Payne and Payne

FAMILY COURT OF AUSTRALIA

PAYNE & PAYNE

[2007] FamCA 605

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Best interests - Father's mental illness - Family violence - Children's wishes to spend more time with father - Supervision of time spent
FAMILY LAW - PROPERTY SETTLEMENT

Family Law Act 1975 (Cth)

APPLICANT:

Mr Payne

RESPONDENT:

Mrs Payne

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYF

4343

2003

CHILDREN’S ORDERS MADE:

23 May 2007

PROPERTY ORDERS MADE:

29 May 2007

DATE DELIVERED:

29 May 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

5, 6, 7, 8 and 9 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Givney

COUNSEL FOR THE RESPONDENT:

Mrs O'Connor

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Ms Boyle

Orders:

Final Children’s Orders

All previous parenting orders are discharged.
The children a son born … February 1995 and daughter born 9 March 1997 live with the mother, … .
The mother have sole parental responsibility for the children.
Interim Children’s Orders

IT IS ORDERED PENDING FURTHER ORDER:

The children spend time with the father, …, on the following basis:
(a)commencing on the first Saturday after the making of these orders being a date when the father is able to arrange for one of the supervisors to be available and then notifies the mother through her solicitor that he is in a position to commence his time with the children under this order, and on each third weekend thereafter, from 10 am on Saturday or the conclusion of each of the children’s sporting commitments, until 4 pm on Sunday;
(b)commencing three weekends after the father’s last time with the children in the month of July 2007, and on each third weekend thereafter, from 6 pm on Friday until 4 pm on Sunday,
Provided that:
(c) the children’s time with the father is supervised by:
(i)Ms F; or
(ii)Mr and Mrs P; or
(iii)Ms C; or
(iv)such other person agreed to by the parties,
and those persons sign an undertaking in respect of their supervisory responsibilities in accordance with annexure “A” to these orders.
(d)the children’s time with the father is conditional upon the father’s compliance with order 6 below.
The children’s time with the father pursuant to order 4 above be facilitated as follows:
(a)the father forthwith cause the mother’s solicitor to be provided with contact details (address and telephone numbers including mobile telephone numbers) for each of the named supervisors referred to in these orders;
(b)within seven (7) days of the date of these orders the mother will provide to each of the supervisors nominated in order 4 above her home and mobile telephone numbers;
(c)Prior to any time the father spends with the children he is to ensure that a signed undertaking in the form annexed to these orders (Annexure “A”) is held by the mother’s solicitor in relation to the particular supervisor which the father will have with him on that occasion.
(d)the father will advise the mother of the identity of the supervisor for each period of time the father will spend with the children under these orders as the time approaches and no less than 48 hours prior to the children’s scheduled weekend time with the father;
(e)in the event that the children’s time with the father pursuant to order 4(a) cannot commence at 9.00 am on Saturday due to their sporting commitments, the mother will advise the father of the time for collection of the children that weekend;
(f)the mother will deliver the children to the supervisor at McDonalds Family Restaurant, A McDonald’s Restaurant at the commencement of their time with the father; and
(g)the mother will collect the children from the supervisor at McDonalds Family Restaurant, A at the conclusion of their time with the father.
(h)the father and his supervisor are to be permitted to collect the children from their sporting fixtures on Saturday morning at the commencement of the children’s time with their father provided the supervisor for the particular weekend has spoken to the mother and made prior arrangements to collect the children from the sporting commitment for that particular occasion.
The children’s contact periods with the father provided for in order 4 above be conditional upon:
(a)the father attending for regular treatment and review upon Dr G, … Medical Officer and/or such other psychologist or psychiatrist to whom Dr G may refer him, at such times and at such frequency as those persons may direct; and
(b)the father continuing to take such medication as prescribed by Dr G, or any other psychiatrist providing treatment to him; and
(c)the father providing to Dr G or any other psychiatrist/psychologist who may be treating him, within seven (7) days of the date of this order an irrevocable authority to notify the mother and the Independent Children’s Lawyer if the father:
(i)ceases to take his prescribed medication;
(ii)ceases to follow medical advice or attend for psychiatric review as may be required of him;
(iii)in his opinion, the father’s mental state is such that he is not able to properly care for the children during contact periods,
AND should the father not provide such an authority, then the children’s time with the father pursuant to order 4 above shall be suspended.
Leave to the Independent Children’s lawyer to provide a copy of these orders, together with the mother’s telephone number, to Dr G and each of the supervisors nominated in order 4 above.
The Independent Children’s Lawyer is to inquire of Dr G whether he holds the signed authority prior to the first period of time the children are to spend with the father and then confirm directly with the mother that such authority is held. The solicitor for the mother is also to be informed of this information.
In the event of the mother receiving advice from Dr G or another Psychiatrist/medical officer pursuant to an authority provided by the father to that person under these orders the time for the father to spend with the children is suspended and the father has leave to re-list the matter before the trial judge on short notice.
The children communicate with the father by telephone:
(a)each Wednesday evening (or such other day as may be agreed between the parties) between 6.30 pm and 7.00 pm; and
(b)each Sunday when the children are not to spend time with the father pursuant to order 4 above, between 6.30 pm and 7.00 pm,
Provided that such calls are not to be longer than 30 minute’s duration. Unless and until the father is provided with the mother’s landline telephone number the mother is to cause the children to make the call to their father at the appointed time and on the appointed day.
The parties and each of them forthwith do all acts and things and complete all applications for intake into the Family Counselling Programme offered by Centacare at N and the parties and children attend such appointments for family counselling as may be reasonably arranged by that service Provided that the father and the mother are to be seen separately in the course of such therapy.
Leave to the Independent Children’s lawyer to provide to the family counselling team at Centacare N:
(a) Dr R’s Part 15.5 Expert report dated 17 July 2006;
(b) Dr G’s report dated 25 January 2007; and
(c)The reasons for Judgement of the Family Court delivered in respect of this matter.
On or after the 1 October 2007, the parties and children attend upon Dr R, Child and Family Psychiatrist for further assessment and update report in relation to:
(a) the progress of the children’s time with the father; and
(b)the stability of the father’s mental health and progress of his mental health treatment.
The Independent Children’s Lawyer be responsible for making the appointments for the parties and the children (in consultation with their lawyers) to see Dr R for the further report required by these orders.
The father and the mother be jointly liable for the cost of Dr R’s update report and for this purpose each shall, by 1 September 2007 pay the sum of $1,100.00 into the Legal Aid Commission of NSW Trust Account for payment by the Legal Aid Commission to Dr R upon completion of her report.
The mother do all acts and things necessary to authorise and direct the Principal(s) of whichever school(s) the children may attend to provide to the father, copies of the children’s term school reports (if provided), and information about the children’s academic and extra curricular achievements and progress, and for this purpose the mother will provide to the relevant school Principal(s) a copy of these orders.
Liberty to each party and the Independent Children’s Lawyer to re-list this matter before me at any time in relation to a children’s matter.
Pursuant to sections 65DA(2), and 62B 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 Annexure "B" and these particulars are included in these orders.
NOTED that it may be possible for the father to attend some appointments for family therapy pursuant to order 11 above at the offices of Centacare C.

Schedule “B”
I [the father] of [G] hereby authorise and direct [Dr G] to contact the Independent Children’s Lawyer Alex Wearne at the NSW Legal Aid Commission […] and the children’s mother […] (through her solicitor Kylie Holmes […] in the event of your being of the opinion that my health is deteriorating to a level where you think it would be unwise for me to spend time with my children or where you hold the opinion that any of the following conditions apply:
(i) I cease to take my prescribed medication;

I cease to follow medical advice or attend for psychiatric review as may be required of me;
In your opinion, my mental state is such that you believe I am not able to properly care for the children during their time with me under these orders.
DatedMay 2007 …………………………
Final Property Orders

The parties do all things necessary to cause the sum of $273,051 to be paid to the mother from the funds held in trust for the parties in the ES deposit together with 62.5% of the balance which exceeds $332,741 prior to any distribution under these orders.
The parties do all things necessary to cause the sum of $59,690 to be paid to the father from the funds held in trust for the parties in the ES deposit together with 37.5% of the balance which exceeds $332,741 prior to any distribution under these orders.
The mother sign any document tendered to her on behalf of the father as may be necessary to transfer to him any interest she may have in his Hyundai motor vehicle.
The father sign any document tendered to him by or on behalf of the mother as may be necessary to transfer to her any interest he may have in the Holden Rodeo motor vehicle in her possession.
The father sign any documents tendered to him by or on behalf of the mother as may be necessary to transfer to the mother his interest in the jointly owned A investment, the joint T shares and the joint H shares.
The mother sign any documents tendered to her by or on behalf of the father as may be necessary to transfer to the father her interest in the jointly owned A shares.
As between the parties each party otherwise retain as their absolute property all other property in their respective possession or control.
Each party is to cause the sum of $5,000 to be paid from their share of the funds paid to them from the ES deposit, to be paid to the Legal Aid Commission of NSW for the payment of costs of the Independent Children’s Lawyer, immediately upon receipt of the funds pursuant to these orders.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4343 of 2003

Mr Payne

Applicant

And

Mrs Payne

Respondent

REASONS FOR JUDGMENT

Introduction

This case, like so many which the Court hears now, is a sad and difficult case. The children, a son aged 12 and a daughter aged 10, love their father very much and always have. The father loves his children very much and is desperately seeking the opportunity to have them as part of his daily life. The one matter which interferes in the father being able to share equal time in the care of the children with their mother is his history of mental ill health.
As the history of the parties’ relationship has unfolded it now appears that the father has suffered from depression of different types from about 1988 to current date. This depression, it seems probable, caused the breakdown of the marriage in circumstances where the illness did not enable to father to be able to identify why the mother withdrew from the marriage.
It is acknowledged by the mother that the father was a loving and involved father to the children until about the date of separation in mid 2003. Thereafter events of a catastrophic nature have besieged the father and robbed his children of his care and nurturing. These events, I am satisfied, stem from his depression and mental ill health.
At the time of the hearing the evidence from the father’s treating doctor discloses a guarded but positive view of the future for the father. His prognosis is good. He shows considerable insight into his illness and is compliant with his doctors medical advice. Unfortunately the history of the condition suffered by the father shows that there is always the possibility of decompensation to ill health.
At the conclusion of the hearing the Court Appointed expert, Dr R, suggested a trial of time for the children with the father. She suggested a review in about six months time with the view to looking to relax or eliminate the necessity for supervision if the children’s time with their father works well for them.

Background facts

The father was born on … January 1958 and is 49 years of age. The mother was born on … October 1958 and is 48 years of age. The parties commenced their cohabitation in about 1982 and married on 19 September 1992. The parties separated in July 2003.
There are two children of the marriage: a son born … February 1995 (now 12) and a daughter born … March 1997 (now 10 years of age.).
At the commencement of the cohabitation the father had savings of about $10,000, a motor vehicle, tools of trade, furniture and effects (this is a disputed fact which I will deal with later). The mother had furniture and effects. The father was employed as a tradesman and also played professional rugby league which earned him about $3,000 per annum. The mother was employed by the T company. She later obtained employment as a senior accounts administrator at E company.
In 1985 the parties purchased a vacant block of land at TM. The purchase price was $26,950. The parties borrowed $25,000 from the State Bank. At some time later the father discharged the mortgage after winning $27,000 through betting on a horse race.
In about 1985 the father joined the New South Wales Public Service. In 1989 he completed a course and obtained a tradesmen’s Licence. In 1990 he became a partner in B Company.
In September 1992 the parties married and commenced to live at L.
In 1993 the father made a claim for Workers Compensation arising from a motor vehicle accident. The father received somewhere between $57,000 and $60,000. It seems common ground that the money or at least part thereof was invested in a business conducted by the father.
In 1995 the mother gave up her work due to pregnancy. She received $12,700 in retirement benefits. The son was born in February 1995. In that same year the parties purchased a property at P for $283,000. The purchase was funded through the sale proceeds of the TM property of $81,000, compensation monies received by the father, monies received through an A investment and the investment in B Company. The parties borrowed about $100,000.
In March 1997 the daughter was born.
In September 1999 the parties sold the P property for $460,000. They then purchased a property at R. Thereafter renovation work was carried out on the property principally by the father. The father says he reduced the contact work he was taking on in order to work on the renovations. He undertook minor contact jobs during this time to continue to provide income. The mother says the father was largely unemployed during the period until May 2003. There is little inconsistency between the parties on this issue and I do accept the father’s evidence on this point.
In about August 2001 the first evidence emerges of disharmony between the parents. At that time the mother alleges that the father kicked her whereas the father said he pushed the mother away with his feet.
In July 2002 the parties sold the R property for $633,000 and moved to W where they leased a property. In April 2003 the parties moved to D. In that year the father commenced full-time employment.
In 2003 the mother again alleges conflict between the father and herself and the father and the children.
In July 2003 there was a period of separation between the parties. During this time the father had contact with the children at specified times. On 29 July 2003 the father filed an application in the Family Court. At about this time the parties agreed to an equal shared time arrangement for the children.
In August 2003 the mother rented premises for herself in W. On 7 September 2003 the father attended Y Hospital. Further mention of this event will be made at a later time. The father was discharged from hospital on or about 19 September 2003.
In October 2003 the mother alleged the father attended at her home and tried to open the door and gain entrance. She further said that the father had made suggestions that he would kill both the mother and the children however he then apologised.
In October 2003 the mother applied for an Apprehended Violence Order against the father.
In November 2003 the father was admitted to Q Hospital where he stayed for six weeks.
On 11 December 2003 an Apprehended Violence Order was made by consent.
On 16 December the mother alleged the father had attended at her home contrary to the AVO. The police were called and the father was arrested.
In December and early January 2004 the children had some contact with their father.
In February 2004 the mother says that during a telephone conversation between she and the father he said to her, “I think I’ll just commit suicide.” She then telephoned the police who visited the father.
In March 2004 at the father’s request the mother attended the father’s home. She says she observed the father shaking. She said the father told her he was thinking of stabbing himself.
Again in April 2004 the mother claims the father threatened suicide.
In April 2004 the father was arrested on the complaint of the mother.
On 3 May 2004 the father was convicted of breaching an Apprehended Violence Order. He was fined $500 and sentenced to six months gaol suspended on the basis that he be of good behaviour.
On 14 May 2004 the father was again arrested on the complaint of the mother. He was taken to Gaol. He was later convicted of breach of Apprehended Violence Order. He was sentenced to nine months imprisonment. The father appealed. His sentence was reduced to one month’s gaol expiring on 24 June.
In July the father telephoned the mother and asked for $5,000 which she refused.
On 9 July 2004 the father smashed the door of the mother’s home with a sledge hammer and entered her home. He stayed in the home until 10 July. For this the father was arrested and bail was refused. The father attended before the District Court on 7 April 2005 and pleaded guilty to break and enter. He was sentenced to the rising of the Court. The father had spent 10 months in gaol.

In late 2004 the father’s contact with the children ceased.
Dr R was engaged as an expert in the proceedings in this court. On 1 June 2005 she saw the children and the father together. On 24 June 2005 Orders were made for the father to have contact with the children each alternate weekend from 10.00 am to 2.30 pm at the father’s sister’s home to be supervised by the father’s sister.
The father says that on 1 September 2005 he lost his accommodation as a result of statements made by the mother to his landlady.
In September 2005 the father had his first consultation with Dr G.
On 1 December 2005 the mother applied for variation of the Apprehended Violence Order. She later withdrew that application.
On 15 December 2005 Orders were made for the father to have contact at the CentaCare Children’s Contact Service at O or N. He would have contact from 11.50 am to 1.15 pm on 24 December 2005 and then each second weekend as arranged with the contact centre.
On 1 February 2006 the father was admitted to U Hospital and remained there until 6 February. On 23 February 2006 he returned to U Hospital again and remained there until 28 April 2006.
In January 2007 the father entered into a Z contract. He paid $30,000. This was financed by visa card drawings of $10,000; sale of I shares of $6,000; long service leave proceeds of $10,500; and savings of $3,500.
On 18 January 2007 the father saw Dr G for a review.
On 17 July 2006 Dr R signed an affidavit which annexed a report prepared by her for the court. In order to prepare the report Dr R says that she saw the parties and the children over a period of time commencing March 2005 and concluding 30 June 2006. She reviewed documentation provided to her by the letter of instruction from Ms Holmes, the mother’s solicitor. She also reviewed documents provided by the Independent Children’s Lawyer. She listed a number of conversations she had including a conversation with Dr D, Psychiatrist at U Hospital.
The mother reported to Dr R in March 2006 that the father continued to be angry and was in counselling. She said that he had not been as aggressive to her since the incident in August when he physically assaulted her.
When the children were seen by Dr R on 9 March 2006 she reported as follows:
‘“Both were very forthright about their wishes about father. [The son] stated he wanted to see more of him while [the daughter] thought he “should live down where we live and we have one week with Mum and one week with Dad”. … [The son] agreed with her.
…
If sharing residency is not possible, [the son] said he’d like to see Dad more – from Saturday to Sunday at their aunt’s home. If residency was equally shared, “Dad would be really really happy”. [The son] spontaneously volunteered that Dad had not asked them to say anything to me.”
In her “Assessment of [the daughter]”, Dr R reports as follows in relation to her presentation in August 2005:
“[The daughter] presented as a confident eight year old with a positive mood. She seemed happy with her new school and mentioned many children who are her friends. She thought seeing Dad is “fantastic” and wanted more time with him. Asked how much time, she said “a couple nights or a couple of weeks…then go to Mum’s for a couple of weeks”. Asked what it is like to say good-bye to Dad, [the daughter] said “sad” – she and Dad cry. However she is “not really” worried about him.”
In relation to the son she said, “He has a bad temper.”
In her report under the heading “Assessment of [the son]”, Dr R says as at 8 August 2005:
‘[The son] was a rather tense 10 year old who did not impress as being happy. He volunteered to be seen first and did not have to think about what it was like seeing Dad again (“good…fun…great”) and how he would like to see more of him, suggesting for “a couple of weeks…fifty/fifty…a week each” with Mum and Dad. He stated Dad “might move down” to where they now live. Asked who else wants the shared residency, [the son] replied “[the daughter] and Dad…Dad says this is what he would like…didn’t tell me to tell anyone”.’
Dr R recorded that the son acknowledged he had been in fights with his mother.
Dr R recorded that when the son was asked to state his “3 Magic Wishes” the son said:
‘1. “Dad and Mum to get back together”, which he knows will not happen.
2. “Happy life for everyone”.
3. “Everyone to be rich…buy a mansion”.’
When Dr R saw the mother in 2005 she reported as follows:
“She described still feeling “very, very scared” of [the father] as she does not “believe he’s over the marriage breakup”. She fears he could break in again and wonders if he could kill her. She seemed unsettled that he had not agreed during the Court proceedings in June to building up to overnight contact over three months. … [The mother] wondered if they “could have a repeat of [W]…hope he gets back to his normal self”.’
The mother told Dr R that in relation to the son she has reports of problems with anger at school and that he has been aggressive at home to both the daughter and the mother. She told of having ended an hour long telephone call between the son and his father. When she terminated the call the son punched her in the face, drawing blood, kicked, swore, threw things and did not settle himself for about an hour.
Dr R saw the mother again in March 2006. On that occasion she reported that the children were doing well at school. She said that the son in particular blames her for his father’s condition. She said the son’s anger has improved a little. She said he punches the daughter. She said that the son has said for some years, “I wish I could kill myself … where’s the knives?” She said she had put the knives up high as once the son grabbed a knife when they lived in W. She told of how the son is resisting counselling. He insists that she stay in the room with him. The mother reported that she continued to see a counsellor approximately three weekly. She said that she was, “okay – get very scared of him, can’t talk to him, get nervous when see him.” She occasionally has flashbacks to the time when she was “held up by him.”
Dr R records:
“Her current application is for supervised day only then supervised overnight visits, with the supervisor signing an undertaking to always be there at the visit.”
Dr R saw the father on 1 June 2005 and 30 June 2006. There are some five pages of typed notes reporting on the interviews with the father.
In June 2005 Dr R reported as follows:
“[The father] presented as a determined, astute, weather beaten 47 year old man. He said his previous application had been for shared residency but now it was for contact, so he can spend “as much time as possible (with the children)…would like full custody”. He remained self contained and clearly determined to make a good impression. However at the end of the interview, after seeing the children, his anger was apparent as he gave vent to his frustrations with the lack of contact with them. With minimal control, he declared he had “proven” himself in the eight weeks since his release from prison – he had not contact the children.”
In the interview Dr R records the following:
‘He blushed as he admitted he had made [the son] wear soiled underpants tied on a piece of string around his neck. Saying “it was wrong”, he spoke of how he and [the mother] had been very frustrated with [the son’s] soiling “[The mother] would get cranky at him over it…did it to show him need to go to the toilet”.’
Further in the interview is recorded an assertion by the father that the mother agreed to this conduct. She then said it was, “not right” and he agreed to that and removed the underpants.
The father told Dr R that in September 2003 he had his first nervous breakdown when he was hospitalised for two weeks in Y:
‘While he had then thought of self harm and hurting [the mother], he declared he “would never do it”.’
The father spoke of a further admission in October 2003 to Q Hospital for six weeks. The father denied asking anyone to kill the mother during his more recent gaol term, “he explained that the man made this allegation at his bail hearing for “leverage” for himself and the matter was not prosecuted by police after it was investigated.”
Dr R reports:
“[The father] sees himself as a loving, caring father, honest, reliable, a hard worker. … He has been told he is a perfectionist but cannot see it himself as, to him, it’s just “doing the job properly.” He acknowledged being irritable if things went wrong but feels [the mother] is less tolerant of mess than him – the house was “always nice and clean”.”
The father spoke of his first depression as being in 1988 when a “job went bad”. He had taken medication for about a month on that occasion.
The father told Dr R that he now realised that he had been suffering from depression for most of his life.
In her report on page 13 when referring to the 2005 interviews Dr R includes the following paragraph:
“Feedback [Mr K], Intern psychotherapist, Dept. of Corrective Services – [The father] had asked him to call me, wanting to know how to get the children back. [The father] had been seeing him weekly, refused to see psychiatrists as they had previously been of no help to him and now had stated he was not returning to see [Mr K]. [The father] was said to have ongoing depression, with negative self evaluation, negative ideas of the future and “hates his job and living conditions”. [Mr K] stated [the father] would “not do anything to help himself” and impressed as an immature person.”
Dr R reports that in June 2006:
“[The father] presented as euthymic, with normally reactive affect, normal form and content (given the circumstances) in his thoughts and speech and appropriate appearance. He confirmed he has been well since his discharge from [U] Hospital on the 28/4/2006: …”
The father reported to Dr R that he has been seeing his treating doctor, Dr G (Medical Officer, Community Psychiatry, PA Community Health Centre) monthly (as recommended by Dr G). The father explained to Dr R that he was living with friends who had a 13 and 11 year old child. The mother in the household was Ms F who had offered to supervise the contact.
One of the matters canvassed in the interview was the father’s application for a job at the children’s school. He conceded that he “would have said to them (the children) not to mention it to their mother at this stage” because he was not sure if he would get the job and, “[The mother] starts panicking … she’s done things to stop me getting close to the children.”
Dr R reports the father confirmed he told the children he had not wanted a visit to occur in a contact centre because he believed, “they should not be put through that … it’s for people who can’t be trusted with their children … who are rapists, child molesters, violent.” The father did not know why he could not be trusted with his children.
Under the heading “Summary of Discussion” Dr R reports as follows:
“The children have a strong connection to their father, as would be expected given his extensive involvement with them in their early years. They have undoubtedly been distressed throughout the years of the breakdown of their parents’ marriage, their father’s depression and hospitalisations, their mother’s traumatic experience, when she perceived her life was threatened by her ex-father, and their father’s imprisonments..”
Dr R in her report then deals with how the contact between the children broke down. In particular the mother referred to hearing from the contact centre supervisor of the father telling the children he wanted to die. Further, the father reported that he had shared his plans to work at the children’s school with them and asked them not to tell their mother.
Dr R further says:
“At interview he did not demonstrate any awareness of how he was undermining [the mother’s] parental authority and emotionally manipulating the children by his behaviour. The children have responded with some role reversal behaviour – they attempt to care for him by advocating for his wishes, wanting to make him happy (?keep him alive). Because of this parentification, their wishes for contact need to be viewed with caution.
[The son’s] history of aggressive conduct is a concern and reflects the parental discord, loss of his father and psychological upset in his mother, leaving her scared of his father. He is identified with his father, particularly around anger and it is important BOTH parents assist him to manage his anger, as well as model appropriate expression of their own anger (an emotion which often indicates vulnerability.”
In relation to the father Dr R says as follows:
“[The father] has a history of recurrent Major Depression, which predates the breakdown of his marriage (and probably contributed to it). From his behavioural changes after the children were born, the depression post separation and the failure to rehabilitate himself post release from prison (the latter despite adequate services being available to him), it would appear [the father] has significant difficulties functioning in an adult autonomous manner unless he is emotionally stabilised in a relationship which is meeting all his dependency needs. This impression is supported by the observations he would not help himself by several helping professionals who attempted to work with him; his comfort with being hospitalised and apparent well being since he was befriended by the family he currently lives with. Undoubtedly having his Major Depression adequately medically treated has helped but in [the father’s] functioning there is evidence of disordered personality traits whereby he gets his dependency needs met by inappropriate means. It is a concern that he has attempted to transfer his dependency to his children. He will be at high risk of further depression and possibly acting out (again) if a decision is made for no contact with them.
[The father] showed no insight into his disordered functioning, which is also evident in him not being able to give an accurate history of recent events – he denied being non compliant with medication, although this is documented in his clinical notes; he maintained he was not scheduled on 1 February nor was he a suicidal risk (neither of which is accurate according to his notes) and he explained as a “misunderstanding” that other patients on the [V] Ward had twice told nurses about his suicidal ideation. [The father] telling fellow patients, not the staff (to whom he denied such thoughts) is another example of [the father] using vulnerable people in a self serving manner.
I have no doubt [the father] loves his children but is unable to put their needs ahead of his own. I do not consider him to be a suitable residential parent. If the family he resides with are deemed suitable, week-end contact every three weeks should commence in this household. More frequent and unsupervised contact needs to be predicated on him establishing a record of stable mental health and, more importantly, a stable home in an appropriate community setting, where he feels well supported.”
Dr R’s conclusions in respect of the mother are set out on page 18 of the report and I have read those conclusions.
An affidavit was filed by the Independent Children’s Lawyer on 7 July 2006. The affidavit was by Ms I, a supervisor from M Welfare Services. The report relates to supervised contact between the father and the children on 17 and 24 January 2006. In the affidavit there is some description of appropriate and inappropriate interaction between the children and their father. There is reference to the observation of the deponent of the farewell between the children and their father at the conclusion of the supervised contact. The father was tearful and this provoked the daughter in particular to be distressed.
The father gave oral evidence. He confirmed that he was still residing at G. He confirmed that he had recently entered into a contract with Z. That contract was with a partner and the father had acquired a fifty percent share in the business. The business sells power at a discount rate. In order to acquire the business the father had incurred a liability of $44,000 and had paid $34,000. The purchase price was provided from the sale of I shares from which he received $6,999. He also used $10,500 he received as long service leave and $10,000 which he borrowed against his visa card. He had savings of $3,500 which he contributed towards the purchase. At the time of giving his evidence he had not commenced to sell electricity.
The father said he was currently taking Effexor medication, 300 mls each morning. That medication was prescribed in the U Hospital by Dr G. He said he saw a Dr G about every six weeks.
The father said he had seen the son at contact last weekend on a Saturday between 12 and 2.00 pm. The son had complained to his father that his mother could not facilitate his trying out for a soccer side in the local zone as it was too far to travel.
The father was questioned by the Independent Children’s Lawyer.
The father said he had been seeing Dr G since September 2005.
The father agreed that he had contact with mental health workers about several weeks after separation from the mother. He agreed that contact was at Y and that he had suicidal thoughts. He agreed that on 10 September 2003 he was admitted to hospital and remained there until 19 September. He was then transferred to the A Hospital until 24 September. He conceded that on 19 September he was transferred to T after being scheduled. He was told that an anger management course would be helpful and he undertook that course. He undertook that course whilst he was in gaol. It was a three-hour session every day for a week or so. He felt that he learned something from that.
Between June 2005 and Christmas 2005 the father saw a second psychiatrist at S. He said he told Dr G that he had seen that psychiatrist.
The father admitted that he had a problem with gambling when he was playing poker machines and that was in about the year 2000. He said this problem existed for about six months. He would gamble every Friday night and he would spend $1,000 or more.
Between 6 November 2003 and 8 December 2003 the father was admitted to Q Hospital. He said he was suffering from depression.
The father spoke of his former relationship with most of his sisters and brothers. He said he had not spoken to any sister or brother for five years apart from Ms C and Ms B. He said that his sister Ms B had offered to supervise his time with his children. She last offered in May 2006.
Following the orders of June 2005 the father saw the children for eight visits over 16 weeks supervised by his sister. He saw them from 10.00 am to 2.30 pm. He was asked why that arrangement broke down. He replied, “We were supposed to do six weeks and then look at overnight. I was told I could move to overnight if Ms C was able to supervise. Ms C said that she could not be there one hundred percent of the time and the mother said without one hundred percent supervision she would not agree. We put up other supervisors but none were acceptable.” The father said that after he had asked for overnight contact and had disclosed that his sister Ms C could not supervise for one hundred percent of the time the mother said that he could not see the children after that time. Thereafter the father brought an action in the Court for unsupervised overnight time with the children.
The father said that he now lives alone. His co-tenants moved out about five months earlier and now live at LD where they own and operate a shop. He said he sees them every second day. He confirmed that his former co-tenant Ms F was still prepared to supervise the time he could have with the children. The father said that the house occupied by him was furnished with sufficient furniture to house the children. He could also accommodate somebody staying overnight with the father and the children.
During 2006 the father said he had been in U Hospital on two occasions. On the first occasion he said he had been scheduled. The second occasion was between 23 February 2006 and 28 April 2006. The father conceded that in January 2006 he had told the PA Community Health Centre Officers that he had ceased taking his medication. He denied that he had ceased for a period of two weeks. He conceded that this was a time when he was seeing the children supervised by M Services.

The father denied that on 17 April 2006 whilst in U Hospital he told a patient that he had placed a plastic bag over his head at night. He further conceded that he probably told Dr G in June 2006 that Dr R was spreading rumours about him which were not true.
On 4 September 2006 orders were made allowing the father to send letters to the children. On 6 September 2006 he sent the first letter. The father said that he had sent earlier letters through solicitors. The father said that he spent two to three days writing the letters and then he asked Ms F to check them and make sure that they were appropriate.
The father agreed that in his letters he had said to the children he would like to have heard from the children on Father’s Day.
On 18 September 2006 the father sent a letter to the children. In that letter he conceded that he said, “Just a short note to let you know that I have been doing everything to see you …”
The father concedes that on 30 September 2006 he wrote to the children that he was not allowed to see them at Christmas time. The father was aware that the contact centre would be closed but he had asked for the mother to make other arrangements. He was then taken to a letter of 21 December 2006 requesting Christmas time with the children. He said that he had asked his solicitor two months prior to that to try and organise it and again two weeks prior to Christmas.
The father agreed he wrote to the children on 20 December and sent Christmas presents. He agreed that he had said to the daughter, “This is the third Christmas I have not been able to se you.” He further agreed he said to the son, “I am being stopped from seeing you.” He said he was trying to give the children the message that if he could be there to see them he would.
The father was asked what he would propose to do if he felt himself becoming ill again. He said he would see Dr G. He said that he is a good support. If the children were with him he would put them with his sister and contact the mother. He would get help for himself.
The father agreed that he had told the children he had applied for a job at their school. He said to them, “I think it might be best not saying anything to your mother until I have the job.” He said it was the end of 2005 that he applied for the job.
The father said that he thought it would be hard to move down the coast closer to where the mother lived. It had been suggested to him that he could live in N about an hour’s trip from where the mother lives.
The father said that he holds the view that the mother has shown symptoms of parental alienation syndrome and malicious parent’s syndrome.
The father was cross-examined by the mother’s counsel.
The father accepted that the mother was told by a policeman that a person had said in Court the father had asked him to kill the mother. He denied that he had ever said that.
The father was taken to the incident where he broke into the house. He said he had not slept for 30 hours. He said he had asked for money to be able to see the children and the mother had denied that. He claims she said, “Bad luck it’s not my problem.” At the time this occurred the father was off his medication. The father asserted that the last time he stopped taking his medication was in January 2006.
The father confirmed his allegation that the mother does not allow free and easy telephone contact between he and the children.
The father conceded that on Christmas Day 2005 he received a phone call from the children.
The father confirmed that when he was in Y Hospital in September 2003 he had told staff that he had a gambling problem with significant loss of money. He was asked what did he mean by significant? He replied $100,000 over a period of 18 months. Over 21 years I lost about $20,000. I won money before and after the period when I had a gambling problem. During the problem time he had lost about $1,000 per week over six months on poker machines.
The father conceded that at separation there was $15,000 in an account which he took. He said that he used it to pay rent and also to meet debts that the parties owed.
The father conceded that when proposing that Ms F should be the supervisor he did not tell the mother what Ms F’s problems were.
The father was asked about his assertion that he had carried out renovation on two properties. It was put to him that on occasions the mother had helped. He replied no. She helped for an hour or so to pull up some carpet. He asserted that he did all the work. He conceded that she might have helped in a minor way with the things she could do. He conceded that when he was working on renovations to the house the mother was doing housework. When the children were younger they were at day care so the father asserts that the mother was not spending all her time caring for the children. He conceded that in relation to the R property the mother may have helped with cleaning up.
It was put to the father that during the cohabitation the mother did the accounting books for his business. He replied no, however when GST came in he conceded she wrote up the books. He conceded that she helped him put together the documents that went to the accountant.
The mother gave oral evidence. She tendered as Exhibit M8 documents to support her claim of a debt for $30,500 to her father. I have been through exhibit M8. The marked documents in that exhibit (cheque butts, deposit slips etc) do not add up to $30,500. On my calculation they add up to $24,500 or thereabouts. In exhibit X1, a document prepared by the father’s counsel, it is noted that there is a liability for $30,000. It is noted that it falls into the category of “controversies”. No specific submission was made about this item however I understand from the document that the argument proffered is that the loan was made post separation for legal fees and general living expenses and therefore on the authority of Chorn & Hopkins it should not be added to the balance sheet.
I noted from the documents in exhibit M8 that almost all of the advance is said to be made for legal costs.
The mother conceded that the son had asked to try out for the zone soccer team. She said that she had told the son she could not afford the travel.
The mother said that both children play sports and quite often they are at different venues. Her father assists in taking one of the children to sport. During the summer the daughter does dancing and the son does tennis which is at AD.
The mother was asked about the incident on 9 July 2004 when the father broke into her house. She was asked what she told the son about the incident. She confirmed that the son had not been at the house during the incident. She said she told the son that his father had broken into the house with a sledge hammer. She said that the son did not want to know too much about what had happened.
When the father was in gaol the mother said that the children had contact with their father by mail. They sent him a Father’s Day card. There were further letters from the father to the children in about December 2004. She said the children knew that their father was in gaol. They missed him. The daughter was having dreams.
The mother agreed that on 20 November 2004 a police officer told her about the threat that had been made to her life in Court. She said that the children did hear some of the conversation but in particular they would have heard their father’s name. She conceded that she was crying and shaking when she saw the children after meeting with the police officer. That night she stayed in a motel with her parents. On Monday she moved herself and the children from W. She told the children there was no longer any reason to stay in W. She said the children did not want to leave W with their friends and their schools. The mother said that the children have attended a number of schools. They included: B; W; D; W again; MN and then their current schools. She said that after the father was released from gaol in 2005 she told the children that he was out of gaol. At a later time the children asked to see him. They had asked to see their father before the interviews with Dr R. The first time they saw him after his release from gaol was when they saw him with Dr R.
On 15 June 2006 the son was violent to his mother arising from circumstances where she had terminated a telephone call between he and his father. In the month of June, the son had been aggressive to the daughter, coming up behind her and putting arms around her neck. The mother had told him not to do this. The next night he kicked her in the back and hit her on the wrists.
The mother said the next morning she and the daughter were in her bedroom. I said I needed to talk to the police about the son’s behaviour. The son was in the kitchen and came down the hall with a knife in his hand. He said are you going to call the police? I said put the knife back. The mother was very upset about the incident and grounded the son for one month. The mother felt that she should take the son to the police. She received a call from the Department of Community Services. The mother and her father decided to take the son to the police. They took him to see a constable at the police station. The policeman said to the son that he could see he was a young boy and that he needed to control his anger.
The mother was asked whether there were any other problems between she and the son. She said he can come at me with his fists or at his sister with fists. The last event was in December 2006. He repeated this action a week ago. The mother said the daughter is afraid of her brother when he is cranky. In the last two weeks the son had said to his mother, “If you hadn’t left dad I wouldn’t be like this.”
The mother explained that the son had been to counselling with her to see
Mr S. She said he did not really open up about the breakdown of the relationship between the parents and he did not want to talk about the knife incident. The last occasion that the son had counselling was in October 2006.
The mother had spoken to the son’s school counsellor and Deputy Principal about his behaviour. The son’s anger problems at school appear to have ceased. Both children did well at school last year. The son started high school in 2006 and the mother says he loves it.
The mother said that after the father was released from gaol he commenced seeing the children unsupervised. She said that she was concerned about things the father was saying to the children. Some visits went well for the children.
The mother was asked what her expectation of supervision is and she said for the supervisor to be at the same place as the children and the father not necessarily in the same room all of the time.
The mother said that in October 2005 contact between the father and the children stopped because no undertaking was given by Ms C. She said she would have been agreeable to day contact continuing if that undertaking had been given. Thereafter there was no contact until December 2005. The Christmas contact in 2005 was very emotional and the children were upset because their father would not accept the chocolates they had given him.
The mother agreed that she had refused Mr P’s offer to supervise. She said because she understood it was for overnight contact.
The children have been having contact at N and the mother said that the contact supervisors were acceptable. The mother said she would be happy to do equal travel with the father to facilitate contacts. She suggested A at McDonalds.
The mother acknowledged that the children had told her they wanted shared care with their father. She agreed that they will be disappointed if they do not have week about with their father. The mother said that the daughter no longer has counselling and the son is seeing a new counsellor. The mother sees Ms U for counselling.
The mother was asked what she would need to see in order to agree to unsupervised contact. She said proper medical review of the father. I’d need to see that he was stable, happy and compliant with his medication. She would need to have a report from a supervisor who has viewed the father with the children and know that he was attending to all of the children’s needs with the help of the supervisor. She would also need to know that there had not been any inappropriate conversations. She agreed that it would be very helpful and beneficial for the family to be involved in family therapy.
The mother was asked what she had said to Mrs W in about August 2005. She said she told Mrs W that the father had broken into the house, that he had taken her into the bedroom, barricaded her in the bedroom and brought a knife to the room. She told her that she was ringing the father because she had not received an undertaking about supervision.
The mother conceded that following the release of the father from gaol the son had asked to see his father nearly every day. The mother said that the son had been to counselling for Victims of Crime. She said that was, “Because he has been abused.” In 2006 the son had been to counselling every three to four weeks. Between January and June 2006 the mother conceded that the son had been swearing at her. When at counselling she said that he told her he wanted to see his father.
When counselling concluded in October 2006 the son commenced to see his father again.
The mother conceded that in the first week of December 2005 the son wanted his father to attend a father and son event. She further conceded that on 1 December 2005 she applied for an AVO against the father. She said that she did this because she did not want the father to attend the father and son night. She said she was frightened of the father being in the vicinity of her home. She agreed that her proposal now was that there would be a changeover at McDonalds at A and that she would then come into contact with the father. She said that she did not feel frightened of the father as she had in December 2005.
The mother said that in the last week or so the son had displayed some unacceptable behaviour. He became upset, cranky and raised his fists at his sister. She said his behaviour is unacceptable on about a fortnightly basis.
The mother agreed that the children had not spoken to their father by telephone since February 2006.
The mother conceded that the father has only had 17 occasions for contact since 7 May 2004.
The mother agreed that in her affidavit she said that during the course of the time the parties lived in Sydney the father was unemployed for 23 months. She conceded that during that time he was renovating the house they owned and that he also had other jobs which brought in money.
The mother was asked about the funds she had borrowed from her father. She said that she had used the monies to pay lawyers and also to buy a car. Most of the money had gone to pay lawyers. She said about $2,000 was spend on general living expenses. She confirmed that she had borrowed $30,000. Of that sum, $3,000 had been provided for the W address.
The mother is currently driving the utility vehicle which the parties had at the time of separation. She said that she was told it was worth $4,500.
The mother was asked about the furniture in storage but said to her knowledge was not there anymore.
The mother conceded that the father received $60,000 in workers compensation from an injury which occurred before the marriage.
Dr G, the father’s psychiatrist, gave oral evidence in the case.
He first saw the father in September 2005.
Dr G provided a report dated 25 January 2007 which became Exhibit F2 in the proceedings. The following matters are of particular note in that report.
Dr G has seen the father on 16 occasions at the PA Mental Health Centre. He last saw him on 18 January 2007. He said:
“[The father] has experienced a protracted episode of major depression marked by intense agitation that has been recurrent at least since the breakdown of his family in July 2003. It is difficult to determine if he had experienced symptoms of a mood disorder prior to this.
…
On 6/9/05 [the father] presented as profoundly distressed and psychomotor retarded. He was wearing work clothes having come from his work as a storeman. He wept during the interview and, at times, appeared agitated. There was no evidence of psychotic phenomena. He spoke mostly about the end of the marriage and the perceived unfairness of the Family Law Court process. He denied being suicidal.
…
In early 2006 [the father] had 2 admissions to [U] Hospital. The first of these was a brief admission from 1/2/06 to 6/2/06. He then had an 8 week admission beginning 23/2/06.
With regard to the admission from 1/2/06 to 6/2/06 [the father] presented voluntarily to hospital aware that he was distressed and potentially at risk to himself. He had in the previous week received documents from the Family Law Court that had unsettled him and he had ceased the venlafaxine. He had subsequently deteriorated.
…
[The father] re-presented to [U] Hospital on 23/2/06. Over the preceding 2 weeks he had once again deteriorated. He had remained compliant with recommencing the venlafaxine. He was admitted to the mood disorders unit. During this admission he was given Electroconvulsive Therapy. He had improvement that has continued following discharge.
…
[The father’s] diagnosis remains Major Depression – now in remission.
His prognosis is excellent given his willingness to pursue treatment and be compliant with treatment that has been effective and led to remission. [The father] has constantly had insight into the need for treatment of his mental illness and has willingly engaged in treatment. Other positive prognostic indicators are his willingness to accept his life has changed and his achieving new goals such as making friends and obtaining appropriate accommodation. He also sees himself as capable of rejoining the work force and is making efforts in this direction. He is also re-engaging in sports activities.
…
The brief period of being made an involuntary patient for 4 days in early February 2006 simply reflects the seriousness of his symptoms at that time and the need to be cautious and make sure he was re engaged in treatment. The need for involuntary care was brief in what has been a long process during which [the father] has been insightful about his need for treatment and has accepted treatment.”
In his oral evidence Dr G said he will be having a continuing patient/doctor relationship with the father.
Dr G was asked if it was likely the father would suffer a relapse if he received an unfavourable result in the Family Court. Dr G said the risk is a lot less. It is less likely now that an adverse outcome would prompt a relapse.
Dr G said that he would provide the father with increasing support when the Family Court result was published.
Dr G said that if the father suffered from a disordered personality as referred to in Dr R’s report he would refer him on for psychotherapy in relation to that matter. He confirmed that if the Court ordered that the father see Dr G at monthly intervals he could accommodate that. He also confirmed that if the father gave an undertaking to authorise Dr G to notify the mother if the father became unwell he would do that and he felt comfortable about doing that. He confirmed that if the father stopped taking his medication it would take approximately four to six weeks before the father would be likely to become unwell again.
Dr G said that if the father was experiencing a crisis he could see him every two weeks for about four months. He could make a commitment to do that.
Dr G agreed that the father had been pre-occupied and hateful about the mother. He said that as far as the father was concerned the mother was preventing the children seeing him and also access to financial resources of the family.
It was suggested to Dr G that the father’s anger towards the mother had not abated. Dr G agreed that was the case and said that they had started to work on that. He said it was difficult to deal with this while the Family Court proceedings were still on foot. He said the anger is more to do with ongoing stressors which are fuelling his anger and he said he did not see that as part of the depressive illness. He said that if the father cannot resolve his anger towards the mother it could put him at risk of more frequent depression.

Dr R was required to give oral evidence.
Dr R was asked about “disorder personality traits” which she thought were present in the father. She said that the father elicits the children’s care of him. This is excessive. He fails to take any information which is not palatable to him such as the Apprehended Violence Order (don’t contact the ex-mother) especially when you’ve already been before the Court. She said the father was not learning from his experiences. Not wanting to talk about his problems or behaviour from the past.
Dr R said that while the father was well and has good support from Dr G and his family he will do the right thing with the children. Her only concern is if he is stewing about past injustices. In those circumstances she said she would have concerns he would not return the children.
Dr R suggested a regime of three weekly overnight Saturday mornings until Sunday. She suggested telephone contact at set times and for set times. She suggested that should be trialled for three months and if it was working satisfactorily then the time extend from Friday night until Sunday night. She said that there should then be a review to consider whether it is necessary to continue supervision.
Dr R was taken to a number of paragraphs and/or passages from letters which the father had written to the children. She had criticism of the father in relation to the wording.
Dr R said that in relation to the letters if the father did ask for advice from others then she is less concerned about the content. She did say, however, that people who have personality disorders turn to people who think the same way.
Dr R was asked what she meant by the words “a record of stable mental health.” She said that is really about the way the father is operating. If he is still railing against the Family Court or Dr R then it is a concern. However, if he is starting to work with the system rather than railing against it that would indicate stable mental health. If he is not decompensating with the hearing it is a good sign.
In relation to the contact between the children and their father Dr R said the children would not like the contact centre and neither will their father. So it is likely the son will be problematic. She was asked whether the children’s spending time in a family home but supervised might be a better option. She said that if the father can cope with that and not continue to blame the mother then the children will settle with it.
Dr R was asked about the mother’s attitude to the children spending time with their father. She said that if the time was supervised she wouldn’t be concerned about an adverse impact on the mother. She was concerned however about the mother’s reaction with the father turning up to the daughter’s concert. The mother had packed up and left home that night. Dr R said if the mother can’t prevent acting out she should get help. In relation to unsupervised time between the children with their father and the impact on the mother, Dr R said that she thought the mother would have greater difficulty with dealing with that as opposed to supervised time. She detailed some of the mother’s concerns.
Dr R was shown Exhibit ICL 8 which was a minute of proposed order produced by the Independent Children’s Lawyer on the last day of the trial. She said that she would support orders being made in accordance with that exhibit.
Dr R was cross-examined by the father’s counsel. Dr R said that the son not seeing his father is one of the matters which has given rise to the son’s conflicting relationship with his mother.
Dr R said she could not agree with fortnightly contact. If family therapy was in place then the children would see their father more than three weekly. Dr R thought every second weekend could be disruptive to the children and their sporting commitments. She would like to see if the father was able to spend time with the children without displaying his distress and dysfunction. She would like to see the impact on the son of spending time with his father.
Dr R was asked whether it would be helpful for the father to have some unsupervised contact before the parties again saw Dr R for review. She said not fortnightly but if there were safeguards in place and therapy going ahead she would not be so concerned about unsupervised time. Two visits between the children and their father with much looser supervision before they saw
Dr R would be helpful.
In relation to the prospect of the mother being anxious during periods of contact between the children and their father Dr R suggested that perhaps telephone calls between the children and their mother during this time could alleviate some of her concern.
Ms C, the father’s sister, gave evidence in the case. She said she sees the father about once a fortnight. She confirmed that the father had sent her copies of letters before he sent them to the children. She confirmed that she had seen one of the letters which were included in Exhibit ICL1. Ms C said that when she was supervising the contact between the children and the father she never let them out of her sight. She did not hear the father say anything to the children which would upset or worry them. She did not hear the father ever talk about the mother. She confirmed that the father was teary at the commencement of the period of time when he had supervised contact with the children. As the time went on the father was less teary. Ms C offered to supervise the contact for two days and otherwise be available from time to time if others become unavailable. She said that she was prepared to travel to N. She said that she was prepared to be involved in overnight stays provided they stay at her house. If she noticed some change in the father’s health she would call someone. She said that she would call the mother if she had her telephone number.
Mr P, a retired tradesman and friend of the father (although well-known to the mother) gave evidence in the case. He said that he had seen the mother on one occasion since the separation and that occurred when the mother came to visit him. He thought this had occurred during 2006. He said that he would be prepared to supervise overnight contact between the father and the children at his place. He had plenty of beds. He said that he would be prepared to supervise for more than two nights however he thought it would be hard on his mother. He said that he would be happy to contact the mother if he noticed the father becoming unwell. He said that he felt he was still a good friend of the mother.
Ms F swore an affidavit on 31 July 2006 and also presented herself for oral evidence. She said she was prepared to supervise the children’s time with their father. She said she would stay at his house during the supervision. She was available to travel with him to collect the children. If the father became unwell she would call the mother if she had her telephone number. Ms F confirmed that the father had shown her a copy of the letters before they were sent to the children. She pointed out some things to him which she thought were inappropriate. She was shown Exhibit ICL1. She remembered reading some of the letters but not others.
Ms F said that as far as she is concerned the father has never had a bad word to say about the mother. He told her he had lost his mother after 21 years of marriage. She was asked whether the father had said that he believes that the mother suffers from malicious mother’s syndrome. Ms F said yes but I said to him I can’t have discussion about that because I don’t know the mother.
Ms Fin her affidavit outlined the circumstances in which she came to meet the father. Ms F's father was in hospital with the father in these proceedings. Ms F is well acquainted with mental illness as she has had to deal with her father’s mental illness for some time. She is aware of symptoms and behaviour which indicates that the father might be coming unwell.

The Issues

The issues in this case relate to the time the children can spend with their father. The father is seeking a residence order for the children. That is opposed by the mother and the Independent Children’s Lawyer.
The matter which prevents the father sharing more extensively in the children’s care is the state of his mental health. The issue for determination is whether the father’s health poses a danger to the children if his time with them is unsupervised.

Credit

There is no evidence in the case which leads me to the conclusion that any witness has been deliberately untruthful. I accept the evidence of the father’s witnesses Ms C, Ms F and Mr P.

The Mother

The mother gave her evidence in a straight forward and apparently honest manner. She made a number of appropriate concessions in favour of the father.

The Father

The father gave his evidence in an apparently straight forward manner. There was nothing about his demeanour or the content of his evidence which led me to conclude he was being dishonest. He made many admissions against interest and also made appropriate concessions in favour of the mother.

Relevant Law

Legal principles

The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

There is in this case an identified benefit which would flow to the children in the event of the father being able to participate more extensively in the children’s lives. This is something very much desired by the children who have been distressed by the lack of opportunity to spend time with their father. The ability for the children to benefit from their time with their father is very much governed by the state of his health. This has been referred to in these reasons and I will refer to it again in the conclusion and probably elsewhere.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no suggestion that the father has ever been violent to the children. He has however used force against the mother and the daughter was present at the time. This was the event which led to the father being sentenced to imprisonment for a lengthy period of time following the separation.
The Court expert Dr R has referred to the prospect of the children being endangered emotionally by the excesses of the father’s words to them when he is not functioning well because of his mental ill health. The children need to be protected from such an event and the orders I make in this case will be designed to build protection for the children at least during a trial period of time the children spend with their father.
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Both children have expressed a view and wish to spend more time with their father. The son has been particularly pressing for this for some time. It seems apparent that the son blames his mother for preventing the time he would otherwise be able to spend with his father and these views appear to be fuelled by statements the father has made to the children.
The son is now 12 years of age and he is entitled to have his views considered and given substantial weight. He appears to be age appropriately mature and there is no suggestion from Dr R that the son’s views should be less valued than those of the average 12 year old.
The son has expressed wish to be able and spend very significant time with his father and possibly equal time with that he spends with his mother.
The daughter is 10 years of age. She has reached an age where her views and wishes need to be listened to by the Court and given real weight.
The daughter, like her brother wishes to spend significant time with her father and as much as equal shared time with the time she spends with her mother. She felt sad when she had to say goodbye to her father. The evidence establishes that the daughter has been very distressed at times of farewell from her father and this has been exacerbated by the father being unable to contain his own emotions at that time.

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

The evidence of the expert and the parties establish that the children have a close and dependant relationship with each of their parents. The evidence has established that the son has been in conflict with his mother from time to time and has been violent to his sister on occasions. On one occasion the son was brandishing a knife when speaking to his mother. The mother felt apprehensive and very concerned for the son at that time. The mother was so moved by the circumstances that she took the somewhat extreme step of taking the son to the police to report the incident. On that occasion the son was spoken to by a Police Officer and given a warning. The son was told that if similar behaviour came to the attention of the Police in the future then action would be taken.
The son has been violent to his mother. He has punched her and kicked her.
The son’s behaviour as directed towards his mother and sister appears to be directly connected to the anger he feels as a result of being separated from his father. The son has told his mother that it is her fault that his father has been ill. He seems to hold the view that the mother is responsible for limiting the time he spends with his father.
There was an incident where the mother terminated a telephone conversation which the son had been having with his father. The call had lasted for an hour and the mother had asked the son to terminate the call on a number of occasions during the event. The final step taken by the mother in terminating the call caused the son to become enraged. The action by the mother did not in my view show that the mother appreciates the need that the son had at the time for some form of relationship with his father. The children are clearly concerned about their father’s circumstances and seem to have taken on themselves the responsibility for his care. On the mother’s side she is concerned about the statements made by the father to the children which might interfere in their harmonious relationship with her. Clearly if the father inculcates in the son the view that his mother is creating or continuing the father’s misery because he is being separated from his children than it is likely to have some real impact on the son’s relationship with his mother.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In submissions the father’s counsel was critical of the mother for not doing enough to assist the children spending time with their father. This criticism included a complaint that the mother had been dismissive of potential supervisors which during the hearing she indicated would be acceptable. It was submitted that the mother owed a duty to the children to investigate the suitability of supervisors at the time they were suggested rather than waiting for the advent of a Court hearing to make up her mind. I think that criticism is well founded and establishes that the mother has not been as active as her children needed her to be in investigating these matters.
The father has been very critical of the mother. He holds the view that the mother suffers from “malicious mother syndrome”. I have no doubt that holding such a negative view of the mother would have made it impossible for him to promote a positive emotional environment directed towards the mother while the children are interacting with him. This view held by the father appears to contradict other views that he has to the effect that the mother was an excellent parent to the children until the separation. He described her as his best friend over a lengthy period of their association and marriage.
The children appear to harbour a view that the parents should re-commence residing together. This view I consider to reflect their own fantasies and needs rather than any acknowledgement that the parties relationship is harmonious when clearly it is not.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The father’s application is for the children to reside with him. He may be prepared to share equal time with the mother however, she would need to live close to where he chooses to live. The mother is seeking the children continue to live with her and have periodic supervised time with their father. The children are prepared for an equal shared time living arrangement with their parents.
The change for the children of commencing to live with their father is that they will be separated from their mother for longer time than they have been for a number of years. They have experienced a shared living arrangement following the separation of their parents. This appears to have worked well for the children until their father became ill.
There is no doubt there would be an impact upon the children if they commenced to spend substantial periods of time living with their father. Provided their father remained well it appears the children are likely to benefit from spending additional time with him.

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

This consideration poses a real problem in this case. The mother lives south of N at an address which she has not provided to the father. She lives close to where her father lives. The father resides in Sydney and has recently commenced a new business which it seems will be concentrated on the Sydney region. For so long as the father requires supervision for his time with the children the distance between the parties residences will place a strain of travel on the supervisors and it appears realistic to predict that the supervisors will become disenchanted by the amount of travel involved to carry out the supervision.

[4] This figure was provided by the parties on the 23^rd May 2007 when the matter was before me to assist in clarifying aspects of exhibit X1.

[5] This is part of the money used by the father recently to acquire his share of the Z contract.

[6] This is part of the money used by the father recently to acquire his share of the Z contract.

[7] This is part of the money used by the father recently to acquire his share of the Z contract.

[8] This is part of the money used by the father recently to acquire his share of the Z contract. This money either has its source in savings of the father post separation or it is part of the $15,000 kept by the father at the date of separation and therefore should not be included in the balance sheet because it is a double dip. I propose to exclude the $3,500 from the balance sheet.

[9] It seems from the evidence that the only capacity the father had to pay legal costs is from property distributions, the savings he retained at separation or from post separation earnings. To the extent that the funds to pay any legal costs came from property distributions or from savings at separation ($15,000) these items are already included in the balance sheet. If funds came from post separation earnings then they should not be added back to the balance sheet (NHC & RCH).

Mother’s paid legal costs($59,485 paid from money borrowed from her father and also from a property distributions to the mother)	Nil[10]
Total Assets	$539,080
Pool “B”
Mother’s Superannuation	$38,185
LIABILITIES
Father
· Visa Card	10,000[11]
Mother
· Liability to her father $ 6,900.[12]	Nil[13]
Total Liabilities	$10,000

[10] I have included the mother’s paid legal costs at Nil because the evidence is that they were all paid from either borrowings from her father or alternatively from her partial property distributions.

[11] I have allowed the sum of $10,000 only for this Visa Card debt. I have allowed that because I know that money was borrowed to acquire the father’s interest in the Z contract. In relation to the balance of the debt there is no evidence as to how this debt was accumulated. In the absence of positive evidence I can only presume it was created post separation. The father appears to have had limited periods of employment post separation for a number of reasons mainly associated with his not being available to work because of his ill health or incarceration. I can well imagine he has had to use his credit card to survive. I will take into account that he has an additional $19,458 of liability under section 75(2).

[12] I have included the sum of $6,900 here as the evidence in exhibit M8 shows all but this figure was advanced for the purpose of legal fees. I have not included the mother’s paid legal fees as an asset in the balance sheet and therefore there should be no corresponding liability.

[13] The loan of $6,900 appears to relate to expenses and/or living costs of the mother incurred post separation. To maintain consistency and fairness it seems to me that this liability should not be included in the balance sheet but be taken into account under section 75(2).

The following entry in exhibit X1 should be ignored as being de minimus:

($)
Mother’s Commonwealth Bank Account	175
I shares (husband)	209

The effect is that:

($)
The total of assets in Pool “A” is	539,080
The total of assets on Pool “B” is	38,185
Total Liabilities is	10,000
Net assets in Pool “A” (having deducted all of the allowed liabilities)	529,080
Net assets in Pool “A” and pool “B” combined	$567,265

Section 79(4) contributions to date of separation

Initial Contributions

The father says that at the date of cohabitation he had about $10,000 in savings. He had a car and his tools of trade. He also had some furniture. He says the mother had furniture. The mother says neither party had any assets and she says neither had liabilities.
Neither party was cross-examined on this part of their affidavit. In fact there was very little cross-examination on financial issues. I make no criticism of that.
In the circumstances I accept the evidence of the father on this point. It is an important matter and if there had been any serious issue about the matter the mother had an obligation to test the father’s evidence.

Contributions to date of separation

This was a cohabitation of 21 years during which there were two children born to the parties.
At the commencement of cohabitation both parties were employed. I am satisfied the majority of the father’s income and all of the mother’s income was applied to family purposes.
The father admits that at one stage of the marriage he had a gambling problem. He gambled on poker machines and lost about $1,000 per week. He says this lasted for about six months. He says he gambled throughout the cohabitation. At one stage he attempted professional gambling as a career when he became a bookmaker. The father says that he won large amounts gambling which included the sum of $27,000 he used to pay off the TM loan. He says he also won $27,000 at the Casino.
The mother alleges that between 1998 and 2000 the father gambled (I infer lost) $115,000. The father denies this. He concedes that he could have lost over the marriage the sum of $20,000. In the circumstances of this case I will accept that over the entirety of the marriage the father lost $20,000 through gambling and to this extent wasted assets of the parties. There is no evidence to support the mother’s contention of a loss of $115,000.
In the circumstances all I can do is take into account the father’s admission against interest and find that the father wasted $20,000 of the parties’ assets during the cohabitation.
In 1987 the mother ceased work and received a payment of $20,000. Of this sum $10,000 was for superannuation and $10,000 was long service leave. There is no evidence to establish how much if any of these payments related to pre-cohabitation contributions. The superannuation payment was rolled into a Retirement Fund.
In 1987 the mother commenced work with 3M and the father joined the NSW Public Service. The father was a policeman for about a year and then returned to trades work.
In 1991 the father commenced his own business under the name “[JC Company]”
Following the sale of the TM property the parties each received $30,000. The mother used some of her funds to meet ordinary living expenses in the first place. The father says, and I accept, that the parties invested their funds in B Company which gave a return of $106,000.
In 1993 the father received a compensation payment of about $60,000 for a work related injury. The injury had been suffered before the parties’ marriage (1992) (this was conceded by the mother in oral evidence however, there is no evidence to say when the injury was i.e. pre-cohabitation? (1982/83)). The father used the money to set up a building company as he understood the injury would cause him difficulty in the near future in his trade of carpentry. He also obtained a bookmakers license and operated that for about 12 months.
The father played professional football and contributed his earnings.
The mother ceased work in 1995 before the birth of the son. She received a superannuation payout of $8,500 and $4,200 for holiday pay. The superannuation was rolled to A Funds Management. I accept the mother contributed the balance of the $4,200 to general living expenses of the family.
In about 1998 the parties commenced renovation of the P property which they had acquired in 1995. There is an issue between the parties about the mother’s contribution to those renovations. The mother said in her affidavit that she painted some of the rooms with the father. The father’s version of the facts is that he did all the work and the mother did very little. He conceded that she helped for an hour or so to pull up carpets. He said she might have helped in a minor way with things that she could do. In relation to renovations at the R house he conceded the mother may have done some cleaning up in the renovated portions of the home.
In relation to the P property there is little to no evidence of the work done by the father on renovations. I do accept that they each worked on the renovations however given that the parties had two infant children and given the father’s vocation I think it is reasonable to conclude that the father’s contribution was greater.

In about 2001 the parties renovated the R property. The mother infers in her affidavit she did some of the work. The father says he worked on the property with other tradesmen employed by him. He also did small jobs during the period of renovation.
The mother said that the father was unemployed for a period of 23 months. She conceded in her oral evidence that he was working on renovating their property at the time. I do accept the father’s evidence that he also did small jobs during this period.
Each of the parties details work done on the acquisition and renovation of properties and in particular the R property. The mother asserts a major role in the renovations.
Having heard the parties give their oral evidence and I have read their affidavit evidence. I conclude that the father’s evidence in relation to the acquisition of properties owned by the parties and the renovation of those properties is to be preferred to those of the mother. It has the ring of probability to it when put together with all of the other evidence of the parties which I accept.
I accept the father’s evidence that he did 95% of the work on the R property himself.
In 1999 the father inherited $8,000 from his father’s estate. These monies were applied to renovations of the R property.
Between 1991 and 2002 the mother assisted the father in the business by carrying out book keeping and other duties for him. She details her contribution in paragraph 180 of her affidavit. In reply the father seeks to assert that the assistance was in the scheme of the business minimal. I accept the mother’s evidence and I conclude that her input was minor but never the less important.
The mother claimed that throughout the cohabitation she performed the majority of the domestic chores associated with the family. She conceded the father shared in the cleaning of their cars. She said he cooked meals for the family on some occasions.
The mother claimed to be the parent primarily responsible for the care of the children.
The father disputed the mother’s evidence in this area. He said the majority of the domestic chores were shared between the parties (the inference being equally). The father did the outside of the house and he conceded the mother did more of other tasks inside the house.
The father claimed to be significantly involved in the care of the children. He said he ran his business from home and helped in the day to day care of the children.
Having read the affidavit material of both parties, read the experts evidence and heard their oral evidence of all witnesses I conclude that the major part of the domestic and child care duties in this family were performed by the mother. By that I mean more than 50%. I also find that the father’s contributions in this area were substantial and not token.

Section 79(4) contributions post separation

The mother has had the care of the children to a much greater extent than the father post separation for the reasons outlined earlier in the children’s case judgement.
I assess the mother’s contributions post separation as being significantly greater than those of the father.

Contributions to the mother’s superannuation

There is very little evidence to take into consideration in relation to this matter. It appears that the mother’s superannuation has arisen solely as a result of her employment before and during the cohabitation. The father makes no claim of direct financial contribution to the mother’s superannuation.

Conclusion based on contribution

The mother submits that the contributions of the parties to the date of separation should be seen as equal. Following the separation she submits that her contributions have been greater than those of the father. She submits that the Court should find the assessment of contribution favours the mother in proportions 55% to her and 45% to the father. There was no separate submission made in relation to the superannuation component of the balance sheet and I can only conclude that this submission includes the mother’s contribution to her superannuation.
The father submits that his contributions should be seen as greater than the mother’s to the point of separation. In particular he emphasises the receipt of compensation in the sum of $60,000, the receipt of the inheritance, the work performed on the renovation of the properties and the father’s considerable home maker and parent contribution. As against this it is conceded the father’s losses through gambling need to be considered.
It was conceded by the father that the mother’s contributions post separation should be seen as greater than those of the father.
It was submitted that the father’s contributions should be assed as equal to those of the mother at the date of the trial or at worst the mother should be preferred slightly to the father in the assessment of contributions so that the balance is 52.5% to the mother. Again there was no reference to the separate pool and the mother’s superannuation. I can only reasonably conclude that this is a global submission intended to cover the position of the mother’s separate superannuation as well.
Both parties’ submissions have merit and are appropriately and fairly put.
Weighing up the contributions I conclude that the father’s submission is correct and I find that the balance of contributions should favour the mother 52.5% to the father’s 47.5%. A matter which in my opinion is very significant in the balance is the care of the mother for the children predominantly unassisted by the father financially or through the provision of sharing in their care for the major part of the last three and a half years since the separation.

Section 75(2) considerations

The father is 49 years of age and the mother 48 years of age.
The father has been employed as a storeman post separation for some of his time. Immediately following separation he quit his employment to care for the children in a 50/50 shared care arrangement. Thereafter for some considerable time he had no employment.
The father has now bought himself an income. He has acquired an interest in a contract with Z Company. This may be about $500 per week. In order to earn this income the father has to sell contracts for power use. I am unable to be confident with his health difficulties he will be able to maintain this work. It seems to me there is the potential for significant stress associated with any sales work. I therefore have concerns that the father’s mental health may not cope well with a high stress job.
The mother has no employment. She has been undertaking some training however as yet this has not materialised a job. The mother is undertaking a Community Services Course at AD. She would also have difficulty maintaining full time employment whilst caring almost full time for the children.
Post separation each of the parties have received distributions of matrimonial property about which there is no dispute. There is no evidence showing when the distributions were made. The father’s Financial Statement shows that at the date of swearing (11^th July 2006) he did not have any savings. The mother’s Financial Statement sworn 5^th February 2007 shows no savings or assets which may have been acquired with the distributions made to her. I think it is reasonable to assume that each of the parties has used the distribution to meet legal costs and general living expenses.
The mother must be seen as likely to have to shoulder the majority of the care for the children into the future. It is to be hoped that the father will increase his time with the children however, it seems impractical to have an equal shared parenting arrangement unless one of the parties is prepared to move closer to the where the other lives. That, on the evidence before me seems unlikely in the near future.
The father has not paid any child support for the children for a considerable period of time. There is no evidence that he has ever paid child support. If his income is only to be $500 per week into the future it seems unlikely that he will be able to contribute to any meaningful extent to the financial support of the children.
Each parent has a health problem. The father’s health problem is canvassed extensively in this judgement. The mother has received counselling for post traumatic stress disorder. There is no evidence of the impact of this condition on the mother’s ability to work. I think it is reasonable to conclude that it could have an impact.
I take into account that the furniture of the wife, included in the balance sheet as $1,000 was acquired by her post separation.
I take into account that the father has the following debts which I did not allow to remain in the balance sheet.

($)
Furniture in storage	1,187
Removalists fees	1,500
Rental arrears	1,250
Accountant’s fees	412
Tax	330

I take into account that the mother owes her father about $30,000 for money borrowed principally to pay legal fees. About $6,900 of this sum appears to have been used for living expenses.
I take into account that I have only allowed $10,000 of the father’s total liability to Visa Card of $29,458 in the balance sheet in this case. The father none the less still has the obligation to pay the total liability to Visa Card.

Conclusion on section 75(2)

The mother submits that there should be an adjustment in her favour of 10% to 15%.
The father submits that the mother should keep her superannuation and receive an additional adjustment of 2.5% to 5%. On this scenario if the mother was to receive 52.5% on contribution and another 5% for section 75(2) adjustment and keep her superannuation I calculate that to be about 60% of the combined net pool.
Taking a global approach and treating the mother’s superannuation as part of the main pool I conclude that an adjustment in favour of the mother of 10% is appropriate.

Overall division of assets

The above determination will see the mother receive 62.5% of the parties assets and the father receive 37.5%.

Just and equitable

The division of assets would see the mother receive $354,541 worth of net assets and the father receive $212,724 worth of assets.
In the circumstances of this case I determine that result to be just and equitable.

Orders which should be made

The mother is to receive $354,541of net assets under the orders to be made. The mother retains from the balance sheet the following assets and liabilities:

($)
Assets
Proceeds of sale of property released to the mother	65,000
Holden utility	5,400
Furniture	1,000
Superannuation	38,185
Total	$109,585
Liabilities
Debt to her father	30,000
Total	$30,000
Total Net Assets of Mother	$79,585

There should be some sharing in the dividing of the shares. I think it is reasonable for the father to take the A shares at $4,534. The mother should take the A Capital at $337, the T shares at $1,000 and the H shares at $568. That is a total of $1,905.
The amount to be received by the mother from the funds invested by the parties is $273,051 together with 62.5% of the sum held in the investment which exceeds the sum of $332,741.
The father wishes to retain his Hyundai motor vehicle and this does not appear to be opposed. The mother should retain Holden Rodeo as it has been in her possession since the separation.
This will mean that the father will receive $59,690 from the invested funds with ES together with 37.5% of any balance exceeding $332,741.

The Costs of the Independent Children’s Lawyer

The independent Children’s Lawyer seeks an order for costs.
Exhibit ICL 12 is a detailed schedule of the costs incurred by the Independent Children’s Lawyer. The account totals $18,417.60. The Independent Children’s Lawyer seeks an order for each party to pay $9,208. In other words the request is for each party to pay one half of the costs.
No argument is put by either party as to the quantum of the costs sought.
The application is made under section 117 of the Act. The provisions of sections 117(3), (4) and (5) are of particular application.
There is nothing in section 117(2A) which was addressed by any of the parties.
The financial circumstances of each of the parties has been considered in the property judgement delivered herein. Neither of the parties is in receipt of Legal Aid. There is nothing about the conduct of the parties which would warrant the imposition of a costs order. There is nothing which is required to be considered under the balance of the sub-section (2A) considerations which would move me to impose a costs order.
The matter really relied upon by the Independent Children’s Lawyer is the fact that the appointment of a representative for the children was made by the Court. The role of the Independent Children’s Lawyer has been an important one in this case. The costs of the Independent Children’s Lawyer will in the normal course be paid by the tax payers of our nation. In circumstances where the parties have the capacity to pay or contribute to the costs of the Independent Children’s Lawyer then as a matter of public policy they ought to contribute. I agree with that submission and I propose to consider in what proportions and how much the parties ought to contribute to the Independent Children’s Lawyer’s costs.
The parties’ property is in modest proportions. Each party will require all of the funds which they will receive and/or retain from the orders of the Court to maintain basic living for themselves and the children. There income earning potential is not significant.
Each party ought to contribute in the same proportion. There is nothing in the facts of this case to suggest to the contrary. Each should contribute a meaningful amount. I conclude that the sum of $5,000 should be contributed by each party to the costs of the Independent Children’s Lawyer.

I certify that the preceding three hundred and thirteen (313) paragraphs are a true copy of the reasons for judgment of the Honourable
Justice Le Poer Trench.

Associate:

Date: 29 May 2007

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

[2007] FamCA 605

29 May 2007

Key Legal Topics

Areas of Law

Family Law

Property Law