RITTMAN & RITTMAN

[2011] FamCA 186

FAMILY COURT OF AUSTRALIA

RITTMAN & RITTMAN [2011] FamCA 186

FAMILY LAW – CHILDREN – There are two children from the marriage, a sixteen year old and a twelve year old –  No orders sought as to the eldest child – Mother has been the primary care giver since separation – Twelve year old suffers from tuberous sclerosis – Mother and father dispute the severity of the child’s condition – Father contends the mother overstates the child’s medical condition – Mother asserts the father understates the child’s condition – Mother has enrolled the child in numerous extra-curricular activities – Mother seeks residency and shared parental responsibility, but sole parental responsibility regarding medical decisions – Father seeks sole parental responsibility and that the child reside with him – Mother’s credibility found to be wanting – Where there is much conflicting evidence as to the mother’s primary place of residence – Where mother has fabricated documents – Where documents have been forwarded to the eldest child, purportedly from the father but father denies responsibility – Where documents have been forwarded anonymously to a witness for the independent children’s lawyer, purportedly from the father – Where there is evidence the mother has employed several other individuals to aid her in discrediting the father – No orders made as to the eldest child from the relationship – Youngest child to reside with the father – Father to have sole parental responsibility – Mother to be restrained from attending upon any medical practitioners without the father’s written consent, save for in genuine emergencies – In event of medical emergency mother to produce copy of orders and portions of reasons for judgment to treating doctor – The mother to restrain from enrolling the child in any extra curricular activities without the father’s written consent.

FAMILY LAW – CHILDREN – SCHOOLING - Where no orders sought as to the eldest child but there is a disagreement as to her schooling – Where eldest child attends a private boarding school in another state – Where father refuses to pay boarding school fees – Mother to pay eldest child’s school fees should she continue at the boarding school – Mother and father to halve the school fees if eldest child returns home to attend a local private school.

FAMILY LAW – PROPERTY SETTLEMENT – Where mother brought majority of the assets to the marriage – Where earnings of both parties of the marriage have been modest but there has been wealth derived from a number of assets – Company of which parties are directors to be wound up – Cost of winding up to be shared by the parties – Property to be divided 70:30 between the parties in favour of the mother. 

`

APPLICANT: Mr Rittman

RESPONDENT: Ms Rittman

INDEPENDENT CHILDREN’S LAWYER: Mr Damien Carter, Solicitor

FILE NUMBER: BRC 2571 of 2009

DATE DELIVERED: 17 February 2011 (draft orders)
and 25 February 2011 (final orders)

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE:

8 – 12 November 2010 and

17 - 20 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Waterman of Counsel appearing for the Applicant Father

SOLICITORS FOR THE APPLICANT: Harrington Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Galloway of Counsel appearing for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: Pippa Colman & Associates, Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor of Counsel appearing for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Lawyers

ORDERS

IT IS ORDERED THAT:

PROPERTY PROCEEDINGS

1. From moneys held in trust, the Wife’s solicitors, by way of property settlement, pay to the Wife the sum of $432,884 and to the Husband $393,446.

2. The Wife’s solicitors are to ensure that jetty fees of $1,933 are paid to the N Council or to the Husband if he produces evidence of payment of same.

3. The Husband is to receive the sum of $3,643 if he can establish that he has paid the additional expenses associated with the sale of the property at N Street in N, Queensland, or alternatively the money is to be paid direct to the named creditors.

4. Any moneys accumulated over and above the sum of $826,330 in the Wife’s solicitors’ trust account is to be divided equally between the parties.

5. Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, and superannuation entitlements are deemed to be in the possession of the person who is named on the policy.

6. Within seven (7) days of being so requested, each party do all acts and things and execute all deeds and instruments to give effect to the making of these Orders. If either party does not execute all deeds and instruments to give effect to the making of these Orders within seven (7) days of being so requested, then a Registrar of this Honourable Court at Brisbane is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all deeds and instruments on behalf of the defaulting party.

7. The Husband is to be solely entitled to his share of the proceeds of an inheritance from the estate of the late Mr R.

8. Forthwith the Husband and Wife as directors of S Pty Ltd shall cause that company to be wound up and:

   a.        shall engage Accounting Firm 1 to facilitate that;

   b.shall engage Accounting Firm 1 to prepare final tax returns and books of account of the company, with any dividends to be paid equally to the Husband and Wife; and

   c.        shall each meet one half of any costs incurred.

1. Notwithstanding any other Order of this Honourable Court, from the moneys to be distributed to the parties, the sum of $10,000 is to be retained from the amount due to each of the Husband and the Wife (a total of $20,000) to cover the cost of winding up of the company, S Pty Ltd, with such costs to be borne equally by the parties.  After the company has been wound up and payment of all costs and outlays attended to, the balance of moneys is to be distributed equally to the parties.

   CHILDREN’S PROCEEDINGS

2. There be no Order in relation to the child, L born … December 1994.

3. In the event L continues to attend K school the Mother is to be solely responsible for her school fees including all fees payable for the 2011 academic year.

4. In the event L attends a private school in the Sunshine Coast region the Father is to be responsible for half the costs of fees rendered by the school for tuition and excursions.

5. The child, O born … January 1999, is to reside with the Father.

6. Commencing the 25 February 2011, the Mother spend time with the child O on alternate weekends from after school Friday until the commencement of school on Monday.  If the Monday is a public holiday or a pupil free day then until the commencement of school on the Tuesday.  It is the Mother’s responsibility during the school term to collect the child from school at the commencement of her spending time with the child and to return the child to school at the conclusion of her spending time with the child.

7. For the school holidays the Father is to have the first half in odd numbered years and each alternate year thereafter. 

8. For the school holidays the Mother is to have the second half in odd numbered years and each alternate year thereafter.

9. In even numbered years the Mother is to have the first half of the school holidays and the Father the second half.

10. During school holiday periods changeover is to occur at such venue as the parties may agree in writing but in the event they cannot agree at H Contact Centre or in the event H Contact Centre is not available outside the closest manned police station to where the child is at that time residing.  The costs of H Contact Centre are to be shared equally.

11. In the event that the child is in the Father’s care on Mother’s Day the Mother is to spend time with the child from 9.00 am until the commencement of school the following day.

12. In the event that the child is in the Mother’s care on Father’s Day the Father is to spend time with the child from 9.00 am until the commencement of school the following day.

13. a.where the child’s birthday falls on a school day, the parent who does not have the care of the child at that period of time shall spend time from the conclusion of school until the commencement of school the next day with the child, with that parent collecting and returning the child to school; and

    b.                   where the child’s birthday falls on a weekend or a non-school day, the       parent who does not have the care of the child at that period of time shall        spend time with the child from 3.30 pm until 9.00 am the following day.

1. The Father is to have sole parental responsibility in respect of all major long term issues in respect of the child save that the Father shall, prior to making a decision about any such issue:

   a.use his best endeavours to advise the Mother in writing of the decision to

   be made;

   b.seek the Mother’s written response in relation thereto;

   c.consider with respect to the best interests of the child, any such response, prior to making any decision; and

   d.advise the Mother in writing as soon as reasonably practicable of his ultimate decision.

2. That each party shall advise the other immediately in writing of any emergency involving the child.

3. That each party shall keep the other advised of all medical practitioners, hospital or allied health providers upon whom the child attends.

4. An injunction is granted restraining the Mother from attending upon any medical practitioners, hospitals or allied health providers with the child (except during a genuine medical emergency) without the express written consent of the Father.  In the event the Mother says the child requires emergency treatment at the time of treatment the Mother is to provide to the treating doctor or allied health professional a copy of these Orders and a copy of pages 44 to 69 (inclusive) of the reasons for judgment delivered in final form on 25 February 2011.

5. This Order hereby authorises medical practitioners, hospitals or allied health providers to provide information to each of the parties about the child upon request.

6. The parent who has O in their care is responsible for the supplying and administering O’s medications.

7. The Mother will not enrol the child in any extra curricular activities without the express written consent of the Father.

8. Whenever changeover is unable to occur at O’s school, then it shall occur at such venue as the parents may agree in writing, but if the parents are unable to agree, then at H Contact Centre or if H Contact Centre is not available, outside the nearest manned police station to the address at which O is at that time residing.  The costs of H Contact Centre are to be shared equally.

9. Weekend time for the Mother resumes after a holiday period when the child has been with the Mother for the first half of the school holidays on the weekend following the resumption of school.  When the child has been with the Mother for the second half of the school holidays weekend time will resume on the second weekend after the resumption of school.

10. The Independent Children’s Lawyer is discharged.

    IT IS FURTHER ORDERED THAT:

11. Payment of moneys due to the parties pursuant to the terms of these Orders is stayed until the determination of the issue of costs.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter is one proper for the attendance of Counsel.

1. Costs reserved.

1. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Rittman & Rittman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC2571/2009

Mr Rittman

Applicant

And

Ms Rittman

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The Applicant Husband (Mr Rittman) now aged 45 and the Respondent Wife (Ms Rittman) now aged 42 married in Melbourne in 1994 and separated whilst living in the N area on the 1 January 2009.

2. There are two children of the relationship, L born in December 1994 (aged 16) and O born in January 1999 (aged 12 years).

3. O has a condition, tuberous sclerosis which is a neuro-degenerative condition.  At paragraphs 24 and 25 of his trial affidavit the father describes her condition in the following terms:

   “24.- - -

   affects her brain and her heart, her kidneys, lungs and skin.  The effect of the condition is that she has intellectual impairment, developmental delay and seizures.  She also suffers from constipation, although less frequently now.

   25.There has been dispute between [the mother] and me about the length, severity and frequency of the seizures and as to [O’s] capacity.  [The mother] has reported that the seizures occur much more commonly, last longer and are of greater severity in her care, than I report them happening when in my care.  There has also been dispute between [the mother] and me about other medical conditions including:

   a.The extent of [O’s] constipation/whether a laxative was necessary.  [O] does not have the same reported degree of constipation when with me as she does with [the mother].  Until the meeting with [Dr C], [the mother] regularly gave [O] enemas.  I did not consider that the enemas were necessary, but that giving enemas to be an invasion of [O’s] privacy and degrading, to be avoided where possible.

   b.What treatment needed to be given following laser treatment, which I will detail below.

   c.[O] having SVT’s (heart racing).  Years ago she grew out of them and was taken off the medication.  In 2009, based on what [the mother] told doctors, [O] was put back on the medication.  I have not witnessed an SVT since before 2007.

   d.After [the mother] took [O] to an adult specialist, [Dr J], [O] was given an added dose of anti-seizure medication.”

4. L has in the past had epileptic seizures.  For the last two years she has been attending secondary school at K school in Victoria.  The father does not seek any orders in relation to L although the parties are not in agreement about where she should attend school and who should be responsible for the fees.  O attends special school at R and on two days each week attends the R State School.

5. At the present time the father resides with his partner Ms R at N.  He works as a domestic worker and also in a clerical position.  At the resumed hearing in January 2011 the Court was informed the father and Ms R are separating in four to five weeks time with the separation described as amicable.

6. The mother resides in a house at M owned by a male friend, Mr Q, who is employed in the maritime industry.  The mother is a student at a tertiary institution on the Sunshine Coast.

7. The parties moved to the Sunshine Coast from Victoria in about 1998.  They bought and sold a number of properties in the Sunshine Coast region before buying land at N Street in N for $790,000.  In 2004/2005 a house was built on this land.

8. The father says that from about 2005 onwards the mother and the two children for the most part resided at the residence of Mr C, also employed in the maritime industry, in N.  The mother denies this claim, though her case management document and other parts of her evidence would indicate she was not residing at the former matrimonial home.  It is but one of many areas where the account given by one party is in direct conflict with the other party’s evidence.

SUMMARY OF POSITION OF THE PARTIES IN RELATION TO CHILD RELATED ISSUES

1. As a generalisation the father is of the view the mother overstates O’s condition whilst the mother is of the view the father understates the extent of O’s medical needs.

2. It is the father’s position that the best interests of the child are served by placing her in his care on the basis that the mother:

   ·overmedicates the child;

   ·overstates the child’s symptoms;

   ·has involved the child in too many activities;

   ·has alienated his daughter L from his affection; and

   ·has not and will not promote a relationship between O and himself.

3. For her part the mother says she should be the primary care giver.  She claims the father:

   ·does not take O’s medical condition seriously enough;

   ·understates O’s symptoms;

   ·fails to provide O’s medication on a regular basis;

   ·she has been the primary care giver; and

   ·the fact that O has a good relationship with the father is proof she has promoted this relationship.

ORDERS SOUGHT

Orders Sought by the Applicant Father – Child Related Only

1. The father seeks orders as set out in his case management document filed

   
   

   3 November 2010 that O reside with him and he have sole parental responsibility for her.  He proposes that the child spend time with the mother on alternate weekends from after school Friday until the commencement of school on the following Monday, to be extended to the Tuesday if the Monday is a public holiday or pupil free day.

Holiday Time

1. The father proposes for school holiday periods other than Easter and Christmas, the child spend a week with each party.  The orders delineate quite clearly his proposals for holiday time and for special occasions such as the child’s birthday, Mothers Day and Fathers Day.

2. By paragraph 7 he seeks an order:

   “7.That an injunction be granted restraining the Mother from attending upon any medical practitioners, hospitals or allied health providers (except during a medical emergency) with the child without express written consent of the Father.  This order hereby authorises the doctors, health professionals and hospitals to provide information to each of the parties about the child.”

3. He seeks a prohibition on the mother enrolling the child in any extra-curricular activities without his express written consent.

4. He currently has four nights in a fortnight with O in his care.  Under his proposals this would change such that O would have eleven nights in his care and three nights with her mother during school term.

Orders Sought by the Respondent Mother – Child Related Only

1. Detailed orders are set out in the mother’s case information document filed

   
   

   3 November 2010.  In summary form they are as follows:

   ·The child reside with the mother and spend time with the father on each alternative weekend from after school Friday until before school Monday.

   ·In the alternate week the father have the child on a Thursday evening from after school Thursday to before school on Friday. 

   ·There is also provision for sharing the school holiday periods and arrangements for special days.

   ·She have sole parental responsibility in relation to medical decisions but apart from that proposes there be equal shared parental responsibility.

   ·As an alternate proposal the mother in paragraph 14 seeks an order that in the event the child lives with the father the child spend time with the mother each alternate weekend from after school Friday until before school Monday and on the Wednesday of the alternate week together with half school holidays and special days.

2. The mother in the course of cross examination, agreed to adopt the recommendations of Ms S (second report 7.14 and following) if she is to be the primary carer, that the Father’s weekend time in school term increase to five nights out of fourteen with the weekend time commencing on the Thursday afternoon in lieu of the proposed Friday afternoon and Wednesday evenings in the alternate week.

INDEPENDENT CHILDREN’S LAWYER’S

RECOMMENDATIONS

1. At the conclusion of the hearing which extended over nine days the Independent Children’s Lawyer recommended to the Court that the parents share the care of O week about with the mother to have sole responsibility for the care of O.  I will canvass the detailed recommendations of the Independent Children’s Lawyer and his reasons for same later in these reasons.

WITNESSES

1. Evidence has been adduced in one form or another from a total of 35 witnesses.  The evidence of these witnesses may be summarised as follows.

Applicant Father’s Witnesses

1. ·The father himself;

   ·Ms R – The father’s partner;

   ·Mr H – gave evidence by telephone link, elderly retired neighbour of the parties residing at N, two doors from the N residence;

   ·Witness 1 – together with her husband operates a houseboat rental business on the N River, a friend of the father;

   ·Witness 2 - medical secretary, she is a friend of the father;

   ·Witness 3 – the father’s step-mother, a marriage and civil celebrant, residing with the father’s father in Victoria;

   ·Ms Z – resided across from the unit owned by Mr C in N for a period of time, a friend of the father and O;

   ·Witness 4 – proprietor of a coffee shop in T.  She has had dealings with the mother and the father – she was not required for cross examination;

   ·

   Witness 5 – medical receptionist, gave evidence of events on Tuesday

   
   

   26 October 2010 at the medical centre where she works – evidence given by telephone link;

   ·Witness 6 – medical receptionist in the same medical practice – evidence given by telephone link;

   ·Witness 7 – forensic accountant, prepared a report in relation to the value of an inheritance received by the father some time prior to separation – not required for cross examination;

   ·Witness 8 – licensed private investigator who conducted surveillance on the Mother from 31 January 2009 to 3 February 2009 – not required for cross examination;

   ·Witness 9 – office receptionist at the office where the father works – not required for cross examination;

   ·Witness 10 – registered builder from T who has been engaged by the father on various building projects – not required for cross examination;

   ·Witness 11 – handwriting expert.  Gave evidence conjointly with the mother’s handwriting expert, Witness 12;

   ·Dr P – Paediatrician at R Hospital.  Her statement is Exhibit 23 – not required for cross-examination; and

   ·Dr S, paediatrician at R Hospital who saw O on 12 September 2009 – gave evidence by telephone link.

Respondent Mother’s Witnesses

1. ·The Mother herself;

   ·Mr T – child and educational psychologist at Town E in Victoria, prepared a report about the child L – gave evidence by telephone link;

   ·Dr W – paediatric cardiologist, has treated O and prepared a report dated 19 October 2010 – Dr W provided an updating report commenting on the evidence given by Dr S - gave evidence by way of telephone link;

   ·Dr A – a paediatric neurologist at Hospital 1 in Brisbane who annexes a series of letters/reports to his affidavit filed 20 October 2010 - gave evidence by telephone link;

   ·Witness 13 – pharmacist and proprietor of a pharmacy at N – gave evidence by telephone link; and

   ·Witness 12 – forensic handwriting expert.

Independent Children’s Lawyer’s Witnesses

1. ·Dr M – psychiatrist;

   ·Witness 14 – director of H Contact Centre on the Sunshine Coast – evidence given by telephone link;

   ·Ms S – social worker who had written two family reports;

   ·

   Dr C – a paediatrician at the R Hospital.  A report of

   
   

   Dr C of the 6 September 2010 is annexure 3 to an affidavit of the Independent Children’s Lawyer.  She had access to the file of the R Hospital – gave evidence by telephone link;

   ·Ms D –Family Consultant who prepared an assessment report dated 4 June 2009 - not required for cross examination;

   ·Witness 15 – Principal of the R Special School.  She had prepared an affidavit annexing a report – gave evidence by telephone link;

   ·Witness 16 – teacher at the R Special School.  She had assisted Witness 15 with information for the preparation of the report annexed to her affidavit – gave evidence by telephone link; and

   ·Witness 17 – case manager at N State School.  An undated report from Witness 17 was exhibit 10 – gave evidence by telephone link.

Witnesses Who Gave Evidence But Had Not Filed Affidavits –

Applicant Father’s Case

1. ·Detective Sergeant D – gave evidence by telephone link;

   ·Senior Constable S - gave evidence by telephone link; and

   ·Senior Constable P – gave evidence by telephone link.

Witness Who Gave Evidence But Had Not Filed Affidavit – Respondent

Mother’s Case

1. ·Witness 18 – staff member at K School – gave brief evidence by telephone link.  A revised statement by the witness was tendered (exhibit 38).

FATHER’S TRIAL AFFIDAVIT FILED 26 OCTOBER 2010

1. The Father’s trial affidavit is 132 pages consisting of 440 paragraphs with numerous annexures, many of tenuous relevance.

2. Much of the Father’s affidavit evidence seems to have been taken verbatim from diaries he has kept.  The Court would have been better assisted had there been some serious editing of the Father’s diaries rather then allowing them to be reproduced in such extraneous form.  I accept it is legitimate to allow a litigant to speak with his or her own voice rather than to draft an affidavit in legalese but there is scope for judicious editing.

3. In his oral evidence, the father denied authoring and/or forwarding certain documents, in particular:

   ·A bundle of documents received by Dr M.  Dr M expressed the view that she believed the documents emanated from the mother.  For reasons soon to be given I am of a similar view.  One of the documents included was a letter received by the mother from her solicitors dated 22 July 2009.  The mother’s account is she left this document and other documents at the former matrimonial home at the time she vacated the premises.

   ·A bundle of documents to L at her school which included two typed, undated and unsigned letters purporting to be from the father.

   ·An unsigned letter, purporting to be from the father to the Department of Communities (Child Safety Services) in April 2009 – annexure 10 to the mother’s affidavit filed 27 April 2009.  I find myself unable to make a firm finding about this document other than I record I am sceptical of the claim the father forwarded it on the basis he said he did not and I find him to be a witness of truth.

   ·A letter dated 9 April 2009 in the father’s handwriting said to have been hand delivered to the mother by the father (exhibit 1).

4. He also denied writing the last sentence of another letter said to have been handed to the mother dated Monday 26 July 2010 (exhibit 2).  The originals of these letters have not been produced.  These documents (exhibits 1, 2 and 3) were the subject of expert testimony by forensic handwriting analysts.

5. The father in his affidavit denies various allegations made by L in 2009 that in 2002 and subsequent years he acted towards O and herself in a sexually inappropriate manner.

6. In the last sentence of paragraph 26 of his affidavit the father deposes:

   “26.It has been a concern of mine for many years that [the mother] has exaggerated [O’s] symptoms something that I was opposed to.”

7. The father’s evidence at paragraph 27 is that the mother had involved the child O in too many activities.

8. The parties are in dispute about O’s future schooling with the father proposing a local state high school when her primary education is complete.  The mother proposes that she attend Private School 1 on the Sunshine Coast. There does not appear to be any proposal to alter the child’s primary schooling.

9. Each party has been responsible for a number of complaints to the police about the other (refer table 7 at page 13 of the father’s trial affidavit).  For his part the father denies all of the allegations as made by the mother.  Each party makes allegations of domestic violence by the other. 

10. At paragraphs 32 and following, the father acknowledges the relationship was “tempestuous”.  He says the mother was often jealous and made contact between the father and members of his family difficult.

11. At paragraphs 35 onwards he deposes to the mother behaving in a histrionic fashion on numerous occasions.

12. At paragraphs 43 and following he gives particulars of the mother behaving in a very controlling manner.

13. In the course of his evidence, both written and oral, the father details a number of incidents of harassment of himself and his partner by the mother, either personally or, inferentially, by others on her behalf.  The harassment has occurred at his place of work, in public places and by text and phone calls.

The Applicant Father’s Witnesses

1. Some of the father’s witnesses gave disturbing evidence about the mother’s behaviour.  Without exception I found the witnesses called by the father to be convincing in the general thrust of their evidence.  In summary form the evidence of these witnesses is as follows.

Ms R

1. Ms R – The father’s 50 year old partner.  They met in June 2009 and commenced cohabitation some time after that date.  At paragraph 10 of her affidavit she corroborates the father’s account of constant phone calls and text messages from the mother and the numerous difficulties in making arrangements to see O.  At paragraphs 12 to 14 of her affidavit she describes incidents where she has observed the mother’s forceful and loud personality and witnessed her screaming insults at the father in circumstances where there has been no indication of any form of provocation.  At paragraph 16 of her affidavit she corroborates the father’s account of the mother exposing her breasts whilst making insulting comments about Ms R’s appearance.

2. At paragraph 27 she makes the following observations of O:

   “27.Since I first met [O] she has changed quite significantly in a number of ways.  [O] is speaking much better, clearer and her stuttering has improved greatly.  Her vocabulary is also increasing and she speaks a lot more openly now without the reservation that she previously had.  She is more interested in being a part of her environment now.  She is always well behaved in the company of others, at parties or family gatherings.  It as though she has blossomed.  She has gained the confidence to speak and act in her own defence.”

3. I have no hesitation in accepting this observation made by Ms R of the change in O’s behaviour.  Similar observations are made by other witnesses in the father’s case.  I assume the inference I am asked to draw is that this change in behaviour is in part the result of the child spending time in a stable environment with her father and his partner.  I am unable to make a firm finding on this aspect other than to observe in all likelihood the father provides the more stable environment and it is a distinct possibility O is responding to this. 

4. At paragraph 36 Ms R gives evidence of attending at a shopping centre with O who queried why they had not parked in the wheelchair parking space.  The child is reported to have said to Ms R, “Mum is always saying that I am disabled”.

5. At paragraph 57 Ms R reports the child as having told the father and herself on many occasions that her mother does not cook.

6. At paragraph 74 the witness makes an observation in the following terms:

   “74.I do not understand as to why any parent would want to portray their child as having such a range of difficulties including wanting them to sit in a wheelchair and use a shower chair when they are capable of doing gymnastics, riding horses, doing karate and riding a bike.  As deferred (sic) to earlier in this my affidavit I acknowledge that [O] does have a health issue however it is my belief that a parent should encourage any child to make the best of and to use the capabilities that they have and to enjoy their life as much as possible.”

7. I formed a very positive view of this witness and have little doubt that she has been a positive influence for O.  She was an honest, forthright, impressive witness.  I have little doubt but that if she is no longer part of O’s life she will be missed by the child.  There is no evidence before the Court as to the extent, if any; Ms R will continue to spend time with O.

Mr H

1. Mr H is a retired builder.  He resides at … N Street in N.  There is one property between the respective residences.  He deposes that shortly after the parties had purchased the land in 2003 at lot …, he invited them to his home to watch the fireworks at the annual Christmas gathering held in Anzac Park across the river.  He deposes that during the course of that night the mother said in the presence and hearing of O:

   “6.She is five now, she will be dead by the time she is eight”.  It was not an appropriate remark to make in front of people in my view.  I did not have much contact with [the mother] following that mainly because she was not often at the property.”

2. Mr H appeared to have some hearing difficulties.  At one stage of his evidence he indicated that O did not hear the comment made by the mother but later in his evidence he clarified the position to be that he was of the view O would have heard the mother’s comment.

3. At paragraph 12 of his affidavit he deposes that to the best of his knowledge the mother had never lived permanently at the N Street in N residence since the house was completed:

   “Any suggestion that she has done so during weekends or during the school holidays is untrue.”

4. At paragraphs 13 and 14 he observes:

   “13.Since the beginning of January 2009 and the domestic violence protection order court mention date, neither of the parties has lived at that property.  Any suggestion that they have done so since then is untrue and is a lie.

   14.From my observation [the mother] has been to the [N Street in N] property since the beginning of January 2009 until early June on three or four occasions. - - -

   The visits have lasted between ten minutes and two hours.”

5. Mr H appears to have kept a diary or has an incredible memory as he is able to refer to specific dates when various people came to and from the house.  It is possible that he has relied on the father’s diaries but this proposition was never put to him.  This speculation on my part would not be borne out when

   
   

   Mr H makes observations of other people coming to the residence where it is likely the father would have no knowledge of same.

6. At paragraph 19 of his affidavit he deposes that on Tuesday the 9 June 2009 the mother came over with O and stayed overnight.  On the morning of Wednesday the 10 June 2009 two ambulances came to the home.  “[The mother and O] stayed overnight”.  Presumably this is a reference to the evening of the 10 June 2009.

7. At paragraph 20 he deposes:

   “20.On the following morning, Thursday the 11 June 2009 an ambulance came again.”

8. It was Thursday the 11 June 2009 that this matter was to be first mentioned in this Court in Brisbane.  The mother did not attend Court on that occasion as she was at the N Hospital with O.  The hospital notes as to the observations of O at the time of that admission form part of exhibit 25.

9. The affidavit of Mr H is sworn on the 6 July 2009.  I have no reason to disbelieve any of the matters deposed to by Mr H.

Witness 1

1. Witness 1 is the operator of the business “[Business 1]”.  Her affidavit was filed on the 22 October 2010.

2. This witness corroborates the father’s evidence that for the most part the mother and the two children were residing at Mr C’s home.  She says at paragraph 6:

   “6.To the best of my knowledge [the mother] never resided for any long period of time in the [N Street in N] property.”

3. At paragraph 9 of her affidavit she deposes that at Christmas 2007 the father informed her that the mother had taken his wallet containing his credit cards and also his mobile phones.  She said to him, “Get it back” and his response was, “No I can’t”.

4. This is corroborative of the father’s account of the mother behaving at times in a domineering and controlling fashion to the extent it reveals the father reporting such conduct well prior to separation.

5. She gives evidence that on the 16 March 2008 the father arrived at her home and she saw that he had bruises on his stomach.

6. The father stayed with Witness 1 and her husband for a week at that time.  She noted that during that time the mother called constantly, sometimes, “three times in the space of a minute”.

7. At paragraph 17 the witness deposes:

   “17.I recall another incident also around March/April 2008 when I overheard [the mother] say to [the father], “You’ll never get my kids, I will kill them first”.”

8. At paragraph 19 of her affidavit she corroborates the father’s account of arriving at her place on Friday the 2 January 2009 and witnessing bruises.

9. At paragraph 29 of her affidavit she deposes:

   “29.Since [O] has been spending consistent time with [the father] her speech has improved remarkably and she has developed a lovely sense of humour.”

10. At paragraph 33 she deposes:

    “33.On 14 June 2010 [the mother] alleged that I telephoned her and told her that [O] had had three substantial seizures whilst in [the father’s] care.  I am aware that [the father’s] solicitors received correspondence from [the mother’s] solicitors regarding my supposed telephone call because [the father] told me.  At no time did I call [the mother] and tell her that [O] had had seizures.”

11. I found Witness 1 to be a well spoken, honest and impressive witness.  I have no hesitation in accepting her testimony.

Witness 2

1. Witness 2 resides at Town U.  She considers herself a friend of the father.  She has known the father for approximately six years as her husband was tutoring both L and O.

2. At paragraph 5 of her affidavit she makes the less than flattering observation of the mother in the following terms:

   “5.From my experiences with [the mother] (through the […] tutoring) I have found her to be a very complicated, manipulative and ruthless type of person particularly if she did not get her own way.”

3. At paragraph 8 this witness deposes to observing two bruises on the father on the 1 January 2009 as well as a contusion under his eye and scratch marks on his arm.

4. At paragraph 21 of her affidavit Witness 2 deposes to the mother saying to her some time in 2007:

   “21.[O] is getting sicker and I am giving up on her – [L] is going for scholarships – so now I will concentrate on [L] as she needs all of my time – [O] is now [the father’s] problem.”

5. This witness deposes to a conversation with O on the 29 June 2010 when O disclosed that she had knowledge of the Court case.  She asked O what she would like to happen and O said, “She would like to go and live with Dad”.  When asked why, O replied, “Mum has [L] and I think it is fair that I go and live with Dad, besides I love Dad and he cares for me and I want to live with him.  He does things with me, we go bike riding, we do cooking, go to the beach and play cards”.

6. I accept the evidence of Witness 2.  She was a most impressive witness – open, intelligent and forthright.

Witness 3

1. Witness 3 is the father’s step-mother.  She deposes to receiving extremely abusive telephone calls from the mother, mostly late at night or in the early hours of the morning.  She eventually sought an intervention order against the mother in the Magistrates Court at Town D.  She asserts that the mother indicated that she was going to contest the making of the intervention order but ultimately did not do so.

2. The evidence of the nature of the phone calls is graphic.  The phone calls could only be described as crude, obscene and intimidating calls.  In the final paragraph of page 6 of her affidavit she says:

   “I have never known anyone to have the capacity to scream nonstop the tirade of abuse, the way [the mother] always did.”

1. At paragraph 22 of her affidavit the witness deposes that on two occasions O has told her that she does not want to go back to the mother’s and, “I want to stay with my Dad and [Ms R]”.

2. I accept the evidence of Witness 3.  She was a dignified woman who gave her evidence in a very convincing, impressive manner.

Ms Z

1. Ms Z resided in a unit opposite the unit owned by Mr C at G Street in N for the period from 26 September 2008 to 16 May 2009.  She resided there with her husband and three children.

2. At paragraph 3 of her affidavit she deposes:

   “3.Until we moved out on the 16 May 2009 [the mother] and [O] at all times resided with [Mr C] in his unit.  The eldest daughter [L] was also there until early to mid-January 2009 although I did not see much of her.”

3. At paragraph 19 the witness deposes:

   “19.One afternoon I heard [the mother] saying to [Mr C] quite loudly, “You have to get it right, you have to say that this woman can’t go near her husband, they have domestic violence protection orders, she has a terminally ill child.  She has to go to the North Shore, so she needs the motor boat.  I can’t do this – you have to do this [Mr C]”.  [The mother] went over the words several times and getting [Mr C] to repeat it after her.  Shortly after I saw [Mr C] leaving the unit locking his car.”

   An inference could be drawn that this conversation took place at about the time the parties were applying for mutual protection orders in the local Magistrates Court.  There is no evidence before the Court that Mr C filed any supporting statement in relation to any such application brought by the mother.  If there was such documentation filed the evidence is somewhat concerning in that one explanation is that Mr C was being told what to put in his material. 

4. At paragraph 27 Ms Z deposes to events following separation where she would hear the mother screaming at the father in the car park.  She deposes that the father would arrive to collect O and the mother would indicate that he was not seeing her.

5. This witness observed that on New Years Eve 2008 she had earlier that evening watched the father:

   “- - -

   Walked hand in hand with [L] over to the park where the mother was celebrating New Years Eve.”

6. I accept the testimony of Ms Z.  She was an independent and forthright witness.

Witness 5 and Witness 6

1. These witnesses are both medical receptionists.  They gave evidence of events on 26 October 2010 when a person purporting to be the father made a telephone call to the medical centre to cancel an appointment while the father was actually standing at the counter in front of them.  I note this incident occurred less than a fortnight before the commencement of the trial on 8 November 2010.

2. I will advert to this evidence when considering credibility issues.

Police Officers - Senior Constable S, Detective Sergeant D and Senior Constable P

1. These police officers each gave evidence of different aspects of matters they have investigated concerning the parties.

2. I accept the evidence of the police officers as to the matters they depose to.  There was no reason advanced why any of the police officers would be anything other than totally objective in the matter.  The evidence they gave is set out in reports they had written at a time well before this matter was set down for trial.

Witness 4

1. Witness 4 is the owner of a coffee shop in T.  She has operated this business for approximately two and a half years.  She only knew the father because he was a regular customer.  In her affidavit she deposes to the fact that when he came into her shop on the 3 January 2009, “he had big black bruises on his stomach”.

2. At paragraphs 16 and 17 this witness deposes to the mother advising her that a psychologist with a practice in N had made a complaint that the father had behaved inappropriately towards a junior female staff member.

3. Subsequently, Witness 4 contacted the psychologist,Ms MM, to ask her about her observations of inappropriate behaviour by the father towards the staff member.  Ms MM denied ever having had such a conversation with the mother.

4. Witness 4 deposes that at some later point in time Ms MM told her she had confronted the mother about the statements she was said to have made to Witness 4 and she denied ever making such statements. 

5. Witness 4 was not required for cross examination.  Her evidence is before the Court on an unchallenged basis.

Witness 9

1. This witness is a receptionist at the office where the father works.  In her affidavit she details instances of telephone complaints being received about the father.  She was not required for cross examination.

Witness 10

1. This witness is a registered builder whose evidence is only relevant in relation to property settlement issues and I will consider his evidence when dealing separately with the property settlement matters.

Dr P

1. Dr P is a paediatrician.  She made notes of an attendance on O at the R Hospital on the 21 January 2010.  That note is exhibit 23 in the proceedings.  Dr P was not required for cross examination. 

   
   

   Dr P’s report does not appear to be probative of any issue which the Court is required to determine.

AFFIDAVITS OF THE RESPONDENT MOTHER

1. The Respondent Mother relied on three affidavits filed on the 27 April 2009,

   
   

   20 May 2010 and 22 October 2010 respectively.

2. I will be making detailed observations on the issue of credibility later in these reasons when setting out my reasons for my findings on this issue.  Suffice to say, for present purposes, I formed a very poor view of the reliability of the mother as a witness of truth.  Having made that observation I turn to consider her affidavit evidence.

Respondent Mother’s Affidavit Filed 27 April 2009

1. At paragraph 8 of this affidavit the mother indicates that she is a healthcare professional.  She conceded in the course of cross examination that she has never been a healthcare professional. 

2. In paragraph 13 of the affidavit she states:

   “13.[The father] has been in receipt of Centrelink benefits for the whole of our marriage except for two years.”

   The reality was both parties were receiving different forms of benefits but it is misleading to suggest that the father was solely the one in receipt of Centrelink benefits.

3. In relation to paragraphs 16 and 18 of this affidavit I find that the mother’s accounts of O’s medical condition is in certain respects overstated.  I will elaborate on this aspect when considering the medical evidence which is before the Court.

4. At paragraph 23 the mother lists seven activities which the ten year old O was at that time engaged in, namely: horse riding, karate, sailing, gymnastics, dancing/ballet, tutoring and tennis.  Throughout the affidavit she is defensive of any criticism that she engaged the child in too many activities.

5. At paragraph 32 she notes that L in 2007 travelled to Victoria to attend a scholarship examination for G School.  The affidavit of Witness 2 would indicate that for the 2007 year L had undertaken this examination at her home supervised by her husband.

6. In paragraph 36 of her affidavit she deposes to receiving $300,000 in donations from the community to renovate the house at E Street in N.  The father disputes this amount.  There were no satisfactory particulars given as to how the $300,000 was received – either in cash or in kind.  No records appear to have been kept.

7. At paragraphs 51 to 58 the mother particularises who had care of O for the period 2007 to 2009.  I formed the view that she has overstated her involvement and understated the father’s involvement.

8. I note that in her second affidavit filed on the 20 May 2010 at paragraph 4 she deposes:

   “4.During the marriage [the father] claimed and accepted the Carer’s Payment on the basis that [O] required full time one on one care due to her serious condition.”

9. The particulars she sets out in paragraphs 51 to 58 would appear to make the father’s involvement with the child minimal.  Notwithstanding this, she appears to have accepted that he should be the one entitled to the receipt of the Carer’s Pension.

10. Annexure 5 to her affidavit consists of annexures from various persons including her chemist, the priest at the local Anglican Church, a dancing studio, a singing teacher, a tutor, a swimming instructor and others, a total of eight letters of support.  I note by way of example that for Ms CC and the singing tuition her letter of support is dated the 9 April 2009.  She notes that O has been attending singing lessons at the home studio for the past, “four to five years”.  She then states:

    “During the past term her mother [the mother’s name] has diligently bought [O] to her Monday afternoon singing lessons.”

11. Similar observations can be made about Ms SS’s letter of the 8 April 2009 where she records:

    “[O] has attended 100% of her swimming lessons this term and has been escorted to swimming by her mother.”

12. Similar observations can be made about the statement of Mr GG who tutors O.

13. At paragraph 62 of her affidavit she sets out her reasons why it was not appropriate for the father to have O overnight.  This is in marked contrast to her approach at the present time where she is seeking orders that the child have holiday time with her father and regular weekend time.

14. In her statements as to the child’s seizures she sets out various annexures.  Annexure 8 to her affidavit are N Hospital notes including notes from the Queensland Ambulance Service.  The annexures relate to an admission to the N Hospital on Sunday the 1 March 2009.  The record shows the mother recording that the patient suffers daily seizures.  The mother recorded that although the child had been having a seizure for 15 minutes prior to the ambulance being called the fitting ceased one minute prior to the Ambulance Service’s arrival and O was alert and orientated when the Ambulance officers attended upon her.

15. The Ambulance Service notes would indicate that O was showing no indication of an altered conscious state and all other symptoms were normal.  This was verified by the hospital notes.

16. I have viewed the admission notes for the 22 March 2009.  Again, upon admission the child was noted to have her eyes open spontaneously, she was orientated with verbal responses, she obeyed commands for testing of motor responses, her pupils were all indicating satisfactory reaction and her limbs had normal power.

17. At paragraph 114 of her affidavit she confirms that a friend, Mr C, had loaned us, “at least $600,000 over the years”.  I shall be considering this aspect in more detail when looking at property settlement issues and credibility issues.  Mr C was a party in this litigation but subsequently filed a notice of discontinuance.

18. The Mother has elected not to call any lay witnesses such as Mr C, Mr DD, Mr OO or Mr Q.  Had she been minded to do so, it might be expected that they would be in a position to assist her case by corroborating her testimony.

Respondent Mother’s Affidavit Filed 20 May 2010

1. This affidavit relates to admissions to the R Hospital on the

   
   

   12 February 2009, 14 August 2009 and the 5 September 2009.  There are regular complaints by the mother that the reasons for the admission were as a result of the father not providing O with her medication or other allegations that after discharge from the hospital he had not attended to the administration of her medication.

2. I shall consider these claims in further detail when examining the medical evidence.

Respondent Mother’s Affidavit Filed 22 October 2010

1. In this affidavit the mother corrects the impression she had given in her first affidavit (refer paragraph 87) that it was only the father who was in receipt of Centrelink benefits. 

2. At paragraph 27 she deposes:

   “27.For all but two years of the marriage, the family relied upon financial assistance from Centrelink.”

3. In paragraph 28 she no longer claims to be a healthcare professional but describes herself as a healthcare assistant. 

4. At paragraph 32 in the final sentence she deposes:

   “- - -

   As set out in his affidavit, [the father] spent almost every night at the [N Street in N] property without the children and I during 2007 and 2008.”

5. At interim proceedings in this matter particularly proceedings heard and determined in July 2009, the mother was asserting that she regularly stayed at the N Street in N property.

6. The first section of this affidavit is related to property settlement issues which I will consider separately.

7. At paragraphs 118 to 129 the mother raises concerns about inappropriate sexual conduct by the father towards L and O.  The allegations were first raised in any official sense in mid-2009 after separation.  They relate back to events over many years.  No action was taken by either the police or the Department of Communities (Child Safety Services).

8. It is noteworthy that at paragraph 129 the mother deposes:

   “129.I am not seeking a reduction in [the father’s] time with [O] on the basis of those allegations.”

9. One might ask the rhetorical question if she is not seeking a reduction in the father’s time with O as proposed in the orders she is seeking, why raise the matters in the previous ten paragraphs.

10. At paragraph 130 she deposes:

    “130.I have demonstrated my understanding that it is important for the children to maintain a relationship with [the father].”

11. I would have to observe that although this is the mother’s position at the hearing before me it has not always been her stated position.  I heard an interim application in June 2009 where the issue was what time should the father spend with O for the following six weeks before I could hear the matter in the following month.  The mother was originally seeking that the father’s time be limited to two periods of two hours each, one on a Saturday and one on a Sunday providing he met certain preconditions.  At the actual hearing, her stance had hardened so that she sought that the four hours a week be supervised at H Contact Centre.

12. For reasons that I gave at the time at the June 2009 hearing I ordered that the father spend time with O from 7.00 am until 7.00 pm each Saturday and Sunday.  At the hearing in July I made provisions for regular weekend time including overnight time for a total of four nights per fortnight.  This was subsequently altered by agreement to each weekend from Saturday morning to Monday morning.

13. Annexure 5 is a letter dated the 9 April 2009.  As referred to earlier, the father disputes he is the author of this letter.  Annexure 7 is a document where the father says a particular sentence has been added.  I will deal with these issues when considering the evidence of the handwriting experts in this matter.

14. Throughout the affidavit the mother deposes to a close loving relationship with her daughter and her expertise in dealing with O’s medical condition.  I will consider these claims when canvassing the factors I am required to take into account pursuant to the terms of s 60CC.

Respondent Mother’s Witnesses

Dr A

1. Dr A’s affidavit was filed 20 October 2010.  Dr A is a paediatric neurologist.  He has annexed a number of reports to his affidavit.  In the final paragraph on page 1 of the report of the 27 March 2009 he notes:

   “The degree of intellectual impairment would have an influence on her ability to obtain open employment and the tests performed would indicate that she will probably need long term social support in the future.”

   Obviously this aspect will be relevant when determining property settlement issues.

   An additional letter from Dr A dated 18 January 2011 was marked as exhibit 41.

Dr W

1. Dr W’s affidavit was filed on 22 October 2010.  Dr W is a paediatric cardiologist.  A further letter from Dr W dated the 14 January 2011 was admitted as exhibit 29.  In this letter Dr W takes issue with portions of the evidence given by Dr S in November 2010.

Mr T

1. Mr T is a psychologist in private practice at Town E in Victoria.  To his affidavit filed on 7 September 2010 is annexed a report he has written on the 23 August 2010 which summarises his counselling with L.

Witness 13

1. Witness 13 is a chemist at N who has frequently dispensed medications prescribed for O.  I shall consider his evidence when dealing with the evidence of Dr S and the evidence surrounding attendances at the R Hospital.

Witness 12

1. Witness 12 is a forensic document examiner.  I will deal with his evidence when considering what findings can be made in relation to the evidence concerning the authorship of certain documents.

Independent Children’s Lawyer’s Witnesses

1. The witnesses for the Independent Children’s Lawyer were:

Dr M

1. Dr M’s first report is annexed to an affidavit filed on 16 February 2010.  A further report dated 31 August 2010 is annexed to the affidavit of the Independent Children’s Lawyer.  Dr M gave evidence to the Court in this matter. 

Ms D

1. Ms D is a Family Consultant with the Family Court at Brisbane who prepared an assessment report dated the 4 June 2009.  Ms D was not required for cross examination.

Ms S

1. Ms S is a social worker in private practice who prepared two reports in this matter - the first dated the 18 July 2010 and the second report dated the

   
   

   5 November 2010 annexed to an affidavit affirmed on that date.

2. Also relied on by the Independent Children’s Lawyer was the affidavit of the Independent Children’s Lawyer annexing detailed correspondence passing between the parties.  There is also annexed a letter of Dr C a consultant paediatrician at R Hospital who has treated O from time to time.  That report is dated the 6 September 2010.

DOCUMENTS TENDING TO REFLECT ADVERSELY ON APPLICANT FATHER’S CAPACITY AS A PARENT

1. As noted in paragraphs 28 and 29 above, there are a series of incidents referred to in evidence which could only be described as mysterious.  They include the following:

   ·A bundle of documents forwarded anonymously to L at K School.

   ·A bundle of documents forwarded anonymously to Dr M.  These documents eventually became exhibit 17 as Dr M had onforwarded them to the Independent Children’s Lawyer.

   ·Exhibit 1 being a letter said to have been authored by the father dated the 9 April 2009 addressed to the mother which she says was handed to her around that time by the father.  For his part the father denies writing this letter.

   ·A document dated April 2009 purporting to be from the father to the Department of Communities (Child Safety Services) – The father disputes the authorship of this.

   ·A letter on the file of Hospital 2 not in the mother’s handwriting but annexing a copy of the mother’s driver’s licence.  That letter confirms the mother is the legal guardian of O.  The mother denied any knowledge of this letter.

   ·Exhibit 2 being a letter from the father to the mother dated the 26 July 2010.  The Father accepts that the handwriting in the document is his but disputes that he added the words in the final sentence of the document – “I have canceled (sic) [Dr C’s] appointment”.

   ·Evidence of a mystery call to the surgery of Dr 1 on 26 October 2010 as detailed in the evidence of Witness 5 and Witness 6.

2. The only conclusion that could be drawn from most of these documents if one accepts the veracity of same is that they reflect poorly on the father, in particular, on his capacity to act appropriately as a parent.

3. I intend to examine each of these incidents in turn.  I will commence by examining exhibit 2.

Exhibit 2

1. The clear evidence of the handwriting experts is that exhibit 2 is a fabricated document.  It is agreed by the experts that the words, “I have canceled (sic) [Dr C’s]”, have been added by digital manipulation by a person or persons unknown.  The evidence of the experts is there are at least four different fabricating transactions.  The words, “I have”, as appearing in the third line of the letter have been replicated by the forger into the opening portion of the last line.  The words, “canceled (sic) [Dr C’s] appointment”, is a second fabricated transaction which could have involved one or more transactions.  The words, “thanks [the father’s first name]”, have been transported to that section of the letter from the copy letter produced by the father which is exhibit 3, or possibly the other way around.  Exhibit 3 by way of explanation is a letter in identical terms to exhibit 2 other than the words, “I have canceled (sic) [Dr C’s] appointment”, and the placement of the signature and ‘swoosh’ at the bottom of the document.

1. The ‘swoosh’ has been independently manipulated in digital form.  In exhibit 3 it is some 15 millimetres under the word, “[the father’s first name]”.  In the fabricated document exhibit 2 it is about 10 millimetres.  It is beyond dispute with the experts that the ‘swoosh’ and the words, “thanks [the father’s first name]” are identical in both documents – that is to say they are super-imposable.

2. The mother says that the father must have been responsible for the fabrication.  She says he did not in fact hand her the original but only the photocopy exhibit 2 as produced by her.

3. To understand why the cancellation or otherwise of Dr C’s appointment was significant it is necessary to look at correspondence between the respective solicitors around this time. 

4. Exhibit 15 is a series of letters passing between the respective solicitors.  The mother’s solicitors wrote to the father’s solicitors on the 28 July 2010 advising that their client proposed to travel to Melbourne with O to attend a family celebration (Friday the 6 August 2010) with L.  The proposal at that point in time was that they would depart the Sunshine Coast on Wednesday the 4 August 2010 returning the following Sunday night 8 August 2010.

5. By response, the father’s solicitors replied on the 30 July 2010 agreeing to the proposed trip but proposing that the father would collect O from school on Monday the 9 August 2010 and have her overnight for make up time and take her to school on Tuesday morning (“following her appointment with

   
   

   [Dr C]”).  It is common ground that there had been an appointment made for Dr C on the morning of Tuesday 10 August 2010.  Presumably the reason the solicitors were wanting make up time was that by consenting to the trip to Melbourne the father was missing out on his weekend time with his daughter.

6. By way of letter of the 3 August 2010 from the mother’s solicitors it was advised that the travel schedule had altered and the mother and O would now not be returning until Tuesday the 10 August 2010, “due to the high cost of flying on Sunday night”.

7. By paragraph numbered 4 in that letter reference is first made that:

   “[Dr C’s] surgery has advised our client that your client cancelled [O’s] appointment with [Dr C] on Tuesday 10 August 2010.”

8. On the 9 August 2010 the father’s solicitors responded to the mother’s solicitors.

9. For present purposes the relevant portion is to be found on page 1:

   “Cancellation of [Dr C] Appointment

   We refer to point 4 of that same correspondence regarding:

   ·    [Dr C’s] surgery has advised our client that your client cancelled [O’s] appointment with [Dr C] on Tuesday 20 August 2010.

   Our client instructs that he contacted [Dr C’s] practice on

   Wednesday the 4 August 2010 upon receiving your correspondence

   which advised that he had cancelled [O’s] appointment with [Dr

   C] on Tuesday the 10 August 2010.

   Please see attached email from [Ms NN] at [Dr C’s]

   practice.Please note that our client confirmed on Monday 2 August

   2010 that he would be attending the appointment on Tuesday 10 August

   2010.”

10. Included in the bundle of documents as an attachment to that letter is an email from Ms NN of the 4 August 2010 in which she states:

    “I am confirming her appointment has not been cancelled by “anyone” to date.  [The father’s first name] you confirmed on the 2^nd of August that you would be attending and as yet I haven’t had any confirmation from [the mother] as to whether she is attending the appointment.”

11. Exhibit 26 is a Jetstar booking itinerary confirming the mother and O were to travel from the Sunshine Coast to Melbourne on the 4 August 2010 and return on Tuesday 10 August 2010.  The bookings were made on the 29 July 2010.

12. If the mother’s claim be correct that by letter of the 26 July 2010 the father was cancelling Dr C’s appointment he demonstrated extraordinary prescience that the cancellation or otherwise of the medical appointment would become a relevant issue.

13. It was in the mother’s interest and the mother’s interest only to cancel

    
    

    Dr C’s appointment.  The father at that stage did not have any knowledge that there would be attempts to cancel Dr C’s appointment notwithstanding the assertion in the letter from the mother’s solicitors.

14. The document, exhibit 2, is a digitally fabricated document.  The evidence indicates to me in an overwhelming fashion that the only person who could be responsible for the fabrication is the mother or someone acting on her behalf.

Evidence of Handwriting Experts

1. Witness 12 was the expert engaged for the mother and Witness 11 for the father.  They both gave evidence jointly – that is to say they were in the witness box together and able to comment on each question put by Counsel to them.

2. There is no disputing that they are well qualified and experienced in their field.  They produced a document headed “Summary of Experts’ Comments Exhibit 2 and Exhibit 3” (exhibit 43).  In their points of agreement, at paragraph 9 it is noted:

   “9.There is no obvious evidence that exhibit 3 has been subject of manipulation.”

   Under the heading “Points of Disagreement” it is recorded:

   “11.[Witness 12] is of the view that exhibit 2 and exhibit 3 equally should not be relied upon as being genuine in the absence of the existence of the original, simply as while exhibit 2 displays of “cut and paste” using text from exhibit 3, exhibit 3 can also be created in such a manner that no evidence of manipulation of text exists.

   12.[Witness 11] is of the view that drawing such a comparison cannot be made.  [Witness 11] concedes that it is possible exhibit 3 could well be a document created to appear as genuine, but is of the view that in the absence of any physical evidence on the document, exhibit 3 should be considered a genuine document used for the creation of text on exhibit 2.

   [Witness 11] is of the view that exhibit 2 is clearly a manipulated document and that no significant evidence exists to suggest that exhibit 3 is the false document, manipulated in any manner, notwithstanding its copy nature.

   [Witness 11] is of the view that if the standard of non-genuineness of a document is only its copy nature then exhibit 1 must fall into this category in fact any copy document presented must then fall into this category.”

3. To understand the mother’s claim, it would have to be that the father wrote exhibit 3, copied it and then added the additional line as appears in exhibit 2, before handing exhibit 2 to the mother.  An alternative scenario is he wrote the letter, but has covered up the additional line somehow before photocopying exhibit 3 from exhibit 2.

4. Where there is conflict between the experts, I prefer the opinion of Witness 11, namely that there is no evidence that exhibit 3 has been fabricated.

5. It is beyond understanding that the father would use cut and paste or computer technology to copy his own handwriting.  If he was minded to set the mother up, all he needed to do was write the additional line in his own handwriting on exhibit 3.  It is likely it would take some time to compile a fabricated line of text, as has occurred with exhibit 2.  There is no reason why the father would spend time manipulating text when he could simply write the line.  To envisage he manipulated the text as some form of counter-counter spy manoeuvre is too remote to contemplate.

6. Witness 12’s opinion does not explain why the father would need to take the words, “I have”, from a letter he admits writing and then add it as the opening words of the additional line in exhibit 2.

7. The only plausible explanation is that, as the father says, he kept copies of all letters he gave to the mother.  Exhibit 14 is ample proof of that.  There is evidence before the Court of the mother producing many of the original documents received from the father.  It is likely that in relation to the subject document the mother received the original of exhibit 3 and then digitally altered it by the addition of the extra sentence.

8. Both experts could find no basis for concluding that exhibit 1 is a fabrication.  They were not in the position to examine the surrounding circumstances in which the document came into evidence.  I accept that as with the contention over the genuineness of exhibit 3 there is no indication, absent production of some original documentation, to suggest that exhibit 1 is fabricated.  However, I am of the view it is more likely than not exhibit 1 is fabricated and the most likely person to have produced the fabrication is the mother.  I will discuss this aspect further under a separate heading.

9. It is likely that the reason why exhibit 3 is paler then exhibit 2 is the quality of the photocopying machine used by the father when copying that document.  The mother was able to copy the original on a better quality machine.

The Bundle of Documents Sent to L

1. Exhibit 17 is headed:

   “Documents supplied by the ICL

   Anonymous file given to [Dr M].”

2. The first two documents appearing in this bundle are typed unsigned letters purporting to be from the father to his daughter L.  The first is in the following terms:

   “To my darling [L].  I hope you are really well.  I have sent you the affidavits that the Court has a copy of and I want you to know they have shown the Court that your mother is a mean person and that I want you to come and live with me and my girlfriend [Ms R] who really wants to know you.  [Ms R] loves [O] and wants to know you as well.  She lives with me [in N] and likes it there.  And I want you not to talk to the police about anything.  Don’t show anyone this letter it is just between you and me.

   Love

   Dad”

3. The second letter is in the following terms:

   “My darling [L] I miss you lots and want you to come with [Ms R] and me and live in the house with [O].  The police are on my side and they are not believing mum.  [O] loves [Ms R] and so do I and I am sure you will too.  When you come to live with me you don’t have to see mum and I won’t make you.  I won’t make you work at school as hard as mum does and you can have lots of fun with us.  We have lots of happy beans for you.  [O] really likes her happy beans and I have told her to call [Ms R] mum because she is better.  We all have and enjoy our positive and relaxed environment.  Here is another affadavid (sic) for you to read and it shows just how mean your mother has been.  The court has stopped mum coming into the house.

   Love you always

   Dad”

4. Dr M in her report comments adversely on the appropriateness of the father writing to L in such terms, if it should be established that he had so written.

5. L did receive documents including affidavits of the Father and these two unsigned, undated letters all in the one bundle.  They were passed on to Mr T the psychologist who had been counselling L around this time.  Exhibit 38 is a statement of Witness 18 dated 14 January 2011.  She had previously provided a statement of the 7 November 2010 in response to questions she had been asked by Harrington Family Lawyers.

6. In the updated statement she notes in paragraph 8:

   “8.I recall the day when [L] received a large envelope in 2009.  In my previous statement I said I could not recall who the sender was.  However, after having time to give this more thought, I would not have supervised [L] opening the mail if it was not apparent that it came from [the father].  Although I cannot say with complete certainty that I remember [the father’s] handwriting on the envelope I believe that it is more likely than not that the envelope did contain such handwriting and this triggered the process of supervising [L] opening the mail.

   I would not have supervised the opening of the mail unless I thought that the handwriting was [the father’s].  The envelope contained a letter from [the father] to [L] and Court documents.  I cannot recall if the letter was typed or handwritten.  I can recall a handwritten card to [L] from [the father] referring to Australian Idol.  It had an ice cream on the back cover.  I read the card at the time.  I cannot remember if this card came in the large envelope with the letter and Court documents.”

7. Witness 18 was not required for cross examination in relation to this updating statement.  It is to my mind equally probable that somebody had typed on the large envelope forwarded to L the father’s name and address.  The witness had given a previous statement in conflict with her present recollection.  I attribute no ill will to Witness 18 in that regard.  I find at this point in time it is extremely unlikely that she would be able to say with any degree of certainty whether the father’s handwriting was on the envelope or whether there was some typed indication.

8. The witness herself indicates that she cannot recall if the letter (in fact there were letters) were typed or handwritten.  It is obvious they were typed.  It is more likely than not that the card written by the father was not in the bundle of documents sent in the large envelope.  No enquiry was made of Mr T in this regard when he gave his evidence as to the contents of the envelope. 

9. So far as establishing who was responsible for forwarding the documents anonymously to L, it transpired one of the documents which had been received by L included a letter from Harrington Family Lawyers to Pippa Colman & Associates, the mother’s solicitors (refer exhibit 42).  I have marked the three documents in exhibit 42 as 42A, 42B and 42C.  42A is the original retained on Harrington Family Lawyer’s file.  Exhibit 42B is the document forwarded by Mr T to the Independent Children’s Lawyer during the course of the January 2011 hearing.  It has two facsimile recordings on that document, one being of the 10 June 2009 where the document is shown as being forwarded to the mother’s solicitors.  The third document is the document produced from the file of the mother’s solicitors.

10. The explanation the mother offers why in the bundle of documents received by L there should be a document that could only have emanated from her solicitor’s file is that when she vacated the property in N pursuant to the Orders made on the 30 July 2009, she left behind a bundle of legal documents.  The mother’s solicitors wrote to the father on the 21 October 2009 and 30 October 2009 requesting furniture, chattels, children’s items and “legal paperwork” (exhibit 35).

11. Notwithstanding the existence of the letters of 21 October 2009 and

    
    

    30 October 2009, I find it improbable that the mother would leave any legal documents of any nature behind at the time she moved out of the property at N, if indeed she was even in occupation at any time between the 22 July 2009 and the 30 July 2009.  The general thrust of the evidence from a number of reliable sources is that she was rarely in occupation at the property at N.  The thrust of the evidence of Mr H is that on a weekend in mid-June the mother was at the property and covered all of the windows with newspapers.  A photo of this is annexed to one of the earlier affidavits filed by the father.  Her attendances at the home were sporadic.  It is unlikely given the detailed movements recorded in Mr H’s affidavit, that the mother would store personal property, in particular legal documents, at the N residence.  I find given her pre-occupation with the litigation it is even more unlikely that she would depart on the 30 July as claimed, leaving behind legal documents.

12. The conclusion that I am prepared to draw is that the most likely explanation why the letter of Harrington Lawyers appears in the bundle of documents forwarded to L, is because the mother was responsible for forwarding that documentation. 

13. The father is a person of at least normal intelligence.  Dr M describes him as being of above average intelligence.  It defies belief that he would be the author of these two undated, unsigned, childish letters or that he would write in such singularly inappropriate terms to L.  It is far more likely to represent another fabrication on the part of the mother.

Anonymous Documents Forwarded to Dr M

1. When asked in the course of cross examination whom she suspected of sending the documents to her, Dr M was of the view they had emanated from the mother.  This opinion presumably was the same as indicated above namely the documents do not cast the father in a good light and it is highly unlikely that he would wish to send such documentation to a psychiatrist who was about to write an important report.

2. In the case of the documents received anonymously by Dr M, it is noteworthy that included in such documentation was the 2009 school report for L.  The documents were received by Dr M at the time she was compiling her report in December 2009.  The father produced a letter from the school showing that he only received L’s school report when it was forwarded to him in February 2010.  If that be correct it is impossible that he could have been responsible for enclosing L’s report in the material sent to Dr M.  Whilst the mother was being cross examined on this aspect she said that she had forwarded a copy of L’s school report to the father by way of covering letter.  Counsel for the father called for the production of that letter.  Counsel for the mother indicated it would be produced.  Apparently some time during the course of the part-heard trial in November 2010, presumably the following morning, the mother gave to her solicitor a letter dated the 9 December 2009 written by her to the father enclosing a copy of L’s school report.  Unfortunately the matter thereafter was overlooked and it was not produced in response to the call and Counsel for the father omitted to press for its production.

3. Counsel for the mother on the eighth day of the trial sought to read an affidavit of the mother’s solicitor, Angela Grigg.  To that affidavit she appends the document that was given by the mother to her during the course of the November 2010 hearing.

4. It is common ground that I am asked to accept that the father’s evidence, if the evidence was re-opened, would be that he had not received that document of the 9 December 2009 from the mother.  The mother’s evidence would be to the effect that she had delivered that document to him.

5. Unfortunately the envelope in which the documents were forwarded to

   
   

   Dr M was not retained so no date stamp can be ascertained as to precisely when she received the bundle of documents. 

6. Dr M’s first report would indicate that the interview with the father was on the 9 December 2009 and the interview with the mother was on the

   
   

   16 December 2009.  The report is dated the 21 December 2009.  It would therefore appear that some time between the 16 December 2009 and the

   
   

   21 December 2009 the documents were forwarded to her.

7. I am not accepting of the mother’s claim that she posted a letter with L’s report card to the father on the 9 December 2009 as claimed.  The father’s evidence is that the mother only ever texted him or phoned him.  She did not write to him.  In the circumstances it would be a one off incident indeed for the mother to be writing to the father at all, let alone being gracious enough to forward to him a copy of L’s report card particularly given the break down of the relationship between L and her father.  The letter of the 9 December 2009 has the words:

   “Sender – [The mother’s first name]

   Recipient – [The father’s first name]”

   This would indicate in ordinary circumstances the document was to be sent electronically yet the mother’s position would appear to be that she had posted the document to the father.

8. In the course of cross examination, at certain times, the mother said that she had given the letter and report card to the father and other times she had posted it, but on balance, she was adamant she had posted it to him.  Of her letter she says:

   “- - -

   Yes, actually because I also wrote to him about [L’s] birthday, so yes, I think I did send it on that occasion.”

9. In the letter of 9 December annexed to the affidavit of Angela Grigg filed

   
   

   20 January 2011, there is no reference to L’s birthday.

10. I bear in my mind that the documents sent anonymously were sent anonymously to L first in time.  The mother says she believed the father was responsible for this.  If this was her state of mind at that time, I find it quite unlikely that she would be giving the father a copy of L’s school report.

1. At paragraph 417 of the father’s affidavit, he says:

   “417.I assisted in the care of the children.  Carers primarily cooked for the children (or I did) and assisted in their care.  I assisted in the care of the children primarily at night and on weekends and in undertaking household tasks including cleaning and gardening.”

2. At paragraph 423 and following the father sets out his evidence in relation to preparing the house for sale.  I have no reason to doubt his version of events.

3. At paragraph 428 he deposes:

   “428.Despite [the mother’s] assertions that I have taken property that belongs to her and [L] and [the mother], I have not (I left [the mother] an equal share of the contents and furniture of the house).  I do not accept that the furniture and chattels that the mother claims to have possession of now are all of the furniture and chattels that I left her and that she removed from the house.  Now produced and shown to me an annexed hereto and marked with the letter “A” is a photograph of the contents of the house.”

4. Annexure “A” appears to be six photographs.  I note that this portion of the father’s evidence was not the subject of any challenge.  I further note that the father’s evidence in this regard was corroborated by Ms R and she in turn was not challenged on any aspect of her evidence.  At paragraph 77 of her affidavit she deposes:

   “77.[The father] went to great length (sic) to divide up the furniture and chattels equally.  [The father] left [the mother] half of the contents of the house, he was scrupulously fair, he even equally divided up Tupperware and facecloths.  As well [the father] left [the mother] her silverware that she had before her marriage to [the father] and also boxes of crockery and glassware that had not been unpacked since moving into the house.  These were located in the garage.  [The father] said to me that these items were of sentimental value to her and that she should have them.  All these items were left in the house/garage the last time we were there.”

5. She confirms that she assisted the father with preparing the property for sale.

6. At paragraph 80 of her affidavit she vehemently denies allegations by the mother of the house being filthy.

Liabilities

1. At paragraph 431 the father deposes to the fact that he has not been reimbursed for various expenses associated with the sale totalling $3,642.

2. The single most significant expense in this regard is real estate advertising amounting to $3,500.

3. There was no challenge to the quantum of this liability.  As it was an expense associated with preparing the house for sale, it is a liability that should be borne by each of the parties.

4. Another liability is a debt to the N Shire Council for jetty fees said to be in an amount of $1,933.  Again, there appeared to be no challenge to the quantum of this amount.  I propose to make orders that the money be paid to either the N Council or to the father by way of reimbursement if he is able to establish that he has paid this expense.

5. The only other liability claimed was a chemist account in the sum of $1,525.  This was an account in the mother’s name only, she incurred it after separation.  I do not see it as being a joint liability, albeit some of the items acquired were clearly for O’s benefit.

Section 75(2) Factors – Evidence of Applicant Husband

1. The father deposes that he is in good health.  He has current employment as a domestic worker and in a clerical position but appears to earn very little from such employment.  At paragraph 48 he deposes:

   “48.My preference would be to continue to care for [O] when she is an adult.  It will then be up to her whether she wants to continue living with me or obtain some semi-independent housing.  I expect that [O] will be able to repetitive type employment (sic).”

Section 79 Factors – Evidence of Respondent Wife

1. In her affidavit of April 2009 at paragraph 124, the mother includes as a liability of the parties as at that point in time the loan to Mr C in the amount of $600,000.

2. At paragraphs 153 and 154 she deposes:

   “153.I am aware that [Mr C] intends to bring a claim for money owed.  I will not dispute this claim.  [Mr C] has been financially supporting us for years by way of paying all of our bills via his Visa Card which he has receipts for.

   154.[The father] and I have always acknowledged that we owe [Mr C] substantial amounts of money.  Our debt to him has now grown to more than $600,000.  [The father] was fully aware of the particulars of money lent to us.  There are a number of witnesses to this including [Mr K1, Ms FFF and Witness 2’s husband].”

3. The mother at paragraph 155 denies that the father signed a blank cheque.  In support of this she points out that it was a one signature account, so there was no need for her to have the father’s signature.  She says she wrote the payment details on the cheque for $600,000 which the father subsequently signed.

4. As noted previously I find the mother’s account of this to be improbable.  Her evidence is that on the 27 December 2008 the father signed a cheque for $600,000 payable to Mr C.  There was no evidence of any demand from Mr C at that point in time.  It is far more likely that immediately after separation the mother had a blank cheque previously signed by the father and she backdated the cheque and filled out the details and the amount payable to Mr C.  It is noteworthy that Mr C initially was involved in the proceedings but at no stage ever filed material and he subsequently filed a notice of discontinuance.  The mother has not sought to adduce evidence from any of the witnesses referred to in paragraph 154 and having regard to the evidence of Witness 2, I would have thought it was highly unlikely that Witness 2’s husband would be giving evidence of any kind favourable to the mother.  The most critical aspect of this is that in her latest financial statement she does not assert there is any such liability currently owing.  The whole episode smacks of a sham transaction which reflects poorly on the mother’s credibility.

5. Perusing the mother’s evidence in relation to property settlement issues is not greatly different to perusing her evidence in relation to child related issues.  When considering the evidence of the father in both these areas there was really nothing contentious – nothing that stood out as being inconsistent internally or inconsistent with other evidence.  The same cannot be said of the mother’s evidence where inconsistencies and contentious points such as the alleged liability to Mr C were to be found.

6. In paragraph 138 of the mother’s first affidavit she deposes:

   “138.I agree that we did several property developments as set out in [the father’s] affidavit.  However [the father] was not the sole manager of these developments.  We did this together and [Mr C] was also responsible for the development of [Property 2 at N] and [Property at G Street, Town 4].  We could not have undertook (sic) those developments without the assistance of [Mr C].”

   The evidence put forward appears to be in conflict with the evidence of

   
   

   Mr H and the evidence of the father.  In the circumstances, it would have assisted the mother’s case had she called Mr C to corroborate her account of this assistance given by herself and Mr C.

7. At paragraph 144 the mother deposes:

   “144.[Mr C] was responsible for the development at [N Street in N].”

   This assertion by the mother is implausible when the unchallenged evidence of

   
   

   Witness 10 is considered.  His observations of [Mr C’s] contribution includes the observations at paragraph 19 of his affidavit:

   “19.There were occasions when [Mr C] was supposedly helping [the father] when we would notice that [Mr C] was asleep on one of the chairs on the patio.  We would usually have a laugh about [Mr C’s] sleeping and leave him to sleep as he could resume whatever [the father] had directed to him to do when he woke up.”

8. Under the heading “Transfer of Funds from Joint Account” at paragraph 164 the mother deposes:

   “164.I agree I withdrew funds from the joint account and deposited them to the girls’ account in January 2007 during the marriage.  I did so with the full knowledge and approval of [the father].  It is absolutely incorrect to claim [the father] knew nothing of these transactions.  He has never raised this with me in the two years since they occurred.  I am trustee to [O’s] account due to her disability.  I have paid the children’s Centrelink payments directly into the line of credit.”

9. In the mother’s final affidavit filed 22 October 2010 at paragraph 21 the mother sets out in chronological form the assets bought and sold during the marriage.

10. In 1998 the mother deposes that she purchased land at W Street, Town 5 for the sum of $235,000, using her own funds.  This land sold six years later for $900,000.

11. It is not clear to me why most of the transactions were in joint names but this one appears to have been land purchased solely in the mother’s name.  There was no cross examination on this aspect.  There are no details whether the parties shared any mortgage liability or whether the property was at any stage mortgaged.  It is a significant contribution from the mother as it was her initial contribution which provided the seed capital for most of the later land transactions.

12. The mother concludes paragraph 21 setting out the land transactions in chronological form by noting for the 2009 year:

    “The [N Street in N] property was sold for $1.35 million in October 2009.  I lived in the home until July 2009 and [the father] resided in the unit until it was sold.”

13. This is in conflict with the account given by the father that the property went to auction and realised $1.56 million.  The mother had signed an unconditional contract for $1.4 million prior to auction.

General Observations as to Respondent Wife’s Evidence on Property Matters

1. As noted earlier when making findings of credibility, unless the mother’s evidence is confirmed by independent evidence or by the father himself, I am not prepared to place any weight on it other then in the most obvious of examples.

Schedule of Assets of Liabilities of the Parties to Be Brought into Account

1. Funds held in trust.  As at the 17 January 2011 it appears that the term deposit in the trust account of the mother’s solicitors was $831,960.51. 

2. This account is earning interest at the rate of 5.09 per cent per annum.  I propose to bring the amount into account at the figure provided and make a separate order that any amount above this be divided equally between the parties in accordance with findings I propose to make.

3. It is not disputed that the amount distributed to the father from the funds previously held in trust totalled $270,000.  The equivalent amount received by the mother totalled $320,000.  The mother says in the notes attaching to the document headed, “Wife’s Schedule of Assets and Liabilities” handed up by her Counsel in the course of final address, that in relation to the additional amount of $50,000, $35,000 was expended on fees for K School for L, $11,000 was used to pay O’s trust account.  It is submitted the disbursement then for the mother should total $274,000.

4. This does not accord with my recollection.  My recollection is an order was made on the 16 November 2009 which provided for the mother to receive $170,000 and the father $120,000.  Although it is not expressed to be by consent, there was no dispute between the parties that the mother should receive $50,000 more – the justification for this being that she was being funded by a litigation funder and her fees were correspondingly higher. 

5. There were also submissions made that in addition to the $150,000 she should receive an additional $20,000 to provide for her accommodation, as she was living in emergency accommodation since the order of the 30 July 2009, granting the father sole use of the N Street in N property.  In my reasons delivered on 16 November 2009, I increased the amount the mother was to receive from $150,000 to $170,000 as a provision for accommodation expenses.  At the same time I increased the amount the father was to receive by $20,000 and he was free to do with that amount of money as he wished. 

6. The mother conceded in the course of cross examination that the $20,000 was not utilised by her for the purpose of accommodation but was used for legal fees.  A submission was made that the $20,000 should be treated as an add-back.  I propose to add-back the $270,000 received by the father, which as I understand it, he has expended largely on legal fees.  Of the $320,000 the mother has received, I propose to add-back $285,000.  $35,000 was expended on L’s school fees.  Exhibit 44 is evidence of a cheque for that amount being paid by the mother’s solicitors from their trust account.  Although the father was not in agreement with L attending K School, the reality is this amount has been paid legitimately as an expense for L and it would be, at this point in time, unfair to the mother to treat it as an add-back.

7. I do not propose to deduct the $11,000.  I will deal with that when examining the individual assets of the parties.

Chattels

1. An order was made that Valuers 1 were to be appointed as the single expert for the purpose of valuing the chattels of the parties.  So far as I am aware any such report was never filed but it appears to be common ground that the father’s furniture was valued at $11,750.  The mother’s furniture and chattels were said to be valued at $1,100 although the father’s documentation asserts that the mother did not provide all of the furniture and chattels that she had in her possession.

2. As noted, at paragraphs 513 and 514, the father says he divided the furniture and chattels equally and in this regard he was corroborated by Ms R and her evidence in this regard was not challenged.  The father backs up his claims of dividing the furniture because he actually photographed same and the photos are appended to his trial affidavit.

3. In the whole of the circumstances I propose to bring the mother’s furniture into account at the same amount of $11,750.  It appears there are numerous items in the photographs that the father says he gave to her which were not the subject of any valuation.

Holden Motor Vehicle

1. There was a Holden motor vehicle retained by the mother for which there was an insurance payout together with some unexpired registration and insurance.  The total amount seems to be agreed at $2,500.  The mother says that she expended this money in supporting the children.  It is common ground that the father did not pay child support.  In the whole of the circumstances I will not bring this sum into account.

Superannuation

1. It is common ground that the father’s superannuation is $13,470.  The mother’s superannuation was $5,000 but in paragraph 7 to the notes attaching to the schedule of assets and liabilities it is recorded that under hardship provisions she was able to cash in her superannuation fund netting $5,000 and this was expended on support for the children.  Again, because there was no child support being paid by the father I will not bring this amount into account.

Pharmacy Account

1. I am asked by the mother for this to be paid out of joint funds in the sum of $1,525.71.  It is an account at the pharmacy where the mother has acquired most of the medications.  The account was in the mother’s name only.  She is the one who on the 7 January elected to spend this amount.  I do not propose to allow this amount.

Inheritance Monies

1. Witness 7 a forensic accountant prepared a report, the effect of which is that the father has an entitlement from the estate of his late grandfather in the sum of $63,210. 

2. This entitlement is contingent on a life interest to the wife of the deceased.  In the event the father predeceased the wife of the deceased, he would never receive the benefit of same.  It may be received by his estate.  No submissions were made along these lines.  It was common ground that the contingent interest vested back in about 1997 shortly after the marriage of the parties in 1994.

3. I will bring into account $63,210 as an amount the father should receive in the fullness of time.  In the event he receives less than that, that is a loss that he will be responsible for.  In the event the estate should bring in more than this, he is entitled to the benefit of same. 

Bank Accounts – L and O

1. In the father’s chronology (item numbers 34 and 35) for the dates 8 January 2007 and 9 January 2007, he notes:

   “34.     8 January 2007

   Parties argue after Wife withdraws $11,000 from the parties’ joint bank account without Husband’s knowledge and deposits $5,750 into [O’s] bank account and the same amount into [L’s] bank account.

   35.9 January 2007

   Wife withdrew and closed the [S Pty Ltd] account without the Husband’s consent or knowledge and placed funds in the amount of $10,724.42 into the bank account of [L] and [O].”

2. The mother contends that these are trust accounts and she holds the money in trust for the children.

3. Whilst she has elected to treat the money in that fashion, the reality is it came from joint funds of the parties, be it their joint bank account or the company’s bank account.  It is clear the mother has sole control over the accounts and how the funds may be expended; I do not place this in the same category as the sale of the Holden or the cashing in of the superannuation fund.  It is appropriate to bring into account the sum of $22,292, and I propose to do so.

Analysis of S 79 Factors

1. I accept that at the commencement of cohabitation the mother brought in 80 per cent of the assets of a total value of $363,000.

2. As previously noted, this capital was instrumental in allowing the parties to acquire a number of other properties, upon which ultimately a significant capital gain was made.

3. The father made a significant contribution by adding to the value of the properties as a property developer and project supervisor.  I find, the significant capital gains from the construction of units at Property 2 at N, is largely attributable to the efforts of the father.  The father was responsible for supervising the construction of the N Street in N property.

4. The father has made a contribution of $160,000 by holding out for a better price at auction where the mother had signed an unconditional contract at $1.4 million.

5. The father has notionally contributed an additional $63,000 from an inheritance he is yet to receive.

6. The mother has responsible for L’s school fees but for the past two years these have been paid and I have allowed the sum of $35,000 to be utilised in payment as a joint liability.  It is likely the mother will have the cost of supporting L until she finishes her secondary education and subsequently for her tertiary education.

7. The mother has not been employed for sixteen years.  She intends to qualify as a teacher.  Both parties have shown skill in the purchase and sale of land.  Of the non-financial contributions I note that the mother has had considerable assistance from home help but the father has acknowledged she has been the primary care giver.

8. On account of s 79 factors I am of the view that it is appropriate to divide the property of the parties for their respective contributions at 70 per cent to the mother and 30 per cent to the father.

Analysis of S 75(2) Factors

1. I accept the submission by Counsel for the mother that the s 75(2) factors will heavily favour whoever becomes the primary parent.  I accept that the mother will have the responsibility of keeping L at K School, but that is a decision she has made.  It may well be, sadly for L, that she may have to return to a school that the parties could afford in the current financial situation in which they find themselves.

2. I place great reliance in making an adjustment under s 75(2) for the fact that

   
   

   Dr A’s prognosis is that O will require care, and by implication, financial assistance, well past her eighteenth birthday.  The fact that the mother will have responsibility for L should cease in two years time when L turns eighteen.  She should be able to obtain part-time employment to assist her in undertaking University studies.

1. Both parties are in good health.  I accept that both parties have the capacity to earn comparable income, but as noted the father’s ability to earn income will be greatly curtailed because of his responsibility as primary care giver in the future for O.

2. The financial position of the parties has been set out in the reasons given.

3. On account on s 75(2) factors I am of the view that a further 20 per cent contribution is called for, such that the father’s share of the property settlement should increase to 50 per cent, making an equal distribution as between the parties.

Calculations

Assets

Amount held in trust account as at 17/11/2011  $   831,906.51

Less jetty fees and costs of sale   $       5,576.00

Nett amount available for distribution  $   826,330.51

Husband’s chattels  $     11,750.00

Wife’s notional chattels  $     11,750.00

Husband’s estate  $     63,210.00

Bank accounts of Wife as trustee  $     22,242.00

Husband’s superannuation  $     13,470.00

Add-backs:

Husband  $   270,000.00

Wife  $   285,000.00

Total  $1,503,752.00

Entitlement of Each of the Parties at 50 Per Cent

Entitlement of the each of the parties at 50 per cent                 

(rounded off to the nearest dollar)  $   751,876.00

The Husband received or will receive:

Furniture  $    11,750.00

Inheritance  $    63,210.00

Superannuation  $    13,470.00

Money previously distributed  $  270,000.00

Total  $  358,430.00

Wife has received:

Furniture  $    11,750.00

Bank accounts  $    22,242.00

Money previously distributed  $  285,000.00

Total  $  318,992.00

Moneys remaining in trust account after payment

of liabilities of $5,576 being jetty fees and sales costs            $  826,330.00

Husband’s assets  $  358,430.00

Wife’s assets  $  318,992.00

Total  $1,503,752.00

1. Where the father has received $358,430 if he was to receive $393,446 from the remaining moneys in trust he would receive a total of $751,641.  If the mother receives a cash distribution of $432,884 in addition to the $318,992 she has received or notionally received, she would also have an entitlement of $751,641.

2. The orders by way of property settlement will be that the remaining funds in the trust account be distributed after payment of the liabilities referred to in the Orders to the father of $393,446 and $432,884.51 to the mother.

I certify that the preceding five hundred and seventy-one (571) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 17 February 2011.

Associate: 

Date:  17 February 2011