PAVEL & PAVEL

FAMILY COURT OF AUSTRALIA

PAVEL & PAVEL

[2011] FamCA 1066

FAMILY LAW – CHILDREN –Family violence – Where the children have been subjected to psychological harm arising from the parental conflict and are at risk of future psychological harm – Where the parents have demonstrated little capacity to facilitate and encourage a relationship between the children and the other parent – Where the mother’s proposal would require a change in current schooling and counselling for the children – Where the children have expressed a clear preference to live mainly with the mother – Where access to the children’s Aboriginal culture and heritage would enrich their lives – Where the conflict between the parties is such that it is agreed that the parent with whom the children live for the preponderance of time will have sole parental responsibility.
FAMILY LAW – EVIDENCE – Where a witness was initially retained as an adversarial witness and subsequently became the treating practitioner of the mother – Whether excluding evidence would be potentially unfair to the mother – Evidence admitted as that of a treating practitioner – Weight to be attached to such evidence.
FAMILY LAW – PROPERTY SETTLEMENT –Assets and Liabilities – Where the parties have spent a large and disproportionate amount of their wealth on legal fees – Contributions – Where both parties made significant contribution – Adjustments – Where it is agreed between the parties that an adjustment of 10% should be made in favour of the party with whom the children primarily live – Just and equitable.

Family Law Act 1975 (Cth) Part VII and Part VIII ss 60CA, 60CC, 61B, 61C, 61DA, 65DA, 65DAA, 65DAC, 75(2), 79.
Evidence Act 1995 (Cth) s 140.

In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
Donnell and Dovey (2010) FLC 93-428; (2010) 42 Fam LR 559; 237 FLR 53
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Rhoden v Wingate [2002] NSWCA 165
ASIC v Rich [2005] NSWCA 152
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
Li v The Queen [2003] NSWCCA 290
Hort & Verran (2009) FLC 93-418
Browne v Dunn (1983) 6 R 67
McCall & Clark (2009) FLC 93-405
Mazorski & Albright (2007) 37 Fam LR 518
G & C [2006] FamCA 994
Champness & Hanson (2009) FLC 93-407
Leighton & Carey [2010] FamCAFC 94
B and B (1988) FLC 91-957
M v M (1988) 166 CLR 69
TWN & PAQ (2005) FLC 93-230; (2005) 34 Fam LR 190
Kennon & Kennon (1997) FLC 92-757; 22 Fam LR 1
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Pierce (1998) 24 Fam LR 377

APPLICANT:

Ms Pavel

RESPONDENT:

Mr Pavel

FILE NUMBER:

PAC

1684

2008

DATE DELIVERED:

14 October 2011

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Justice Loughnan

PLACE HEARD: Parramatta

HEARING DATES:

12, 13, 14, 15, 16, 20, 21, 22 & 23 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT MOTHER	Mr A Todd
SOLICITOR FOR THE APPLICANT:	Condon Legal Pty Ltd

COUNSEL FOR THE RESPONDENT FATHER:	Mr J Heazlewood
SOLICITOR FOR THE RESPONDENT:	Michael Jokovic & Associates
ADVOCATE FOR THE CHILDREN:	Ms K Shea NSW Legal Aid

Orders

Parenting

All previous parenting orders in relation to the children, P PAVEL, born … May 2001, and N PAVEL, born … September 2002 ("the children") are discharged.
The children shall live with father conditional upon the father’s compliance with Orders 18 and 19 below.
The father shall have sole parental responsibility for the children subject to Orders 4 and 5 below.
That prior to making any decision in relation to a major long term issue concerning either of the children, the father shall:
(a)Notify the mother in writing of his proposal;
(b)Invite the mother’s input within a reasonable timeframe, and
(c)Take into account any response from the mother (provided such response is received within the nominated timeframe).
The mother shall have sole parental responsibility for decisions in relation to the development of the children's understanding of and connection to their Aboriginal heritage provided that such decisions do not create obligations on the father without his prior consent.
The children shall spend time with mother as follows:
(a)During school terms – on each alternate weekend from after school on Friday until before school on Monday (or Tuesday if it is a long weekend) commencing on the first weekend of each school term.
(b)During school holidays:
(i)For the first half of the Term 1, 2 and 3 school holidays in each year.
(ii)For the first half of the Term 4 school holidays in odd numbered years and the second half in even numbered years.
(c)From 9 am on Mother’s Day until the commencement of school the following day in the event that Mother's Day does not fall on a weekend that the children are otherwise with the mother.
(d)At other times as agreed between the parents.
For the purposes of Order 6(b):
(a)The first day of the school holiday period is the last day of the school term.
(b)The last day of the school holiday period is the day before the first day that the children are required to return to school.
(c)If the total number of days in the school holiday period is an even number then changeover will occur at 5.00 pm on the last day of the first half.
(d)If the total number of days in the school holiday period is an odd number then changeover will occur at 12 noon on the middle day.
Notwithstanding any other Order, in the event that Father's Day falls on a weekend when the children are with the mother, then the mother shall return the children to the father at 9 am on Father's Day.
Changeover shall occur at school on school days and otherwise at X Contact Service, and if X Contact Service is not available, then at … Mc Donald’s Restaurant, unless otherwise agreed in writing between the parents.
For the purposes of collecting or dropping the children, or H, at R Public School, the father (and/or his agent, including Ms B) shall utilise the school entrance on the western side of the school near the tennis court and Community Centre only, and the mother (and/or her agent, including Mr F) shall utilise the main entrance gate in front of the School Office only.
Each party shall facilitate telephone communication between the children and the mother each Wednesday between the hours of 5 pm and 6 pm as follows:
(a)The mother shall provide the children with a mobile telephone to be used for the purposes of this Order.
(b)The mother shall pay any costs associated with the mobile telephone.
(c)The mother shall call the children on the mobile telephone.
(d)The father shall ensure that the mobile telephone is fully charged, switched on and available to the children at the relevant time.
(e)The father shall ensure that the mobile telephone is not used by the children (or any other person) for any purpose other than this Order without the mother's prior consent.
The father shall forthwith do all acts and things necessary to authorise R Public School (and any other school which either of the children attend in the future) to provide directly to the mother:
(a)A copy of the children's school reports;
(b)A copy of school notices, newsletters and other general information provided to parents; and
(c)A copy of school photograph order forms.
The mother be and hereby is restrained from attending at R Public School (or any other school which the children attend in the future) except for the purposes of collecting and delivering the children in accordance with Order 9 above, SAVE THAT the mother is permitted to attend at the school:
(a)For the purposes of meeting with the Principal or class teacher to discuss the children's academic progress, such meetings to occur by prior arrangement with the Principal or class teacher and only at the times nominated by the Principal or class teacher, and
(b)For the purposes of attending school functions, performances and events involving either of the children with the father's prior consent.
In relation to weekend sporting activities:
(a)The father is permitted to enrol the children in one weekend sporting activity during each school term.
(b)The father shall provide the mother with all relevant details in relation to the children's weekend sporting activities, including venue, dates and times. In the event that such information is publically available on the internet, then the father shall provide the mother with the details necessary to enable her to access that information.
(c)The mother shall facilitate the children's attendance at their weekend sporting activities during their weekends with her.
(d)In the event that the mother is unable to facilitate the children's attendance, then she is to notify the father and the children's time with her shall commence at the conclusion of the sporting activity.
Each parent shall notify the other as soon as practicable of any serious illness or injury or hospitalisation involving either of the children while in that parent's care.
The father shall promptly provide the mother with a copy of any specialist medical reports in relation to either of the children and details of any medication prescribed for the children to be taken during periods of time with the mother together with a sufficient quantity of the medication itself or a prescription so as to allow the mother to obtain that medication for those periods.
Each parent shall keep the other informed of their residential address and contact telephone number(s) and notify the other of any change within 48 hours.
The father shall sign all documents and do all things necessary to undergo individual counselling to assist him in relation to his parenting of the children, and in particular, to develop insight into his personality structure and how it impacts on others (in particular, the children). For this purpose:
(a)The father is to make and attend an appointment with a child and family psychologist nominated by Independent Children's Lawyer in consultation with Dr Q within 2 months.
(b)The father is to attend ongoing sessions at such frequency as recommended by the psychologist.
(c)The father is to comply with the psychologist’s recommendations in relation to treatment.
(d)The Independent Children's Lawyer has leave to provide the psychologist with a copy of Dr Q’s report; a sealed copy of the final orders made in these proceedings and a copy of Justice Loughnan's reasons for judgment.
The father is to ensure that the children continue to attend upon Ms E for counselling at such frequency and for so long as recommended by Ms E.
The Independent Children's Lawyer has leave to provide Ms E with a copy of Dr Q’s report; a sealed copy of the final orders made in these proceedings and a copy of Justice Loughnan's reasons for judgment.
Each parent is hereby restrained from:
(a)Discussing these proceedings or any of the issues raised in these proceedings with the children or within their hearing;
(b)Making negative, critical or derogatory comments about the other parent or the members of the family of the other parent to the children or within their hearing;
(c)Questioning the children about their views and wishes in relation to their living arrangements and the time they spend with the other parent;
(d)Questioning the children about their attendance upon Ms E or the school counsellor;
(e)Contacting Ms E or a school counsellor except for the purposes of making an appointment for either of the children or at the request of Ms E or the school counsellor;
AND each parent shall use their best endeavours to ensure that no other person does any of the above.

Property

The mother shall to all acts and things necessary to cause the property known as M Crescent, Suburb R, being the whole of the land in Folio Identifier …, to be sold and to cause the proceeds of sale be applied as follows:-

a)to the costs of sale including agent commission, advertising expenses and legal costs;
b)to discharge the mortgage to the … Credit Union;
c)to the father 59% of the balance;
d)to discharge any other secured debt;
e)as to the balance, to the mother.

If the parties are unable to agree as to the identity of the Solicitor or Agent to act on the sale of the property then either party may request:
a)The President for the time being of the Law Society of New South Wales to nominate a Solicitor to act on behalf of the mother; and or
b)The President for the time being of the Real Estate Institute to nominate a Real Estate Agent to act as the Agent on the sale.
The parties shall bear equally the cost of any such nomination and any moneys payable by any party pursuant to any such nomination shall be deducted from that party’s share of the proceeds of sale referred to in Order 22 hereof.
The parties shall agree in respect of all terms and conditions of sale. If they are unable to agree in respect of any such, either party may refer such disagreement to the nominee of the President for the time being of the Parramatta and District Law Society and the cost of any such nomination or determination shall be borne equally by the parties.
Unless the parties otherwise agree in writing, the property shall be offered for sale by auction within eight (8) weeks of the date hereof. The mother shall accept any bid or offer which is within 5% of the reserve price. If the property is not sold it is to be relisted for sale within a further eight (8) weeks and the reserve price shall be reduced by a further 5%. If again not sold the property shall continue to be offered for sale at eight (8) week intervals with a cascading reserve price of -5% at each auction.
Pending the payment to the father in accordance with Order 22 above, the mother shall pay all instalments on the … Credit Union loan secured on the property and all other outgoings on the property as and when they fall due.
By consent the father shall cause to be delivered up to the mother within 7 days of these Orders by arrangement through their solicitors the following items of personalty:
(a)… cream lounge.
(b)… coffee table.
(c)Cream lemon and blue stripped lounges (two and three seater).
(d)Mundial knife block set.
(e)Evinrude gas heater.
Subject to these Orders and the rights of any third party, each party shall otherwise retain to the exclusion of the other any real or personal property standing within the power, possession or control of such party.
In the event that either party fails or neglects to execute any necessary document or to give any necessary authority or consent or any other act or thing necessary to give effect to any of the Orders herein with 14 days of being requested so to do in writing, then, the Registrar, or Deputy Registrar, of the Court shall be appointed pursuant to s.106A Family Law Act 1975 to execute any such document, authority or give such consent, direction or do any other thing necessary so as to give effect to the Orders herein for and on behalf of such defaulting party.

Leave is granted to either party to apply within 21 days, on notice to the other party and if relevant, to the ICL, to restore the proceedings before Loughnan J in relation to any agreed amendment to these orders or in relation to the wording of these orders.

IT IS NOTED that publication of this judgment under the pseudonym Pavel & Pavel is approved

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1684 of 2008

Ms Pavel

Applicant

And

Mr Pavel

Respondent

REASONS FOR JUDGMENT

Mr and Ms Pavel lived together for more than 8 years. They cannot agree on the parenting arrangements for their boys P (10) and N (8), nor as to a settlement of their property. For convenience I will refer to them as the mother and father.

Applications

By a minute of orders submitted on 23 September 2011 the mother seeks orders in the following terms:
1.That the wife have parental responsibility for the children:-
1.1.[P Pavel] (“[P]”) born … May 2011, and
1.2.[N Pavel] (“[N]”) born … September 2002
hereafter known as “the children”.
2.That [the children] live with the mother.
3.That [the children] spend time with the father:-
3.1.from after school Friday until before school on Monday thereafter, each alternate weekend, commencing the second weekend after the making of these Orders.
3.2.from after school each Thursday to the commencement of school Friday each alternate week commencing the first Thursday following the making of these Orders until relocation of the mother to the [Blue Mountains] area.
3.3.the first half of all school holidays in alternate years:-
(a)from noon Christmas Eve to noon Christmas in even numbered years, and
(b)from noon Christmas Day to noon Boxing Day in odd numbered years.
3.4.each Father’s Day from 8.30am to 6pm if not already an occasion when the father spends time with the children.
3.5.on the father’s birthday:-
(a)if a school day from after school until commencement of school the following morning.
(b)if a weekend from 9am to 6pm that day.
3.6.such other times as agreed between the parties.
4.That for the purpose of [the children] spending time with their father, that the father shall collect the children from and return the children to school at the commencement and conclusion of such period of time spent.
5.That for the purpose of [the children] spending time with their father pursuant to Order 3 above, the father shall collect and return the children to and from school at the commencement and conclusion of such time spent provided that:-
5.1.in the event that Thursday and or a Friday referred to in 3……. above, is a public holiday or pupil free day, then the mother shall ensure that the children are delivered to [X] Contact Centre located at … by 4pm and the father will collect the children from the said [X] Contact Centre by 4.15pm that day with the father to return the children to the [X] Contact Centre aforesaid on Friday morning by 9am and the mother will collect the children from such [X] Contact Centre by 9.15am that day.
5.2.That in the event that the [X] Contact Centre is not available so as to implement the hand-over of the children pursuant to suborder 5.1. above, then, subject to the parties otherwise agreeing in writing as to an alternate handover of location for the purpose of implementing the said Order 3, then, Order 3. shall be suspended until such time as the handover of the children can be undertaken in accord with the provisions of suborder 5.1. above.
6.The children shall spend time with the mother:-
6.1.On the mother’s birthday from 9am to 6pm.
6.2.At Christmas:-
(a)from noon Christmas Eve until noon Christmas in odd numbered years.
(b)from noon Christmas Day until noon Boxing Day in even numbered years.
6.3.The second half of all school holidays.
6.4.Each Mother’s Day from 9am until commencement of school or 9am the following morning as the case may be.
7.Order that, to the extent necessary, the mother have leave to relocate with the children, from the former matrimonial home at [R] to [the Blue Mountains property] in the State of New South Wales.
8.Order that the mother have leave to:-
(a)withdraw the said children from the [R] Public School at the conclusion of third term of the 2011 academic year.
(b)enrol the said children at the [Blue Mountains] Public School upon the commencement of the fourth term 2011 academic year thereafter.
9.1Order that by way of financial adjustment between the parties the wife’s property at [M Crescent, Suburb R] be sold by public auction within 8 weeks from the date of these orders and the net proceeds of sale divided as to 70 per cent to the wife and 30 per cent to the husband.
11.Order that the husband indemnify and keep indemnified in respect of any and all liabilities in respect of the husband’s right, title and interest in the real property situate and known as [I] Street, [Suburb R].
12.Order that the husband cause to be delivered up to the wife within 7 days of these Orders by arrangement through their solicitors the following items of personalty:-
(a)… cream lounge.
(b)… coffee table.
(c)cream lemon and blue stripped lounges (two and three seater).
(d)flower arrangement with matching pot and pedestal.
(e)Waterford crystal vase.
(f)Mundial knife block set.
(g)Evinrude gas heater.
(h)Fisher & Paykel washing machine and dryer.
(i)queen size ensemble.
12.Order that, subject to the Orders therein and the rights of any third party, each party shall otherwise retain to the exclusion of the other any real or personal property standing within the power, possession or control of such party.
13.In the event that either party fails or neglects to execute any necessary document or given any necessary authority or consent or any other act or thing necessary to give effect to any of the Orders herein with 14 days of being requested so to do in writing, then, the Registrar, or Deputy Registrar, of the Court shall be appointed pursuant to s.106A Family Law Act 1975 to execute any such document, authority or give such consent, direction or do any other thing necessary so as to give effect to the Orders herein for and on behalf of such defaulting party.

At the conclusion of submissions the mother’s counsel said that if the mother was unsuccessful with her primary parenting application she seeks an arrangement for her time with the children that mirrors the arrangement she has proposed for the father. Further she does not press for orders in relation to special days. Although not formally sought, there was oral evidence from the mother and Mr F and submissions about the mother being willing to consider moving closer Suburb R, perhaps to other nearby suburbs, if that meant her substantive application could succeed. The submission was that the mother “would be prepared to accept such living arrangements as would enable her to have the children with her”. It was submitted that she pointed to the difficult economic factors that would probably entail. The viability of the proposals were said to depend on findings made.
As to Order 12, the application was not pressed in relation to (d), (e) or (i) but the mother seeks an add back for $200 in relation to the sale proceeds of (d).
According to a minute of orders provided by the father’s counsel on 23 September 2011, and subsequent advice provided to my chambers as to the percentages in paragraphs B 1.1 & 1.2, the father seeks orders to the following effect:
A.     Preliminary
1.The parent with whom the children are residing on the date the parties are notified that Final Orders are to be made shall ensure that the children are brought to the counselling service section of the Court.
2.The parent with whom the children are residing on the date these Orders are published shall cause the children to remain in the counselling service section until released by the ICL.
3.The Independent Children’s Lawyer and the Director of Court Counselling are requested to be available on the date fixed for the publication of these Orders for the purpose of explaining same to the children.
4.The Independent Children’s Lawyer is requested to obtain within fourteen (14) days of the date hereof the identity of Psychologists who practice in the following fields:-
4.1          Family therapy; and
4.2          Personal therapy.
both in the general region of Suburb R.
5.The Independent Children’s Lawyer is to notify the parents of the identity of the person she proposes to nominate. Unless within seven (7) days of such notification to the parents, one or both of the parents do not indicate any objection to such nomination, the Independent Children’s Lawyer is requested to contact my associate with details of identity of such persons.
B.As to Property
1.That the wife to all acts and things necessary to cause the property known as [M] Crescent, [Suburb R] and being the whole of the land in Folio Identifier 3… be sold and that the proceeds of sale be applied as follows:-
1.1    As to the wife, the sum W/NxPx40%
1.2    As to the husband, the sum of H/NxPx60%
Where
P= nett sale price less costs of sale (agent’s and solicitor’s fees) on the basis the mortgage is not in arrears.
N= total net property assets
H= total of Husband’s assets, less debts
W= total of wife’s assets less debts
2.If the parties are unable to agree as to the identity of the Solicitor or Agent to act on the sale of the property then either party may request:
2.1    The President for the time being of the Law Society of New South Wales to nominate a Solicitor to act on behalf of the wife;
2.2    The President for the time being of the Real Estate Institute to nominate a Real Estate Agent to act as the Agent on the sale.
3.The parties shall bear equally the cost of any such nomination and any monies payable by any party pursuant to any such nomination shall be deducted from that party’s share of the proceeds of sale referred to in Order 1 hereof.
4.(a)         The parties shall agree in respect of all terms and conditions of sale. If they are unable to agree in respect of any such, either party may refer such disagreement to the nominee of the President for the time being of the Parramatta and District Law Society and the cost of any such nomination or determination shall be borne equally by the parties.
(b)      [M] Crescent shall be offered for sale by auction within eight (8) weeks of the date hereof. The wife shall accept any bid or offer which is within 5% of the reserve price. If the property is not sold it is to be relisted for sale within a further eight (8) weeks and the reserve price shall be reduced by a further 5%. If again not sold the property shall continue to be offered for sale at eight (8) week intervals with a cascading reserve price of -5% at each auction.
5.That a base amount of $11,208.00 is allocated, as required by S.90MT(4) of the Family Law Act 1975, to [MS PAVEL] out of [MR PAVEL’s] interest in the State Authorities Superannuation Scheme.
6.That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975:
a.[Ms Pavel] is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001; and
b.[Mr Pavel’s] entitlement to payments out of his interest in the State Authorities Superannuation Scheme and State Authorities Non-Contributory Scheme, and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.
7.That the Trustee of the SAS Trustee Corporation Pooled Fund (“the Trustee) shall do all such acts and things and sign all such documents as may be necessary to:
c.Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for [Ms Pavel] by paragraph 11 of these orders; and
d.Pay the entitlement whenever the Trustee makes a splittable payment out of [Mr Pavel’s] interest in the State Authorities Superannuation Scheme and State Authorities Non-contributory Scheme.
8.That these orders have effect from the operative time and the operative time for this order is a date four (4) days after the making of these orders.
9.That this order binds the Trustee of the State Authorities Superannuation Scheme and the State Authorities Non-Contributory Scheme.
10.That there be liberty to apply to each party and to the trustee in relation to the implementation of the Orders affecting the superannuation interest.
11.That each party shall be solely entitled, to the exclusion of the other, of all other property and chattels of whatsoever nature and kind and in possession of such party as at the date of the making of these Orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, any motor vehicles are deemed to be in the possession of the registered owner thereof and the husband shall be entitled to the benefit of all superannuation entitlements standing in his name as at the date hereof.
C.As to the Children
1.These Orders relate to the children [P Pavel] born … May 2001 and [N Pavel] born … September 2002.
2.The Respondent husband shall have sole parental responsibility in respect of such children.
3.Such children shall reside with the Applicant wife:-
3.1    Each alternate weekend during school terms commencing after school Friday on the first Friday after these Orders are made until before school the following Monday and each alternate weekend thereafter, provided that:-
3.1.1if any Monday following a weekend when the wife spends time with the children is either a public holiday or a non-school day, then the children shall remain living with the wife until before school on the Tuesday;
3.1.2if Mother’s Day does not fall on a weekend which pursuant to these Orders is not a weekend the children are to spend time with the wife, then the children shall spend time with the wife on the Mother’s Day weekend and in lieu thereof they shall not spend time with the wife on the weekend immediately preceding the Mother’s Day weekend;
3.1.3if pursuant to these Orders the children are to spend time with the wife on a weekend upon which Father’s Day falls, then the children shall not spend that weekend with the wife but in lieu thereof they shall spend the preceding weekend with her.
4.The children shall spend one half of all school holidays with the wife, being the second half in odd numbered years and the first half in even numbered years. For the purpose of this Order:-
4.1    the parent with whom the children are spending time in the first half of any school holiday period shall collect the children from after school on the last day of school;
4.2    such parent shall ensure that the children’s school books, accoutrements and clothing are handed to the other parent at the conclusion of the time the children spend with that parent;
4.3    the parent with whom the children spend the second half of the school holiday period shall ensure that the children are delivered to school on the first day of the next school term;
4.4    the mid-point of the school holiday period shall be that day which is the mid-point of the school holidays counting the first day of the holidays as the first day and the last day of the holidays (or if the first day of the new term is a pupil free day, then the pupil free day) as the last day of the holidays; if the total of the holidays is an odd number, the holidays shall be deemed to be one day less than such odd number and the mid-point shall be half of such total days;
4.5    the place of changeover, if it is not at school, shall be 5.00pm at [X] Contact Service, ….
4.6    each parent shall pay such sums and otherwise comply with such rules and/or regulations as may be required by the management of the said [X] Contact Service to enable the parents and the children to participate in changeover at that service.
5.The children may telephone the wife between 5.00pm and 6.00pm each Tuesday and Thursday. For such purpose, the wife shall provide the husband with a landline to permit such telephone calls to be made.
6.The children may spend such further or other time with the wife as may be agreed upon in writing by the parents.
7.The Husband shall ensure that:
7.1          unless the Wife consents in writing to a change of schooling, the children shall complete their primary schooling at [R] Public School.
7.2          he shall ensure that the children continue to be seen by [Ms E] … until the said [Ms E] decides that further treatment is not longer required.
8.Neither parent shall denigrate the other parent not permit any such denigration in the sight or hearing of the children.
9.The husband shall attend upon the following psychologist and cause himself and the children and [Ms B] and her son [H] to attend upon the following psychologist for the purpose of family therapy. The psychologists are:
I was not told that the father wanted a different parenting arrangement if he is unsuccessful in his primary application than the living arrangement with the children that he proposed for the mother.
By a minute of orders which outlined her proposals, submitted on 23 September 2011 and followed by a document provided to my Associate on 27 September 2011, the Independent Children’s Lawyer seeks the following parenting orders:
That all previous parenting orders in relation to the children, [P PAVEL], born … May 2001, and [N PAVEL], born … September 2002 ("the children") be discharged.

That the children live with father conditional upon the father’s compliance with Orders 18, 19 and 20 below.

That the father have sole parental responsibility for the children subject to Orders 4 and 5 below

That prior to making any decision in relation to a major long term issue concerning either of the children, the father shall:
(d)Notify the mother in writing of his proposal;
(e)Invite the mother’s input within a reasonable timeframe, and
(f)Take into account any response from the mother (provided such response is received within the nominated timeframe).

That the mother have sole parental responsibility for decisions in relation to the development of the children's understanding and connection to their Aboriginal heritage provided that such decisions do not create obligations on the father without his prior consent.
That the children spend time with mother as follows:
(e)During school terms – on each alternate weekend from after school on Friday until before school on Monday (or Tuesday if it is a long weekend) commencing on the first weekend of each school term.
(f)During school holidays:
(i)For the first half of the Term 1, 2 and 3 school holidays in each year.
(ii)For the first half of the Term 4 school holidays in odd numbered years and the second half in even numbered years.
(g)From 9 am on Mother’s Day until the commencement of school the following day in the event that Mother's Day does not fall on a weekend that the children are otherwise with the mother.
(h)At other times as agreed between the parents.

For the purposes of Order 6(b):
(e)The first day of the school holiday period is the last day of the school term.
(f)The last day of the school holiday period is the day before the first day that the children are required to return to school.
(g)If the total number of days in the school holiday period is an even number then changeover will occur at 5.00 pm on the last day of the first half.
(h)If the total number of days in the school holiday period is an odd number then changeover will occur at 12 noon on the middle day.
Notwithstanding any other Order, in the event that Father's Day falls on a weekend when the children are with the mother, then the mother shall return the children to the father at 9 am on Father's Day.
Changeover shall occur at school on school days and otherwise at [X] Contact Service, and if [X] Contact Service is not available, then at McDonald's [restaurant], unless otherwise agreed in writing between the parents.

10.That for the purposes of collecting or dropping the children, or [the child H], at [R] Public School, the father (and/or his agent, including [Ms B]) shall utilise the school entrance on the western side of the school near the tennis court and Community Centre only, and the mother (and/or her agent, including [Mr F]) shall utilise the main entrance gate in front of the School Office only.

11.That each party facilitate telephone communication between the children and the mother each Wednesday between the hours of 5 pm and 6 pm as follows:
(f)The mother shall provide the children with a mobile telephone to be used for the purposes of this Order.
(g)The mother shall pay any costs associated with the mobile telephone.
(h)The mother shall call the children on the mobile telephone.
(i)The father shall ensure that the mobile telephone is fully charged, switched on and available to the children at the relevant time.
(j)The father shall ensure that the mobile telephone is not used by the children (or any other person) for any purpose other than this Order without the mother's prior consent.

12.That the father forthwith do all acts and things necessary to authorise [R] Public School (and any other school which either of the children attend in the future) to provide directly to the mother:
(a)A copy of the children's school reports;
(b)A copy of school notices, newsletters and other general information provided to parents, and
(c)A copy of school photograph order forms.

13.That the mother be and hereby is restrained from attending at [R] Public School (or any other school which the children attend in the future) except for the purposes of collecting and delivering the children in accordance with Order 9 above, SAVE THAT the mother is permitted to attend at the school:
(d)For the purposes of meeting with the Principal or class teacher to discuss the children's academic progress, such meetings to occur by prior arrangement with the Principal or class teacher and only at the times nominated by the Principal or class teacher, and
(e)For the purposes of attending school functions, performances and events involving either of the children with the father's prior consent.

14.In relation to weekend sporting activities:
(f)That the father be permitted to enrol the children in one weekend sporting activity during each school term.
(g)That the father provide the mother with all relevant details in relation to the children's weekend sporting activities, including venue, dates and times. In the event that such information is publically available on the internet, then the father shall provide the mother with the details necessary to enable her to access that information.
(h)That the mother facilitate the children's attendance at their weekend sporting activities during their weekends with her.
(i)In the event that the mother is unable to facilitate the children's attendance, then she is to notify the father and the children's time with her shall commence at the conclusion of the sporting activity.

15.That each parent notify the other as soon as practicable of any serious illness or injury or hospitalisation involving either of the children while in that parent's care.
16.That the father promptly provide the mother with a copy of any specialist medical reports in relation to either of the children and details of any medication prescribed for the children to be taken during periods of time with the mother.
17.That each parent keep the other informed of their residential address and contact telephone number(s) and notify the other of any change within 48 hours.

18.That the father arrange and undergo family counselling to assist the children in adjusting to the introduction of [Ms B], [the child H] and the forthcoming baby into the father's household. For this purpose:
(j)The father is to make and attend an appointment with a suitable therapist nominated by Independent Children's Lawyer in consultation with [Dr Q] within 28 days.
(k)The father is to attend ongoing sessions at such frequency as recommended by therapist.
(l)The father is to ensure that the children (or either of them) attend sessions if requested by the therapist.
(m)The father is to use his best endeavours to ensure that other members of his household (including [Ms B] and/or [the child H]) attend if requested by the therapist.
(n)The father is to comply with the therapist’s recommendations in relation to treatment.
(o)The Independent Children's Lawyer has leave to provide the therapist with a copy of [Dr Q’s] report; a sealed copy of the final orders made in these proceedings and a copy of Justice Loughnan's reasons for decision.

19.That the father undergo individual counselling to assist him in relation to his parenting of the children, and in particular, to develop insight into his personality structure and how it impacts on others (in particular, the children). For this purpose:
(p)The father is to make and attend an appointment with a child and family psychologist nominated by Independent Children's Lawyer in consultation with [Dr Q] within 2 months.
(q)The father is to attend ongoing sessions at such frequency as recommended by the psychologist.
(r)The father is to comply with the psychologist’s recommendations in relation to treatment.
(s)The Independent Children's Lawyer has leave to provide the psychologist with a copy of [Dr Q’s] report; a sealed copy of the final orders made in these proceedings and a copy of Justice Loughnan's reasons for decision.

20.The father is to ensure that the children continue to attend upon [Ms E] for counselling at such frequency and for so long as recommended by Ms [E].
21.The Independent Children's Lawyer has leave to provide Ms [E] with a copy of [Dr Q’s] report; a sealed copy of the final orders made in these proceedings and a copy of Justice Loughnan's reasons for decision.

22.That each parent be and hereby is restrained from:
(t)Discussing these proceedings or any of the issues raised in these proceedings with the children or within their hearing;
(u)Making negative, critical or derogatory comments about the other parent to the children or within their hearing;
(v)Questioning the children about their views and wishes in relation to their living arrangements and the time they spend with the other parent;
(w)Questioning the children about their attendance upon Ms [E] or the school counsellor;
(x)Contacting Ms [E] or the school counsellor except for the purposes of making an appointment for either of the children or at the request of Ms [E] or the school counsellor,

AND each parent shall use their best endeavours to ensure that no other person does any of the above.

Documents read

The mother relied on the following documents:
Further Amended Initiating Application dated 24 November 2010.
Affidavit of the mother sworn 22 August 2011 and filed 24 August 2011.
Affidavit of the mother sworn and filed 9 September 2011
Affidavit of maternal grandmother sworn 27 April 2011 and filed 28 April 2011.
Affidavit of Ms DD sworn 27 April 2011 and filed 5 May 2011.
Affidavit of Mr F sworn 17 April 2011 and filed 28 April 2011.
Affidavit of Mr F sworn and filed 9 September 2011
Affidavit of maternal step-grandfather sworn 13 March 2011 and filed 28 April 2011.
Affidavit of Mr N affirmed 19 September 2011 and filed by leave on 20 September 2011.
Mother’s Financial Statement sworn 30 December 2010
Mother’s Financial Statement sworn 5 September 2011 and filed 6 September 2011
Mother’s Financial Statement sworn 8 September 2011 and filed 9 September 2011
Notice of Abuse filed 16 June 2010
There was an objection to the affidavit of Ms DD. I understood the challenge to relate to her qualifications to give evidence about Aboriginality. Evidence about Aboriginality need not be given and often cannot be given by an Anthropologist or some similarly tertiary trained Social Scientist. The Full Court has endorsed[1] the acceptance of evidence from Aboriginal elders, including elders who may be aligned to one party to proceedings. Ms DD is an Aboriginal elder and is a friend of the mother’s family. … (list of positions and offices held omitted from publication to comply with s 121 Family Law Act 1975 (Cth)).
[1] Donnell and Dovey (2010) FLC 93-428; (2010) 42 Fam LR 559; 237 FLR 53 and Hort & Verran (2009) FLC 93-418.
Ms DD has known the maternal grandmother for more than 30 years and knew her husband and the mother’s father, Mr T. She is acquainted with the mother and her brothers who she says are descended from the K people of Northern New South Wales. She has met P and N on several occasions.
The affidavit was admitted. It transpired that Ms DD was not required for cross-examination.
The father relied on the following documents:
Amended Response filed 10 June 2008
Application filed 7 May 2010
Affidavit of the father filed 3 May 2010
Affidavit of the father filed 4 June 2010
Affidavit of the father filed 20 April 2011
Affidavit of the father sworn and filed 15 September 2011
Notice of Family Violence 8 September 2009
Affidavit of paternal grandmother filed 27 April 2011
Affidavit of paternal grandfather filed 27 April 2011
Affidavit of Ms B filed 27 April 2011
The following single expert evidence was read:
Report By Dr Q dated 2 May 2011
Magellan Report by the NSW Department of Human Services, Community Services (“DoCS”) dated 23 July 2010
Child Dispute Conference Memorandum dated 12 September 2011 (unsworn but put into evidence by consent)

Short history

The mother was born in 1973 and as at the time of the hearing, she was 38 years of age. The father was born in 1969 and as at the time of the hearing, he was 42 years of age. The parents’ relationship commenced in about July 1999, they were married in December 2001 and finally separated on 14 March 2009.

Children

There are two children of the marriage:

P Pavelwho was born in May 2001 …;
and
N Pavelwho was born in September 2002 ….

The relevant people:
P Pavelis 10 years of age and is in Year 4 at R Public School. He lives week about with his parents;
N Pavelis 9 years of age and is in Year 3 at R Public School. He lives week about with his parents;
Ms Pavel (Mother) is 38 years of age and is employed as a Public Servant.
She lives at suburb PW property.

Mr Fis 50 years of age and was recently medically discharged
(Mother’s fiancé) from the Public Service. He lives between his home in the Blue Mountains and at PW property with the mother and others.

Ms O is 63 years of age and is a sales person. She lives with her

(Mother’s mother) husband and the mother and others at PW property
Mr Ois a salesman. He lives with the maternal
(Mother’s step father) grandmother and the mother and others at PW property.

Mr PT is a manager. He lives with the mother and others at (Mother’s brother) PW property;

Mr STis self employed. He lives at M Crescent, Suburb R;
(Mother’s brother)
Ms B Olives at Suburb K;
(Mother’s step sister)
Mr Pavel (Father)                is 42 years of age and is employed as a Public Servant. He lives at I Street, Suburb R;
Ms B is 30 years of age and is employed as a Public Servant.
(Father’s partner)                She lives with the father and others at I Street, Suburb R. She discovered that she was pregnant in March 2011;
The child His 7 years of age and lives with his mother, Ms B and
(Ms B’s son)the father and others and spends time with his father on alternate weekends and for one half of the school holidays;
Ms Yis 65 years of age and is engaged in home duties. She lives
(Father’s mother)                with the father and others at I Street, Suburb R.
Mr Pavel Snr   is 68 years of age and is retired. He lives with the father
(Father’s father)                  and others at I Street, Suburb R.
Disputed facts

The advocates settled the following list of parenting issues:[2]
[2] Exhibit 1.
1.Whether or not the children have been exposed to physical, psychological, or family violence by either parent or whilst in either parent’s care.
2.The basis on which either of the parents commenced proceedings for Apprehended Violence Orders and the outcome of those proceedings.
3.Whether the children have expressed any views and any factors the Court thinks are relevant to the weight it should give to the children’s views including any conduct of the party designed to influence those views.
4.The relationship of the children with the mother and the father and the maternal and paternal grandparents.
5.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, particularly having regard to the past conduct of each of the parents.
6.The likely effect of any change in the current arrangements for the children’s care.
7.The capacity of each of the children’s parents to provide for the needs of the children including emotional and intellectual needs and in particular the capacity of each of the parents to put the children’s needs before their own and protect the children from conflict.
8.The attitude of each parent to the responsibilities of parenthood demonstrated by each of the children’s parents particularly since the date of separation.
9.The effect on the children spending equal time with each parent having regard to each parents current and future capacity to implement such an arrangement and communicate with each other to resolve difficulties that might arise.
10.The mental health of each of the parents.
11.The mental health/special needs of the children.
12.Whether or not the children should continue to attend for therapy on Ms E.
13.The capacity of each of the parents to permit the children to enjoy a beneficial relationship with the other parent.
14.The mechanics of implementing parenting orders in the event:
(a)The mother relocates to the Blue Mountains.
(b)The children attend a Blue Mountains Public School or some school other than R Public School.
15.The need, if any, for:
(a)Post hearing review for further definition of orders.
(b)Either party or child to undergo a course of treatment or counselling so as to facilitate the operation of any parenting orders.

Background facts

In 1998, the mother purchased land at M Crescent, Suburb R subject to a mortgage with the Aboriginal and Torres Strait Islander Commission.
In September 1999, the mother signed a building contract for the erection of a house on the land. Approval for the development was granted in July 1999.
The parties’ relationship commenced in 1999. The mother stayed with the father at a property at a south west Sydney suburb. He says that the parties’ cohabitation commenced at that time with the mother living at the south west Sydney suburb on virtually a permanent basis and that she had a key to the premises. The mother disagrees, saying that she infrequently stayed there, that the parties did not have an exclusive relationship at that time and she did not have a key to the property.
Initially the mother deposed to cohabitation commencing in June 2000. The case outline submitted on her behalf on 8 September 2011 specified June 2000. However her affidavits of August and September 2011 depose to the parties first living together on or about 1 August 2000, when the father moved into the mother’s house at M Crescent, Suburb R. Neither of the parties resiled from their written testimony in cross-examination. There is no independent evidence on the issue. Suffice it to say that the parties commenced living together at that time, if not before. The evidence does not permit a more definite finding.
The parties married in December 2000.
The mother ceased work around two weeks before the child P’s birth in May 2001. She received approximately seven weeks of paid maternity leave and returned to work on a part-time basis when P was around two months old.
The mother alleges that in August 2001 the father started physically assaulting her.
The mother ceased work the day before the birth of N in September 2002. She had approximately 18 weeks of maternity leave on half pay and thereafter returned to work on a part-time basis.
In 2003, the mother was diagnosed with postnatal depression. She underwent counselling but was not prescribed medication.
Throughout both pregnancies, the mother suffered ill health and spent time having treatment in hospital.
In June 2005, the mother returned to full-time work. The parties arranged their shifts so that one of them was available to care for the children at all times.
On 4 February 2008, the parties separated and the mother left the former matrimonial home.
On 11 March 2008, an incident occurred whereby the father attended the mother’s workplace, and the mother became fearful of her safety. The police subsequently applied for an Apprehended Violence Order (“AVO”) against the father for the mother’s protection. The application was later withdrawn.
On 29 March 2008, the NSW Department of Human Services, Community Services (“DoCS”) were notified in relation to concerns about the children being at risk of harm. The information provided did not meet the risk of harm threshold and was therefore not referred for assessment or a field response. The police reports from this date indicate that the mother telephoned the father at around 11.45 pm and said “It’s game on cunt. I’ll rip your throat out, then I’ll rip your fucking throat out”.
On 30 March 2008, the father changed the locks at the former matrimonial home.
On 1 April 2008, the mother took an AVO out against the father.
On 15 April 2008, the father contested the Interim AVO proceedings against him. The AVO was subsequently withdrawn
On 21 April 2008, interim orders were made by Federal Magistrate Henderson as follows:
THE COURT NOTES THAT:
1.The husband agrees to vacate the matrimonial home on or before 20 June 2008.
2.Pending the husband vacating the matrimonial home he will pay the mortgage and all outgoings on the home.
3.Upon the wife’s return to the matrimonial home she will pay the mortgage and all outgoings on the home.
4.The wife agrees that she will not sell or further encumber the matrimonial home without first notifying the husband in writing of her intent to do so.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
5.The husband is to spend time with the children, [P Pavel] born … May 2001 and [N Pavel] born … September 2002, from 9.00 am until 8.00 pm on Wednesday 23 April 2008 with the father to pick-up the children from … McDonalds and return them to ?
6.The father is to spend time with the children from 3.30 pm on 25 April 2008 to 8.00 pm on Sunday 27 April 2008.
7.Thereafter, the father is to spend time with the children in accordance with the following regime:
(a)From after school Thursday 1 May 2008 until the commencement of school on Friday 2 May 2008.
(b)From after school Thursday 8 May 2008 until the commencement of school on Monday 12 May 2008.
8.Pursuant to section 13C of the Family Law Act 1975 the parties attend family dispute resolution to attempt to resolve their disputes with each other relating to the care of the children [P Pavel] born … May 2001 and [N Pavel] born … September 2002 and that:
(a)The family dispute resolution to occur at an organization as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia; and
(b)The parties attend at the organization at such times as requested by the organization.
9.The wife file and serve an amended application and affidavit by 4.00 pm on 23 May 2008.
10.The husband file and serve an amended response and affidavit by 4.00 pm on 2 June 2008.
11.The matter is listed for mention at 9.30 am on 10 June 2008 for the allocation of a conciliation conference and to ascertain the outcome of mediation.
12.Leave is granted for only one legal representative to attend Court on the adjourned date.
13.Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
In early 2008 the father and his father, Mr Pavel Snr, bought I Street, Suburb R. The paternal grandfather contributed a substantial cash payment towards the purchase and he and the father joined in borrowing the balance.
In mid 2008, the parents reconciled.
On 29 August 2008, Federal Magistrate Henderson made orders to the effect that the interim orders of 21 April 2008 be discharged and noted that the parties had reconciled.
In December 2008, the mother moved into the property at I Street, Suburb R. The parties continued to live at this home until final separation in March 2009.
On 14 March 2009, the parties separated on a final basis. The father punched the mother in the head. He said that was in self defence. It is common ground that the mother either head-butted the father or that her head otherwise struck him. The children were present during this incident. The mother was charged with assault and the police applied for an AVO against the mother for the protection of the father and children. The mother and children then moved in with the maternal grandparents.
On 17 March 2009, the assault charge and AVO application against the mother were withdrawn by the police.
On 16 June 2009, the father says that the child P started pulling his hair out, crying hysterically and saying to the mother “You don’t love me”, “Grandma won’t shut up. She’s messing with my head”, and “I’m going to kill myself”.
The father says that on 17 June 2009, the child P said to the mother “You are a bad, bad naughty mother”, “You’re going to cut grandma’s [sic] and set pap on fire”. The mother made a report to police.
On 24 June 2009, the police applied for an AVO on behalf of the children against the paternal grandmother. The father says this application was subsequently withdrawn.
The father says that the mother made some attempts to reconcile during June and July 2009.
On 11 July 2009, the mother told the father that she would commence legal proceedings and that she intended to change the children’s school.
On 17 July 2009, the children spent school holiday time with the father by agreement between the parties. The father subsequently refused to return the children until an agreement was reached as to an equal time regime during school terms.
In July 2009, the mother commenced a relationship with Mr F who was a work colleague. Mr F has two daughters from a marriage that ended in 2006, namely AA who was born in 2002 and SS who was born in 2004.
On 20 July 2009, the mother says that the father telephoned her and said “The child support agency rang me. You are a fucking cunt and I’ll kill you. You are a fucking animal”. The father conceded that he may have called the mother an animal.
On 21 July 2009, the police applied for an AVO against the father for the protection of the mother.
On 28 July 2009, these proceedings commenced when the mother filed an Initiating Application in the Federal Magistrates Court seeking parenting orders.
From 28 July 2009 until about 6 August 2009, the children did not attend school. They were in the father’s care during this time.
On 5 August 2009, orders were made by the Federal Magistrates Court providing for the children to reside with the parents on a week about basis and for the appointment of an Independent Children’s Lawyer. The order provided:
1.That the children of the parties namely [P Pavel] born … May, 2001 and [N Pavel] born … September, 2002 live with their parents as follows:
(i) with the Mother from the conclusion of school on Thursday 6 August, 2009 to the commencement of school on Thursday 13 August, 2009;
(ii) With the father from the conclusion of school on Thursday 13 August, 2009 to the conclusion of school on Thursday 20 August, 2009;
(iii)Thereafter on a week about basis with each parent.
2.That the parties and each of them are hereby restrained from denigrating each other in the presence of the children or otherwise.
3.That the parties are restrained from changing the children’s school.
4.That the parties forthwith enrol in, and thereafter complete a parenting post separation course.
A.The court notes that each party reserves their right to seek orders in accordance with their Application and Response when the matter is listed for an interim hearing.
In September 2009, the father commenced a relationship with Ms B (also a Public Servant). She has a child from a previous relationship, namely H, who was born in January 2004.
On 15 September 2009, the paternal grandmother, Ms Y, contacted the Department of Community Services reporting that the mother was psychologically harming the children. She said the mother told the children she was going to put their father in gaol and that the children were distressed upon being picked up by the mother.
On 16 September 2009, the father signed an undertaking not to assault, molest, harass, threaten or otherwise interfere with, intimidate or stalk the mother for a period of 12 months. The AVO proceedings commenced on 21 July 2009 were then dismissed.

On 20 September 2009, the maternal grandmother smacked the child P on the face.
On 10 December 2009, consent orders were made by FM Halligan as follows:
1.By consent, orders are made in accordance with the Terms of Settlement marked Exhibit A, as attached hereto:
‘1.That the orders of this Court made on 5 August 2009 in relation to the parenting of the children [P Pavel] born … May 2001 and [N Pavel] born … September 2002 (“the children [P] and [N]”) be and are hereby discharged.
That Pending Further Order & Without Admissions
2.That the children [P] and [N] live with the parents on a week about basis as follows:
a.With the Mother from after school or 3pm each alternate Monday until after school or 3pm the following Monday commencing 14 December 2009;
b.With the Father from after school or 3pm each other Monday until after school or 3pm the following Monday commencing 21 December 2009;
c.Notwithstanding 2a and 2b herein the children shall spend time with the Mother from 3pm Christmas Eve to 12 noon Christmas Day 2009.
d.That the children spend time with the Mother from the date of the making of these Orders until the conclusion of school on Friday 11 December 2009.
e.That the children spend time with the Father from the conclusion of school on Friday 11 December to the conclusion of school on Monday 14 December 2009.
f.The parent with whom the children are living shall cause the children to telephone the other parent each Wednesday and Friday at 6pm.
3.That for the purposes of these orders change over of residence for the children [P] and [N] shall take place at the [R] Public School during the NSW School term and at McDonalds at … at all other times unless otherwise agreed by the parents in writing.
4.That each of the parents are restrained from:
a.Changing the school attended by the children [P] and [N] from the [R] Public School.
b.Swearing in the hearing of or at the children [P] and [N]or either of them;
c.Saying anything derogatory about the other parent, member’s of the other parent’s family or the other parent’s partner or friends in the presence or hearing of the children [P] and [N];
d.Permitting the children [P] or [N] to be in the presence of any person while that person discusses these proceedings or speaks in a derogatory manner about the other parent, member’s of the other parent’s family or the other parent’s partner or friends;
e.Discussing with or in the presence of the children [P] or [N] or either of them any issues related to these proceedings or questioning the children or either of them concerning their respective wishes or views of the other parent or members of the other parent’s family or partner.
f.Physically chastising or permitting any other person to physically punish or chastise the children [P] and [N] or either of them.
5.That each the Mother and Father shall:-
a.Within 6 months of the making of these orders attend and complete an Anger Management Program conducted by either Unifam, Burnside, Relationships Australia, Angicare or Centacare and upon completion of such program to file with the Court a copy of the certificate of satisfactory attendance and completion of that program;
b.Within 6 months of the making of these orders attend and complete a “Parenting After Separation” Program conducted by either Unifam, Burnside, Relationships Australia, Angicare or Centrecare and upon completion of such program to file with the Court a copy of the certificate of satisfactory attendance and completion of that program.
c.Permit the children [P] and [N] or either of them to meet with the school counsellor at the [R] Public School as required by the children or identified with the school staff or the counsellor and in this regard both parents are restrained from approaching the school counsellor or permitting or requesting any other person from approaching the school counsellor on their behalf unless in response to a specific request by the school counsellor.
d.Do all acts and things necessary to cause the children [P] and [N] to continue to attend upon Ms [E] psychologist for the purposes of therapy as directed by Ms [E] and in this regard the parents shall meet equally any fee payable by way of gap following the deduction of any benefit payable by Medicare.
6.That Mother shall enrol the children [P] and [N] in swimming lessons during the Summer season and each parent shall cause the children to attend such lessons when the children are in their respective care and shall share equally the costs of such lesson.
7.That the Mother and the Father shall agree in writing upon a sport for the children [P] and [N] to participate in during the Autumn/Winter season and thereafter enrol the children in that sport paying equally any fees and thereafter cause the children to attend all training and games as required by the sport when the children are in their care respectively.
8.The Mother and the Father are hereby restrained from attending Ms [E] for the purposes of counselling or therapy for themselves, but may attend in respect of the children at the direction of the psychologist.
9.That the father do all acts and things necessary to ensure the children do not sleep in the bed of their grandmother and if necessary to obtain the assistance of Ms [E] in this regard.’
2.The matter is listed for final hearing at 10am on 1 December 2010 in relation to parenting. Estimated hearing time 3 days.
3.Both parties shall file and serve all affidavit evidence and a list of documents to be relied upon at hearing, at least 21 days prior to hearing.
4.The proceedings are listed for mention at 9.30am on 31 March 2010 for any application to appoint a court expert.
On 16 December 2009, the father made a report to the police in relation to the welfare of the children. The mother claimed he was using the police to harass her.
On 17 December 2009, the police applied for an AVO against the father for the protection of the mother. This application was subsequently dismissed on 14 April 2011.
On 12 April 2010, an incident occurred between the mother, Mr F and the father at changeover at McDonalds. The police declined to take action against the father.
On 20 April 2010, the police applied for an AVO against Mr F for the protection of the father. This application was subsequently dismissed on 8 September 2010.
On 29 April 2010 the mother caused the maternal grandmother to collect the children from their school. That was a week when the children were living with the father. The mother kept the children out of school on the father’s weeks for a period thereafter and took them late and collected them early during her weeks. Those actions were calculated to prevent the father regaining the children. On 7 May 2010, the mother filed an Application in a Case seeking interim orders that the children live with her and spend supervised time with the father.
On 7 June 2010, Federal Magistrate Henderson made orders as follows:
THE COURT ORDERS THAT:
1.The matter is transferred to the Family Court of Australia at Parramatta and the proceedings are adjourned to a date to be fixed by that Registry.
2.The Court requests the matter be placed in Registrar Bartlett’s next available Magellan List Directions Hearing for the allocation of a Final Hearing as soon as possible.
3.The Final Hearing dates of 1, 2 and 3 December 2010 are vacated.
4.By consent, orders are made in accordance with the document marked Exhibit 1, dated 7 June 2010, as attached hereto.
5.Leave is granted to the parties to view all documents produced under subpoena.
6.Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
BY CONSENT:-
1.     Order that order 3 of the orders dated 10^th December 2009 be varied by deleting “McDonalds at …” and inserting in lieu thereof “[X] Contact Service …”.
2.     Order that within 7 days of these orders each of the parties shall contact the [X] Contact Service … and arrange and attend an Intake Assessment at a time and place nominated by the said service and comply with any conditions imposed by the said service.
3.   Order that sub order 2(e) of the orders dated 10^th December 2009 be vacated to the intent that, save in emergencies, there shall be no telephone contact between the children and the parent with whom the children are not then living.
4.   Order that each party with whom the children then live, shall cause the other party to be notified in writing of any medical treatment or attendance by either child within 7 days of such treatment, save for emergencies when each party shall notify the other party forthwith.
5.   Order that for the purposes of collecting or dropping of the children and or [the child H] at [R] (Public) School, the father and [Ms B] shall utilize the school entrance on the western side of the school near the tennis court and Community Centre only and the mother shall utilize the main school entrance gate in front of the School Office for those purposes only.
6.   NOTED: that [Ms B] undertakes to the court to submit to, and comply with, order 5 above as evidenced by her signature to these orders.
7.   Order that each party be restrained from causing permitting or allowing any extended family member to contact, in respect of the children:-
a.[R] (Public) School
b.[Ms E], psychiatrist
c.Any health or medical professional save upon express invitation of such person or entity
8.   Order that each party be restrained from:-
a.Attending any sporting or cultural activity undertaken by the children whilst the children are living with the other party, and
b.Not attend [R] (Public) School whilst the children are living with the other party, save for emergencies and school performances or sports in which either child is participating
9.   Order that costs of 7^th June 2010 be reserved.
10.    Order that the children live with the mother 12 noon 25.12.10 to 3pm. 26.12.10 and with the father from 3pm 24.12.10 to 12 noon 25.12.10 with handover to occur at … Police Station.
11.    Liberty to restore on 3 days written notice.
12.    Order that Applications in a Case:-
a.By applicant filed May 2010, and
b.By respondent filed 3 & 7^th May 2010
Be dismissed
13.    Order that during the Xmas school holidays the children live with:-
a.The father commencing 18 December 2010 at 10am for the first half of such holidays
b.The mother for the second half of such holidays
With the changeover being at [X] Contact Service on 8th January 2011 at time nominated by the service closest to 10am until 31.1.11 at 3.30pm.
14.    Order that each party shall ensure at change over of the children that the children are accompanied by the personalty and items specified in the document being annexure ‘A’ hereto.
15.    That each of the parents are restrained from discussing or questioning the children [P] or [N] or either of them about any issues related to their attendance upon either the school counsellor or Ms [E], psychologist.
16. Order pursuant to Division 15.5.2 of the Family Law Rules 2004 that Dr [Q], Child and Family Psychiatrist, be appointed as a Single Expert Witness to enquire into and report upon matters relating to the welfare of the children [P PAVEL], born on … May 2001 and [N PAVEL], born on … September 2002, and that in preparing her report to the court, Dr [Q] be requested to consider the following matters:
a.whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
b.any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
c.the relationship between the children and each other and with each of their parents and any other relevant person;
d.the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent;
e.the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;
f.the capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs;
g.the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person);
h.the effect on the children of any family violence to which they may have been exposed;
i.the effect on the children if spending equal time, or substantial and significant time, with each parent having regard to parent’s current and future capacity to:
·    implement such an arrangement, and
·    communicate with each other and resolve difficulties that might arise;
j.the mental state of the both parents in so far as it is relates to parenting issues;
k.the mental health/special needs of the children;
l.any other matter the Court Expert considers relevant.
17.    That each of the parties be jointly liable for the cost of Dr [Q’s] report and within 14 days of receiving notice of Dr. [Q’s] estimate of fees each of the parties pay one half of Dr [Q’s] estimate of fees into the Trust Account of the Legal Aid Commission of NSW for payment to Dr [Q] upon completion of her expert report.
18.    Leave be granted to the independent children’s lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to Dr. [Q] and that the fees in respect of that photocopying be waived.
NOTATION:
19.    The independent children’s lawyer is under no obligation to brief the Single Expert in terms of Order 1 above until there has been compliance with Order 18.
Thereupon the father resumed having time with the children.
On 16 June 2010, the mother filed a Notice of Child Abuse of Family Violence alleging that:
1.On or about June 2009 Child [N] said to me “Daddy’s punching me in the stomach and ribs and it really hurts.”
2.On the 21^st November the child [N] said to me words to the effect of “Daddy is still punching me’ and the child [N] went on to say “Daddy punches me on Wednesday.”
3.On or around late July the father [Mr Pavel] said “You’ll never see them or speak to them again” the father was referring to the children.
4.On or around the 8^th February 2010, the child [P] said “Daddy gave [N] a big hit on the bum”
5.[Ms B] on or around 11/2/10 hit the child [P].
6.The child [P] says that Dad threatens to hit him if he does not give [Ms B] a cuddle.
7.The child [N] says “Daddy is always showing me his pecker” … “he is pulling it out of his pants all the time”
8.The father [Mr Pavel] said to me “Bring on the court date you are going to lose more than just the children”
On 22 June 2010, Registrar Bartlett ordered that a Magellan Report be prepared and requested that DoCS intervene.
The Magellan Report was completed and released on 23 July 2010 indicating that Community Services would not intervene in the proceedings because the children were not assessed to be at significant risk of harm.
On 8 September 2010, the AVO application against Mr F was dismissed after a defended hearing.
On 29 November 2010, the children allegedly told the mother that the father had punched the child P in the arm with a closed fist and had put his hands around the child N’s neck. The mother made a report to the police and the children were interviewed. The police applied for an AVO on behalf of the child against the father.
On 14 December 2010, the children were interviewed by Joint Investigation Response Team (JIRT) officers.
On 20 December 2010, the AVO application against the father for the protection of the children was withdrawn.
On 7 February 2011, Johnston J made orders as follows:
1.That by consent orders are made in accordance with the hand-written Short Minutes of Interim Orders filed in Court today signed by the mother and her solicitor, father and his solicitor and by the Independent Children’s Lawyer and by Justice Johnston and placed with the Court papers as set out hereunder:-
BY CONSENT:
1.That the parties have leave to remove the said children [P Pavel] born … May 2001 and [N Pavel] born … September 2002 from the jurisdiction pursuant to these orders:
(i)In respect of the mother for a holiday to Hong Kong and Thailand during the period contemporaneous with the New South Wales first term school holidays but not exceeding 14 days.
(ii)That in consideration of order 1 the father will be entitled to spend time with the children for a period of 14 days such time to be nominated to the wife in writing by way of make up time and to include overseas travel provided the father complies with order 2.
2.Order that no less than fourteen days prior to any trip referred to in order 1(i) and 1(ii) hereof either parent shall cause to be served on the other’s solicitor particulars of such proposed sojourn including:
(a)Dates of departure from and arrival in Australia specifying the airline and relevant flight details (including numbers and times).
(b)A copy of the itinerary provided by the airline and or travel agent if any.
(c)Particulars as to the location and name and address of any hotel or other accommodation at which the children shall be resident overnight during the said sojourn together with any known telephone number of such establishment.
(d)Such further or other reasonable particulars requested by the Solicitor for the other party within 7 days of such request.
3.Order that within 48 hours of these orders, the father execute all documents, authorities and provide all necessary consents so as to enable each of the said children [P] and [N] to each be issued with an Australian Passport with all such authorities, documents and consents being forwarded by the Solicitor for the father to the Solicitor for the mother,
4.That the passports issued pursuant to orders herein be delivered by the mother to the Solicitor for the husband within 7 days of her return from the trip referred to in Order 1 hereof. Such passports to be retained and released only pursuant to agreement of the parties or further order of the Court.
5.Leave to all parties to issue further subpoena.
6.All parties to file their primary Affidavits by 28 days prior to the hearing,
7.All parties have leave to relist on 3 days notice with respect to any application concerning therapy for the children.
In March 2011 Ms B found that she was expecting a child to the father. In April 2011 she and her son H moved into the I Street property.
On 3 May 2011, Dr Q’s report was released to the parties.
On 10 June 2011 the father took the boys to an Imaging Centre so they could be present when the sex of the new baby was identified. He says that boys were excited to see the ultrasound photos of the new baby. The child P complained to the mother that he did not want to go in and said he covered his eyes.
On 23 June 2011 P was upset and aggressive. He said to the father: “I want to die”. The father said “Don’t be silly” and “Do you really want me to kill you”. The child P said “No”.

Section 79(4)(c) contributions bn

This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage.
The father says he sprayed the fruit trees and undertook gardening and mowing. He undertook minor repairs to motor vehicles, cleaned the pool and painted and undertook outside maintenance. In 2008 the father repainted all of the inside of the house. Each of the parties undertook housework. For his part, the father did all of the cooking. The mother says that for the period until the first separation in 2008 she did the weekly shopping; principally looked after the children; did all the house cleaning and all the washing. She says she assisted with mowing and weeding. She says she attended to all the children’s sporting activities, attended school meeting and took the children out. She says that the father did not assist at all with the sporting or school activities.
The parties arranged their work schedules in order that the mother could care for the children in the mornings, including getting them up and ready for school and the father took over in the evenings, including putting them to bed.
Each of the parties made contributions as parents and homemakers.

Conclusion on Contribution

The submission on behalf of the mother is that contributions favour her 60% compared to 40% on behalf of the father. That argument is made solely on the basis of the imbalance of initial contributions. There are imponderables such as the value of the father’s superannuation as at the commencement of the relationship. Doing the best I can, I find that the mother brought more to the marriage by way of net assets than the father.
In In the Marriage of Pierce (1998) 24 Fam LR 377, the Full Court was dealing with a challenge to a property settlement judgment in which there was a finding that contributions favoured the husband 55% to 45% by the wife. The Full Court addressed interpretations of previous judgments which were said to give rise to the concept of the erosion of an initial imbalance of contributions. The Full Court said:
28.In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: See also Campo and Campo (unreported, Full Court (Ellis, Lindenmayer and Finn JJ), Sydney, delivered 19 May 1995 at pages 21 and 22 of the joint judgment) and Zahra and Zahra (unreported, Full Court Sydney, delivered 3 October 1996, per Ellis J. at page 10).
29.In the instant case, his Honour identified what he described as the greater initial financial contribution of the husband and his post separation contribution, but, in our view, he failed to properly assess such contributions. The period of cohabitation was ten years. At about the date of the marriage the husband had very significant assets. His Honour found that the husband had assets to the approximate value of $226,000. At the date of the trial, the parties had assets of a net value of $319,190 which included the matrimonial home valued at $260,000 to which the husband had contributed about $200,000 from moneys to which the wife had made no contribution.
30.There is an obligation on a trial judge not only to identify the relevant contributions but also to assess them. In this case his Honour failed to adequately, or at all, assess these contributions. In our view he failed to properly weigh the greater initial contribution of the husband, with all other relevant contributions, and seems not to have had regard to the use made by the parties of the husband’s greater initial contribution.
31. The finding and assessment that the contributions of the parties during cohabitation should be regarded as equal was, in our view, open to the trial judge. Given that assessment, we are of the view that in assessing the totality of the contributions of each of the parties as being 55% by the husband and 45% by the wife, his Honour, notwithstanding the observations of Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519, on the facts of this case, failed to attach sufficient weight to the greater initial financial contributions of the husband, and to his contributions post separation in caring for the children.
32.Accordingly, we are of the view that, in assessing the respective contributions of the parties from the commencement of cohabitation to the date of hearing as being 55% by the husband and 45% by the wife, the discretion vested in his Honour miscarried and the appeal should thus be allowed.
The Full Court in Pierce went on to re-exercise the discretion under s 79 and found that the contributions favoured the husband 70% compared to 30% by and on behalf of the wife.
Here the initial imbalance must be examined in the context of contributions made over 9 years of cohabitation and in the period since. The task is not a mathematical one. There were valuable contributions made by way of paid employment, physical contributions and contributions to the family. The initial contribution assisted with the establishment of the only interest in real property at the start of the marriage. In my view, an appropriate allowance would be 52.5% for the mother’s contributions and 47.5% for those of the father.

The other matters in Section 79

Once contributions have been assessed, the other factors in section 79(4) need to be considered. Here the mother and father agree that the proper adjustment is a 10% adjustment in favour of the parent with whom the children are to live for the greater period of time. The state of the evidence does not allow much to be done beyond accepting the agreed position. Nevertheless I will briefly refer to the evidence about the remaining factors:

Section 79(4) (d)

Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the father and mother.
Neither the father nor the mother lives on income from a business or from another matrimonial asset. Therefore the likely orders will not impact on the earning capacities of the father and mother.

Section 79(4)(e) - Section 75(2) Factors

(a) the age and state of health of each of the parties;

First, as to the age and state of health of each of the mother and father. The mother and father are 38 and 42 years of age, respectively.
There is no authoritative evidence about their physical health. Notwithstanding the evidence referred to earlier in these reasons in relation to their mental health, the parties both remain in paid employment.

(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;

The mother’s income is $1,700 per week, made up of $970 in wages as a Public Servant, rent of $680 for the M Crescent property and $50 in child support payments. She lives with her partner Mr F, her brother PW, her mother, Ms O and her husband Mr O and on a week about basis, with the parties’ children. Mr O earns about $150,000 per annum and the maternal grandmother, about $100,000 per annum. In her Financial Statement sworn 8 September 2011 the mother deposes that she does not benefit from any payments made by others and that others do not benefit from her payments. I am not sure that is in accordance with her case but there it is.
The mother’s expenses are:

Expense				Amount
Income tax				$211
Mortgage payments – M Crescent Suburb R – … Credit Union				$785
Other rates and unit levies				$155
Novated car lease				$285
Other expenses.				$925
Type of expense	Total	Mother	Children
Food	$150	$150	$0
Household supplies	$120	$120	$0
Electricity	$50	$50	$0
Telephone	$100	$100	$0
Motor vehicle - petrol	$80	$80	$0
Clothing and shoes	$150	$150	$0
Child activities	$100	$100	$0
Medical dental and optical	$50	$50	$0
Holidays	$80	$80	$0
Books and magazines	$20	$20	$0
Hairdressing, toiletries	$25	$25	$0
Sub-total	$925.00	$925.00	$0.00
Total				$2361.00

Presumably the mother’s evidence is incorrect to the extent of the expenses referable to the children. In her Financial Statement those expenses are said to add up to $2,868. On my calculations the mother has a weekly deficit of about $661.
The evidence about the mother’s assets and liabilities is set out earlier in these reasons.
There was no exploration of the mother’s earning capacity. I take it that, subject to the requirements of the children, the mother could work full time and earn a wage of the order of that of the father.
There is no evidence as to the father’s current income and expenses. Ms B gave evidence during the hearing that at that time she continued in paid employment as a Public Servant working 8.00 am to 4.00 pm.
It is not suggested that the father is not exercising his earning capacity.

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

The children P and N have lived week about between the parents. Under the orders I propose they will live with the father for the preponderance of time during school term and the parents will equally share the school holidays. Subject to the matters referred to above, the father will have sole parental responsibility. Therefore the greater parenting task and, subject to any new child support assessment, the greater financial burden will fall to the father.

(d) commitments of each of the parties that are necessary to enable the party to support:

himself or herself; and
a child or another person that the party has a duty to maintain;

I have set out what evidence there is in relation to the expenses of the father and mother.

(e) the responsibilities of either party to support any other person;

I have set out the evidence in this regard.

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

any law of the Commonwealth, of a State or Territory or of another country; or
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;

The parties each have superannuation interests. As far as I know, neither is in receipt of an income tested benefit.

(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

There is no evidence to suggest that the father and mother enjoyed more than a modest standard of living during the marriage. The parties owned a boat and enjoyed some leisure activities. There was a trip overseas for the mother after separation but I understand it was funded by others.

(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;

There is no indication that either party intends further study or to establish a business.

(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;

I doubt that the orders I propose will affect the ability creditors to recover debt. It is common ground that the M Crescent property will be sold. The secured creditor will be satisfied upon sale. As to the family loans and advances, to the extent that they are legally recoverable (e.g. not statute barred) there is a risk that some debts will not be immediately repaid. As to legal fees, in some cases security has been provided. Otherwise, there may be an issue about those obligations being met immediately. To the extent that the parties will be unable to pay their debts, that is more a function of the magnitude of the debts, particularly the legal fees paid and payable, rather than anything to do with the formulation of the orders in the property proceedings. Between them the parties, two PAYE wage earners, have spent several hundred thousand dollars on legal fees.

(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;

There were no relevant submissions on this issue.
It was the party’s arrangement that the mother took leave after the birth of each child. That is likely to have assisted the father maintain full-time employment for the periods he did.

(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;

The marriage may have affected the mother’s earning capacity. The mother may have lost the opportunities she would otherwise have had if her periods of service were unbroken.

(l) the need to protect a party who wishes to continue that party's role as a parent;

This provision has no relevance to these proceedings.

(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;

I have set out what evidence there is on this issue. Mr F is recently retired and presumably his income has reduced. Ms B’s income is likely to be affected, at least for some period, by her upcoming confinement and the new baby. It is impossible to make useful findings about the financial outcome of those circumstances.

(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;

(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

In his affidavit sworn May 2010 the father deposes to paying the mother $91.00 per week in child support. I was not taken to the details of a current assessment. As I have recorded above, in the later of her September 2011 Financial Statements the mother says she receives $50 per week and that the assessment requires that amount.

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

Nothing comes to attention here.

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

There was no binding agreement made between the father and mother.

Section 79(4)(f)

I have referred to the parenting orders made in the Federal Magistrates Court and in this court. Otherwise there are no relevant orders made under the Family Law Act 1975.

Section 79(4)(g)

I have referred to child support above.

Conclusion

It is agreed between the parents that there should be a 10% adjustment in favour of the parent with whom the boys will live for most of the time.
As far as the evidence permits, the matter identified by the parties would seem to be the most important factor among the relevant matters arising from the remaining elements of s 79.
In the context of this case 10% represents about $54,000 and an adjustment of that magnitude will made a differential between the parties of twice that sum. In my view an adjustment in favour of the father is warranted. The father and mother are of a similar age and have similar needs but the boys will live mainly with the father. An adjustment of 10% is warranted.

Just and Equitable

In a sense it is not possible to make a just and equitable distribution of the parents’ property because they have expended a large and disproportionate amount of their wealth on legal fees. That said, the net assets have a value of $537,463 ($842,132 + $167,731 - $472,400). Of that, $369,732 is in the form of non-superannuation assets and $167,731 is in the form of superannuation.
A division in the proportions 57.5% to the father and 42.5% to the mother would leave the father with about $309,041 and the mother with about $228,422.
The father seeks a splitting order and has given his trustee notice of the order he seeks. The mother seeks that the orders be expressed so that the parties retain their superannuation interests and any adjustments are made out of non-superannuation assets.
Given the ages of the father and mother, the negative aspects of holding funds in the form of superannuation are relevant here. I have not been provided with any information about the particular funds or the conditions under which the parents’ interests are held. It is notoriously the fact that there are often restrictions in accessing superannuation based on the age and employment status of the owner of the interest. It is also notoriously the fact that the value of superannuation interests can change. Over the last few years for example, the value of superannuation interests in Australia have dramatically changed for the worse. On the other hand there can be taxation advantages to superannuation interests. Whether the advantages outweigh the disadvantages or not, it can be unfair to leave one party with a disproportionate superannuation interest and the other with a disproportionate part of the non-superannuation assets. However, an adjustment of the superannuation interests in the proportions 57.5% to the father and 42.5% to the mother would require a superannuation split of the father’s interest based on $15,402.
The 10% adjustment agreed between the parents is a significant one. That is to say it could also allow for the marginal disadvantage to the father of having a greater proportion of his settlement in the form of a superannuation interest. In the circumstances it seems to me that a splitting order is not appropriate.
Of the assets and liabilities that make up the net matrimonial pool, the mother has or has had the benefit of, the following assets:

Assets

Value

M Crescent, Suburb R - mother $700,000.00

2006 Holden vehicle – mother $18,000.00

Add back for the net drawing on the … mortgage on the M Crescent property – mother $69,000.00

First State Super defined benefit interest - mother

$55,884

… Credit Union mortgage (M Crescent) – mother -$459,000.00

Lease for Holden vehicle – mother -$13,400.00

Total Gross Assets

$370,484.00

If the mother is to receive 42.5% or about $228,422, the father would need to receive about $142,062 from the equity in the M Crescent property.
That would leave the father with:

Assets

Value

Net value of the father’s interest in I Street, Suburb R $19,132.00

1992 Ford vehicle – father $7,000.00

Household contents – father $4,000.00

Haines boat – father $25,000.00

SASS – father

$111,847

Payment from the M Crescent equity

$142,062

Total Gross Assets

$309,041.00

The M Crescent property may not realise the agreed value on sale. So that the parties share in any profit or loss resulting from there being a difference between the net sale proceeds and the agreed figure, I will express the adjustment to the father as a percentage figure.
The net value of the property for these purposes is:

Mailey Circuit property

Value

M Crescent, Suburb R - mother $700,000.00

… Credit Union mortgage (M Crescent) – mother -$459,000.00

Net equity

$241,000.00

$142,062 is about 59% of $241,000. I will order that the father receive 59% of the sale proceeds after the costs of sale and the discharge of the mortgage to the credit union. I will require that the mother pay the instalments on that mortgage as a when they fall due, pending sale.

The parties were able to agree on a division of personalty to the extent of the father delivering to the mother the following items in his possession:
(a)… cream lounge.
(b)… coffee table.
(c)Cream lemon and blue stripped lounges (two and three seater).
(d)Mundial knife block set.
(e)Evinrude gas heater.
The father and mother will otherwise retain the assets in their possession and responsibility for their debts.

Conclusion under Section 79

Significant contributions were made by each of the father and mother. In a turbulent relationship they acquired assets, supported each other and provided a home for their sons. Much of their wealth has been lost in legal fees. In the course of about 9 years of cohabitation and since, the father and mother shared the work of the marriage in different ways. The mother made a slightly greater contribution than the father. The parties agree that there should be a substantial adjustment to the parent with who the children will live for the greater proportion of time.
Subject to the comment made above, those orders will reflect a just and equitable outcome.

The Form of Orders

The proposed parenting orders are necessarily complicated and not all of the specific terms of those orders or of the property settlement orders were the subject of specific submissions. I will give the parties leave to apply to restore the proceedings before me within 21 days of the date of judgment, if necessary on notice to the ICL, in relation to any agreed amendment or otherwise as to the wording, as opposed to the substance, of the orders.

_________________________________________________________________

I certify that the preceding four hundred (400) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan.

Associate:

Date: 14 October 2011

[2011] FamCA 1066

14 October 2011

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Costs

Consent

Remedies

Jurisdiction

Assets	Value
M Crescent, Suburb R - mother	$700,000.00
2006 Holden vehicle – mother	$18,000.00
Add back for the net drawing on the … mortgage on the M Crescent property – mother	$69,000.00
First State Super defined benefit interest - mother	$55,884
… Credit Union mortgage (M Crescent) – mother	-$459,000.00
Lease for Holden vehicle – mother	-$13,400.00
Total Gross Assets	$370,484.00

Assets	Value
Net value of the father’s interest in I Street, Suburb R	$19,132.00
1992 Ford vehicle – father	$7,000.00
Household contents – father	$4,000.00
Haines boat – father	$25,000.00
SASS – father	$111,847
Payment from the M Crescent equity	$142,062
Total Gross Assets	$309,041.00

Mailey Circuit property	Value
M Crescent, Suburb R - mother	$700,000.00
… Credit Union mortgage (M Crescent) – mother	-$459,000.00
Net equity	$241,000.00