Nettle and Nettle

FAMILY COURT OF AUSTRALIA

NETTLE & NETTLE

[2007] FamCA 287

FAMILY LAW - PARENTING - Residence
FAMILY LAW - PROPERTY - Small pool

Family Law Act 1975 (Cth) s.60B(1), s.60CC(1), s.61DA(2), s.65DAA(1), s.65DAA(2), s.60CC(3), s.60CC(4) and (4A), s.65DAC, s.75(2)

Goode v. Goode (2006) FLC 93-286

HUSBAND:

Mr Nettle

WIFE:

Ms Nettle

INDEPENDENT CHILDREN’S LAWYER:

Independent children's Lawyer

FILE NUMBER:

MLF

2056

2005

DATE DELIVERED:

2 April, 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Brown J

HEARING DATE:

16, 19, 20, 21 March, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND:

Mr Duffy

SOLICITOR FOR THE HUSBAND:

Victoria Legal Aid

COUNSEL FOR THE WIFE:

Mrs Mandelert

SOLICITOR FOR THE WIFE:

Bowlen Dunstan & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Ms McCreadie

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

T.J. Mulvany & Co.

Orders

Parenting

That all previous parenting orders and injunctions in respect of the children of the marriage a daughter born in June, 1997, an elder son born in March, 1999 and the younger son born in December, 2000 be discharged.

That the parents have equal shared parental responsibility for the children.

That the children live with the husband as and from the commencement of the second school term in 2007.

That to give force and effect to paragraph (3) hereof, and subject to any agreement to the contrary between the parties:
(a)if the children are living with the wife this day :
(i)the children shall live with the wife from this date until 5:30 pm. on Monday 9 April, 2007; and
(ii)the children shall be delivered to the husband at 5:30 pm. on 9 April, 2007 at A, and live with him pursuant to these orders thereafter; or

(b)if the children are living with the husband this day :
(i)the children shall spend time with the husband from this date until 5:30 pm. on Thursday 5 April, 2007;
(ii)the children shall spend time with the wife from 5:30 pm. on Wednesday 4 April, 2007 until 5:30 pm. on Saturday 14 April, 2007; and
(iii)the children shall be delivered to the husband at 5:30 pm. on Saturday 14 April, 2007 at A and live with him pursuant to these orders thereafter.

That the wife communicate with and spend time with the children as follows :
(a)each alternate weekend from 5:30 pm. Friday until 3:30 pm. Sunday, and such time to commence on Thursday 5:30 pm. should the Friday be a public holiday and such time to be extended to include any Monday or Friday which is a public holiday or curriculum day including but not limited to Australia Day, Labour Day, Anzac Day, Queen’s Birthday, and the Monday and Tuesday of Melbourne Cup Day, noting however that such time shall be suspended during school holidays or the long summer holidays and shall recommence on the second weekend after the resumption of the school term;

(b)for ten days of each of the school term holidays, and one half of the long summer holidays, with the long summer holidays to be the first half in 2007 and alternate years thereafter and the second half in 2008 and alternate years thereafter, PROVIDED THAT the arrangements in respect of school term holidays contained in these orders take effect from and including the June 2007 term holiday period;

(c)for Christmas as follows :
(i)that in the event that the husband and the wife are spending Christmas within 30 kms. of one another, from 4:00 pm. 24 December 2007 until 4:00 pm. 25 December, 2007 and alternate years thereafter from 4:00 pm. 25 December, 2008 until 4:00 pm. 26 December, 2008 and alternate years thereafter;
(ii)in the event that the husband and the wife are spending Christmas in excess of 30 kms. apart, the children shall spend the entire Christmas period with the parent who they would ordinarily be with pursuant to paragraph (5)(b) hereof;

(d)by telephone each Tuesday and Thursday with the wife to telephone the children between 7:00 pm. and 7:30 pm. and at such other times as shall be initiated by the children by way of a “home link” facility, such facility to be arranged by the wife within fourteen days of the making of these orders, and the husband shall do everything necessary to facilitate the “home link” facility;

(e)for one half of the Easter holidays when separate from the school term holidays and, in default of agreement, the first half;

(f)at other times and places as shall be agreed between the parties.

That changeovers take place at A, and in the event that it is mutually agreed between the parties that contact take place in Melbourne between the wife and the children, changeovers shall take place at McDonalds in L.

That the husband enrol the children at T Primary School, to commence on the first day of the second term in 2007.

That the husband forthwith authorise the principal of T Primary School and each school attended by the children thereafter from time to time to provide to the wife, at her expense (if any) :
(a)copies of each school report in respect of a child of the marriage;
(b)order forms for photos of a child of the marriage; and
(c)publications routinely provided to parents.

That the husband and wife each be at liberty to attend the school or schools attended by the children from time to time for events, activities and functions routinely attended by parents.

That pursuant to section 65L(1) of the Family Law Act 1975 (“the Act”), compliance with these orders be supervised, as far as practicable, for a period not exceeding 12 months by a counsellor nominated by the Director of Court Counselling of this Registry of the Court and that such supervision be reportable in the event :
(a)another application is filed pursuant to the Act; and
(b)the judicial officer before whom it is listed requests such a report.

IT IS REQUESTED

That the independent children’s lawyer meet with the children as soon as practicable and advise them of the nature and effect of the orders made this day.

IT IS FURTHER ORDERED

That a sealed copy of these orders be provided to the principal at T Primary School and the principal of each other school attended by a child from time to time.

That a copy of the reasons for judgment herein be provided to :
(a)Ms L;
(b)the principal of T Primary School and, in his/her absolute discretion, any member of staff of that school who works with a child of the marriage; and
(c)any psychiatrist, psychologist, counsellor or like professional consulted by a child of the marriage.

That the parties continue to use a communication book in which to record matters of importance in relation to the children and that such book be transferred between them at changeovers.

That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.

That the wife be responsible for the costs of Ms F, which are fixed at $93, and that such costs be paid within one month hereof.

Property

That on or before 1 June, 2007 the husband pay to the wife :
(a)the sum of $5,000; and
(b)the sum of $1,100, being one-half of the costs of Ms L in relation to the preparation of the family report dated 28 January, 2006.

That on receipt of the sums referred to in paragraph (17) hereof (together called “the payment”) :
(a)the wife do all such acts and things as may be required to transfer to the husband, at his expense, all of her right, title and interest in the real property situated at and known as S in the State of Victoria being the whole of the land more particularly described as Volume … folio … (“the real property”); and

(b)the husband indemnify the wife and forever thereafter keep her indemnified in respect of all and any liabilities arising out of the mortgage registered over the real property.

That pending payment pursuant to paragraph (17) hereof (or completion of the sale pursuant to paragraph (20) hereof :
(a)the husband have the sole right to occupy the real property and that during such right of occupation he pay all instalments pursuant to the mortgage and all rates and taxes and apportionable outgoings of the real property as they fall due;
(b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)neither party encumber the real property without the consent in writing of the other party, save that the husband may so encumber the real property for the sole purpose of borrowing funds to pay sums due to the wife pursuant to paragraph (17) hereof.

That in the event the husband defaults in making a payment due to the wife pursuant to paragraph (17) hereof, the real property be sold altogether out of court (“the sale”) and the husband and wife forthwith do all acts and things and sign all necessary documents to effect the sale of the real property and by way of consequential arrangements that shall be made for the purpose of effecting the sale :
(a)the listing price for the real property shall be as agreed between the parties and if there is no agreement shall be as advised by a valuer (who is also a practising real estate agent) appointed by the President of the Victorian Division of the Australian Property Institute;
(b)the real property shall be listed for sale by private treaty by an agent agreed to by the parties and if there is no agreement with the agent nominated to advise the value pursuant to the preceding sub-paragraph; and
(c) in the event the real property has not been sold within three months of the date of default of the payment the husband and wife shall make all such arrangements and do all such acts and sign all such documents to procure a sale by public auction of the real property without reserve, such auction to take place within a further period of three months by an agent to be agreed and failing agreement to be nominated by the wife.

That upon completion of the sale the proceeds of the sale shall be applied as follows :
(a)first, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the real property;
(b)second, to discharge the mortgage and any other encumbrances effecting the real property;
(c)third, to pay to the wife the sum then due to her and unpaid pursuant to paragraph (17) hereof, together with compound interest thereon at the rate of 10 per cent per annum adjusted monthly from the due date to the date of payment; and
(d)fourth, the balance to the husband.

That in the event a party refuses or neglects to comply with a provision of these orders :
(a)the registrar of the Family Court of Australia in Melbourne is hereby appointed to execute all deeds and documents in the name of the defaulting party, and do all acts and things necessary to give validity and operation to these orders; and
(b)the party in default is ordered to pay any and all foreseeable damages to the other party caused by the default; and
(c)the party in default is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this order and proving his or her damages.

That it shall be sufficient authority for the registrar to act pursuant to paragraph (22) hereof to have before him or her an affidavit sworn by the solicitor for a party in which the solicitor deposes that the other party has refused or neglected to comply with a provision of this order and detailing the provision, the acts undertaken to have him/her comply and his/her response (or lack of a response).

That unless otherwise specified in these orders :
(a)each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof; insurance policies are deemed to be in the possession of the beneficiary thereof; superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for the payment out of such entitlements; and the chattels in the real property are deemed to be in the possession of the husband;

(b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

That all extant applications be otherwise dismissed.

That these proceedings be removed from the List of matters awaiting finalisation.

That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2056 of 2005

Mr Nettle

Husband

And

Ms Nettle

Wife

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The parties have three children. Their daughter, T, will be ten in June; their sons H and D are eight and six respectively. The Court is asked to determine whether the children should live with their mother in V in Melbourne or with their father in S, which is about 35 kilometres north of V. It is also asked to determine competing property applications of the parties.

The parties commenced their relationship in about August 1992 and were living together by mid-1993. They married in November 1995 and separated on 7 May, 2005 when, without advice to the father, the mother took the children from the family home in S and moved to live with her mother in V.

It is probable the mother’s decision to end the marriage would not have come as a surprise to the father; the parties attended marriage counselling in 2004, which failed to resolve their problems. I accept the mother’s evidence that the father had said that if she were to leave, she would not take the children; that she was apprehensive about his response to her departure; that their arguments were becoming increasingly heated and implicated the children; and that it was concern at the possibility of being separated from the children which motivated her decision to leave with them, without notice to the father. However, it is probable that decision impacted adversely on the parties’ relationship, and on the children’s emotional well-being, particularly on their relationship with her.

The mother left S in early May. A few days later there was a fracas in the street near the mother’s home, when the father (according to him, on his way to see the children at their grandmother’s home) saw the mother and children in the car, stopped his own car, and argued with the mother. It is probable the children were pawns in the screaming match which followed, in the course of which the younger son was put by the father into his car, while the mother kept hold of the two other children. Police were called by a third party (but did not attend) and at some stage the father and mother both spoke with a member of the police force on the phone.

Ms L noted in her first report that the father’s approach on that day was undesirably impulsive; cross-examined, she said she felt he lacked insight into the inappropriateness of his conduct that day, which was not in the best interests of the children. The children may well have been scared although if they were, it does not appear to have impacted on their relationship with the father. There has been no repetition of that altercation, but the children could have been left in no doubt of their parents’ hostility to each other, hostility which has not much abated.

On 16 May, 2005 the father filed an application for a recovery order in the Magistrates’ Court of Victoria, at W. He was criticised for not seeking a less draconian remedy, criticism which I do not find to be founded as I accept his evidence he acted on advice. Unsurprisingly, when the matter came before the Court on 8 June, 2005 the magistrate declined to make a recovery order and transferred the case to this Court. On that day interim orders were made, by consent, pursuant to which the children were to remain living with the mother in Melbourne.

A good deal of evidence went to the question of the father’s understanding of what occurred at that time and what he intended to consent to. Having regard to what has transpired since, I do not find it to be of moment. Counsel for the mother did refer to it, albeit briefly, in final submissions. If the mother sought to rely on his consent as a concession (that is, that it signalled his agreement to the children living with her, in Melbourne) that sits uncomfortably with her evidence of his vehement opposition, just prior to separation, to the children moving from the family home in S. It is probable the father has consistently sought that the children be returned to S.

The matter came before Bennett J on 16 December, 2005. By then Ms L, psychologist, had prepared a family report; her recommendation was that the children return to live with their father. Taking issue with many statements made by the father to Ms L, the mother sought a supplementary report. Bennett J ordered that report, requiring the mother to be responsible for its cost while reserving liberty to her to apply for the costs to be shared. Bennett J also made orders for the children to have contact with their father during the Christmas holiday period, and for changeovers to be at A.

On 3 January, 2006 Senior Registrar Fitzgibbon made further orders, by consent, restraining both parties from inflicting any form of physical punishment on the children, and from talking about the case in their hearing.

On 2 February, 2006 an independent children’s lawyer was appointed. By then Ms L’s supplementary report was before the Court. Ms L maintained her recommendation but noted that if the mother were to consider living a comfortable distance of S, a more even distribution of time between the parents’ homes would seem desirable.

On 17 March, 2006, after an interim hearing, Senior Registrar FitzGibbon made further interim orders pursuant to which the children were to live with the mother in Melbourne and have contact with their father on each alternate weekend, for ten days in term holidays, half the summer holidays and on special days, and by telephone on Monday, Wednesday and Friday between 7 and 7:30 pm. That outcome was supported by the independent children’s lawyer. Although the father has complained the mother is frequently late at changeovers (these occur at 5:30 pm. on Friday, at A, a bit less than one and a half hours drive from her home in V) and there were a few disputes about whether the arrangement should be altered to allow a child to attend a party or other event, the contact orders have been implemented and the children have spent a good deal of time with their father. Given the distance between the parents’ homes, both should be commended for that. The father complained that telephone contact was not always successful, the children not being home and/or failing to ring him back.

EVIDENCE

Findings are made on the balance of probabilities, having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.

The father relied on affidavits sworn by him, Mr J (a friend), Mr M (another friend), Dr N (a general practitioner) and Mr R (the principal of T Primary School). The father and Mr J were cross-examined; none of the other witnesses was required by counsel for the mother or independent children’s lawyer.

The wife relied on an affidavit sworn by her and one sworn by her mother, Mrs C. With leave, she called Mr W (a friend) and her neighbour in V, Ms F. All were cross-examined.

Mr W has been a friend of the father for over twenty years, and a friend of the family. He is the daughter’s godfather and the father is godfather to one of Mr W’s children. The mother’s evidence was that on 9 February she commenced an intimate relationship with Mr W, who had separated from his second wife a few days earlier. Unsurprisingly, this raised the temperature of the already simmering dispute between the parties. Despite their long-standing friendship, and selection of Mr W as the daughter’s godfather, the father (and his friend Mr J) painted Mr W as an irresponsible philanderer who used illicit drugs, was a sometimes aggressive and sometimes “sloppy” drunk, had been an impatient parent to his own four children from his first marriage (now aged between 20 and 12) and a poor step-parent to the now adult children of his second wife.

By the time Mr W was called the mother had abruptly terminated their fledgling relationship. She did this after hearing Ms L’s evidence that moving to live with Mr W would be a greater disruption to the children than a move back to S to live with their father. Mr W was ruefully resigned to the mother’s decision.

Giving evidence, Mr W was a breath of fresh air, in a case where the parties, Mrs C and Mr J were all keen to embellish their evidence with gratuitous asides critical of the other party and keen to shore up any perceived potential gaps or inconsistencies in their case. He answered questions directly and concisely, admitted his own shortcomings and passed up a number of opportunities to criticise the father.

Ms F lives next door to the mother. One of the father’s complaints about the children’s present living arrangements was that the swimming pool at the grandmother’s home posed a risk to the children as the gate to it was regularly left open and it was possible to get access to it through a garage when the pool gate was closed. To bolster this aspect of the case he tendered photographs of the open gate and garage door, taken from the neighbour’s property, and deposed to have obtained the neighbour’s consent to taking those photos. Her evidence was of no such conversation with the father, ever. She was a clearly disinterested and honest witness.
The Court had before it three reports prepared by Ms L, psychologist, dated 28 November, 2005, 28 January, 2006 and 20 December, 2006. Counsel for the mother mounted a sustained attack on Ms L’s credit (she did not seek to challenge her qualifications as an expert), putting to Ms L that she (Ms L) did not like the mother, had been gratuitously offensive by describing her as obese and had acted on the history given by the father, without giving the mother an opportunity to respond to his myriad allegations. I do not find the criticism to be well founded.

It is probable the mother misunderstood Ms L’s role. This can be demonstrated by an analysis of the affidavit of evidence in chief filed by the mother on 18 January, 2007. Pages 6 to 14 of a nineteen page affidavit are taken up with complaints about statements made by the father, and Ms L’s failure to allow the wife “to clarify” those matters. Some of those complaints go to matter of substance but many do not.

In some instances, there was very little difference between the accounts of the parties (eg. paragraph 50, which refers to the father’s account of the children knowing a lot of friends in the local community). On other occasions the mother missed the point or sought to divert attention from the real issue (eg. paragraph 31, in which she focussed on whether permission had to be obtained for the children to attend T school or for them to travel by school bus, when the uncontested fact was that the parents chose that school over a closer one). Others sought to gloss the evidence (eg. paragraph 36, relating to the father’s advice he had obtained an intervention order against the mother (which he had), her complaint being that she denied the grounds alleged but on 3 August, 2005 consented to the order being made without admission.) Some were non-sequitors (eg. paragraph 55, in which she responded to the father’s account that he is a good cook and the children eat their vegetables (clearly in the present tense) by deposing that apart from cooking a barbeque meal, she cooked all the meals for the children and “[Ms L] did not clarify these matters with me”). In some she sought to “clarify” a statement made by the father in respect of matters of which she could have no knowledge (eg. paragraph 56, where she sought to deny or comment on his advice that the children played up when they left his home, when she was not there).

The reality is that the person preparing a family report sees one party first. In this case Ms L saw the mother first when preparing her first report. Interviewing the father later, he made a number of complaints about the mother and her parenting. It was not Ms L’s job to have another lengthy interview with the mother to put each complaint to her (and then possibly another with the father, to respond to new complaints of the mother, etc.).

An expert who prepares a family report is not the person who determines whether allegations are accurate. In the course of that work an expert takes a history from the parties and others with whom she speaks, and gives them an opportunity to express their concerns. She must see one before the other and in this case (for the initial report) she interviewed the mother on 16 November, 2005 and the father on 18 November, 2005. She cannot call each of the parties back to answer all allegations made by the other, and that is not her role. Ms L made it clear that where her opinion was based on asserted facts, it would only be as reliable as those asserted facts; an illustration is her opinion on page 14 of her first report about the mother’s unilateral decisions post-separation, which is qualified by “if his (the father’s) report is true”. Similarly, when dealing with the highly contested issue of primary care during the marriage, Ms L referred to reports as tending “to support the father’s claim to this role in more recent years” but then referred to other relevant factors, including the children’s stronger attachment to their father and his capacity to manage them, as well as the children’s accounts; see p.16.
Listening to the parties’ account of their time together and their concerns about the other is only one aspect of the expert’s role. As Ms L noted, significant weight is placed on observations of the parties with the children, particularly when the children are as young as these. Weight is also placed on things children say and a professional assessment as to whether their comments arise from their own experience, or are reflections of things they have been told, or think a parent may want to hear. Ms L’s evidence was that her opinion was not based on what the father thought or thinks about the mother’s parenting but on her own concerns about that parenting.

I found Ms L to be a cogent, objective and insightful witness and place weight on her expert opinions.

The parties’ animosity to each other was manifest in the avalanche of allegations they made to Ms L, in their demeanour in the witness box and in their own evidence. I am satisfied each was prepared to embroider, embellish and invent if they thought that would enhance their respective cases. Both were caught out a number of times, often about matters which, of themselves, were of little import, such as the father inventing a conversation with the mother’s neighbour and the mother asserting inaccurately (in an attempt to cast doubt on something the daughter said to Ms L) that she, rather than the daughter, made the daughter’s bed. I do not criticise the father for taking a photo from the neighbour’s drive in circumstances where his allegations about pool safety had been categorically denied, although it is probable he took the photos much earlier in 2006 than he recalled. I do not criticise the mother for asking the daughter to make her own bed; many parents would do so, particularly when bed making may amount to nothing more than pulling up a doona. The relevance of this evidence does not go to its content but to a pattern of allegation and counter allegation, and reliance on trivia and petty complaints, which marked so much of the evidence.

The husband had difficulty in answering some questions responsively and tended to add an express or implied criticism of the mother to his answers, often tangential to the question. His commitment to disagreeing with the mother’s position led him into silly answers, such as his evidence of there being no point in talking to children around the table when they were eating, because “what would you talk about?”. He left school at 13 and has some problems with literacy (asked by me, he said that his reading is fine and that his writing is fair) but he did not present as unintelligent.

The mother is better educated than the father, completing a TAFE course in accountancy early in their relationship and writing fluently and expressively in the communication book. She was less forthcoming in the witness box than was the father, but when pressed, her normally modulated tone changed swiftly, albeit briefly. Her commitment to disagreeing with the father’s position led her, too, into silly and inconsistent answers, including one in which she appeared to challenge the extent of remedial assistance provided to the elder son at T and then to question the qualifications of the person employed by the school as a special education teacher.

Mr J went in boots and all against his former friend, Mr W, and was clearly partisan to the father and to the general cause of fathers in family law litigation. His recollection of parental roles during the marriage was no doubt filtered through this partisan lens, but I accept his evidence of observations of the father caring for the children, including during periods the mother was confined to bed due to a back problem.

Mrs C has seven children and presented as a loving mother and grandmother who was sceptical about the parties’ relationship at the outset (due to her daughter’s youth and inexperience, and the difference in the parties’ ages) but did her best to accommodate the reality. Her daughter having determined to leave the marriage she has generously provided accommodation and emotional support and I am confident would continue to do so. Her animosity to the father was as palpable as his to her and she, too, tended to reconstruct and analyse through a partisan lens.

The Court must try to make sense of a conflict which is suffused with hostility and frustration and bitterly disputed competing historic narratives. It is not useful to deal with every allegation a parent has made against the other. Findings which are necessary to consider the matters to which the Court must have regard in determining where the best interests of the children lie will be made.

PROPOSALS

The mother proposed that the children continue to live with her in Melbourne, and continue to attend V Primary School, at which they were enrolled shortly after coming to Melbourne in May 2005. She agreed that when she came to Melbourne it was her intention to live only temporarily at her mother’s home; I understood her to say that she had not been able to obtain independent accommodation for financial reasons and, possibly, due to the demands and pressures of the continuing litigation. She said it was still her intention to obtain independent accommodation close enough to V Primary School to allow the children to remain there.

Asked on the first day she was cross-examined whether it was her intention, or probable, that Mr W would form part of that household, the mother prevaricated. Given the duration of their intimate relationship (some five weeks) it was reasonable for her to be uncertain of its durability. However, that did not then seem to be her focus. It is probable she did say something to the daughter which led the daughter to believe that her mother was going to move in with Mr W after the case was over; it was only when pressed by me that the mother said that she “may have said” that was a possibility in the future, in response to a question from the daughter. Asked about a timeframe she said it would not be until the case was over and not in the next month, but perhaps “in two months”.

Mr W lives in P, which is on the right side of Melbourne for him to see his children, who live in G. Apart from the emotional ramifications on the children of adding Mr W to their household, to which Ms L adverted, I cannot say where the mother envisaged this might occur, were it to occur.

Resuming her evidence on the second day, the mother deposed that she had terminated the relationship with Mr W the previous evening. Pressed, she said that until the parents and children adjust to the outcome of the case, she did not think any relationship should take place and that she “hadn’t fully thought it through”. I proceed on the basis their intimate relationship is not continuing. It is idle to speculate as to whether it may be rekindled.

The mother’s evidence was that she has been seeking part-time work and will continue to do so, and that she would like to upgrade the TAFE accounting qualification she obtained as a young woman.

The father proposed that the children return to the family home in S and go back to their old school, T Primary School. As they have lived in Melbourne for almost two years, that would be a change but, as Ms L noted, it would be a return rather than a move to a new location.

To the parties’ credit, they agreed prior to the trial commencing on the time the non-resident parent would have with the children, whatever the outcome of the trial.

In final submissions, counsel for the independent children’s lawyer submitted that it was a finely balanced case in which the independent children’s lawyer had struggled to determine a position to put to the Court. Counsel then submitted that the children’s best interests would be fostered by retention of the status quo; it was put that the mother was a tested solo primary carer, that she would foster the children’s relationship with their father, and that the reports of Ms L did not identify any significant risk. Counsel submitted that the mother must (as a result of the hearing) be left in no doubt of the father’s right to pursue the matter (presumably if she breached orders or acted inappropriately with the children).

LEGAL PRINCIPLES

The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1). They are also reflected in the circumstances in which the presumption of equal shared parental responsibility is not to apply, those circumstances relating to findings about violence; see s.61DA(2).

When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.

If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

PRIMARY CONSIDERATIONS

When determining what is in a child’s best interests the primary considerations are :
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These are consistent with the objects set out in s.60B(1).
That the children will benefit from having a meaningful relationship with both parents is not in doubt. I am satisfied that, whatever the outcome, they will spend substantial periods of time with the parent with whom they do not live. Geography precludes an equally shared parenting regime, something which might well have been appropriate were the parents living closer together.

Counsel for the mother relied on the father’s evidence that were the mother and children to return to live in S, he would not seek residence but would be content for them to live with her and for him to have more contact with them. I am satisfied that he should be commended for that approach, rather than criticised, it demonstrating an understanding of the children’s need to have a meaningful relationship with both parents. In those circumstances he could play a role in their daily lives, and spend time with them at school, at sporting events and during recreational activities, in addition to time spent with them at his home.

This is not a case where there are allegations of significant violence. However, allegations about discipline by parents and others, and remarks made by the children to Ms L, make it necessary to deal with that issue, and it is convenient to do that here.

When interviewed by Ms L for the first report the daughter said that her mother and grandmother smack her on the bottom and on the face, sometimes on the bottom with clothes off, with a hand or a wooden spoon. She said the other children were not smacked “because they were not naughty enough” and that a friend of her mother, Ms D, suggested to the mother and grandmother that they should smack rather than, for example, having a naughty corner. She said Ms D smacked her brothers. Asked by Ms L about discipline at that time, the elder son said he was put in a corner by his mother if he were naughty and the younger son said “dad doesn’t smack us, mum does”.

Asked about smacking by Ms L the mother initially seemed to imply that she thought some smacking was acceptable but then said that she did not think it was, and that she had not smacked the children at any time since separation.

The mother’s evidence was that the daughter was not telling the truth in her description of being smacked by her, her mother and Ms D. She did agree (there is some reference to this in the second report) that Ms D had been trying to back her up in setting boundaries, and that Ms D had a loud voice, which the children did not like. There was also evidence to suggest she had agreed with the older two children that they would go to after-school care if the need arose, rather than be looked after by Ms D, which is indicative of their unhappiness about Ms D’s management of them.

The maternal grandmother was interviewed by Ms L when the second report was prepared. She told Ms L she was set against corporal punishment. She said she had possibly used a wooden spoon to bang on the bench when managing her own seven children, that “possibly [the mother] had used it on the children in the past” but “they know smacking does not work”.

At that time the daughter affirmed the earlier smacking by her mother. She said Ms D still smacked them, it occurring a few times on the bottom, with a hand, with clothes on, and that her mother does, too. She said her father had smacked her before separation but did not do so know. Later she said her mother pulls her pants down and “smacks us with the handle of a wooden spoon” and that her grandmother only did it with their clothes on. Notwithstanding that, she then said there had not been any smacks in the last holidays and “now she knows, she doesn’t do it”. The last comment suggests the daughter was aware of the order made on 3 January, 2006 which restrained both parents from inflicting any form of physical punishment on the children. Ms L saw the children with the mother on 9 January and with the father on 16 January.

Seen by Ms L for the third report, the daughter said that if she does the wrong thing her mother sends her to her room and gets her to say sorry, and that her grandmother sends her to her room and does not let her come out. The elder son told Ms L that if they do the wrong thing their mother gives them a little smack and sends them to bed for half an hour and that their grandmother sends them to bed, too. He said it was a while ago that his mother had smacked him and that his father just gives them a little tap, too, and tells them off. In a second interview the elder son said his mother sometimes smacks, that it is not hard, but that she shouldn’t do it. Again, that answer is suggestive of knowledge of the injunction.

By the time of the third report the younger son’s verbal skills had improved a little. He told Ms L “my mum smacks me”, that it was sometimes on the head and that it was when they had been naughty. He said “dad does not smack but he takes our motor bikes sometimes”. Having said they were more naughty at their mother’s place, and that he wanted to live with his father, the younger son said it was not safe at his mother’s “because of the smacking”, but that it was safe at dad’s.

The mother’s evidence was that prior to separation the children were disciplined by being sent to their rooms and having things taken from them and, at times, were smacked. She said the father “did a lot of yelling” and she, too, yelled sometimes although not in such an intimidating way. She spoke of them sitting down and talking with the children to get them to understand, and said if they were smacked, it was on the leg with an open hand. I accept that account of discipline in the home at S.

It may well be that the children were smacked more often after they came to Melbourne as the mother tried to set boundaries and impose discipline as a single parent, in circumstances where the children were not altogether happy about having been removed from S. It is also probable the father sought to capitalise on this. When he saw Ms L for the third report the father claimed that the daughter had told him “that because they are not allowed to smack, her mother pinches with her fingernails and the grandmother yells at them”. If the daughter said that, or something like that to him it is, again, indicative of her knowledge of the injunction. The father made no mention in his trial affidavit of the mother pinching the children, although that was sworn only a couple of days prior to him seeing Ms L and making the complaint to her.

If the daughter did say her mother pinched them with her fingernails, I find that claim to be without foundation. It is probable the children know of their father’s criticism of their mother’s discipline.

I do not find that the discipline in the V home (by the mother, her mother or Ms D) has been such as to put the children at risk of physical harm. The children’s emphasis on it may be a response to their father’s concerns but it may also be a response to their unhappiness at living away from S, and away from their father. It also has some relevance to the mother’s capacity to manage the children, which I will consider later.

I do not find substance in the father’s allegation of the children having bruises and burns in November 2005. Given the father’s readiness to criticise the mother, and what I am satisfied is a genuine commitment to the children’s welfare, it is inconceivable that he would not have taken the matter further if the children had really returned with burns and significant bruises.

ADDITIONAL CONSIDERATIONS

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

The daughter

When first seen by Ms L, the daughter said she would like to live with her father because there were more things to do. She said she missed her father and thought it would be better for them to move back; asked if she would then miss her mother, she said she did not know. Later in the interview she said her mother cannot handle all of them and that their father can, that her mother gets cross and that “I really want to live with my dad”.

Ms L had been reluctant to interview the children again so soon after the first report, a reluctance she explained in that second report and when cross-examined. Her evidence was that repeat interviews can be confusing to young children. They tend to regard the interview like a test, even when careful preamble as to the purpose of the interview is provided. They lack the capacity to properly understand the limitations of adult knowledge and the differences in perspective of individuals about the same matter, so tend to assume adults already know what they are asking children and are only asking to find out what the child knows. Children are inclined to think that if they are asked about the same issues again, perhaps their first answer was not right or not good enough, and they will make changes to try to do better. Their first answers are thus somewhat more reliable then later ones. It is probable that process can be observed in the daughter’s responses in the second interview.

Coming to a session with her mother, the daughter told Ms L that :
. . . because her father says nasty things about her mother, she will live at her mother’s. She said her father does not say these things to her but to other people and that she hasn’t heard it but her brothers have. She said that she does not know what he says, and that [the younger son] had forgotten what their father had said. She said her father does not like her mother. She said her mother does not say nasty things.
When she came to an interview with her father the daughter spoke of what they had done at S, saying they had gone motor bike riding and she would be getting a new one if they live there, but not if they don’t, because it would be a waste as she would grow out of it too quickly.

Ms L reported that the daughter said :
. . .she did not know whether she wanted to live with her mother or her father, but said she wanted to go to the [T] School because you go on the bus and visit [Y’s] house around the corner near the post office. Asked if she had been told to say anything, she said her father had told her to say whatever she wanted to.
In Ms L’s opinion the daughter’s account that she would live with her mother because her father said nasty things, was quite suspect. She was unable to follow up the statement with any information and seemed to feel awkward as she made excuses about the lack of substance to the complaint. I accept Ms L’s opinion that an empty statement of that kind which has no substance below the surface should be considered unreliable, and not be given weight as indicative of the daughter’s true feelings or position regarding where she should live. It is probable that the daughter had become self-conscious about expressing any preference for one parent over the other, and by that stage could only do so indirectly by reference to a preference for T school and friends in that vicinity.

Interviewed yet again for the third report, the daughter did not express a direct preference. It was in the course of that interview that a question arose as to whether the father had tried to influence the daughter to express a preference for living with him. The account the mother gave Ms L was in these terms :
She said [the daughter] had been upset the night before the joint session and had not wanted to come. She said the children had spoken to their father on the telephone and [the daughter] had told their father that they were coming to the interview the next day. She claimed that [the father] told [the daughter] that he would give her things away including her bed, if she did not say that she wanted to live with him. She said she wondered if [the daughter] had exaggerated in reporting this. She said [the daughter] told her that she did not want to make a decision and she assured her that she did not have to. She said she was concerned that [the daughter] may feel there was going to be a backlash or that her father was not going to love her if they did not go back to live with him. She said [the elder son] reported that [the father] had said that [the daughter] had to decide because she was the oldest, but had said this as a joke, and [the mother] had said it was not a very nice joke. She said she suspected that the father was putting pressure on [the daughter] and she said it was not something a child could work through.

With Ms L, the daughter said “it was confusing” and gave this account :
She said her father had said that if she did not live with him, he would get rid of her motor bike, television and computer and so on (although she did not mention her bed). She said that her mother and grandmother had talked about it last night and had said “that’s awful”. She remarked “maybe it’s not true”. She said she did not know which place she wanted to live (and was reassured that she did not have to choose).
Asked about this by Ms L, the father said he just tells the children to tell the truth in the assessments and acknowledged that the daughter was confused. He said that he does punish the children on occasions by taking their things from them, and had done so on the last Saturday the children were with him, when the daughter’s room was not tidy. But he denied having made threats in relation to what she should say in the interview, or who the children were to live with.

Ms L was concerned as to whether the father put undue pressure on the daughter or whether the idea had been developed by her mother, in turn placing the daughter in an invidious position. The daughter held her ground in the interview and did not express a choice about where she wanted to live. She showed awareness that her brothers wanted to live with their father and Ms L noted that this could place pressure on her if she is experiencing divided loyalties.

I accept the father’s evidence of taking things from the children (or threatening to do so) as a form of discipline. The mother’s evidence was of this being part of their parental discipline when they were together. I find it improbable that the father made the threat alleged and it is more probable that the daughter, already confused and stressed at the prospect of a third interview, misinterpreted what was said. I am not critical of the mother for expressing concern about it; that was legitimate, given her understanding. With Ms L the mother questioned whether the daughter might have exaggerated, indicative of her own scepticism.

The daughter has made it clear that she does not want to be responsible for the decision; nor should she be. She is aware of her brothers’ wish to return to S; she may feel caught between those wishes, her feeling of responsibility for her mother, and a genuine ambivalence about the decision.

The elder son

From the time he first saw Ms L, the elder son has maintained his position that he would like to live with his father. When first interviewed he said that whilst school is good, he liked T more, and would choose to live with his father, if he could. Reinterviewed for that report, he said he wanted to be at his father’s place, so he could be with his friends.

When seen by Ms L for the second report the elder son maintained that he wanted to live with his father because he could play with his friends, ride the motor bike and visit the farm. He said it was good being at his father’s and playing with his friends, it was good going down the bunker on his bike and that he wanted to go back to T school, rather than go to school at V. He maintained the position in the third interview, saying it was better at his father’s place because you can ride around more and go up the bush, and he listed six friends there.

The younger son

When Ms L first saw the younger son he was not yet five and was shy. He said he had liked the kindergarten at his father’s place better and that he wanted to stay at his father’s. In the second interview for that report he said he felt “not good” about his mother’s move to Melbourne and said he was not glad that she had taken him with her; he would have been glad to stay with his father.

Seen for the second report he was again not talkative and his speech was a little hard to decipher. When asked if he were missing his mother while at his father’s, the younger son shook his head, but nodded and said yes when asked if he misses his father when with his mother. He did say he would like to go to kindergarten with Ms D’s son, A.

When brought to an interview for the third report by his mother, the younger son said that he wanted to live at his father’s, that it was not safe at his mother’s because of the smacking, and that it was safe at dad’s. He repeated the wish to live with his father when brought for another interview by his father. Asked about visiting a school for next year, he nodded that he had been to see it, and when asked how he felt about it, just shrugged.

When the parties separated the children were seven, six and four. It is of note that the boys maintained their clear preference for living with their father over the almost 20 month period between separation and the interviews for the third report. The younger son is still very young and it is likely his views are more important for the emotional attachment they indicate; I accept as sound Ms L’s evidence that when he spoke of being safe at his father’s home, it is indicative of his sense of emotional security as much as his physical safety.

Ms L noted that the words the younger son used were age appropriate, and his responses were not self indulgent or avoidant, but rather reflected sound elements of experience.

There is a sense in which the boys’ desire is a desire to return to the life they knew at S. The elder boy referred to the greater range of things to do there and to his friends, but he also couched his preferences in terms of his father. I am satisfied the Court should proceed on the basis that both boys have expressed the view that they would like to return to S and to their father, seeing that as a package. They may be too young to understand every ramifications of a move back to S, and to judge the extent to which they would miss their mother, but their clear preference is to live in S with their father and they have a clear sense of their two different homes.

Ms L noted that her observations of the children were consistent with their expressed views.

(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);

There is no doubt that the children love each of their parents and the parents love the children.

The father’s evidence was that the daughter’s relationship with her mother was “rocky” because they were always yelling at each other. He alleged that the week before trial he heard the mother swearing at the daughter when she was tardy in coming to the phone to speak with him, an allegation the mother denied. I do not find that the mother has called the daughter a “fucking bitch” or “a bitch” but it is probable (as the mother admitted in the course of the second family report process) that their relationship has not always been easy since separation. The mother admitted that the daughter has called her “a bitch”; the grandmother made a similar admission. It is possible that what the father heard was the daughter speaking to her mother or grandmother and, swift to draw an inference unfavourable to the mother, attributed it to the mother. The daughter’s disrespect to her mother and grandmother is of concern.

It is probable that the mother’s relationship with the daughter was influenced by the circumstances in which the daughter left the family home and came to V in May 2005. Before me, and to Ms L, the mother deposed to telling the children within 48 hours of coming to Melbourne that it was a permanent move. That evidence sits uncomfortably with the wife’s evidence in paragraph 14 of her affidavit sworn 18 January, 2007. In that paragraph she deposed to a telephone conversation with the father on 13 May, 2005, some six days after their separation. She deposed that at that time the children “believed they were staying on an extended holiday, that it was not forever, and whilst they were staying in Melbourne they would be attending the [V] Primary School”. It is probable that she did not tell the children the move was a permanent arrangement until much later than she now recollects.

When counsel for the mother put to Ms L that she (Ms L) thought it was “dreadful that the mother did not tell her husband that she intended to leave with the children”, Ms L responded that she did not think that was dreadful; what she thought was dreadful was that the mother did not tell the children. Explaining the answer, she said that the mother should have told the children “pretty much there and then” that they were leaving S and would be living in Melbourne. By telling them once it was a fait accompli she suppressed the children’s natural reaction, which would have been to protest. She said from a child’s perspective the move (once they learnt it was permanent) was not reversible; it is probable they would have seen little point in protesting at that point. Because the children’s natural reactions were suppressed, the mother could not deal with those reactions. They may well have been sublimated into a more generalised unhappiness, and reflected both in the quality of their emotional interaction with her since separation, and in the behaviours she has to manage. Ms L’s observation was of the children feeling more irritable, resistant and argumentative with their mother than with their father.

Ms L noted that the daughter was mature enough to feel not only confused but also some sense of being deceived by her mother about the circumstances in which they left. The problem would have been exacerbated by the mother telling the daughter (as she acknowledged to Ms L in interview for the first report) that if the father took her, he might not give her back.

Ms L observed in her first report that whilst the move from S to V had not been overwhelming in terms of distance and the potential for contact, the change of lifestyle seemed to have been very significant for the children. In her opinion, they were finding the indoor suburban lifestyle uncomfortable after their country upbringing and were at sensitive stages of development to undergo such a change, having enough social awareness to feel the loss of friends and activities but not yet having the cognitive skills to master such an adjustment readily.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(f)the capacity of :
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)       has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)       to communicate with the child; and
(b)      has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)       spending time with the child; and
(iii)      communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Much of the evidence went to the question of which parent was the primary carer prior to separation. The father conceded that the mother was the primary carer until 1999 and made no complaint in his material about the level of care she offered then. Cross-examined, he seemed to be complaining that she had not offered him sufficient opportunities to be involved in the children’s lives, particularly in their discipline, but that is not a complaint on which I place any weight. He was then in paid employment and she was engaged in fulltime parenting.

In the second half of 1999 the father was laid off. Soon after, in December 1999, he suffered serious burns when he entered a burning caravan to rescue a five year old child, called J. This child suffered burns to 70% of her body, but lived. The husband was hospitalised for surgery a number of times, through to 2004.

The husband admitted that he was diagnosed with post traumatic stress disorder after the rescue and that the mother attended a psychologist with him to offer support. He agreed he was prescribed medication, saying the first lot did not agree with him, he was allergic to the second and he took the third for some eight months.

Ms L thought the mother was unsympathetic to the father’s response after the fire and dismissive of him remaining on a disability pension. It is probable that the family struggled financially and emotionally after the father was injured, and the mother may have wished for a more swift emotional recovery, but I do not find she was anything other than supportive and sensitive when they were together.

It is probable that once he was not in fulltime paid work the father did start to play a more active role in parenting the children. It is also probable he has exaggerated the role he played to the detriment of the role which the mother continued to play. In 2005 the mother worked two to four hours a week at M Primary School for a period and did a little cosmetics selling. She, too, was at times bedridden with a serious back problem and (as observed by Mr J) it is probable the father was more involved in caring for the children and the house at those times.

In this area, as in numerous others, it is probable that each parent tended to over value his or her own contribution and under value that of the other parent. It is probable each made significant contributions as parents and home makers. In one sense it is a sterile argument; the more relevant evidence is that which goes to the children’s emotional attachments and the parent’s capacity to manage them now.

Ms L’s evidence (in the second report) was that while children usually feel more attachment and security with the person who does most with them directly, this is not always the case. Further, while functions carried out during the marriage can indicate who is able to perform such functions regularly and smoothly, it can be that the other parent can conduct them quite satisfactorily, without making the children feel insecure in the transfer of duties.

In her first report, prepared some six months after separation, Ms L noted that the children did not seem to have settled after the move. All of them then plainly expressed the wish to live with their father, even on the occasions they were brought to an interview by the mother. The children’s accounts of each parent’s management of them showed more security in the father’s care. Overall they seemed unhappy with the change of lifestyle and the limitations it imposed on their access to play facilities.

Ms L noted concerns about the mother’s capacity to relate to the children in a manner which would gain their respect and co-operation. The daughter did not show a manner in interview to suggest that she was fundamentally a difficult child at all, but the mother was observed to have difficulty in managing the children, while the father did not. She sought to engage the children in semi-educative desk-top tasks and the children’s affect seemed flattened by this, as compared with the session with the father.

Ms L’s observations suggested that the children had more attachment to the father and that he managed them better than the mother. She was observed to attend to one child at a time and expressed difficulty with the three of them, whereas the father was able to share his attention amongst them simultaneously and still relate to each in age appropriate ways.

When observed for the second report Ms L found that the mother managed the children’s behaviour rather better than previously, which demonstrated a willingness and some ability to adjust her behaviour. She shared her attention amongst the children more skilfully and explained things to them. However, the boys were still inclined to fight in her care and the way she related to the younger son still seemed inappropriate for his age. Notwithstanding the improvement, the interaction was such that Ms L observed that it seemed probable the mother could benefit from attending a parenting course. At that time the children were once again happy and co-operative when observed with their father.

When observed for the third time, Ms L noted that the mother showed an ability to share her attention among the children in the observation session and the children each seemed comfortable with her, although she still tended to raise ideas for discussion which were a little above the children’s appreciation. By comparison, the children indicated that they behaved more normally with their father. They expressed greater contentment with his management of them and with things like what he gives them to eat. They named more friends around his place even though they had not lived there for a year and he raised more concrete and personal things with them.

Cross-examined, Ms L maintained her opinion that the father’s parenting is of better quality than the mother’s. She remained concerned about aspects of supervision in the mother’s home; for example, she did not believe the elder son is old enough to take his younger brother across the road or be responsible for him; she did not believe the elder son was old enough to be riding his bike from school or on his own on a local bike track; she was concerned that the mother did not seem to take seriously the boys’ fascination with fire; and she expressed some concern about anecdotes from the children about how they could get into the in-ground swimming pool at the grandmother’s home.

In relation to the last matter (access to the swimming pool) I accept the evidence of the mother and grandmother that a secure pool gate was fitted sometime after the children came to live there in 2005, and that it is no longer possible to access the pool through the roller door in the garage. It is probable these security measures were taken later than the grandmother recalled but were in place at the time the husband recollected he took the photos. Their evidence that the secure gate is propped open (in a photo taken by the father it can be seen propped open with a large pot plant) when adults and children were in the area, to facilitate passage to and from the house, is not prudent. I was concerned by the mother’s evidence in her affidavit sworn in January 2007 that “[the younger son] is also (i.e. in addition to the two older children) swimming adequately to save himself”. If this implied that supervision of the younger son can be relaxed, it would reflect very poorly on her judgment. The younger son was then just six. Children who can swim can drown swiftly if taken by surprise, or flustered, or when hurt. No six year old child should be considered able to “save himself” (presumably from drowning) simply because he has swimming skills.

While the father was quick to complain that the mother did not discuss important matters with him, and of her lack of supervision, it is clear that the elder son has also got into trouble when at S with the father. Most recently, the elder son and his friend Y removed covers from the mirror screws in the ladies’ toilets at the golf club, and put toilet paper or paper towels on the floor. Whilst doing his best to minimise this in oral evidence, it is clear the father reacted more strongly (and appropriately) at the time; his evidence was of grabbing the elder son, going to his friend Y’s home and, with Y and his father, returning to the golf club where the boys were required to apologise and clean up. Nevertheless, he did not tell the mother of the incident in the communication book, which he should have done. The boys have obviously got up to other trouble in S, too, but the preponderance of the evidence supports a finding that the father is likely to manage it better than it has been managed in Melbourne.

On behalf of the mother it was submitted that the father’s lack of education and problems with literacy meant he would be unable to assist the children with their education. It is probable his limitations have impacted on the usefulness of the communication book; although he told me his reading was good and his writing fair, he may have felt reluctant to reveal the true extent of his difficulties in these areas, a reluctance shared by other litigants in similar circumstances.

Ms L saw the important issue as his attitude to the children’s education, rather than any deficit in his own education or capacity. She said she did consider whether he would be able to help the children on a daily basis, but said that what is important to children is a parent who is supportive of education, and able to access other supports for them if the parent cannot provide the support. It was after dealing with that issue that Ms L noted (as she had noted in earlier reports) that shared care would have been the most desirable option for these children.

The mother’s evidence was of the father decrying education, claiming that the elder son had said that he did not need to be able to read and write because his father cannot, and “he has gotten by in life”. She attributed that comment to the father, without considering whether it might have been the elder son’s own idea.

The mother was very critical about T Primary School, effectively blaming it for the children being behind when they came to Melbourne. However, as Ms L noted, neither the daughter nor elder son are performing at the appropriate level now, suggestive of more deep seated problems. I add that their school reports suggest they are delightful children but both need assistance with core subjects.

It is likely both parents tended to overstate the unique benefits of the environment in which each sought to bring up the children, and the mother’s retrospective dissatisfaction with T Primary School fell clearly into that category. The mother has taken advice from V Primary School, including advice for the elder son to be psychologically assessed, and I do not doubt that V Primary School is a good school. Conversely, nothing satisfies me that the children could not be offered appropriate services and education at T Primary School.

Ms L was critical of the mother for failing to discuss significant decisions with the father before implementing them; examples included the psychological assessment recommended by the school, enrolling the younger son in year 3 kindergarten despite him having started 4 year old kindergarten earlier that year, and the prescribing of glasses for the elder son. In each case the father learnt of the decisions relatively soon after they were made. While it would have been better for the mother to have spoken with him about these matters earlier, the Court has to be realistic about the parties’ apparent inability (or refusal) to communicate.

The father agreed that if he rang the V home and the grandmother answered, he hung up, justifying that by saying she had been rude to him on earlier occasions. The mother’s evidence was that the father will not talk to her on the phone. His evidence was that if he asked to speak to her, the children said she didn’t want to come to the phone.

The mother has used the communication book intelligently and apparently easily, but that is not a medium that is likely to be conducive to anything other than bare responses from the father. It is unlikely he thought of a creative alternative (such as dictating to a friend the things he wanted to put in the communication book, or using a dictating machine to send a voice tape) and instead, on occasions, used the children as messengers. I do not find the mother tampered with the communication book and the husband’s failure to respond to matters she raised must have been frustrating.

I am satisfied the mother has offered the father additional time with the children and, despite her view of him, worked hard at ensuring the orders for contact were complied with. I do not place weight on her being a little late at changeovers, on occasions, and doubt she was routinely as late as the father recalls. The changeover time on Friday required her to collect the children from school at, say, 3:30 pm. and get them home, changed and given something to eat before leaving for the drive to A by 4:00 pm. In those circumstances it is hardly surprising they were sometimes late. By contrast, it is much easier to get children organised to leave on a Sunday afternoon, when one does not have to build it around a fixed event, such as the end of the school day, an event over which one has no control.

The father has been assessed to pay minimum child support, meaning the mother has effectively borne the brunt of supporting the children since separation. I cannot make a finding as to whether the father has been engaged in any paid employment in more recent times, but am satisfied that during the marriage and after separation he did take cash jobs on occasions.

The father denied that he ever criticised their mother in front of the children but it is probable that has occurred. The independent children’s lawyer expressed concern that if the children lived with their father he could undermine their relationship with the mother, to the extent that contact could cease. In my view there is no evidence to support that logical leap but the father’s negative view of the mother, and the probability the children are aware of it, are of concern.

That the father can be a large hearted and generous man is illustrated by him rescuing J, at significant personal price. He has also been prepared to put aside his hostility to the children’s mother, when necessary to support the children. For example, a few weeks prior to trial, he delivered the children to her for a changeover and was some thirty kilometres back along the road home when she rang to tell him her car had broken down. He retraced his steps and waited with her for the RACV to arrive. On learning that the RACV driver could not take all four family members with him back to Melbourne, the father drove them all home. That act of generosity does not negate the petty criticisms he is too keen to make; it is not the Weights and Measures Act. But it does demonstrate a capacity to rise above his residual grief and anger and do the right thing for the children on a broad scale. They would benefit by him adopting a more generous attitude to their mother and their life with her.

Asked direct questions, neither of the parents was able to be anything other than grudging about the other. When the mother was asked whether she thought the father genuinely wanted the children to live with him or was doing it to punish her, she swiftly responded that he was doing it to punish her and would see it as a win. For his part, asked to nominate anything positive about the mother now, the father resorted to saying that as he spent no time with her, he could not say. Whilst that is not indicative of parents who respect each other’s role in their children’s lives, the Court needs to be mindful of Ms L’s evidence that the outcome of a highly conflicted separation is often an incapacity to articulate anything good about the former partner. Ms L said that while such responses are not in the best interests of children, being told of them did not affect her recommendations.

(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The children have now lived in Melbourne for almost two years. They have settled into school and have friends here. The elder son is involved in cricket, the daughter has been doing dancing. A move, even a move back to S, would be dislocating. I do place weight on Ms L’s evidence that it would be less disruptive than many moves, as it is a return to a known and loved area. The children have maintained their friendships in S and made very clear to Ms L their enjoyment of activities available there. Nevertheless, after almost two years it would not be a simple return home. In addition to the usual stress of moving, it would require a level of readjustment for the children. The older two children would return to a school they previously attended; it would be a school change for the younger son, although he went to kindergarten there for about a term, so is not totally unfamiliar with the environment.

The mother alleged that there were more limited opportunities for the children in the country, and complained about the necessary limitations of life in a town the size of S. That town has a population of about 100, and is in the centre of small farming communities. It has a post office/general store, a pub, a golf club and bowling green, tennis courts and a hall. At T there is a gym which has been organised by the police. Children from S can go to high school in B, which is about a 30 minutes trip in the school bus.

Despite the mother’s view of the limited opportunities available, the children made it clear that they very much enjoy the range of activities available in S, which include fishing, swimming, bike riding, motor bike riding and sport. As the children get older they may wish to be involved in activities which are only available in the bigger towns, but that is a common experience for children who live in rural and regional Australia. The question is not whether one lifestyle is, in theory, preferable to the other; the question is what residential arrangement will best foster the children’s best interests. In purely practical terms, I have no doubt that the children would thrive in S, and would be happier with the activities there than they apparently are with those in Melbourne.

The more important question is the emotional effect on them of a move back to S.

Ms L’s evidence was that the daughter and elder son are old enough to appreciate the ramifications of a move back to S, although the younger son is not. In her opinion, if the children were to move to live with their father, “they will be happy”. She said the daughter may be a bit embarrassed and concerned about her mother; in particular, she might be wary and anxious about how her mother would take it, and feel a degree of guilt. If the mother can accept it, and make it clear she will spend important time with the daughter on weekends and holidays, the daughter will thrive.

While acknowledging the important role of a mother in an adolescent girl’s life, Ms L did not see the approach of puberty as a bar to the daughter living with her father, particularly as she would be having regular and frequent contact with her mother. The father has undertaken a course in parenting adolescent girls which was conducted through a local agency and Ms L saw no reason why he and the daughter would not be able to manage that transition in her life. The father readily agreed that at puberty the daughter might be more comfortable with her mother, and when it was put to him that she might want to live with her mother, he said he could appreciate that. That is not an insensitive response.

In Ms L’s opinion, the boys’ relationship with their mother is likely to improve were they to be allowed to return to their father and the general cultural environment of S. She said they would both be delighted and their negative behaviour may subside spontaneously or be addressed by their father in a more effective manner than the mother has been able to achieve.

The mother and grandmother each thought that the children would be devastated were the Court to order that they live with their father in S and I accept that to be a true statement of their beliefs. However, I place more weight on Ms L’s expert opinions and while accepting that there would inevitably be some dislocation, and a period of readjustment, it is probable all children would settle swiftly back into their life in S. All of them (particularly the younger son, who is still young) may miss their mother more than they anticipate and it would be vital that they were able to communicate with her easily and frequently.

The Court must also consider the potential effect on the children of the retention of the status quo. It is probable the boys will maintain their preference for S and there is no reason to assume their responses to their mother’s management will change. Since separation they have been bed wetting, on occasions. The father’s evidence was of speaking to the mother about it when they started to wet at his place; he said they discussed getting the boys up at night and putting them on the toilet. His evidence, which I accept, is that that approach worked and they are not wetting the bed at his home.

The daughter told Ms L when seen in late 2006 that the boys wet the bed at their mother’s but not at the father’s. In an insightful response, she said she thought the boys wet the bed at their mother’s because they want to be with their father. If they cannot live with him they may manifest their distress in ways which are emotionally damaging and maintain aspects of their negative behaviour

(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

To their credit the parties have managed the travel between V and S very well. A meeting point mid-way can be a potent source of conflict, particularly if one party is late, or if the children arrive in a car driven by someone other than the other parent, or with other people in the car. I make it clear that unless an order specifies it, there is no requirement for a parent, him or herself, to deliver children; the parental obligation is to comply with an order for the children’s delivery and, as a responsible parent, ensure that any other adult involved in the process is also responsible. It is not for one parent to dictate to the other, as the father seemed to think was his role.

(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

I have earlier referred to the children’s apparent preference for the life they knew until their move to Melbourne in May 2005. Neither party submitted that this sub-paragraph was otherwise relevant.

(j)any family violence involving the child or a member of the child’s family;
(k)Any family violence order that applies to the child or a member of the child’s family, if :
(i)the order is a final order; or
(ii)the making of the order was contested by a person;

I have earlier referred to the evidence of the father obtaining an intervention order against the mother after an incident on 8 June, 2005. That was the day on which interim orders were made, by consent, in the W Magistrates’ Court. After that hearing it was agreed the mother could attend the family home and remove certain belongings and chattels. She attended the home with her sister, and her sister’s boyfriend, arriving prior to the father.

According to the father, the mother and her sister broke into the house, he having changed the locks after they left. The mother conceded in her oral evidence (while saying nothing of it in her affidavit) that she had climbed in a window, which is tantamount to a break in, being an unauthorised entry.

When the father arrived, the mother’s group had already started removing items. According to her, there was then a scene in the course of which the father pulled articles from the car, threw them onto the front yard, and instructed Mr J to park his car so hers would be blocked from leaving the premises.

The father’s account is in the complaint and summons he then signed, which is annexed to the mother’s affidavit. He alleged that the mother and her sister broke into the house and loaded items other than those agreed into her car, while verbally assaulting and threatening him. In the complaint he also alleged that on 6 May the mother knocked him over using her car just after he put the younger son into it, and that she had driven in a dangerous manner on 5 June, when the children were with her. In his affidavit he agreed Mr J had parked his car to block her departure.

It is impossible for the Court to make findings about what happened on 8 June and I am not at all critical of counsel for not adducing further evidence, or cross-examining, on the issue. The reality is that an interim, ex parte order was made in the father’s favour on 9 June, 2005 and on the return date, the mother agreed to the continuation of the order, without admission. The intervention order lapsed in mid 2006. Despite the complaints made to Ms L and to various friends and family members, there have been no subsequent physical or verbal altercations.

The mother’s evidence was that during the marriage the father was controlling and verbally abusive. When cross-examined, she referred to some “pushing and shoving”. The Court is aware of the many reasons which may lead people to stay in abusive relationships and make them reluctant to speak of physical, verbal or emotional abuse, even to family members. While the mother was obviously very unhappy with Ms L’s recommendations and opinions, she raised a number of complaints about the father’s behaviour and parenting, but said nothing of any physical violence. I do not doubt the household was tempestuous in the last days of their marriage; one of the allegations in the complaint and summons signed by the father involved an alleged event on 6 May, the day prior to separation. It is probable the children had been implicated in parental arguments, which were becoming more and more heated.

The Court cannot and will not ever condone physical violence. Given the paucity of evidence, it is not possible for the Court to make a finding that it is more probable than not that the father was responsible for the “pushing and shoving”, whatever form that took. That is an unsatisfactory outcome but the Court can take some comfort from the evidence that, since the fracas on 11 May, 2005, neither party has alleged that the other has physically or verbally assaulted him or her.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

One aspect of the independent children’s lawyer’s final submission caused me concern. Counsel noted that the independent children’s lawyer shared some of Ms L’s concerns about the level of supervision at the mother’s home, although issues relating to the swimming pool had been addressed. The essence of the submission was that the mother could be left in no doubt of the potential consequences were she not to properly supervise and manage the children in the future, counsel saying that the father would have a “right to pursue the matter” and she must realise “she could lose the children”. Indeed, counsel went so far as to say that the wife must now have been “scared” into such an understanding. Inherent in that submission seems to be an acknowledgement of risk and an acknowledgement that, for the children to be secure with their mother, her parenting will have to improve.

At one point counsel for the independent children’s lawyer seemed to submit that the father carried the onus of persuading the Court that the status quo put the children at risk. It was probably an inadvertent expression but I make it clear that he carries no such onus. There is no magic in the status quo. It is for the Court to determine which of the proposals will be in the children’s best interests.

These children have been embroiled in litigation for well over 18 months. They have met with Ms L on a number of occasions. They are well aware of their parents’ hostility and inability to agree. Some evidence points to the potential for them to have been told about aspects of the proceedings which should have been kept in the adult domain, such as the injunction relating to physical discipline. It is vital to their security and stability that these proceedings end, and they be able to adapt and accommodate the outcome, whatever it is.

I note that neither party considered the potential to separate the children, and it was not raised with (or by) Ms L. Nothing in the evidence satisfies me that would be a good outcome for the children.

CONCLUSION
Residence

Balancing all matters I am satisfied the best interest of the children will be fostered by returning to live in S with their father. The factors which favour that return, particularly those referral to emotional attachments, practical parenting and disciplinary style, outweigh those which favour a stay in Melbourne. In the latter category I include the father’s negative views of the mother and the potential for them to rub off on the children. If the children are happy in their environment with the father, he may be less critical of their mother. But even were he to maintain his current attitude, with some negative impact, the benefits to the children of his consistent and robust parenting are likely to outweigh any potential detriment.

The children’s emotional attachment to their father, their more comfortable responses to his parenting and management, and (for the boys) the implementation of their clearly expressed preferences, make it likely they will accommodate the transition and thrive. The daughter may miss her mother more and feel sorry for her but it is probable she will be happier in the rural environment, and will also thrive.

Time with the mother

To the parties’ credit, they agreed on the time the non-residential parent should have with the children. After the trial concluded the independent children’s lawyer advised that there was an aspect of these orders which was not agreed. Having regard to its nature I am confident the Court can determine it without further argument.

The independent children’s lawyer and mother sought that weekend contact recommence on the second weekend after the resumption of the school term. The father apparently did not agree; I assume he sought it recommence on the first weekend, no other alternative coming to mind. I am satisfied the position advanced by the independent children’s lawyer is sensible, allowing the children to settle back into school before their first weekend of travel. The children’s time with their mother will recommence on the second weekend after the resumption of the school term.

I will otherwise make orders in the terms agreed.

Presumption - section 65DAC

Neither party submitted that the presumption of equal shared parental responsibility did not apply. That presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. In Goode v. Goode (2006) FLC 93-286, the Full Court (Bryant CJ., Finn and Boland JJ.) found, at 80,894, that there is a clear difference between the parental responsibility which exists as a result of s.61C of the Family Law Act 1975 and an order for equal shared parental responsibility, which has the effect set out in s.65DAC. Until a Court order alters the parental responsibility which exists as a result of s.61C, the parties will exercise their responsibilities as parents either independently or jointly. Once the Court has made an order allocating parental responsibility, including an order for equal shared parental responsibility, major decisions relating to the long term care and welfare of the children must be made jointly, unless the Court otherwise provides.

Thus, an order implementing the presumption of equal shared parental responsibility has the effect of requiring the mother and father to make major decisions about the long term care and welfare of the children jointly, unless the order specifically makes other provision.

Section 4(1) of the Act defines “major long-term issues” in relation to a child to mean issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about the child’s education, religious and cultural upbringing, health, name and changes to living arrangements which would make it significantly more difficult for the child to spend time with a parent.

If the parties had lived close to each other, the Court may well have made orders for a shared residential arrangement. Ms L noted the potential for this and it is probable such an arrangement would have been in the children’s interests. In saying that I am not critical of the mother for not moving back to the S area, or of the father for not moving to Melbourne. However, the distance between the parents’ homes makes such an order impracticable. That distance does not mean it is impracticable for the parties to be equally responsible for making major long term decisions.

In these proceedings the father complained of the mother’s unilateral decisions but that was at a time when parental responsibility was shared pursuant to s.61C, not as a result of an order which has the effect set out in s.65DAC. The father must understand that once these orders are made, he is required by law to consult the mother and reach joint decisions about issues of a long term nature relating to the children’s education, religious and cultural upbringing, health, name and living arrangements. Consultation does not mean telling the other parent what is going to happen. It involves a genuine discussion of all relevant matters and a joint decision. The parties may need to access supports if they are unable to agree on a significant long term matter; a Family Relationship Centre may be able to assist. I will order that the orders be supervised pursuant to s.65L of the Act for a period of 12 months, which will enable both parents to discuss matters with a family consultant employed by the Court.

Without in any way limiting the generality of the matters on which the parties must consult and agree, I make it clear that it will include the secondary schools to be attended by the children. Agreement will not be required on their attendance at T Primary School after their return to S, as I am satisfied a return there is in their best interests at this time. If the father wishes to move them to a different primary school, he will need to discuss that with the mother, and reach agreement.

Decisions about day to day health issues, such as attendances at a doctor for flu or with minor injuries, are in the domain of the parent with whom the child then is. However, save in an emergency, there must be consultation on any long term health issues and I include in that a child’s attendance upon a psychiatrist, psychologist or like professional, and attendances on any specialist medical practitioner.

PROPERTY APPLICATIONS

Proposals

The father proposed that the mother transfer her interest in the S property to him, he indemnify her in respect of the mortgage, and pay her $5,000. Otherwise, each should keep what they have.

The mother sought a payment of $18,350 and that each party otherwise keep what they have. She also sought an order that she be able to purchase the contents of the S property for $1,250 (being the value attributed to them by her) and that the husband reimburse her for one-half of the costs of the second report of Ms L.

The mother set out the asset pool relied on by her on page 8 of the summary of argument filed on 15 March, 2007. The father relied on the information contained in Part G of the case summary document faxed to the Court by his solicitor on 14 March, 2007.

The mother’s evidence was that at the commencement of cohabitation she owned a car and the husband owned a couple of cars and some household furnishings. She was employed part-time as a receptionist until early 1996, when she commenced fulltime studies at TAFE for a course in Advanced Diploma of Business (Accounting). She was not otherwise in paid employment until 2005, when she obtained some part-time work at the M Pre-school as an accounts clerk for a period of six weeks. Late in the marriage she undertook some cosmetics selling, but I am satisfied it was minimal.

The mother’s evidence was that the father was on unemployment benefits when the parties met and remained on those benefits for some years, but I do not find that to be an accurate account. It is probable he maintained fulltime employment in O as a demolisher for R until he moved to live fulltime to S in about 1996.

The parties initially lived in Melbourne but moved to S prior to the children’s births. They bought a home there for $35,000 in 1994, borrowing $31,914 in May that year. The house is now valued at $42,000 and the mortgage stands at some $10,600.

In 1997 the father commenced employment at Z on a fulltime basis and remained there until he was made redundant in 1999. When the father was working for Z he left home at about 7:30 am. and arrived back just before 5:00 pm. Initially in receipt of unemployment benefits after he was retrenched, the husband later became eligible for a disability pension as a result of the significant injuries he received when rescuing J from the fire.

The father was commended for his bravery after rescuing J and received $10,000 in cash awards which went into family finances.

In 1997 the mother received an inheritance from the estate of her late father of $10,000 plus shares with Amcor and BHP Billiton. I accept her evidence that the cash part of her inheritance was used on family expenses including renovation of the kitchen and to buy some furniture. At separation she had 123 shares with Blue Scope Steel, 1,614 BHP shares and 234 Amcor shares. She sold the Blue Scope Steel and Amcor shares, together with 114 of the BHP Billiton shares to raise funds to pay outstanding legal costs, receiving the sum of $4,700 from the sale. She also paid a personal loan outstanding at separation of $400.

In his affidavit in chief the father deposed to receiving $15,000 by way of inheritance from his father’s estate in or about 1994, of spending $10,000 of that sum on their wedding (which was in November 1995) and the remaining $5,000 as the deposit on the house in S.

The mother denied any knowledge of an inheritance received by the father. He conceded he had no documents in respect of it but was adamant it was received prior to them marrying. His evidence was that his sister was holding the money “until I bought a house”.

Counsel for the father (in response to a call for documents relating to the estate) advised of his instructions that neither the father nor his sister had any relevant documents; he did not seek to call the sister.

Since separation the father has made the mortgage payments of $83 per week, together with the rates, insurance and water charges. He has paid some $5,000 off the capital of the mortgage since separation, but has also had the benefit of living in that home.

The parties were unable to agree on the value of the contents of the former matrimonial home which remain in the father’s possession. The mother obtained a valuation of $1,250 for the contents and was keen to rely on the father’s positive response to a question asked by her counsel, being “are you prepared to sell them to the mother for that sum?” I do not underestimate the importance of such chattels, particularly when parties are living on Centrelink pensions, but short of auctioning everything off it is very difficult to attribute a realistic value to everyday furniture and household items, and money spent on valuations is often disproportionate to the real value. I will include the household contents in the pool at $1,250.

The mother is not legally aided, which must have imposed a significant burden on her. I gave leave to her to file a copy of the notice given to her by her solicitor pursuant to rule 19.04(2) of the Family Law Rules 2004 as there was otherwise no evidence of costs paid or outstanding, save that $4,700 from the sale of shares went to pay legal costs.

The notice notes costs incurred as follows :
·   invoice dated 6/3/06 for professional costs and disbursements of $9,828.05;
·   professional costs and disbursements incurred since 6/3/06 up to and including 15/3/07 - $7,264.47;
·   counsel’s costs to appear at trial of $2,000 per day, anticipated as $8,000 for four days;
·   instructing solicitor’s costs of $182 per hour, anticipated not to exceed $1,000;
·   sum outstanding to I Valuations - $242.50.

The father was legally aided but there was evidence that Victoria Legal Aid had lodged a caveat over the S property. That may secure costs attributable to the property proceedings, or other costs. I cannot say. I do not find it appropriate to notionally add the $4,700 back to the pool; counsel for the father made no submission that should be done, and findings about the contribution made by the mother through her inheritance can reflect the fact that part of her inheritance was disbursed on her own legal costs.

The mother deposed to sums held in two bank accounts of, respectively, $659 and $100 when she swore her financial statement on 16 January, 2007. As they are listed under the section of the statement relating to property owned by her, I assume they are in her name only. The father did not include any such accounts in his list of assets but disclosed one account of $500 in his financial statement. Given the time which was elapsed since separation I do not include sums in their respective bank accounts in the pool.

The father alleged that at separation there was $1,000 in a bank account in the daughter’s name, which was the balance of his T superannuation fund, and that the wife removed about $800 from that account. The evidence took this no further. Similarly, in her statement of assets and liabilities the wife referred to a Mastercard debt of hers (apparently at separation) of $850, about which she said nothing in her affidavit. The figure alleged is not consistent with it being the personal loan outstanding to the Commonwealth Bank to which she referred in paragraph 104 of her trial affidavit.
I appreciate that the parties were focused on the parenting applications but the Court cannot conjure evidence from thin air. In these circumstances I find the asset pool to be as follows :
The former matrimonial home            $ 42,000
500 BHP Billiton shares   12,550
Wife’s car (from F.13)   5,500
Husband’s cars (from submitted asset
pool in case summary document)              900
Household contents (wife)   1,000
Household contents (husband)                1,250
$ 63,200     $63,200
Less Liabilities
Mortgage on The former matrimonial home       10,600     _______
$52.600
Plus Superannuation assets
Wife’s interest in C Super   3,396     _______
Total nett assets  $55,996

CONTRIBUTIONS

I accept the mother’s evidence of the uses to which she put her inheritance. I take into account her evidence that some part of it has gone towards her legal fees, but having regard to the source of those funds, I have not notionally added them back to the pool.

The father could have called the sister who allegedly held his entitlement pursuant to his late father’s estate and disbursed it to him to pay (on his evidence) the costs of the parties’ wedding and funds towards the S property. He failed to do so and in the absence of any evidence corroborative of his receipt of those funds, the Court is entitled to assume that his case would not have been assisted by calling that sister. I do not find that he received the amount asserted or that it was spent as he recalled.

That said, the funds to pay the deposit on the S property had to come from somewhere, and if they did not come from the husband’s inheritance, it is probable they came from savings accumulated from his paid work. Similarly, the wedding was funded by money which came from him.

Since separation the husband had made all mortgage payments and reduced the amount due on the mortgage. He has had the benefit of living in the family home. He has made a negligible financial contribution to the children’s support since separation (other than maintaining them while they are with him) which means that the mother has had to bear that financial responsibility. The interim orders have also meant that she has borne the brunt of the parenting; while that was not his preference, that is the reality.

The BHP shares which the wife inherited represent some 22% of the asset pool. The father made no contribution to that asset, or to the cash component that went into family finances.

I am satisfied that contributions of all kinds should otherwise be assessed as equal, with a loading in the mother’s favour for bringing that asset into the pool. I fix their respective contributions at 55% by the wife and 45% by the husband.

Section 75(2) factors

The father is 19 years older than the mother and has residual health problems arising from the fire. I do not find substance in the mother’s criticism of the medical evidence; he is on a disability pension and the Court should not go behind that fact. On the other hand he is clearly robust enough to parent three young children, undertake some work for cash and do voluntary work for the Country Fire Authority.

The mother has had a long standing problem with her back, which has been incapacitating on occasions. Her evidence was that it is now managed reasonably well, which I accept.

The father has undertaken manual work for cash since the fire and has the capacity to do so again. He has also raised funds by scavenging items and reselling them, as he did (on his evidence) to fund the purchase of a motor bike.

The mother has been out of the paid workforce for many years, save for very limited employment late in the marriage.

The mother must have some capacity for employment but I accept her evidence of the difficulty she has experienced in finding work to date and of the need to upgrade her qualifications to obtain work in that specific field.

The parenting orders will involve the father bearing the brunt of the children’s parenting. The mother also will have commitments in that respect, and those commitments can impact on both their earning capacities.

The mother has the small superannuation entitlement to which I have referred. If she does not gain employment it is probable she will be entitled to a Centrelink pension, and she may (as the father does now) receive some part of the family allowance for the time the children are with her.

The father has been able to remain living in the former matrimonial home while the mother has had no option but to move back to live with her mother.

The mother would like to undertake further education to upgrade her qualifications. That may involve her in the payment of fees and also may also interfere with her capacity to obtain paid work.

Neither person is presently cohabitating with another person.

The father has paid minimal child support; the mother may be assessed to pay child support to him which obviously would increase were she to obtain paid employment.

The asset pool available for distribution is very small.

CONCLUSION

Although the pool is small and weight needs to be given to the probable discrepancy in the parties’ earning capacities and their parenting responsibilities, that should not mean that one party receives all or almost all of the available assets. On the father’s proposal the mother would receive the following assets :

Cash payment   $ 5,000
BHP Billiton shares                  $12,550
Car  $ 5,500
Household contents                 $ 1,000
Superannuation  $ 3,396
  $27,446

This represents 49% of the available assets. On my contribution finding, it represents an adjustment of 4% in the father’s favour, which could not be said to be excessive, given he is to be the resident parent and the parties’ respective ages and earning capacities.

Were she to be paid $18,350 rather than $5,000 the wife would receive $40,796 or 72% of the available assets. That overvalues her contributions at the expense of the husband’s.

Where the pool is so small it is almost inevitable one party will feel disadvantaged by the Court’s decision, particularly when only one party can retain a foothold on real property. The mother does not seek the transfer of the home to her. In those circumstances, I am satisfied the proposal of the father is consistent with my findings on contribution and relevant s.75(2) factors, and is just and equitable.

Ms F’s costs

The mother called Ms F and nothing satisfies me that anyone other than her should be responsible for Ms F’s costs, which I fix at $93, being six hours at $15.57 per hour.

Costs of Ms L’s second report

The order made by Bennett J. gave the mother liberty to apply to be reimbursed one half of Ms L’s costs of preparing the second report. The total cost was $2,200. I note Ms L’s evidence of the limitations of a supplementary report at that time, and the wording of Bennett J’s order which made clear the mother’s concerns about the first report and the process which led to it. Nevertheless, the report was relied on by all parties and by the Court and I am satisfied it is appropriate the father pay one half of its cost.

Orders will provide for the sale of the S property in the event the father defaults on paying the sums due to the mother pursuant to these orders.

I certify that the preceding
183 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown.

Dated the day of 2007.

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as NETTLE & NETTLE

[2007] FamCA 287

2 April 2007

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Costs

Injunction