SEARES & SEARES

[2020] FamCA 959

FAMILY COURT OF AUSTRALIA

SEARES & SEARES [2020] FamCA 959

FAMILY LAW – CHILDREN – With whom a child spends time – Family violence – Where the mother seeks that the children remain living with her and spend time once monthly with the father supervised at a contact centre – Where the father seeks that the children spend gradually increasing unsupervised time with him such that they live in an equal shared care arrangement after four months – Where the father perpetrated family violence against the mother and exposed the children to it – Where the father’s commitment to maintaining an ongoing relationship with the children is questionable – Where the father will continue to spend supervised time with the children at a community contact centre for two hours a fortnight until he has completed certain courses – Where the father will not spend any face to face time with the children without further order or agreement if he cancels or fails to attend any scheduled session at the contact centre within the first three months, except in cases of genuine medical emergency – Where if the father has complied with the orders he will commence spending gradually increasing unsupervised time with the children such that they eventually spend each alternate weekend with him.

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the wife seeks a property adjustment order which sees her receive all the funds held in a solicitor’s trust account from the proceeds of sale of the former matrimonial home and a $20,000 ‘split’ of the husband’s superannuation – Where the husband seeks 50% of the net pool of property – Where the contributions are assessed as 67.5% to the wife and 32.5% to the husband and a further adjustment of 10% in the wife’s favour is appropriate.

Family Law Act 1975 (Cth)

Doherty & Doherty  [2016] FamCAFC 182
Furnari & Furnari [1998] FamCA 171
Ward & Schembri (2005) FLC 93-229

APPLICANT: Ms Clyde (formerly Seares)

RESPONDENT: Mr Seares

INDEPENDENT CHILDREN’S LAWYER: Amanda Smerdon

FILE NUMBER: BRC 5047 of 2016

DATE DELIVERED: 19 November 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 29 & 30 June and 1 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fraser

SOLICITOR FOR THE APPLICANT: Hartley Healy

COUNSEL FOR THE RESPONDENT: Ms Chekirova

SOLICITOR FOR THE RESPONDENT: A P Hodgson & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Smerdon

Legal Aid Queensland

Orders

Parenting

1. That all previous parenting orders and notations be discharged.

2. That the children, X born … 2012 and Y born … 2012, (“the children”) shall live with the mother.

3. That the children shall be known for all purposes as X and Y and the parties shall do all things necessary, if they have not done so already, to ensure that the details of the registration of the births of the children contained with the Queensland Registry of Births, Deaths and Marriages are formally amended to reflect the fact that the children’s last name is CLYDE-SEARES.

Parental responsibility

1. That the parents shall have equal shared parental responsibility for any change to the children’s names and any decision about moving the children’s residence to a location that makes their spending time with the father pursuant to these Orders significantly more difficult.

2. That aside from the matters referred to in Order 4, the mother shall have sole parental responsibility for the children, save for that, except in case of emergency, prior to making a decision about a major long-term issue in respect of the children (as that term is defined in s 4 of the Family Law Act 1975 (Cth)), the mother shall:

   (a)notify the father in writing as far in advance as possible of the decision to be made, of her proposed decision and reason/s for this, provide a timeframe in which she intends to make the proposed decision, and state a timeframe in which the father would need to respond to her if he wished to do so;

   (b)permit the father to respond to her in writing within her stated timeframe with any input he wishes to have to the decision and the reason/s for this; and

   (c)consider any input and reason/s advised by the father, with respect to the children’s best interests, before notifying the father in writing of her ultimate decision and reason/s for this, noting that she will ultimately have the sole responsibility for making any such decision.

3. That in the event that the mother is required to make an emergency decision about a major long-term issue regarding the children, the mother shall provide written notice of her decision and reason/s for this to the father as soon as practicable thereafter.

Spend time and communicate with

1. That the father is at liberty to have his elder daughter Z present during any supervised time that the children spend with him pursuant to these Orders.

2. That unless otherwise agreed in writing between the parents, save for when occurring at the children’s school pursuant to these Orders, all changeovers for the children’s time with the father shall take place at a community based, non-commercial children’s contact service and be supervised by that service and such service shall be selected by the mother and advised by her to the father, in writing, within two weeks of the date of these Orders.

3. That all fees charged by any such children’s contact service shall be paid for by the father.

4. That the parents shall each keep the selected children’s contact service informed of their respective emergency contact telephone number and an email address to be contacted on and each parent shall take all necessary steps reasonably required of them by the children’s contact service so that supervised changeover can be maintained and facilitated.

5. That the children shall such spend time and communicate with the father as agreed between the parties in writing, and otherwise as follows:

   (a)for the first three months following the actual commencement of the use of a community based, non-commercial children’s contact service after the date of these Orders, for one visit of up to two hours per fortnight, supervised at that children’s contact service referred to in Order 8, at times as can be accommodated by the service and arranged between the parents and the service;

   (b)once the time in Order 11(a) above has occurred and the father has satisfied the provisions of Orders 34 and 35, time on each alternate weekend for another three months, being day visits from 9.00 am until 12.00 pm on each Saturday and Sunday (ie six alternate weekends comprising 12 separate visits);

   (c)once the time in Order 11(b) above has occurred, time on each alternate weekend for another three months, being day visits from 9.00 am until 4.00 pm on each of Saturday and Sunday (ie six alternate weekends comprising 12 separate visits);

   (d)once the time in Order 11(c) above has occurred and provided the father has met the requirements of Orders 30, 34 and 35 (or as otherwise agreed between the parents specifically regarding the timeframe for completion of the course or program), time on each alternate weekend for another three months, from 9.00 am Saturday until 5.00 pm on Sunday;

   (e)once the time in Order 11(d) above has occurred, then for time on each alternate weekend, from 5.00 pm on Friday until 5.00 pm on Sunday;

   (f)until the period of 12 months following actual commencement of the children’s time with the father after the date of these Orders has elapsed, communication on special days, being, Christmas Day 2020, Father’s Day 2021 and the children’s birthdays in 2021, by way of a telephone call between the children and father as initiated by the father to the children between 7.00 am – 7.30 am, unless otherwise agreed between the parents;

   (g)once the period of 12 months after the actual commencement of the children’s time with the father after the date of these Orders has elapsed and provided Order 12 has not been enlivened, then as follows;

   (i)during school holidays, for a week in each of the children’s end of Terms 1, 2 and 3 holidays, being the first week in even numbered years and the second week in odd numbered years, and for two consecutive weeks during the Summer (December/January) school holidays being the first fortnight in December in even numbered years and the second fortnight in alternate years, with changeovers at school on school days;

   (ii)notwithstanding any other Order, for Christmas, in even numbered years from 2.00 pm on 24 December until 10.00 am on 25 December and in odd numbered years from 10.00 am on 25 December until 2.00 pm on 26 December (the children to be with the mother in even numbered years from 10.00 am on 25 December until 2.00 pm on 26 December and in odd numbered years from 2.00 pm on 24 December until 10.00 am on 25 December);

   (iii)on Father’s Day, if not already spending that weekend with the father, from after school on Friday of that weekend (3.00 pm if a non-school day) until 5.00 pm on Sunday, with changeover on Friday at school, without causing any suspension or variation to the alternate weekend routine otherwise in place;

   (iv)on the children’s birthday’s each year, if not already spending time with the father on that day, by telephone, with the father to initiate the call to the children between 7.00 am – 7.30 am;

   (v)the father is at liberty to attend at student functions and events at the children’s school that parents are welcome to attend, but he is not to remove the children from their school and neither parent is to approach the other parent on school grounds or in the vicinity of the school.

6. That once the fortnightly supervised visits provided for in Order 11(a) commence, should the father cancel or otherwise not attend any of the visits during the first three month period, aside from circumstances where he is involved in a serious medical emergency that prevents him from attending, the children shall not spend further face to face time with the father without a further order of the Court or written agreement between the parents and they shall instead communicate with him by telephone (pursuant to Order 15) and in writing, with the father and children at liberty to send each other letters, photographs and gifts.

7. That should the father be unable to attend a visit as referred to in Order 11(a) for the reason of a serious medical emergency, he shall produce to the mother within seven days of cancelling the visit, a letter from his treating medical practitioner which outlines the details of the medical emergency and how long he was/is incapacitated for.

8. That if the father will be communicating with the children in writing pursuant to Order 12, the mother shall advise the father of a contact address where he can send the children written correspondence, photos or gifts.

9. That the children shall have telephone communication with the parent they are not in the care of at 6.00 pm on each Wednesday, and on the children’s birthdays, with the parent who does not have the children in their care initiating calls to the children on a telephone number to be provided by the other parent for this purpose and the parent with the care of the child shall ensure that the children are available to receive the calls and that they participate in the calls.

10. That if Order 12 has taken effect and the father is not spending face to face time with the children, the children shall continue to communicate with him on special days, being Father’s Day, Christmas Day and the children’s birthdays, by way of a telephone call between the children and father as initiated by the father to the children between 7.00 am – 7.30 am, unless otherwise agreed between the parents in writing.

11. That notwithstanding any other Order, should Mother’s Day fall on a weekend when the children would otherwise be spending time with the father the children shall stay with the mother for that weekend without causing any suspension or variation to the alternate weekend routine otherwise in place;

12. That for the purposes of these orders, the children’s school holidays are on dates provided for in the Queensland Government Gazette, and the school holidays are deemed to start after school on the last day of the ending term and to end at 3.00 pm on the last non-school day before the new term begins and the half way point shall be calculated by the number of nights in each school holiday period, with changeover at 3.00 pm on the middle date, but if an uneven number of nights then the parents shall alternate retaining the children in their care for that night with the mother to have the first of any such night.

13. That at the start of any time the children spend with the father, the mother shall provide to the father any medications that have been prescribed for the children or prescriptions to be filled during that time which she considers the children will need during a visit, as well as written instructions for the administration and use of the medication, and the father shall return any unused medication and prescriptions to the mother at the end of the children’s time with him. 

14. That the mother shall use her best endeavours to:

    (a)facilitate time for the children’s two elder half-sisters, W and Z, with each other (ie time for W and Z together); and to

    (b)facilitate time for the children with Z when the children are not in the father’s care.

Injunctions, notice provisions and authorities

1. That the father shall not consume or be under the influence of alcohol at any time whilst the children are in his care.

2. That neither parent shall use or be under the influence of illegal or illicit drugs at any time the children are in their respective care.

3. That neither parent shall denigrate the other to or in the presence or hearing of the children nor expose the children to any negative views held by either parent of the other.

4. That neither parent shall use physical punishment on the children at all, and each parent shall use their best endeavours to ensure that no other person uses physical punishment on the children at all.

5. That each parent shall use his and her best endeavours to follow any directions given by the children’s treating medical and allied health practitioners in relation to behaviour management techniques.

6. That the mother shall keep the father informed in writing about the following matters:

   (a)the name of the treating general medical practitioner and any specialist and allied health professional on whom the children attend; and

   (b)the name of the school at which the children attend.

7. That should either child suffer any serious accident or illness, then the parent with the care of the children at that time must notify the other parent as soon as practicable by telephone and by text message of the particulars of the accident or illness including advising of the name and location of any treating hospital.

8. That the father is at liberty to and these Orders authorise the father to contact the children’s school and any treating medical practitioner, specialist or allied health professional about the children and for him to discuss the children with such practitioner and to request to be provided with (at the father’s own expense if any) information about the children including written documents the practitioner or professional is lawfully able to provide.

9. That the parents shall communicate about parenting matters to do with the children in writing by email or text message, and each parent must keep the other informed at all times of an email address and mobile telephone number to be used only for the purposes of giving effect to these Orders, however in the event either parent forms the view that parent communication is becoming conflict-ridden then the parent forming that view shall advise the other of that by email and thereafter the parents shall commence to use an on-line parent communication tool selected by the parent forming the view, such as “Our Children Australia” or “Toppako”, with each parent to pay any fee associated with their own use.

10. That prior to the children commencing to spend overnight time with the father pursuant to these Orders, the father shall advise the mother in writing of the residential address at which the children will be accommodated by him and details of any third person who may be sharing that residence whilst the children are staying there.

11. That the mother shall not bring the children into the vicinity of or contact with the male person who is named as the Respondent to the Protection Order made by the Suburb B Magistrates Court on 5 November 2019 which names the mother as Aggrieved and the children as persons protected.

Counselling and other support

1. That, if she has not already done so, the mother shall use her best endeavours to seek the paediatric assessment of each of the children for any biological or behavioural disorders, and the mother shall keep the father informed of the details of any appointments made and shall copy to the father or authorise the copying to him of any reports or assessments prepared as a consequence, with the father not to attend at appointments made by the mother but to be at liberty to make separate appointments for himself to attend on any practitioner pursuant to the assessment process, to discuss and to participate in the assessment as recommended by the practitioner (though the mother shall not be required to attend any joint appointment with the father).

2. That the mother shall attend and complete a program or a course of counselling designed to educate and support her in regard to understanding and identification of domestic and family violence and the risks that domestic violence relationships pose to her safety and that of the children and how to plan for safety, and within two weeks of the date of these Orders the mother shall advise the Independent Children’s Lawyer in writing of the details of the service, program or course and of the commencement date for her attendance. She shall also advise the father and the ICL in writing when she has completed the course.

3. That the father shall enrol in a another program or course of counselling designed to educate and support him in regard understanding and identification of domestic and family violence and the risks that domestic violence pose to the children’s safety (such as the Men’s Behaviour Change Program or other such program), and within two weeks of the date of these Orders the father shall advise the Independent Children’s Lawyer and the mother’s solicitor in writing of the details of the service, program or course and the commencement date for his attendance.

4. That the father shall complete the program or course referred to in Order 34 and provide the mother and the Independent Children’s Lawyer with written evidence of completion as soon as he has completed it. 

5. That, regardless of whether they have already done one or not, the parents shall each also complete a Parenting Orders Program with a service such as Relationships Australia, Uniting Care or Centacare, and shall provide to the other and to the Independent Children’s Lawyer a copy of any Certificate issued by the service provider evidencing completion of the Program, within five days of receipt of such certificate.

6. That the parents shall, within two weeks of the date of these Orders, contact the Parenting Orders Program Co-ordinator (or their nominee) at one of the providers referred to above for intake into such a program.

7. That the parents shall comply with any reasonable direction of the Program Co-ordinator and in particular:

   (a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the said program;

   (b)attend and participate in the program as requested including attending referrals to treating health professionals or the Triple P Program or any anger management program as recommended by the Program Co-ordinator (provided that either parent may refuse at their election to participate in joint sessions); and

   (c)for the purposes of the program, a copy of these Orders and the Affidavit of Ms C filed on 25 February 2020 shall be provided by the parents to the Program Co-ordinator.

1. That the Independent Children’s Lawyer is discharged at close of business on 30 June 2021.

IT IS NOTED:

(A)Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.

Property

1. That the money currently held in the trust account of Blake Topping Solicitors on behalf of the husband and the wife be distributed as to the sum of $80,278 to the wife and as to the sum of $25,000 to the husband, with any surplus over and above the total of those two sums attributable to any interest having been earned on the funds since the trial in this matter be divided and paid to the husband and the wife as to 77.5% to the wife and as to 22.5% to the husband.

Split of the K Superannuation Fund

1. That pursuant to s 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $49,782 is allocated to the wife out of the husband’s interest in K Super Superannuation Fund (“the fund”).

2. That pursuant to s 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of the husband in the fund:

   (a)the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of $49,782 (provided that such base amount shall not exceed the value of the interest determined under s 90XT(2)); and

   (b)there be a corresponding reduction in the superannuation interest of the husband to whom the splittable payment would have been made but for these Orders.

3. That this order have effect from the operative time and the operative time is four (4) business days after service of these Orders on the Trustee.

4. That each party and the Trustee has liberty to apply on not less than three (3) business days’ notice, in respect to the implementation of the super splitting Orders.

5. That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the SIS Regulations”), the wife shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the payment of the non-member spouse interest by way of lump sum entitlement in accordance with the SIS Regulations.

6. That the operation of orders 41 to 45, be stayed for 21 days from the date of these Orders.

7. That within 7 days the solicitor for the applicant shall give the Trustee of K Superannuation Fund written notice of the proposed splitting order contained in these Orders, if they have not already done so.

8. The Trustee of K Superannuation Fund has liberty to apply to be heard against this Court making the splitting order, which liberty expires 21 days from today.

9. That within 14 days the solicitor for the applicant shall file an affidavit of compliance with order 47.

Property otherwise to be retained by the Wife

1. That the wife shall retain as her absolute property, the title and possession of and the Husband forthwith relinquish and/or transfer all right, title and interest that he may have in and to the following property:

   (a)all funds standing to the wife’s credit in any bank accounts in the wife’s sole name;

   (b)her superannuation entitlements including that split to her pursuant to these Orders;

   (c)the furniture and effects in her possession;

   (d)the wife shall retain the family photos, albums, associated videos/memory sticks and will arrange for duplicate copies to be copied onto a storage disc which is to be provided to the husband within sixty (60) days of the Orders; and

   (e)all other property and financial resources not otherwise particularised in this Order but which the wife has in her possession at the date of this Order.

Property otherwise to be retained by the Husband

1. That the husband shall retain as his absolute property, the title and possession of and the wife forthwith relinquish and/or transfer all right, title and interest that she may have in and to the following property:

   (a)all funds standing to the husband’s credit in any bank accounts in the husband’s sole name;

   (b)his Superannuation interests, save for that split to the wife pursuant to these Orders;

   (c)      the furniture and effects in his possession; and

   (d)all other property and financial resources not otherwise particularised in this Order but which the husband has in his possession at the date of this Order.

Liabilities

1. That save as otherwise provided for in these Orders, the husband shall be responsible for, and indemnify the wife in relation to, any liabilities attached to any item of property that he is to receive/retain pursuant to these Orders, including but not limited to the following:

   (a)      his credit card liabilities in his name;

   (b)      his taxation liabilities; and

   (c)any other liability of whatsoever nature that the husband has as at the date of these Orders, including any he has to the Child Support Agency.

2. That save as otherwise provided for in these Orders, the wife shall be responsible for, and indemnify the husband in relation to, any liabilities attached to any item of property that she is to receive/retain pursuant to these Orders, including but not limited to the following:

   (a)      her credit card liabilities in her name;

   (b)      her taxation liabilities; and

   (c)any other liability of whatsoever nature that the wife has as at the date of these Orders, including any liability she has to her parents.

General Retention and Release

1. That except as otherwise provided for in these Orders:

   (a)each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind and wheresoever situate of which that party is the legal owner of and/or which is/are in the possession of an/or under the control of that party as at the date of these Orders and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof; insurance policies are deemed in the possession of the beneficiary thereof; superannuation entitlements are to deemed to be in the possession of the person who is named as the worker whose age or working future provides conditions for payment out of such entitlement.

Miscellaneous

1. That each party do all acts and things and sign all documents to give effect to these Orders and in the event that either party neglects or refuses to do so within fourteen (14) days of being requested in writing to do so, then a Registrar or Registry Manager of the Family Court of Australia hereby be appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the deed or document pursuant to s 106A of the Family Law Act 1975 (Cth).

2. That any stamp duty chargeable or any tax payable upon or in respect of any document or instrument prepared pursuant to these Orders or contemplated hereunder shall be borne and paid by the transferee who shall indemnify the transferor in respect of any such stamp duty and/or tax payable. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seares & Seares has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5047 of 2016

Ms Clyde (formerly Seares)

Applicant

And

Mr Seares

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Twins, X and Y are now eight years old. Their mother and father met and started living together in 2010, married in 2011 and separated in early 2016. After the mother and the father separated, for a short while, they shared the care of the children on a week about basis, each moving in and out of their home for their week of caring for the children. Soon thereafter, violent incidents occurred between them, in the presence of the children. Police had to be involved. Family Violence Orders were obtained to protect the mother and children. The father was charged with an assault and, in May 2016, the mother took the children to live elsewhere and stopped them spending time with the father.

2. Disputed parenting orders proceedings and property division proceedings have been going on between the two parents in the four years since then. The matter was listed for a trial in the Federal Circuit Court on 11 December 2018, two years after it was commenced in that Court. On that day, for reasons unknown to me, the matter was transferred to this Court and then took its place in the pending cases list for another eighteen months before getting to trial before me in late June and early July this year, nearly four years after it was started. It had been listed for trial before me earlier than that, but had to be adjourned when the Court was advised that Legal Aid Office funding for legal representatives for the father, made compulsory by the operation of s 102NA of the Family Law Act 1975 (Cth) (“the Act”), had run out and that, consequently, the father did not have legal representation. It was relisted for trial after that funding was secured and representatives appointed.

3. Sadly, the former married couple have remained in high conflict that entire time and the children have grown from four years of age to eight years of age exposed to that high conflict and not spending much time at all with their father during those four years. Nevertheless, the proceedings have been ongoing and when the matter came on for trial each of the parents was represented by solicitor and counsel and the Independent Children’s Lawyer (“the ICL”) was represented by counsel as well.  

4. I am now deciding the parenting orders that will govern the parents’ co-parenting of these twins for the foreseeable future and finally dividing their property between them. These are my reasons for making the Orders I do.

How are the parenting orders to be decided?

1. The Court’s task is to “make such parenting order as it thinks proper” subject to the provisions of Part VII of the Act.[1] In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.[2]  Section 60CC(1) provides that in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of the same section.

   [1]Family Law Act 1975 (Cth), s 65D.

   [2]Ibid, s 60CA.

2. Subsection (2) sets out two primary considerations which are:

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

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Subsection (2A) provides that the Court must give greater weight to the second of those two primary considerations when applying them. Subsection (3) sets out a relatively long list of “additional considerations”, the last of which – “any other fact or circumstance that the court thinks is relevant” – demonstrates how broad the discretionary inquiry can be.

4. Also, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[3] Parental responsibility, in relation to a child, means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.[4] Section 61DA(2) provides factual circumstances which, if they exist, cause the presumption just referred to not to apply. Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   [3]Ibid, s 61DA.

   [4]Ibid, s 61B.

5. If, and only if, the Court decides to make a parenting order that provides for a child’s parents to have equal shared parental responsibility for the child, the Court must then consider whether the child spending equal time with each of the parents would be in the best interests of the child and also whether the child spending equal time with each of the parents is reasonably practicable.[5] “Reasonable practicality” is determined, pursuant to s 65DAA(5), having regard to how far apart the parents live from each other, their current and future capacity to implement an arrangement for the child spending equal time with the other parent, their current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an equal time arrangement, the impact that an equal time arrangement would have on the child and such other matters as the Court considers relevant.

   [5]Ibid, s 65DAA(1).

Is equal shared parental responsibility in the child’s best interests in this case?

1. Equal shared parental responsibility orders impose obligations upon parents through the operation of s 65DAC of the Act to do a number of things when making a decision about a major long-term issue in relation to the child or children for whom they share parental responsibility. Each parent is required to consult the other parent in relation to the decision. They are required to make a genuine effort to come to a joint decision about that issue, and they are required to make the decision jointly. It follows that if they cannot make the decision jointly that it cannot be made unilaterally by one of them. It would require a Court having jurisdiction to make the decision if it is to be made at all, where they cannot make it jointly.

2. Generally, where I am satisfied that parents cannot communicate with each other in a reasonable, respectful and appropriate manner, I do not consider it in their children’s best interests to confer parental responsibility upon them equally. I have said before that I consider that to be a recipe for disaster in so far as the children are concerned. Important decisions about major long-term issues need to be carefully and sensibly made for the children’s sake. Joint decision making in a high conflict environment is not, in my judgment, in the best interests of the children. It is often simply impossible. In such circumstances, I consider the risk of an important decision not being able to be made at all, thus forcing the parties back to Court to litigate about it if it must be made, is too high.

3. The evidence in this case clearly supports a finding that the parents can virtually not even communicate at all, let alone in a reasonable, respectful and appropriate manner. I have no reason to consider that they could make an equal shared parental responsibility order work in respect of their children, so I will not be making one. I will be giving sole parental responsibility to the mother for all decisions about major long-term issues (as that term is defined in s 4 of the Act) in respect of the two children, save for decisions about the children’s family names and about moving them to live somewhere that would make it significantly more difficult for them to spend time with the father.

4. As for decisions about the children’s family names, no such decision will be necessary, as the father indicated during the trial that he agrees to the children being called by the hyphenated family name “Clyde-Seares” and would consent to such an order. I made an order dealing with that at the end of the trial as I considered that is in the children’s best interests in this case. I will make decisions about changing their family names in future a matter of equal shared parental responsibility in the orders I will now make, so that it cannot be done without both parents agreeing to it.

5. Similarly, the mother will not be permitted to move the children’s residence to somewhere that makes it significantly more difficult for the children to spend time with the father without the father’s agreement to that in advance. Such a decision will also be a matter about which there will be equal shared parental responsibility.

6. As for the other matters such as decisions about health, education, religion, although the mother will be given sole parental responsibility, the orders I will make will still require her to notify the father of such decisions in advance of making them, request his input and views, consider them before making her final decision which will still be hers alone and then to notify the father of the decision she has made after she has made it.

7. Considering the decision of the Full Court in Doherty & Doherty,[6] particularly [33]- [35] of the joint reasons of May and Ryan JJ and [57] – [58] of the reasons of Kent J, orders that confer equal shared parental responsibility on parents for some issues but not for all issues do not bring into operation the provisions of s 65DAA. Accordingly, I do not have to consider those statutory provisions.

   [6][2016] FamCAFC 182

8. In this case, in any event, I am quite satisfied that it is not in the best interests of the two children to go into an equal time arrangement with their parents and that it is not reasonably practicable. The parents do not have the current capacity to implement an equal shared care arrangement or to communicate with each other and resolve difficulties that might arise in implementing an equal shared care arrangement. The children have barely spent any time with the father over the last four years. It is not in their interests to start living with him for half of the time. The family report writer who had initially opined that a gradual move to equal shared care might be a suitable outcome in this matter, withdrew from that stance in her oral evidence at the trial after hearing more about the evidence of conflict in this case.

9. Furthermore, I am not persuaded that it is in the children’s best interests at this moment in time to start spending substantial and significant time with the father, particularly when they have spent so little time with him in the years since separation and where his commitment and capacity to begin caring for them on an overnight basis for any length of time is really unclear. I will not be making an order that provides for the children to spend substantial and significant time with their father straight away.

So, what Orders will I make for the children’s care?

1. The children have been living with their mother since their mother separated from their father over four years ago. Their mother also has another, older daughter of a former relationship. Her name is W and she is now 14 years of age. She has always lived with the mother and the twins. She does not spend time with her father. Though I have some real concerns about some aspects of the mother’s personality and her attitudes towards the father, I am satisfied that it is in the children’s best interests to continue to live with their mother. Indeed, it was not part of the father’s case that the children be moved from the mother’s care to his care. The orders he asked for included an order that the children move to an equal shared care arrangement at the highest. That is not going to be part of the orders I make. The children will continue to live with their mother and their big sister. That accords with the submissions made by the ICL at the end of the trial, too.

What time, if any, should the children spend with their father?

1. This is the real matter for determination in this case. The mother asks for the Court to limit the children’s time with the father to supervised sessions at a contact centre once per month. The father asks the Court to make orders that permit the children to spend time with him from Saturday morning to Monday morning every second weekend and overnight on Wednesday in the other weeks for a period of two months. He asks for that to be stepped up to start on Thursday afternoon going through to Monday morning in each alternate week for another period of two months before being stepped up again to the equal shared care arrangement that he wants on a long term basis.

2. At the end of the trial in July, I made some interim orders with the consent of the parties that provided for the father to spend supervised time with the children at a private, commercially operated children’s contact centre in Brisbane for up to two hours, every alternate Saturday commencing on 18 July. I reserved my judgment as to the final orders to be made. In early September, whilst I was still reserved, the mother made an application to reopen the trial in order to adduce some more affidavit evidence about what had happened in respect of the supervised contact in the short time since the trial had concluded. Before I could hear the mother’s application, the Court was informed that the parties had all agreed that the trial could be reopened and that an affidavit from the mother and an affidavit from the father could be adduced as further evidence in the trial, without the need for any further cross-examination. They agreed that each party could do further written submissions after that evidence was adduced. On 14 October, I made orders re-opening the evidence in the trial and permitting further evidence to be adduced. Having read the affidavit of the mother filed 2 September 2020, and accepting the agreement of the parties, I was satisfied that it was appropriate to exercise the discretion to re-open the evidence.

3. That evidence established that the father contacted the commercial operator of the supervised children’s contact centre on 18 July and arranged an appointment to see the two children. He and his daughter, Z, a 13 year old from an earlier relationship, both attended and spent time with the two children.

4. On 28 July, dates and times were agreed between the operator, the father and the mother for the father to see the two children for a further four sessions of two hours of supervised time each alternate Saturday commencing on 1 August going through to 12 September.  However, as soon as Thursday 30 July, the father contacted the operator seeking to change the date of the second confirmed visit from 15 August to either 8 or 9 August, the weekend before. He said that he had “organised to drive to City D with [his brother] to help him install cabinets into [their mother’s place]”. The mother’s evidence was that she could not change the weekends as she had plans with the children on the weekend the father wanted the visit changed to. Accordingly, the visit scheduled for 15 August was cancelled and did not happen. However, the father and his daughter attended and spent time with the two children on Saturday 1 August.

5. The next visit was then scheduled to take place on 29 August. On 25 August the father sent the mother a text message asking her if she would just do changeovers at the commercial operator’s centre or “somewhere else”. He said “as I don’t really want to put any of the kids at risk with hanging out around stones corner with all this COVID around”. The mother said that she did not reply as she did not feel comfortable in doing so and because there were clear orders in place for how the children were to spend time with the father. She said that she was also concerned about the message, given that the operator had already set out their reasonable COVID safe compliance measures to both of them a few weeks before.

6. The father’s evidence was that on 25 August, he sent an email to the commercial operator “to notify them that Z and I would not be attending the centre while during (sic) the Coronavirus Pandemic”. He said that the risk was too high to him and the children.

7. The father said that his message to the mother was to try “to work out a less risky yet safe enough option to continue seeing the children”. However, he did not tell the mother in that text message that he had, or was about to notify the commercial provider of the contact service that he and his daughter would not be attending the centre any further during the pandemic. As such, it is difficult to understand how he thought his proposal might be attractive to the mother when he sent it to her.

8. On 27 August, the commercial operator wrote to both parents informing that because of the “ongoing issues with scheduling”, referencing the father’s cancellations and changes, they would not facilitate any further contact visits at their centre.

9. The father has not seen the children at that centre since. Although he said in his affidavit filed 28 October that he is currently in the process of contacting other contact centres given he considers the pandemic has become less of a risk, there is no evidence before the Court that he has found one.

10. The father, of course, does not consider that he needs supervision of his time with the children. The mother considers his time with the children should remain supervised. The ICL, in her latest submissions filed on 30 October, proposes that the children’s contact with the father still be supervised and that it happen once per fortnight for three months at a contact service that can accommodate the family, before it progresses, in a staged format, to unsupervised time, including, eventually, overnight stays on weekends and in school holidays. Most significantly, the ICL submits further that if the father misses any of the scheduled visits during the first three months of supervision, save for in circumstances of a medical emergency, that he will forfeit the right to have any further time with the children, be it supervised or unsupervised. At the same time as moving through the three months of supervised time, the ICL proposes that the father must also complete a program or course of counselling “designed to educate and support him in regard [to] understanding and identification of domestic and family violence and the risks that domestic violence pose to the children’s safety”, such as the Men’s Behaviour Change Program or something like it. The ICL also proposes that the mother undertake such a course aimed at improving her understanding of how family violence poses a risk to her safety and that of the children and as to how she can plan for their safety. The ICL also wants both parents to undertake a Parenting Orders Program with a service such as Relationships Australia.

11. The question is then, which of these proposals, or any other that I consider myself, is in the best interests of these children having regard to all of the evidence?

The violence that went on in this family

1. There is no dispute that there was violence in this family when it was still intact. The father has conceded it, to a degree. He just does not accept the extent to which the mother says he perpetrated violence upon her. Nor does he, I am satisfied, accept full responsibility for his own violent actions during their fairly tumultuous relationship.

2. Suffice it to say, I consider, that I am satisfied the mother was the victim of physical, sexual, emotional, verbal and financial abuse during the relationship, though ultimately, not to the exact level she was asserting at the trial. I accept the father’s concessions and admissions that he did perpetrate violence but am satisfied he did not go as far in his admissions and concessions as he should have. That means, I am satisfied that the father was more abusive of the mother and the children than he admitted to, but that I am also satisfied that he was not consistently and regularly as violent as the mother would have me believe.

3. In particular, there were a number of incidents of violence in the first half of 2016 that I will refer to. On or around 20 January the family was visiting the mother’s cousin in southern New South Wales for a few days. The mother and the father, who were already struggling in the final throws of their relationship, argued about the way in which the father was treating their son. The argument escalated and the father ended up verbally abusing and physically assaulting the mother, including by trying to shut the boot of their car on her head, a few times, whilst she was retrieving her possessions from the car that the father had unilaterally packed.  The mother’s cousin, who gave affidavit evidence, described the terrible scene and told the Court that she demanded the father leave her property. He did. He drove the car back to Brisbane, with his daughter, Z. The mother and the other three children, flew back to Brisbane a day or so later. Their actual final physical separation occurred after this.

4. On 11 February 2016, there was an incident at their house in which the mother sustained an avulsion fracture of the base of the second toe of her left foot. She saw her GP on 15 February who recorded that she viewed an x-ray that revealed that and that the mother had reported to her that she had been assaulted by the father on 11 February. Each parent gives a different version of what happened that day. The father said in his affidavit that he was staying at the home, in the spare room, and that they had agreed to sit and discuss a property settlement. He said that the mother kept sending and receiving messages from another man. The father described him as her “boyfriend”. He said that he told her to go outside and call him and talk to him and she did. He said that at about 11:00 pm he went to the kitchen and poured himself a drink when the mother just came in, took off all her clothes in front of him and told him to have sex with her. He said he went to his bedroom without answering her. He said that she then came into his bedroom, with clothes on, and started pulling things out of his cupboard and kicking things around in his cupboard. He said that he thinks that is how she broke her toe. He said that he had to stop her from attacking him, before she went and got in her car and drove off to her parents’ home.

5. The mother said that the father was at the home on 11 February and that she told him she had just met someone and wanted to get to know him. She said that the father then said to her that he was going to have sex with her, film it and send a recording to the other man. There is evidence that the father obtained the man’s phone number after observing his car (with phone number advertised on it) parked outside the home one morning. She said there was no discussion about property settlement. She said that the father grabbed her and threw her face down on the bed and kept pushing her onto the bed as she tried to get up. She said she was yelling at him to leave her alone. She said that she rolled over onto her back, still struggling with him, but he pulled her pants down. She said that she tried to bring her knees up to her chest to use her legs to push him away from her. In the struggle, when kicking out, she said that she kicked the door frame in the room and felt pain in her foot. She said that she screamed and crawled out of the room and left. The father denied the mother’s account.

6. On another night in April, the mother was at the home. The father was not living there at that time. The mother’s daughter, W, was staying at her maternal grandparents’ home, but the twins were asleep in the home with the mother. The mother was drinking heavily. She went to bed under the influence of that alcohol. She said that she woke up to the father engaging in oral sex with her and then he had sexual intercourse with her without her consent. She said that she told him to stop. The father denied that he had done this.

7. There was another incident on 15 May. The children were at the home with the father caring for them. The mother went to the home in the morning and entered looking to collect the laptop computer which she said was hers. She said that when she unplugged the computer, picked it up and turned to leave the room, the father was standing behind her blocking her exit. She said that he told her she was not supposed to be there and that she needed to leave. She said he told her she was not leaving with the laptop and then pushed her in the side. She said she fell on the bed. She then said that he slammed the door shut but that she could hear the children outside their room. She said the father started shouting at her and abusing her with foul language. He demanded she leave the computer and as she tried to get past him he pushed her again and she fell to the wall next to the bed. She said he then put his knee in her back and grabbed her left arm, twisting it behind her back. She said that she cried out that he was going to break her arm and that he simply responded that he did not care. She said she was able to get an arm free and punched him in the face, such that she was able to get to her feet, before the father pushed her to the ground again. She said her lip was bleeding by this point and that she managed to get her phone out and phoned 000. She said the father was trying to grab the phone from her hand and was able to get it. She had dialled 000 but had not been able to speak to anyone, before the father got the phone and disconnected the call. She said that she was screaming “help, help” at the time. The mother said that she was able to get out the bedroom door and could see the children there very distressed about what was happening.

8. She asked the father to give her the phone back. She heard her phone ring. They were still struggling and she shoved him. She said that he stopped struggling with her and pulled his own phone out and began to record her. He calmed down and did not swear or push her again. She said that she was just asking him to give her phone back to her and she would leave. She said that the father then went into the children’s bedroom and shut himself in there. She was then leaving the house when she heard police sirens and then the father came and threw her phone at her. Police arrived and spoke with them both. Police then issued a Police Protection Notice, listing her as the aggrieved and the father as the respondent.

9. The father said that he had sent a message to the mother that day not to come to the house. He said she went to his bedroom on arrival and got the laptop computer. He said that he “confronted her” and tried to take the computer back. They struggled and fell to the floor. He said that the mother got up and started punching, scratching and yelling at him and abusing him. He said that he started to film her doing this and that she kept yelling at him about the whereabouts of her phone. He said that “emergency services” called him and that he told them that his ex-wife was there “going off” and would not leave. He said the police arrived and he told them what was happening. He said the police asked the mother to leave and served him with a Protection Notice.

10. The mother saw her GP again on 17 May. She is recorded as reporting to the GP that her husband had beaten her on the Sunday morning just gone and that she needed a medical report to support assault charges. She is recorded as reporting that he pinched and grabbed her arms, pushed her against the wall, and that they fell against the wall and that he punched her on her lip and that she hit her left cheek bone against the window ledge.

11. The doctor recorded that she observed the mother had a split lower lip, swelling on her left cheek bone, bruising on her left forearm and on her right elbow medial aspect. She had right forearm bruising and a shoulder bruise in the upper triceps area. She also had bruising on her left hand at the base of the 2nd, 3rd and 4th fingers, consistent with hyperextension of the fingers. She had swelling and tenderness on the left posterior 12th rib with bruising and a scratch mark. She had a bruise on the left anterior iliac area and bruises on both her knees and right outer and inner thigh.

12. I am satisfied that there was a serious physical altercation on that day, 15 May, after the mother went to the home and tried to take the laptop computer. It happened in the presence of the father’s daughter Z and the couple’s two children. The mother suffered numerous injuries in the fight caused by the father wrestling with her, trying to forcefully take the computer from her, striking her, pushing her to the floor and against the wall. At some point the mother used her phone to call 000 but the father got her phone from her before she could speak to the operator. The call was likely taken at the emergency services end and the operator heard the altercation and the mother’s cries for help. Somehow the emergency services were able to call the father’s telephone number as his evidence was that they did. That causes me to consider that the emergency services operator was very concerned about what was going on at the house and a police car was dispatched to attend quickly, with sirens activated.

13. The matter was before the Suburb L Magistrates Court a couple of days later and the father consented to a Protection Order being made against him, without admission. The mother then discovered that the father had accessed her internet bank account and her iTunes account and changed her passwords without her consent. She complained to the police about that.

14. The father was also charged with assaults occasioning bodily harm arising from his conduct on 15 May. He was convicted of those on 11 November in the Suburb L Magistrates Court but no conviction was recorded with the conviction ordered to be recorded as a domestic violence offence. The father was placed on probation for a period of eighteen months. That same day, the final family violence Protection Order against the father with the mother and the twins named as aggrieved and involved persons was varied and ordered to be in force for two years.

15. Without a doubt, there was an unacceptable level of violence in this family that the children were exposed to. The mother gave a lot more evidence, much of which I accept, of the controlling behaviour the father subjected her to during the course of their relationship. I do not consider I need to set it all out here or that I need to distinguish between that which I accept and that which I do not. The evidence also establishes that the mother was experiencing depression and anxiety in the later months of 2015 leading into Christmas and the events of the early part of 2016. I consider the way in which she was treated by the father during her marriage to him, along with her own personality vulnerabilities, probably contributed significantly to this. I am satisfied that the violence she was subjected to contributes to the way in which she thinks about the father and her lack of interest in communicating and co-parenting with him. Many would say that is not unreasonable in the circumstances. However, it is the children who are the subjects of this part of the proceedings. It is their best interests that I must be principally concerned with.  

Post-Separation Developments  

1. From 15 May 2016, the mother would not let the children spend any time with the father. Later that year, she commenced property proceedings in the Federal Circuit Court (“FCC”) and the father responded by seeking parenting orders. A family report was ordered and was prepared in January 2017. The mother said that the father did not even attempt to contact the children in this period and she said that he did not pay child support for them either during that period.

2. In February 2017, Judge Turner of the FCC made an extensive set of interim orders with the parents’ consent for the children to start spending time with the father. The orders the parties asked the Judge to make were substantially shaped by the family report that had issued. The children’s time with the father was initially to take place at and under the supervision of a private children’s contact service. The visits were to occur weekly on Sundays for no less than two hours per visit and the father was to pay the costs. A report as to the service’s observations of the father’s relationships with the children was to be prepared before the next hearing date.

1. The parents were restrained from physically disciplining the children, something they each complain the other did. The father was to enrol in a face to face Triple P parenting program and commence and complete it as soon as practicable. Each of the parents was to commence a Parenting Orders Program. The father was to stay away from the children’s school.

2. On 5 May 2017, when the matter was back before Judge Turner, the parties asked her Honour again to make consent orders. Her Honour made them and they provided for the children to begin spending time with the father on alternate weekends from 13 May from midday on Saturdays to 10:00 am on Sundays with the changeovers to occur at the private contact centre. Her Honour also ordered that the children could spend time with the father from Monday after school to before school on Tuesday in the other weeks.

3. This unsupervised time in accordance with these orders only lasted from May until July that same year – two months. In June 2017, the mother reported the father again to the police for posting nude photographs of her on Facebook, making allegations about her mental health on social media, advertising their personal property on Facebook accompanied by defaced photographs of their wedding day. In July 2017, the mother made further complaints to police about the father following her in his car, following her to a hotel and remaining near her in the hotel, accessing her profile page on an internet dating site, leaving flowers at her home on Valentine’s Day that year, and attending at the children’s school and following her daughter, W, around at that school.

4. After those complaints, the father was charged by police with a stalking offence and for breaching the family violence Protection Order. He spent three nights in police custody after being arrested. Whilst he was later on bail in connection with these charges he was convicted of a couple of offences of breaching bail for not attending at the police station exactly in accordance with the terms of the bail conditions. He was fined for that and no conviction was recorded. Ultimately, the father was not convicted of the offences he had been originally been charged with. The mother said that she was told by police that the charges were “dropped on insufficient evidence”.

5. Again, after the father was charged by police in July 2017, the mother stopped letting the children spend time with him. They had no time with him again from mid-July 2017. On 6 November 2017, Judge Turner formally ordered the suspension of the children’s time with the father.  Later in November 2017, the father, no longer legally represented, sent a letter to the mother’s former solicitors effectively inviting the mother to make him an offer to settle property on the basis that he would agree to not having any time with the children. Plainly, no such settlement was achieved between them.

6. On 6 December 2017, Judge Turner ordered that the father was to file and serve any Application in a Case and any supporting affidavit material on which he relied in respect of the issue of his time and communication with the children. He did not do that, so continued not to have any time with the children.

7. On 11 June 2018, the matter was before Judge Jarrett in the FCC. His Honour made orders that provided for the father to spend time with the children again at the commercial contact centre the family had previously been attending for some supervised time each alternate weekend. Due to difficulties the previous contact centre had with the family, its operators elected not to provide a service to this family and they had to start going to another commercial operator of a supervised children’s contact service. The children started spending time with the father again after that – for the first time since July the year before. The father started spending time with the children again on 28 July 2018.

8. According to the mother’s evidence, which the father did not dispute, the father saw the children at that centre on 28 July, 11 August, 25 August, 22 September, 6 October, 20 October and 3 November 2018. He accepted that he cancelled the visit scheduled for 8 September (only his fourth fortnightly visit since resuming after a year of no time with the children) as he took a holiday at short notice to a south-east Asian destination. After the matter was listed for trial in the FCC in December 2018 and then transferred to this Court that day, the father cut back on the visits he was having at the commercial centre. He then saw the children on 19 January, 2 February, 16 March, 13 April, 27 April, 25 May, 8 June, 20 July, 17 August and 19 December 2019. The father cancelled visits scheduled for 3 March, 22 June, 28 September and 26 October. From 19 December 2019, to the trial before me in June and July this year, the father did not make any arrangements with that centre to spend time with the children.

9. The family report writer who saw the family in late 2018 and again in early 2020 and provided two family reports to the ICL that were adduced into evidence before me, wrote in her second report that the father told her that he had ceased attending the commercial contact centre in late 2019 because he could not afford the costs of the centre anymore and was prioritising the making of payments towards the outstanding debt that he owed to the Child Support Agency for the two children.

10. With respect to the father, the evidence did not support his claim that he was prioritising the payment of child support. His payment of child support over the years since separation has not been consistent. Once already, an arrears of debt of several thousand dollars to the Child Support Agency was paid out of the proceeds of sale of the former couple’s home that have been held in a solicitor’s trust account for a long time. Since then further arrears have arisen and it was several thousand dollars at the time of the trial. The father has not prioritised the payment of child support, though I acknowledge that the cost of commercial supervision of time with children is expensive. Where the father is not a wealthy man, having to continue paying the high cost of supervision at a commercial centre for many more months after this matter was to go to a trial in December 2018 and was suddenly transferred to this Court, would be, I also acknowledge, financially burdensome.

11. Nevertheless, the reality is that the twins in this case have only seen their father on very short, supervised visits totalling not more than 38 - 40 hours in over three years since July 2017. They have not had much experience of his parenting in those years upon which to build their relationships with him.

What did the family report writer make of the twins’ relationships with their father?

1. The family report writer saw the family for the updating of her first report early this year. Ms C reported that she observed that when the father was introduced to the children, who were already playing in a play room setting, Y greeted him with a hug and a smile. X was absorbed in playing with an iPad and only gave that away and joined in play with her brother and the father after some minutes. The play become boisterous, but Ms C said the father was encouraging the children to keep their voices down. Nevertheless, Ms C wrote that the observations showed the children thoroughly enjoyed spending time with their father and competing for his attentions.

2. Ms C expressed the opinion that “it appears that [the children] … share a good relationship with their father, although it was clear that both children feel somewhat conflicted in their feelings toward their father.” She reported that Y told her that he likes playing with his father and would like to spend more time with his father as he does not see him very often. Interestingly, Y was reported as saying that he would not like to have a sleep over at his father’s place, but that he was unable to explain why. He was reported to have said that he would like to spend time with his father at his father’s house if his mother and father were able to agree on that. He was reported as saying that he liked the father’s daughter, his sister, Z, and that he would like to see her more often.

3. Ms C described X’s behaviour in observation as “an active attempt to remain disengaged from the activities, before joining in whole-heartedly”. Ms C went on to suggest that the children’s contradictory messages and behaviours are indicative of an inner conflict within the children. She expressed the view that this was likely to be the result of their own positive experiences of their father being at odds with the negative view held of him by others, namely their mother. She opined that the children’s “stated views may have been influenced by the views of others, most likely their mother”. She said that the children’s feelings “may… have been influenced by their awareness of their mother’s negative view of their father”.

4. Ms C went on to express the opinion that, unaddressed, there is a real risk that the twins will continue to withdraw from their father and that will have a negative impact on their relationship over time. She said that it could also negatively impact on their relationship with their mother over time.

5. I am of the view that these two children, now eight years old, should be spending regular time with their father. It is in their interests, particularly as they approach the next stages of their childhoods – adolescence - that they get to know him better and that they get to experience the parent-child relationship with him, learning about him as a father and a person as their own personalities continue to develop towards independence.

6. I consider the real question to be answered then, as I move forward in determining this matter, is what is the extent of the need to protect the children from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.

7. The evidence is that the father’s daughter, thirteen year old Z, has continued to live in a shared care arrangement between her mother and the father over the last four years whilst all this turmoil has been going on between the mother and the father in this case. Much of that time, the shared care has been on an equal basis. Some of it has been shared between Z’s parents other than equally, but with Z still living with her father several days a fortnight.

8. Ms C interviewed Z and reported on her. She is a bright student doing well at a State High School in the Brisbane suburbs. She wants to study science when she leaves high school. She reported a great relationship with her father and wanted to go back to a week about living arrangement between her parents in January this year, when interviewed. She reported that she rarely requires discipline from her father, but that when she does, he “grounds” her or takes privileges off her. She reported extreme sadness at the limited time that she and her father get to spend with the twins.

9. Z confirmed to Ms C that she stays in contact with the mother, who is also in contact with Z’s mother. Between them, they arrange for Z to spend a few days and nights with the mother and her siblings, at least in the school holidays, if not during school term. Clearly, the father has done nothing to stop that or interfere with it in any way.

10. The communication between the mother, Z and the Z’s mother also satisfies me that if there was anything really negative occurring in the father’s household in respect of the relationship between Z and her father, the mother would most likely know of it and would have put that into evidence. That she has not, gives me cause for optimism in respect of the father’s care of Z and his potential future care of the twins if they start spending time with him.

What then of the history of violence?

1. In the very first family report that was done at the beginning of 2017, the first report writer, Ms H, made some recommendations that led to orders that were made by Judge Turner that I have already referred to. Those included that the father refrain from all use of physical discipline with the children and that he engage in “recognised interventions” such as a Triple P parenting program.

2. The extent to which the father complied and availed himself of such programs and assistance has been brought into serious questions in these proceedings. The father did attend upon the Brisbane Psychologist, Mr E, in 2017. Mr E provided a written report. In its conclusion, he said some reasonably positive and optimistic things about the father, his insight and his capacity for potential change and improvement. Clearly, Mr E considered further work with the father was desirable. However, the evidence given by the father was that he only attended upon Mr E on a few more occasions after that report. He asserted that Mr E told him that there was nothing more he could do for him. I do not accept that without any confirmatory evidence from Mr E. I am satisfied that the father lost his commitment to keep attending, particularly after he obtained orders from the Court that provided for unsupervised time with the children.

3. In his evidence for the trial before me, the father said that he attended a Triple P Parenting Program and attached a copy of a Certificate purportedly evidencing that from March 2017. He also said that he attended and completed a Stopping Family Violence Individual Counselling Program at M Group over six sessions from January 2017 to April 2017. He attached a letter evidencing that from Relationships Australia. He said that he completed a Parenting Orders Program run by N Group and attached a Certificate evidencing that dated 3 April 2017. Accepting that he did those courses in 2017 is a positive thing.

4. However, there was evidence before the Court that satisfied me that there is a need for the father to obtain some further assistance in respect of his insight and understanding about these matters. There was no dispute that he demonstrated ambivalence to Ms C about the need not to use physical discipline on the children, even though Z apparently confirmed that he does not use it on her. There was also evidence that a subsequent relationship with another woman broke up after about eight months, with there being a suggestion that he was a bit tough on her children of a former relationship. My finding that he did not admit to and accept full responsibility for the true level of violence that existed in his relationship with the mother is also relevant. Also of relevance, is the evidence that the children have been having some ongoing assessment for Attention Deficit Hyperactivity Disorder and that X’s behaviour at school has been boisterous and disruptive. The children might not be totally easy to parent, it would seem.

5. As proposed by the ICL, I will make orders that obligate the father to enrol in another program or course of counselling to help educate and support him to understand the risks that violence pose to his children’s safety. I will also make the order proposed by the ICL that each of the parents completes another Parenting Orders Program run by Relationships Australia or Centacare or a similar organisation. I do not consider that it will be too much for the father to be expected to do another one of those now more than three years after the first one, particularly given the fact that the co-parenting relationship and the commitment he has demonstrated to maintaining the relationship with his children has clearly deteriorated in the years since.

6. My orders will also require that these courses be completed by the father before any time he spends with the children progresses beyond the supervision at a children’s contact centre that I will be putting in place for some months. If he does not have the desire, the capacity and the wherewithal to undertake and complete these courses, then, pursuant to my orders, he will not be permitted to progress to spending unsupervised time with the children, as their safety would likely remain at an unacceptable risk in the absence of this capacity and the greater insight that the courses should give him. He should have plenty of time to do the courses before the supervision finishes as it will probably be a few months before a children’s contact centre is able to accommodate this family. I will require the contact centre to be a not-for-profit centre and not one of the commercial operators. This way, the father will not have the cost of the supervision being a prohibitive factor in re-establishing the relationship with the children.

What of the father’s apparent lack of commitment to furthering his relationship with the twins?

1. The evidence about this is rather troubling. I have already referred to much of it. The fact that the father made an offer to the mother at one point in time to walk away from the children in return for a financial settlement that was acceptable to him is the worst of it. When confronted about that in the witness box, the father became emotionally upset and demonstrated what I considered was significant distress at the thought of not having an ongoing relationship with the twins. Yet, over the last eighteen months and even since the trial concluded, his commitment to having that ongoing relationship still appears questionable.

2. Nevertheless, as I have already said, and as any student or practitioner of family law knows, parenting cases are all about the children and less about the parents. These two children enjoy spending time with their father. Their father has demonstrated commitment to parenting his thirteen year old daughter. I will give these twins the chance for their father to demonstrate that same commitment to parenting them, but he will have to demonstrate it is a real commitment if he wants to continue to spend time with them and parent them at the end of the period of supervision that my orders will provide for. Just as is proposed by the ICL, if the father misses any of the fortnightly visits once they are in place at a children’s contact service, without a medical emergency being the cause of that, then his time with the children, supervised or unsupervised will cease completely. These children need and deserve certainty in respect of their relationship with their father. That is what my orders are intended to provide them with.

3. The father can take Z with him to the visits at the contact centre if the operators approve of that, but he will not, as he has done in the past, be able to use the fact that she cannot make the visit a reason for it not happening.

4. The mother shall choose the particular not-for-profit children’s contact centre that the supervised contact will take place at. I will set time limits within which that should be done. I will provide for alternate weekend supervised visits to take place for three months from their commencement or until the father has completed the courses I have referred to, whichever is the later. Time will then, provided the pre-conditions have been met, step up to unsupervised time for three hours on Saturday and Sunday of each alternate weekend for another three months. After that time, it will step up to all day unsupervised time with the father on Saturday and Sunday of each alternate weekend for another three months, before moving to being all day Saturday and overnight to Sunday afternoon each alternate weekend for three months. Finally, it will step up to be alternate weekends from 5:00 pm on Fridays to 5:00 pm on Sundays and will stay like that on an ongoing basis.

5. In the first twelve months, there will be telephone communication between the children and the father on special days and after that twelve months, if he is seeing the children in accordance with the balance of the orders, then he can spend some time with them on those special days and he can also start spending time with them during school holidays.

6. I will make other orders proposed by the ICL in respect of the sharing of information and any medication the children are taking.

1. I will order the mother to ensure that she does her best to ensure that Z and W continue to spend time in each other’s company also, as well as Z spending time with the twins, particularly if the father does not maintain his commitment to having the children in his care, particularly when Z is in his care.

2. I will make an order that restrains the father from consuming or being under the influence of alcohol or illicit drugs whilst the twins are in his care. The mother has abstained from consuming alcohol for a long time now, so I will not make the same order in respect of alcohol against her. However, there was evidence that the mother used an illicit drug some time ago since separation. I will direct a restraining order at her in respect to illicit drugs, also. 

3. I will make mutual non-denigration orders and orders mutually restraining each of them from using any form of physical discipline on the children.

4. I will make the orders proposed by the ICL in respect of the parents’ communication with each other by email or text or via an internet based program.

5. I will make the order that the mother attend the violence awareness program proposed by the ICL and for the mother to be restrained from bringing the children into contact with the partner who she was with since separation who also subjected her to abusive treatment. I will also order the mother to ensure that the paediatric assessment of the children about which there was evidence is obtained and any treatment programs recommended to be implemented by her and the father.

6. I will order the ICL to be discharged six months after the date of my orders so that she may just monitor compliance with my orders for that period.

The Property Adjustment Proceedings

1. At the time of the trial, the parties had $105,278 in a solicitor’s trust account which represents what is left from the balance of the proceeds of sale of their former family home that was jointly owned. It was sold sometime in the year or so after they finally separated. There was more in the trust account initially, but part of the way through these proceedings the sum of $4,543 was drawn out of those funds and paid to the Child Support Agency to discharge arrears of child support the husband owed at the time.

2. In her 2020 Financial Statement, the mother said she owned a Motor Vehicle 3 that she had purchased in the last year and asserted it was worth $24,000. There was no liability attached to that car.

3. She said she also owned some household contents which she estimated were valued at $5,000.

4. The father had not filed a Financial Statement since 2016. In that one, apart from the jointly owned home, he said he owned a motor car that he estimated was worth $1,000. In his trial affidavit, he said he had sold that car and received $2,800 for it.

5. In her trial affidavit, the mother said that the father had retained most of the contents of the former family home and that he had sold some of those. She did not put an estimated value on any of that. The father simply said that it had a nominal value. However, in a November 2018 loan application he made for finance to purchase a car, he said that he had $70,000 worth of furniture. I am satisfied that was not true.

6. The father said in his affidavit that there had been a Motor Vehicle 1 that they had purchased during their relationship and that the mother had retained it at separation. In his oral evidence, he said that car was no longer registered in the mother’s name and asserted a value for it of $11,000 that he said came from “Redbook”. He even asserted that he thought it had been transferred to the mother’s parents. The mother said in her affidavit that they had purchased Motor Vehicle 1 in 2011 for $32,000 with a deposit of $5,000 that she contributed from the sale of the car she had owned when they commenced their relationship. She said they borrowed the balance of the purchase price. She did not say what had happened to that car and she was not cross-examined about that at the trial. She did not mention it in her 2020 Financial Statement, but did mention a new car she owned. I expect she must have sold or traded the Motor Vehicle 1 or given it to her parents in return for their financial support.

7. There was also evidence that the mother had received the sale proceeds of $53,664 on the sale of a property that she had owned in her own name, having received that in the property settlement with her partner who she had separated from before she met the father. That property had been sold by her after separating with the father. The mother said that she had paid all of those sale proceeds received by her to her parents in partial repayment of around $200,000 that they had lent to her in order to pay for her legal representation in this case.

8. The evidence established that the mother had $3,897 in a J Super Fund interest in her name. She had withdrawn $10,000 from that superannuation fund in early 2019 pursuant to hardship provisions of her membership. The father had $6,357 in a J Super Fund interest in his name and $68,425 in a K Super Fund interest in his name.

9. The father asserted that he had credit card debts of about $17,200 and the wife had a credit card debt of around $5,000. The wife denied any knowledge of that credit card debt in her name. There was no documentary evidence produced at all that corroborated the evidence about the credit card debts. The fact that the father included them in his 2016 Financial Statement suggests his case was that they existed at separation, but I cannot be certain of that.

10. The oral evidence at the trial also revealed that the father owned shares in his own company through which he offered his construction services. The company owned a trailer worth $3,500 to $4,000 according to the father as well as a laptop computer. It leased a 4WD motor vehicle purchased in late 2018 for $50,000. It did not own much else and there was no evidence of the value of the company or its shares. There is evidence of its Profit and Loss Sheet in 2019. It made a $13,000 loss. I do not consider it would be worth more than the net value of its assets and that would not be much at all. But it did include the trailer the father said was worth $3,500 to $4,000.

11. Both parties asked for orders adjusting their rights to these interests in property and superannuation. Counsel for the mother asked the Court to award the mother all of the money in the solicitor’s trust account as well as a ‘split’ of $20,000 from the father’s superannuation interests. The father, in his Case Outline filed 22 June 2020 sought orders that provided him with 50% of a net pool of property that included the full net sale proceeds of their former matrimonial home, all of the net sale proceeds of the mother’s Suburb F property, an amount representing the Motor Vehicle 1, an amount representing the Motor Vehicle 2, nothing for the assets of his company, $10,000 worth of the mother’s superannuation, $63,586 of his superannuation and the credit card liabilities. The net total he included in that Case Outline was $241,016, so he was effectively asking for $120,500 worth of property and cash.

12. Accordingly, neither party is arguing that justice and equity does not require an order adjusting property and superannuation interests to be made. This fact, and the circumstances of their separation and their dispute about the division of their property and superannuation interests, satisfies me that it is just and equitable to make adjustment orders. They are to be determined pursuant to s 79(4) of the Act.[7]

    [7]Stanford & Stanford (2012) 247 CLR 108 at [42]

What does that require?

1. Generally, though it is not mandatory, property adjustment orders that are just and equitable are determined by a four step process. Firstly, the property and superannuation interests of the parties are identified and value determined. That pool of property and superannuation may be considered for adjustment, added to by the notional inclusion of capital of the parties that has been spent or dissipated by one or both of the parties since separation where the trial judge, exercising her or his discretion, considers justice and equity requires that notional ‘add back’. Most often, where the parties or one of them has spent capital that might have been spent on legal fees associated with the proceedings, that amount is notionally added back. Where capital has simply been used by one or both parties in the ordinary course of life, reasonably supporting himself or herself and any children, it would be the exception rather than the norm for it to be added back.

2. Secondly, all of the parties’ contributions across all facets of the relationship, as set out in s 79(4)(a) to (c) of the Act, are considered and weighed before a notional division based on a percentage determined by that consideration and weighing process is undertaken.

3. Thirdly, consideration is then given to whether, having regard to a whole list of matters set out in s 75(2) of the Act in so far as they are relevant, there needs to be any further adjustment to that notional percentage division already arrived at, in order to do justice and equity.

4. Fourthly, orders need to be fashioned based on those determinations that can ultimately be considered just and equitable.

Determining the property and superannuation interests against which property adjustment orders will be made

1. I will, of course, include the sum of $105,278 that is held in a solicitor’s trust account as property of the parties. To that, I will also notionally add the sum of $4,543 that was drawn and paid to the father, effectively, to pay to the Child Support Agency that amount in arrears that he was behind in. That will be treated as property already had by the father as part of his just and equitable entitlement.

2. I will not add into this pool any of the furniture and household contents held by the parties as there is insufficient evidence to be satisfied that it has all been properly identified and no evidence that any of the furniture in either party’s hands has been valued. Each will simply retain what they have in their possession.  

3. Each of the mother and the father had retained a motor car at separation and since disposed of it. The evidence, though not entirely conclusive, suggests that the car that the mother retained might have been transferred to her parents. That is what the father said in his oral evidence and it was not challenged or refuted by the mother. The mother purchased a new car and has not asserted that there is debt associated with that. It may be that her parents helped her buy that new car and took the other car as their own in return. Other evidence that was undisputed about this other car was that when it was originally purchased the mother had used a car owned by her at the commencement of the relationship to trade in as a deposit of $5,000 on the purchase of the new Motor Vehicle 1. There is no other evidence about the Motor Vehicle 1. The father simply asserted in his Case Outline that it would be worth $6,000 and wanted that amount notionally included in the value of the pool of property being adjusted. In his trial affidavit, the father asserted a value of $11,000 should be ascribed to the car, referring to the “Redbook” valuation. The father did not argue that the currently owned Motor Vehicle 3 should be included.

4. On the other side of the ledger, the father apparently accepted that the proceeds of sale that he received for the old Motor Vehicle 2 should be included. However, that figure also varied from $500 in his Case Outline to $2,800 in his trial affidavit.

5. With the evidence about these motor cars and their sale proceeds being in such a parlous state, I consider the safest thing to do is to simply exclude any amount for the sale proceeds of either vehicle from the net property pool. I will not include any amount for the motor car the mother now owns or the motor car the father has purchased, albeit through his company, either. Furthermore, I will not include the trailer the father also owns through his company, either. None of what little evidence was given by both the mother and the father about these matters could be safely considered as being reliable in my judgment. The amounts involved do not suggest to me that justice and equity demands any other outcome.

6. In respect of the credit card debt, again I will not include any amount of debt in calculating the pool of net property and superannuation interests against which orders will be made. Without agreement by the mother and without the father adducing any documentary evidence to corroborate his claims that after separation he was left with $17,000 worth of credit card debt, I am not persuaded that this amount of debt should reduce the pool of property and be taken into account when making just and equitable orders.

7. In respect of the amount of $53,664 that the mother received as net proceeds of the sale of the property she owned at Suburb F, that she had retained in an earlier property settlement with another partner, I will notionally add that into the pool being considered. The mother’s clear evidence was that she paid that money to her parents as part repayment of much more than that that they had loaned to her to pay her legal fees associated with these proceedings. It is appropriate then, in my judgment, to notionally add that back in as property already received as it was used, effectively, to pay legal fees in these proceedings.

8. I will add in $3,897 in superannuation on the mother’s side and $74,782 in superannuation on the father’s side. I will not notionally add back the sum of $10,000 the mother withdrew from her superannuation fund pursuant to the hardship provisions of her fund. She spent that money on day to day living and supporting the children, at a time when the father was not paying much, if any child support.

9. The total of those is $242,164 of which $4,543 is property already had by the father and $53,664 is property already had by the wife.

10. The father does have another debt to the Child Support Agency, being arrears of child support that he owes that has arisen again since the last lot of arrears was discharged. That will not be considered as reducing the divisible pool though.

Considering and weighing the contributions of the former couple  

1. Cohabitation commenced in October 2010. At that time, the father owned a real property at Suburb G subject to a mortgage. He said that he had $50,000 worth of equity in that property. He owned a car, some furniture and a very small amount of superannuation. He said that the mother owned a half share in the Suburb F property and that there was equity of only about $6,000 in that property at that time. He said she owned a car, furniture and a very small amount of superannuation.

2. The mother agreed that the father owned a property at Suburb G but says when it was sold in 2014 it only realised $60,000 in equity, and that was after they had undertaken renovations to it in the meantime. She agrees he owned a motor car. In respect of the property she owned, she said that her half share of the equity was worth about $15,000 and she agreed she also owned a car.

3. The mother said (and it was not disputed by the father) that the father’s car was stolen in March 2013 and that he received $18,500 from the car’s insurer which they applied to living expenses.

4. The father agreed that they undertook renovations to the Suburb G property before it was sold. Some of that work was undertaken by the father’s brother at a discounted rate. The mother and the father did some of the work together themselves and they had tradespeople do other work.

5. The difficult part of the father’s evidence to accept is his estimate of its value when their relationship commenced and before they did the renovations. It is his stated opinion only, but he said it was worth $350,000 at the commencement of cohabitation before they had undertaken the renovations. After renovating it, when it was sold in 2013, it sold for only $368,000. I do not accept, particularly without valuation evidence as to what it was worth at the commencement of cohabitation that it was worth $350,000 at that time. I do not accept that he had $50,000 worth of equity in it at that time.

6. When they sold it, around $60,000-$70,000 net proceeds was received. $30,000 of that went into their new home and $20,000 went towards repaying the car loan they had taken out to buy the Motor Vehicle 1 and about $8,000 was used to pay for expenses related to purchasing and moving in to their new home. They agree on that. They disagree about one other aspect. The father said that the mother’s parents had loaned them $10,000 to put towards the deposit on their new home and that they were repaid out of the sale proceeds of the Suburb G home. The mother said that her parents paid them $10,000 to be used for the renovations on the Suburb G home and that it was not repaid to them but rather used in the purchase of the new home. On this point, I am inclined to accept the father’s evidence over the mother’s. He set his evidence out carefully in his trial affidavit. The mother did not. The father’s figures are apparently more carefully thought out and set out. I consider his evidence is more likely to be right on this point.

7. The mother said nothing in her affidavit about the money she received from the sale of her property. The father had said they had spent about $3,500 on fixing damage to that property during their marriage. Apart from that, his contribution to that property could be considered as helping through his earnings to create a financial situation where the mother could hold onto it throughout the marriage.

8. The mother’s contribution to the $60,000 - $70,000 worth of equity the father got out of his Suburb G property was greater. She worked on the renovations with the father and their joint income/savings during the time of the renovations were used to pay for those renovations. I assess her contributions to the equity that was pulled out of her property on sale and to the equity that was pulled out of the father’s formerly owned property on sale to be greater than the father’s.

9. By way of slight offset, equity realised from the father’s pre-owned motor car was three and a half times as much as the equity realised from the mother’s pre-owned motor car – being $18,500 to $5,000.

10. The father and mother both worked during the relationship until such time as the mother ceased employment to care for the children full-time. The father earned greater income than the mother whilst they were together, particularly from his work, but that was well and truly offset by the fact that the mother did the bulk of the parenting, particularly so when the father was out working, during which time the mother did all of the parenting.

11. The mother’s child of a former relationship lived with them during all of their marriage and did not spend time with her father. The mother received child support for her from that child’s father, but the father contributed as a step-parent in providing some physical care and financial support for her.

12. The father’s child of a former relationship lived with them on and off during their marriage. The father paid child support to her mother but was assisted by the mother who contributed as a step-parent in caring for her. The respective contributions of the mother and the father could, I accept, be reasonably considered to cancel each other out in this respect.

13. Accordingly, I am satisfied that but for the contributions surrounding the equity contributed by each of them from their respectively pre-owned houses and motor cars they otherwise can be considered to have contributed equally across all facets of the s 79(4)(a) to (c) contributions up until the time of separation.

14. Post-separation, I have little difficulty in considering that the mother’s contributions outweigh the father’s. He stayed in the former family home and had the use of it for several months whilst the mother and children had to obtain alternative accommodation. He did not keep up all of the mortgage repayments in that time either, though I do not have precise evidence as to the amount he did not repay. There can be no dispute that the mother has borne virtually all of the responsibility both practically and financially for supporting the children in the four years since separation. Though the father has paid child support, it has not been much and it has been sporadic, with arrears accruing over time which at trial were over $6,000.

1. The notional percentage division of the divisible property, superannuation and notionally added property, I would attribute to the mother and the father up to the time of the trial to weigh in the mother’s favour 67.5% to 32.5%.

What of any further adjustment pursuant to s 79(4) (e) and s 75(2)?

1. The mother will have the principal responsibility for caring for the eight year old twins for at least another ten years, probably without much child support from the father as it has been in the last four years. The children also appear to have some health and behavioural difficulties which could make the mother’s parenting task more difficult and more financially demanding. The mother was earning at trial an annual income of around $41,000 taxable. The father’s taxable income for 2019 was reported to be $18,602, but that was after he generated it through a company that is his alter ego through which he contracted his construction services. The Profit and Loss Statement of the company for that same year provides a clearer picture of the reality.

2. The company earned gross receipts of $70,136 for the year. It depreciated plant by $6,395, made tax deductible donations of $3,565, it paid out $12,500 in motor vehicle expenses and paid out $22,735 in wages which was paid to the father along with $3,062 in “overtime meal allowances”. Curiously, the father then claimed as deductible expenses on his own income tax return the amount of $3,062 that he had been paid in meal allowances and the $3,565 in donations that appeared on the company’s Profit and Loss Statement. I am satisfied that the father’s income is actually more than the mother’s income in reality without the ‘artiface’ of the corporate veil and the creative accounting around business expenses and deductible expenses in this case. I am also satisfied that the father has a greater earning capacity over the longer term than the mother does, including a greater capacity to accumulate more superannuation. That is evident from the stark comparison between the incomes they earned in the past – the father earning up to $200,000 per annum and the mother earning up to $70,000 per annum.

3. 67.5% of the sum of $242,164 is $163,460. 32.5% is $78,704. 10% of the total is only $24,216. The father, I am satisfied, will earn that much more than the mother does in a very short number of years. Adjusting the division in favour of the mother by another 10%, taking her total to 77.5% will give her $187,677 and the father $54,487. I am satisfied that is an adjustment that will facilitate property division orders being made that are just and equitable.

What Orders should be made?

1. The mother has already had $53,664 and the father has already had $4,543. This leaves the mother to receive $134,013 of which $3,897 she already has in her superannuation interest. Accordingly, this entitles the mother to another $130,116 in cash and superannuation by way of a split from the father. The father is entitled to receive cash and retain superannuation in the total sum of $49,944.

2. Counsel for the father submitted that it would not be just and equitable for the father to only retain superannuation with the mother to receive all the cash. I accept that submission. Accordingly, I consider that the father should receive $25,000 of the cash that is held in trust and he should retain $25,000 of his superannuation interests, rounding him up to $50,000. His superannuation interests should be retained as to $6,357 in J Super Fund and $18,643 in K Super Fund. This will result in the wife receiving $80,278 of the money held in the solicitor’s trust account and receiving a split of $49,782 in super from the father’s K Super Fund interest.

3. I am also conscious of the fact the father is likely to receive a notice from the Child Support Agency for payment out of the funds he is to receive from the money in the solicitor’s trust account of any arrears in child support that he currently owes. Of course, that is appropriate and he will have the funds to pay it.

4. I will make property adjustment orders in terms that are set out at the commencement of these reasons satisfied that they are just and equitable.

A Costs Issue

1. At the end of the trial before me, each barrister raised the question of their client’s costs thrown away by the fact that they were ready for trial in the FCC in December 2018 and on the morning the trial was to start the matter was transferred to this Court because no FCC Judge was available to hear it. Without taking me to a section of the Federal Proceedings (Costs) Act 1981 (Cth) that would apply, they all submitted that it is grossly unfair to the litigants in this case to have incurred the costs of solicitor and counsel for trial in the FCC, when through no fault of their own the trial was not reached and their matter transferred to this Court, where they had to wait another eighteen months to get a trial.

2. I have great sympathy for the argument. It does seem extraordinarily unfair for a Court to list a matter for a trial and then, on the day of the scheduled trial, simply tell the litigants that there is no judge to hear them and then transfer their matter to another Court where they must wait another year and a half for that trial to come on again without them receiving some of their costs from the Commonwealth. At first blush, one might reasonably think, as counsel clearly did, that the scheme established by the Act I just referred to would provide for it. Upon examination, it does not, in my judgment.

3. The closest provision of relevance, in my view, is s 10(3) of that Act. It provides:

   (3) Subject to this Act, where:

   (a) the hearing of any proceedings in a court to which this section applies [and it applies to the FCC and this Court] is discontinued and a new hearing is ordered; and

   (b) the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings;

   the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.

4. I am not able to apply this provision to assist the litigants as their hearing was not discontinued with a new hearing ordered. It was the case that their hearing was just not actually started and their matter was just transferred to be heard in this Court.[8] The section does not apply, in my respectful view. I cannot grant any of the parties a costs certificate as they asked.

   [8]See Ward & Schembri (2005) FLC 93-229 and Furnari & Furnari [1998] FamCA 171 at [12].

5. I make all the parenting and property orders set out at the commencement of these written reasons.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 19 November 2020.

Associate: 

Date:  19 November 2020