Sanston and Sanston

FAMILY COURT OF AUSTRALIA

SANSTON & SANSTON

[2008] FamCA 303

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time
FAMILY LAW – PROPERTY – Alteration of interests

Family Law Act 1975 (Cth)

APPLICANT:

Mr Sanston

RESPONDENT:

Mrs Sanston

FILE NUMBER:

NCF

457

2005

DATE DELIVERED:

2 April 2008

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

JUSTICE MULLANE

HEARING DATES:

17 & 18 October 2006, 13-16 February and 2 & 3 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G. Sundstrom

SOLICITOR FOR THE APPLICANT:

Thomas Mitchell Partners

COUNSEL FOR THE RESPONDENT:

Mr S Austin

SOLICITOR FOR THE RESPONDENT:

Attwaters Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms D Burns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Denise Clark

Orders

A) PARENTING ORDERS

All prior parenting orders in relation to the parties’ children B born … June 1998, E born … February 2000, A born … June 2001 and Y born … September 2002, are discharged.
The children are to live with the mother.
The children are to spend time with the father as follows:-
3.1.for one half of each summer school vacation from 9am on the first day of the vacation (if it occurs in an odd numbered year) to 5pm on the last day of the first half of the vacation, and if the vacation commences in an even numbered year, from 9am on the last day of the first half of the vacation to 5pm on the second last day of the vacation;
3.2.during each other school vacation in an odd numbered year from 9am on the first day of the vacation to 5pm on the last day of the first half of the vacation and in an even numbered year from 9am on the first day of the second half of the vacation to 5pm on the last day of the vacation;
3.3.in school terms from end of school/preschool every second Friday until end of school/preschool on the following Tuesday;
3.4.if Father’s Day would not otherwise fall on a weekend when the children are spending time with the father, then on the weekend of Father’s Day in lieu of the following weekend and otherwise in accordance with 3.3;
3.5.if Mother’s Day would otherwise fall on a weekend when the children are spending time with the father, then the children shall not spend time with the father that weekend but instead spend time with him the following weekend and otherwise in accordance with 3.3; and,
3.6.for purposes of this order a school vacation includes a pupil free day that occurs on the first school day after the vacation.
The father has parental responsibility for the day to day care, welfare and development of the children during their time with him.
Otherwise the mother has sole parental responsibility for the care, welfare and development of the children provided that she must consult the father prior to decisions as to the long term care, welfare and development of the children.
By 31 October 2007 the father must attend and complete a course in parenting after separation approved or nominated by the Manager of the Child Dispute Service of the Court’s Newcastle Registry and must:
6.1.telephone the Manager within 7 days and obtain the necessary approval or nomination;
6.2.pay the reasonable fees for the course;
6.3.upon completion of the course obtain a letter from the provider certifying sessions attended and completion of the course; and
6.4.promptly provide the other parent and the independent children’s lawyer with a copy of the letter.
By consent when any of the children is in the care of one of the parents that parent must ensure that the child or children communicate by telephone with the other parent each Monday and Thursday between 6pm and 6.30pm.
By consent the parents must use a communication book to communicate with each other regarding the care, welfare and development of the children, the wife is to purchase a suitable book within 7 days and the parties must ensure the book passes with the children between households.
By consent each parent must notify the other in writing beforehand of the address and telephone number of any premises where any of the children will stay (other than the parent’s residence) for more than 3 days.
By consent the parties agree Dr H of W Surgery is to be the children’s general medical practitioner and if Dr H is not available the parents must agree in writing on another general medical practitioner for the children.
By consent each parent must instruct any health care professional he or she consults regarding any of the children, or who treats any of the children, to provide the other parent with a copy of any written report regarding the children and such other information as the other parent reasonably requests.
By consent each parent must notify the other as soon as practicable if while in his or her care:
12.1.one of the children becomes seriously ill;
12.2.one of the children is hospitalized; or
12.3.one of the children is involved in a serious accident.
By consent each parent must keep the other informed of his or her residential address and telephone number.
By consent the mother must authorize and request any school or preschool any of the children attends to provide the father at his expense with copies of all school (or preschool) reports, photographs, magazines, newsletters or correspondence with the mother regarding the child’s attendance, progress and behaviour.
By consent each parent is restrained from:
15.1.discussing these proceedings or any other litigation involving the parents in the presence or hearing of any of the children or permitting anyone else to do so;
15.2.denigrating the other parent or any member of the other parent’s household or family in the presence or hearing of any of the children or permitting anyone else to do so;
15.3.entering onto the property where the other parent resides;
15.4.discussing with or in the hearing or presence of, any of the children parental financial matters including, but not limited to, child support, parental income, sources of income and parental expenditure; and,
15.5.smoking cigarettes in the presence of any of the children or permitting or encouraging any other person to do so.
By consent the mother is restrained from:
16.1.permitting any of the children to refer to the father other than as “Dad”, “Daddy” or “my father”;
16.2.permitting any of the children to refer to any other person as “Dad”, “Daddy”, “my father”, or any other expression inferring that person is their father; and
16.3.permitting the daughter of her partner, Mr J, to refer to her as “Mum”, “Mummy”, “my mother”, or any other expression inferring the mother is her mother.
The mother is restrained from:
17.1.permitting any of the children under 14 years of age to travel in a boat off-shore unless wearing a life jacket;
17.2.permitting her partner Mr J to physically discipline any of the children; and,
17.3.changing the school any of the children attend without at least 1 months notice in writing to the father setting out the proposal and detailed reasons.
By consent changeovers are to be implemented as follows:
18.1.if the period the children are to spend with their father commences at the end of school or preschool, the father or a responsible adult on his behalf must collect the child or children from the school or preschool at the start of the period;
18.2.if a period the children spend with the father ends at start of school or preschool the father or a responsible adult on his behalf must deliver the children to school or preschool;
18.3.if a period the children spend with the father ends at end of school or preschool the mother or a responsible adult on her behalf must collect the children from school or preschool;
18.4.the other parent must not attend at the school or preschool when the children are to be delivered or collected under 18.1, 18.2, or 18.3;
18.5.all periods of time the children spend with the father that do not commence at the end of school or preschool are to commence by the mother or a responsible adult on her behalf delivering the children to outside the father’s residence; and,
18.6.at the end of period of time the children spend with the father other than those to which 18.2 or 18.3 applies, the father (or a responsible adult on his behalf) must deliver the children to outside the mother’s residence.
Each parent is restrained from allowing any of the children to be in the company of Mr G.
The mother is restrained from allowing B to participate in further counselling unless the mother first:
20.1.obtains the written consent of the father; or
20.2.at least 7 days has passed since she has provided the father with a written report of a medical practitioner, school counsellor or psychologist containing an assessment of B and recommending counselling, together with a written authority addressed to that professional, signed by the mother and requesting the professional to answer any queries that the father raises with the professional by telephone, in person, or in writing.
If either parent proposes to initiate further proceedings for a parenting order in relation to any of the children, that parent must first initiate family counselling for the parties, unless an exception applies under Section 60I or 60J of the Family Law Act.
The Court notes that the mother’s counsel acknowledges on her behalf that it is in the children’s best interests that as soon as practicable an internal staircase be installed in the mother’s home so that there is an internal alternative to the present external staircase connecting the upstairs where the mother and her partner sleep with the downstairs where the children sleep.
The mother must in any event ensure that the internal staircase is installed and completed by 3 January 2008.
These orders incorporate and have attached to them a document setting out:
24.1the obligations that these Orders create;
24.2the consequences that may follow if a person contravenes an Order;

24.3the availability of programs to help people understand the responsibilities under parenting orders; and
24.4the availability and use of location and recovery orders to ensure that parenting orders are complied with.

When the reasons for these orders are provided the Independent Children's Lawyer has 28 days to approach the list clerk and request listing of the application for costs orders against the parents for argument.

B)PROPERTY ORDERS

On or before 1 May 2008 the husband must pay to his parents $1,500 owing by the wife to his parents or either of them for money lent to her by them or either of them for payment of a bond on rental premises and also pay to them any additional amounts owing to them under any judgment in respect of the $1,500 and any interest on the judgment.

The husband must indemnify the wife and keep her indemnified in respect of any such debt or judgment.

On or before 1 May 2008 the husband must pay to the wife the sum of $179,000 and pay to the Greater Building Society Ltd (“the Society”) all amounts necessary to discharge the mortgage to the Society secured on the property known as W, being the land in folio identifiers … and … (“the home”).

If the said sum is not paid by the date specified the husband must pay to the wife interest at the rate prescribed by the Family Law Rules calculated from the due date on so much as is from time to time outstanding.

In consideration for, and contemporaneous with, the husband’s compliance with order 3 on or before 1 May 2008, the wife must do all acts and execute all documents submitted by the husband to transfer to him all the interest of the husband in the home and to sign all documents submitted by the husband necessary to discharge the said mortgage to the Society and register the discharge.

The husband must indemnify the wife against any liability for outgoings in respect of the home and any liability in respect of the mortgage.

If the husband does not comply with order 3 on or before 1 May 2008, the parties must do all acts and execute all documents necessary to sell the home by public auction with a reserve price of $315,000 or such other amount as the parties agree, or in default of agreement such other amount as the vendors’ agent advises.

The wife is to have the conduct of the sale on behalf of the parties and is to instruct agents and solicitors on their behalf and is appointed attorney for the husband to sign on his behalf all documents necessary to implement order 7.

Until completion of the sale the husband:

9.1 has the right to occupy the home to the exclusion of the wife subject to him paying the following payments as they fall due:

Payments -
i)        Council and water rate instalments;
ii)       Household building and contents insurances: and
iii)      Repayments in respect of the mortgage to the Society.

9.2must keep the home and grounds tidy, clean and in repair (having regard to their present condition); and

9.3must permit inspection of the home by agents and prospective purchasers at all reasonable times.

The parties must do all acts and execute all documents to cause the proceeds of sale of the home to be paid as follows:-

10.1 the reasonable expenses of the sale including agent's commission and legal costs and disbursements;

10.2 to discharge of the mortgage to the Society;

10.3 any amount owing to his parents in respect of the debt in order1 or any
judgment for that debt;

10.4 any amounts payable to the wife under orders 3 and 4;

10.5 rate adjustments; and

10.6 the remainder to the husband.

Except as otherwise provided in these orders each party is declared to have no interest in the items of property in the possession the other.

Otherwise any outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF457 of 2005

MR SANSTON

Applicant

And

MRS SANSTON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This was a hearing of competing applications for alteration of property interests and also competing applications of the parties for parenting orders regarding their four children, B (aged 9), E (now 8), A (now 7) and Y (aged 5).

CREDIT OF THE APPLICANT WIFE

In cross-examination the wife was often evasive. She often volunteered unresponsive material in answer to questions. She did this despite several cautions from me.
Often when she avoided a question it was obvious that a direct answer to the question was not going to assist her case and that was why she was avoiding the question. However, she was generally direct in her answers and she freely made admissions against her interests at times. An example was that she made numerous admissions about incidents of her past behaviour being unsatisfactory in terms of the children’s interests.
In cross-examination in various ways, such as her answers in relation to the issue of her permitting the children to refer to Mr J as “Dad”, she appeared to have limited intellectual capacity and parenting insight, and to be somewhat immature for her age.
She was cross-examined about statements she made in an affidavit about payments of Child Support by the husband and arrears. Given the delays of the Agency in remitting amounts received, it appears that at the time she swore her affidavit, the figures she gave were true so far as she was aware. She said that the arrears of Child Support at the time were $4,452.89. Exhibit H2, which is the Statement from the Agency dated 5 October 2006, shows that the arrears at that date were $2,698.21. However, it appears that at 12 October 2006, a payment of $2,084 made on 3 October to the Child Support Agency, had not been paid to the wife. The arrears at 30 September 2006 before that payment were according to Exhibit H2, $4,897.32. It was not shown that the wife intentionally sought to deceive by the evidence she gave regarding the Child Support arrears.
The wife’s partner, Mr J, notified his Workers’ Compensation Insurer that the parties’4 children were dependant upon him. As a consequence his fortnightly compensation payments were increased. This occurred in about September 2006. According to Exhibit H2, the Child Support payable by the husband for the 4 children of the parties was reduced from about 1 September 2006 to about $995 per month, which is the equivalent of roughly $62 per week per child. Clearly the cost of keeping the children, given the research into the costs of keeping Australian children, was more than double the amount then being contributed by the husband by way of Child Support.
The cross-examination of the wife and Mr J on this issue may have been intended to reflect adversely on the credit of one or both of them. However, clearly the children were in fact being supported by Mr J from his Workers’ Compensation and also indirectly by the provision of accommodation for them in his home.
The wife testified in the latter stages of the hearing that since Ms P’s first report, the children had stopped calling their father “[N]” (his first name) and stopped calling Mr J “dad”. But from what the children said in the interviews in March 2007, it appears the mother’s evidence is false.
However, generally, the wife presented as an honest witness who at times avoided questions when she thought that answering the question would not assist her in the proceedings, but at other times freely made admissions against her interest. She was generally a reliable witness.

CREDIT OF THE RESPONDENT HUSBAND

The husband has a prior conviction for perjury when he was a young adult. It was clear from his cross-examination and other evidence that the husband, to reduce his child support payments for the children, knowingly made false representations to the Child Support Agency that he had had to purchase another motor vehicle in order to be able to transport the children when they were with him.
The husband left school at 15 in year 9. In some of his cross-examination he contradicted himself. He denied in cross-examination that he thinks it is more important for the children to spend time with him than to attend swimming lessons. Then he agreed with the proposition to the contrary. Then he refused to concede that these statements were inconsistent.
Overall he presented as very much a concrete thinker and seriously inflexible. He appeared to have very little insight into the conflict between himself and the wife and the effect of their children. He appeared to have some intellectual difficulties with the questions in cross-examination, which were quite extensive.
He was often evasive in his cross-examination and volunteered unresponsive answers. On some occasions he avoided the same question 3 times.
On 14 February 2007 the husband was cross-examined about events on 14 December when the children were in his care, but did not attend school. He said he could not recall. He agreed it was the last day the children were with him before the school holidays. When it was put to him that he allowed then to stay home from school that day, he on 3 occasions responded with, “I don’t remember”. It was put to him that he instead took them to the local pool and he replied, “I can’t recall. We’ve been there countless times.” When he was asked what he did with the children on the last day of their contact with him before the summer vacation, he said, “I don’t remember”.
In cross-examination about some photographs the children had brought home from a fishing trip with the wife and Mr J, the husband’s answers included repeated evasion and inconsistencies.

He often responded to questions by saying he could not recall or could not remember. In the witness box he presented as being under considerable stress and very contained. But the extent of his responses “I can’t recall” and “I can’t remember” to questions about significant events and recent events, was such that it appeared that either he had very serious memory problems or he was lying when saying he couldn’t remember.
The husband’s cross-examination was in February 2007. He subsequently attended an interview with Ms P on 14 March 2007 for the preparation of the second welfare report. She reported concerning his comments regarding his cross-examination:
6         [The husband] presented very differently in an individual session than he did in court as indicated by the transcript of his cross examination. He appeared much more frank and considerably more relaxed in the interview situation. Several questions were put to him about dates and time frames, some of these being deliberately out of context, and he seemed to be able to recall events and put them into context without a great deal of difficulty.
7         He was asked directly about his apparent attitude in the witness box and he said that he “shut down”. He said he could not cope with the way questions were asked of him and the fact he felt he was “treated like a criminal”. (One of the examples he gave which greatly distressed him was having been asked at length about his non attendance at B’s swimming carnival.) He said that he had the same feelings when [the wife] was being cross- examined and he wanted it to stop for her sake. He claimed that he asked his barrister if it could be stopped or if he could get her a glass of water. It was obvious that he realized that his attitude in the box had been unhelpful, and the description he gave of having “shut down” seemed to be rather appropriate in describing his answers to some quite simple questions.
8         At another stage he said that he became “absolutely deranged” in his thinking by the other barristers’ questions. He said he was quite upset when this happened as he came to court “not wanting to bag anyone”. (He continued this attitude during the interviews.)
The husband was ordered to attend a Parenting After Separation course approved by the Director of Child Dispute Services. But he did not contact the Director of Child Dispute Services to obtain the approval. He instead enrolled in a program with Unifam, which was not a Parenting After Separation course. He was informed by the Director of Child Dispute Services that it was not the course that he was ordered to attend. But he did not then enrol in and attend a Parenting After Separation course as the order required him to do. When he was asked why he did not do so, he said, “I haven’t been ordered by the Court to do so.” When the cross-examiner pointed out to him that he was ordered to do so and asked whether he should have attended the right course once he knew the Unifam course was not, the husband replied, “I’d like to make sure first”.
In re-examination, he said that he had become aware in October 2006 that the program he attended did not comply with the order of 31 January 2006. He said it also became apparent to him on 22 December 2006 that it was “the wrong course”. But he did not contact the Director of Court Counselling until late January 2007 to obtain a referral to a course which complied with the order. He said the delay was “because I had to work through the Christmas shut-down and had the children from 6 to 20 January and 24 to 29 January”. But that does not explain his delay from October to 22 December. It also does not explain his failure to arrange attendance at a course between October 2006 and December 2006 and between late January and the resumption of the hearing on 13 February.
In oral evidence-in-chief the husband testified about his involvement in the Aboriginal community since he swore his affidavit of June 2006. He said he had contacted the … Aboriginal Co-operative at … and attended monthly meetings ever since. He said the children had become members and have attended 2 meetings with him.
In cross-examination he said he made enquiries as to how he had Aboriginal blood. He was asked from where, and he said from … in the central coast area. But he said he had no idea how he is connected in tribal or a blood way with Aboriginal people. He said he had not made any contact with the central coast Aboriginal co-operative, but he said he had made contact with members of the tribal group. He said, “They are not at [...] anymore. They are at […], down south.” He said he had made contact by telephone with the people. He was asked who he contacted and he said, “relatives on my father’s side of the family.” When asked for names, he could not remember. When asked how many times he had contacted the people, he said he could not recall. When asked, “More than once?”, he answered, “twice”. He still said he could not remember who he contacted. He said he spoke to a female person the first time and a male person the second time. In answer to further questions he said he could not recall what relationship either person was to him, nor could he recall the Christian name or surname of either.
In addition, at times the husband evasiveness in cross-examination demonstrated attempts to control the process.
Overall the husband did not impress as a reliable witness. He was not as credible as the mother.

BACKGROUND – PARENTING CASE

The parties commenced cohabitation in 1992 when the husband was 20 and employed as an apprentice, and the wife was 17 and in her final year of high school. When they married in December 1997, the wife was about 3 months pregnant with B.
Between the commencement of cohabitation in 1992 and the final separation in 2005, the parties separated repeatedly. The husband told Ms P, the report writer, that they separated on 12 occasions. The wife said that there were many more. Ms P found that their relationship was “stormy” from the outset. Often the wife left home after an argument and took up residence with her parents. After B’s birth she took the child or children with her. The parties subsequently reconciled on each occasion until the final separation in February 2005.
B was born in June 1998, E was born in February 2000, A was born in June 2001, and Y was born in September 2002.
The parties purchased the former matrimonial home at W in October 2002.
The parties had a separation in May 2003. In early 2004 the parties separated and that separation lasted about 9 months.
The parties reconciled and the wife and children resumed living in the home with the father in December 2004 or January 2005.
There was another occasion at the start of the 2005 school year. In the evening the husband was cooking dinner. He lost his temper with the wife after she made a comment. He threw a colander containing hot cooked vegetables at the wife. The colander hit the wall and then fell to the floor. The wife was hit by some of the hot vegetables.
It was as a result of that incident the wife finally determined to end the marriage and the final separation occurred. She and the children left the home and took up residence at the wife’s grandmother’s home.
The wife returned to the jointly owned home on 2 February 2005 in the company of her father, a friend, and 2 Police Officers. She asked the husband if he would allow her to enter the home to collect the children’s clothing. She said, “I have not got much for them”. He replied, “No, you are not coming in. I have received legal advice and I have every right to refuse you entry into the home. You cannot have the children’s stuff.”
Not long after, the children and the wife moved to rented premises. The paternal grandparents borrowed furniture and other times for use by the wife and the children in that home and provided them with ongoing financial support from time to time for the purchase of food and other items.
In the school holidays in April 2005 the paternal grandparents and the husband took the 3 girls on a trip to Dubbo for 4 days. Y remained in the wife’s care, as the grandmother told the wife, “[The grandfather] and I can only handle the 3 girls at any 1 time”, and said they did not want to take Y as well.
In May 2005 the husband obtained full time work working for a company which provides labour to various organisations. He has continued in that employment.
The same month the wife met Mr J and formed a romantic relationship with him. On 25 May 2005 the wife commenced these proceedings. She sought orders for the children to reside with her and for them to spend time with the husband. The husband filed his response opposing the application and seeking that the children live with him for at least 4 weeks per annum in school vacations and for at a period of at least 48 hours in each week in school terms, the full extent depending on his availability under his work roster.
In August 2005 the parties reached an agreement as to the time the children would spend with the husband in the period from August to December. It comprised 6 days in August, 6 days in September, 4 days in October, 5 days in November, and 4 days in December, with additional time to be arranged for Christmas Day.
Pursuant to the agreement reached, the husband was to have time with the children on Y’s birthday in September or the following day. The wife organised to celebrate Y’s birthday early. The evidence of the paternal grandmother, which the Court accepts, is that two weeks prior to Y’s birthday she spoke with the wife and told the wife that they would prefer to have the children on the Saturday. But the husband failed to notify the wife as to which day he wanted to see the children. On the Friday night she telephoned him but there was no answer. He later telephoned her and she told him, “The children would like to know what the plans are for the weekend. What day and time will you collect them? No arrangements have been made.” The husband replied, “I am not collecting the children from you. You have to drop the children off and collect them from my parents’ home.” The wife then refused to do this and insisted that he would have to receive the children, not one of his parents. The husband replied, “You are such a slut”. The wife then aggravated the situation further by involving Mr J. She gave him the telephone and he then purported to dictate to the husband what the arrangements would be and lectured him on his responsibilities as a father. The husband then requested (obscenely) that Mr J give the phone to the wife, and then terminated the call.
On Saturday the paternal grandmother sent a text message to the wife asking, “When are the children coming to see us?” The wife, instead of organising arrangements for the children to visit the paternal grandparents persisted with her intransigence and replied to the effect that the children would only be coming when the husband contacted the wife and made arrangements.
The husband did not make any further contact with the wife about arrangements to see the children that weekend. Y and the other children were denied time with their father that weekend. Indeed, there was no contact after that. The husband then filed an interim application on 21 October 2005 seeking contact with the children. It was returnable on 21 November. The wife did not make any attempt to negotiate an arrangement in the period of about a month between service of the application and the return date or to facilitate contact for the children.
There was a document recording agreement between the parties that the children would be with their father for the weekend of 21-23 October 2005. When the husband telephoned the wife on the morning of 22 October to arrange to collect the children, she informed him that as a result of some letters she had received from her solicitor, “You are not having the children”. He attempted to persuade her but she refused to facilitate the contact. She said, “You’re not having them because you are working and your mother and father are not having the children.” The husband did not give evidence that he was not working that weekend or that he told the wife that he was not working, so it appears that he was in fact working. However, it appears that the wife’s behaviour in frustrating an agreed arrangement and refusing to allow the children to spend a weekend with their father was contrary to the children’s interests.
The husband was not working at all in the following week. He had a telephone conversation with the wife requesting that the children have time with him in that week. The wife refused.
From the period of about 28 October 2005 to about 11 November 2005 the husband telephoned the wife on her mobile telephone number on virtually every day. On each occasion the call either rang out or was connected to a message bank facility. He left a number of messages for the wife to call him. She did not return the calls. It had been agreed in August that the children would spend a day in early November 2005 with the husband and his family when they were to celebrate the 60^th birthday of the paternal grandfather. It was particularly important to the husband and his family that the children be there to participate. But the wife did not facilitate contact on that day. She went away over that period to a fishing competition at Coffs Harbour with Mr J. She did not consult or notify the husband. The evidence does not disclose where the children stayed for that time, but it appears they did not go with the wife. She did not offer to have them stay with their father.
On 11 November 2005 the husband went to the girls’ school in an attempt to see B and E before school. The wife delivered the children to the school and then observed the husband sitting outside the school gate. The wife alleges she then was “extremely concerned for the welfare of [B] and [E]”. She gave no evidence to justify any such concerns. The girls were delighted to see their father and cuddled and kissed him.
It appears her behaviour was hysterical. She was in her car driving. She turned the car around and parked and then went to the children. They were with the husband and he was holding them. When the wife approached B and E became very distressed and cried. She tried to physically separate B from her father. The husband resisted. The wife then insisted that the husband release the children. But the husband then said that he would not and that he was going to take them from school and take them home for the day.
The wife then argued with the husband. He released the children. Apparently the wife was satisfied that they were not so distressed that they could not then attend school, so they did. The wife went to see the principal of the school about the incident and about the husband coming to the school.
Despite the wife’s behaviour outside the school, 10 days later, on 21 November 2005 she consented to interim orders providing for the children to reside with the wife and spend time with the husband in accordance with paragraphs 2 and 3 of the wife’s Response to an Application in a Case filed 21 November 2005 viz:
2.        That the children have contact with the Father:
2.1 Should the Father's work roster require him to work of a weekend:
(a)      Each alternate week from 9.00am on Tuesday until 7.00pm on Thursday to commence the first Tuesday after these Orders are made;
(b)       at such other times as agreed between the parties.
2.2 Should the Father's work roster require him to work during week days:
(a) Each alternate weekend from after school on Friday until 6.00pm on Sunday to commence the first weekend of each school term in odd numbered years and the second weekend of each school term in even numbered years;
(b)      at such other times as agreed between the parties.
2.3      During gazetted school holiday periods:
(a) for the first half of all school holiday periods in odd numbered years from 5.00pm on the last day of the school term until 5.00pm on the day midway through the holiday period;
(b) for the second half of all school holiday periods in even numbered years commencing at 5.00pm on the day midway through the holiday period and ending at 5.00pm on the day before the commencement of the next school term;
(c)from 4.00pm Christmas Day until 4.00pm Boxing Day in even numbered years;
(d)      from 9.00am on Father's Day;
(e)      at such other times as agreed between the parties.

3. That the children's contact with the Father be suspended:
(a) on Mother's Day each from 9.00am;
(b) from 4.00pm Christmas Day until 4.00pm Boxing Day in odd numbered years.

The orders for 21 November 2005 provide for the change-overs to occur at the wife’s place of residence. That was specified in the orders as being “[S Street, W]”. The wife’s landline telephone number was also specified.
The children had participated in Little Nippers at the local surf club and for a couple of seasons and the husband was their coach. There were occasions on very hot days in December 2005 when the husband took B and E out of school at about 2pm and then went with all 4 children for a swim. On one occasion when he did this was the last day of school in 2005. They missed school for the whole of that day, but the husband consulted their teachers the day before and had their agreement that it was acceptable for him to take the children out for the day.
However, on none of these occasions did the husband consult the wife or obtain her approval. Consequently, in these proceedings it became an issue raised by the wife that the husband on some occasions has failed to ensure B and E attended school.
The husband had the children by agreement from 26 December 2005 until 10 January 2006. When he collected the children the wife spoke to him and reminded him that she wanted to be able to speak with the children by telephone because they had not been away from her for any significant amount of time. She said they could ring her whenever they wanted to and she would call his mobile telephone every couple of days. She also gave him a note regarding arrangements for the children in that period which included a note: “Phone contact for all parties throughout the entire holiday period”.
The husband did not facilitate any telephone calls by the children to the wife during the period they were with him. The wife telephoned the home of the paternal grandparents on 28 December and A answered the phone. This was the only telephone communication that the children were able to have with the wife during the period they were with the husband. The wife telephoned the husband’s mobile telephone number on numerous occasions and left messages for him to return the calls. She also telephoned his landline at home and left messages there. He did not return any of her calls.
On 3 January she drove to the husband’s home to see if the children were there and safe. She observed the paternal grandmother’s car there and the paternal grandmother was hosing the back verandah. She asked the paternal grandmother whether she had seen the husband or the children, and she replied, “I think they’ve gone somewhere up the coast.” The wife asked where and explained that she had not had any of her calls answered. The paternal grandmother replied, “I’m not telling you”. The wife asked the paternal grandmother when the husband was going to call her and the paternal grandmother replied, “I don’t know. I’m not able to tell you when or if the children are going to return.”
The wife then went to the Police and returned to the home with Mr J. She begged the paternal grandmother to tell her where the children were. She said she was concerned that the husband had “gone and won’t come back”. It appears there was no basis for any such belief. She said, “Why are you and (the husband) lying to me about where the children are and not telling me when they will come back? I am their mother. I want to know where they are, that they are safe, and how I can contact them.” The paternal grandmother refused to tell the wife where the children were or when they would return. She asked the wife to leave the property. The wife, who is one of the joint owners of the property, refused to leave and told the grandmother to leave. The grandmother refused to leave and then telephoned her husband and the Police.

When the paternal grandfather arrived, there was then some obscene abuse by him of Mr J and disparaging statements about the maternal grandmother and Mr J’s mother. The paternal grandfather spat on Mr J. He spat in the direction of the wife. He pushed Mr J in the chest and said, “Come on, what’s wrong with you? You’re young enough to have a go!” He was within inches of Mr J’s face. The Police then arrived and the paternal grandfather backed away.
The Police spoke with those present and then the wife and Mr J left.
Further interim orders were made on 31 January 2006 as follows:
1.The children [B] born […] June 1998, [E] born […] February 2000, [A] born […] June 2001 and [Y] born […] September 2002 (“the children”) reside with the father as follows:
1.1In each period of two weeks:
Week 1
From the commencement of school or 9.00 am whichever is the earlier on Tuesday until the commencement of school or 9.00 am whichever is the earlier on the following Friday.
Week 2
From conclusion of school or 3.00 pm whichever is the later on Wednesday until 9.00 am or the commencement of school whichever is the earlier on the following Thursday.
1.2For the second half of all school holiday periods in even numbered years (other than the term 4 holidays) from 5.00 pm on the mid-point day until 5.00 pm on the day prior to the commencement of school.
1.3On Father’s Day from 9.00 am until 5.00 pm.
2.That the children reside with the mother at all other times.
3.That for the purpose of implementation of changes of residence between the parties:
3.1in respect of those children who are then enrolled at and attending school, the mother deliver the children to school at the commencement of the father’s period of residence and the father deliver the children to school at the conclusion of that period of residence;
3.2in respect of those children who are not then enrolled at and attending school, the father collect that child or those children from the mother’s residential premises at the commencement of the father’s period of residence and the mother collect that child or those children from the father’s residential premises at the conclusion of the father’s period of residence;
3.3for any period of residence commencing or concluding on a non-school day, the father collect the children from the mother’s residential premises at the commencement of the father’s period of residence and the mother collect the children from the father’s residential premises at the conclusion of the father’s period of residence.
4.That the father will ensure the child [Y] attends the pre-school at which he is presently enrolled on each Tuesday of the father’s residence.
5.That within three months of these orders each of the parties attend to complete a course in parenting after separation as approved by the Director of Court Counselling at the Family Court of Australia at Newcastle and contact the Director of Court Counselling at the Family Court of Australia at Newcastle within seven days of these orders to arrange attendance at such a course.
6.That each party be responsible for the day-to-day care, welfare and development of the children when in that party’s care.
7.That each party be restrained from discussing these proceedings or any other litigation involving the parties in the presence of the children.
8.That each party be restrained from denigrating the other party or any other member of the other party’s household or family in the presence of the children or allowing any other persons to denigrate the other party or any member of the other party’s household or family in the presence of the children.
9.That the children have reasonable telephone contact with the parent with whom they are not resident and to facilitate such telephone contact each party shall provide the other with a landline or mobile telephone number.
10.That each party notify the other as soon as practicable upon the happening of the following:
10.1the children, or any one of them becoming seriously ill;
10.2the children, or any one of them being hospitalised;
10.3the children, or any one of them being involved in a serious accident.
11.That each of the parties instruct any treating physician that he/she takes the children, or any one of them to, to discuss with either the father or the mother (as the case may be) any issues that relate to the health of the children or any one of them.
12.That the issue relating to term 4 holiday and Christmas contact be adjourned to a date following completion by each of the parties of the parenting after separation course and each of the parties have liberty to apply on seven days’ notice in relation to this issue.
13.The mother be restrained from seeking to re-enter the premises at [the former matrimonial home at W] and from attending at those premises except for the purpose of handover of the children pursuant to the Orders of this Court.
14.The mother be restrained from:
14.1denigrating the father in the presence or hearing of any of the children;
14.2causing, encouraging or permitting any other person from denigrating the father in the presence or hearing of any of the children;
14.3referring to the father in the presence or hearing of any of the children by any term other than “father” or “dad” or “daddy”;
14.4causing, encouraging or permitting any other person to refer to the father in the presence or hearing of any of the children by any other term other than “father”, “dad” or “daddy”;
14.5causing or encouraging any of the children to refer to any person other than the father by the terms “father”, “dad” or “daddy”;
14.6doing any act which would have the effect of causing or requiring any of the children to change her current school or pre-school.
At the start of the 2006 school year the wife enrolled A in a “Young Starters” program at B School. She did this without consulting or notifying the husband and as a consequence he subsequently took proceedings to restrain the continuing attendance of A at the program. When A was enrolled, she was only 4¼. Her 2 older sisters were attending W Public School. It was the husband’s wish that all of the children attend the same school.
At the start of the 2006 school year Y began preschool.
Despite the order of 31 January 2006 for the parties each to attend a Parenting After Separation course approved by the Director of Court Counselling, the husband failed to obtain the necessary approval and enrolled in a different course. He did not attend a Parenting After Separation course. The wife eventually did and completed the course.
Sometime prior to the wife commencing cohabitation with Mr J at his home in March 2006, she told the husband in telephone conversations and telephone messages that he would have to collect the children from Mr J’s home. She was not entitled to dictate in that way as the Orders already provided where the change-overs were to occur. There was a need to consult with the husband and seek his agreement. If his agreement was not forthcoming, then the proper way to approach the matter would be to have the Court vary the Order and in the meantime comply with the Order. But the wife did not do that.
For his part, the husband was just as bloody minded. He insisted on using the landline telephone number of the wife’s residence although the calls were unsuccessful except on some occasions they were connected to a message bank. He also insisted on going to the wife’s address at S Street, W even though he knew the children were not going to be there. All of this bloody-minded behaviour of the parties was directed at furthering their conflict and ignoring the children’s needs for the conflict to stop.
On 13 March 2006 the wife commenced cohabitation with Mr J when she and the children began residing in his home at B.
Further interim orders were made on 14 March 2006. Those orders were made upon the hearing of an application by the husband to restrain the wife from continuing the enrolment of A in the early starters program. The Judicial Registrar who heard the application ordered that the husband’s application be dismissed.
By 15 March 2006 the husband was aware that the premises at S Street were vacant. He knew that the wife and the children had moved. He continued to telephone her leaving messages requesting that she let him know where he could collect the children because the S Street address appeared to be vacant. He went to the address at S Street and waited there on 15 March although he knew the wife had told him she would not implement the change-over there and that he would have to collect the children from Mr J’s address.
He then went and collected B and E from W Primary School. Subsequently the wife telephoned his parents’ home. He asked her where the 2 youngest children were so that he could collect them. She said, “You know where they are”. He said, “The only address that has been supplied to me is [S Street, W]”, and, “That property appears to be vacant”. He then asked the wife again for the address for collection. She repeatedly told him, “You know where they are”. Finally she gave him the address of Mr J’s home. On the balance of probabilities the husband already knew where Mr J lived. The conversation between the parents was motivated by bloody-mindedness of each of them.
The husband then went with his mother and collected A and Y. In the course of the collection Mr J yelled obscene abuse at the husband and the paternal grandmother from his upstairs verandah. The paternal grandmother responded by shouting, “Go inside. This is none of your business.” The husband responded to Mr J by shouting abuse at him
When the husband collected Y on 24 March 2006, the wife shouted at him, “You are a drug addict and you need a lot of money to buy me out of the house.”, and, “Your job supports me and him (Mr [J]). He is buying beer and packing the boat to go fishing right now.”
The husband did not discover until 29 March 2006 that Y had been enrolled at preschool on Fridays. The wife had done this without his consent or consultation.
B and E had a school sports carnival on 6 April 2006, and A had a presentation day that afternoon. After the presentation the wife arrived and there was an ugly altercation between her and the husband in front of A and A’s teacher. The wife called A away from the husband shouting that it was not “his time” to see her. A was distressed and crying. The husband had arranged with the teacher to donate money in exchange for a painting A had done. When the teacher gave him the painting, the wife snatched it from him and said, “Its mine; not your’s”. As the wife left with A, she shouted threats to the husband that she was going to make it “hard” for him to see the children. The wife also left an obscene and abusive telephone message for the husband that day.
The wife attended the husband’s home on 13 April 2006 to collect Y. She said to the husband in the presence of Y, “You are a drug addict. Go and have a couple more bongs. You are a fucking hopeless father. It’s just as well the kids have a new one.”
In April 2006 the children spent time with the husband during the Easter holiday period. Notwithstanding the Court orders he did not facilitate any telephone contact by the children with their mother and did not return any messages the wife left on the landline and mobile answering services. He did not respond to SMS messages on his mobile telephone. The Orders provided for the children to be returned the day before school resumed. The wife purported that because Y was to go to preschool on 1 May 2006, the Orders required the husband to return the children the day before that. She went to the husband’s home on 30 April purportedly to collect the children.
When the wife went to the husband’s home that day, her solicitors had already received and communicated to her a letter of 21 April from the husband’s solicitors advising the children would be with him until Monday, 1 May. On her instructions her solicitors had then responded on 27 April claiming that the effect of the Order was to require the return of the children on Sunday, 30 April. The husband’s solicitors had advised that the husband did not agree with the wife’s interpretation. The wife’s solicitor on her instructions had then written on 28 April advising that she would attend on 30 April to collect the children from the husband’s residence. On the balance of probabilities the wife knew that that was quite unreasonable because the Order did not refer to “preschool”; it referred to “school”.
At the husband’s home the wife saw the husband and the paternal grandparents, and the husband’s brother. The husband did facilitate the children’s departure with the wife that day. However, the paternal grandfather followed the wife to the car and an argument then ensued between him and the wife as to whether the children were due to be with the husband during the following week. The husband then engaged Mr J in conversation. The paternal grandfather then abused the wife saying, “You need your head read. You have serious psychological problems. Serious head problems.”, and approached her. The wife then asked the paternal grandfather whether he was threatening her and, “Are you going to hit me?” The paternal grandmother came from inside the home and put her arms around the paternal grandfather. They then moved away from the wife. The husband then blew kisses in the direction of Mr J. The paternal grandfather walked over to the husband and said, “They are nothing but dog shit”.
The children witnessed all of this ugly behaviour of people they love towards others they love.
The wife collected the children from the husband’s home on Monday, 1 May 2006. When the husband answered the door the children were with him and she said to the children in his presence and the presence of the paternal grandparents, “Go out to the car, Daddy has a surprise for you”. The husband responded, “It is against Court orders for you to refer to [Mr J] as the children’s father”. The wife did not respond. She left.
The husband followed her to her vehicle. He told her, “Don’t forget I have access again at 3pm tomorrow. I’ll pick them up at 3 o’clock and 3.30.” She told him, “No, you are not having the children”. The husband was standing at the passenger side door of the vehicle while the wife was putting the children into the car. He then noticed that Mr J was sitting in the passenger side of the vehicle with a camera aimed at the husband. The paternal grandfather was also present. When Mr J volunteered an insult to the husband, the paternal grandfather intervened in the argument between the parties saying, “[wife’s name], its [the husband’s] week this week.” He then told Mr J and the wife, “You both have serious problems. You need your heads checked.” to which the wife replied, “You don’t care about the kids.” The paternal grandfather then continued, “All you care about is what comes out of a bottle. At least I don’t leave the kids with anyone I can find to go get drunk.” In response the wife rushed at the paternal grandfather and he said, “Don’t run at me you fool.” The wife then got into the car and drove off with Mr J and the children.
On some previous changeovers the husband has called the wife “dog shit” and yelled “You’re nothing but a slut”. He has also yelled at her, “You need your head read”, and called her “a slut”. This has been in the presence and hearing of the children.
On Friday, 5 May 2006 when the wife collected Y from the husband, she said to Y in the presence of the husband and his parents, “Are you ready to go fishing with your Dad?” She was referring to Mr J.
On 9 May 2006 the wife attended on Police and swore complaints supporting the issue of apprehended violence summonses against the husband and the paternal grandfather concerning the incidents on 1 May. The apprehended violence proceedings came before the Local Court on 25 May 2006 and were resolved by agreement. The complaints were dismissed upon undertakings being given by the husband and his father (without admissions) not to intimidate, interfere with or otherwise harass the wife. One of the Undertakings given by the husband and his father was that they would not go within 50 metres of the wife.
On 29 May 2006 a separate representative was appointed for the children.
Ms P was appointed to prepare the welfare report in the proceedings. Ms P hold the following formal qualifications:
Bachelor of Arts (1961), Bachelor of Laws (1964), Graduate Diploma of Education (1976), Graduate Diploma of Counselling Psychology (1988), Master of Education Counselling Psychology (1991), and Master of Laws (1998).
Ms P worked as a solicitor from 1964-1966, then as a Teacher and School Counsellor from 1981-1993 (but on leave for period from 1989-1993), then as a Psychologist/Welfare Officer from 1990-1992, and subsequently as a Counsellor with the Family Court from 1993 onwards.
Ms P conducted interviews and observations for the report on 18 May. That day the paternal family went to a nearby park to eat lunch. The wife, Mr J and the children were on the other side of the park. When the husband and the paternal grandparents called out to the children, inviting them to come over, the wife and Mr J did not facilitate that, but instead moved the children further away from the paternal family. Mr J included material in his affidavit suggesting that he perceived that the conduct of the paternal family of wanting to speak to the children on that occasion was inappropriate.
The report was released on 8 June. The report concludes with the following findings, conclusions and recommendations:
COUNSELLOR ASSESSMENT
69       While both parents had quite a number of negative things to say about one another, these appeared to be negativities which go mainly to their relationship rather than to the quality of the relationship of each of the parents to the children. Neither is saying that the children’s relationship with the other parent is unimportant or should be limited to a very small time frame. Both appeared, at least while at the court, to have been promoting the relationship between the other parent and the children.
70       Many of the issues between them at the present time may be related to the property issues and these also have some effect on the supporting family members. [The paternal grandparents] obviously were financially supportive to their son and his wife. It will also be important both to [the wife] and Mr [J] to be able to consider their own financial future after their property settlements are concluded. When these are over there may be some chance of animosities between the parents settling.
71       [The husband] is correct in that Mr [J] is being promoted in the mother’s family as a father figure. It does not appear as if the mother is trying to alienate the children from their father but rather to integrate her family with Mr [J] as a significant figure. It is, however, both inappropriate and inflammatory to allow the children to call him “Dad” or let [Mr J’s daughter, V] call [the wife] “Mum”.
72       [The husband’s] application appears to be somewhat impractical. While it is important for the children to maintain a good relationship with their grandparents it is not as significant as their relationship with their parents. Whilst so ever [the husband] is not available to have the children himself at weekends, it is not practical for him to have them on a week and week about basis. This would mean that his parents would virtually have the children for the greater portion of every second weekend despite the fact that their mother is available.
73       However it seems to be appropriate for the father to occasionally see them on weekend mornings and for his parents, or his nominee to have the care of them in the evening and night.
74       The mother is agreeing to holiday contact but is concerned that the children should be returned to her for the last weekend of the school holidays. She contends that that this weekend should not be included in the holiday period. While it is important that the children spend the full half the holiday with their father, her argument that the children, who are very young, need a settling down period before the start of school may be quite appropriate . It may be that this situation could be resolved by the mother always having the second half of mid-year school holidays.   If this is not satisfactory on a particular occasion, then it would appear that her holiday may have to be two days and six days rather than eight days straight. It would also appear that there need to be set orders for allocating public holidays that fall outside school holidays and pupil free days.
75       It is recommended that the parents have alternate Christmases and a pick up time about 4.00pm on Christmas Day, as the mother requested, would appear to be appropriate. In this case the other parent should have Boxing Day.
76       While the children are so small it would appear that a three week period over the Christmas Holidays would be a long time away from the other parent and ten days or two weeks at most should be ordered for the next two years at least.
RECOMMENDATIONS
77       It is recommended that the children reside with their father as follows:
a)        For four consecutive nights and days during one week each fortnight commencing from before school on Monday morning, after the mother has delivered the children to school, until before school on Friday morning, when the father has delivered the children to school.
b)        For the fifth weekend of every term commencing from after school Friday until before school Monday.
c)        For half the school holidays, with the children returning to their mother on the Saturday morning of the last weekend of the holidays and such weekend to be part of her half of the holidays..
d)        For alternate Christmas Days until 4.00pm. For alternate birthdays of the children for four hours after school on the birthday alternating with the day before the birthday if the children are with their mother on both of those days.
78.      It is recommended that the children reside with the mother at all other times.
79.      If the children are with their father on both a child’s birthday and the day before, then it is recommended that the mother have four hours alternately either on the birthday or the day before the birthday, as for the father.
80.      It is recommended that pick up and drop of is at school and preschool and, where this is not possible as during holiday periods, should be between the mother and the maternal grandmother with no other adult attending the actual pick up or drop of point, which should ideally be at one of the parties homes each time.
90.      It is recommended that the commencement of the father’s week for the children is specified very clearly vis-a vis the holiday periods.

MATTERS UNDER SUBSECTION 75(2) OF THE FAMILY LAW ACT

The husband is now almost 36 years of age and the wife is 33. The husband generally enjoys good health. It may be that he has some continuing addiction or depression or other mental health or behavioural problems from his long term use of cannabis, but the evidence does not permit any definite findings. The wife’s evidence is that she enjoys excellent health.
The wife has the physical and mental capacity to work full time as a nurse. There is no evidence to establish that the back injury she suffered in 1996 now impairs her capacity to do that work. The husband has the physical and mental capacity to continue full time work as a labourer. Orders based upon the findings as to contributions would see each of the parties with property (including superannuation) and liabilities to a net value of about $152,000.
The husband’s income from his work is about $2,380 per week. That is his earning capacity. The wife’s income apart from Child Support is a Family Tax Benefit of $150 per week. Her earning capacity is the wage she could earn from full time work as a nurse, which is not quantified by the evidence.
The wife has most of the care and control of the 4 children of the parties under 18. That can be expected to continue for more than 8 years for B, nearly 10 years for E, more than 11 years for A, and about 12.5 years for Y.
The husband has commitments for Child Support for the children and otherwise only for his own support. The wife has commitments for the support of herself and the children. Her commitments for the children include swimming fees, school fees, school excursions, as quantified at para 208 of her main affidavit (about $100 per week), plus clothing, footwear, food, pharmaceuticals, motor vehicle expenses, and their share of household expenses.
Neither party has a responsibility to support anyone other than the children.
The wife is entitled to receive the Family Tax Benefit she is receiving.
The wife’s income from the family Tax Benefit is not sufficient to provide her with what is in all the parties’ circumstances a reasonable standard of living. She is largely dependant upon financial and other assistances from Mr J and her parents to support the children and herself.
During the cohabitation the wife completed numerous courses and in 1998 qualified as a nurse. In 1995 the husband undertook training to work as a labourer. The children were all born after the training the parties undertook. The evidence does not establish that either of them contributed to the earning capacity of the other.
The parties cohabited for more than 11 years and were married for more than 7 years before the final separation.
There is a need to protect the wife in that she proposes to continue the role she had before and since separation as a full time parent and homemaker. She swore in her affidavit of 26 June 2006, that she proposed to not resume paid work until after Y commences school. He commenced school at the start of this school year. In her oral evidence in 2007 the wife testified that she does not propose to return to paid work in the near future.
The mother is cohabiting with Mr J and the financial circumstances of the cohabitation have been described.
At the close of the hearing it appears the child support payable by the husband for the 4 children was approximately $2,163 per month. In the absence of evidence of any subsequent change, that is found to be the current rate.

SUBSECTION 79(2) OF THE FMAILY LAW ACT.

Subsection 79(2) of the Act provides:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order
The matters under subsection 75(2) that weigh in the husband’s favour are the wife’s entitlement to a Family Tax Benefit, the Child Support he is providing and will provide towards the children’s support, and the accommodation and financial support the wife receives from Mr J.
The matters under the subsection that weigh in the wife’s favour are:
·    the husband’s much greater earning capacity;
·    his much greater income;
·    her much greater responsibility for the future care and control of the children;
·    her responsibility for part of the financial support of 4 children (the child support is less than $110 per week per child);
·    the need to protect the wife so that in the short term she can continue the role of homemaker and full time parent to the 4 children; and
·    what in all the circumstances of the parties would be a reasonable standard of living for her.
The matters under the subsection support a significant adjustment in the wife’s favour. Because the pool of property and liabilities is relatively small, any adjustment should be measured in dollars rather than as a percentage of the pool.
The just and equitable result is for the property and liabilities to be divided in a ratio of $104,190 to the husband and $200,000 to the wife.   This would be implemented by the parties retaining the following property and liabilities:
Wife: motor vehicle and her superannuation  $ 21,000
Cash adjustment payable by husband
or from sale of home  $179,000
Total  $200,000
Husband: the home  $315,000
Nissan, superannuation and
household contents  $ 33,000
subtotal$348,000
Less
Mortgage balance                 $ 63,310
Debt to his parents               $    1,500
Payable to wife  $179,000
$243,810
Nett total$104,190
The husband should have one month to pay the sum of $179,000 to the wife, after which interest would accrue and the home would be sold and the outstanding amount and interest paid from the sale proceeds.
The husband seeks to acquire the home and pay a lump sum to the wife. If he does not do so and is able to remain in the home until the sale is completed, then given their poor communications and poor relationship between the parties, thee wife should have the conduct off the sale and be able to sign documents for the sale on his behalf.

________________________

The Hon Justice Mullane

2 April 2008

[2008] FamCA 303

2 April 2008

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