S and K

[2007] FCWA 17

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	S and K [2007] FCWA 17
CORAM:	CRISFORD J
HEARD:	27 & 28 NOVEMBER 2006
DELIVERED:	23 JANUARY 2007
FILE NO/S:	PT 6551 of 2005
BETWEEN:	S

Applicant/Father

AND

K

Respondent/Mother

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Catchwords:

Children - residence - parental responsibility - application of Family Law Amendment (Shared Parental Responsibility) Act 2006 - police involvement in matrimonial dispute

Property settlement - s 75(2) factors

Practice and procedure - use to be made of without prejudice
communications in children's matters

Legislation:

Family Law Act 1975, Part VII, s 75(2)
Family Law Amendment (Shared Parental Responsibility) Act2006, s
60CC, s61DA
Category: Not Reportable

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Representation:

Counsel:

Applicant:	Mr M Berry
Respondent:	Mrs C Webb

Solicitors:

Applicant:	Shann Family Lawyers
Respondent:	Paterson & Dowding

Case(s) referred to in judgment(s):

Bolitho & Cohen (2005) FLC 93-224
Genoni & Rofe (PT1357/1994)
Hutchings v Clarke (1993) FLC 92-373
U v U (2002) FLC 93-112
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1 Since [Mr S] and [Ms K] separated on 20 July 2005 they have had a tempestuous relationship. The Court is asked to deal with the living arrangements for their two children, [Malcolm] aged 9 and [Carol] aged 7. The Court is also asked to resolve a property dispute. However, this was very much a secondary issue for the parties and took little time at trial.

2 [Mr S]is a 40 year old Police Officer. [Ms K] is a 40 year old part-time [teacher]. [Mr S] and [Ms K] commenced a relationship in 1980, married [in] January 1995 and separated in July 2005. [Malcolm] was born [in] March 1997 and [Carol] was born [in] March 1999.

3 [Mr S]’s initiating application filed 5 December 2005 had sought the children live with him and spend time with [Ms K]

each alternate weekend. He amended this on 25 August 2006 to seek an equal shared week and week-about arrangement. [Ms K] had always sought the children live with her and spend limited time with their father.

Court orders made to date

4 Orders made on 20 December 2005 continue to regulate the time that [Mr S] spends with the children.

5 Relevantly these orders are:

“3.	Until further order of the Court, the Applicant, [Mr S], have reasonable contact with the children defined to include six (6) days in each four weekly cycle.
4.	For the purpose of contact referred to in paragraph 3 hereof, the Applicant provide to the Respondent, [Ms K], at least four days notice of his work roster and of the days he intends to exercise contact, with such notice to be given via an SMS text message.
5.	Until further order of the Court, the Applicant have contact with the children for half of each term school holidays, being the second half, commencing
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at 9.00 am on the middle Saturday until 5.00 pm on the final Sunday of each holiday period, unless otherwise agreed between the parties.
6.	The children reside with the Respondent at all other times.
7.	The Applicant have telephone contact with the children each second day that the children are residing in the Respondent’s household.”

Orders sought at trial

6 There are two main differences between the competing proposals of the parties which are to be found in their respective Papers for the Judge. These differences are:

• [Ms K] wants sole responsibility for making decisions concerning the children’s welfare, whereas [Mr S] wishes parental responsibility to be shared equally.

• [Mr S] seeks to have an equal shared care regime to operate on a week and week-about basis. [Ms K] currently proposes limited contact in the form of each alternate weekend.

Applicable law (children’s issues)

7 These proceedings fall for determination under Part VII of the Family Law Act 1975 as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006.

8 The objects of Part VII of the Act are to ensure the best interests of the children are met by:

(a)	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
(b)	protecting children from physical or psychological harm from being subject to, or exposed to abuse, neglect or family violence; and
(c)	ensuring the children receive adequate and proper parenting to help them achieve their full potential;
(d)	ensuring that parents will fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.

9 In deciding whether to make a particular order, the Court is directed to regard the best interests of the children as the paramount

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consideration. S 60CC sets out the matters I must take into account in determining what is in the best interests of [Malcolm] and [Carol] .

The presumption of shared parental responsibility

10 S 61DA of the Act provides that a Court must apply a presumption that it is in the child’s best interests for its parents to have equal shared parental responsibility. Parental responsibility relates to decision making and not the time to be spent with each parent.

11 The presumption does not apply in certain circumstances neither of which were argued to apply here. The presumption, however, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for its parents to have equal shared responsibility for the child.

12 There are certain consequences which arise when a parenting order is made for shared parental responsibility. The first consequence is that the parties must consult and make a genuine effort to come to a joint decision about major long-term issues.

13 The second consequence is that the Court must consider whether the parents should have equal time or substantial and significant time with their children.

14 Thus the Court’s obligation to consider equal time or substantial and significant time arises when there is an order for shared parental responsibility. This is so even if neither party has specifically sought such time. A Court can also consider such time if a party seeks it.

15 In assessing this, the Court returns, inevitably, to the principle that the child’s best interests are to be regarded as the paramount consideration. The provisions relevant to such a determination are now to be found firstly in a two-tier structure contained in the Act. There are primary considerations and there are additional considerations (s 60CC(2) and (3)).

16 I will return to this law as it applies to the facts after a relevant background matter of a legal nature is considered.

“Without prejudice” offers

17 At the commencement of the trial, counsel for [Mr S] sought leave to make comment about and cross-examine on “without prejudice” communications between the solicitors for the parties relating to an offer made in the children’s matter.

(Page 7)
18	He submitted that the offer made was entirely inconsistent with the way [Ms K] has chosen to run her case in Court. The Court needed to be appraised of the offer in order to determine what is in the best interests of the children.
19	In this regard, I was referred to two authorities, Genoni & Rofe (PT1357/1994) an unreported decision of Holden CJ and Hutchings v Clarke (1993) FLC 92-373.
20	It was argued the Chief Judge of this Court in Genoni had articulated a general philosophy that any offer in children’s matters was presumably made on the basis it was in the best interests of the children and as such ought to be “on the table”. I took his argument to be that if the position at trial is completely at odds with an offer, presumably made because it was in the best interests of the children, the Court should be appraised of this fact given that the attitude of the party making the offer is relevant to the proceedings. It was argued that the best interest principle includes the admissibility of evidence. (Hutchings – supra at 79,875).
21	The application was opposed. It was said that Hutchings & Clarke could be distinguished on the facts and Genoni related to costs. Counsel argued it was open for a party to have a change of heart as events unfolded, time passed and circumstances changed.
22	My attention was also drawn to the rules of the Court in Chapter 10. This chapter deals with ending a case without a trial, relevantly:

“Summary of Chapter 10

Chapter 10 sets out how a party may resolve a case without a trial and the procedure to end a case, if agreement is reached.

The rules in Chapter 1 relating to the court's general powers apply in all cases and override all other provisions in these Rules.

…

PART 10.1 — OFFERS TO SETTLE

Note Each party is encouraged at all times to make an offer to settle to the other party in an effort to resolve a case. This Part sets out the rules that apply to offers to settle in the Family Court. Part 10.1 contains two Divisions.

......

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RULE 10.02 OPEN AND “WITHOUT PREJUDICE''
OFFER
10.02(1) An offer to settle is made without prejudice (a
without prejudice offer) unless the offer states that it is an
open offer.
10.02(2) A party must not mention the fact that a without

prejudice offer has been made, or the terms of the offer:

(a)	in any document filed; or
(b)	at a hearing or trial.

10.02(3) If a party makes an open offer, any party may disclose the facts and terms of the offer to other parties and the court.

10.02(4) Subrule (2) does not apply to:

(a)	an application relating to an offer; or
(b)	an application for costs.”

23 Thus, a “without prejudice” offer must not be mentioned at a hearing or trial. The prohibition relates to the fact of the offer and its terms. Chapter 10, in its preamble, sets out that the Rules in Chapter 1 override all other provisions in the Rules. This would include the Rules set out in Chapter 10.

24 Prior to being called upon to make any decision, Mark’s counsel opined he could ask relevant questions which did not impinge on the fact of or content of any “without prejudice” communication. If he was successful in this, he would not press his application. The matter proceeded on the basis that he could renew his application at a later stage if he was of the view it became necessary.

25 In hindsight, this created some difficulties. [Ms K] was an open and forthright witness. It was clear to me that she had little understanding of the legal niceties surrounding the “without prejudice” offer and obliged [Mr S]’s counsel by answering questions, without hesitation, in a fulsome and credible way. As a result of this, the fact of an offer and its subsequent withdrawal was before the Court.

26 Counsel for [Ms K] maintained her objection to any evidence that related directly to the terms of an offer or the date of the offer being considered by the Court.

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27	It is very clear that a children’s jurisdiction is not a strictly adversarial jurisdiction. If this was ever in doubt the amendments made to the Family Law Act 1975 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 will have laid that to rest.
28	It goes without saying that it is important to preserve confidentiality in relation to offers. Full and frank negotiation needs to take place between parties so that matters may be resolved without the need for further court action. Often in children’s matters, the very avoidance of litigation can itself be in the best interests of the children. Whilst children are not parties to the proceedings, they are well and truly the subject of the proceedings. The principles governing these sorts of proceedings are very different to those relating to property matters.
29	However, whilst it is important for negotiation that confidentially be preserved, especially in light of the rules of the Court, I am of the view that the preservation of confidentiality is not absolute. One of the main purposes of the Rules is that cases are resolved in a just manner. The Rules do not provide a complete code of the Court’s powers. Other powers are found in the provisions of various Acts, the Court’s inherent jurisdiction and the common law.
30	Hutchings v Clarke may well stand for the proposition that the issue of legal professional privilege does not operate to exclude evidence if in the discretion of the trial Judge such evidence is required to be put before the Court in order to preserve the best interests of the child.
31	There is no doubt that it is important to preserve confidentiality and to foster an environment that allows parties to negotiate without fear they will be compromised in an endeavour to settle matters. However, offers can be made for a number of reasons and the overarching principle is always the best interests of the child. It is not the sole consideration but it is the paramount one.
32	The Court should not be precluded from obtaining information to ensure that the principle is met, especially in cases of such naked acrimony as this.
33	What the evidence has disclosed is that on about 13 April 2006 an offer of some form of shared arrangement was put forward by [Ms K]. The offer was withdrawn on about 23 May 2006.
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34	The manner in which [Ms K] answered questions in relation to these issues provided me with a favourable view of her. Rather than forming the view that this was a person who had at one stage considered a greater sharing of the time with the children and then reneged on such an arrangement as a result of a capricious nature, I felt she was someone who was prepared to consider all possible options for the children. She had not closed her mind to a shared arrangement but had, at the end of the day, distanced herself from it on the basis that she did not view it as best for the children in the circumstances of this case.

35 The offer needs to be put into an evidentiary context.

36 March 2006 saw an already deteriorating relationship become extremely acrimonious. There were allegations of breaches of an interim Violence Restraining Order, allegations of fraud, armed Police conducting a welfare check on the children, exchanges of text messages and general escalating disharmony.

37 On 13 April 2006 [Ms K] withdrew her application for a final Violence Restraining Order. On that date she made the offer to settle. Whilst the exact detail was not before the Court, it was clear that it involved, at the very least, a substantial sharing arrangement in relation to the children. [Ms K] was cross-examined. She said she was fed-up, exhausted and wanted a resolution. Despite reservations about such an arrangement, she had hoped to resolve matters. In this context the offer was made. She had spent considerable time considering what would and would not work. When considering it further she realised it was something she was not satisfied with and the offer was withdrawn. It was withdrawn in the context of the relationship further deteriorating after the offer was made.

38 It was put to her that she saw a sharing arrangement as being workable in April. Her answer was that she had done it to appease [Mr S] and to “stop his nonsense”. She said she thought the children would find it difficult and she had concerns over the organisational aspect. However, she wanted some resolution and she thought it just might be alright.

39 She went on to explain why she had withdrawn the offer. On 21 May 2006 the children were involved in a morning soccer game in Fremantle. [Ms K] and [Mr S] both attended as did a friend of [Ms K]’s, [Patricia]. On completion of the game, [Patricia] saw [Mr S] approach [Ms K] and engage her in a discussion. A short time later she observed [Ms K] to be visibly upset. [Mr S] left and

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[Ms K] and a group of people went for breakfast. [Ms K], according to [Patricia], continued to be visibly upset at the breakfast.

40 [Ms K] gave evidence that she changed her view as a result of something that had happened at the [football] on that day. She said she was approached by [Mr S] and there was some exchange during which he demanded a fair and equitable settlement. In this context he spoke of property matters and said the amount he wanted to settle was $300,000. [Ms K] said that [Mr S] was angry and aggressive and he made threats to make her life “hell”. If she was not going to settle fairly and equitably, he said words to the effect “let’s see if you are able to stand up to attack”. She said she became concerned about [Mr S]’s motives in relation to the children. She realised that he had a very aggressive nature and they simply could not communicate well. A few days later the offer was withdrawn.

41 [Ms K] said she withdrew her application for the Violence Restraining Order because she wanted to try and improve the couple’s communication.

42 Relevancy is the linch-pin to any argument on admissibility. I do find the evidence of the offer relevant, although not necessarily for the reasons advanced by [Mr S]’s counsel. Further, in this case, I find nothing to preclude its admissibility.

43 To hear evidence on “without prejudice” communications is not a step to be taken lightly by a Court. In exercising my discretion, I do intend to consider it. [Mr S] sought its disclosure and although [Ms K]’s counsel opposed it, the evidence in my view was favourable to [Ms K] and most importantly, it assisted the Court in determining what is best for these children.

The facts within the legal framework

44 It is now necessary to turn to the two primary considerations set out in s 60CC(2):

The benefit to the child of having a meaningful relationship with both of the child’s parents

45 The outcome of these proceedings, in my view, will have minimal impact on the relationship between [Malcolm] and [Carol] and their parents. The children will see each parent such that the meaningful relationship which already exists and which benefits them will be able to continue.

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The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

46 There is no evidence before the Court to show that [Carol] or [Malcolm] have come to any harm either physically or psychologically. Nevertheless, there is evidence to show that the acrimonious and raw relationship between the parents has spilled over in the presence of the children leading to them being present during unpleasant and possibly frightening events.

47 Shortly after separation [Mr S] left the matrimonial home in [the suburbs]. [Ms K] and the children remained living there. On Monday, 26 September 2005, a public holiday, [Ms K] and the children were entertaining [Ms K]’s sister and her husband and the children’s cousins. They were having lunch. [Mr S] returned unannounced to the home at about 1.00 pm. He gave evidence he did not consider it appropriate to knock. He asked [Ms K]’s family to leave the house. They refused to leave and as a result, [Mr S] telephoned the [local] Police Station on his mobile telephone in the presence of [Ms K], her guests and all the children.

He identified himself as [Mr S] from [his particular branch] and requested to speak to the Officer-in-Charge. He explained there were people in his house, that he had asked them to leave and the people had refused. He requested Police assistance in their removal.

48 Approximately 30 minutes later, two Police officers arrived. There was some discussion between the officers and all present. Subsequently, [Mr S] left the home. He said in cross-examination that there would not have been any effect on the children in witnessing his attempt, using Police officers, to have the children’s cousins, aunt and uncle removed from the home.

49 I find at best this is an unnecessary and heavy-handed way of dealing with the situation. At worst, it is an attempt to control in a bullying and potentially frightening way. There was absolutely no justification whatsoever for the Police to be involved in a social situation where the children were with family members simply having lunch.

50 On 24 March 2006 [Mr S] spoke to the children at 7.30 pm by telephone. The call was to [Ms K]’s home. The children spoke to their father and told him they were going to visit a friend of [Ms K]’s [nearby]. Whilst [Mr S] was speaking to [Carol], it appears there was some interaction in the background between [Malcolm]

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and his mother. [Mr S] says that [Ms K] was swearing and that
[Malcolm] was screaming. He heard a crash.

51 Later in the evening when [Ms K]and the children were visiting her friend, armed Police officers arrived at the house at 8.30 pm to conduct a “welfare check” in relation to [Carol] and [Malcolm]. [Ms K]’s friend had four children of her own. The Police left after apologising for disturbing the two families.

52 Whilst I accept that [Mr S] is not a violent man, his behaviour in calling the Police without any real justification is behaviour that could only unsettle, confuse and frighten the children. There were better ways of dealing with the issue.

53 I find these two situations reflect poorly on [Mr S].

Additional considerations

54 It is necessary to now consider the additional matters in s 60CC(3). There is, at times, overlap between the different considerations. These are not secondary considerations but are matters that are to be discussed in the context of the primary considerations.

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

55 The children are nine and seven. I have no clear evidence of their views apart from the fact they love and want to be with both their parents.

The nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative

of the child)

56 There was no independent evidence about the nature of the relationship of the two children with each of their parents or members of the extended families.

57 I have no doubt that the children have a close attachment to both [Ms K] and [Mr S]. They have spent significant periods of their lives with each of them. Despite [Mr S]’s reluctance to accept that [Ms K] had been more involved with the children due to her greater availability during their early years, it is clear on the evidence that she was their primary caregiver. It was a fact [Mr S]

(Page 14)

could not concede in cross-examination despite having deposed to
that fact in his trial affidavit.

58 After the birth of [Malcolm] in 1997, [Ms K] took a year’s maternity leave which was then extended into leave without pay. During the latter period she did some occasional work [relief teaching]. When [Carol] was born in 1999, she took a year’s maternity leave then further leave without pay. It was not until the year 2004 that she returned to permanent full-time work at [suburban] school. She went to part-time work in September 2005.

59 During the early years of the children’s lives, [Mr S] was working with the [special branch] in Perth and commuted from [the southern suburbs] on a daily basis. He sometimes worked longer than the shift. He had attended a six week live-in (weekday) [Training Course]. Even when [Ms K] was involved in full-time employment, her work as a [teacher] was conducive to her spending time with the children in their out of school hours and on holidays. This simple fact of physical availability was lost on [Mr S].

60 I do accept that when [Mr S] was available he spent as much time as he possibly could in caring for the children.

61 Following separation, [Mr S] has not had as much involvement in the children’s care as he has wanted.

62 Initially whilst on long service leave he saw the children at least a couple of nights a week. Once he returned to work in September 2005 he had shift work and a limited availability. Problems arose. There was the Violence Restraining Order obtained by [Ms K] on an interim ex parte basis on 5 October 2005. This was not withdrawn by her until 13 April 2006 and at least initially, created difficulties in the children spending time with him. [Mr S]’s family unfriendly work commitments and the orders of 20 December 2005 have to a certain extent limited his time with the children. The orders do not reflect [Mr S]’s current work situation which changed in mid 2006 to more conventional work hours.

63 Despite this, it is clear that the children have a good relationship with each of their parents.

64 There was no evidence to suggest that the extended family of each of the parties has anything other than a good relationship with the children. There was evidence that [Ms K]’s sister, brother-in- law and the children’s cousins had visited. [Ms K] was not

(Page 15)

opposed to [Mr S]’s parents having the children spend time with them in lieu of [Mr S]. Unbeknownst to [Ms K], [Mr S] had gone [on holidays] with his present partner, [Ms H] during a time when the children were to spend time with him. [Ms K] saw the benefits in fostering a relationship between the children and [Mr S]’s family and it was without objection the children simply went to [Mr S]’s parents.

65 [Ms H] has a good relationship with the children.

The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

66 It is instructive to consider a number of issues canvassed during the course of the trial and in the parties’ trial affidavits. Each cited the same examples as “telling” about the other. To the Court the examples showed that [Ms K] could be inflexible and that [Mr S] could be very demanding in relation to the children.

67 In compliance with paragraph 4 of the orders of 20 December 2005, [Mr S] sent a text message to [Ms K] on 30 March 2006. It read “I will collect the kids at 1700 07.04.06 and return them at 1700 11.04.06 u have 8 days notice”. [Ms K] sent a return message indicating that 5.00 pm was not a convenient time and that they would be available at 6.00 pm.

68 There was an exchange of emails with [Mr S] making it clear that he would collect the children at 5.00 pm and [Ms K] making it clear they would be available at 6.00 pm. [Mr S] duly arrived at 5.00 pm. [Ms K] and the children were not there. [Mr S] rang the [local] Police and advised them that he had attended in compliance with Family Court orders and that he must leave in order to comply with the Violence Restraining Order. Apparently the Police made notes of the conversation.

69 At 5.30 pm [Mr S] sent a text message to [Ms K] advising that he had been there at 5.00 pm, had left at 5.10 pm and that she was in breach of the Family Court order. [Mr S] received a response from [Ms K] at about 5.50 pm indicating that “the time arranged was 6.00 pm. C u then”.

70 [Mr S] did not respond and thus did not have contact with the children that weekend. He deposes:

“I did not have contact with the children on this particular weekend as I did not want to set a precedent and encourage [Ms K] to control when and how I had my contact.”

(Page 16)

71 This incident is

concerning. [Mr S] had a difficult work roster and was subject to a Violence Restraining Order. Despite this, [Ms K] was not prepared to a bend for the sake of an hour. There was no real explanation about why that hour was so important save and except she deposes that the children were attending a social event with her.

72 However, the most unfortunate aspect of this whole interaction between the parties was that the children missed out on seeing their father this weekend. To this extent, [Ms K]’s inflexibility was matched with [Mr S]’s intransigence.

73 Much the same sort of incident occurred in June 2006. [Mr S] sent a text message giving notice he would collect the children at 9.00 am on Saturday, 3 June. Unfortunately, [Ms K] and her family had arranged a social occasion. The children have not spent Mother’s Day with [Ms K], being with [Mr S], and in lieu the family had arranged for a make-up Mother’s Day on Saturday, 3 June. Independently [Mr S] gave notice that he intended to commence his period of contact on that day. [Ms K] asked [Mr S] to collect the children on Sunday, 4 June at 9.00 am.

74 After a flurry of unsuccessful text messages, [Mr S] amended his notice to a pick-up from the children’s school on Friday, 2 June. It was only after the respective lawyers for the parties became involved that [Ms K] offered to make the children available at 6.00 pm on Saturday, 3 June 2006. [Mr S] did not agree and advised he would collect the children from school. [Ms K] removed the children from school early. The amended availability of the children to 6.00 pm on Saturday, 3 June 2006 was a case of too little too late and [Mr S] chose not to see them at all.

75 These incidents are a product of [Mr S]’s former work hours, a Violence Restraining Order in place at least in relation to the first incident and a combination of inflexibility and stubbornness which potentially has the effect of each party failing to facilitate and encourage a close and continuing relationship between the children and each other.

76 It is important that there are clear orders in place which leave the parties in no doubt as to what is expected of them.

77 At the close of [Ms K]’s case, her counsel sought to lead evidence of an incident that had occurred in the court foyer during a break in the proceedings. There was no objection taken to this.

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78

[Mrs K], [Ms K]’s mother, gave evidence that during the mid- morning break and in her hearing, [Mr S] made a comment “the children will love to read this transcript”. This was immediately after [Ms K]’s evidence had finished. The making of this comment was not challenged. The meaning of this comment was not explained. It gives me reservations about [Mr S]’s ability to facilitate the children’s relationship with their mother in the future. It is at least a knee-jerk reaction to hearing [Ms K]’s evidence which I found to be mostly fair and even-handed or at worst completely lacking in insight about what the effect such actions could have on the children and their relationship with one or both parents.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from –

(i) either of his of her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

79 [Ms K] was of the view that the children would have difficulty coping with a week and week-about arrangement during term time given the practicalities of their school routine. Whilst they could cope with such an arrangement over the holidays, she said it was different during term time. As she and [Mr S] did not and could not communicate well she saw this as a real problem.

80 [Mr S] said that on the week he proposed having the children, he would be working a 30 hour week from 8.30 am to 2.30 pm Monday to Friday. He saw no problems in his dealing with their routine during a school term.

81 [Mr S] is currently in a relationship with [Ms H]. She deposed to them not living together. However, she said in evidence he spends every night or part thereof with her unless [Mr S]’s children are with him. Occasionally when the children are with him and conditions permit, the children and he stay overnight with her and 2 of her 3 children. One child goes to spend time with his father and this provides the space for [Mr S]’s children to stay. There is not room in her house for [ of the children].

82 The future of the relationship between Ms [Ms H] and [Mr S] was not apparently settled. I was unable to ascertain exactly what her role and their relationship would be if [Mr S] had the children on a week and week-about basis. Her evidence was she currently

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supported [Mr S] financially as he was not in a position to support
himself.

83 I accept the children love spending time with [Mr S] and that in time he would have little difficulty in organising them from a practical point of view. However, there is some uncertainty about his present relationship and given the emotional time the parties have experienced since separation, there may be difficulties for the children in adapting to a week and week-about arrangement. [Ms K] has historically cared for the children most and they are in need of considerable stability just now.

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

84 [Ms K] and [Mr S] will continue to live in the [same] area. [Mr S] currently works in that area and I accept his present plans are to remain working in the area.

85 Even if [Ms K] changes where she lives, it is likely to be to

[another suburb] which is also in the area.

86 The only evidence in relation to practical difficulties in

communication revolved around the issue of mobile telephones.

87 Pursuant to order 7 of the orders of 20 December 2005, [Mr S]

was to have telephone contact with [Malcolm] and [Carol] every second day. He usually initiated the calls and he deposes to mostly being able to speak to the children. He said he had missed speaking to them on some occasions. As a result of this, [Ms K] advised [Mr S] on 23 March 2006 that the best time for him to telephone and speak to the children was between 7.00 pm to 7.30 pm. If the children were not in a position to answer the landline at [Ms K]’s home then she provided a mobile telephone number for the contact. Despite this, [Mr S] deposes to not always being able to speak with the children. He chose not to ring [Ms K]’s mobile telephone.

88 [Mr S]’s solution was to provide the children with a mobile telephone. [Ms K] was of the view that the children were too young to have a mobile telephone of their own and that it was simply not appropriate. Despite her clear view being made known to [Mr S], the children were provided with such a telephone on 15

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May 2006. [Ms K] says that for a while she allowed the children to use it for the purpose of contact, despite her original misgivings.

89 It became apparent to her that on or about 23 May 2006, some of the messages sent by [Mr S] to the children were inappropriate. An example of this was a text message left by [Mr S] on 8 June 2006:

“I love you guys and will not give up. I have nothing to lose. You guys will see the truth one day. I love you and miss you. xxx”

90 There were other such messages. As a result of her concerns, [Ms K] removed the mobile telephone from the children. [Mr S] made an incident report to the [local] Police and [Ms K] was spoken to on several occasions by a Detective Sergeant in relation to the alleged theft by her of that mobile telephone. In July the mobile telephone was made available for collection. Despite this, the matter was further investigated.

91 Undeterred [Mr S] provided the children with another mobile telephone on 9 June 2006. Again this second telephone was removed from the children by [Ms K] and again made available through solicitors for [Mr S]’s collection. Senior Sergeant [H], Officer-in-Charge of the [Regional] Investigation and Response Group and currently the Officer-in-Charge of [Mr S] said he was fully aware of the position in relation to the mobile telephones. He said there was prima facie evidence of two acts of stealing. He said that [Ms K] and [Mr S] were not joint owners of the mobile telephones and the manner in which [Ms K] had dealt with the telephones was inconsistent with [Mr S]’s ownership. However, he exercised a discretion not to press the charges and to allow the parties to simply move on.

92 It is not for this Court to delve into the criminal law in any depth. Suffice it to say it is hardly surprising the stealing charges did not proceed given the definition of stealing in s 371 of the Criminal Code. In my view, they did not proceed because there simply was no case to answer.

93 Not only do I find the involvement of the Police in the removal of the mobile telephones from the children completely misconstrued, I find that [Mr S]’s actions in initiating and persisting with the supply of the mobile telephones to the children against their mother’s wishes to be heavy-handed and inappropriate.

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The capacity of –

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child),

to provide for the needs of the child, including emotional and

intellectual needs

94 I was satisfied that each parent has the capacity to provide physically for each of the children. Any practical arrangements for the children can be made by either parent.

95 I accept the evidence of Senior Sergeant [H] that the Police are anxious to put in place flexible work-place arrangements to ensure that senior and respected officers remain within the Police force. His evidence suggested increased flexibility to suit parenting commitments and I was satisfied that [Mr S] would be available at all times he needed in order to provide adequately for the children.

96 Neither parent is reliant upon social security in order to provide financially for the children. Whilst [Ms K] is presently employed part-time, she has the capacity for further work as the children get older if she so wishes. Her present work hours are commensurate with the children’s hours and requirements. She is able to have time with them over school holiday periods. I was also satisfied that the flexibility of [Mr S]’s current work would cater for this.

97 [Ms H] gave evidence that she assisted [Mr S] financially as he had no money. She had seen his bank accounts. However, there is nothing to suggest the children are not adequately provided for whilst in his care. He is currently in arrears of his child support but extra payments are being deducted to bring him up to date.

98 There is nothing to suggest that either parent is incapable of making adequate arrangements for the children’s intellectual needs.

99 However, there is a concern about [Mr S]’s ability to cater for the emotional needs of the children. I have previously referred to a comment made by [Mr S] in a break in the Court proceedings. I interpret the comment to mean he would show the children the transcript of their mother’s evidence which he thought was full of untruths. Whether that evidence is right or wrong, it shows a lack of respect for [Ms K]’s position as the children’s mother. It also

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shows a lack of insight into the possible effects of involving the
children in their parents’ dispute.

100 [Mr S]’s father, [Mr S Senior], deposes that after separation [Mr S] has asked him “what will happen to them if I cannot see them”. It is clear he was referring to the children. Whilst the comment by itself is innocuous, I formed the view, having heard [Mr S]’s evidence and witnessed his demeanour that he viewed [Ms K] as some sort of enemy. She had defected from the marriage. Her initiating the separation left him with absolutely no trust in her and that coloured his communication about her to the children. He has sought to enlist the help of work colleagues and to some extent the children in his struggle.

101 [Ms K] deposes that on or about 3 June 2006 after the failed attempt for the children to see their father, he said words to the effect that “it’s all your mother’s fault, I was at school on Friday to collect you, I am not coming to get you now.”

102 Words such as these said in the heat of the moment and when angry may well have an impact on the children’s ability to relate appropriately with one or both of their parents.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

103 I do not see this as relevant in this matter.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

104 There can be no doubt that both parents love [Carol] and [Malcolm] very much. I also have no doubt that both parents are committed parents and take their parental responsibilities very seriously. They have both been persistent and proactive in the care of the children. Of course, one of the responsibilities of parenthood is to ensure that children grow up with a sense of fairness and right- mindedness. It includes a responsibility to ensure that positions of power or trust are respected and not taken advantage of. [Ms K] argued that [Mr S] had abused his position as a Police Officer in order to advance his own personal situation and to intimidate and harass her. She says the Police force has rallied behind him and condoned his inappropriate behaviour.

105 Both parties have involved the Police in their marriage breakdown in one way or another.

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106	[Ms K] made a complaint to the [local] Police Station on 2 March 2006. She attended to report a breach of her interim Violence Restraining Order as a result of the numerous text messages she was receiving from [Mr S]. Her view was that they were inconsistent with the terms of the Order. The Police were of the view that the messages were authorised by the Family Court orders of 20 December 2005 and they took no action. It was put to [Ms K] in cross-examination there was a complaint by her in relation to alleged “stalking” of her by [Mr S]. There was some confusion in the evidence over this and I have formed the view that the term “stalking” was most likely coined by the Police in view of s 338D of the Criminal Code, rather than a specific complaint in that regard from [Ms K].
107	On 10 March 2006 a further Police complaint was registered on the Police files. [Ms K]said that she could not remember actually attending any Police Station to make a separate complaint but was of the view that the earlier complaint may have automatically triggered an internal investigation as a result of [Mr S] being a Police Officer. In any event, this appears to be an investigation based on the content of the formal complaint made on 2 March 2006.
108	On 18 September 2006 [Ms K] made a formal written complaint to the Police Complaints Administration Centre in relation to [Mr S] alleging that he had improperly used Police resources to harass and intimidate her. Her reasons were manifold and I have set them out:

(a)

on 5 September 2005 [Mr S] had sent an email on his Police work computer to 25 people. The email was copied to her. The email was, ostensibly, to advise various people of the present situation between the parties. [Mr S] said it was quite appropriate. He spoke of [Ms K]’s “lies and deception”. It is an outpouring of grief – accompanied by some vitriol. In November 2005 he had sent a further email to her work email address from his Police computer discussing their breakdown. Again he saw it as quite appropriate. [Ms K] did not;

(b)

she complains of [Mr S]’s attempt to use the Police to remove her relatives from the home on 26 September 2005. [Mr S] saw this as an appropriate

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use by him of Police resources given the operating requirements of Police to assist in family disputes;
(c)	on 10 March 2006 [Mr S] had a member of the Police force stationed at the [local] Police Station ring [Ms K] to advise her she was in breach of the Family Court order as he had not spoken to [Malcolm] that day on the telephone. [Malcolm] was having a sleepover with a friend. [Mr S] did not accept it was a waste of Police resources – “people do it all the time”;
(d)	on 24 March 2006 the Police, on [Mr S]’s complaint, conducted a “welfare check”, as previously detailed;
(e)	the Police investigated the “theft” of the mobile telephones through June and into September 2006 despite the phones being made available for collection in July through the solicitors;
(f)	on 1 March 2006 [Mr S] reported that “someone” had allegedly forged his signature on three progress payments made to Dale Alcock Homes, the builder of their home. [Ms K] was a person of interest and was investigated by the Major Fraud Squad. Two detectives attended her premises on 5 September 2006 at 9.30 am to arrange a video record of interview. I have no doubt [Mr S] accused [Ms K];
(g)	lastly, she complains he had sent numerous threatening text messages, two specifically threatening Police involvement in their matrimonial dispute.

109 Senior Sergeant [H], [Mr S]’s immediate superior was called on to review the information provided by [Ms K].

110 The complaint was finalised on 13 November 2006. It was considered to be unfounded. The official outcome was that it was a vexatious and malicious action on the part of [Ms K]. The correspondence sent to [Ms K] was cursory and did not cover all the issues raised by her.

111 In cross-examination [Mr S] accepted that he does threaten to involve the Police. He said that he did so when she “breached” the orders. He considered it appropriate. He said that the Police were involved in order for him to cover his backside.

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112	It is not the role of this Court to involve itself in Police procedures. Suffice it to say [Mr S] is a Police officer, not simply a member of the public. He was not shy in involving the Police force in his matrimonial matters. I found he did so in order to obtain some leverage and advantage not available to [Ms K]. It was not right or fair.

Any family violence involving the child or a member of the child's family

113 I do not see this as relevant in this matter.

Any family violence order that applies to the child or a member of the child's family if:

(i) the order is a final order; or

(ii the making of the order was contested by a person

114 There was an interim Violence Restraining Order granted to [Ms K] on an ex parte basis on 5 October 2005. There was little evidence or reliance by either party on the circumstances of the granting of this order during the trial. [Ms K]’s evidence suggested that it had been obtained due to [Mr S]’s constant text messages to her of a harassing and unpleasant nature and his overbearing manner and behaviour at that point in time. This included derogatory comments in public, 13 text messages over a short period of time and the attempt to have the Police remove her family from the home on 26 September 2006.

115 The Violence Restraining Order was withdrawn by [Ms K] in advance of any final contested hearing and is thus not a consideration here.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

116 This is not a case plagued by interlocutory applications and interim arguments. The dispute between the parties has been contained and I am not satisfied this is a factor of significance.

Any other fact or circumstance that the court thinks is relevant

117 There have been a number of matters raised during evidence that have a bearing on my decision.

(a) [Ms K]’s ability as a caregiver to the children

118 In all the documents filed by the parties for the purpose of the trial, including witness affidavits, there is nothing to suggest that

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[Ms K] is anything other than an appropriate caregiver for the
children. It was not apparently an issue during the marriage.

119 There is some mention in the affidavit of [Ms M], [Mr S]’s sister, that [Carol] had an ingrown toe nail as a result of cutting her own toe nail due to [Ms K] being too busy to do so. I did not find it to be an issue of great moment.

120 [Mr S] took [Carol] to the Doctor as he thought her toe was infected. He was given antibiotics and sent a note home with [Carol] regarding the treatment for her toe. [Carol] needed a return visit to the Doctor. The note written to [Ms K] and the provision of antibiotics was used by [Mr S] to show that he was well able to communicate with [Ms K] appropriately. The note written by [Mr S] was read to the Court. I do accept this was appropriate communication but the content of the note appeared to me to have a subtle jibe at [Ms K]’s caregiving ability. … “She ([Carol]) was limping when I picked her up”.

121 For some reason, [Mr S] made a complaint to the Department for Community Development in [the regional centre] in late 2005. This was not mentioned in his trial affidavit and came out coincidentally in his cross-examination. He said he made one complaint as the children had suffered a number of injuries. These were never specified. His explanation for not raising it in his trial affidavit was that “I thought we could be civil”. Given that explanation I have no doubt the complaint was spurious.

122 [Ms K] deposes in her trial affidavit of August 2006 that close to that time during a time the children had been with [Mr S] he photographed them in their school uniform including some close- up photographs. They had said their father made comments about [Ms K] not spending the money, assumed to be child support, appropriately and the photos were taken as evidence. This was never explained by [Mr S].

123 [Mr S] also saw fit to involve the Police in the conduct of a “welfare check” in relation to the children on 24 March 2006. No action was taken and the Police apologised for disturbing [Ms K], her friend and the six children who were present when armed Police arrived.

124 The Papers for the Judge filed by [Mr S]’s solicitors on 13 November 2006, when addressing the primary considerations of s 60CC(2), state that the children do not need to be protected from physical or psychological harm. It is further stated that each of the parties has the necessary parenting skills to look after the children.

(Page 26)

This was not the only instance where the court papers prepared on [Mr S]’s behalf were far more anodyne than his oral evidence. The court is satisfied [Ms K] is an appropriate caregiver in every sense.

(b) Failure to inform

125 Both parties allege that from time to time there has been a failure by the other to adequately inform in relation to the children. [Mr S] deposes that [Ms K] has been haphazard in advising him of the children’s activities, health and wellbeing. He said he had not been provided with information on the children’s schooling. It was put to him that [Ms K] had indeed written to the school on 7 November 2005 requesting that he receive copies of all newsletters and reports and his home address was provided. However, he blamed [Ms K] completely for not receiving everything.

126 Likewise, [Ms K] deposes to [Mr S]and her being unable to communicate in relation to issues concerning the children. She complains of not being informed by [Mr S] of changes in his address, home telephone numbers and work place changes. Additionally, she said she had not been advised of his trip [overseas] taken during a contact period. When challenged about this last failure, [Mr S] said in cross-examination that he had not told her but he had told the children. He said: “I didn’t (tell her) as she doesn’t tell me stuff … I considered it but decided not to”.

127 I found [Mr S]’s tit for tat attitude displayed immaturity.

Credibility

128 I did not find any yawning gap in the credibility of the parties. I found them both to be mostly credible and accurate in their description of the events of their marriage and separation. If there was a conflict, I preferred [Ms K]’s evidence.

129 However, I found the difference in their attitudes, behaviours and beliefs to be more telling than any issue of credibility. [Ms K] made a more favourable impression in that regard, despite some inflexibility in her ability to give and take. She seemed to have some insight into this but laid the blame at [Mr S]’s feet for his demanding, harassing and bullying nature. I suspect there is some truth in that.

130 The tone of [Mr S]’s trial affidavit was mostly more even than his evidence in court. In his affidavit he was able to concede that [Ms K] had been the primary caregiver during the course of the marriage. Any suggestion of that nature in his cross-examination

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made him argumentative and unwilling to make any obvious
concessions. In Court he was openly negative about [Ms K].

Section 60CC(4) and (4A)

131 I am also required to consider a variety of matters set out in s 60CC(4). I will not repeat that provision as it is lengthy. I have already addressed matters of significance in that sub-section in the body of the judgment.

132 In particular, I have noted occasions, albeit few, where [Mr S] has not taken up opportunities to spend time with the children.

133 Additionally, he is currently in arrears of child support. [Mr S] explains the arrears in that he made some mortgage payments towards the property in which [Ms K] and the children continued to live after separation. He was of the view that the money so paid would be credited to any child support obligation. There was no credit. The arrears will be discharged by 31 May 2007.

Parental responsibility

134 It will be apparent from the number of findings I have made that I consider it would not be in the best interests of the children for their parents to have equal shared parental responsibility.

135 In this regard I accept:

• The parties have an extremely poor relationship.

• [Mr S] is exceedingly demanding, heavy-handed and, at times, a bully.

• By and large the parties communicate by text message or email. [Mr S] has used this to abuse, denigrate and intimidate [Ms K].

136 I am satisfied that the presumption in s 61DA has been

rebutted.

137 Although I find the presumption for equal shared parental responsibility to be rebutted, I still need to consider whether the children should spend equal time with [Mr S] and [Ms K]. I need to do this as it has been sought by [Mr S]. [Mr S]’s proposal is a week and week-about basis. Again given a number of my findings, I consider the best interests of the children are more likely to be promoted in the event they live most of the time with [Ms K]. She has been the parent mostly available to the children since their births, she is an appropriate caregiver and she is aware of the children’s needs – much more so than [Mr S].

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138	Although the parties live close to each other, there is a complete lack of mutual trust and ability to communicate freely and openly on a level that will advance the children’s interest. There is very little evidence that the parties are able to cooperate and that they have compatible values in relation to parenting. I do not see any of these factors changing in the future given some of [Mr S]’s entrenched views and ways of operating both at work and in the community.
139	Having said that, the children look forward to seeing [Mr S] and enjoy their time with him when they do so. The children have a relationship with his extended family and with his present partner. He has taken active steps to ensure that his work environment is flexible and that he is available at every possible opportunity to care for the children.
140	[Mr S] has simply sought an equal sharing of time with the children. He put forward no proposals in the event that [Ms K]’s position that the children live predominantly with her was successful. I am nonetheless required to consider, in determining what is in the best interests of the children, any arrangements that will promote their best interests. In this context, I am of the view that it is appropriate for the children to spend substantial and significant time with [Mr S].
141	The one concern in this regard relates to the parties’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind.

142 I am of the view that clear orders can assist in this regard.

143 The orders I intend to make include a proposal and orders that neither party has advanced. However, I am of the view it is ultimately in the children’s best interests that such orders be made. I will accord procedural fairness to the parties and hear from them in this regard before I pronounce the orders I propose . (U v U (2002) FLC 93-112 and Bolitho & Cohen (2005) FLC 93-224.

Property settlement

144 This application took up very little time at trial. There were few areas of dispute between [Mr S] and [Ms K] in relation to the identification of assets and the debts which should be taken into account.

145 [Mr S] sought to addback an amount of $500 being the proceeds of a sale of a spa that [Ms K] had sold after their

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separation. The spa was acquired in November 1996. There was no evidence that satisfied me that this was a premature distribution of assets by [Ms K] such that it need be included in the pool of assets. Overall, there was a paucity of evidence about the spa. In any event, the proceeds of sale of the spa went into a bank account used to pay the mortgage over the party’s property. I do not intend to add that amount back into the pool of assets.

146 [Ms K] sought to have a debt to [her employer] included as a liability. It arose as a result of an overpayment to her for wages between 18 July and 8 September 2005 when she was on leave without pay. The money had gone into a joint account at a time when both [Mr S] and [Ms K] still used that account.

147 Steps have been put in place for the [employer] to reduce [Ms K]’s fortnightly payment by 10% in order to have that debt repaid. Very little of that amount had been paid by the time of the trial.

148 I do intend to take this debt into account as a liability of the parties. However, it is clear [Ms K] will be responsible for its payment.

Assets and liabilities

Assets

House	Joint	$465,000
Holden	[Ms K]	9,000
Subaru	[Mr S]	12,000
Proceeds of sale other property	Joint	212,708
Camper-trailer	[Mr S]	3,500
Furniture and contents	[Ms K]	6,285
Furniture and contents	[Mr S]	5,450
Legal fees	[Mr S]	20,000
Legal fees	[Ms K]	20,000
(Page 30)
Assets TOTAL	753,943

Liabilities

Mortgage on House	Joint	179,000
Finance – Subaru Impreza	[Mr S]	24,000
Debt to Education Department	[Ms K]	6,940
Liabilities TOTAL	209,940
Net Assets	544,003
Superannuation assets
Superannuation ([Ms K])	E49,830
Superannuation ([Mr S])	50,756

149 Neither party sought a splitting order and it is agreed that each party will retain their respective superannuation entitlement. These are roughly equal.

Contributions

150 [Ms K] sought that based on contributions, there be a division of assets on an equal basis. However, she saw an appropriate adjustment for s 75(2) factors as being 10%.

151 [Mr S] was of the view, given his position about an equal shared-care arrangement that the assets be divided on an equal basis with no adjustment for s 75(2) factors. He had not considered any other position.

152 The evidence is consistent with the position of each party that contributions during the marriage to the trial are equal. However, given the orders I propose in relation to the children, it is necessary to consider whether there should be an adjustment for s 75(2) factors.

Section 75(2) factors

153 Both parties are 40 years of age and are in good health.

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154 The parties were married for 10 years, although they lived together for approximately 20 years.

155 [Ms K] has qualifications as a [teacher]. She presently earns approximately $32,000 per annum. She has the capacity to work full-time and earn more than she presently does. She has reduced her working hours in order to be more available for the children. She reduced her hours prior to the commencement of the proceedings.

156 [Mr S] is employed full-time as a Police Officer. He presently earns approximately $60,000 per annum. He was previously earning $65,000 with the [special branch] but has modified his position and his hours to be more available for the children.

157 He has now taken a position at the [local] Police Station which involves a day shift as supervisor of a response group. He is involved with a case load and is not involved with any initial response to complaints or investigations. Senior Sergeant [H] said it was not a demotion but that [Mr S] had now undertaken a leadership role. He said it did not affect [Mr S]’s ability for promotion. [Mr S] had indicated that it did affect his ability and when this was put to Senior Sergeant [H] he said that if [Mr S] applied himself, he may be able to apply for promotion. I formed the view that [Mr S] could apply for promotion but that it may not be the same type as he could apply for in the [special branch]. His choice to change roles had been motivated by desire to be a more available father to his children. I accept that he is willing to put his career to one side at least in the short term in order to be available to the children on a regular basis and to maintain his meaningful relationship with them. He works, now, closer to where the children live and his hours are such that he can see them on a predictable basis.

158 [Mr S] also said that he had considered purchasing a small business, like a lawn mowing round if it meant it was easer for him to be with the children.

159 Given Senior Sergeant [H]’s evidence, [Mr S] is obviously well thought of and a senior member of the Police force.

160 [Ms K] is in a position to work more hours than she presently does without any great effect in terms of the time she spends with the children given the nature of her employment. However, given the nature of the breakdown of this relationship, I do not find it unreasonable for her to want to be more available at least for some period.

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161

[Mr S] pays child support in accordance with the assessment

and is contributing towards arrears that have accumulated.
be available to them in the future.

162 Both parties have much the same superannuation which will

163 I am satisfied that there is basis to adjust the equal division that is appropriate based solely on contributions.

164 The basis for this adjustment is that [Ms K] should be in a position to continue to work hours that make her more available for the children. She earns roughly half of what [Mr S] earns. Given the size of the asset pool, I find that an appropriate adjustment is 7.5%. This will allow her to absorb a lesser income for a period of time. It will allow new orders making provision for the children to spend time with their father to become workable. Given her occupation, I do not see the need for such a reduction in hours to continue indefinitely given, by and large, her hours are commensurate with her children’s school hours.

(Page 33)

The effect of the orders

[Ms K]

Assets

The Home	$465,000
Holden	9,000
Furniture and contents	6,285
Legal fees	20,000
Assets TOTAL	500,285
Liabilities
Mortgage on the home	179,000
Debt to Education Department	6,940
Payment to [Mr S]	1,543
Liabilities TOTAL	187,483
NET ASSETS	312,802
[Mr S]
Assets
Subaru	12,000
Proceeds of sale of the other property	212,708
Camper-trailer	3,500
Furniture and contents	5,450
Legal fees	20,000
Payment from [Ms K]	1,543
(Page 34)
Assets TOTAL	255,201
Liabilities
Finance – Subaru	24,000
Liabilities TOTAL	24,000
NET ASSETS	231,201

165 The orders I propose will allow [Ms K] to remain in the home with the children at [the house] if she so wishes. She is currently servicing the outgoings on that property from her part-time employment. There is nothing to suggest she will not be able to do so unless she has other plans. She has already received $20,000 in legal fees from the proceeds of sale of the [other] property. However, on my orders it will be necessary for her to pay to [Mr S] $1,543 and [Mr S] will get the balance of the [other property] proceeds of sale.

166 [Mr S] will be in a position to re-establish himself in one way or another. He too received $20,000 towards his legal fees and will have in effect, all the proceeds of the [other property] which he can use to rehouse or purchase a business.

167 Both parties have secure income for their future and each party will retain their superannuation.

Property orders

1. Within 30 days of these orders, the husband transfer to the wife his right, title and interest in the property at [address] in being more particularly described as Lot xxx on Plan xxx and being the whole of the land comprised on Certificate of Title Volume xxxx Folio xxx.

2. Contemporaneously with the transfer set out in paragraph 1 hereof:

(a) the husband and the wife do all such things and sign all such documents as necessary to

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effect discharge of Mortgage xxxx with the

ANZ Bank at the wife’s costs;

(b)	the husband do all acts including payment of any fees, and sign all documents necessary to cause the discharge of Caveat xxxx registered over the property;
(c)	the wife pay to the husband the sum of $1,543.

3. The monies held in the joint account with the ANZ Bank, representing the proceeds of sale of the [other] property be paid to the husband.

4. The husband forthwith sign all documents as are required to close the joint equity manager account xxxxxxxxx.

5. Any interest the husband may have in the following vest in the wife absolutely:

(a)	the Holden motor vehicle;
(b)	the furniture, contents and jewellery in the wife’s possession;
(c)	the wife’s superannuation;
(d)	any monies standing to the credit of the wife in any bank account, or in which he has an interest (save and except as set out in paragraph 3 hereof).

6. Any interest the wife may have in the following may vest in the husband:

(a)	the Subaru motor vehicle;
(b)	the furniture and contents in the husband’s possession;
(c)	the camper trailer, registration number xxxx;
(d)	the photograph of [Malcolm] signed by [celebrity];
(e)	the husband’s superannuation;

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(f) any monies standing to the credit of the husband in any bank account or in which he has an interest.

Children

1. The wife is to have sole parental responsibility for the long-term care, welfare and development of the children, [Malcolm S] born in March 1997 and [Carol S] born in March 1999.

2. The children are to live with the wife.

3. During school terms the children spend time with the husband as follows:

(a) each alternate weekend from after school on Thursday to commencement of school on Monday with the husband to collect the children from and return the children to their school;

(Page 37) (Page 39) (Page 38)

(b) on Father’s Day from 9.00 am to 5.00 pm.

4. During school holidays the children spend time with the husband:(b) on Father’s Day from 9.00 am to 5.00 pm.

4. During school holidays the children spend time with the husband:

(a) for the second half of each term holidays

commencing at 9.00 am on the middle Saturday until 5.00

pm on the final Saturday;

(b) for the Christmas holidays the first half in 2007/2008 and each alternate year thereafter and the second half in 2008/2009 and each alternate year thereafter.

5. In the event Easter falls outside the school holidays, the children spend time with the husband as follows:

(a)	from 11.00 am Easter Sunday to 11.00 am Easter Monday in 2007 and each alternate year thereafter;
(b)	from 11.00 am Easter Saturday to 11.00 am Easter Sunday in 2008 and each alternate year thereafter;
(c)	at Christmas from 12.00 pm Christmas Eve to 3.00 pm Christmas in 2008 and each alternate year thereafter; and
(d)	from 3.00 pm Christmas Day to 5.00 pm Boxing Day in 2007 and each alternate year thereafter.

6. The children are to have communication with the father by way of telephone calls each Monday, Wednesday and Saturday between 7.00 pm and 7.30 pm when the children are not with him, such calls to be by way of a landline or the mobile telephone of an adult person, with the husband to initiate the call.

7. The parties shall jointly authorise any school at which the children attend to provide to both parents on a regular basis copies of all school reports, other reports relating to the children, school programs and behavioural issues and all school circulars in relation to the children.

8. Both parties may attend all school functions to which parents are invited, including but not limited to, parent/teacher appointments, school assemblies, open days and presentations.

9. Both parties may attend sporting and other co- curricular and extra-curricular activities in which the children are involved.

10. The parties are to provide to each other their residential address, work address, home telephone number and mobile telephone number and the parties do notify each other within seven days of any changes to such details.

11. Each party shall advise the other of any medication the children are taking and each party shall ensure that any such medication is made available to the other party when the children are handed over.

12. Each party shall forthwith advise the other party if the children require emergency or major medical treatment whilst in the care and control of that party.

13. Each party be restrained by injunction from denigrating the other party and their partner to or in the presence of the children.

14. The husband be restrained by injunction from showing to or discussing with the children any documents, transcript of evidence or content of the Family Court proceedings PTW 6551 of 2005.

15. For the purposes of handovers the husband shall collect the children from school and deliver the children to school during gazetted school terms. In the event the children are not attending school, the wife deliver the children to the husband at the commencement of each contact period and the husband return the children to the wife at the conclusion of his contact period.

16. The husband’s time with the children be suspended from 9.00 am to 5.00 pm on Mother’s Day.

I certify that the preceding [167] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate