NELSON & BECKER

FAMILY COURT OF AUSTRALIA

NELSON & BECKER

[2016] FamCA 871

FAMILY LAW – CHILDREN – Parental Responsibility – Where the parents’ disagreement relates to sole parental responsibility or equal shared parental responsibility – Where presumption of equal shared parental responsibility does not apply has there has been family violence – whether it is in the best interests of the children for there being equal shared parental responsibility – where parties have sufficient capacity to communicate – where mother professed a desire for the father to be fully involved – where father has little knowledge of the children – where there is a prospect the parents will not be able to reach an agreement – where it is in the best interests of the children for there to be equal shared parental responsibility – where children live with the mother – where father has access to children’s medical and educational records – non-denigration order – where mother and father are prohibited from excessive alcohol or exposure to illicit drugs.

FAMILY LAW – CHILDREN – Substantial and significant time – Where the parents ultimately agreed on alternative weekend time – where there is a deferral for commencement of time while the parties engage with Centacare – where first four weekends are supervised time with children – where father’s time moves to unsupervised.

FAMILY LAW – CHILDREN – Risk – where mother was in breach of Domestic Violence Order – where father concedes he was domestically violent towards the child and mother – where parties’ conflict affected both children – where parties agree the youngest child was sexually assaulted by a cousin.

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – where neither party was cross-examined at trial – Where there were no agreed values – where division of property of parties to a de facto relationship is the same as identical provisions which apply to married parties – where mother served upon the father a Notice to Produce – where father objected complying – where mother contends it is in the interests of justice to produce – where father retains right title and interest in the first property – where second property is transferred to the mother – where the parents’ contributions are assessed as equal.

FAMILY LAW – PROPERTY SETTLEMENT – Just and Equitable – where it is just and equitable the asset pool is split 70/30 in favour of the mother – where secondary evidence is accepted in relation to the property – where father pays wife a lump sum payment – where mother transfers the business to the father – where registrar is appointed by section 106A of the Family Law Act 1975 (Cth) to sign and execute all documents.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 79, 90SM, 106A
Family Law Rules rr 15.52, 15.55, 15.76
Evidence Act 1999 (Cth) s 140

Mauldera & Orbel (2014) FLC 93-602
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
S v Australian Crime Commission (2005) 144 FCR 431
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Nelson

RESPONDENT:

Ms Becker

INDEPENDENT CHILDREN’S LAWYER:

Ms Gray

FILE NUMBER:

CSC

724

2014

DATE DELIVERED:

12 October 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

12, 13 and 14 September 2016

REPRESENTATION

SOLICITORS FOR THE APPLICANT:

Williams Family Law & Self-Rep Centre

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Ms Lawrence

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Susan Gray

Orders

CHILDREN

The parents have equal shared parental responsibility for Y born on … 2006 and L born on … 2008 (“the children”).

Reunification counselling

The father and mother will forthwith do all acts and things required to attend upon a counsellor at Centacare for reunification counselling in relation to the children, and comply with any and all reasonable directions of that counsellor from time to time.

Father’s time with children

The children shall live with the mother.
Upon the expiration of 6 weeks from the date of these orders, the children shall spend time with the father at all times as agreed between the parents in writing, and failing agreement as follows:
(a) For 4 consecutive Saturdays commencing Saturday 26 November 2016 at Z Park at Town A for a period of 2 hours from 9.00 am to 11.00 am;
(b) For the following 2 Saturdays from 9.00 am until 1.00 pm with the father and children to remain in the Town A area;
(c) For the following 4 Saturdays from 9.00 am until 5.00 pm;
(d) For each alternate weekend on 4 occasions from 9.00 am Saturday until 5.00 pm on Sunday;
(e) For each alternate weekend on 4 occasions from after school on Friday until Sunday at 5.00 pm;
(f) Thereafter each alternate weekend from Friday after school until commencement of school on Monday morning;
(g) If the children are not already in the father’s care on either of the children’s birthdays the children shall spend time with the father from after school until 6.00 pm if the birthday falls on a school day, or if a non-school day, then from 12 noon on the child’s birthday until the commencement of school or 9.00 am the following morning.
The children’s time with the father pursuant to Order 4 (a) shall be supervised by either the paternal grandmother or grandfather or both.

School holidays

From the commencement of the June/July 2017 school holidays the children shall spend time with the father for the first half of all school holidays in odd numbered years.
Commencing in 2018 the children shall spend time with the father for the second half of all school holidays in even numbered years and each alternate year thereafter.

Special days

If the children are not already in the mother’s care, the father’s time with the children shall be suspended so as to enable the children to spend time with the mother as follows:
(a) On the mother’s birthday from after school until the commencement of school if the mother’s birthday falls on a school day if a non-school day from 9.00 am on the mother’s birthday until 9.00 am the day after the mother’s birthday;
(b) From 5.00 pm on the day before mother’s day until the commencement of school on the Monday after Mother’s day;
(c) On either of the children’s birthdays from after school until 6.00 pm if the birthday falls on a school day if a non-school day then from 12 noon on the child’s birthday until the commencement of school or 9.00 am the following morning.

Changeovers

Changeovers shall take place at Z Park until the commencement of the father’s time with the children includes collecting them from school.

Communication

The parties shall communicate by text message in relation to matters directly affecting the children or by telephone in an emergency.
The father shall communicate with the children by telephone each Wednesday between 6.30 and 7.00 pm and each alternate Sunday (when the children are not in the father’s care) with the father to initiate the call to the mother’s mobile telephone or such other number as nominated by the mother.
The mother will facilitate the communication pursuant to order 10 and ensure the mobile telephone is fully charged and available to the children to answer in a private quiet location.
Both parties shall keep the other informed of their residential address and telephone contact numbers and advise the other of any change thereto within 48 hours of any change.

Restraints

Both the father and the mother will ensure the children do not come into contact with Mr G when they are in their care.
The mother is hereby restrained from taking the children to or engaging the children with any counsellor without the written consent of the father or on Order of the Family Court of Australia.
The mother shall not attend the home of the father without the written consent of the father.

Other Matters

Both parents are at liberty to attend school events to which parents are invited.
Both parties shall inform each other as soon as practicable of any illness or injury suffered by the children that requires urgent medical treatment and/or hospitalisation and where a child is in hospital or some other medical facility shall provide to each other the details of the child’s location so as to enable the other parent to attend upon the child at that location.
The mother shall advise the father of the name and contact details of the children’s regular treating medical practitioner.
These orders serve as Authority for the children’s schools and treating medical practitioners to provide to the parents at their request and at their expense any and all information and documentation pertaining to the children that is ordinarily provided to parents.
Neither party shall denigrate the other nor members of the other’s family in the presence or hearing of the children and shall remove the children from the presence or hearing of others who may be doing so.
Neither party shall consume alcohol above the legal driving limit whilst the children are in their respective care and shall remove the children from the presence of others who may be so affected by alcohol or who may be affected by illicit drugs.
Neither party shall physically discipline the children or allow any other person to do so.
The Independent Children's Lawyer is discharged upon the later of the expiration of the appeal period in relation to these orders, or the determination of any appeal that may be brought in relation to children’s matters.

PROPERTY

The de facto husband shall retain all of his right title and interest in the real property situate at H Street, Town B in the State of Queensland and known as … being the whole of the land more particularly described in Certificate of Title Reference … (“the B property”).
Within thirty (30) days of the date of these orders, the de facto husband shall do all such acts and things and sign all such documents as may be required to transfer to the de facto wife at the expense of the de facto wife, all of his right title and interest in the real property situate at J Street, Town A in the State of Queensland Lot 1 on … being the whole of the land more particularly described in Certificate of Title Reference … (“the A property”).
Each party shall do all such acts and things and sign all such documents as may be required to obtain a release of mortgage number …134 to ANZ Bank in relation to a mortgage secured over the A property with the de facto wife to be responsible for payment, contemporaneously with the transfer referred to at paragraph 26 of these orders, of all monies owing to ANZ Bank so as to release the de facto husband from liability in respect of the home loan attached to the A property and secured by the said mortgage.

Cash payment

Contemporaneously with the transfer of the A property to the de facto wife under order 26 hereof, the de facto husband shall pay to the de facto wife the sum of $31,940.00 by way of lump sum payment into a bank account nominated by the de facto wife.

Motor vehicles

Within thirty (30) days of the date of these orders the de facto husband shall do all acts and things and sign all documents as may be required to transfer to the de facto wife any and all of his right title and interest in the … Mazda … motor vehicle whereupon the de facto wife shall indemnify and keep indemnified the de facto husband against all liability howsoever arising in respect of the vehicle.
Within thirty (30) days of the date of these orders, the de facto wife shall do all acts and things and sign all such documents as may be required to transfer to the de facto husband any and all of her right title and interest in the … Mitsubishi … motor vehicle where upon the de facto husband shall indemnify and keep indemnified the de facto wife against all liability howsoever arising in respect of the vehicle.

Ownership in business “N Services”

Within thirty (30) days of the date of these orders, the de facto wife shall do all such acts and things and sign all such documents as may be required to transfer to the de facto husband at the expense of the de facto husband all of her right title and interest in the business entity known as N Services (“the business”), including but not limited to:
(a)All property used by or in connection with the business (including all office equipment);
(b)All monies held in bank accounts of or connected with the business; and
(c)Choses in action.
Upon the transfer pursuant to order 31 of these orders, the de facto husband shall do all acts and things and sign all documents as are required to indemnify and keep indemnified the de facto wife against all liability which the de facto wife may have whether now or in the future whether alone, jointly or severally with the de facto husband or any other person or company to any creditor of the business pursuant to any guarantee or indemnity or in any other manner however arising, and shall release the de facto wife absolutely from any liability (whether actual or contingent) under any loan documents, mortgages, overdrafts, credit cards and/or guarantees associated with the business.
Contemporaneously with order 31 of these orders, the de facto wife shall do all acts and things and sign all such documents as may be required to transfer to the de facto husband any and all of her right title and interest in all plant and equipment used by or in connection with the business.

Power of Registrar to sign documents

In the event that the de facto husband or wife fails or refuses or neglects to sign any document or give any necessary consent reasonably required to give full force and effect to the terms of these orders within seven (7) days of a request in writing by or on behalf of a party, then the Registrar of the Family Court of Australia at Cairns or Townsville is hereby appointed pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth) to sign and execute all documents and any documents and give any necessary consents for or on behalf of the defaulting party so as to enable full force and effect to be given to the terms of these orders.

Retention of property in possession

Unless specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)Money standing to the credit of the parties in any bank account is to become the property of the person so named as the owner of the bank account;
(c)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(d)All insurance policies shall become the sole property of the owner named thereunder;
(e)Each party shall 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.

Other

The person receiving the benefit of any transaction pursuant to these orders shall prepare the documentation necessary to give effect to the provisions of these orders at their expense and shall further be responsible for the payment of registration fees and all other fees in relation to the transfer of the properties into their name.
Any duty payable on transactions arising from these orders or any documents executed pursuant to these orders be paid by the party receiving the benefit of such transfer or transaction.
Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

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 Nelson & Becker 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 CAIRNS

FILE NUMBER: CSC724/2014

Mr Nelson

Applicant

And

Ms Becker

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings concern both the appropriate parenting arrangements for the parties’ children, and the just and equitable division of their property arising from the conclusion of their de facto relationship.
There are two children, being Y (born in 2006 and hence presently 10 years of age) and L (born in 2008 and hence presently eight years of age) (“the children”). However the dispute between the parties as to the appropriate parenting orders is very slender. They are agreed that the children should live with Ms Becker (“the mother”) and spend time with Mr Nelson (“the father”) and indeed are agreed that the ultimate goal should be that the children spend alternate weekends with the father, together with one half of all school holidays. Their disagreement relates only to whether there should be sole or equal shared parental responsibility, and as to the precise means by which the ultimate arrangement of the father spending time with the children should be progressed towards.
For his part, the father seeks orders for equal shared parental responsibility, whereas the mother seeks an order that she have sole parental responsibility. Their positions in relation to the steps which should be taken to culminate in the father spending alternate weekend and half school holidays with the children were something of a moveable feast during the trial. Indeed it is easiest to articulate their final positions by reference to the orders sought by the Independent Children's Lawyer.
She sought orders that the father should immediately commence to spend periods of two hours with the children on each Saturday for four consecutive weekends, and on the following two Saturdays, and that be increased to a period of four hours, before increasing to a period of eight hours for the following four Saturdays. The father’s time would then move to alternate weekends, and for the first four occasions be overnight on Saturday nights, but then move to Friday and Saturday nights. From the commencement of the 2017 school year, it would extend to Friday, Saturday and Sunday nights. Also from the commencement of the school year, she proposes that the children spend one half of the school holidays with the father.
Only the first four Saturday periods would be required to be supervised, with that supervision being by one or both of the paternal grandparents. Otherwise the father’s time would be unsupervised.
The Independent Children's Lawyer also sought orders requiring the parties to forthwith commence reunification counselling at Centacare. During the course of submissions, in response to a suggestion from the bench, the Independent Children's Lawyer indicated that she would not oppose the commencement of the father spending time with the children being deferred for a short period, perhaps only a month, during which time the reunification counselling would be commenced. However she indicated that the reason why she did not positively seek such an order was because she did not believe that the mother would in fact engage with the counselling, and certainly that the father commencing to spend time with the children should not be dependent upon her doing so.
For his part ultimately the father indicated that he was in agreement with the proposal of the Independent Children's Lawyer, including her position in relation to the deferral of him commencing time for a short period to enable reunification counselling to commence.
The mother’s position was more difficult to pin down. At the commencement of the trial I gave her leave to file an Amended Response, which had been forwarded to the court by her former solicitors who, it appears, had assisted her by drawing it, but were not intending to file it on her behalf. That sought orders that the children spend time with the father for four hours on four alternate weekends either at a Contact Centre or in the presence of the mother and a mental health professional, and then move to four hours of unsupervised time for two alternate weekends, extending to eight hours on two alternate weekends (during which time the father would be permitted for the first occasion to take them to the former matrimonial home). Then she proposed that the time move to alternate weekends, either at the father’s home or at the paternal grandparents’ home, save that where ever it be, on the first two occasions the father’s parents were required to be present. She also sought that the parties and the children be supported through this reintroduction period by either a psychologist or Centacare.

Subject to those arrangement “progressing satisfactorily” then it was said that the children should move to spending time with the father on alternate weekends for three nights, and one half of school holidays.
However the mother self-represented during the course of the trial, and to a significant extent distanced herself from the Response which she had sought leave to file on the first day of trial, on the basis that her former solicitors had pressured her into the proposed arrangement. During the course of the afternoon of the first day of the hearing, she then explained that what she wanted was for the father to spend six occasions of supervised time with the children at Centacare, with her attending the first visit as well. She also proposed that the father’s parents would be able to attend one of the supervised occasions. Further, she proposed that the supervisor at Centacare should determine if and when the father moved to unsupervised time. She also proposed that both of the parties undertake counselling to improve their communication.
Next during the course of submissions on the following day, the mother proposed a different regime. She no longer pressed for Centacare supervision, but rather that the father’s initial periods of time with the children should be supervised by someone she nominated, and that she also be able to attend those sessions. She indicated that she did not want them to proceed on every weekend, and further, said that the father should not commence spending time with the children until both parties had undertaken six weeks of counselling. Whilst it was unclear exactly when the father would then progress to unsupervised time, the mother was plain that when the father commenced to spend time with the children at his house in Town B, she wanted the grandparents there for overnights for an unspecified period, and further, wanted a prohibition on the children going to spend time at the paternal grandparents’ home, because of concerns she has in relation to the father’s brother who also lives there.
Further, she did not want changeovers on Friday to be from school, but rather she wanted them to be at some later time.
Turning then to the property proceedings, although the parties’ proposed outcomes can be stated with precision, the means by which they arrived at them were problematic. For his part, the father sought orders that the parties retain the properties in which they are presently residing or which are under their control, which, on a contended pool of approximately $100,000.00, would see an 80/20 split in the mother’s favour. For her part, the mother contended for a 65/35 division in her favour, albeit of a pool of somewhere in the order of $250,000.00. Primarily, however, she sought an order that the father be required to pay her a cash sum of $125,000.00, but otherwise each party retain the assets in their possession.
Whilst I will address the difficulties with each party’s proposal in due course, a more fundamental difficulty is that there were no agreed values as to much of the property, but notwithstanding that absence of agreement, there were no expert valuations either. Moreover, neither party was cross-examined as to any matters dealing with property.
I will deal with the children’s proceedings first and then consider property.

BACKGROUND FACTS

The mother

The mother was born in 1971, and hence is presently 44 years of age. It appears as though from the time she left school, she has always been employed as a farm-hand on farms in North Queensland. At a time which the evidence does not permit me to determine, she formed a relationship with one Mr U, to which relationship in 1993 a son, W, was born. W is therefore presently 23 years of age. However in consequence of the mother killing Mr U in 1996, the mother has not thereafter seen or communicated with W.
Initially the mother was convicted of the murder of Mr U, but after a successful appeal, was ultimately convicted only of manslaughter. She served a five year sentence, before being released in 2003. It was in the following year, when she was aged 32, that the parties met and formed a relationship.

The father

The father was born in1976 and hence is presently 39 years of age. He grew up and attended schools in the Cairns district, completing year 10. Not long thereafter he began working as a tradesman, and commenced his own business when only 24 years old. He also brought his first house at that age. He had one relationship that lasted for seven years, but had concluded prior to 2004, when aged 28, he commenced his relationship with the mother.

The relationship

Initially the parties remained living apart, and indeed had not cohabited when Y (“the older child”) was born in 2006. The parties are not agreed as to when they did commence cohabiting; the father says it was 2006, the mother says 2007, but nothing turns upon that. Whenever it was, it is plain that they had by then purchased a home in anticipation of living together in Town B (“the B home”). That town was chosen because it was half way between their respective work places. They were living at the B home when L (“the younger child”) was born in 2008.
It appears as though not long after the younger child’s birth, both the mother and father became convinced that each of them was romantically and sexually involved with another person. The father denies that he so was engaged, although the mother says that she knew that he was, as he contracted some STIs. For her part however, the mother concedes that she was seeing someone else, and to that relationship fell pregnant on three occasions, save that each pregnancy was terminated. The father was aware of these terminations, and aware that the children were not his, but nonetheless remained in the relationship with the mother.
In 2009 the parties purchased a second home in Town A (“the A home”) and not long thereafter the mother and children went to live in it, with the father remaining living in the B home. Notwithstanding that physical separation, neither party contends that the de facto relationship then concluded.
The father concedes that whilst the parties were cohabiting, he was domestically violent, including physically abusing the older child. He says that he would become angry very quickly, and smack the child frequently, and says that he continued to smack him a lot even after the A home was purchased. Although not contained in her affidavit, the mother detailed in her oral evidence occasions, when the parties were living in the B home, that the father would stab the kitchen table with a knife leaving marks in it, and that he would kick in the lower panels of internal doors in the home. She says that the father was intoxicated on these occasions, and indeed says that he was frequently intoxicated at many times during the course of the relationship. The father appears to concede that he was, at least at that time, drinking to excess.
Sometime in 2010 the father located a bank statement which, to his mind, confirmed the mother’s relationship with another man. He concedes that shortly after that discovery, he assaulted the mother by punching her legs, buttocks and back, and that afterwards she was bruised. He says that this was the only occasion that he was ever physically violent towards the mother.
It seems clear that the parties’ conflict significantly affected both children.
On 14 December 2011, the younger child, who was staying at the maternal grandparents’ home, was discovered, apparently without wearing any pants, in bed with a naked older male cousin. Both parties appear to now accept that, by then, the child had been sexually assaulted by that cousin’s older brother, and perhaps that cousin as well. Although there have been subsequent allegations of sexual assault of the child by others, these are not accepted by the father.
Although police and doctors were involved in relation to the younger child at this time, no charges were ever laid. After this event, the child, who was by then toilet trained, began wetting herself. The father would physically check her from time to time by placing his hand on her pants near or over her genitals, to see whether or not she was wet. The mother began to think that this was sexually inappropriate, and that the father himself may have been molesting her. Indeed that is a suspicion which she harbours to this day, although it was not a live issue in the trial.
In November 2012 the mother says that the younger child disclosed to her that one of the father’s associates, a Mr G, was tickling her private parts. A subsequent investigation by the Department of Child Safety did not substantiate that abuse. However the mother was then, and remains, firmly convinced not only that indeed the father’s associate was sexually abusing the child, but that the father knew this and was seeking to protect him, seemingly because the father’s business was, to an extent, financially dependent upon that man. For his part the father denies any belief that Mr G in fact assaulted the child, but does seek an order that he be restrained from permitting the younger child to be in Mr G’s presence.
In 2013 the parties’ relationship further soured. For her part the mother apparently remained of the belief that the father was being unfaithful to her, and would regularly question him about that. For his part the father concedes that he became convinced that the mother was still in a relationship with another man, and resolved to end their relationship. He accepts that at that time he began to increase his drinking even further.
The father says that on an occasion in December 2013, when the mother was challenging him in relation to his alleged unfaithfulness, she said to him “I’m so pissed off I want to kill you.” He says that he recalls holding a knife to his throat in the course of that altercation, saying that he would rather die than have her keep coming to his home. That episode caused him to apply for a protection order in December 2013, restraining the mother from entering the B home, and not further contacting him unless it was in relation to the children. A temporary order was made.
Notwithstanding the altercation and the protection order, and the fact that the parties were living in separate accommodation (and had been for some years by then) the parties’ relationship continued, although the mother says erratically. Moreover, the mother did not observe the restraint in the domestic violence order of not attending the B home, which culminated with a violent episode on 27 January 2014 at that home. At paragraph 76 of the father’s trial affidavit, he recounts that on that date the mother assaulted him at the home, at the conclusion of which she said to him “I could have snapped your neck and castrated you.” She then said that if the father went to the police in relation to the assault “if I get jailed, I will get bigger and stronger in jail and when I get out I will kill your parents and go to [Cairns] and kick your sister in the guts. It’s amazing what a drum of fuel and a lighter can do.” For her part the mother seems to accept that there was a physical altercation, but denies the threats which the father alleges.
Somewhat paradoxically, the next day the father went to the police station to cancel the then temporary protection order, on the basis that he thought it in fact afforded him no protection, but it appears as though the order remained in force. Further, on 3 February 2014, the mother filed an application for a protection order against the father.
Against this background, on 15 February 2014 the mother took the children to a police station alleging disclosures of sexual assault, seemingly by Mr G. In a subsequent police interview no disclosures were made by the children. Nonetheless that mother appears to have remained convinced of the fact of the assault by Mr G, and apparently confronted Mr G in relation to that.
On 27 May 2014, final two year domestic violence orders were made which, amongst other things, restrained the mother from attending the B home, and restricted her communication with the father to matters about the children. However notwithstanding that prohibition, and indeed the fact that the prohibition had been in force under the temporary order for many months, the mother continued to communicate about prohibited matters. In a subsequent police report it is said “[the father] presented hundreds if not over a thousand hand written text messages that he had received from [the mother] since the order was granted.” The mother was subsequently charged with two breaches of the domestic violence orders, to which she ultimately pleaded guilty.
It was not merely the excessive number of the communications, and the fact that they were in breach of the orders, which was troubling to the father, but particularly the content of the messages. A selection of them is set out at paragraph 83 of the father’s trial affidavit. The most troubling are those which, on a simple examination of their content, appear to have been sent by one or more of the children, rather than the mother, although the father thinks that it was in fact the mother that was sending them.
Notwithstanding all of this conflict and the problems between the parties, they continued to spasmodically arrange for the father to spend time with the children, including on occasions with the paternal grandparents. However both children appeared to become increasingly despondent during those occasions, and would either not make eye contact, or not speak, with the father.
The father commenced these proceedings in the Federal Circuit Court on 31 October 2014. He sought interim orders permitting the children to spend day time with him each Saturday. He also sought an order that “the parties will engage a child psychologist for the purpose of family counselling/therapy to specifically assist with strategies to reunify the children and the father and address the psychological problems being displayed by the children.” He did not particularise any final orders. No such interim order was made prior to the matter being transferred to this court on 2 February 2015.
On 12 May 2015 trial directions were made, but it appears as though thereafter no party in fact pressed for the matter to be listed for trial, perhaps because in October of 2015, property proceedings were included in the litigation as well. It might also be because the parties, via their respective solicitors, were seeking to negotiate at least an interim regime for reunification, as by then had been recommended by a Family Report prepared by a psychologist, Mr R. In that regard the parties were able to agree that the father should commence to spend supervised time with the children at the C Contact Centre, under which arrangement the father spent time with the children there on 16 January 2016.
The father says that “the session went well and both I and the children enjoyed our time spent together.” However for her part, the mother says that the visit adversely affected the children, to the point where she obtained a medical certificate which ultimately led to the arrangement for supervised time breaking down. Indeed it appears as though the only occasion that the father has spent time with the children under that arrangement was on 16 January 2016. Since then he has not seen nor communicated with the children at all, unless it be that some of the messages between the parties[1] which purport to be from the children, in fact were so, rather than being sent by the mother.
[1]Exhibit C.

The children

It appears as though both children are progressing satisfactorily at school. However both appear to, in varying degrees, have some emotional difficulties. For instance in the course of his second Family Report interviews on 11 August 2016, the older child would not make eye contact with Mr R, and provided no verbal responses to any questions of him, but rather only nodded or shook his head. The younger child also is said to have been quite reserved, but nonetheless Mr R was able to establish a degree of rapport with her.
Notwithstanding their ages (10 and eight) it appears as though the children do not sleep separately, but both sleep with the mother in her bed. Mr R expressed some criticism of that. For her part the mother says that she has tried to have, but cannot force, the children to sleep in their own rooms. As I shall discuss later, Mr R sees this as a symptom of the mother’s role reversal with the children, whereby she has become the child and they the parent.

THE ISSUES

With the assistance of the parties, at the Trial Management Hearing which I conducted in this matter on 17 May 2016, I identified the following as the issues in the litigation, in the sense that their determination was likely to substantially inform the exercise of my discretion:
1.What is the nature of the children’s relationship with each parent.
2.Would the children benefit from a meaningful relationship with each parent and if so, how might it best be facilitated.
3.What, if any, risk is posed to the children by each of the parents.
4.What effect would spending time with the father have upon the children, and their relationship with him.
5.What effect would spending limited supervised time with the father have upon the children, and their relationship with him.
6.Would the mother facilitate the children having a meaningful relationship with the father.
Once I have discussed the relevant statutory provisions and legal principles, I will address those issues in advance of a general traverse of any residual s 60CC considerations, and then consider the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and s 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

Section 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)      the nature of the cause of action or defence;
(b)      the nature of the subject-matter of the proceedings;
(c)      the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

NATURE OF CHILDREN’S RELATIONSHIP WITH PARENTS

Mr R’s unchallenged evidence in relation to this was that:
The children had an overly emotionally dependent relationship with [the mother]. She reinforced this by relying upon the children emotionally and reversing familiar roles with them. The children had a very limited relationship with [the father] and there was much work to be done by him to re-establish bonding to them.
In his oral evidence, he explained the role reversal by saying that children are incompetent and without resources to deal with life. He emphasised that parents are responsible for raising the children, substantially by providing them with unconditional love. However in some cases the roles are reversed because the parent looks to the children for advice and guidance, or requires them to undertake disproportionately complex household tasks, for instance cooking beyond what would normally be expected. He opined that this was happening in the mother’s case, although he conceded that there may be a practical element of it as well, in that the mother was not coping well with being a sole parent, and found it easier to simply get the children to step up to undertake certain tasks. He also said that his interpretation of the children still sleeping with the mother was that the mother enjoyed it and loved it, and whilst not in the children’s best interests for it to happen, could not bring herself to terminate it. I accept that evidence.
As to his opinion about the father, he said that the father has “a job of work to do” ahead of him. However he said that this was not a case where the children had no extant relationship with the father, such that they needed to be completely reintroduced into each other’s lives, but rather that the attachment between them was substantially impaired and needed to be repaired. I also accept that evidence.

BENEFIT OF MEANINGFUL RELATIONSHIP AND BEST MEANS OF FACILITATION

Mr R’s opinion in relation to this was as follows:
I considered the children would benefit from having a meaningful relationship with each parent. I considered that their relationship with [the father] could be developed by their beginning to spend graduated, increasing amounts of time with him as per his present application.
…
The children’s relationship with [the mother] could be improved by her receiving counselling assistance aimed at assisting her with anxiety, fear and parenting approaches…
I accept that evidence. In his oral evidence he was pressed as to whether or not the children, who have been extensively counselled in recent years, should continue with counselling. He emphatically rejected that. He said, in substance, that the problem in this case was with the parents and not the children. He said that if you could get the parents functioning with each other, they may well be able to clear up the situation themselves, because it all involved matters that needed to be addressed by them, not the children. He said that the children have enough pressure on them already, and it was for the parents to step up and do the hard work.
He was also asked as to the mother’s suggestion that she might be present for some of the first occasions when the father spent time with the children. He said that would not be unreasonable for the first few sessions, as it may provide some comfort to the children, although it was the knowledge that the mother was nearby, rather than being able to see her or speak with her, that was important.
As to the means of reigniting the father’s relationship with the children, he emphasised that the father needs to re-engage quite quickly. He said the father needs to provide consistent and reliable time with the children, and needs to show love, engage verbally, and encourage the children to engage with him. He suggested that initially there should be short, but progressively increasing periods of time, perhaps initially once a week, so as to quickly re-establish the connection.
I accept all of that evidence. It was not challenged.

RISK POSED TO THE CHILDREN BY PARENTS

As the trial progressed, this was not a substantial issue, although plainly the mother does maintain some concerns about the risks which the father and those associated with him may pose to the children. However on whatever iteration of the orders which she seeks that one considers, she did not suggest that the father posed a risk of harm to the children, such that he ought be precluded from spending unsupervised time with them. Her concerns were more with having the children able to cope with spending time with the father.
Against that background it is useful to consider Mr R’s unchallenged evidence, which was:
I consider that [the children] were at risk of emotional harm due to their parents’ impasse and ongoing dispute. I consider that children were at low risk of direct harm from [the father]. I consider that the children were a moderate risk of emotional harm as a result of their ongoing relationship with [the mother]. This was a result of her continuing and likely increasing emotional dependence on them and her increasing role reversal with them.
I accept that evidence. However the father does not seek that the children live with him, and hence Mr R’s concerns in relation to the mother largely fall by the way.

EFFECT ON CHILDREN OF SPENDING TIME WITH FATHER

Mr R’s unchallenged evidence was:
The children could express some initial difficulties associated with spending time with [the father]. These include reluctance, behavioural issues and possible somatic issues (tummy aches, wetting). These issues need to be managed carefully but not highlighted or reinforced. It would be up to [the father] to exercise his parental skills to re-establish bonds with the children and enhance their positive experiences of spending time with him. He would need to spend exclusive time with them, encouraging them to engage with him, and developing and maintaining a positive and loving interest in them.
I consider that it would be in these children’s long term best interests to be able to spend ongoing time with [the father].
Again I accept that unchallenged evidence.

EFFECT OF ONLY LIMITED SUPERVISED TIME WITH FATHER

Again this issue largely fell by the wayside, in consequence of the mother conceding that the father’s time with the children did not, in the long term, need supervision. It was only initial periods of supervision that were pressed by the mother. As to his opinion of that, Mr R said:
Spending initial limited supervised time with [the father] would allow the children time and space to adjust to spending more time with him. I considered it likely given present circumstances that these children could express reluctance to spend time with him and there could be some observed effect on their mood/behaviour afterwards, but with time regularity and positive experiences I anticipated that these responses would subside and the children would be able to develop a loving and meaningful relationship with [the father].
I accept that evidence, which again was unchallenged.

WOULD MOTHER FACILITATE RELATIONSHIP WITH FATHER

Throughout the trial before me, the mother presented as consistently anxious about risks which the father, in her mind, was said to pose to the children. Amongst her concerns are that:
·The father himself may have sexually abused the younger child;
·The father believes that Mr G has sexually abused the younger child, but has not acted appropriately in response to that;
·The father remains drinking excessively;
·The father associates with people under the influence of drugs;
·The father’s own brother, as a child, is said to have sexually interfered with some young boys, in consequence of which he should not be permitted to spend time with the children.
Mr R’s opinion, which again was unchallenged and which I accept, was as follows:
I considered that, at present [the mother] would experience difficulty in facilitating the children having a meaningful relationship given her mistrust and fear of him, as well as her emotional dependency on the children. I considered that it was possible [the mother] could improve in her facilitating the relationship with appropriate professional assistance, guidance and support.
As to the latter, in his oral evidence Mr R said that it would be helpful for the mother (and indeed the father) to have professional guidance about how they might best respond to the children’s reactions to again spending time with the father. In the mother’s case, he suggested that her support could come from a psychologist or social worker, who may be able to equip her with better adult coping strategies, and help her to become a more effective parent. Specifically he thought that that professional may be able to teach the mother how to manage the children if they do not appear to be coping, at least initially, with spending time with the father. It was this which informed his view that ideally that counselling would be conducted prior to the father commencing to spend time with the children, so as to maximise the prospects of that time proceeding uneventfully.
He was asked as to the prospect of the mother not engaging in that counselling, which he said would thereby make the reunification “sabotaged.” He said that that was contrary to what has been told by the mother, and emphasised that if the parties do indeed want reunification to happen, they must make it occur, as court orders alone will not achieve it.
Interestingly, this was touched upon in the cross-examination of Mr R by the mother herself. In the course of that evidence, he identified that the children feel a loyalty to the mother and worry in relation to her response to situations, and particularly her becoming upset if they spend time with the father. However he said that the load that the children are carrying is in fact the mother’s load, and they do not need it. He said they needed to simply be children.
Again I accept all of this evidence.

SECTION 60CC FACTORS

It will be appreciated that in discussing the issues, I have already addressed both primary considerations, and a number of the additional considerations. Nonetheless I make the following further observations.
The children have not expressed strong views in relation to spending time with the father. Nonetheless I accept that they are likely to approach spending time with the father again with some trepidation, because they understand that it is likely to trigger anxiety or other adverse responses in the mother. In this respect however, their wishes must be understood in the light of the fact that the mother has become emotionally dependent upon them, and the children would, to a degree, be aware of that.
It appears as though during the course of the relationship the father did not adequately engage in all areas of the children’s lives. He accepts that, at least to a substantial degree.
The father is presently in arrears of child support to the extent of about $6,000.00. However he has made direct contribution to costs of the children; for instance he has paid one half of their school fees. Moreover, it is not the case that the father has not paid child support at all, but rather, for reasons which are not clear on the evidence, that substantial arrears have accrued. It may have something to do with him running his own business, and lodging annual tax returns, rather than there being the capacity for the Child Support Agency to garnishee wages.
Both children are of aboriginal descent by virtue of the mother’s ancestry. However it is not suggested that the father does not support that cultural background, and in any event, the children will be substantially living with the mother under either party’s proposal, and she will no doubt be able to afford them the benefits of that culture by virtue of that.
There has been considerable family violence within this family, and family violence orders have applied. Further, the mother has been convicted, on a plea of guilty, of two breaches of those orders.
In this context, the mother’s conviction of the manslaughter of her first partner probably excites greater attention than it deserves. It is not said that she is an habitually violent person, although I accept that she was violent towards the father during the course of the relationship. Rather I accept that, under the right circumstances, the mother can be violent in the context of interpersonal relationships. However I do not accept that she is generally of a violent disposition.
On a like note, I do not accept that the father is habitually violent, but that rather again, like the mother, he can, particularly in the context of interpersonal relationships, express anger which on occasions boils over into physical violence. However to his credit, he recognises that he has behaved poorly in the past, and is determined to remedy his ways. He was able to give specific instances of how he would modify his behaviour in similar situations in the future, for example by disengaging from stressful situations and coming back to speak them through when his anger had cooled.
Plainly it would be preferable to make an order which would be least likely to lead to further litigation.

PARENTAL RESPONSIBILITY

The father and Independent Children's Lawyer seek orders for equal shared parental responsibility. The mother seeks orders that she have sole parental responsibility, at least for the foreseeable future.
The first point which the Independent Children's Lawyer emphasised, is that the substantial body of text messages which were exhibit C in the trial before me, and which ran to many pages, albeit that they only span about a six month period, demonstrate that the parties can have a civil conversation by that means. However for her part, the mother in cross-examination said that she did not feel that text messages were an appropriate or adequate way of discussing matters in relation to the children, which she thought would be better undertaken face to face, because one can then gauge body language as well. She said that the father frequently does not respond to messages which she sends, however I do not accept that evidence, as it is quite contrary to exhibit C. True it is that the father does not respond to each and every of the mother’s text messages, many of which are not appropriate or child focussed, but when the need does arise, he does indeed respond appropriately.

Further, the mother was somewhat concerned that the current domestic violence order, which prevents her from communicating with the father other than in relation to children’s matters, somehow or other impedes their capacity to properly communicate. I do not accept that. What that order is intended to do is to ensure firstly, that the mother does not attend the father’s home, and secondly, that she only communicates in relation to matters which are a genuine basis for the parties interacting, namely the children.
In her oral evidence, the mother indicated that she wanted to “be friends” with the father again. Moreover, during her cross-examination of the father, she appeared to, at least to my mind, still have some fond thoughts of him, which causes me to have some concerns that perhaps she has not wholly disengaged emotionally from him. In that respect she has not re-partnered, and professes a strong desire for the father to play an active and substantial role in the children’s lives.
Somewhat to his credit, the father concedes that his treatment of the children, and particularly the older child, during the course of the relationship, and the parties’ exposure of both children to family violence, was completely inappropriate. The father says, however, that he now recognises that he was a poor parent then, and wishes to make amends. In part that is what motivates him to keep the mother away from his home. He recognises the prospect that he could be in a situation which may prompt him to act inappropriately again, and wishes to preclude that as even a possibility.
Mr R was cross-examined by the mother as to whether or not he believed that the father had genuinely made a commitment to change his ways. In saying that he accepted that father’s assertions to that effect, he said that people, in his experience, can gain wisdom from the mistakes that they have made, and pointed particularly to the fact that the father’s orders that he seeks in any event are very modest, in that he only wants an opportunity for an input into the children’s lives, and does not seek to have them, for instance, change residence to live with him.
The father was also cross-examined by the mother about his asserted changes. My assessment of him was that indeed he is contrite for his poor behaviour during the course of the relationship, and accepts that it is vital for these children to have a relationship with him which is not marked by violence or excessive discipline, but which is characterised by love and nurture.
Further I assess that the father does have a genuine interest in his children’s welfare, and can bring to the negotiation table valuable life experiences and insights. I am satisfied that he values education, and is interested in seeing his children as best educated as they can be in the circumstances.
On the other hand, there is some legitimate criticism of the mother’s decision making in relation to the children to date. The younger child has been to a large number of counsellors, and although to a lesser degree, so has the older child. Indeed the excessive number of counsellors was relied upon expressly by the Independent Children's Lawyer as demonstrating the likely benefits of the father being involved in joint decision making in relation to the children. I accept that argument, as it appears to be valid.
Plainly the presumption under s 65DAC does not apply here, as there are reasonable grounds to believe that there has been family violence, indeed perpetrated by both parties.
The question then becomes whether, notwithstanding the presumption not applying, the best interests of the children lie in there being an order for equal shared parental responsibility.
The following points are in favour of the grant of equal shared parental responsibility to both parents, or contrary to the mother’s proposal:
·The parties have a sufficient capacity to communicate to discharge their obligations under s 65DAC;
·The father has a genuine desire to be meaningfully involved in his children’s lives;
·The father has valuable insights and life experiences which would assist in decision making in relation to the children;
·The mother, time and time again during her evidence, professed a desire for the father to be fully involved in the children’s lives;
·The mother has made some decisions in relation to the children which are not beyond criticism, particularly in relation to the large number of counsellors which the younger child has attended.
On the other hand the following points tell in favour of grant of sole parental responsibility to the mother, or at least against equal shared parental responsibility:
·The father has little present knowledge of the children; for instance he believed them to have been christened into the Catholic faith, which appears not to be correct;
·There is the prospect that the parties will not be able to reach agreement in relation to substantial issues, which may lead to further litigation;
·If my suspicion that the mother has not emotionally disengaged from the father is correct, it may lead to a recurrence of the excessive messaging which she undertook after separation, and to a degree has continued to undertake.
Weighing those matters in the balance, I am well satisfied that it is in the children’s best interests for there to be an order for equal shared parental responsibility, and will make it.

WITH WHOM SHOULD CHILDREN LIVE

By virtue of the order which I propose to make for equal shared parental responsibility, I am obliged to consider making orders for equal time, or if not persuaded to make such orders, substantial and significant time.
The first point to note is that the father does not seek orders for either equal time, or a regime which would comprise substantial and significant time. That itself would tell strongly against such an order being in the children’s best interests, because the parent who may benefit from it does not want it.
In any event an order for equal time, or indeed substantial and significant time, would not be in these children’s best interests. I say that because:
·They have for all of their lives primarily lived with the mother;
·They presently apprehend the father in an adverse light, and have responded adversely the prospect and reality of spending time with him in the past;
·There is every reason to think that changing their living arrangements in a substantial way now, would adversely emotionally impact upon them.
I am therefore persuaded that an order for equal time would not be in the children’s best interests, and likewise, an order for substantial and significant time would not be in their best interests either. There will be an order that the children live with the mother.

TIME AND COMMUNICATION WITH FATHER

I have already remarked upon the narrow compass of the dispute between the parties in this respect. Both agree that ultimately the father should spend unsupervised time with the children from Friday night until school on Monday morning. There is a slight dispute between the parties, in that the mother wants the father’s Friday night time to commence from some time after school, because that is the only afternoon when she is able to pick the children up from school, and it causes her and the children some excitement. However that narrow dispute is the only long-term difference between them.
I am indeed satisfied that such an arrangement would be in the children’s best interests and will so order. I will discuss the mother’s proposal that the time be deferred until later on Friday evening in due course.
Accepting that the end goal is agreed, the question then becomes how that goal should be progressed towards. Logically the first question is whether the father should commence to immediately spend time with the children, or whether that should be deferred pending the parties commencing some counselling. There are really only two arguments against such a course. The first is that the mother may not undertake such counselling in any event, or seek to use it as a further excuse as to why the father’s time with the children should not commence. The second is that it will commensurately defer the time when the father commences to again spend time with the children.
As to the first, whilst one may have some scepticism about the mother’s determination to in fact see the father re-installed as a significant part of the children’s lives, upon balance I accept that she does see benefits in it, although her anxiety constantly sees her concerned about the children’s safety, which has the effect of introducing a degree of ambivalence into her thinking.
As to the second, I am not satisfied that a short period of further absence from the children’s lives will substantially impact upon the prospect of reunification. Given that that period of time will be invested in both parents equipping themselves with strategies to facilitate a successful outcome of that reunification, it seems to me that it is time well spent.
I am therefore satisfied that there should be a slight deferral of the commencement of the father spending time with the children, and that during that time both parties should be required to engage with Centacare.
As to that, I was told without objection that the mother has already engaged with the agency, and it is therefore to be hoped that there will be little delay in her being able to commence counselling. Although initially I suggested to the parties a period of four weeks delay, upon balance it seems to me that a period of six weeks is more appropriate, firstly, to cover the eventuality that the mother cannot quickly commence counselling, and secondly, even if she can commence quickly, to maximise the prospects of her obtaining real benefit from that counselling prior to the children commencing to spend time with the father again.
I will therefore defer the commencement of the father’s time with the children for a period of six weeks from the date of my orders. During that time both parties will be required to immediately engage with Centacare, and to comply with all of its reasonable directions from time to time.
The next matter then is whether the father’s initial time with the children should be supervised, and if so, by whom. Both the father and Independent Children's Lawyer accept that the paternal grandparents should be present for the first four Saturday visits of two hours. The mother seeks that the time be supervised by someone of her nomination, and that she also be present for the first visit.
I am quite satisfied that it would be positively counterproductive for the mother to be immediately physically present during the children’s first encounter with the father. They are likely to be highly anxious as to her response, and vigilant to be monitoring it from time to time. True it is that she may well be able to settle them, but Mr R was of the view that that could best be achieved by them being aware that she was not far away, but not within sight.
There will be no order requiring the father’s time with the children, whether initially or at all, to be supervised by the mother. However I will not preclude her from being in the vicinity of those first visits.
Next as to the mother’s suggestion that someone of her nomination should be a supervisor, I am not persuaded that such an order is appropriate. Firstly, I have no idea who the person may be, and whether or not there may be some antipathy between that person and the father. That would be most unfortunate. In any event, I am not satisfied that there is any need for vigilant supervision of the father’s time with the children, particularly if his own parents are present as he proposes. The purpose of the mother’s supervision really seems to be to have some independent monitoring by someone more on her side than the father’s. That is unlikely to be helpful or productive.
On the other hand I am satisfied that it will be of assistance for the father to have both of his parents present during the initial two hour visits. It will give the children a point of reference other than the father, and will potentially allay any negativity which they associate with spending time with the father solely. In a sense the grandparents will dilute any anxiety which the children may have in relation to the father.
The next issue in dispute is whether the father’s time should progress on four consecutive, or alternate, Saturdays. The effect of the latter proposal would be, of course, to delay by a month the attainment of the ultimate goal, namely of the father spending unsupervised time with the children overnight. Whilst I accept that delay may assist the mother in her own coping journey, there is the unchallenged evidence of Mr R that it will be best to have short, but very regular, contact between the father and the children at the outset, which can then be put back to alternate weekends once that initial re-invigoration has occurred. I accept that evidence, and there will therefore be orders that the first four occasions be on consecutive Saturdays as proposed by the Independent Children's Lawyer and the father.
I did not understand there to be any dispute in relation to the next three successive increments of the increase in the father’s time with the children, being a progress of, firstly, an increase in time from two to four hours, and secondly, the absence of any mandatory presence of the grandparents. If I am mistaken and there was some opposition to this by the mother, then I am nonetheless satisfied that such a progression is in the children’s best interests, as it stands to cement their relationship with their father, both from a length of time perspective, and from the absence of any other adults in that time frame.
Likewise I am satisfied that time should initially be in the Town A region, but once expanded from 9:00 am to 5:00 pm on a Saturday, that the father should be at liberty to reintroduce the children to areas outside of Town A, most likely, of course, at the B home.
I am satisfied that after that initial ten week period during which, in accordance with Mr R’s prescription, there will have been a considerable amount of time that the children have spent on a regular basis with the father, it should then drop back to alternate weekends, but then also simultaneously progress to one overnight. I am satisfied that four occasions of one overnight time should be sufficient to lay a foundation for a progression to two overnights. However this then raises the mother’s concern in relation to her “special time” with the children after school on Friday.
Whilst I accept that the mother may obtain some special pleasure out of being able to, on one afternoon a week, get off work early and pick up the children from school, rather than them going into after school care, the difficulty is that she would propose to then have the children transferred directly from her care into the father’s. There is a practical difficulty with that as I understand it, in the terms of the father’s domestic violence order, but even if that is not so, then it would require the parties to come into contact with each other on a permanent and ongoing basis. I am far from satisfied that that is in the children’s best interests. Ultimately it will be in their best interests if the transfer between the parents’ care is one which does not see the parties come into each other’s presence, and to that extent, to progress to an ultimate regime which sees school as the changeover venue is very attractive.
Moreover, although the mother regards the Friday afternoon school pickups as a highlight of her and the children’s lives, that may also prove to be an excitement for the children in relation to the father, and may assist in re-establishing the bond between them. Whether the mother can see the benefit of that, where it conflicts with her own emotional needs, may be doubtful, but from an objective perspective, it would be of great assistance to the children if she could do so.
I will therefore direct that the father’s alternate weekend time commence from after school on Friday.
As to when the father should commence to spend three nights with the children, it is proposed that start from the commencement of the 2017 school year. On my calculations, overnight time would only have just commenced. In my view, that build up from one overnight to three overnights is at a too quick a progression; rather there should be a staggered increase of overnights over a longer period. I will therefore order that the alternate weekend time from Friday after school until the commencement of school, should only begin from the first weekend in June that the children are due to go into the father’s care. That will also enable them to have a sufficient increase in time to support the one half school holidays which both parties accept should be the ultimate regime. I am satisfied that it is appropriate for that regime to commence at the mid-year school holidays of 2017.
As to holidays, I am satisfied that the proposed regime for school holidays is appropriate, particularly insofar as those holidays include Christmas and Easter. I am further satisfied that the proposed orders in relation to special days are appropriate and will make them.
As to communication, this was not the subject of any debate before me, but I am satisfied that the communication regime proposed by the father and the Independent Children's Lawyer is appropriate, and will order it.

OTHER ORDERS

I am satisfied that the other orders proposed by the father and Independent Children's Lawyer are in the children’s best interests and will make them. Particularly I am satisfied that the father should have access to the children’s medical information, given the order for equal shared parental responsibility, and likewise in relation to their educational information. The usual non-denigration orders, and the prohibition on excessive alcohol or exposure to illicit drugs are unexceptional, and I will make them.
Both the father and mother should be restrained from letting Mr G near the children, and the mother should be restrained from taking the children to further counsellors without the written consent of the father. That is inevitably the consequence of the order for equal shared parental responsibility in any event.
The further order in relation to the mother not attending the home of the father without his written consent is appropriate. The reasons which the father gives for not wanting the mother at the home are perfectly understandable and sensible.
The mother sought some additional orders. The first was that she wanted the grandparents to be required to be present in the father’s house for the first few overnight visits. I am not satisfied that would be in their best interests. Firstly I have no idea whether or not there are suitable arrangements for the grandparents’ accommodation in the home, but more importantly, the unchallenged evidence of Mr R was that what the children will benefit from is the exclusive attention of the father being given to them, particularly during the initial reinvigoration stage of the relationship. I accept that evidence. I decline to make an order requiring the grandparents to be present for the first overnight at the B home.
The next order which the mother sought was a prohibition from the children going to visit their grandparents at Town D, because of her concerns in relation to a brother of the father who lives there. I have already addressed the nature of the mother’s concerns, and am not satisfied that the brother poses such a threat to the children that they must be prohibited from going to their grandparents’ home, merely because the brother lives in an adjacent dwelling. I decline to make such an order.
The further order that the mother sought was that the father have a home phone connected to enable the children to telephone her at her home. I am not satisfied that such an order is in the children’s best interests, as to my mind it speaks more of the mother’s needs than the children’s. It is likely to create more problems than it solves.

PROPERTY

Overview

As I have previously noted, the father contends that the just and equitable outcome of the division of the parties’ property should be to let matters lie where they already have fallen. However the basis of that contention is a pool of $100,000.00, and a 80 per cent division of the assets in the mother’s favour. For her part, the mother contends for a pool of approximately $250,000.00, and suggests that should be divided 65 per cent in her favour. That involves a payment to her by the father of $125,000.00.
The property proceedings did not occupy any substantial part of the trial before me, and particularly, neither party was cross-examined about any property matters. That, of course, makes the resolution of the dispute between the parties more difficult. However before determining their dispute, there are two aspects which I need to address initially. The first is that at the commencement of the trial, I refused the mother’s application to dispense with compliance with r 15.76 of the Family Law Rules, insofar as she sought, by notice served upon the father approximately seven days prior to trial, to have him produce certain documents. The second is that during the course of the mother’s submissions, she sought to tender into evidence two valuations of relevant properties, which were objected to by the father. I admitted them de bene esse and indicated to the parties that I would rule upon their admission in the course of my reasons. I will therefore deal with those two preliminary matters first, before resolving the property proceedings.

The ruling

The mother has long contended that the father has not made proper disclosure of his assets in these proceedings. Indeed during the course of the re-listing of the Trial Management Hearing on 11 August 2016, based upon the mother’s concerns, I gave her leave to issue a subpoena to produce documents from a named person at a bank, which she contended would demonstrate the deficiency of discovery by the father, and particularly support her case that there are assets which have not been disclosed. However notwithstanding that leave, no such subpoena was issued. Rather the mother served upon the father a Notice to Produce Documents that fell within the likely classes of documents that the proposed subpoena could have produced. It is not in contention that the father has not answered that Notice to Produce.
Rule 15.76(1) provides:
A party may, no later than 7 days before a hearing or 28 days before a trial, by written notice, require another party to produce, at the hearing or trial, specified document that is in the possession or control of the other party.
The father objected to complying with the Notice to Produce on the basis that it was served within the 28 day mandatory notice period, and approximately a week prior to trial. In consequence of that I indicated to the mother that she would need to seek dispensation of the application of the rule. She did so orally. In substance, she contended that she had not issued the subpoena because she did not understand the processes, being self-represented, and that the production of the documents was necessary in the interests of justice.
For his part, the father opposed the application on the basis that the mother, by my order of 11 August 2016, had been given the opportunity to have such documents produced by independent sources, but had for whatever reason elected not to do so, and that the application for dispensation was made on the last day of trial, and that the father was not in a position to comply with the notice, which would necessarily lead to the adjournment of the trial, and that in any event there was no basis to think that the documents, if produced, would necessarily be relevant to the disposition of the property proceedings.
I accept the father’s submissions in this instance. There is no adequate explanation for why, having sought and obtained on 11 August 2016 an order which permitted her to issue subpoena directed towards the named persons, that the mother then proceeded to do nothing to exercise the right which she had obtained. Whilst I accept that it is a difficult task for self-represented litigants in this court, plainly enough she understood that the recipient of a subpoena would be obliged to produce the specified documents, and yet she did nothing in furtherance of achieving that outcome. Secondly, to accede to the mother’s application now would invariably dislocate the trial, for a period of time that is unable to be presently determined. The trial has been set down since 17 May 2016, and if vacated, would not be able to be reached again for at least a further six months or thereabouts.
Finally there is no inference that I can draw from the nature of the documents that are sought from the father, that they would necessarily, or even more likely than not, have an impact upon the outcome of the property proceedings, either by proving that the father has greater assets than he has disclosed, or that the division should of such assets as have been disclosed should be materially affected.
For those reasons on 13 September 2016 I rejected the mother’s application for leave to dispense with the requirements of r 15.76.

The de bene esse evidence

Whilst both parties’ trial affidavits dealt with property matters, neither party was cross-examined by reference to them. However during the course of her final submissions, the mother sought to tender into evidence two documents, the first of which was a valuation conducted by A Valuations in relation to the B home as at 6 December 2015, and the second was a property profile report for the B home prepared by X Valuations. I should indicate that although the mother purported to tender it on the basis that it was a valuation of the A home, plainly it is not.
The father objected to the tender of both documents on the basis that, by consent on 20 January 2016, the parties had agreed a process whereby a single expert valuer would be appointed to value the assets and financial resources of the parties, and whilst steps were taken to appoint such a valuer, in fact it never occurred because, presumably, of cost considerations.
A number of technical difficulties attend that submission. The first is that whilst the father appended to his affidavit a Draft Minute of Consent, which did indeed provide for a mechanism of appointment of a valuer, the order does not in fact appear on the court file, for whatever reason. Nonetheless I accept that it is likely that an order was indeed made by a Registrar on 20 January 2016 to that effect. The second is that the precise reasons for the failure of a joint expert to be appointed are not in the evidence, however plainly in fact no such joint expert was appointed.
However there are other considerations associated with the admission of the evidence as well, which point in several directions. The first is that paragraph 267 of the mother’s trial affidavit deposes to there being a registered valuation of the B home dated 6 December 2015, valuing the property at $250,000.00. That paragraph of the mother’s affidavit was not objected to. Therefore, subject to weight, there is secondary evidence before me of the valuation which the mother now seeks to put into evidence. A court should always prefer the primary document, rather than a secondary source, however no objection was made to the mother’s affidavit by the father on that basis.
The second is that the valuation is not appended to an affidavit, and hence there is no opportunity for the father to seek to challenge that opinion. The third difficulty, which was not adverted to by either the solicitor for the father or the mother, is that in fact the valuation was prepared on the instructions of the father, not the mother. This is consistent with the letter which is annexure 7 to the father’s trial affidavit, from the mother’s then solicitors to the father’s solicitors, which says at the outset “Our client does not accept your client’s value of the [B] property at $250,000.00…”
The final matter is that whilst the mother did not comply with r 15.52, and seek permission to adduce evidence from an expert witness by Application in a Case, r 15.55 obliged the father to disclose the report of A Valuations to the mother, and by sub-rule (3), gave the mother a right to tender the report as evidence at the trial. Therefore the mother may tender it as of right, and I am not persuaded that whether or not the disclosure to the mother was made with advertence to r 15.55, there is any basis for the father to object to it.
I am therefore satisfied that the A Valuation of 6 December 2015 is admissible and will form part of the evidence before me in the property proceedings. I am particularly influenced in that, not only by the direct terms of r 15.55(3), but also that it was a valuation prepared at the father’s instance, and hence any cross-examination of the relevant expert, had he been called by the father, would have been restricted.
The second document is the property profile report of X Valuations. The mother contended that it was in fact a valuation of the A home, in support of her contention that it was only worth $180,000.00 (the father contended it is worth $200,000.00). However it appears the mother was mistaken in the selection of the document she tendered, and it is not indeed referrable to the A home but the B home. Moreover, it is not in the nature of a valuation, but rather an appraisal, giving an estimated price range of between $200,000.00 and $275,000.00. Such an expression of range is of little assistance to the court in determining the value of the B home, particularly given the valuation of A Valuations.
Whilst it is unfortunate that it appears as though the mother may have sought to put before me the wrong document, that mistake cannot otherwise make the document admissible.
I decline to admit into evidence exhibit MFI 2.

Relevant statutory provisions and legal principles

Section 90SM of the Family Law Act deals with the division of property of parties to a de facto relationship which has broken down. It has long been established that the preferred approach to be adopted to determining property disputes under the identical provisions which apply to married parties (s 79) is a four step one which involves:
·The identification of the property of the parties including their assets, financial resources and liabilities;
·The evaluation of the “contributions” or s 79(4)(a), (b) and (c) issues;
·The evaluation of the matters referred to in s 79(4)(d), (e), (f) and (g) including, by reference to s 79(4)(e) the matters set out in s 75(2); and
·A determination as to whether the result is just and equitable by reference to s 79(2) of the Act.
After the High Court’s decision in Stanford v Stanford[2] it may be taken as commonly accepted that the first step requires the identification of the parties’ existing legal and equitable interests in property, and thereafter, it is incumbent upon the court at the outset to determine whether or not it is just and equitable to make an order altering the interests of the parties in that property. However as the High Court itself indicated in Stanford, in many cases that step will be uncontroversial: for instance, if there is jointly owned property which is impracticable for the parties to jointly enjoy consequent upon separation, such as the former matrimonial home.
[2](2012) 247 CLR 108.

The pool

The items of the parties’ property are not in dispute, only their valuations. Those which were in contest are the value of the B home, the A home, the father’s business, the mother’s Mazda car, and the mother’s furniture. Further the mother contends that there is a ride on lawnmower in the father’s possession worth $2000.00. Although she also contends that there is a Holden Kingswood sedan, she asserts no value in relation to it. I will not consider that chattel further.
I will deal with the disputed items in that order.

The B home

The father contends that the B home is worth $200,000.00, the mother contends it is worth $250,000.00. The basis of the asserted value is nowhere set out in the father’s material, but rather there is a complaint about the absence of the appointment of a single expert to value the properties.
On the other hand the mother has, as has been seen, been successful in tendering into evidence the father’s valuation obtained in December 2015 for that property in the sum of $250,000.00. I am satisfied that indeed the B home has that value, and will attribute it to it in the course of these proceedings.

The A home

The father contends that the A home is worth $200,000.00; the mother contends it is worth $180,000.00. Again there is nowhere in the father’s material the basis for his attribution of that value to the A home, but rather it is said to be his best estimate. Although not particularly better, in the mother’s affidavit at paragraph 268 she gives secondary evidence of an appraisal of the A property at $180,000.00, that appraisal being dated 2 May 2016 and prepared by a real estate agent. As I have indicated, not only was this paragraph in her affidavit not objected to, but she was not cross-examined by reference to it. I am therefore left with a choice between the father’s unexplained estimate, and secondary evidence of an appraisal that was not otherwise in evidence before me. Whilst it is an unattractive choice to make between the two, nonetheless I choose to accept the secondary evidence at paragraph 268 of the mother’s affidavit, and will attach a value to the A home of $180,000.00.

Father’s business

The mother contends the father’s business has a value of $130,000.00; the father contends it has a value of $10,000.00. Neither party has in fact had it valued. Moreover, neither party really explains the basis for their estimate, save that the father says that it is a personal exertion business and hence should only have the value of the underlying assets, although there is no valuation of them either. For her part, the mother says there are additional materials owned by the business beyond those disclosed by the father, but again asserts no basis for the valuation of them, save that she says that those additional materials alone would be worth $30,000.00.
Neither party is qualified to give expert evidence as to the value of their assets, but that said, the father is the proprietor of the business, and has purchased the assets which it owns, and hence as between him and the mother, is the better positioned to give a non-expert estimate as to value. Further, it is at least arguable that a personal exertion business such as that conducted by the father, would be unlikely to have much, if any, goodwill attributed to it, notwithstanding such income flows as are associated with it.
Whilst I am quite suspicious that indeed the father may have underestimated the value of the underlying assets of the business, there is no basis upon which I could attribute a value to them other than his concession that they are worth approximately $10,000.00. I will use that figure in the division of the parties’ property.

Mother’s car

The father asserts the mother’s car is worth $3,500.00; the mother says it is worth $2,500.00. There is no valuation. On the same – albeit admittedly quite unsatisfactory – basis that I accepted the father’s valuation of his business, I accept the mother’s valuation of her car.

Ride on lawnmower

The mother contends that the father has a ride on lawnmower in his possession which is worth $2,000.00. In paragraphs 265 and 271 of her affidavit, which contain tables of assets and her suggested split of them, there is no mention of the existence of the ride on lawnmower or its value. The father’s material is silent as to it, and he was not cross-examined by reference to it. The material does not persuade me that the father presently has in his possession a ride on lawnmower, and even if he did, would not enable me to attach any value to it other than a nominal value. I therefore will not include the ride on lawnmower in the pool of assets.

Conclusion

By reference to the above finding, together with the agreed values, the property pool for division is as follows:

Description Value Liability Possession

B home $250,000.00 $177,000.00 Father

A home $180,000.00 $171,000.00 Mother

Father’s business $10,000.00 Father

Mother’s car $2,500.00 Mother

Mitsubishi $5,000.00 Father

Sun Super $6,200.00 Father

Australia Safe Super $41,000.00 Mother

Household furniture $5,000.00 Father

Household furniture $2,500.00 Mother

Overdraft $30,000.00 Father

Treating superannuation as a vested asset, then the total gross property pool is $502,200.00, albeit that there are liabilities of $378,000.00. It therefore follows that the net pool of property available for division between the parties is $124,200.00.

Just and equitable to divide?

The parties have ceased their de facto relationship. The A home is in joint names. Both parties are liable for the mortgage in relation to it. Neither party contended that it was not just and equitable that there should be a division of their property, and I am satisfied that it is.

Contributions

At the commencement of the relationship the father owned a residential property which was subsequently sold, with net proceeds available of $100,000.00. He also owned a motor vehicle, but by the same token had a $45,000.00 personal loan debt. The mother only owned a Mazda motor vehicle.
During the course of the relationship the parties initially purchased the B home in 2006, with the father seemingly providing a second mortgage over the residential property which he brought into the relationship to fund part of the deposit. Later that year that property was sold and the father contributed the net proceeds of sale of $100,000.00 to the relationship.
In 2009 the parties purchased the A home and contributed equally to the deposit.
Next, in 2007 the mother received a $70,000.00 insurance payout by way of compensation for a motor vehicle accident, which she contributed to the parties’ household.
Throughout the relationship the father has been far and away the greatest income earner, with average pre-tax earnings of about $120,000.00. He has utilised that to make the full payment of the mortgages and insurance costs of both homes from time to time, although the mother has paid the rates on the A home.
On the other hand the mother has earned approximately $45,000.00 per annum, and notwithstanding the father’s protestations that he contributed equally to the parenting of the children, I am satisfied that the mother did indeed make greater contributions as a homemaker/parent.
Post-separation the father has continued to maintain the mortgages on both the B and A homes, together with the cost of their insurance. That said, he has had sole occupation of the B home.
Neither party assisted me by an explanation as to where they saw their respective contribution based entitlements as lying. Rather each concentrated upon the outcome.
Doing the best I can, even though the father did contribute greater amounts at the commencement of the relationship, which did enable the B property to be purchased, nonetheless the mother subsequently made a substantial contribution by way of her insurance payout, and notwithstanding the fact that the father has consistently earned more money than the mother during the relationship, I am satisfied that she been a greater contributor by way of homemaker parent.
I would assess their contributions as equal.

Section 90SF factors

I have considered all of the s 90SF factors, and propose to only comment in relation to those I consider significant on the facts of this case.
On any view the mother will have the primary care of both of the children. Likewise it is not in dispute that the father continues to earn a pre-tax income of about $120,000.00 or $130,000.00 from his business, and that the mother earns dramatically less than that, about $45,000.00 per annum, from working as a farm labourer.

The pool in question is relative modest, about $125,000.00. Indeed it is pertinent to note that the father’s income per annum (admittedly pre-tax) is about the same size as, or a little larger than, the net pool. Even accepting that he is assessed for child support and does pay it (noting he has arrears) the fact that the mother earns much less, but has the primary care of the children, must loom large.
The father asserts an 80/20 split in favour of the mother on a pool of $100,000.00; the mother asserts a 65/35 split on a much larger pool. The value of the pool that I have assessed is much closer to that contended for by the father.
Ultimately I accept, although the percentage is large, that a 20 per cent adjustment in the mother’s favour based on s 90SF factors is appropriate, accepting that in fact, 20 per cent of the net pool of $124,200.00 is only $24,840.00. Given the marked disparity in earning capacities between the parties, and the fact the mother has the care of the children, I am satisfied that such a large percentage, as reflected in the modest asset pool, is appropriate.

Just and equitable

I therefore assess that the net asset pool should be split so that the father receives 30 per cent, and the mother receives 70 per cent. Standing back I am satisfied that such an outcome is just and equitable, because of the parties’ marked disparity in earning capacity, and the fact that the mother will on any view have the primary care of the parties’ two children.
On that basis the father should receive the following properties:
Description  Value
B home  $250,000.00
His business  $10,000.00
Mitsubishi vehicle  $5,000.00
Sun Super  $6,200.00
Household furniture  $5,000.00
Less mortgage  $177,000.00
Less overdraft  $30,000.00
Less cash payment to mother   $31,940.00
Total  $37,260.00 (=30%)
On the other hand the mother should receive the following properties:
Description   Value
A home  $180,000.00
Mazda vehicle  $2,500.00
Super  $41,000.00
Household furniture  $2,500.00
Cash payment from father  $31,940.00
Less mortgage  $171,000.00
Total  $86,940.00 (=70%)
The mother contended that there should be a super split to the father in her affidavit but did not advance it in argument before me. I am not satisfied that, in effect, the father should be required to trade cash for a future entitlement to the mother’s superannuation.
Therefore there will be orders effecting a division of the parties’ property, such that, the mother retains the A home, and that in any event the father should pay her the sum of $31,940.00 within 30 days, but that otherwise the parties’ assets should vest in them according to their current possession.

CONCLUSION

For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding one hundred & eighty six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 October 2016.

Associate:

Date: 12 October 2016

[2016] FamCA 871

12 October 2016

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Family Law

Property Law

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