreed between the parties;
oIn the event that Mother’s Day falls on a day when the father would otherwise be spending time with the children then the father’s time be suspended from 10.00am to 5.00pm on Mother’s Day;
oThat the time the children spend with the father be supervised by the paternal aunt for a period of 6 months and thereafter, the children’s time with the father be unsupervised.
oIn the event the paternal aunt is deemed unsuitable as a supervisor, the father’s time be supervised by a professional agency/supervisor.
The mother supported by the Independent Children’s Lawyer seeks the following parenting orders:
·That the mother have sole parental responsibility for the children;
·That the children live with the mother;
·That the children not communicate or spend time with the father and that the father be restrained by himself, his servants and his agents from having any form of contact with the children; and
·That the mother be entitled to obtain and maintain a current and valid passport for each of the children, along with any necessary Visas, without having to first obtain the father’s consent.

The property applications

The father seeks the following property orders:[1]
·That the vacant block of land at F Street, G Town (“the G Town property”) be transferred from the parties’ joint names to the husband’s sole name;
·That the husband receive “[his] share” of the E Loan payments;
·That the wife be responsible for half of the monies owing to the paternal grandmother and that the Court make a declaration that the wife be responsible and liable in respect of same.
[1] Paraphrased from document handed up by the father in Court on 31 January 2017 at 11.05am.
The mother seeks the following property orders in relation to property:
·That the father forthwith do all acts and things necessary to cause all his right, title and interest in the property known as and situate at F Street, G Town in the State of Victoria to be transferred to the mother.
·That the mother retain the benefit of the advance made to Mr and Ms E.
·That the father be solely liable for and indemnify the mother with respect to the debt to his mother, Ms Moore.
·That unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
o   Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in possession of such party as at the date of these orders;
o   Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
o   Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
The second respondent paternal grandmother seeks:
·That the father and mother pay to her the sum of $62,500 pursuant to an agreement dated 5 December 2013;
·Such other or further orders as this Honourable Court deems appropriate.

Background

I am satisfied on the balance of probabilities of the following factual background.
The father, aged 36, and mother, aged 37, were married in 2008 and separated on 29 January 2014.
They divorced on 25 April 2015.
On the basis of the father’s evidence he is engaged in fulltime employment and is in receipt of a remuneration package of $122,000 per annum. The father was promoted in December 2016 and has an annual salary of $92,500. This amounts to $1,779 per week. The father has recently been reassessed to pay child support of $248.55 per week. His remuneration package includes motor vehicle expenses.
On the basis of the mother’s financial statement she is engaged in home duties and the care of the three children and H. The mother has an average weekly income of $1,157 comprising government benefits and $203 weekly child support for the three children and child support of $32 weekly for H. She also receives repayments of $500 per month from a loan.
The mother lives in rented accommodation and home-schools the two older children. B and C are currently studying and are registered with the Victorian government as home school students. D is being assessed as to his eligibility for the commencement of his first year of school and his mother could not afford to send him to kindergarten. The mother has not repartnered.
On the affidavit evidence of the father, prior to his involvement with the mother, the father had a troubled history involving mental illness, drug and alcohol addiction.
In 2006 he was convicted of knowingly possessing child pornography and sentenced to 18 months imprisonment with a non-parole period of 12 months imprisonment (Exhibit ICL 1).
I find that in October 2007 the father purchased a property at J Street, Suburb K (“the J Street property”) for $247,500 and the paternal grandparents on the evidence of the father paid $24,500 towards the deposit for the purchase of that property. The property was mortgaged and the balance of the purchase price was borrowed.
Following his release from prison and during his parole period, the father became heavily involved with the L Church, where he met the mother. The mother worked for the father and at the time lived with H, her child from a previous relationship.
The mother was told by the father about his criminal history and sentence for child pornography, and believed that the offending was attributable to his drug and alcohol addiction. The parties became heavily involved in the church and in preaching, and the mother believed that the father’s involvement in the church had turned his life around. The mother believed that the father had reformed and devoted his life to the church.
The mother remains involved with the church but the father is no longer involved.
On the father’s own evidence he treated H as a child of the marriage and he treated her as if she were his own daughter.
The mother was contacted by DHHS while she was pregnant with their second child, C in June 2010.This was a result of the Victorian Police Sexual Offenders Register conducting an audit on all Registered Sex Offenders having contact with children. As a result of the intervention of DHHS, a Safety Plan was agreed between the mother and father whereby the father was to have no unsupervised access or contact with the children born at the time, H and B. The Safety Plan detailed that “supervision must entail being able to see and hear the interaction at all time between [the father] and the above named children”. Any adult supervising the father was to be fully aware of his past offending. In addition the father was not to take on the intimate care of the children, not be present during the intimate care of the children and not take any photos or video footage of the children. The father was also not to leave the bedroom during the night without informing the mother and the computer was to remain in the common area of the home with the mother to have the only password to the computer. The accountability programs of the church were to remain on the computer.
In June 2011 the mother contacted DHHS to request a review of the Safety Plan. On 17 June 2011 a new Safety Plan was developed with the mother agreeing to continue to monitor the father’s interaction with the children, attend training as required and report any concerns to DHHS.
H was diagnosed with diabetes in 2010 and is treated with insulin. The mother receives government benefits as her carer.
Two days after the parties separated in January 2014 the mother signed an agreement with DHHS. This provided that she was not to allow the children to be in the sole care of the father without approval from DHHS. The father has not spent time with the children since January 2014.
In 2014 the father pleaded guilty in the Magistrates’ Court to committing an indecent act with a child under 16, being H. He was convicted and sentenced to a community corrections order for a period of 12 months with a condition that he complete a sex offender program, be under supervision and perform 200 hours of community work. He complied with the sentencing order.
The father is a registered sex offender for a period of 15 years and after completing his community-based order was convicted of failing to comply with reporting obligations. He was convicted and fined $1,000 at the Magistrates’ Court 2015. The circumstances relating to this offence involved the father joining a gym which was attended by children under 18 and failing to report this for about 6 months.
On the basis of the cross-examination of the father and the cross-examination of the father’s psychologist, he has a partner of some two years who is not an Australian citizen and who resides in Asia. She regularly travels to Australia to spend time with the father. This travel is funded by the father who receives contributions from his mother, father and step brother. The father’s partner is a single mother of two children, a boy and a girl, whose ages were unknown to the father. Between 29 January 2015 and 9 November 2016 the father transferred money to his partner in Asia via Western Union transfers.

Procedural Background

The proceedings were initiated by the father in the Federal Circuit Court in September 2014 and the mother filed a Notice of Risk in October 2014. The proceedings were transferred to this Court and an Independent Children’s Lawyer appointed by order of Judge Stewart in the Federal Circuit Court on 27 October 2014.

A Magellan Report dated 9 January 2015 from DHHS was provided to the Court and the parties. At that time the father was under investigation by the police for possession of child pornography but no brief was ultimately authorised, the investigation was concluded and no charges initiated against the father.
On 28 January 2015 Senior Registrar FitzGibbon ordered that the Independent Children’s Lawyer arrange for the father to be assessed by Clinical and Forensic Psychologist Dr M for a psycho-sexual report. The father did not comply with this order but had previously been assessed by Dr M in October 2014.
On 3 February 2016 an order was made by the Senior Registrar granting leave to the paternal grandmother to intervene in the proceedings and be named as the second respondent.
A family report prepared by family consultant Ms N dated 9 May 2016 was released to the parties on 10 May 2016. The trial was previously listed in June 2016 but adjourned because the family consultant was unavailable.

ISSUES

The issues were settled by the parties for determination on the first day of trial.
On the last day of trial the paternal grandmother withdrew her parenting proposals when a consent minute was signed by all parties providing for her to be at liberty to forward cards and gifts to the children on special occasions at an address nominated by the mother and for the mother to be at liberty to inspect them and assess their appropriateness for the children. The paternal grandmother also agreed to an order restraining her from having any other form of contact or communication with the children. This was supported by evidence from the family consultant. The notation to that consent minute provided that the parties agree that at the mother’s discretion she will encourage the children and facilitate the children responding to the cards and letters. Final consent orders were made to give effect to that minute.
The remaining issues in the trial as settled by the parties were as follows :
(1)Whether the mother should have sole parental responsibility for the children;
(2)Whether the father is an unacceptable risk to the children such that he should not communicate or spend time with them;
(3)Whether it is in the best interests of the children to communicate and spend time with the father;
(4)Whether it is necessary to make an order restraining the father from communicating with or contacting the children;
(5)Whether it is just and equitable to alter the existing property interests of the parties;
(6)The extent of the contributions made to the property of the marriage by the mother and the father and paternal grandmother;
(7)What adjustments, if any, should be made on the basis of s 75(2) factors for the mother and the father;
(8)Whether the father and paternal grandmother entered into a loan agreement for the sum of $45,500, of which $24,500 was applied to the purchase of the property at J Street, Suburb K and whereby the paternal grandmother was to receive 18.4 per cent of the sale price of the property;
(9)Whether the mother and the father should pay to the second respondent the sum of $62,500 pursuant to an agreement dated 5 December 2013;
(10)If there is a finding of an unsecured loan to the second respondent, whether an unsecured loan should be given priority over the parties (asserted by counsel for the wife); and
(11)Whether the mother should be entitled to obtain and maintain a current and valid passport for each of the children, along with any necessary visas, without obtaining the father’s consent.

Evidence

The documents relied upon by each party are listed in Annexure A. The following witnesses were cross-examined during the trial:
·The father;
·The mother;
·The paternal grandmother;
·Ms O (the paternal aunt);
·Mr P (author of the Magellan Report);
·Ms Q (father’s counsellor);
·Detective Senior Constable R; and
·Ms N (Family Consultant).

Standard of Proof

When determining what final orders the Court should make, the relevant standard of proof is the balance of probabilities (Evidence Act 1995 (Cth), s 140). Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.[2]
[2] Evidence Act 1995 (Cth) s 140.
I have considered all the evidence in the trial as a whole and it should not be assumed that because I have not referred to a piece of evidence that it has not been taken into account.

Evidence of the father

The father deposed to many years of alcohol and drug abuse from the age of 13. He described his drug habit as an addiction by the time that he left school and started work.
He deposed to his father starting a new business and to working away from home and drinking alcohol to excess for a period of about four years, bingeing on drugs including “speed, morphine, ecstasy, marijuana, valium, LSD and others” on weekends.
He deposed to his parents purchasing him a house in S Town near T Town which he subsequently sold after he left the business, dissipating all his assets over approximately 12 months. He deposed to developing a drug induced psychosis and being no longer in control of his life by the age of 23 when he became paranoid, shunned his friends and stayed home and downloaded material from the Internet. He deposed to downloading “all manner of inappropriate material ranging from people killing themselves, people killing other people and all types of pornography”. He deposed to being hospitalised after smashing a window and severing three main arteries in his forearm. After being released from hospital the police raided his home and discovered that he was in possession of child pornography for which he was charged and sentenced, serving 12 months imprisonment from an 18 month sentence. He deposed that he was “out of control” at the time that he was convicted. He denies that he had or ever had any interest in child pornography.
The father deposed to completing a drug and alcohol course in prison and deciding to kill himself once his parole ended. He claims to have been found unsuitable for a Sex Offenders Course because he did not have any particular interest in child pornography.
He deposed to attending a church and deciding to reform his habits. He described a structured life regulated by religious studies, prayer meetings and church services twice on Sundays and preaching on the street on Saturday. He deposed that on reflection the strict rules, authority in the church and the hierarchical structure were “very much cult like”.
He deposed to meeting the mother through the church telling her of his background when they began dating. He deposed that he told her about his imprisonment for child pornography and his drug and alcohol abuse.
The father deposed that he told the Senior minister of the church about his background as a registered sex offender and that the minister informed the senior members of the church. The father deposed that he and his wife’s activities during their marriage revolved around the church. The father deposed that following the birth of B, DHHS intervened and when he was at home he was under strict conditions that he never be alone with the child. At paragraph 22 of his affidavit he deposed that “I was not to change nappies or bathe her. This was despite the fact that I had no interest in child pornography and have never had any interest in it”.
The father deposed that he has had a “close and warm” relationship with the children and at paragraph 24 of his affidavit he deposed that “there has never been any suggestion that I would abuse them or act inappropriately towards them”. This was reiterated at paragraph 51 of his affidavit and he further deposed he has “at all times acted wholly appropriately towards my children”.
The father at paragraph 44 of his affidavit deposed that:
I reiterate that I have never had any abnormal inclination in relation to my children and it is my earnest desire to rebuild my relationship with them and to be as good a father I can to them, acknowledging that it will be difficult given the Wife’s attitude and that of the church towards me.
The father deposed that he has been free from drug and alcohol addiction since 2006 and that since his imprisonment, he has not had any involvement with pornography. He deposed at paragraph 51 and 52 of his affidavit that he is “not a paedophile” and that because of his past history he understands he must be “overly cautious with the children lest an innocent act or gesture be misconstrued.” He deposed that with the assistance of his psychologist, Ms Q he has developed psychological strategies to deal with his guilt and any negative thoughts.

Father’s proposal

The father deposed at paragraph 53 of his affidavit that he is able to care for the children, but conceded that significant time had passed since he last saw the children and he acknowledged “there will need to be a period where the children will need to become reacquainted with me”.
The father deposed that he can be reacquainted with the children with the assistance of the paternal grandmother as she has always had a very close relationship with the children. However this proposal was abandoned during the trial when it became apparent that the paternal grandmother withdrew her proposal to supervise the children.
The father deposed at paragraph 53 of his affidavit that ultimately he seeks unsupervised time with the children but he deposed that “I acknowledge that in the short to medium term, supervision may be appropriate.” The father proposed that the paternal aunt supervise his time with the children.

Assisting with care of children

The father conceded that the mother was the primary caregiver of the children. Regarding his care of the children the father deposed that his usual routine was to leave for work at around 6:00am and return home at approximately 5:00 or 5:30pm.
However he deposed at paragraph 24 of his affidavit that he would put the children to bed with the mother, play with them, read them stories and “assist in feeding them and similar”. He deposed at paragraph 25 of his affidavit that the parties spent time at the church on weekends and that they were involved in “street preaching” until approximately 11:30am on Saturdays and afterwards the “balance of Saturdays would be left to spend time with the family”. On Sundays he described a 3-4 hour interval in the afternoon where he would go to the park with the children and play with them. He deposed to caring for the children with the mother.

Events involving H

The father deposed that he had always treated H as if she were his own daughter. At paragraph 31 of his affidavit he described the circumstances of his offending against H. The father described that while the mother was at the hospital he asked H for a cuddle. He described this as “quite normal as I have always been affectionate towards all of the children.” He deposed that:
[H] climbed on top of my blanket and gave me a cuddle and as she climbed up, I put my arms around her to give her a big hug. [H] then began to play rough with me, tickling and joking around. As I tickled her further, I touched one of her breasts. When this occurred, I immediately stopped.
At paragraph 32 of his affidavit the father goes on to depose that:
I apologised to her and told her that as she was already a young lady, it was inappropriate what I had done and from now on we would only give each other side hugs. I was guilt ridden, notwithstanding that there [sic] no more than a momentary fleeting touch.
Concerning the criminal charge, the father deposed that he was told by his solicitor to plead not guilty if he had not done as the charge set out. At paragraph 35 in his affidavit he deposed:
Nevertheless my [religious] beliefs were such that I could not concede any mitigating factor and felt guilt ridden and still feel guilt ridden as to the event. I accordingly pleaded guilty and was convicted.
The father deposed that he was required to complete 200 hours of community service, attend a Sex Offenders’ Course and was placed again on the Sex Offenders’ Register. He deposed that he attended a Sex Offenders’ Course each week for 6 months.
At paragraph 36 of his affidavit, the father deposed that:
If I had not apologised to [H] for what I had done, she would not have realised that I had acted inappropriately, given that my touch was momentary and fleeting.
The father deposed at paragraph 38 of his affidavit that he does not excuse himself and he says it is wrong but that the mother has “exaggerated and embellished upon the incident”.
The father later deposed at paragraph 52 that he is “particularly remorseful for my conduct pre-marriage and for my conduct to [H]”.

Cross-examination of the father

In cross-examination the father conceded that he had not lodged his 2014/2015, 2015/16 tax returns until January 2017 because “I didn’t get around to doing it”.
He stated that the child support increased from 17 January 2017 because his wages went up and that he is now paying $248.55.
When cross-examined about his possession of child pornography in the past, he agreed that he had downloaded 11,651 images of children aged between four and 12 and 2,708 images of children engaging in sexual activity with adults between the ages of four and 12.
When cross-examined about his comments to the family consultant at paragraph 34 of the report that the number of images was due to a glitch in his computer, he ultimately acknowledged that the images were not just on his computer but had been burned to one or two disks. He conceded that burning a disk would require about 14 steps and that “maybe” the only reason for burning items to a disk might be for future reference but he was unsure for what other reason someone would burn items onto a disk. The father denied that he kept the images for future reference because he was not interested in child pornography. The father could not recall if he told the mother that he had burnt the images to a disk. The father acknowledged that he had not told the paternal aunt that he had burnt images to a disk but stated that he had told the paternal aunt and the paternal grandmother that he had “heaps” of images. He conceded that he did not tell the mother how many images or videos he had in his possession. He agreed that 13,000 images was an astronomical number and that this was a “disgrace”.
The father maintained that he did not have an interest in child pornography.
During cross-examination by counsel for the paternal grandmother the father denied that he told DHHS workers that child pornography was a “victimless crime” during a visit in September 2010.
The father acknowledged that his trial affidavit, where he deposed that he had not used pornography again, was inconsistent with what he had told Dr M at paragraph 13 of his report which was that he had looked at pornography about six times.
The husband confirmed that he told Dr M that in 2013 he was having thoughts from the past including violent thoughts and child pornography images. However he denied that the thoughts were “flooding”. He also said that he had learnt to deal with the thoughts through Ms Q and the Sex Offenders Course.
The father denied that he had “lustful thoughts” in relation to H. However he acknowledged that he told his psychologist Ms Q that at the time of the incident he did have “lustful thoughts”. When asked about the inconsistency with his affidavit he said that his affidavit was correct.[3]
[3] Father’s affidavit filed 7 April 2016, par 31.
In cross examination by the Independent Children’s Lawyer the father conceded that he has said that when he assaulted H he was motivated by a sexual thought.
The father maintained that when he touched H it was fleeting and momentarily.
When cross-examined about H’s statement to the police when she was aged 12 that he had touched her breast for a minute or two, he maintained that she had lied about that.
The father denied that he minimised his behaviour in his affidavit. He confirmed that he told Ms Q that up until that point he had not thought of H in a “sexual context”.
The father conceded that when he swore his trial affidavit that he was already engaged with his psychologist Ms Q. He accepted that he had told Ms Q that he had not viewed H sexually prior to the incident. The father agreed that the touching was “done on purpose”.
When referred to paragraph 14 of Dr M’s report, the father was initially not prepared to acknowledge that he had told Dr M that he could “not give a stuff” about the risks at the time of the offending but later conceded that he did tell Dr M this. However the father said that he did “give a stuff” and that there was no context to what Dr M was saying. He agreed that he had told Dr M that he did not think of H sexually.
The father claimed that the mother had embellished the incident and was not prepared to accept that her account of the events of 29 January 2014 at paragraph 16 to 19 of her trial affidavit was a “matter-of-fact account”. When questioned about this he stated that he thought it was “a matter of bull dust to be honest”.
The father maintained that he does not think the mother is a “good mother”. The father stated that he would be able to talk to the mother but does not believe she could sit down with him.
When the father was questioned about the impact of him spending time with the children would have on H, he responded that he was not in a position to answer.
The father stated that he believed that the children spending time with him would have a “very” positive impact on them.
The father maintained there was a possibility that the mother coached H in relation to her complaint to the police. This was because H had complained in her statement that he had touched her breast with both hands. The father maintained that he used one hand.
The father admitted that he currently lives in a two bedroom unit, and if an order was made that he could have the children overnight he would move and “get another house”.
The father was questioned about an investigation by police into a hard drive that was allegedly owned by him. He was aware that in August 2014 the mother told police about images she found on his hard drive of concern to her. The father denied having images of H in her bathers and zooming in on her. He gave evidence that he had no idea what the four images of concern were and he had never seen the images. He denied being responsible for the images.
The father also denied that he took a video of H dancing around the lounge room in bathers not fitting around her bottom and her bottom being exposed.

Evidence of the mother

The mother deposed that when the parties met, she and the father were members of the L Church. The mother deposed that during the marriage the parties had active roles in the church and spent most weekends at the church.
However the mother deposed that now she and the children only attend church service on Sundays each week.
The mother deposed that before the parties married, the father had told her that he had been imprisoned for offences relating to child pornography. At paragraph 10 of her affidavit she deposed that they did not have “extensive conversations in relation to his criminal past” however he assured her that his offences were committed when he was “using drugs and alcohol excessively”. She deposed that he had assured her that his criminal activity was “behind him”.
The mother went on to depose at paragraph 11 of her affidavit that she believed that the father’s past was due to “his drug and alcohol dependency and that his commitment to his faith had helped him to reform his life”. She deposed that the parties “rarely spoke about [the father’s] criminality because there was a mutual understanding between [them] that that part of his life was over”. The mother deposed that she was informed in detail of the father’s prior convictions when she had a meeting with DHHS whilst pregnant with C. She was advised that the father had been “convicted of possession of child pornography relating to children between the ages of 2 and 14 years”.

The mother deposed that for the first 6 months after DHHS contacted her, there were conditions that the father not be permitted to be alone in the room with the children, unless accompanied by a person who had complete knowledge of his criminal history. The mother deposed that the children were not to be left in his sole care. The mother conceded at paragraph 13 of her trial affidavit, that because of the father’s assurances she “did not have any concerns about him; however we followed these conditions… so as not to cause any reason for accusations made against the Husband”. The mother deposed at paragraph 14 of her trial affidavit that as she had no concerns about the father, she applied for a review of the conditions. The mother deposed that on 17 June 2011 representatives from DHHS attended the home for an assessment and the plan was changed and it required her to attend training and counselling.

Events involving H

The mother deposed to the events involving H and the father in paragraphs 16 to 29 of her trial affidavit.
The mother deposed that on 29 January 2014 she took herself to hospital due to stomach issues. When she returned home she deposed that H told her that the father had “touched her inappropriately when they have been playing on the couch”. The mother deposed that H said that the father touched her “breasts and her bottom”. The mother deposed she immediately collected the children and started to get ready to leave the house and the father approached H and said “did you tell your mother”. She deposed that the father tried to stop her leaving the house as he wanted to apologise to her.
The mother deposed that she took the children and H to the park and discussed with H what had happened to her. She deposed that H confirmed that the father “put his hand under her nightie and touched her breast and touched her bottom inappropriately”.
The mother deposed that she then contacted DHHS who contacted the police. The Police Station contacted the mother, and H, B and the mother were interviewed by Detective R.
The mother deposed that the “whole ordeal was extremely traumatic for [H]” and that from the time of the parties’ marriage the father was a “father figure” to H. The mother deposed that the “fear and betrayal now instilled” in H is disturbing and the mother remains very concerned about how the incident will “affect [H] in the future, particularly the way she trusts and believes in people close to her”.
As a result of the father’s offending, the mother deposed that H advised her that she did not wish to remain in Victoria and expressed a fear she would see the father again and told her that she thought the father would kidnap her.
The mother deposed that H was referred to a Sexual Assault Centre for counselling and the counsellor became concerned about H self-harming. The mother deposed she contacted the psychiatric team at U Town Hospital after the assessment of H as she was “refusing to eat and was talking about taking excessive insulin as required”. The mother deposed that H grabbed knives and told the mother that she wanted to kill herself.
The mother deposed that following the sentencing of the father, she contacted H’s biological father and they made arrangements for H to live with him until “she felt comfortable and started gaining confidence again”.
The mother deposed at paragraph 27 of her trial affidavit that following the criminal proceedings relating to the father, he begged her to meet up and she agreed. She deposed that it was a “mistake” and the father was “focused on moving back in with [her] and the children and to spend time with them”. The wife deposed that she remained very concerned about the father’s “behaviour and the risk of potential harm to the children so [she] refused his demands”.
At paragraph 28 of her trial affidavit, the mother deposed that since she met up with the father, he continued to berate her and tell her she “should never have gone to the police to report the incident against [H].” She goes on to describe, that the father has used foul language against her, tried to manipulate the bible against her and that this treatment of her has confirmed to her “that he has little insight as to his behaviour and the impact that that has had on [H]”. She reiterated that the father has “shown no remorse for his actions.”
Since H has returned to live with the mother, the mother deposed at paragraph 60 of her trial affidavit that she arranged for counselling for H at the Sexual Assault Centre and later commenced counselling at X Group. The mother deposed that at X Group, the more holistic therapy program assisted H with controlling her emotions and to “learn self-harm prevention techniques”. H has ceased counselling temporarily.
The mother deposed at paragraph 62 of her trial affidavit that H is “progressing well” however there are days when her anxiety requires management but she has not “relapsed into self-harm or aggression since mid-2015.”
Whilst after the offending H threatened to overdose on her insulin, the mother deposed she now sees a social worker through the diabetic health clinic and the sessions with the social worker have helped to address these past emotions. The mother deposed that the mental health problems suffered by H “emanated from the abuse perpetrated by the [father]” and seeks that any parenting orders made by the court give consideration of the effect of the orders on H. The mother deposed that H is protective of her siblings and the mother is concerned about H’s reaction should the siblings spend time with or communicate with the father.
At paragraphs 74 and 75 of her trial affidavit, the mother deposed that on 17 November 2015 while at a service station with the children, H noticed the father arrive. She deposed that upon noticing the father, H became “visibly distressed and it appeared that she was having an anxiety attack”. The mother is concerned that H would have a “similar reaction should her younger children be exposed to the [father]”.

Events of 24 August 2014 – The Hard Drive

The mother deposed that on 24 August 2014 she found an external hard drive that the father had left at the home and upon opening the files on the hard drive she “discovered a number of sexualised images and film footage of [H]”. The mother deposed that the father’s voice can be heard during the footage. The mother deposed that she reported the matter to U Town Police and to DHHS and on 27 August 2014 the police attended her house and collected the hard drive.

The children generally

At paragraph 69 of her trial affidavit the mother deposed that the she cannot recall “the last time the younger children requested that they see their father”. She deposed that her and the children have “developed a stable routine together at home without him”.

Cross-examination of the mother

In cross-examination by the father, the mother conceded that up until the offending against H the father was a “good father” to the children.
The mother maintained that she was distressed upon finding out about the father’s offending against H. The mother conceded that her affidavit did not state that the parties, on the day of the offending, had a discussion in relation to the assault.
The mother maintained that the father “begged” and demanded to see her after the criminal proceedings relating to the assault on H. However the mother conceded that she sent two text message to the father in response to his text messages on 25 June 2016, the day of the father’s sentencing hearing, which included statements “I really want to see you asap [sic]. Can we arrange that please xxx [sic]” and “I want to see you asap [sic] please... Can we organise a time” (Exhibit 3).
The mother conceded she sent a “repentance letter” via email to the father on 7 July 2014 (Exhibit 4). In cross-examination by the ICL the mother stated that she wrote that email following abusive phone calls from the father where he told her to repent and apologise to him for calling him a sex offender. She stated that phone call “forced” her to write the email. The mother firmly maintained that she believed the father was a sex offender and she has never resiled from the allegation that the father abused H.
The mother conceded that on one occasion she hit the father with her handbag and agreed she was therefore physically abusive towards the father.
In cross-examination by the father the mother firmly denied that she ever abused her children. The father never gave any evidence that the mother had abused the children in his affidavit or during his own cross-examination.
In response to the father’s evidence that he believed the mother has embellished and exaggerating what occurred to H, she stated she doesn’t know why he said that other than to “get out of what he did”. The mother was firm in her denial that she coached H to lie or exaggerate.
In cross-examination by the Independent Children’s Lawyer, the mother stated that she believed the children would not manage “very well at all” if they were to spend time with the father in line with his proposals. The mother was consistent in her fear that the father could sexually abuse the children and she was concerned about grooming.
The mother stated that she would not be able to cope if orders were made in line with the father’s proposals and that it would affect her ability to parent the children. The mother believed the father’s proposals would have an “extreme” effect on H and that H would not be able to cope.
When questioned by the Independent Children’s Lawyer about parental responsibility, the mother stated that due to past experiences trying to talk to the father she is afraid to speak to him in person and afraid he will “dominate’ her and be “aggressive” towards her and not allow her to have input into decisions relating to the children.

Evidence of the paternal grandmother

The paternal grandmother deposed at paragraph 5 of her trial affidavit that during the marriage of the mother and father after DHHS intervened, she would supervise the father with the children when the mother was away from the home and the father during this time “was willing to comply with the requirements of the Department of Human Services”. She deposed that up until 2013 she was spending time with the children at least once per month. She deposed that she would stay overnight with the children and be with them for approximately two days however on occasion would stay for a week.
The paternal grandmother gave other evidence concerning her parenting application which was subsequently withdrawn. During that evidence it was clear that she was very closely aligned with her son and that she did not regard him as a risk to the children. Her responses in cross-examination suggested that she was critical of H and appeared to have no insight into the impact of the offending upon the child.

Evidence of the paternal aunt

The paternal aunt deposed that she first met the mother in 2008 and has spent time with the mother, father and children on numerous occasions. The paternal aunt deposed that in 2013 she spent time with the mother, father and children on a regular basis but it became difficult when they relocated to U Town.
At paragraph 8 of her affidavit the paternal aunt deposed that the paternal grandmother spent a “great deal of time” with the mother, father and children and that she has a “very close bond with all the children”. She deposed at paragraph 13 that even though she has a close family bond with the father she understands the “seriousness of this matter and the offences which [the father] has been charged with”. The paternal aunt deposed at paragraph 14 that she is aware of the father’s past in relation to “drug and alcohol abuse and offences in relation to child pornography as well as the current allegations against him” and is aware that he was convicted of a charge involving committing an indecent act with H. She deposed that the father is “very remorseful about his past”.
In relation to the paternal grandmother’s time, the paternal aunt deposed at paragraph 15 that the paternal grandmother and her share a belief that the “children’s safety is paramount” and that they “need to be protected from the risk of harm”.
Regarding supervision, the paternal aunt deposed at paragraph 18 that she is prepared to supervise either the father or the paternal grandmother’s time with the children and she does not take the responsibility “lightly” and would “always put the children’s wellbeing and safety first”.
The paternal aunt deposed to being prepared to supervise the children at her home or alternatively at the paternal grandmother’s home for any period she would spend with the children.
In cross-examination the paternal aunt deposed that she lives in a 3 bedroom house and there would be bedrooms for the children. When asked about the father’s proposal that he spend each alternate weekend with the children she was uncertain whether the time would be overnight or during the day. Significantly she was not aware of the father’s proposals to spend time with the children unsupervised for alternative weekends.
The paternal aunt gave evidence that she has no children and is unable to have children. She gave evidence that she has two other siblings, a brother and a sister.
While the father was incarcerated, the paternal aunt did not know where he was. She was told that he had gone away and gave evidence that the paternal grandmother knew the father was in prison, but did not tell her.
The paternal aunt maintained that she first became aware of the father’s offending, including the child pornography charges and the indecent act, in or around August or September 2014.
She believed that the child pornography offences of the father involved 2,000 images and was not aware there were videos. She was not aware that he had saved the images to a compact disc.
The paternal aunt had not discussed the father’s offending with her other siblings.
The paternal aunt maintained that the paternal grandmother would remain impartial in relation to her son.
When questioned by counsel for the Independent Children’s Lawyer about whether she thought that it was possible that the mother had coached H to exaggerate or embellish what occurred, she answered “Possibly. I wasn’t there”. She agreed that she would accept the father’s judgment about this.
The paternal aunt demonstrated a lack of empathy concerning the likely impact of the father’s offending on the mother and H.
When questioned about how she would manage the reintroduction to the children given that she had last seen them in 2014, she responded:
I think yes there would be an adjustment period but… I believe children respond very well to love and they would know that I love them… I think that they would be comfortable, it would be awkward initially yes but I think that they would adjust very well.
When questioned whether she thought the children might be distressed, she responded “possibly they would be but I think it would be only initially” and that they would be comfortable very quickly. When questioned how she you thought they would feel if their mother and H were distressed at them having to go with her to spend time with the father and how that would impact on them, she responded “I don’t think they would be that distressed”.
The paternal aunt’s lack of appreciation of the impact of the father’s offending upon the mother was evident when she described seeing the mother in the toilets at the Magistrates’ Court on the day of the hearing about the father’s offending against H. She described that the mother “ran away” from her and implied that the mother was being unreasonable.

Evidence of the father’s psychologist

The father’s psychologist, Ms Q deposed in her affidavit that by 26 May 2016 the father had attended 29 sessions and currently attends on a monthly basis. She deposed that he was initially seen weekly, then fortnightly. She holds a Bachelor of Arts, Bachelor of Science and a Graduate Diploma in Applied Psychology. She has been practising as a psychologist since 1999 and deposed that she specialises in child and family psychology and victim and offender psychology.
Her opinion was that the father does not suffer from psychological or psychiatric disorder. It is her opinion that he does not have symptoms of a psychotic illness, depression or anxiety and that he does not present with a personality disorder.
At paragraph 8 of her affidavit she reported:
[The father] has been consistent and open about sexually assaulting his stepdaughter [H]. He said he had not viewed her sexually prior to the incident, but did say that when he did it he had “lustful thoughts”. He said he was horrified by his actions and immediately spoke to [H] and his wife about it. He had no hesitation recognising the abusive nature of his behaviour.
She reported that the father has been in a committed relationship for about two years and that she has met his girlfriend who said she knew about his offending. Concerning the father’s partner, she reported at paragraph 10 of her affidavit that the partner “was pleased he had been involved in intensive individual counselling but also a group program. She was also well aware of him being in prison and his life in general”.
Ms Q reported at paragraph 11 that:
[The father] was clear that he had not previously preyed upon [H]. He [sic] action was driven by a sexual thought which occurred while she was on top of him. It was not trivial and he realised at the time that it was a major betrayal. He had been extremely remorseful of his actions and he has never tried to minimise his actions in counselling.
At paragraph 14 and 15 she reported that:
Concerning the risk [the father] poses to the children in terms of sex offending he has stated that he has not had sexual urges that focus on young children.
He also no longer has substance abuse problem and has not suffered from mental illness since prior to being incarcerated. He therefore does not have the same elements in his life, which he stated were present when he developed an interest in child pornography.
Ms Q acknowledged during cross-examination that it would “probably be right” that between November 2015 and January 2017 she and the father had not specifically discussed the father’s offending. She gave evidence that the offending was discussed in January 2017 to ensure the father’s new partner could understand his offending.
Ms Q during cross examination was referred to the comment the father made to Dr M that he could not “give a stuff” about the risks at the time of the offending against H. She agreed that the statement implied that the father would have had trouble regulating his impulses at the time of his offending.
In cross-examination about the father’s reference in his affidavit to a “momentary fleeting touch” concerning his offending against H, Ms Q stated that she understood that it was “like a fondle” and that he had never said that to her because he made it very clear it was purposeful. She could not remember whether the father had told her that he had put his hand up the child’s nightie. When asked if she agreed that he was minimising this offending in his affidavit she responded “slightly”.
Ms Q did not take issue with any of the findings of Dr M and had read his report.
She stated that it was concerning that the father had maintained in his affidavit that the wife had exaggerated and embellished the incident. She agreed that it was concerning that the father seemed to suggest that it was “someone else’s fault”. Regarding the father’s evidence that it was possible that the wife lied to police and coached the child to embellished the offence, Ms Q responded that she had never heard that and acknowledged that the father had presented “a different picture” to the Court from what he had said to her.
Regarding her understanding of the father’s new partner, Ms Q did not know that the father had said that he only wanted a long distance relationship and that his partner would not be around in the event that he spends time with the children. When asked if that surprised her she said “not really he’s so desperate to see his kids… whatever was the thing that would help that situation he would do that”. She stated that her understanding of the father’s intentions and commitment were that it was a “lifelong one” which was “both ways” and that his partner would live here full time.

Ms Q had met the paternal grandmother for the first time the previous day. Cross-examined by counsel for the paternal grandmother, Ms Q stated that without the support of the paternal grandmother and the paternal aunt, the father might be depressed and that it was her understanding that the paternal grandmother had been there with him and for him all the way.

Evidence of Detective Senior Constable R

By agreement between the parties the evidence of Senior Constable R was given by telephone. She was the informant who had investigated the father’s offending against H and who had conducted the further investigation into images from 2010 found on the hard drive computer at the parties’ home. She confirmed that a police brief had not been authorised and no charge had been laid against the father concerning the contents of the hard drive. The material examined by the police was destroyed.
She confirmed that the father had been interviewed by the police about four images saved to the hard drive that she considered constituted child pornography. Concerning that interview she stated that the father denied any knowledge of the images or the hard drive or the computer and that he had a very poor memory and was very evasive.
She stated that all of the images saved on the hard drive had the name of the father attached to them and were saved to his desktop but that no charge was laid because the police could not establish a nexus to the father given that other persons in the household had access to the computer in 2010.
She could not recall locating any images of H inside the house but recalled one image of H outside the house beside a pool. She stated that this was not child pornography.
Cross-examined by the father the detective agreed that she told him that she had no concerns about H and that the four images of unknown females which she had said were child pornography were not shown to him. She confirmed correspondence to the father dated 27 June 2016 from the police (Exhibit 5) which advised him that there would be no further police action in relation to his police interview on 27 February 2016 and that the incident had been investigated thoroughly and the decision made following an evaluation of all available evidence.

Evidence of Ms N, family consultant

Family consultant Ms N completed a family report dated 9 May 2016. She interviewed the parents, the two older children and the paternal grandmother. She did not interview the youngest child because he was only 3 years and 11 months at the time and she did not interview H.
The family consultant had the benefit of the report of Dr M and the Magellan report provided by DHHS.
In paragraph 108 of her report, the family consultant stated that it is “apparent from the recent charges that Mr [Moore] has progressed … from that of a global non-contact offence to that of a family specific contact offence” and that the child pornography of the father was at the “more serious end of the scale”. The family consultant stated that the father’s description of the events “highlights his need to minimise the offences committed” and further, that the father has minimised the sexual assault against H in that:
… [the father] repeatedly advised that if he had not acknowledged the event that [H] would not have recognised this as an assault and this raises some concern in regards to whether [the father] experienced actual remorse.[4]
[4] Family Report dated 9 May 2016, par 110.
The family consultant reported at paragraph 111, that the incident with H occurred on a rare occasion when the father was unsupervised and he “took this opportunity to behave in a predatory way suggesting significant issues with self-regulation”.
At paragraph 112, the family consultant stated that the father, by his own descriptions, “appears to need strong structural restraints around him to regulate his own behaviour” and it appears that without these structures, the father is “unable to contain himself” and suggests significant risk of reoffending. Further, the report writer stated at paragraph 113, that the father had received high level support through the church and a DHHS safety plan, “neither of which appears to have been sufficient to counteract his impulsivity” and it highlights the uncertain risk that the father poses.
According to the report writer, the paternal grandmother clearly “does not recognise her son as posing a significant risk to the children” and therefore is unlikely to recognise “less overt problematic behaviours which could result in the ongoing grooming of the children”.[5] The report writer concluded that she would only recommend professional supervision services and that a long term service was appropriate due to the potential risk. The report writer stated that moving to the father having unsupervised time would “not be recommended for a considerable period of time”.
[5] Ibid at par 114.
At paragraph 115 the report writer also stated that the “children would benefit from some specialist work in the area of safe and appropriate touch, particularly as there is no clarity on the extent of the grooming that took place in the family”.
In relation to schooling, the report writer stated that there would be “some benefits from the children attending mainstream school”.
The family consultant reported at paragraph 117 that the mother appears to be acting protectively but in the past had not “fully recognised the potential risk” of the father despite knowing the extent of his offences, because she allowed the father unfettered access to H and B before DHHS was involved.
On the issue of parental responsibility, the report writer stated, at paragraph 118, that equal shared parental responsibility is likely to increase the children’s “exposure to conflict and stress within the family to an intolerable level”.
The family consultant made the following recommendations:
·That the mother has sole parental responsibility;
·That the children live with the mother;
·That the Court consider reserving the father’s time with the children due to the “on-going risk of harm of sexual abuse and his inability to maintain appropriate child/adult boundaries”;
·That if the father was to have time with the children, such time should be supervised by a professional supervisory service with full knowledge of the father’s offences;
·That the time between the children and the maternal grandmother take place in the community for a period of not less than 4 hours once per month with the mother in substantial attendance;
·That the mother and the maternal grandmother attend mediation after a period of four months to determine whether the children’s time with the maternal grandmother can move to unsupervised time;
·That the Independent Children’s Lawyer remain engaged with the matter for a further six months to ensure mediation occurs;
·That the children engage in age-appropriate counselling with the Sexual Assault Centre or other appropriate independent services outside the church around the issue of safe touch and sexual abuse; and
·That the mother re-engage with therapeutic services with the Sexual Assault Centre to provide guidance around how to talk to the children about sexual abuse and their father.

Cross-examination of the family consultant

Throughout cross-examination the family consultant maintained that the father had minimised his offending and she was unshaken in her view that he represented a risk to the children. She confirmed that the father had also told her what he had said in his affidavit that when he had touched H that it was momentary and fleeting. She stated that it was a concern that the father had accessed pornography on six occasions, because he had talked about the importance of not accessing any form of pornography because it was a potential gateway for his offending.
She was unshaken in her opinion that the father’s expression of remorse for the offending against H was for having been detected, rather than being actively remorseful for the offending. She stated that the father uses different justifications for the offending and that it was concerning that he was taking no responsibility for his own actions.
She emphasised her concern about the impact of the offending upon H should she experience her siblings spending time with the person who had sexually assaulted her. She described the dilemma for the children in returning from spending time with the father in circumstances where the mother and H would be highly distressed and that it would be highly concerning how this would be managed by the children who might be confused about this reaction.
In cross-examination by the father she conceded that the interview was compressed because his appointment had been at 10:30 am and he arrived at 3:30 pm. However she spent one and three quarter hours with the father and conceded that the interview was “quite directed” by her because he had a capacity to wander into irrelevancies particularly when she asked him about the details of the offending against H.
The family consultant maintained her view that the description of events about the circumstances of the offending against H, as described by the father, constituted grooming, having regard to the age of the child lying on him, the rough tickling, the fact that her nightie was above her neck and that most 12 year old girls are usually quite shy about their bodies.
The evidence of the family consultant about the paternal grandmother was revealing in that it demonstrated the effect upon the mother of the offending against H. It also demonstrated that a former resource and support for the mother and the children was no longer a real option. When the evidence about the paternal grandmother’s view of the mother was described to the family consultant, she was of the opinion that the relationship had significantly broken down and there was no longer any trust. When referred to the evidence of the mother about her fear that the paternal grandmother might be capable of grooming the children for the father, the family consultant stated “that tells me there is no capacity for the mother to be a useful resource for the children on returning from spending time” and that the relationship is highly compromised and there is no trust. The family consultant indicated that she had changed her opinion about the children spending time with the paternal grandmother since having written the report because of the breakdown of the relationship between the mother and the paternal grandmother. She was also concerned about the paternal grandmother prioritising her son and the paternal grandmother’s view that the father did not pose a risk to the children unsupervised.
The family consultant was clear in her opinion that it would not be in the best interests of the children to spend time with the paternal grandmother in a contact centre setting and pointed out that she had not made a secondary recommendation about this in her report. She pointed out the impractical aspect of the children having to return from a contact centre to a mother and sibling who would be quite distressed. She emphasised the impact that this would have on the mother’s emotional availability to the children and the prospect of undermining her parenting role. She also emphasised the conflict for the children in mixed messages as they became aware of the reasons for the supervision, as they matured.
The example put to the family consultant about the paternal grandmother refraining from telling her husband about the father’s imprisonment until she had the permission of her son. The family consultant stated that this example confirmed her view that the paternal grandmother views her son as her first priority.
The family consultant was firm in her opinion that the father does not have any insight into the situation or the impact on the family of his offending against H. She was also of the view that the fact that the paternal grandmother supports his application to spend time with the children unsupervised, demonstrates no insight into the impact upon the children of the offending. She emphasised that it is a sibling of the children who had been impacted by the offending.
In relation to the question of supervision and in relation to the supervision of the father’s time specifically, the family consultant stated in cross examination that supervision by a family member or a non-professional would be “catastrophic” as she did not believe that they would “have the knowledge or experience to actually see that grooming behaviour or that undermining behaviour”. The family consultant also acknowledged the difficulties that a professional supervisor would face in supervising three children and stated that it would be difficult for a professional supervisor to have the capacity to “be on top of three children at all times” and stated that “it is highly likely that there would be periods of time where [the father] was able to speak to the children without that being overheard”.
In cross examination, the family consultant stated that if supervised time was ordered, it would need to be at a specialist agency and agreed with the Independent Children’s Lawyer’s proposition that even if time was supervised through a specialist agency, there is always a risk. The family consultant stated “with one supervisor and three children, they all go off in all different directions or a child needs to go to the bathroom; there’s so many scenarios in which there is additional inherent risk in that situation”.
The family consultant agreed with counsel for the Independent Children’s Lawyer that the father, as - in the words of counsel - a “doubly convicted sex offender”, may have difficulty in finding a specialist agency to assist him. The family consultant stated that “the majority of the contact centres would not accept supervision because of the risk of other children coming to and from the centre”. The family consultant stated that when making her recommendations, it was her concern that no other agency would take the father in the circumstances, which is the reason why she recommended that time with the father be reserved. The family consultant went on to say that she would not recommend that the contact take place in the community because of the potential it has to put other children at risk as “the types of places that the children would enjoy would be frequented by other children” and “the capacity to supervise the children adequately out in the community away from the centres, which would be the only other option, is significantly compromised”.

Evidence of Mr P, Senior Child Protective Practitioner

Mr P, Senior Child Protective Practitioner, DHHS completed a Magellan report dated 9 January 2015 in relation to DHHS’ current and previous involvement with the family.
The Magellan report stated that Child Protection could not assess the father’s suitability to resume contact with the children as he declined to meet with Child Protection. The report referred to the father’s criminal history concerning accessing and possessing child pornography and his conviction for an indecent act against H. The report stated that at the time of preparing the report, Child Protection had received no confirmation or evidence that the father had completed a risk assessment with an approved clinician to assist Child Protection in determining and approving the father’s contact with the children.
The report stated that the mother presented herself as a protective parent and reported her concerns to Child Protection and the police. In particular, the report highlighted the occasion when H disclosed to the mother in January 2014 that the father had inappropriately touched her. The report also pointed to the fact that the mother provided an external hard drive to the Sexual Offences and Criminal Investigation Team (“SOCIT”) which the mother believed contained inappropriate images of H, taken by the father over a period of time and which the father had hidden from her. This example was cited as further evidence of the mother acting as a protective parent.
The report stated that the information obtained from the Sexual Assault Centre would support H’s disclosure to the mother. According to the report, the mother appeared to be traumatised by the incident.
At the time of the report, the writer stated that SOCIT were unable to confirm the contents of the external hard drive as it was awaiting forensic assessment and therefore Child Protection were unable to substantiate the allegation of further harm to the children at that time. However the writer went on to say that Child Protection would share the mother’s concerns until such evidence is available and the matter is further assessed.
The writer observed that:
[The mother] presented as a highly vulnerable woman and was focused on her [religious] beliefs that [the father] was a “reformed man” that she could trust him that she left him alone with the children in January 2014 in which [the father] had touched [H] inappropriately.[6]
[6] DHHS Magellan report dated 9 January 2015, p 19
At page 19, the report stated that the mother breached the undertaking that she gave to Child Protection in 2010 and 2011 that she must monitor and supervise the father at all times with the children because the father had convinced her that he “lived [by his religion]” and that she did not suspect that the father was harming H. As a result, DHHS reported that the children were placed at significant risk of harm in the care of both parents whilst they were living together. The report also stated that the children were highly vulnerable if allowed unsupervised contact with the father or if supervision was conducted by other persons without those other persons being risk assessed.
In the report, Child Protection suggested that the father be further risk assessed through Forensicare (or similar) and if the father is allowed contact with the children, such contact should occur at the nearest W Centre or an approved contact centre.
At page 6 of the report it is noted that the church had a very detailed contract with the father regarding his accountability and being monitored by the church each month. It refers to the agreement outlining the father’s offending and the expectations of the church. It refers to the church having implemented a computer program which received a report each week which went to the church and to the mother about which websites the father had accessed and that the father was attending counselling through the church.
When cross-examined the senior child protective officer confirmed that he had never interviewed the paternal grandmother or the paternal aunt.

Evidence of Dr M, Psychologist

Dr M is a clinical and forensic psychologist. He conducted a psycho-sexual assessment of the father and prepared a report dated 24 October 2014 annexed to his affidavit filed 27 May 2016. The expertise of Dr M was not challenged and he was not cross-examined in the trial. The father and the ICL relied on his report.
Dr M’s qualifications include a Bachelor of Behavioural Science, Department of Psychology, Latrobe University in 1980, Master of Psychology (Clinical), Department of Psychology, and Doctor of Philosophy (Clinical Psychology).
At paragraph 19 of his report Dr M stated that the father’s account of his treatment “would suggest that he has had insufficient treatment with recent treatment with [Ms Q], Psychologist, having been helpful”. He noted in the following paragraph that the evaluation “identified the presence of personality difficulties best described as Personality Disorder (with borderline features) in the context of past history of substance abuse. There are historical problems associated with impulsivity.”
At paragraphs [30]-[35] of his report, Dr M stated that:
30.[The father] began using substances in his mid teens, particularly cannabis and alcohol but also has used other substances. By his early 20s he developed a substance induced psychosis. Around this time he developed an internet pornography addiction and apart from consuming violent and pornographic images, he also accessed child pornography images. He was charged and convicted and received a sentence of 18 months and served 12 months. He did not receive any treatment.
31.He subsequently connected with the [L] Church which provided him structure and guidance and developed his relationship with his ex-partner, [the mother]. They had three children together. He has worked consistently over the relationship, nevertheless, there were stresses in the relationship, in part associated with the structured life.
32.[The father] reverted to some internet pornography usage and towards the end of 2013, de-compensated, losing structure, putting on a huge amount of weight, and in early 2014 inappropriately touched his stepdaughter, [H].
33.Sexual risk evaluation via the RSVP and Static-99 revealed [the father] is operating at a Low-Moderate level of risk of sexual offending. There is no evidence of a preference for under aged females, and as such no evidence of a formal paedophilic orientation, however his previous experiences with child pornography have rendered him somewhat vulnerable to impulsive behaviour, and his personality structure more generally renders him vulnerable to impulsivity. In addition, there has been a pattern of impulsive behaviour and emotional difficulties that are congruent with Personality Disorder (borderline features). It is likely that a combination of previous substance abuse and psychotic experiences has rendered him vulnerable under stress for inappropriate thoughts, urges and therefore inappropriate actions, and at those times he would be a Moderate risk of offending under high stress and at other times under containment and low levels of stress he would be Low risk of offending.
34.[The father] appears to have approached the offences appropriately and has sought psychological treatment. Despite this approach he requires ongoing treatment in specific sexual offending program with clinicians with expertise in the area of sexual offending. He may require examination with a psychiatrist to address the possibility of intermittent odd/psychotic thinking. It is likely to be appropriate that future time with the children to be with another responsible adult in substantial attendance as this will reduce the risk of reoffending, and it would be appropriate that re-evaluation occur prior to alteration of those conditions of time with the children. He shows sound remorse and emerging insight, and prognosis is good with intensive application to treatment. His attitudes to parenting are sound.
35.Successful treatment to address the risk of sexual offending may reduce the need for such attendance; however the issue would need to be re-evaluated at that point. Longer term treatment would need to be over the next 1-3 years to address both sexual offending issues and also the personality disorder, with the personality issues to be addressed via dialectical behavioural therapy.

The husband made a financial contribution by way of his income from personal exertion. The husband worked as a foreman and as a contractor. He worked full time during the marriage. However the husband reported to Dr M that in 2013 that they moved to U Town and he took five months off work, ate to excess and did little, gaining weight of up to 160kg. He told Dr M that he “did little, watched television and used the Internet”. The husband agreed with this in cross-examination. This period would also appear to be a period during which the wife had the full-time care of the children without any assistance from the husband.
The parties used a bank account in the husband’s name during the marriage and the wife had access to the account. The Centrelink benefits paid to the wife were deposited into a bank account in her name but transferred to the husband’s bank account which was used for payment of the mortgage on the J Street property and living expenses. The parties did not operate a joint bank account. The wife received a carer’s allowance for H when she was diagnosed with diabetes in 2010.
I find that the parties sold the J Street property for $340,000 and on the evidence of the wife 10 per cent of the increase in the sale price was tithed to the church together with a further $10,000. The husband’s affidavit evidence was that $8,500 was given to the church and the proceeds of sale were applied towards payment of joint debts which were not specified.
There is insufficient evidence to make any finding as to the equity in the J Street property when it was sold as there was no evidence from any of the parties about the value of the mortgage which was presumably discharged.
The parties purchased the G Town property for $66,500 using the balance of the sale proceeds of the J Street property. The G Town property was registered in joint names.
I accept the evidence of the wife that about 6 months before separation on 29 June 2013 she received a gift from her late grandmother in the sum of $98,000. This sum was used to pay the family living expenses of $39,500. The husband in cross examination claimed that family expenses were also paid from his “long service leave”, however this was not deposed to in his affidavit and there is no documentary evidence to support this. I reject the suggestion in the father’s evidence about this. The gift is a financial contribution made by the wife.
I find on all the evidence that the parties used the balance of the money gifted to the wife to advance an interest free loan to Mr and Ms E in the sum of $58,500 on 18 October 2013. The husband claimed in his affidavit that if there is a default of more than 3 months in the loan to Mr and Mrs E that the property of Mr and Mrs E in DD Town was to be sold but there was no documentary or other evidence to support this. The monthly repayments amounting to a total of $4,500 were paid into the husband’s account until well after separation on 9 October 2014 when the repayments were directed to the wife’s personal bank account. When the repayments were directed to the wife from October 2014 they were used by the wife to pay living expenses for the family.
I accept the evidence of the wife which was accepted by the husband that the amount owing from that loan at the time of trial was $42,000. The husband claims that the source of the money advanced to Mr and Mrs E was a gift made jointly to the parties but I prefer and accept the evidence of the wife that she was the beneficiary of the gift and I accept the evidence that it was given to her by her late grandmother. During the marriage the wife, husband and children had the benefit of the gift for the payment of living expenses in the sum of $39,500 and the family shared in the benefit of the repayments of the loan. The husband conceded that during the marriage this money was spent at a time when neither parent was in paid employment and the money was used to meet expenses including rent, food, clothing and medical expenses. This is a financial contribution during the marriage made by the wife and a financial benefit received post separation for the support of the family in terms of the monthly loan repayments. The monthly loan repayments are a post separation financial contribution made by the wife over a period of about 3 years until the trial.
On the evidence of the husband at paragraph 50 of his affidavit, he had the sole benefit of those repayments between February and October 2014 amounting to $4,500.
I accept the evidence of the wife that post separation when the husband removed the wife’s access to his Commonwealth Bank account, the wife and children were forced to relocate from the rented premises to live with a friend for seven months (between November 2014 and June 2015) until the wife could secure new rental accommodation. The wife has had the full-time care of the children since separation and has made the overwhelming contribution to the welfare of the family as homemaker and parent since January 2014.
The evidence does not allow me to make any clear finding about when the husband began to pay child support. At paragraph 111 of the wife’s trial affidavit filed 1 April 2016 she deposed to child support fluctuating and to the amount of $892.40 per month being paid by the husband for child support.
There is no evidence from the husband about when child support was paid post separation but his financial statement filed 11 January 2017 is evidence that he was paying child support assessed at $235 weekly and his evidence at the time of trial was that he was paying $248.55 weekly. The wife in her financial statement filed 10 January 2017 deposed to receiving child support of $203 weekly for the three children.
The husband conceded that he was some 12 months late in lodging his 2014/2015 taxation returns resulting in his child support assessment being based on an estimation rather than his taxable income. As at 10 January 2017 I find that the husband paid child support assessed at $203 per week and I accept his evidence that he has now been reassessed to pay child support of $248.55 weekly.
Each party seeks that the half interest of the other party in the property be transferred. In considering section 79(4)(d) of the Act, there is no evidence of the effect of any proposed order upon the earning capacity of either party to the marriage.

Assessment of contributions

The duration of the marriage was approximately 5 years and 8 months and the post separation period before trial was approximately 3 years.
The husband had purchased the J Street property approximately 7 months before the commencement of the marriage and there was no real equity in that property. His parents contributed $24,500 for the deposit which can be regarded as an initial financial contribution by the husband. At the commencement of the marriage the husband had a motor vehicle with a debt of approximately less than $21,000 which was paid by his parents. The husband had no other assets.
At the commencement of the marriage the wife had no assets.
The parties have each made different contributions to the property of the marriage and the welfare of the family during the marriage. The husband made a financial contribution when he was employed during the marriage supporting the family. The wife made a financial contribution about 6 months before separation when she received the gift of $98,000 which was contributed to the living expenses of the family and the loan to Mr and Mrs E.
During the marriage the wife made significant contributions as homemaker and the full time carer of the children. The husband also contributed to the care of the children during the marriage.
Post separation for the last 3 years the wife has made all of the contributions to the welfare of the family as homemaker and parent. The wife has continued to home school the children post separation. The husband has paid child support post separation.
Both parties worked hard in their respective roles to the best of their ability. The husband made financial contributions to support the family and the wife made the overwhelming contribution by way of full-time carer of the children and homemaker.
I have concluded that the contributions made by each of the parties overall are equal.

Relevant s 75(2) factors under s 79(4)(e)

Section 79(4)(e) requires that the Court take into account the factors in s 75(2) of the Act so far as they are relevant. The matters to be taken into account in s 75(2) are as follows:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether each party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
…
…
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
…

Findings about relevant s 75(2) factors

The wife is aged 37 and the husband is aged 36. They are both in good health.
There is a disparity between each of the parties in their respective income earning capacities because of the length of time that the mother has been caring for the children on a full-time basis and home-schooling them. The husband is employed as a foreman and the wife has not worked in the paid workforce since she worked before the birth of B. The wife has a industry certificate and worked until late 2007. It is unlikely that the wife will ever be in a position to earn the level of income which has been achieved by the husband given her lack of qualifications and experience in the workforce.
The wife has been the primary carer of the children since birth and also has responsibility for the fulltime care and financial support of H, for whom she receives weekly child support of $32. She has not undertaken any paid work since 2007 and she is engaged in home-schooling the children which was agreed between the parties during the marriage. She has the full-time care of four children aged between five years and 15 years. She is dependent on government benefits and in receipt of income of approximately $1,157 weekly in addition to the repayments for the loan to Mr and Mrs E of $500 monthly. Her expenses are $977 weekly.
The husband has no motor vehicle expenses because they are part of his remuneration package and he has a remuneration package of approximately $122,000 per annum. He has been paying weekly child support of $203 but has been reassessed to pay $248.55 weekly. His weekly income is estimated at $1,779.30 and his weekly expenses are estimated at $1,643.40. He has personal loans of $26,991.
The mother will have primary responsibility for the children until they are 18. This warrants an adjustment in her favour and is a factor to which it is appropriate to attach significant weight.
During the marriage of approximately 5 years and 8 months and post separation of some three years, the wife was responsible for the full-time care of the children and in her homemaker role assisted the husband in progressing his career and working full-time which has disadvantaged her employment opportunities having been out of the workforce for those years. The husband is now working as a foreman with a good income.
There is a need to protect the role of the wife as a parent and the understanding of the parties during the marriage was that the children would be home-schooled and that the wife would be the primary full-time carer of the children.
The husband will continue to be liable to pay child support whilst he is employed.
A factor to be taken into account under s 75(2)(o) of the Act is that the husband had the sole benefit of $4,500 being the total of the repayments he received post separation from the repayment of the loan to Mr and Mrs E until the repayments were redirected to the wife in October 2014. This $4,500 does not form part of the joint property pool. The repayments received by the wife post separation were used to pay living expenses for herself and the children.
Taking into account all of these factors and in particular the disparity of income earning capacity, the wife’s full time care of the children and disparity of superannuation, I am satisfied that a 15 per cent adjustment should be made in favour of the wife for the relevant factors under s 79(4)(e) of the Act outlined above.

Outcome

It is important to stand back after making my findings and consider the practical outcome for each of the parties in applying s 79(4) of the Act.
This is a very small property pool. The wife does not seek a splitting order for the husband’s superannuation. I consider it just and equitable to take a single pool approach.
The wife by agreement is to retain her motor vehicle valued at approximately $10,000 and the husband is to retain his motor vehicle valued at approximately $2,000. According to the husband’s financial statement he has liabilities for personal loans from the Commonwealth Bank incurred post separation amounting to $26,991. He is responsible for the payment of child support.
I have assessed the contributions of the parties as being equal for the reasons outlined earlier.
An adjustment of 15 percent for s 75(2) factors in favour of the wife is appropriate when the greater earning capacity of the husband and all the other factors previously outlined are considered and it is also just and equitable.
Accordingly this is a settlement of sixty five percent in favour of the wife and thirty five percent in favour of the husband. Sixty five percent of the total asset pool of approximately $180,409 amounts to approximately $117,266. Thirty five percent of the total asset pool of approximately $180,409 amounts to approximately $63,143.
The parties made a joint decision to advance the loan to Mr and Mrs E and the amount of $42,000 which is to be repaid should be regarded as a joint asset. There is no documentary evidence that there is any security for the loan to Mr and Mrs E and there is a risk that the total amount owing of $42,000 may not be received by the parties if there is a default. The husband in his affidavit referred to the possibility of defaults in repayments. I am satisfied that it is just and equitable that the repayments should be treated as joint property and the parties should share in the risk. This would see the wife receiving 65 percent of the repayments and the husband receiving 35 percent of the repayments.
Accordingly the wife is to retain her motor vehicle valued at approximately $10,000 and 65 percent of the repayment of the loan to Mr and Mrs E which is $27,300. She will also retain superannuation to the value of $3,700. Accordingly the wife is to retain superannuation and non-superannuation assets with a notional total value of approximately $41,000.
The husband is to retain his motor vehicle valued at approximately $2,000, superannuation to the value of approximately $56,209 and 35 percent of the repayment of the loan to Mr and Mrs E which is $14,700. The husband is to retain a notional total value for non-superannuation and superannuation assets of approximately $72,909.
The G Town property has an agreed value of approximately $66,500. I find that it is just and equitable that the husband’s half interest in the G Town property be transferred to the wife. This would see the wife retaining property notionally to the approximate value of $107,500. This would appear to distribute a greater percentage than 35 percent of the single total pool of assets to the husband but in reality there is no source of any extra funds other than the real property and having regard to the justice and equity of the situation between the parties this settlement provides the wife with an immediate source of cash and severs the joint tenancy relationship.
The husband in effect is receiving a greater entitlement than the wife by way of superannuation and less in non-superannuation assets. However, unlike the wife, he has the security of employment and an income stream. Providing the additional amount to the husband in excess of the 35 percent of the total pool takes into account that he will be continuing to pay child support.
I consider this outcome where the wife receives a settlement which is weighted towards the non-superannuation assets to be just and equitable given the financial future of the husband and his earning capacity in comparison with the more limited financial prospects of the wife together with her responsibility for the full-time care of the children until they are 18.

I certify that the preceding four hundred and fifty-four (454) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 30 June 2017.

Associate:

Date: 30 June 2017

Annexure A

The applicant husband relied upon the following documents:

Amended Initiating Application filed 4 March 2015
Trial affidavit of the husband filed 7 April 2016
Financial statement of the husband filed 11 January 2017
Affidavit of the paternal grandmother filed 1 April 2016
Affidavit of paternal aunt filed 27 June 2016
Affidavit of psychologist Ms Q filed 27 May 2016
Affidavit of clinical and forensic psychologist Dr M filed 27 May 2016

The first respondent wife relied upon the following documents:

Further Amended Response to Initiating Application filed 1 April 2016
Trial affidavit of the wife filed 1 April 2016
Financial statement of the wife filed 10 January 2017

The second respondent paternal grandmother relied upon the following documents:

Amended Response to Initiating Application filed 18 January 2017
Trial affidavit of the paternal grandmother filed 1 April 2016

Financial statement of the paternal grandmother filed 10 January 2017
Affidavit of paternal aunt filed 27 June 2016

The Independent Children’s Lawyer relied upon the following documents:

Family Report prepared by Ms N dated 9 May 2016
Magellan Report prepared by Mr P dated 9 January 2015
Documents produced under subpoena

[2017] FamCA 456

30 June 2017

Key Legal Topics

Areas of Law

Family Law

Evidence