Parker and Parker

FAMILY COURT OF AUSTRALIA

PARKER & PARKER

[2007] FamCA 216

FAMILY LAW – Parenting orders – Equal shared parental responsibility for 3½ year old child – Consideration of equal time or substantial and significant time.
FAMILY LAW – Property – Agreed approach to superannuation entitlements; division of modest pool of non-superannuation assets

Goode v Goode (2006) FLC 93-286.

APPLICANT:

Mrs Parker

RESPONDENT:

Mr Parker

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

HBF

1728

2004

DATE DELIVERED:

19 March 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Watt J

HEARING DATE:

4, 5, 6,7, 8 September 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams

SOLICITOR FOR THE APPLICANT:

Robin Harrison & Associates

COUNSEL FOR THE RESPONDENT:

Mr Sweeney

SOLICITOR FOR THE RESPONDENT:

Richard Calley Pty

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr Whitchurch

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Robert Halliday & Associates

Orders

All previous parenting orders be and are hereby discharged.

The husband and the wife have equal shared parental responsibility for the child a son born 22 July 2003 and each party be responsible for the day to day care, welfare and development of the child while he is in their respective care.

The child spend time with the husband (commencing on the next weekend on which the husband would have the child with him for two nights in accordance with the interim orders) as follows:

(a)From 10.00am on Friday to 10.00am Monday each alternate week but if the Monday is a public holiday then the time is extended to 5.00pm on Monday;
(b)From 5.00pm Tuesday to 10.00am Wednesday in the week in which the husband has time with the child from Friday to Monday;
(c)Each alternate week from 5.00pm Thursday to 5.00pm Friday;
(d)on the child’s birthday from 3.00pm to 7.00pm unless the child’s birthday falls on a day when he attends school then from after school until 6.30pm;
(e)on the husband’s birthday from 3.00pm to 7.00pm unless the birthday falls on a day when he attends school then from after school until 6.30pm;
(f)on Father’s Day from 5.00pm on the Saturday before Father’s Day until 5.00pm on Father’s Day;
(g)from 12.00 noon on Christmas Eve until 12.00 noon Christmas Day in 2008 and each alternate year thereafter and from 12.00 noon on Christmas Day until 12.00 noon on Boxing Day on 2007 and each alternate year thereafter;
(h)for one half of all school holidays and long summer vacation once the child attend school by agreement and failing agreement the first half of the school holidays commencing at the conclusion of school on the day the child’s school breaks up for each holiday period in 2008 and each alternate year thereafter and the second half in 2009 and each alternate year thereafter;
(i)until the child attends school for 4 blocks of 7 days by agreement and failing agreement as follows:
(a)for one week to coincide with the first week of the Victorian school holidays for term 2 and 3 holidays;
(b)for one week of the term 1 Victorian school holidays including the Easter weekend in 2008 and in each alternate year thereafter;
(c)for one week commencing on Boxing Day;

(j)otherwise as agreed.

The husband is to be in substantial attendance for all periods of time with the child.

At all other times the child live with the wife.

Until the child attends school the wife have 4 blocks of 7 days with the child such times to be by agreement and failing agreement as follows:
(a)for one week to coincide with the second week of the Victorian school holidays for term 2 and 3 holidays;
(b)for one week of the term 1 Victorian school holidays including the Easter weekend in 2007 and in each alternate year thereafter;
(c)for one week in the long summer school holidays;
and the husband’s time with the child shall be suspended during these periods.

The child spend time with the wife if the child is with the husband :
(a)on his birthday from 3.00pm until 7.00pm unless the birthday falls on a day when he attends school in which case the child shall then spend time with the wife from after school until 6.30pm;
(b)from 3.00pm to 7.00pm on the wife’s birthday unless the birthday falls on a day when he attends school in which case the child shall then spend time with the wife from after school to 6.30pm;
(c)from on the Saturday before Mother’s Day a 5.00pm until 5.00pm on Mother’s Day.
In the event that either party proposes to travel interstate or overseas with the child they give 14 days prior written notice of their travel and itinerary.

Changeover for the purposes of paragraphs 3, 5 and 6 occur at the child’s school where appropriate or at the Shell petrol station in a south eastern suburb of Melbourne.

Each party notify the other parent:

(a)of any significant injury, illness, medical treatment, welfare or emotional concern or the like with respect to the child;
(b)the child’s treating doctor including the name and contact details;
(c)and for this purpose each party will provide the requisite authority to enable the treating practitioner to release all information to the other parent.

Neither party denigrate the other to or in the presence of the child.

The child attend B College unless the parties agree otherwise.

The parties continue to maintain a communications book.

Pursuant to s.65DA(2) and s.62B, 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.

The wife forthwith deliver up to a photographer/chemist nominated by the husband in the communication book all of the photographs in her possession of the husband and/or the child (but including all professional photographs and wedding photographs) to enable the obtaining of same at the joint expense of the parties (by consent).

The wife then become entitled to ownership and possession of the original photographs and the husband become entitled to the copies obtained (by consent).

Both parties do all acts and things necessary to distribute the remaining proceeds of sale:

(a) to the wife the sum of $47,320;
(b) to the husband the sum of $17,680

and the accrued interest shall be divided in the same proportions.

The wife is entitled to possession and sole ownership of the “K” painting.

Except as otherwise provided in these orders each party is declared to have no interest in the items of property in the possession and control of the other.

Each party is to retain 300 Telstra shares and the parties are to do all acts and things necessary to have the Telstra shares transferred into separate parcels in each party’s name.

Each party is to retain his/her interest in any superannuation fund.

All pending applications are otherwise dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: HBF 1728 of 2004

Mrs Parker

Applicant

And

Mr Parker

Respondent

REASONS FOR JUDGMENT

Introduction

This matter commenced before me on 4 September 2006 and continued on 5, 6, 7 and 8 September 2006. Mr Williams of counsel appeared for the applicant wife, Mr Sweeney of counsel appeared for the respondent husband and Mr Whitchurch of counsel appeared for the independent children’s lawyer (“ICL”).

This case raises issues of property settlement and parenting orders, but the greater part of the hearing was focused on the parenting orders that were sought in respect of the parties’ only child, a son, aged 3.

Parenting issues

There were changes in each parent’s position as the case progressed, but in final addresses, the husband was seeking orders that would see the child living with him for 7 nights out of 14, the wife was proposing 5 nights per fortnight, and the ICL was proposing 6 nights per fortnight. The wife’s proposed schedule is set out in par 54 below, and the husband’s is attached in the diagrammatic form in which it was presented. The Independent Children’s Lawyer proposal combined elements of both, increasing in three increments one month apart to the total of 6 nights.

The family report writer, Ms S, recommended an increase in the time that the child was spending with the husband under the interim orders (3 nights per fortnight), but considered that it would not be in the child’s best interests to move to an equal shared time regime having regard to his age and life experience to date, having lived primarily in the care of the wife.

Both parents have strong religious beliefs, based in what I will describe as conservative Pentecostal Protestantism. The extent of their religious observance and active involvement in the evangelistic aspects of religion were different, however, and the wife was critical of the husband for putting church ahead of family, in terms of both time and money. She also criticised the religious influence of the husband on their son, in that a 3 year old will engage in overt acts of praying that probably exceed his capacity to conceptualise at age 3. The mother’s case was that he did not learn this in his mother’s home.

Both parents accused the other of being controlling. The wife criticised the husband for being controlling in relation to finances, and leaving her ‘stranded’ in the home with a young baby and no access to a motor vehicle when he would go out for religious meetings or evangelical activities. Apart from attending meetings and services in the general area where the parties resided, the husband would go into Melbourne (as he still does) on some weekend nights to pursue missionary or evangelistic activities, eg, preaching to members of the public in places such as the central CBD on a Saturday night. The wife also complained that the husband was controlling in the way that he repeatedly described her as being mentally unstable and suffering from post-natal depression.

The husband’s case was that the wife had been possessive and controlling of the child from birth and did not allow him an appropriate role in the child’s life. His case was that she sought to exclude him from the child’s life and occupy the role of primary carer, both before and after separation. His case was put on the basis that a trip to Holland – where the wife’s mother resides - by the wife with the child in mid 2004 was planned by her as a permanent move and the start of a long term separation with obvious detriment for the husband’s capacity to have an ongoing relationship with the child. Not long after her return from Holland, the wife took the child to Tasmania and did not return until there had been court proceedings in that State. The husband saw this episode as another attempt by the wife to exclude him from the child’s life. He asserted that she had contrived to make this move to Tasmania appear to be a flight from an abusive relationship.

The parties separated when the child was only 14 months old. At the time of trial, an order made in December 2005 governed the time that the child spends with his father.

Under the December 2005 order, from 13 January 2006 the child was to spend time with the husband each alternate weekend from 2.00pm Friday until 5.00pm Sunday, each alternate week from 5.00pm Thursday until 9.00am Friday commencing 19 January 2006 (that is, in the week following the contact weekend) and each alternate Tuesday from 4.00pm until 7.00pm in the week preceding the alternate weekend with the husband.

Changeovers for the child between the parents have generally taken place at a service station and there were a number of allegations made by the wife of unacceptable conduct by the husband that fell into the categories of overbearing physical proximity and inappropriate touching. The husband’s case was that at changeovers the wife was hostile in her attitude, and he generally denied the wife’s allegations.

The husband also put his case on the basis that the wife had been psychologically unstable for some time and an apparent suicide attempt by her during her period of defence force service was referred to in some detail.

For all their criticisms of each other during their relationship and since they separated, it appeared that by the time of trial, both had been able to make the interim arrangements for the child work reasonably well for his benefit and their levels of conflict had abated somewhat. I will observe at this point, however, that both started the case with unrealistic positions in terms of what each was seeking, and whilst these modified to the positions that I have summarised earlier by the end of the trial, the parties began by pursuing their competing drives to continue as primary, almost full-time carer, on the wife’s part, and to become an instant equal time father, on the husband’s part.

Short Background

The wife was born in September 1975 and is 31 years of age. The husband was born in June 1974 and is 32 years of age. The parties married in January 1998, and separated 6 years and ten months later in October 2004. The decree nisi divorcing the parties became absolute in July 2006.

The parties have one child, a son, born in July 2003. He is now 3½ years old. The child has lived with the wife since separation, and she was the parent primarily involved in the child’s care whilst the parties were together.

The wife’s qualifications and work experience

The wife has or had skills as a communications officer and armed forces medic. Her evidence was that her linguist qualifications gained through her training in the armed forces in Indonesian (and pidgin English) did not qualify her to speak or write in Indonesian. She was trained in military jargon only. She had only completed two courses as a medic in the armed forces and these are not recognised outside the armed forces.

The wife commenced work with the armed forces in July 1994 and resigned in November 2003. Since the wife left the armed forces shortly after the child’s birth the wife has been engaged in home duties. She has joined the armed forces Reserve. She has no present plans to undertake work outside the home although the possibility of her undertaking training to qualify as a nurse was touched upon in evidence.

The husband’s qualifications and work experience

The husband has qualifications as a teacher, fitness instructor and has medical qualifications gained through the armed forces which could qualify him to be a State enrolled nurse. The husband’s evidence was that all his qualifications may have lapsed and/or would require more training or courses to enable him to practice in those fields, but he did not know and had not inquired about these matters..

In his affidavit sworn 31 May 2006 in par 291 the husband states that he began studying for a Bachelor of Education (Physical education) at University when he left secondary school. In par 238 he states that he has trained as a primary/secondary school teacher and in par 331 he states that he has teaching qualifications. The husband has not worked as a teacher and believed that he may have to do extra study before being eligible to teach.

The husband joined the armed forces intending it to be his career. His medical qualifications gained whilst in the armed forces would enable him to become a State enrolled nurse, but he was unsure as to what else might be needed.

The husband said that his qualifications as a personal trainer had lapsed and he would need to make inquiries as to what was needed to renew them.

The husband said that he obtained his present part-time packing work through an agency.

It was put to the husband in cross-examination that he can not tell the court when he will be working from one week to the next. The husband said he would rather fit his work around his time with the child and that he should be able to get a job that fits around this time as at present. It was put to the husband that he did not know how much he would have to pay for rent and for other living expenses. The husband’s answer remained that whatever time he has with the child, he will fit his work around this, but he led no credible evidence to suggest that such flexible working hours would be available on any of the time sharing scenarios that he put forward in the course of the trial.

The husband commenced work with the armed forces in September 1997 commenced paid leave from the armed forces in March 2006 and was discharged in July 2006.

Since leaving the armed forces in July 2006, the husband has been employed in casual part-time packing work. He works Monday to Thursday from 7.30am to 3.30pm. The husband pays child support to the wife and at trial was paying $135 per month based on his earnings of approximately $400 net per week.

The property dispute

The property dispute is of relatively limited scope: at trial there were funds of approximately $65,000 held in an interest bearing trust account representing the balance of proceeds of sale of the parties’ former home after a payment to each of them of $40,000. Each has superannuation with an agreed value of approximately $60,000 and neither sought a splitting or flagging order, nor was I asked to do more than take their respective superannuation entitlements into account in my overall consideration of property matters. There has been a consensual distribution of chattels and neither party sought any financial adjustment arising out of that distribution. There were agreed valuations for motor vehicles and other items. There is one chattel, a marine painting by K with an agreed value of $350, that both would like to keep, and that is something that I must determine.

Both husband and wife approached the property division on the basis that superannuation and chattels (except the painting) should remain with the parties, undisturbed by my orders, and that the proceeds of sale of the home should be divided according to percentages that varied according to the number of nights that the child was spending with each parent and other relevant matters under s 75(2). The wife sought to add back to the funds available for distribution certain funds expended or not accounted for by the husband. The husband did not agree and submitted that to do so would muddy the waters and referred to the disparity in the legal costs incurred by each party.

Short history of relevant property and accommodation

Shortly before marriage, the parties purchased 600 Telstra shares in joint names. Save for these the parties owned very little: the wife had some savings and a motor vehicle subject to a significant debt. The husband had a HECS debt of $9,840.

In mid 2001 the parties were able to combine a number of benefits and allowances that they were entitled to as a result of their armed forces service and purchase a block of land at S. Borrowing on the security of this land in 2002, they were able to erect a home on the land and this became the matrimonial home.

Following separation, the home was sold and the sale settled in April 2006. The net proceeds were in the order of $145,000 of which $65,000 remains after interim distributions of $40,000 to each of the parties, made by consent in May 2006.

Since separation, the wife has lived in rental accommodation in the south eastern area. The husband boarded with his parents for about one year after separation and has lived in rental accommodation since late 2005. Since July 2006 he has lived in a two-bedroom unit in L, about 10 minutes by car from the wife’s place of residence.

The following figures were agreed for non-superannuation assets:

Non-superannuation assets Agreed Value

Net proceeds of FMH $145,000 (rounded up)
[Each party has received $40,000 from the proceeds of sale of the former matrimonial home and approximately $65,000 with interest accruing is left for distribution]

Wife’s car $15,375

Husband’s car $5,650

“K” painting $350

600 Telstra shares – joint names     E$2,200
  $88,575 (excluding interim distributions) or
  TOTAL  $168,575 (including interim distributions)

List of Affidavits relied on
Husband

The husband’s affidavit filed 31 May 2006;
The husband’s financial statement (form 13) filed 31 May 2006
The affidavit of the husband’s mother filed 31 May 2006;
The affidavit of Ms T filed 31 May 2006.

Only the husband was required for cross-examination.

WIFE

The wife’s affidavit filed 30 May 2006;
The affidavit of Dr H sworn 28 June 2006.
The wife’s financial statement (form 13) filed 30 May 2006.

The wife was required for cross-examination and Dr H gave some oral evidence and his notes were tendered.

INDEPENDENT CHILDREN’S LAWYER

The affidavit of Ms S filed 23 June 2005;
The affidavit of Ms S filed 29 May 2006.

Ms S also gave oral evidence.

The law to be applied – parenting orders

The hearing in this case followed soon after the commencement, on 1 July 2006, of significant amendments to the Family Law Act 1975 (“the Act”) which effected many changes to Part VII – Children - of the Act. Before me, counsel were mindful of these changes and framed their submissions around them.

In the period during which this judgment has been reserved, the Full Court of this Court has published its judgment in the case of Goode v Goode (2006) FLC 93-286.

The appeal in Goode arose out of a judgment in which interim parenting orders were made by the trial judge. The Full Court’s discussion and analysis of the legislation is, in most respects, equally applicable to decisions made at trial, and I consider that it will be helpful to set out pars 5 to 13 of that judgment, in which much of the relevant legislation is set out:

THE APPLICABLE LAW
5.The Family Law Amendment (Shared Parental Responsibility) Act 2006 ("the amending Act") came into effect on 1 July 2006 and was the law that governed his Honour's decision. The amending Act builds upon the framework of the legislation as it was prior to 1 July 2006. Part VII of the Act applies to children. There are 16 Divisions to Part VII. The significant sections for present purposes follow.
6.Orders concerning parental responsibility, who the child is to live with and spend time with, and the communication a child is to have with another person or other persons are all parenting orders. Section 64B(2) provides that a parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;

(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child - the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;

(f) maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii)the parties to the proceedings in which the order is made;

(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Section 64B(3) provides:
Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
7.The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.

8.Section 60CA deals with the best interests of the child and provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
This provision of the legislation was formerly s 65E and the wording of the section has not changed.
9.In determining what is in a child's best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child's best interests:

Primary considerations
(2) 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.

Note:
Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations
(3) Additional considerations are:
(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;

(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);

(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;
(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;

(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;

(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;

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

(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;
(m)any other fact or circumstance that the court thinks is relevant.

Section 60CC(4) provides:
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.

Section 60CC(4A) provides:
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.

10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration (as they did prior to the amending Act - see
B v B: Family Law Reform Act 1995 (1997) FLC ¶ 92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
THE FRAMEWORK FOR DETERMINING PARENTING ORDERS
11. Section 61DA (which is a new section) provides:
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

Note:
The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

12. Section 61DB provides that:
Application of presumption of equal shared parental responsibility after interim parenting order made
If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.
13.The relevance of the presumption of shared parental responsibility, where it applies, is that it triggers the application of s 65DAA, which provides:
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1:
The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:
See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) If:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1:
The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:
See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and

(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and

(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.

Note 1:
Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)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 (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (paragraph 60CC(3)(i)).

Note 2:
Paragraph (c) reference to future capacity - the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

The law to be applied – property orders

79(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them - altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage - altering the interests of the bankruptcy trustee in the vested bankruptcy property;

including:
(c)an order for a settlement of property in substitution for any interest in the property; and

(d)      an order requiring:
(i)       either or both of the parties to the marriage; or
(ii)      the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account-
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in sub-section 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

75(2) The matters to be so taken into account are -
(a) the age and state of health of each of the parties;
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person;
(f)subject to subsection (3)the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;

(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party's role as a parent;
(m)if either party is cohabiting with another person  the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p) the terms of any financial agreement that is binding on the parties.

The proper approach to the application of s 79 in property disputes has been identified by the Full Court in Hickey and Hickey and Attorney-General for the Commonwealth Of Australia (Intervener) (2003) FLC 93-143 in par 39:

39.The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter- related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), (``the other factors'') including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.

Ms S and her reports

Ms S prepared two reports in this matter. The first report is dated 3 June 2005. The second is dated 25 May 2006.

Ms S reports that there remains a high level of conflict between the parents. The wife perceives the husband as trying to control her and the husband perceives the wife as being non-communicative and trying to push him out of the child’s life. The wife believes the husband is excessive with religion with the child, the husband rejects this.

The wife told Ms S that since the current contact arrangements commenced contact had worked well for the child who seemed a lot more settled.

From Ms S’s observations the child has a warm and close relationship with both parents. She described positive interactions and physical affection between the child and each parent. She observed that the child showed no anxiety when leaving one parent to go to the other and said “I do not believe [the child] would suffer any undue effects at being separated from either [parent] providing the separation was no longer than a week. Children of [the child’s] age should be able to sustain a separation of a week or so providing they are in the care of a person they have a significant relationship with.”

Ms S’s concern was that although both parents have the capacity to meet the child’s intellectual needs as well as emotional needs, if they continued their ongoing disputes resulting in a high level of conflict then the child’s emotional well-being would remain in jeopardy. She went on to say that in her view the child is still too young to face a change of residence (which the husband sought initially).

She recommended that the parties share the responsibilities of the long term care welfare and development of the child and that the child live with the husband in the first week from Friday 2.00pm to Tuesday 2.00pm and in the alternate week on Monday from 4.00pm to 7.00pm and from Thursday 2.00pm to Saturday 10.00am. This would be 6 out of 14 nights with the husband and was the approach adopted by the independent children’s lawyer. I note at this pint that this approach would have give the husband a block of four consecutive nights, but only three at any one time to the wife.

She further recommended that the husband and wife attend the “Stand By Me” Program at G Contact Centre. The husband completed the 8 week “Stand By Me” Program in August 2006. The wife had commenced a Post Parenting Separation Course at W in August 2006.

Cross-examination of Ms S
Independent Children’s Lawyer

Ms S agreed that the child had only spent one period of five nights with the husband. The Independent Children’s Lawyer asked Ms S why it was in the child’s best interests to spend Saturday, Sunday and Monday with the husband, which she recommended, when under the current orders there is only one day when the child did not see his mother. Ms S responded that the child had already spent 5 days (Easter 2006) away from the wife and with the husband and that was OK for the child. Ms S said that the 3 full days (Saturday, Sunday and Monday) with the husband could start immediately given that the child managed the one 5 day period. She went on to say that the hours could be extended so that the child spend the full day with the husband on either the Friday or the Monday of her recommendation.

The Independent Children’s Lawyer later put to Ms S that the husband had indicated that he could be flexible with his working hours and has set Fridays aside. Ms S said it would be helpful to look at the husband’s work hours but that it is healthy for children to see the normal routines of their parents and be part of them.

The Independent Children’s Lawyer asked Ms S to comment on the proposal that the alternate weekend time with the husband finish on the Monday at 10.00am and not the Tuesday as the wife had said that 10.00am on Monday would suit her and that she was happy with that. This was on Ms S’s proposal that had this alternate weekend time start at 6.00pm on the Thursday. Ms S said that it would not make a great deal of difference to the child as long as the child had fairly regular, substantial times with each parent.

Ms S finished her evidence saying that she believed the child would manage 6 nights with the husband and would benefit from it but said that 5 or 6 nights with the husband would be fine with an increase in time in the future.

Wife

Counsel for the wife took Ms S to her first report filed 23 June 2005 at par 37 where she talks about young children being adversely affected if they have separations from their primary carer before they have a secure relationship with that carer as well as having a significant relationship with the person they are being left with. Ms S said that this was the case when the child was 2 years old and that the definition of “young” was up to 3 years of age.

Ms S said that a movement to a 7 day alternating block was too drastic. She said that the child was used to seeing his parents every few days and it would be drastic for that to be changed.

Mr Williams then referred to par 39 of Ms S’s first report where Ms S sets out a number of issues/concerns:
·    the high level of conflict between the parties;
·    wife’s allegations about the husband’s religious beliefs and practices – she believes he has become fanatical – and she does not want the child to be influenced;
·    the husband alleges that the wife may be suffering a mental illness and this will affect her parenting and she may continue to restrict his contact to the child.

Mr Williams put to Ms S that the subpoenaed documents showed that the wife had not suffered from post natal depression nor had any mental health problems and that this would provide comfort to her. Ms S agreed.

Mr Williams referred to par 41 of her first report where Ms S recommended that the child live with the wife “as she has been his primary carer and it may be unsettling, disruptive and damaging to his emotional development for his primary carer to change at this age” and asked whether she would extend her reasoning to cover the child as an infant. Ms S answered that when she did her first report the child was 2 years old and was just starting to move between the parties. In the 12 months between the two reports the child had moved to see more of the husband and there was now a significant and secure relationship.

Mr Williams then referred to par 2 of Ms S’s second report where the husband states “if he is not successful in obtaining residence of [the child], then he will request more contact with [him] for at least two nights one week and three nights in the alternate week”. It was put to Ms S that this is in fact what the wife is proposing: each alternate weekend 10.00am Friday to 10.00am Monday, in the first week 5.00pm Tuesday to 10.00am Wednesday and in the second week 5.00pm Thursday to 10.00am Friday. Ms S said that this would be acceptable with more day time. Mr Williams responded to that by saying that the wife now proposed to add more day time and extend the time in the second week to 5.00pm Friday, which took account of the husband not working on Fridays. He wife proposed that this increase take place in 3 to 4 months time and the status quo remain until then. The wife was also offering block periods over the Christmas holiday period. Ms S was supportive of the increase but added that she would increase the times on Tuesday and Thursday if the husband was available and even if the husband was working he husband could arrange for someone else to look after the child because it was important for parents to take responsibility for their child even when working. She therefore suggested 2.00pm Tuesday to 2.00pm Wednesday one week and from 2.00pm Thursday to 5.00pm Friday the following week.

It was pointed out to Ms S that her proposal in her second report intruded on the wife’s weekend with the child. Her proposal was for the child to spend 2.00pm Friday to Tuesday 2.00pm in one week and then from 4.00pm to 7.00pm Monday and from Thursday 2.00pm to 10.00am Saturday – 6 nights.

Ms S agreed with Mr Williams that if the time the child spent with each parent impinged on either party’s capacity to provide financial support for the child then this would have to be taken into account.

Husband

Mr Sweeney put to Ms S that if she considered that 7 days would be too long for the child to be away from each parent then there were other ways of achieving an equal involvement of both parents with the child. He suggested that over a fortnight period, the child could spend 4 nights with one parent and 3 nights with the other parent and the reverse the following week and that way the longest the child was away from either parent was 4 days. Ms S answered that at this stage she would not be looking to increase the husband’s time to this extent.

Counsel for the husband referred to par 41 of Ms S’s first report (June 2005) where she recommended that overnight contact commence and be increased to 2 overnights in about 5 months and asked Ms S if she was surprised that the wife had not by November 2005 implemented that recommendation and it had only come about by court order. Ms S said that she was not surprised given the conflict between the parents and the slack of communication. Mr Sweeney continued and asked if it was not concerning that the wife had not taken her recommendations on board sooner. Ms S said that one can not blame the wife alone, the blame should go to their lack of communication and conflict.

Wife’s Mental Health

It was the wife’s case that one of the methods employed by the husband to control her is to make false assertions, to her and to others, that she is mentally unstable and that she suffered from post natal depression and that these conditions adversely affect her parenting capacity. This appears in pars 12 and 14 of her affidavit where the wife states:

12. …[My husband] constantly told me I was sick and that I was suffering form post-natal depression (PND). [My husband] told me on a daily basis and he also told me I was mentally unstable.
14.That due to the situation with [my husband’s] continual references to me being sick and telling his family that I had post-natal depression (PND) I was starting to feel very isolated. [My husband] also told all of our mutual friends and they began to treat me differently. …

The husband maintained this view up until the time of the first report by Ms S. In Ms S’s first report filed 23 June 2005 in par 21 Ms S reports:

… He does not believe [the wife] is well, whether it is that she suffers with post-natal depression or some other mental illness. …

Nearly a year later, the husband maintained this criticism of the wife. In par 28 of his affidavit of evidence in chief sworn 31 May 2006, the husband states:

I am concerned given the wife’s troubled family background, the history of an attempted suicide in 2000 and her need for subsequent counselling that she is emotionally fragile.

Exhibit W2 is Dr H’s patient notes for the wife for the period 2 April 2004 to 4 September 2006. Dr H’s note of the wife’s attendance on 2 April 2004 is significant in that it sets out the wife’s perceptions of the husband’s attitude to her at the time.

History:
Presents with son, [the child] -see his notes. He looks OK, likely a pretence for her to speak to me. Describes problems in her marriage with a husband, a medic in the [armed forces], accusing her of having PND + being an unsuitable Mum. She denies any depressive features + implies emotional abuse on his part. Describes him as a born again Christian with odd ideas. Alleges he constantly yells at her, telling her she’s evil + possessed by the devil. Says he’s hidden her passport for fear she’ll abscond with their son. Says he + his family have always been “paranoid” + that he meets regularly with his family to talk about her behind his back. States that many of their mutual friends also tell her she had PND + needs medication. She feels they have been influenced by her hubby, and that she has no friends to confide in herself. No family supports locally – mum in Europe, no dad, siblings interstate. Closest confidente is aunt in Tassie who encourages her to stay with her.
Says she has to hide things from hubby, eg this visit here, as he’s controlling and suspicious. She accuses him of not coping with son, often yelling when he cries. Denies any symptoms of depression herself. States he refuses to let her take him to the doctor, as a medic preferring to treat [the child] himself.
PHx panic attack 3 years ago while she herself was in [the armed forces]. says that he holds this over her + says that if she ever tried to leave that he would apply for full custody + state she is an unfit mum due to “psychiatric problems” she denies any PHx other stress probs. No PHx anti-depressants or drug use.
Examination:

Presnts as lucid, not anxious nor depressed. Appears to be a compitnet [sic] Mum.
Reason for visit:
Stress
Management:
Reassured will not lose custody of son; despite hubby’s alleged threats
Given a list of refuges + women’s support groups if needed. Will contact Good Shepherd foundation today rev next week, sooner prn

The wife’s attempted suicide in 2000

In pars 52 to 54 the husband sets out his version of an incident involving the wife while she was in the armed forces:

52.The wife attempted suicide in 2000. At the time she was working at an armed forces location in New South Wales and had to go to a designated area to apply her training. She did not get on well with a female senior sailor in this area and said that she could not cope with the small room she had to live in. She made many slashing cuts to her wrist and was found crying and upset. She told me that she wanted to end her life and that the attempt was serious. She was Medivacced to a Sydney armed forces Hospital and saw a psychiatrist for a number of sessions. She told me that she was diagnosed as having a ‘situational reaction’.

53.Her subpoenaed armed forces medical records, which I have seen previously, indicate that she needed significant support and that her suicide attempt was considered to be serious. She informed the treating psychiatrist that she did intend to kill herself .
54.Following this she was psychologically assessed by the armed forces and it was agreed that she could remain there if she became a medic. She agreed.

The wife did not make any reference to this episode in her affidavit, and counsel for the husband cross-examined her about this incident. The wife agreed that the psychologist’s notes were consistent with what she told the doctors treating her following the event but maintained that it was not a suicide attempt and that she did not tell them that she intended to kill herself and she did not intend to kill herself. It was put to her that she was desperate to get off that particular ship – the wife said that she asked to be taken away from that location as she was unhappy with her job.

The parties had been married for two years when the incident occurred. In cross-examination the husband said he was concerned for the wife at this time. After the incident the wife went back to work in the armed forces and the husband agreed she did her job but he did not agree there were no complaints (against her) when she left the armed forces. The wife’s evidence was that she received good references when she left. The fact that she has subsequently been accepted into the armed forces Reserve tends to confirm this.

The husband said he believed the wife was unstable and mentally unwell at the time she went to Tasmania. He believed she was suffering from post natal depression. Counsel for the wife put a number of paragraphs to the husband from his affidavit sworn 18 October 2004 – pars 13, 21, 35, 43, 50, 62 – where he makes references to his belief about her mental health and that she is suffering from post natal depression. These paragraphs confirm that the wife’s description of the husband’s attitude towards her described in Dr H’s notes were views that he held, and that he was indeed prepared to use them to attempt to gain the parenting orders that he then sought.

Dr H, in his affidavit filed 28 June 2006 at par 8, states:

That in my 14 months of dealing with [the wife] she had presented as a caring mum. [The child] did not appear to suffer from any form of neglect or abuse. Apart from the stress of her acrimonious separation, she never displayed the slightest evidence of mental illness. [The child] too presents as a happy and healthy child.

Dr H in answer to a question by the independent children’s lawyer said he had never treated the wife for depression or for post natal depression.

I find that the wife suffered an event of severe distress during her service with the armed forces in 2000 and harmed herself as a result, leading to her evacuation from the area to a hospital in Sydney. It may be, as she told the husband at the time (according to him) that it was a “situational reaction”. There is certainly no evidence to suggest that the wife suffered from post natal depression or from any other form of mental illness at any relevant time, including the present.

I find that the husband has been critical of the wife’s mental health in terms that have no foundation in any medical opinion available to him. I further find that he has used these criticisms as a threat against the wife that he would use them against her if they separated to deprive her of the care of their child. The provision of that care was the central focus of the wife’s life from the time of the child’s birth and this finding helps to explain the very defensive and resistant attitude that the wife demonstrated towards the husband’s involvement in the child’s life from an early stage of his life. She was, in my view, determined to show that she could care for her child and to disprove the husband’s view that she was mentally unstable. The consultation with Dr H took place when the child was only nine months old. In this sense, I find that the wife’s assertion that the husband used false allegations of her mental ill-health as a means of controlling her to be made out.

Trip to Holland

The wife and child went to Holland (where her mother lives) on 3 June 2004 and returned home on 10 August 2004.

Paragraph 37 of the husband’s affidavit suggests that the wife wanted to go to Holland by herself and that he had real concerns that she would not return:

37. The wife claims that when [the child] was about 7 months old I withheld [the child’s] passport application in order to blackmail her into moving [the child] into his own room. This was not true. We were not getting on and she wanted to go to Holland to see her mother. I was concerned that she would not return with [the child]. I had legal advice that I should not agree to him having a passport until she gave me security that she would return with him. I told her I wanted to talk about this trip and she refused to discuss the matter. End of story. Eventually I had to trust her and I returned the passport application.

This must be contrasted with par 61 where the husband states that they decided, perhaps in late 2003, it is not clear, that the husband would undertake an advanced medical course from 16 May 2004 to 10 September 2004 and “we agreed that after the course we would go as a family to Holland for a holiday and see the wife’s family”. Paragraph 62 follows:

When I was in Sydney the wife insisted that she go to Holland for fourteen weeks while I was on the course. I was not in favour of this as I would miss seeing the wife and [the child] on the weekends … Ultimately the wife said that she was going whether I like it or not and there was nothing I could do to stop her. She left on 3 June 2004.

The husband states that it was while he was in Sydney on the course that the wife insisted she go to Holland. Exhibit W5, a statement from Flight Centre to the wife shows that the wife booked a flight in January 2004 for herself and the child to depart for Amsterdam in June 2004 and a flight for the husband to depart in September 2004.

In par 64 of his affidavit the husband states: “It was planned that I would join her in Holland. However the [armed forces] would only give me 2 weeks leave. I could not therefore join them and the Wife agreed it would be pointless.” The husband’s affidavit does not say when this decision was made and his evidence on this subject does not sit comfortably together.

In par 7 of her affidavit of evidence in chief sworn 29 May 2006 the wife states:

Before [the husband] started his course we discussed going to Holland at the end of his course with the money I would get in lieu of long service leave. Due to [the husband] being in Sydney so long and me being home alone, it was agreed that I would leave with [the child] and spend some time with my mum in Holland before [the husband] joined us.

In par 7 of her affidavit the wife sets out details of the trip to Holland and its funding. She states that she received a payout of $11,000 (her superannuation contributions) when she left the armed forces in November 2003 and this was earmarked for the trip for all three of them to Holland. The wife said that the tickets and passports would cost $3,000 for each adult (the child’s fare was under $200) and that they had allowed $5,000 spending money. The wife states:

I purchased passports for all three of us and tickets for myself and [the child] and left the remaining $8,000.00 in the bank. Late May 2004, just prior to leaving for Holland, after [the husband] had been in Sydney for two weeks, I went to the bank to withdraw the $5,000.00 spending money as previously agreed. When I went to the bank there was only $3,000.00 left in the account. I asked [the husband] about this and he said that he had taken the money out and that I was not to have it. He initially said he had it in his room in the form of cash. It was not until I got to Holland, after quizzing [the husband] about the money, that he told me he had put it in his parents’ bank account.

The husband answers this allegation in par 64 of his affidavit but he does not state how much money he withdrew and put into his parents’ bank account and what happened to the money thereafter.On the wife’s calculations the husband moved $5,000 [$3,000 for his ticket and $2,000 earmarked as spending money]. He states:

The wife alleges that I took money out of our account so she would not have sufficient money while overseas. This is not the case. She wanted to take all the spending money in traveller’s cheques. I was not confident that this was a safe thing to do. We argued over this and in the end I took some of the money out and put it in my parents account to prevent her taking it. I was concerned that she would not return with [the child] and would take all our savings. I made every provision however for her to have money while she was in Holland.

In cross-examination by counsel for the husband, the wife denied that when she knew she was going to Holland alone she was planning a separation and she stated that it would be a lie if anyone said that she going to Holland to separate. It was put to the wife that she told her doctor (Dr H) in April 2004 that she was only going to stick it out with the marriage for another 5 weeks. The words from doctor’s notes from 7 April 2004 were read to the wife “… her plan is to ‘stick it out’ for another 5/12 until a 4/12 holiday in Holland to visit her Mum.” The wife denied this and said that it definitely did not refer to ending the marriage, it meant stick out the current circumstances, put up with the husband’s abuse. If one reads the rest of the doctor’s notes for that day then the wife’s version does have credence – the words before those quoted above state “gives story of ongoing emotional abuse with hubby controlling + she submitting. Says he talks to their infant child … saying that Mum is evil + incompetent. she says as the male of the house she must submit to her”. The doctor’s notes for the next appointment with the wife dated 31 May 2004 reinforce this view. They state in part “… she leaves with son this week for Holland to stay with Mum. Plan for hubby to meet her in Sept for 1/12. hopes that time away from church + his parents will help them consolidate their relationship. If not unsure of options …”

It was then put to the wife that she knew the husband was concerned about her going to Holland with the child. The wife denied this saying that they planned to go to Holland together but agreed that their marriage was shaky in early 2004 and that there were problems in the marriage when she was planning to go to Holland. It was put to the wife that when it was known that the husband would not be going to Holland, the husband was concerned that the wife had the passports of herself and the child and that she was going with child and he made that clear to her. The wife disagreed and said that it was not until she was in Holland that she found out the husband was not coming to Holland. Paragraph 5 of her affidavit in part deals with the husband and his attitude towards the passports. It states: “… [the husband] really wanted [the child] out of our bedroom and said that unless I complied with what he wanted he would not give me [the child’s] and my passports. It was not until talking with other friends [Mr and Mrs J] who said it was about trust and not about ultimatums involving [the child], that [the husband] gave me the passports back. …” .

In cross-examination of the husband by Mr Williams it was put to him that the wife suggested that the trip to Holland would be good for their relationship - to get away from the Church and his parents. The husband said there was never an agreement for the two of them to go but he agreed that the wife did make the suggestion that there were benefits to going. The husband agreed with the statement the wife made to her doctor about the benefits of the trip. Husband acknowledged that a deposit was paid for the trip when shown Exhibit W5 being the statement from the travel agent and eventually the husband conceded that he was going to go and that he had the money for the trip and that the reason he did not go was that the armed forces would not give him enough leave. The husband said he thought she was going to stay in Holland was because she was not following through in counselling and she wanted to take money. He said he made it known to her then that he was concerned about her going and in his mind she was not coming back, he had concerns.

I find that the husband was prepared to give a false and misleading account of the events leading up to the wife and the child travelling to Holland. I find that by the time the bookings evidenced by exhibit W5 were made the husband had agreed to the wife and the child travelling ahead of him with him following upon completion of his course.

Wife’s travel to Tasmania with the child on 5 October 2004

The wife returned from Holland in August 2004. The husband was still attending his course in Sydney and raised no objection to the wife then taking the child to Tasmania for a week which the wife’s grandmother paid for as a gift. The parties were married in Tasmania and the husband has friends there. The wife has an aunt and uncle in Tasmania.

The husband completed his course and returned to the home in September, and following this, the parties and the child went for a 2 week holiday to Queensland. The wife’s account of this appears in pars 7 and 8 of her affidavit. In short, it began well but ended unhappily, certainly from the wife’s perspective.

It was common ground that the wife travelled to Tasmania on 5 October 2004, and did not return to live in the former matrimonial home until 5 December 2004, following proceedings in the Family Court at Hobart. What gave rise to her sudden departure to Tasmania with the child was the subject of much evidence.

The wife sets out her version of events in par 7 of her affidavit:
On Sunday 3 October 2004 [my husband] was late for bible study and looking for a certain CD. [The child] who was 13 months old joined in playing with the CDs. [My husband] warned him not to touch them but little [child] thought it was a game. [My husband] yelled at [the child] “I said no” and he backhanded [the child] sending him flying into the television. [The child] crumpled to the floor screaming. …
The husband in his affidavit at paragraph 76 states:
On 29 September 2004 I tapped [the child] on the hand as he was turning knobs on the TV and CD player. We had previously agreed to stop him doing this. He knew he was being naughty and I said “no” firmly but calmly and tapped his hand. At that stage when [the child] was told “no” he would throw himself on the floor, roll over and often cry. It was a tantrum and we had agreed to ignore him when he did this. This incident was merely a minor act of discipline. It is this incident that the wife refers to as abuse of [the child].”
In cross-examination the wife agreed that when she went to Tasmania on 5 October 2004 she did not tell the husband but left him a note. It was put to her that she said that the husband hit the child on 3 October. The wife replied that it was the straw that broke the camel’s back, that on 4 October she went to see a lawyer, went to a Women’s Shelter first, booked the flights and fled on 5 October 2004. Counsel for the husband put to the wife that she did not flee at all, it was an elaborate plan, she made the allegation up and the incident she referred to had occurred the week before. He showed the wife her diary where she describes the alleged incident. The wife agreed there was no date above the entry and agreed that the date shown for the previous entry was 29 September and the date shown for the next entry was 30 September. However the wife said that the diary record was not chronological, she had no date for that incident, it was just jotted down, entries were written down in one sitting and even though some of the entries have dates it does not mean that everything occurred on that day – “there are things that happen and I’ve just listed them.”. It was put to the wife that her case was that she fled on 5 October 2004 because of the incident on 3 October 2004 but the incident had occurred on 29 September 2004 and was not as serious as the wife described.

Counsel for the husband also referred to par 42 of the husband’s affidavit which refers to an incident on 28 September 2004 but the wife said that was a different incident.

The wife was questioned extensively about her diary and why some entries had dates and others did not. The wife stated that she did not know why some entries had dates and some did not, and some had headings and some not. The wife said she just jotted things down and she just wrote one day when sitting down. She agreed she had changed some dates. It was put to her that in the entry heading “CD’s” she had changed it by adding the word “(backhands)” in brackets above the word “shoves” – see Exhibit H4. The wife said the husband shoved and backhanded and she denied that she had “spiced up” the entry. The wife denied using the word “shove” first and later adding “backhand”.

The wife was then referred to her doctor’s notes for 30 September 2004 [Exhibit W2] where it states: “says yest [yesterday] her hubby pushed 14/12 son, […],+ made him cry. Says he said “you deserved that” afterwards, as he was playing with Dad’s CDs. [The wife] fearful he’ll get more physically abusive. …. Meets with lawyer in 4/7 to find out her rights re moving to Tassie, where social supports are, without his consent.” The wife could not explain how her doctor was saying the incident took place on 29 September and writing about it on 30 September when the wife’s evidence is that it was 3 October. It was put by the husband that the wife’s affidavit and her evidence was wrong and she was not fleeing to protect her child. The wife said there had been a history of intimidation and she was fearful. The wife agreed that the husband had first smacked the child on the hand and that this was not a problem but that what happened afterwards was (a problem).

The wife said she did not know why the doctor’s notes referred to her seeing lawyer and going to Tasmania without the husband’s consent in late September as her flight was not organised until 4 October and her recall was that she saw solicitors on 4 October 2004. In re-examination the wife conceded that she may have the dates wrong and that her doctor’s version of those events would be right.

Following the wife’s move to Tasmania with the child, the husband visited them on more than one occasion, and during one of these visits, the parties agreed to reconcile and to live in Tasmania. There was much evidence of an evening on a beach where they renewed their commitment to each other. The agreement to live in Tasmania did not last for long, however, and the court proceedings that had by then been commenced in Hobart culminated in the making of a consent order for the wife to return to the former matrimonial home at S, the husband having agreed that he would make the payments on the mortgage.

The short history of the proceedings in Hobart is that on 6 October 2004 the wife filed a form 1 application in the Hobart Registry. On 18 October the husband filed a form 1A response and a form 2. On 19 November 2004 the wife filed a form 2A response. Orders were made by consent on 22 November 2004 whereby the wife agreed to return to the S area with the child and occupy the former matrimonial home and the husband was to have contact by agreement.

I find that the wife overreacted to the “CD” incident in which the husband smacked and pushed [the child]. It was not a sufficient reason for her to flee interstate. Even if her concern for [the child’s] (and perhaps her own) safety were genuine, there were far less dramatic means of obtaining protection. Her visit to Tasmania a month or so earlier, and the family support she has there may well have made it appear a very safe haven from the stresses of the marriage, but the wife did not, in my view, show an appropriate concern for the child’s long term welfare in trying to move and settle in Tasmania, and this reflects adversely on her judgment as a parent.

In the context of the property proceedings, the husband agreed that he had drawn down amounts totalling about $8700 against the mortgage on the house at this time to fund his travel to and from Tasmania, his legal costs of the proceedings in Tasmania, and the repayments on the mortgage. The wife sought to have this sum added back to the pool of non-superannuation assets.

In cross examination, the husband said he changed his mind about staying in Tasmania because the wife did not want to see counsellors and repair the marriage. The wife returned and moved into the former matrimonial home when the husband agreed to pay the mortgage: see paras 42, 43, 45 of husband’s affidavit filed 18 November 2004.

Religion and other issues

Both parents adhere to similar faiths, and have attended the same church at times. I accept the wife’s evidence, however, that the husband’s involvement in and commitment to religious activities is much greater than hers. I also accept her evidence that during [the child’s] infancy, his commitment to tithing and attendance at religious meetings and other activities led her to believe, not unreasonably, that religion took priority over his commitment to his family.

I further accept the wife’s evidence that [the child’s] behaviour, in clasping his hands, closing his eyes, and saying “pray” a number of times per day when with her, is something that he is likely to have learned in the husband’s company and does not reflect the wife’s behaviour as observed by [the child].

The husband gave evidence of his current involvement in religious meetings and other activities and they are extensive. His evidence was that he does not and would not attend these with the same regularity when the child is with him. The background to his present involvement, and the extent of it, is that he is member of the Heaven on Earth Church that he helped to form some 2 years ago which is affiliated with the Assemblies of God.

His present involvement is that he attends a Bible study group on Thursday nights from 7.30pm to 10 to 10.30pm, a prayer night every second Friday from 7.30pm to midnight, every second to third Saturday night is spent witnessing to people in Melbourne city and handing out material and on Sunday night at church from 6.00pm to 9.00pm. The husband said that he takes the child to the P Church, the church which his parents attend, on Sunday mornings when the child is with him but otherwise forgoes attendance at religious meetings and other activities outside the home when the child is with him.

Behaviour at changeovers

In par 17 of her affidavit the wife complains as follows:
… [My husband] has continued to follow me around in his car and has overstepped the boundaries and invaded my personal space by continually standing very close to me in an effort to intimidate me. [He] has also on occasions touched me in an in appropriate manner only to explain his actions by saying that he was “brushing crumbs off my chest” or “getting fluff off my rear end”. [He] also behaves in an in appropriate manner at contact changeovers which is very unsettling for [the child]. Often banging on my window and yelling at [the child] “you love your daddy, you want your daddy, not your mama.”
The husband denied the allegation of inappropriate touching or standing in the wife’s personal space. His evidence was that on one occasion only he had brushed crumbs off the wife’s shoulder. Counsel for the husband submitted that the particular time and circumstance of each incident had not been put to the husband. Notwithstanding the lack of particularity I am satisfied that the wife’s evidence on this issue is the more credible. The husband admitted to at least one incident of touching the wife and was prepared to give false evidence, as I have found, in the context of the trip to Holland.

Parenting issues

The legislation that governs the determination of this case is set out in full earlier in this judgment. I will refer to the sections by number with limited reference to the text in this part of the judgment.

Section 61DB Neither party argued against the application of the presumption of equal shared parental responsibility and both sought orders in terms that gave effect to the presumption. I will make an order giving effect to this in due course. At par 65 of its judgment, the Full Court in Goode set out a summary of the effects of the amendments to Part VII. Pars 5 and 6 of that summary are set out below:

5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of "substantial and significant time" (ss 65DAA(3) and (4)) and as to the meaning of "reasonable practicability" (s 65DAA(5)).”

I will now turn to the primary and additional considerations for ascertaining what is in the child’s best interests, as required by the combined operation of s 60CA and s 60CC.

Primary considerations – s 60CC(2)

Both parties put their cases on the basis that it would benefit the child to have a meaningful relationship with both parents – s 60CC(2)(a) - and I propose to make orders that will give effect to this primary consideration. The need to protect the child from the various forms of harm identified in s 60CC(2)(b) is very important, but to the extent that the evidence in this case shows any need for such protection, the relevant matters are encompassed in my consideration of the additional considerations – s 60CC(3) – that follows.

Additional considerations – s 60CC(3)

My findings in relation to these matters are as follows:

(a)The child is three years of age and has not expressed views that are capable of contributing to the determination of what is in his best interests. To the extent that the child’s views may be discerned from his actions and behaviour, he certainly indicates the need and desire for both his parents to have an ongoing involvement in his life. This was not in dispute, however, and so consideration of the child’s views does not go beyond confirming the approach taken by both parents that he needs both of them on an ongoing basis.

(b)The child’s relationship with each parent (and other relatives) is an important consideration in this case because the child has had different relationships with each of his parents in his life to date. It was common ground that the wife was the person responsible for most aspects of his care welfare and development in the first 14 months of his life that preceded their separation. This role definition was never more clearly marked than during the 5 month period – within the 14 months - when the husband attended a training course in Sydney between May and September 2004. The child’s life therefore commenced in a pattern where the person available to care for him on a daily basis was the wife. The care that she provided was criticised by the husband not for its quality per se, but for the wife’s unwillingness to allow the husband to participate in it. The wife’s case was that the husband during this period was more interested in his religious activities, complained when the child was unsettled and did not take advantage of opportunities to assist with the care of baby. It is clear that the child had formed a close relationship with the husband before separation, but not a relationship of the same nature as that that with the wife, that of the primary provider of care for the child on a day to day basis.

Following separation, the child’s relationship with the wife continued with little change: she remained the primary provider of day to day care. The husband was less involved than previously, although still present in the child’s life to the extent.

Following the December 2005 order, the husband’s time with the child assumed a pattern in which time was spent with the husband on an overnight basis. Since the commencement of that pattern the husband’s relationship with the child has moved to one in which the husband has shown himself capable of providing care for the child in his own accommodation and the child has adjusted to short periods of being separated from his mother. The pattern of his pre-separation life continues, however, in that the wife is still the person providing the much greater input into the child’s care, and one of the husband’s complaints was that the wife does not communicate sufficiently to him about the child’s daily routine, so that he can adopt a routine and pattern of care that is consistent in both households.

The relationship between the child and his parents is hampered by their mutual perception that the other parent is trying to be controlling, particularly in relation to the sharing of the child’s time. The wife perceives the husband as attempting to undermine her well established role as the child’s primary carer by seeking to have the child spend more time with him. The husband perceives the wife as attempting to control his relationship with the child in terms of limiting the time the child spends with him and by being inflexible in relation to changing the child’s times to suit the husband’s other commitments. Having regard to the history of the parties’ relationship, it appears to me that both perceptions have some foundation in fact: the husband told Ms S that he wanted to become the child’s primary carer – and the wife agreed that she had rejected all but 2 of the husband’s thirty or so requests to change the child’s times to suit the husband.

For the purposes of the decision that I must make, however, I find that the relationship of the child with each parent is of sufficient strength, in the case of the husband, to support an increase in the time that the child spends with him, as long as the child’s relationship with his mother, as the person he looks to primarily for care is not undermined to a significant degree. As to the child’s relationships with others, it appears that the husband takes the child to visit his parents on a regular basis. Whilst there were difficulties in the wife’s relationship with the husband’s parents during her pregnancy with the child, and following the child’s birth, at trial the wife conceded that it was in the child’s best interests to have an ongoing relationship with the paternal grandparents and this was not a point of contention. The paternal grandmother was not required for cross examination on her affidavit. The wife has shown an appropriate concern to maintain the child’s relationship with her mother - the maternal grandmother - who resides in the Netherlands.

(c) The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship with the other parent to which this subpar refers is limited, in each of the parents, by their lack of trust of the other. Both showed limitations in their insight into the child’s needs in the relief that each sought as the trial approached, although the husband’s limitations far exceeded those of the wife, in this area.

In the Parenting Case proposals set out in the husband’s Summary of Argument filed shortly before the trial, the first proposal was:

That the child of the marriage [a son] born [in] July 2003 live with the husband for a minimum 9 nights per fortnight and with the wife for a maximum 5 nights per fortnight.

For the child to have been moved from the pattern of care provided by his parents up to that point, including the period before separation, to a situation where he was spending 9 nights per fortnight with his father and only 5 with his mother could not, in my view, have been other than distressing for the child and it showed very limited willingness and ability, of the kind relevant under this sub-section, for the husband to put this forward as his preferred outcome. It certainly was not supported by Ms S.

The wife showed some limitations in her initial approach to the case, in that she sought that for the time being the status quo established by the December 2005 order should continue, followed after a period by a modest increase in the time to be spent with the husband. In my view, the husband’s approach had the potential to cause the child the distress occasioned by a major change to the pattern of his life. Whilst the wife’s approach would have had no such effect, it fell short of demonstrating an ability to encourage a close and continuing relationship with the other parent to the extent that will promote his best interests in the longer term. She has, however, demonstrated the willingness and capacity to facilitate the husband’s relationship with the child in accordance with the December 2005 order and her compliance with that order points to the likelihood that the order that I make will also be complied with by her.

(d)The likely effect of changes in the child’s circumstances (including any separation from a parent) was an area in which the husband placed considerable reliance on the evidence of Ms S. Her evidence was, as set out earlier, to the effect that she observed the child move readily from one parent to the other, and the child had already managed one period of 5 nights with the husband. It followed, in her opinion, that a significant increase to the time that the child now spends with the husband would be manageable for the child.

As to moving between the parents readily, Ms S’s observations have to be seen in the context of other evidence. In his oral evidence in chief, the husband was asked about par 26 of his affidavit of evidence in chief, in which he describes the child as unwilling to separate from him at the conclusion of time spent with him. In response, the husband said that the child has recently resisted moving both ways, that is, has shown reluctance to separate from each parent. In my view, Ms S’s observations of the child moving freely between the parents occurred in a controlled environment, where various factors, not the least of them Ms S’s skill in managing such situations, would have contributed to the child’s ease of transition between the parents. In the context of changeovers between the parents, however, where both parents complained of the other’s hostile and aggressive attitudes, it is no surprise that the child becomes anxious about separating from each parent, when exposed to his parents’ hostility towards each other.

I also take issue with Ms S’s reliance on one period of 5 nights – the longest period that the child has spent away from his mother since birth – as an indicator that all will be well for repeated periods of separation from her. In my view, the one period of 5 nights simply demonstrated that the child could manage this on one occasion. I have no doubt that the child will adapt to similar and longer periods of separation as he grows and matures in his appreciation of life with each parent, but I do not accept that this one period is a sufficient predictor on which to base the kind of change that the husband is seeking, even at the close of his case, when he still sought a greater than half share of the child’s time, as set out earlier in this judgment. Ms S did not agree that the child could cope with a week about sharing of time, and the father’s proposal would see the child spending even less time with his mother than a straight week-about changeover would produce.

I repeat my view expressed earlier, that I consider that the child’s relationships with each of his parents have evolved in ways that are not conducive to the kind of time sharing proposed by the husband, but are strong enough for there to be an increase in the time that he spends with him.

I consider that the evidence of the child’s capacity to spend 5 nights with his father on one occasion can be used to support occasional similar or longer periods, such as some periods of 7 nights at a time during the summer holidays.

(e) The practical difficulty and expense of the child spending time and communicating with each parent were not put forward by either party as a matter that required consideration. They live in relatively close proximity to each other and both have access to transport and can provide the child with suitable accommodation. This ground does not therefore require further consideration and I will mention at this point that the same lack of difficulty with this subparagraph points to the conclusion that for the purposes of s65DA(5)(a), the proximity of the parties’ homes raises no concern in the context of whether it is reasonably practicable to make certain kinds of orders.

(f) My assessment of the parents’ capacities to provide for the child’s needs, including emotional and intellectual and emotional needs, is that each is capable of providing appropriate care, nurture and developmental encouragement in a home environment. But this assessment is subject to the very important rider that both have shown a limited capacity to understand the child’s emotional need for a conflict-free relationship between them that would increase the child’s level of comfort about moving between them. I have already identified the evidence which shows that this was not happening at the time of trial. This shortcoming, common to both parents, indicates to me that changes to the child’s routine and expectations of daily life should be approached conservatively and cautiously.

(g) The maturity of the child and aspects of the child’s lifestyle and background do not call for specific consideration beyond acknowledging that the child, at 3½ lacks the maturity to protect himself from his parents’ shortcomings or to comprehend their differences of approach, for example, to religious matters.

(h) has no application in this case.

(i) The matters relevant to a consideration of the parents’ attitudes to the child and to the responsibilities of parenthood overlap to some extent the findings recorded under other subparagraphs – in particular under (c) and (f), and matters that I will refer to under (m). I will add, under this subparagraph, that I consider that the father’s commitment to tithing, as part of his broader commitment to religion, indicates that his acceptance of the obligation to provide financially for the child is not seen by him as his primary obligation, but rather as a secondary obligation. His complete lack of enquiry about what work might be available to him (other than packing) having regard to his qualifications and work experience, and his failure to be in a position to inform the court about what (if any) additional training might be needed to enable him to work within his qualifications, indicate to me that his attitude to the responsibilities of parenting lacks practical focus. It may be, for example, that if registered as a State nurse, the husband would have access to much higher income levels, and very flexible working hours. Whilst I attach no weight to these possibilities, the father’s failure to investigate them and put any available alternatives to his present working regime before the court shows, in my view, that his case has been focused on achieving primacy as the caring parent (initially), then something closer to equality of time, without any thought for how his proposals for the child might have been funded and facilitated by a proposal that was underpinned by more than a statement that he would fit his part time work around his time with the child, with no evidence to demonstrate that this was a practicable option, either in terms of the availability of such work, or that it would produce sufficient income to support them.

There is no doubt that the wife’s flight to Tasmania in October 2004 showed a desire on the part of the wife to separate in circumstances that would have made it much more difficult for the husband to participate in sharing parental responsibility for the child and being involved in his life on a regular basis. Her consent to contact whilst in Tasmania and her subsequent conduct show that this was not, however, an attempt to exclude the husband from the child’s life , but an ill-judged approach to bringing an unhappy marriage to an end.

(j) Whilst the wife raised issues of inappropriate touching and overbearing conduct by the husband, and I have not found these to be unfounded, I do not consider that there is any issue of family violence that requires further consideration, and there is no order that applies under (k).

(l) Requires consideration of further proceedings, and whether it would be desirable to make an order avoiding these. I do not consider that there is any particular approach that would limit the potential for further disputation between the parties other than to make orders, as I will, that are intended to operate for the foreseeable future, acknowledging that significant changes of circumstance may justify a revisiting of those orders at some stage.

(m) There are other facts and circumstances that I consider relevant that I have identified in this judgment in the course of making findings on particular issues, and I will not repeat them all here. There is one matter that I regard as meriting mention at this stage, and this is the husband’s attitude to the wife’s ex nuptial birth. It is particularly troubling to me that whilst the husband denied having referred to the wife as ‘evil’ because of this aspect of her parentage, he told Ms S, as recorded in par 23 of her first report, that he saw this as a fact that limited the wife’s capacity to be an appropriate parent to the child. I do not accept that this factor limits the wife’s capacity to be an appropriate parent for the child. I do consider, however, that the husband’s belief that it is, and his clear and unshakeable commitment to his religion and its tenets, including tithing, give me significant cause for concern that in the husband’s care, the child may hear or be exposed to statements about his mother that reflect the father’s views as expressed to Ms S. The wife can do nothing to change the circumstances of her conception and birth, nor, do I believe, has the husband the capacity to change his moral condemnation of these immutable facts. This factor strongly reinforces, in my view, the need to approach increases in the time that the child spends with the husband with some caution, ever mindful, however, of the need for the child to have substantial and significant time with him.

Section 60CC(4) and (4A) list require matters to be taken into account that go to the conduct of the parties, including post-separation events, in terms of their willingness to participate in and share the responsibilities of parenthood. My examination of the evidence and the issues raised otherwise shows that in summary, the wife has been reluctant to share the child’s parenting in circumstances where she saw the husband as trying to take over her role, in the context of seeking to become the primary carer through these proceedings.

Conclusion – parenting issues

As I have found, the changes from the child’s present pattern of post-separation parenting need to be approached cautiously with all relevant factors in mind. These include the wife’s primary role to date and his limited experience of more extensive periods of separation from his mother.

The husband’s proposals would produce a dramatic change at this stage, and even the slightly more moderate approach of the ICL leaves the child with a very disjointed pattern of time with his mother. Another finding that leads me to consider that the substantial and significant time that the child spends with the husband should be closer to the lower end of the range of that concept rather than the higher end is that the husband has, and has relatively recently articulated (To Ms S and in his affidavit) a very negative view of the wife as a parent, based on her ex nuptial birth. The husband’s dedication to his religion is clear. His capacity to control expressions of the view he has of the wife based on those convictions is not established to my satisfaction. There is therefore good cause, in my view for limiting, within reason, the child’s exposure to opportunities to be exposed to those views.

I have also found that the husband failed to establish his capacity to implement his proposals in terms of earnings that he may well be able to obtain. In short, he had grand plans but no feasibility study to support them, just optimism and self confidence. These are not sufficient in my view, to found a very substantial change to the pattern of the child’s life such as that proposed by the husband.

Ms S’s evidence was that 5 or 6 days with the husband would be appropriate as long as it included day time periods during the week as well as weekend time. On the wife’s amended proposal, the husband would have the whole of the day each Friday, which happens to be the day on which he does not presently work. That proposal, in my view has the benefits that Ms S wanted to see put in place, and fits within the only work pattern that the husband put before the court, his existing pattern.

In the light of my findings on the evidence, the conclusion that I have reached having regard to the objects and principles of Part VII, the objectives to be considered once equal joint parental responsibility applies, and the primary and secondary matters to be considered, is that the child’s best interests will be advanced by an order that involves him spending time with the husband as follows:
From 10.00am on Friday to 10.00am Monday each alternate week but if the Monday is a public holiday then the time is extended to 5.00pm on Monday; from 5.00pm Tuesday to 10.00am Wednesday in the week in which the husband has time with the child from Friday to Monday and in each alternate week from 5.00pm Thursday to 5.00pm Friday.

I am satisfied that this regime, together with the additional times that were broadly agreed by the parties, amounts to substantial and significant time within the meaning of s 65DAA(3): it includes day time and overnight stays and opportunities for the father to share in the range of activities in which the child engages and will engage in the future. The holiday and special occasion time that was largely the subject of agreement between the parties will ensure that the father had the opportunity to share in important events in the child’s life and in the father’s.

In my view, this regime also gives the wife a reasonable amount of weekend time with the child, a feature that I find received insufficient consideration in the proposals of the husband and the independent children’s lawyer, and will become even more significant when the child commences school. It includes holiday time with the child and I will, as Mr Williams urged, also order similar periods during holidays when the child can be with the wife until the child commences school.

I do not propose to make orders that increase the time to be spent over time. Had I been inclined to do this, I would have started with a smaller incremental increase and then increased it to the amount of my order at a later time. I cautiously accept, however, Ms S’s evidence that the child will be able to accommodate increases in the time to be spent with the husband and I believe that making an order now that provides the husband with significant and substantial time provides a framework within which the child can make his transition through pre-school to school in the next 2-3 years without the need for the parties to return to court.

That should not be interpreted as an indication that a further change might be appropriate once the child has settled into school. I do not believe that these parents have shown a real capacity to parent co-operatively in the long term and I anticipate that any scope for change in the future that my order might contemplate would simply become another source of conflict and disagreement. This is a factor of the personalities of both parents as they appeared before me, and whilst there had been modest reductions in their levels of hostility and inability to communicate, these did not, in my view, point to the prospect of a significant change in their attitudes.

Property issues

I have set out parts of section 79 and the Full Court’s guidelines for the four step approach to determining these issues in my summary of the law to be applied.

Identifying and valuing the property

A table of the agreed non-superannuation assets is set out in par 31 of this judgment. Superannuation was treated by the parties as a separate pool, in which the parties’ entitlements were to be treated as approximately equal, at $60,000 each, and I take no issue with that approach.

Sums to be added back
$8,700 withdrawn by husband from the mortgage account

In his affidavit (par 312), the husband states that he used the money ($8,700) drawn down by him soon after separation to pay his legal costs, his costs of travel to Tasmania to see the child, and to pay the mortgage after separation. Mr Sweeney submitted that there should be no adding back of any of this amount to the pool having regard to the purposes for which it was applied.

He also argued that the wife had spend $5-6,000 on her trip with the child to Holland, and that this should be treated as a set-off against the funds withdrawn by the husband later in that year.

As I have found, the trip by the wife and the child to Holland was part of a planned visit to which the husband agreed and which he intended to undertake himself. When his plans changed, the evidence is that of the funds remaining in the relevant account when the wife left, some $2,000 had not been accounted for by the husband (even at trial) being part of the funds that he transferred into his parents’ bank account. The funds that were earmarked for that trip were funds received by the wife on leaving the armed forces. They were accumulated during the marriage, however, and should therefore be regarded as joint funds in the usual way. I do not consider it appropriate to now treat the expenditure on that trip by the wife as if it was a unilateral disposition on her part that now calls for treatment as if it was a preliminary disposition of funds in her favour. The journey was for genuine family purposes and was consented to by the husband. I do not consider that there is any basis for treating that expenditure as setting off the husband’s withdrawal of funds. The application of the $2000 that the husband did not account for out of the travel monies was not explained by him, however, and in my view, this should be added back to the pool of assets available for distribution.

As to the $8,700, I was not given a breakdown of the various components of this expenditure. I accept that it was appropriate for the husband to travel to Tasmania to defend the wife’s proceedings arising from the wife’s actions in going there with the child without notice to the husband. I accept that it was appropriate, in the circumstances, for the husband to use these monies to travel to Tasmania to visit the child. The payments of the mortgage are in a different category, however. The husband’s promise to pay these was said by him to be the reason (or at least one reason) why the wife agreed to return with the child to live in Victoria, and he now seeks to have those payments deducted, in effect, from the property pool. I do not have amounts that enable me to apportion these payments with any accuracy at all, but I propose to add back $3000 out of the $8,700 on account of this factor, and together with the $2000 removed from the travel fund and not accounted for by the husband, this produces a sum a $5,000 to be added back to the asset pool.

The husband submitted that the $40,000 each received should not be added back into the pool as this would “muddy the waters” with respect to the disparity in their costs. The evidence about their costs was set out in exhibits W1 and H1.

Mr Williams submitted that the only way to achieve a just and fair percentage distribution of the proceeds of sale of the home was to add back the $40,000 that each had received by consent in a preliminary distribution of funds.

The disparity in the parties’ legal costs is not a basis, in my view, for not adding back the amounts totalling $80,000 that they have received from the proceeds of sale. To fail to add them back would be a departure from established principle and I accept Mr Williams’ submission that they should be brought back into the reckoning.

The husband asserted, in his outline of case document that he should be regarded as having contributed 60% to the parties non-superannuation property. In part this was because he received a benefit of $20,000 from service in the Gulf War. This was during the marriage and does not, in my view, call for different treatment from the accumulations of other income and benefits by them. The husband also asserted that work performed by his family had added value to the home, but there was no proper evidence on which I could find this to be the case.

My assessment is that the parties’ contributions in their various roles throughout the marriage and from separation to trial should be seen as equal, and I so find, given that the wife’s care of the child was ongoing and enabled the husband to continue earning.

Section 75(2) factors

The husband submitted that there should not be a large s 75(2) adjustment and the wife should receive 55% and the husband 45%.

The wife sought an overall division of 65% in her favour.

Both parties have debts, including debts for legal costs (see exhibits H1 and W1), and the husband’s debts overall appear to be considerably greater than the wife’s. I have taken these into account in a general way.

That leaves, in my view, two bases on which some adjustment in favour of the wife is appropriate.

The first is that she will have the responsibility for the child’s care for the greater part of the time – he will spend 5 nights with the husband per fortnight and 9 with the wife. The second reason is that the husband has, I find, a greater range of qualifications than the wife from which he could reasonably expect to earn more than he is earning at present.

In the context of s 75(2) I also take into account that both parties will retain a modest level of provision for their future security in the form of their superannuation entitlements.

Taking these matters into account I consider that an overall adjustment of 10% in the wife’s favour is appropriate, leading to a division of the non superannuation assets 60:40 in the wife’s favour.

The marine painting by K

The wife said she should get the painting because she chose it, the husband did not want it and it had taken her some time to persuade the husband to buy it.

The husband did not agree with the wife’s version that she was the first to come across the painting. He said they were walking together and found it in the markets at Y. When put to him in cross-examination that the wife had given the name of the gallery where the painting was purchased in evidence the day before, the husband said that they both went into that gallery – he said he did not have to be talked into purchasing and he denied telling friends that he did not like it. They both liked it. It cost $1200-$1500. The husband accepted that the current value is $350. He stated that he likes the painting as much as she does – it is painting of a ship in their area of the M.

I found the wife’s description of the purchase of the painting from a gallery, with which the husband later agreed, lends credence to her version of events in regard to the purchase of this item. I accept her evidence that she was attracted to the painting and whilst I also accept that the husband now likes it very much also, I consider that the wife should be entitled to retain the item to which she was so attracted initially, and which she persuaded the husband to buy as a joint purchase.

The calculations to give effect to my distribution of the non-superannuation assets are as follows:

Assets $173,575

60% = $104,145

40% = $69,430

Wife to receive: $104,145

Made up of:

Car $15,375

Painting $ 350

300 Telstra shares $1,100

Wife has already received $40,000

Sub-total $56,825

Plus share of proceeds $47,320

Wife’s total: $104,145

Husband to receive: $69,430

Made up of:

Car $5,650

300 Telstra shares $1,100

Husband has already received $40,000

Money added back $5,000

Sub-total $51,750

Plus share of proceeds $17,680

Husband’s total: $69,430

I have divided the Telstra shares equally between the parties: they were a joint investment and any variation in their value since trial should impact equally on the parties.

In all the circumstances, having regard to the effect of my orders as set out above, I consider that this distribution of property represents an outcome that is just and equitable in all the circumstances, and I will therefore make orders that give effect to it.

The orders are set out at the commencement of the judgment.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Watt delivered this day will for all publication and reporting purposes be referred to as PARKER & PARKER

I certify that the preceding one hundred and sixty six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate:

Date: 19 March 2007

[2007] FamCA 216

19 March 2007

Key Legal Topics

Areas of Law

Family Law

Property Law