RHODES and LEWINGTON
[2017] FCWA 75
•6 JUNE 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: RHODES and LEWINGTON [2017] FCWA 75
CORAM: WALTERS J
HEARD: 18 - 22 MAY 2015, 31 AUGUST 2015, 1 & 2 SEPTEMBER 2015 AND 26 AUGUST 2016
DELIVERED : 6 JUNE 2017
FILE NO/S: PTW 3023 of 2013
BETWEEN: MR RHODES
Applicant
AND
MS LEWINGTON
Respondent
Catchwords:
FAMILY LAW – PARENTING ISSUES – Where mother seeks father have no contact with children – Where father seeks equal shared parental responsibility and eventually shared care – Allegations of family violence – Where father lied about having terminal cancer – Where father tells children he is dying – Where single expert witness significantly changed her view during cross-examination – Any contact children have with father will adversely affect mother and her parenting ability – Where it is not in best interests of children to have contact with father
FAMILY LAW – PROPERTY SETTLEMENT – Where father has not financially supported children since separation – Where mother's contributions were significantly greater after cancer deceit – Where father failed to disclose new employment during trial – Where proceedings reopened to adduce further evidence regarding father's financial circumstances
Legislation:
Family Law Act 1975 (Cth)
Interpretation Act 1984 (WA)
Category: Not Reportable
Representation:
Counsel:
Applicant: Self-Represented Litigant
Respondent: Mr O'Brien
Mr O'Sullivan (26/08/2016)
Independent Children's Lawyer : Mr Mather
Solicitors:
Applicant: Self-Represented Litigant
Respondent: O'Sullivan Davies
Independent Children's Lawyer : Legal Aid WA
Case(s) referred to in judgment(s):
A v A (1998) FLC 92-800
B & B (1993) FLC 92-357
B & B [2006] FamCA 883
Bevan & Bevan [2013] FamCAFC 116
Bolger & Headon [2014] FamCAFC 27
Bonacci & Bonacci [2012] FamCAFC 15
Champness & Hanson (2009) FLC 93-407
Chapman & Chapman [2014] FamCAFC 91
Clauson & Clauson (1995) FLC 92-595
Collu & Rinaldo [2010] FamCAFC 53
Dekker & Dekker [2014] FCWA 61
Dickons & Dickons [2012] FamCAFC 154
Fielding & Nichol [2014] FCWA 77
Fitzgerald-Stevens & Leslighter [2015] FCWA 25
Fitzpatrick & Fitzpatrick (2005) FLC 93-227
G & G [2004] FamCA 1179
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Hamish & Brighton [2014] FamCAFC 242
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
Hungerford & Tank [2007] FamCA 637
Irvine & Irvine (1995) FLC 92-624
Jets & Maker (No 2) [2011] FMCAfam 1473
Jurchenko & Foster [2014] FamCAFC 127
M & M (1988) FLC 91-979
M & S (2007) FLC 93-313
Marsden & Winch (No 3) [2007] FamCA 1364
McCall & Clark (2009) FLC 93-405
McLay & McLay (1996) FLC 92‑667
McMahon & McMahon (1995) FLC 92-606
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Mulvaney & Lane (2009) FLC 93-404
Norbis v Norbis (1986) 161 CLR 513
OSF & OJK (2004) FLC 93-19
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Re Andrew (1996) FLC 92-692
Re L, V, M & H (Children) (2000) EWCA Civ 194; [2000] 2 FLR 334
Re M (Contact Violent Parent) (1999) 2 FLR (UK) 321
Re W (Sex Abuse Standard of Proof) [2004] FamCA 768
Russell v Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993)
Russell v Russell (1999) FLC 92-877
Saxena & Saxena (2006) FLC 93-268
Sayer & Radcliffe (2012) 48 Fam LR 298
Scott & Danton [2014] FamCAFC 203
Sedgley & Sedgley & Cahill (1995) FLC 92-623
Stanford v Stanford (2012) 247 CLR 108
Starr & Duggan [2009] FamCAFC 115
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Taylor & Barker (2007) FLC 93-345
Waters & Jurek (1995) FLC 92-635
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Preamble
1These were proceedings which primarily involved the amount of contact, if any, the two children of the relationship were to have with their father. They also involved the issue of property settlement.
2At the trial, the father was unrepresented. The mother was represented by Mr O'Brien (as he then was) and later by Mr O'Sullivan. The children were represented by an independent children's lawyer ("ICL"), being Mr Mather of counsel.
3The first part of the trial was heard over five days. It was then adjourned part-heard. It later continued for a further three days. Judgment was then reserved. In August 2016, the matter was reopened for the purposes of hearing evidence on a discrete issue relating to the property settlement proceedings. In total, the proceedings occupied nine days.
4At the conclusion of the trial, final orders were made which provided for the mother to have sole parental responsibility and for the children to live with the mother. Judgment was reserved on the other issues.
Terms used
5In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parties as the "father" and the "mother" (and I mean no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent;
c)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;
d)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides, among other things, that "to swear" includes "to affirm");
e)unless otherwise indicated, references to legislation are references to the Family Law Act 1975 (Cth), which I have referred to as the "FLA" or "the Act"; and
f)although the law now refers to a child "spending time" with a person with whom the child does not live, I have used the obsolete term "contact" from time to time – because it is both more convenient and less grammatically challenging to do so.
Background
6The father was born in 1971. He is now 45. The mother was born in 1972. She is also 45. The parties commenced a relationship in 1997 and married [in] 2000. They separated on 9 October 2012.
7There are two children of the relationship: [Child A], born [in] 2006, and [Child B], born [in] 2009.
8The background to this case is an unusual one, and goes a long way towards explaining the mother's intense animosity towards the father.
9When the parties met, they were both working [interstate] in the [retail] industry. They moved in together, while still working interstate, in 1997.
10The parties moved back to Perth in 1998 and commenced living with the mother's parents. The mother found work at a [shop] in the city.
11In 1998, the father left Australia to travel overseas.
12Upon the father's return in 1998, the parties became engaged.
13Both then found work at a different [shop] in the city. The father worked [in customer service], while the mother worked [as a sales assistant] (and later [in administration]).
14In 2000, the father undertook a course and obtained casual employment in [that field].
15As already noted, the parties married [in] 2000.
16In 2000, the mother commenced employment as [a secretary] at [Company A].
17[In] 2001, the mother received prize money of $21,400 as a result of [a competition].
18On 5 August 2002, the parties purchased a block at [Perth Southern Suburb], ("[Property A]"). A house was then constructed on the block. The parties commenced living there in June 2003.
19According to the father, the total cost of the house and land was $307,000. The mother says that her winnings from the [competition] were used to fund the purchase, and that the rest was funded by way of a loan from Westpac. The father says that both parties contributed towards the deposit.
20In August 2002, the father obtained employment at [Company B]
21On 25 December 2003, the mother says that the parties separated for three days after the father told her he wanted her to leave. The mother left the house and went to stay with her parents.
22The mother says that, when she eventually returned to Property A on the fourth day, she found the father lying on the floor of a back room in the house, and that he was unresponsive when she spoke to him. The mother says that she called for assistance and, when a neighbour tried to roll the father over, he got up. The mother says he was angry and abusive at the time.
23Child A was born [in] 2006. The mother took 10 months maternity leave.
24The mother says that:
a)in October 2006, the father threatened to kill her and Child A because he was frustrated that the baby would not stop crying;
b)when the father went to bed, she left Property A and went to her parents' home; and
c)she remained at her parents' home for approximately three weeks.
25In December 2006, the mother returned to work part-time. She worked three days per week at Company A and one day per week from home. Her mother cared for Child A for the three days she was at work until a place came up at the Company A day care centre.
26In 2008, the mother suffered a miscarriage. Approximately two weeks after the miscarriage, she fell pregnant with Child B.
27In April 2009, the mother returned to work full-time. She says that the father forced her to do so because she was pregnant with Child B and would have had to take maternity leave at her part-time pay rate if she did not recommence work full-time.
28Child B was born [in] 2009. The mother was ill prior to the delivery and so the birth was induced. Following Child B's birth, the mother took another 10 months maternity leave.
29In early 2010, the father began to complain of being unwell and alleged he was bleeding from his bowel. He attended upon his general practitioner, who arranged a colonoscopy.
30In March 2010, the father told the mother that the results from the colonoscopy showed that he had primary cancer of the bowel and secondary cancer of the liver. He said that he required weekly chemotherapy treatments. These were to occur at St John of God Hospital each Friday.
31The mother says that, as a result of the father's treatment, he would come home on Fridays exhausted and then sleep throughout the weekend, leaving him little time to spend with her or the children.
32In May 2010, the father, the mother and the children went on an overseas trip. The mother says that the father wanted to do this because he said he would not be well enough to travel later on, and wanted a holiday before he died. In order to pay for the trip, the father removed $15,000 from an account established to pay for the children's education.
33In July 2010, the mother returned to work on a part-time basis.
34On 10 August 2010, the father travelled to [the eastern states], telling the mother it was for surgery. He told her he was to have a double resection operation on his bowel and liver, and that the surgery could only be done in the eastern states. The father's story was false. In fact, he stayed in a hotel for the 10 days he remained in the eastern states.
35While the father was in the eastern states, the mother received a phone call informing her that the surgery had gone well and that the father was in recovery. The mother thought that the person she spoke to was a female. The phone call was bogus. In fact, it was made by the father – who impersonated a nurse.
36After returning to Perth, the father told the mother he had to undergo radiation therapy. He told her that his surgeon in the eastern states had removed 11 lymph nodes from around his bowel area, and that it had been discovered that the cancer was now in his lymphatic system.
37In or around October 2010, the father told the mother that he had been given 12-18 months to live.
38In early 2011, the father told the mother that his Type 2 diabetes had deteriorated into Type 1 due to radiation damage to his pancreas. Thereafter, the father began to use insulin.
39In April 2011, the father told the mother he had been diagnosed with two brain tumours. The following month, the father took another trip to the eastern states – this time (allegedly) for brain surgery. He was also meant to join a clinical trial if the operation was successful.
40The father and the mother Skyped while the father was in the eastern States on this occasion. The father presented with a shaved head, and his speech was slurred. He told her the doctors were conferring about whether he was an appropriate candidate for the clinical trial.
41As on the previous occasion, the father's story was false and he stayed in a hotel while he was in the eastern states. The shaved head and slurred speech were contrivances, intended to mislead the mother and give credence to his deception.
42In May 2011, the staff at Company B participated in a fundraiser for cancer sufferers. They believed the father was suffering from cancer, and the money raised was donated to him. There was a dispute about the amount paid to the father. The mother said it was $3,800. The father disputed this.
43In August 2011, the father received $1,000 from an anonymous staff member at his work. This staff member believe the father was suffering from cancer.
44In October 2011, the mother organised a birthday party for the father at a restaurant in Sydney. The parties flew there from Perth.
45Sometime after this, the father told the mother the clinical trial had ended as all the patients had died.
46In early 2012, the father told the mother he would need to start another eight week course of radiation therapy.
47In May 2012, the mother began to be suspicious of the father when she saw a document indicating that he had made a purchase during the time he was meant to be undergoing radiation treatment.
48Shortly afterwards, the mother contacted the family's health insurance fund, which had no record of the father having received any cancer treatments.
49On 19 June 2012, the mother went to see the father's general practitioner, who had no record of the father having been diagnosed with cancer.
50Also in June 2012, the mother discovered documents on the home computer, showing that the father had fabricated doctors' letters regarding his cancer. The mother also obtained a Medicare record of treatments for the father. There was no record of treatment for cancer.
51On 3 July 2012, the mother visited the father's general practitioner again.
52On 19 July 2012, the father told the mother he was getting the results from the latest round of radiation therapy.
53Understandably, the mother's level of apprehension regarding the father's behaviour and mental state was extremely high by this stage. She was alarmed, mistrustful and anxious.
54On 22 July 2012, the mother was in the bathroom when the father came in holding a carving knife. To her consternation, he said he was disappointed she was not in the shower because he wanted to re-enact the shower scene from "Psycho".
55On 27 July 2012, the father made comments which dismayed the mother and filled her with dread: she understood him to be threatening to bury her and the two children in King's Park.
56In September 2012, the father told the mother he may require more surgery and that, while one tumour had not increased in size, the other had grown by three centimetres. In the end, however, the father did not travel again.
57On 8 October 2012, the mother came home from work to find the father angry. An argument developed, during which the father said he wanted a divorce. On the following day, the mother left the house with the children. They went to stay with the mother's parents. The children have remained in the mother's care since that time.
58Since then, the father has spent limited time with the children. All contact has been in the presence of the mother.
59On 14 November 2012, the mother took the children to have dinner with her and the father at a cafe. While the children were playing, the father confirmed to the mother that he did not have cancer.
60I shall refer to the father's long and complex deception regarding suffering from cancer as "the cancer deceit".
61Shortly afterwards, the father telephoned the mother and told her that he had confessed to his workmates at Company B that he did not have cancer. He added that they were going to support him – because it was clearly "the depression that made him do it". The mother then told her father of the confession, and that the staff at Company B were aware of the true situation.
62After negotiations between the parties' solicitors in December 2012, the father vacated the former matrimonial home at Property A and the mother and children returned to live there. The father moved to rental accommodation.
63As set out below, proceedings commenced in this Court in June 2013.
64At the Company B Christmas party in December 2013, the mother's father – who had also worked at Company B – mentioned the father's deception to one of the senior employees. This person did not know that the father had never had cancer, and was unaware it was a pretence. On the following Monday, the mother's father met with the Company B Human Resources Manager, [Mr Lawrence]. At that meeting, he informed the father's employers of the deception. The mother was not aware that her father was doing this and had previously asked her father not to disclose the father's subterfuge to Company B.
65On 7 January 2014, the father resigned from Company B – following a meeting with his direct manager and the Human Resources manager.
66Thereafter, the father has maintained that he fabricated the cancer diagnosis because he was depressed and suffering from the effects of unstable blood sugar levels caused by his diabetes.
67On 19 October 2014, the mother was driving the children to church when she saw the father on his motorcycle. He began to follow her. The following day, the mother applied for an interim Violence Restraining Order.
68On 21 May 2015, the father received an offer of employment at [Company C]. Notably, this was during the first tranche of the trial.
69The father did not disclose the offer of employment.
70The father commenced employment at Company C on [in] 2015. Despite this, when he made his closing submissions he stressed to the Court what a struggle it would be to find employment, given that he could not use Company B as a reference.
71The father later admitted that he was well aware of the offer of employment and had signed the contract for his new employment [in] 2015. He also admitted he had commenced employment [in] 2015, with final submissions in relation to children and financial issues not concluding until 2 September 2015. Further, the father admitted in a later affidavit, and under cross-examination, that he had not disclosed his new employment. His excuse was that he was scared that if the mother found out about his new employment she would contact his employers (or arrange for one of her family members to do so) and tell them about the cancer deceit. As can be seen from the procedural history set out below, the matter returned to Court, at the request of the mother, for further evidence in relation to financial matters in 2016.
Procedural History
72In this section, I have provided comparatively brief summaries of the orders sought by the parties, orders actually made by the Court from time to time and other documents. These summaries are not intended to be comprehensive, and the reader should refer to the relevant documents, applications, responses or Minutes, and to the orders of the Court as extracted, for their precise terms.
73Proceedings commenced in this Court on 7 June 2013, when the father filed an initiating application. At that time, the father sought that he and the mother have equal shared parental responsibility, that the children live with the mother and that they spend time substantial and significant with him. The father also sought a general order in relation to property settlement (seeking that he be permitted to particularise relevant property orders sought within 30 days of the mother providing full and frank disclosure).
74On 17 July 2013, the mother filed a Form 1A response to the initiating application seeking that the children live with her, that she have sole parental responsibility and that the father have no contact with them. She also sought orders in relation to property.
75On the same day, the mother filed a notice of child abuse, family violence or risk of family violence. She alleged that the father was verbally and physically aggressive towards her, verbally aggressive towards the children, forced both children to eat until they vomited and told the children that he was dying of cancer. The mother also alleged that the father had threatened to kill her and the children, and that he had been coercive and controlling throughout the marriage.
76The matter first came before the Court on 19 July 2013. At that time, orders were made by consent that the children live with the mother and (on a "without admission" basis) that the father be restrained by injunction from removing the children from the mother's care or communicating with the mother. Orders were also made, not by consent, that the father be restrained from communicating with the children. Further procedural orders were made for the filing of further documents and the appointment of an ICL. The parties were ordered to attend a Case Assessment Conference on 28 August 2013, and the proceedings were otherwise adjourned for an interim hearing on 19 September 2013.
77The Case Assessment Conference was held on 28 August 2013 with Family Consultant Osmancevic. No agreement could be reached, and the consultant recommended that a single expert with a psychiatric background be appointed. It was also recommended that the father undergo a psychiatric assessment with a view to ongoing psychotherapy if suitable.
78On 19 September 2013, Dr Helena Piirto – a consultant Psychiatrist – was appointed single expert to enquire into and report on (among other things):
a)whether either the mother or the father suffered from any psychiatric illness or personality disorder;
b)whether the children were at risk of abuse of any kind from any person; and
c)whether the children had suffered any impact from the father's behaviour, or were likely to in the future.
79On 5 December 2013, the father filed an application particularising his claim for property settlement. He also sought interim contact with the children on a supervised basis.
80On 14 January 2014, the mother filed a response to the father's application seeking that it be dismissed. She was prepared to consent to an order that she be restrained from denigrating the father or his family, and discussing the proceedings with the children. She also sought orders about the way in which the single expert was to conduct her report.
81On 16 January 2014, orders were made that the father and the mother telephone Safe Oasis Solutions to arrange an appointment for an intake interview regarding supervised contact between the father and the children. Orders were also made for the filing of further material and the proceedings were otherwise adjourned to 7 February 2014, for further argument.
82On 7 February 2014, the issue of interim contact was argued. At the conclusion of the hearing, Magistrate Sutherland reserved her decision.
83Her Honour's decision was handed down on 26 February 2014. Put shortly, her Honour was not satisfied that it would be in the best interests of the children to commence spending time with the father. It follows that the father's application for interim contact was dismissed. I otherwise refer to Magistrate Sutherland's decision for its full terms and effect.
84Various procedural orders were also made on 26 February 2014.
85On 3 April 2014, the father's solicitors filed a notice of ceasing to act.
86On 9 June 2014, orders were made (not by consent) that the children meet with the father for a period of two hours, such meeting to be supervised by Safe Oasis or another supervision agency. The meeting was to be observed by Dr Piirto. Further procedural orders were also made.
87In late July 2014, the mother filed an application seeking orders permitting her to take the children [overseas] for a holiday for approximately two weeks from late September 2014 to mid-October 2014.
88On 15 August 2014, the father filed a response to the application. He appeared to consent to the mother taking the children on holiday, but sought additional orders that the mother facilitate a meeting between the children and their paternal aunt in the eastern states, that the mother attend the Mums and Dads Forever program and that the father be permitted to communicate with the children in writing.
89On 18 August 2014, orders were made that the mother be at liberty to remove the children from Australia for the proposed holiday and that she provide an itinerary to her solicitor, who would be at liberty to release the details to the father in the event of an emergency. Again, further procedural orders were made.
90The Conciliation Conference was held on 25 September 2014, but the proceedings were not resolved.
91Further procedural orders were made on 22 October 2014, including an order that the proceedings be included in the January 2015 Callover with an estimated hearing time of 4 to 5 days.
92Eventually, a fixed dated was allocated for the commencement of the trial, being 18 May 2015.
93On 16 April 2015, the mother filed an application seeking leave to rely on further affidavits. The application was listed to the first day of trial. On 24 April 2015, the father filed a response.
94On 12 May 2015, the mother filed an application seeking leave to rely on the affidavit of [Mr Lawrence].
95On 13 May 2015, the father filed an application seeking leave to rely upon affidavits filed for the purposes of interim hearings. Both his application and the application of the mother were listed to the first day of trial.
96The trial commenced on 18 May 2015 and ran for five days. It did not conclude. On 22 May 2015, orders were made that the matter be included in the first available callover, on a part-heard basis – and be listed with priority.
97In due course, it was listed for a further three days, commencing 31 August 2015.
98The trial recommenced on 31 August 2015 and continued until 2 September 2015. At the conclusion of the proceedings, and on the undertaking of the mother (given without admission as to need) that pending delivery of judgment she will not change the children's principal place of residence, I made the following orders.
Sole parental responsibility
(1)All previous orders dealing with parental responsibility be discharged.
(2)The mother have sole parental responsibility for the children.
Live with arrangements
(3)The children live with the mother.
Injunctions
(4)Without limiting the generality of the orders in paragraphs 2 and 3 above, the father be restrained by injunction from removing the children or either of them from –
(a)the care of the mother;
(b)the care of the mother's parents or any other person specifically designated by the mother as being in loco parentis;
(c)the premises of any school attended by the children or either of them from time to time;
(d)the premises of the [Company A Early Learning Centre]; and
(e)the premises of the [Perth Church] or any other church attended by the children or either of them from time to time.
(5)The mother be at liberty to publish a copy of these orders to the Principal and administration of any school attended by the children or either of them from time to time, the [Perth Church] or any other church attended by the children or either of them from time to time and the [Company A Early Learning Centre].
(6)The father be restrained by injunction from –
(a)contacting the mother other than by communications in writing;
(b)entering onto or approaching the premises at [Property A] or any subsequent home occupied by the mother unless otherwise previously agreed between the parties in writing; and
(c)contacting or attempting to contact or communicate with the children or either of them in any way whatsoever (including, but not limited to, approaching them at school or at church).
Passport
(7)By consent: Within 7 days, the father must execute all documents necessary to enable the mother to renew the passports for each of the children, with the passports once issued to be held by the mother.
Travel
(8)By consent:
(a)The mother be at liberty to remove the children from the Commonwealth of Australia for the purpose of a holiday [overseas]….
(b)The mother must return to the Commonwealth of Australia with the children by not later than 3 January 2016.
(c)Prior to her departure, the mother must provide to her solicitors, O'Sullivan Davies, a detailed itinerary indicating the places at which the children will be staying [overseas] and the means by which she may be contacted throughout the holiday.
Parenting programs
(9)The mother must –
(a)enrol in, attend and complete, as soon as practicable, the Mums & Dads Forever program ("the Program");
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the Program to the father and to the independent children's lawyer.
Judgment reserved
(10)The judgment in the substantive proceedings otherwise be reserved.
AND IT IS NOTED THAT: –
(11)The orders contained in paragraphs 2, 3, 4, 5, 6 and 9 above are final orders made at the completion of the trial which took place on 18 to 22 May 2015 (inclusive), 31 August 2015 and 1 to 2 September 2015 (inclusive).
99I shall refer to the above orders as "the final parenting orders".
100Brief oral reasons were given in support of the final parenting orders. This judgment sets out the Court's full reasons in relation to all parenting and property settlement issues.
101Minutes of final orders sought had been filed by the mother on 27 November 2014 and the father on 4 December 2014. The father and the mother also filed comprehensive papers for the judge – the father on 4 May 2015 and the mother on 7 May 2015.
102The ICL's papers for the judge were filed on 14 May 2015. They included a minute of proposed orders in which it was suggested that the parties should have equal shared parental responsibility, that the children should live with the mother and that the father should have very limited, supervised contact with the children on a weekly basis. It was also suggested that the father should be permitted to have additional, limited forms of communication with the children and that the proceedings should otherwise stand adjourned for approximately eight months "to monitor the arrangements… and for directions".
103On 30 November 2015, the mother filed an application seeking orders to the effect that, the father having filed a financial statement on 13 November 2015, this be treated as an application to reopen. The matter was listed before me on 27 January 2016. The application related to the father having found new employment – which employment he had not disclosed to either the Court or the mother.
104On 27 January 2016, I made the following orders:
(1)The father having filed a Form 13 Financial Statement on 13 November 2015, that filing be treated as a request by him to reopen his case.
(2)The father be given leave to reopen his case in relation to financial matters only, and the financial statement be received into evidence.
105The matter was otherwise listed to 2 March 2016 (for mention only) and 22 March 2016 for hearing (with an estimated hearing time of two to three hours).
106The parties were divorced on 16 February 2016.
107On 2 March 2016, orders were made granting both parties leave to reopen in relation to the issue of property settlement only. Other procedural orders were also made, as well as orders for the father to deliver a number of items to the mother. Since the father sought to cross-examine the mother in relation to certain new material, the proceedings were added to the list of defended matters to be called over on 24 June 2016, with an estimated hearing of one day. The hearing on 22 March 2016 was vacated.
108At the callover, the reopened matter was listed before me on 26 August 2016. On that date, both the father and the mother were cross-examined.
109On 28 February 2017, the mother filed an application in a case seeking to change the children's surname. The father filed a response to this application on 29 March 2017, opposing the proposed change of name. This issue was ultimately dealt with on 25 May 2017.
The father was unrepresented
110Given that the father was unrepresented, I was very conscious of the obligation upon the Court to provide a fair trial – for all parties. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253]. I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair. In summary:
a)procedural fairness was afforded to all parties;
b)the "mechanics" of the trial, and the right of the father to cross-examine witnesses, were explained to him;
c)other relevant procedures were explained to the father as they arose;
d)I explained to the father that he had the right to object to inadmissible evidence, and explained to him – in very broad terms – the types of evidence that might be considered inadmissible;
e)where appropriate, I attempted to clarify the substance of the father's submissions; and
f)where appropriate, I took other steps as authorised by the Full Court in Re: F – Litigants in Person Guidelines (supra) at [253]: see Guideline #9 in that paragraph.
111In Saxena & Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph 'were no more than the name implies' and that they 'derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on'. His Honour added that the Court must be concerned with 'the spirit rather than the strict letter of the guidelines'.
112In the present case, the father participated in the process fully and energetically. I have no doubt that he fully understood 'what was going on' at all times.
The mother's proposals
113Throughout the trial, the mother proposed that she have sole parental responsibility for the children, and that the children live with her and have no contact with the father.
114The mother proposed that she retain the former matrimonial home, on the basis that she would take over the encumbrances. She otherwise proposed that she should retain the assets and superannuation currently held by her. There were also minor issues about the delivery up of items which the father had removed from the matrimonial home.
The father's proposals
115The father initially sought equal shared parental responsibility and time with the children – moving, eventually, to shared care. At the conclusion of the trial on 2 September 2015, however, his submissions in relation to parenting issues were that the parties should have equal shared parental responsibility, that the children should live primarily with the mother and that he should undergo further treatment for psychological issues – and thereafter be permitted to spend regular time with the children.
116The father sought final orders in relation to property settlement on the basis of a 60% / 40% split in the mother's favour.
ICL's proposals
117At the commencement of the trial, the ICL's proposals substantially reflected the recommendations then made by the single expert, Dr Piirto. However, at the conclusion of the trial, and after the oral evidence of the parties and their witnesses – and, in particular, after Dr Piirto had been heard – the ICL supported only very limited communication between the father and the children. He otherwise supported the orders sought by the mother as reflected in the final parenting orders.
Documents relied upon
118The mother relied on the following documents:
a) her affidavit sworn 27 November 2014;
b) affidavit of [Ms Matthews], sworn 26 November 2014;
c) affidavit of [Ms Kenneth], sworn 26 November 2014;
d) affidavit of [Ms Reynolds], sworn 26 November 2014;
e) affidavit of [Mr Lewington], sworn 26 November 2014;
f) affidavit of [Ms Lewington], sworn 27 November 2014;
g) her financial statement sworn 27 November 2014;
h) affidavit of Mr Lawrence, sworn 5 May 2015; and
i) her affidavit sworn 24 November 2015.
119The father relied on the following documents:
a)his affidavits sworn 6 June 2013, 3 September 2013, 2 December 2013, 14 August 2014 and 28 November 2014;
b)affidavits of Samantha Leigh Craig – sworn 16 January 2014 and 5 June 2014;
c)affidavit of [Ms Farnell], sworn 24 November 2014;
d)his financial statement sworn 12 November 2015; and
e)affidavit of [Dr G], sworn 12 September 2013 (which affidavit become exhibit F1).
120At the reopening of the property proceedings, the father also sought to rely on his affidavit sworn 26 July 2016.
121The ICL relied upon two affidavits of Samantha Leigh Craig – sworn 16 January 2014 and 5 June 2014.
122Dr Piirto's report dated 9 September 2014 was also admitted into evidence.
Relevant applicable law – parenting issues
123The following summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) [2011] FMCAfam 1473.
124Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Pt VII of the FLA.
125The Full Court carefully analysed the structure and effect of Pt VII in Goode & Goode (2006) FLC 93-286 ("Goode"). It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to s 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
126Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child": s 64B(3). Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health.
127If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision: s 65DAC. Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent: s 65DAE.
128As has long been the case, the child's best interests remain the paramount consideration in the making of parenting orders. That principle is set out in s 60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
129The objects of Pt VII, and the principles underlying it, are set out in s 60B. They are:
… to ensure that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
130The principles underlying these objects are set out in s 60B(2). They are:
... that (except when it is or would be contrary to a child's best interests):
•children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
•children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
•parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
•parents should agree about the future parenting of their children; and
•children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
131Given that all the expressed objects of Pt VII are directed towards ensuring that a child's best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in s 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests. The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
132The primary considerations are set out in s 60CC(2). They are:
•the benefit to the child of having a meaningful relationship with both of his or her parents; and
•the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
133The additional considerations are set out in s 60CC(3). They include:
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child's relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the extent to which each parent has taken (or failed to take) the opportunity to participate in making decisions about major long-term issues regarding the child, and to spend time or communicate with the child;
d)the extent to which each parent has fulfilled (or failed to fulfil) his or her obligations to maintain the child;
e)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
f)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
g)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
h)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
i)in the case of an Aboriginal or Torres Strait Islander child, the child's right to enjoy his or her indigenous culture;
j)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
k)any relevant family violence, or family violence order;
l)whether it would be "preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child"; and
m)any other fact or circumstance that the court considers relevant.
134The long list of additional considerations makes it clear that the Court is required to focus on – among other things – each party's "track record" as a parent.
135Although the primary considerations are listed before the additional considerations, they will not always "outweigh" them: see Champness & Hanson (2009) FLC 93-407 at [101]. Clearly, the primary considerations "should be accorded particular importance in determining what order will best promote the interests of the child", but they will not always determine the outcome of the proceedings. Thus, in Marsden & Winch (No 3) [2007] FamCA 1364, the Full Court said at [78]):
…[the Court is] obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as [it thinks] appropriate in arriving at the result most likely to promote the child's best interests. … [Particular emphasis must be placed on the primary considerations] not only because the legislature has identified them as "primary" but also because they are manifestly of the utmost importance in determining what outcome will best advance the child's best interests.
136In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the "preferred" approach is to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents": see McCall & Clark (2009) FLC 93-405 at [119] ("McCall"). The Full Court described this as "the prospective approach". Depending upon the circumstances of the particular case, a slightly different approach (which the Court described as "the present relationship approach") may also be relevant. The present relationship approach suggests that a court should consider the benefit to a child of having a meaningful relationship with his/her parents by examining the nature of the relationship as it exists at the date of the hearing and proceeding to make orders which reflect its findings in that regard: see McCall at [117] to [122]. Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.
137Notwithstanding what was described in McCall as the "preferred" approach, the Court is not obliged to ensure that a child maintains a meaningful relationship with both parents; its obligation is to make orders most likely to promote the child's best interests. In seeking to discharge that broader obligation, the Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship: see Mulvaney & Lane (2009) FLC 93-404 at [89] and Champness & Hanson (supra) at [103]. As the Full Court said in Jurchenko & Foster [2014] FamCAFC 127 at [123]:
… [Having] a "meaningful relationship" with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child's best interests.
138What then is a "meaningful relationship"? In broad terms, it is a relationship which is "important, significant and valuable to the child". In McCall at [121], the Full Court "accepted as appropriate" the following comment by Brown J in Mazorski & Albright (2007) 37 Fam LR 518 at [26]:
… [When] considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. …
139It should be borne in mind, as well, that "what the legislation aspires to promote is a meaningful relationship, not an optimal relationship": see Godfrey & Sanders [2007] FamCA 102 and Moose & Moose (2008) FLC 93-375 at [70].
140In Goode, the Full Court summarised the above process at [10]:
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in ss 60CC ... The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
141Despite the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper: see, in a different context, McLay & McLay (1996) FLC 92‑667 at 82,901. Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the Court may make such parenting order as it thinks proper: s 65D(1).
142The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence. In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.
143In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the Court that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility [s 61DA(4)].
144When making a parenting order, the Court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility: s 61DA. Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
145Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise), the Court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable and in the child's best interests. If it is both of these things, then the Court must consider whether it should make an order to that effect: s 65DAA(1). If the Court comes to the conclusion that an order for equal time should not be made, it must then go on to consider whether the child spending "substantial and significant time" with each parent would be both reasonably practicable and in the best interests of the child. If it is both of these things, then the court must consider whether it should make an order to that effect: s 65DAA(2).
146In MRR v GR (2010) 240 CLR 461, the High Court said at [13] and [15]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. (Emphasis added.)
147The same principles apply to s 65DAA(2) where its pre-conditions are satisfied: see, for example, Hamish & Brighton [2014] FamCAFC 242.
148The sequence in which the Court should consider the various provisions discussed above (and other relevant matters) is not clear from Pt VII itself. In Taylor & Barker (2007) FLC 93-345, however, the Full Court said at [62]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Pt VII, and given that s 60CC(1) provides that in determining what is in the child's best interests, the Court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests.
149The Full Court in Taylor & Barker (supra) added that failure to follow the above approach, which it clearly regards as the logical approach, does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".
150In Mazorski & Albright (supra), Brown J dealt with the "additional considerations" (in s 60CC(3)), prior to dealing with the primary considerations (in s 60CC(2)). In Moose & Moose (supra), Boland J, with whom May J agreed, approved of such an approach, saying that, in certain cases, it may help to focus the Court's attention on relevant matters to be determined under s 60CC(2) if it first considers and makes findings about relevant factors under s 60CC(3): see also Collu & Rinaldo [2010] FamCAFC 53 at [335].
151Having summarised the effect of Pt VII in Goode at [65], the Full Court then described, at [82], the "legislative pathway" that "must be followed" in interim proceedings. There seems to be no reason, however, why a similar pathway ought not to be followed at trial, where final orders are sought: see, for example, Hungerford & Tank [2007] FamCA 637 and M & S (2007) FLC 93-313 at [36]; see also Sayer & Radcliffe (2012) 48 Fam LR 298, citing Starr & Duggan [2009] FamCAFC 115.
152The relevant steps, as modified for a final hearing and taking into account the High Court's decision in MRR v GR (supra), are as follows:
a)Identify the parties' competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant s 60CC factors and, if possible, make findings about them.
e)Decide whether the presumption in s 61DA applies.
f)If the s 61DA presumption applies, then consider whether it has been rebutted because its application would not be in the best interests of the child.
g)If the s 61DA presumption applies, and has not been rebutted, then consider both of the following questions:
i)Is it in the best interests of the child to spend equal time with each parent?
ii)Is it reasonably practicable for the child to spend equal time with each parent?
h)If both of the above questions are answered in the affirmative, then consider making an order for equal time (although the court is not obliged to make such an order).
i)If the s 61DA presumption applies and has not been rebutted, but equal time is not in the child's best interests, or is impracticable, then consider the two following questions:
i)Is it in the best interest of the child to spend substantial and significant time with the other parent?
ii)Is it reasonably practicable for the child to spend substantial and significant time with the other parent?
j)If both the above questions are answered in the affirmative, then consider making an order that the child spend substantial and significant time with the other parent (but, again, the Court is not obliged to make such an order).
k)In considering whether to make an order for equal time (or, alternatively, an order for substantial and significant time), the Court is not required to assume that it is desirable that such an order should be made, or that the making of such an order is the default position under the FLA. Instead, the Court must concern itself with the reality of the situation of the parent and the child; it must make a practical assessment as to whether equal time, or, alternatively, substantial and significant time, is both feasible and in the child's best interests.
l)If the s 61DA presumption does not apply or has been rebutted, or if it does apply but neither equal time nor substantial and significant time are both feasible and in the best interests of the child, then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are 'at large and to be determined in accordance with the child's best interests' (or, in other words, as a result of consideration of the objects and principles in s 60B and the factors set out in s 60CC): see Goode at [65.8].
Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a "leap" from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.
Section 75(2) Factors
276So far, in considering the question of property settlement, I have dealt with the identification of the parties' property and related issues. The Court has power to make an adjustment to a party's property settlement entitlement based on such contributions in order to take account of, among other things, both parties' respective means and needs. The Full Court has been critical of shorthand terms being used to describe this step in the property settlement exercise, preferring to refer to it simply as "the section 75(2) factors": see Clauson & Clauson (1995) FLC 92-595. In essence, s 75(2) is concerned with the process of arriving at a just and equitable result: see, in that regard, Waters & Jurek (1995) FLC 92-635.
277I turn now to consider the s 75(2) factors.
278Both parties continue to have ongoing capacity to earn reasonable income. Notwithstanding the cancer deceit, the father has been able to obtain further employment (disclosed only after the matter was listed for further hearing).
279There is no issue in relation to the current health of the parties. I accept that the mother experiences considerable anxiety concerning the father's relationship with the children.
280Whilst the father may have a responsibility, according to the law, to contribute financially to the expenses concerning the children, the mother has indicated that she will not be seeking any child support or child maintenance. She will have the ongoing financial responsibility for the care of the children. She has the capacity to continue in her current employment, or obtain possible future employment as a teacher.
281In my opinion, the most significant of the s 75(2) factors are the following:
a)the fact that the mother retains the primary and predominant responsibility (indeed, the sole responsibility) for the care and supervision of the children; and
b)the fact that the mother does not propose to receive child support from the father in the future and will, therefore, be solely responsible for all costs associated with their care.
282I have not ignored any of the s 75(2) factors, but have only found it necessary to refer to those which are most relevant.
283Having regard to all the evidence before me, I am persuaded that it is appropriate to make an adjustment on the basis of the s 75(2) factors. I am so persuaded because the purpose of the s 75(2) adjustment is to assist the Court in the process of arriving at a just and equitable result. To refuse to make an adjustment in the present proceedings would be to run the risk of making orders which are neither just nor equitable.
284On balance, and all the circumstances, I conclude that an appropriate adjustment of the parties' entitlements on the basis of contribution alone is to increase the wife's entitlement by 14% (and decrease the husband's entitlement by a corresponding amount). I recognise, of course, that such an adjustment creates a "differential" between the parties of 28%.
285It follows that the overall distribution of the property between the parties should be on the basis of 84% to the wife (being 70% in respect of contribution and 14% in respect of the s 75(2) factors), and the remaining 16% to the husband.
286Clearly, the observations I have already quoted from G & G (supra) and Steinbrenner & Steinbrenner (supra) also adhere to the exercise of judicial discretion I have just performed in relation to the s 75(2) factors.
Just and equitable?
287As indicated above, the High Court in Stanford explained that the consideration of the various factors in s 79(4) – which includes reference to s 75(2) factors – does not automatically give rise to a right on the part of one or other of the parties to have the property divided between them by reference to those factors. The requirement contained in s 79(2) must be considered and applied.
288In this case, and as discussed above, the parties separated before the commencement of property settlement proceedings. It is arguable, therefore, that the express and implicit assumptions that underpinned the property arrangements that they had made during their cohabitation had been "brought to an end by the voluntary severance of the mutuality of the marital relationship". It follows that it is just and equitable for the Court to make a property settlement order. That order is to be determined by applying s 79(4), although, clearly, the form of the order must also be just and equitable.
289In any event, I propose to (metaphorically) step back and consider whether the outcome achieved by my consideration of the parties' contributions and the s 75(2) factors has brought about a just and equitable result.
290The Full Court has cautioned against assessing the s 75(2) factors in percentage terms, without considering the real impact of any proposed adjustment. In other words, the real impact in money terms is "the critical issue": see Clauson & Clauson (supra).
291If the mother is entitled to 84% of the property, then she is entitled to property to the value of $815,120 (being 84% of $970,381). The net value of property currently in her possession or under her control (including her superannuation entitlements) is $372,490. It follows that if the mother is to retain that property, and if the father's interest in Property A is to be transferred to her (subject to her "taking over" the relevant encumbrances) – as the mother has sought – then she will be receiving assets to the net value of $815,827 (being $372,490 plus $443,337).
292There is no significant difference between the mother's 84% entitlement (amounting to $815,120) and the value of the property she has sought (amounting to $815,821). In those circumstances, I am more than satisfied that the property division she has sought is just and equitable.
293I am very conscious that justice and equity must be done to both parties, and I am also satisfied that the split the wife has proposed (and I have supported) achieves that result.
294Thus, and in summary, the wife will receive property to the value of $815,821 (being almost exactly 84% of the net property and superannuation available for distribution between the parties), comprising the property and liabilities (and superannuation entitlements) presently in her possession or under her control, together with the father's interest in Property A – subject to her "taking over" the relevant encumbrances relating to Property A.
Orders
295I now propose to hear the parties in relation to the precise orders necessary to give effect to these Reasons.
I certify that the preceding [295] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
6 June 2017
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