Segur & Segur (No. 2)

[2010] FamCA 801

FAMILY COURT OF AUSTRALIA

SEGUR & SEGUR (NO. 2) [2010] FamCA 801

FAMILY LAW – CHILDREN – Allegations of child abuse – Magellan list –– Allegations of abuse by mother against the father unsubstantiated and unsustainable – Best interests of children – Emotional abuse – Change of primary care from mother to father

FAMILY LAW – PROPERTY – Just and equitable – Superannuation

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 62 G, 65DAA, 65DAC, 65DAA, 68LA

B and B: Family Law Reform Act (1997) FLC 92-755
C & C [2005] FamCA 429
Hemiro and Sinla [2009] FamCA 181
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Re: H & Ors (1996) 1 All ER 1
H & W (1995) FLC 92-598
McCall & Clark [2009] FamCAFC 92
Partington & Cade (No. 2) [2009] FamCAFC 230
R & R: Children's Wishes (2000) FLC 93-000
Russell & Russell (1999) FLC ¶92-877

APPLICANT: Ms Segur

RESPONDENT: Mr Segur

INDEPENDENT CHILDREN’S LAWYER:

Ms R Hamilton,

Victoria Legal Aid

FILE NUMBER: MLC 11159 Of 2008

DATE DELIVERED: 10 September 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: BENNETT J

HEARING DATE: 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26,   February, and 9 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS L COLLA

SOLICITOR FOR THE APPLICANT: JA MIDDLEMIS

COUNSEL FOR THE RESPONDENT: MR J ST JOHN SC

SOLICITOR FOR THE RESPONDENT: McDONALD PARTNERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER MR D LAIDLAW CSC

INDEPENDENT CHILDREN’S LAWYER VICTORIA LEGAL AID

Orders

IT IS ORDERED:

CHILDREN

1. That all previous orders be discharged.

2. The father and the mother have equal shared parental responsibility for the children of the marriage B born … December 1999, H born … December 2001 and G born … July 2005.

3. The children live with the father.

4. That the children spend time with the mother during school terms as follows:

   (a)Each alternate weekend from the conclusion of school on Thursday until the commencement of school on the following Monday morning (or 4:00 p.m. Monday it falls on a prescribed long weekend); and

   (b)Each alternate Thursday, from the conclusion of school until the commencement of school the following morning.

5. That the provisions of paragraph (4) of this Order:-

   (a)Commence from the commencement of the third term for S School; and

   (b)Commence in such order as the father may elect and, for that purpose, the father notify the mother in writing, through their respective lawyers, by not later than 12 noon on Tuesday 14 September 2010 as to which of the weeks will fall first in the sequence.

6. That until G commences primary school, G’s time with the mother pursuant to paragraph (4) of this order be extended:-:

   (a)In the case of time spent in accordance with (4)(a), until 4:00 p.m. Monday; and

   (b)In the case of time spent in accordance with (4)(b), until 4:00 p.m. Friday.

7. That the children spend further time with the mother as follows:

   (a)For the first week in each of the school term holiday from after school on the last day of the school term until 4.00 p.m. on the second Saturday of the school term holiday (eight days later);

   (b)For one half of the Christmas long school holidays at times to be agreed save that Christmas Day shall alternate between 4:00 p.m. Christmas Eve to 3:00 p.m. Christmas Day in one year and 3:00 p.m. Christmas Day until 4:00 p.m. Boxing Day in the other with the father to have the children on Christmas Eve/Christmas Day in 2010;

   (c)Each Mothers Day, if it does not fall on a Sunday during which the mother is entitled to spend time with the children, from the preceding Saturday at 5:00 p.m. until 5:00 p.m. Sunday;

   (d)From 4:00 p.m. until 8:00 p.m. on each of the children’s birthdays (being … and … December and … July), if the birthday does not fall on a day during which the mother would otherwise spend time with the children;

   (e)From 4:00 p.m. until 8:00 p.m. on … March, the mother’s birthday, if the mother would not otherwise be entitled to spend time with the children; and

   (f)At such further or other times as may be agreed upon between the parties, in writing, from time to time.

8. Notwithstanding any provision to the contrary, the father have the children in each year on:

   (a)Fathers Day, from the preceding Saturday at 5:00 p.m. until 5:00 p.m. Sunday;

   (b)From 4:00 p.m. until 8:00 p.m. on … February, the husband’s birthday; and

   (c)On each of the children’s birthdays between 4:00 p.m. until 8:00 p.m. if such birthdays fall on a day which the father would not otherwise have the children.

9. Neither party impede or restrict the children from telephoning the other parent at reasonable times and, save in the case of an emergency, such calls to be no later than 9:00 p.m.

10. For the purposes of paragraph 4 hereof, if time is expressed to commence or conclude at or from school, the mother be responsible for the collection and return of the children from and to their respective school save for, in the event of Monday being a non-school day, the mother return the children to the father’s residence.

11. For the purpose of paragraph 7 hereof the mother collect the child or children from the ordinary residence of the father at the commencement of each spend time period and return them to his residence at the conclusion of spend time period.

12. For the purpose of paragraph 8 hereof the father collect the children from the ordinary residence of the mother at the commencement of the period and, if at the conclusion of the specified period, the mother is still entitled to spend time with the children by virtue of some other provision of this Order, the father return them to her at her residence.

13. That the operation of paragraph 4 hereof be suspended during all school term holidays and Christmas long school holidays and resume at the conclusion of each such holiday.

14. The father and the mother by themselves their servants or agents, be and are hereby restrained from causing, permitting or suffering:-

    (a)the other, or the partner of the other, to be denigrated in the presence of, or within the hearing of the children (or any of them); and

    (b)       the children, or any of them, to be disciplined or chastised by hitting.

15. Unless they have already done so, the father and the mother forthwith do all such acts and things necessary to enrol in, and to thereafter attend, post separation counselling at Centacare and enrol in and complete a post separation parenting course under the auspices of Centacare or Relationships Australia and each party shall provide to the other via lawyers their certificate of completion.

16. The father use his best endeavours to secure the participation of Ms N in all types of post separation parenting programs in which he participates (although not necessarily at the same time).

17. Both parties do all acts and things necessary to authorise the children’s kinder/school forwarding directly to each parent a copy of the children’s school reports, notices, invitations, assessment and documents ordinarily disseminated to parents at their own expense if any and each parent be at liberty to participate in the children’s school/kindergarten activities in which parents usually participate.

18. Each parent be entitled to attend at school on each child’s first day of school in each year and in the event of any conflict, the parents each abide any lawful directions of the school principal or his or her nominee although nothing in this order compels the school principal to make a direction or a nomination.

19. That the parents keep each other advised of the following:-

    (a)His/her current residential address and any proposed change thereto not less than 30 days prior to such change;

    (b)His/her current landline and mobile telephone numbers;

    (c)Any emergency, significant illness, accident or injury affecting the children or any of them;

    (d)Any prescription medication to be given to the children by the other parent; and

    (e)The names, addresses and contact telephone numbers of any medical dental or other health professionals attended by the children and each parent shall ensure that where practicable the children attend upon their usual doctor, dentist and any other health care professional.

20. The father, in consultation with the mother, do all acts and things necessary to:-

    (a)Obtain a medical referral for B to O Psychological Services for the purpose of her undergoing such personal or family therapy of treatment as appears necessary to the clinician and to the mother and father; and thereafter to take her to such therapy or treatment; and

    (b)Have B undertake an assessment and treatment for enureses at the O Incontinence Clinic in O.

21. That the father ensure that a copy of the reasons for judgment be made available to any treating psychologist or psychiatrist  or like practitioner of the children, or any of them and, for that purpose, the father be provided with three extra copies of the reasons.

22. That the independent children’s lawyer discuss the outcome of this proceeding with the principal of S School and, at her discretion, provide him with a copy of the reasons for decision.

23. IT IS REQUESTED that the Director of Child Dispute Services of this Registry of the Court allocate a family consultant to explain the outcome of these proceedings to the children in words likely to be understood by them and the parents do all acts and things necessary to ensure that the children are made available at the time and place appointed by the family consultant.

24. That the order requesting the appointment of the independent children’s lawyer be discharged in one month.

25. That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

PROPERTY

1. The requirement that the parties attend a conference with a Registrar or Deputy Registrar of this Court in relation to these property settlement proceedings be dispensed with.

2. Within 7 days the father and mother agree in writing as to the real estate agent to conduct the sale of the property situated at and known as L Street, O, and if agreement is not reached then such agent be nominated by the President for the time being of the Real Estate Institute of Victoria.

3. The parties have joint conduct of the sale of L Street.

4. The parties do all acts and things necessary to instruct Z Firm, or such other qualified person as is agreed between the parties, to undertake the conveyancing of L Street.

5. That L Street be sold on the following terms and conditions:

   (a)By public auction within 90 days (or by private treaty if the parties agree in writing);

   (b)At a reserve price of $365,000.00 or such other sum as is agreed between the parties;

   (c)For a cash price payable in not more than 90 days; and

   (d)Upon such terms and conditions as agreed between the parties in writing or, failing agreement, as recommended by the managing agent.

6. That the proceeds of sale of L Street be thereafter disbursed as follows:

   (a)To meet the proper adjustments between vendor and purchaser at settlement;

   (b)To discharge the mortgage to Bendigo Bank Ltd;

   (c)To meet the legal costs and disbursements of and incidental to the sale including any costs of nomination of a real estate agent to conduct the sale; and thereafter

   (d)The balance be divided as follows:-

   (i)45% to the mother;

   (ii)To the mother, the sum of $7,488 (on account of the father’s greater proportion of non-house assets);

   (iii)To the mother, an amount equivalent to 45% of the sell price of the Wesfarmers shares transferred to the father pursuant to paragraph 34 of this Order such price to be calculated as at the day of transfer; and

   (iv)The balance then remaining to the father.

7. Until further Order and pending the settlement of the sale the mother have the sole and exclusive occupancy of L Street and she pay all instalments pursuant to the mortgage and all rates, taxes and all other outgoings of the property as they fall due, AND during such occupancy the mother ensure the property is kept in a clean and tidy state and maintained in accordance with any directions of the selling agent appointed.

8. The father within a calendar month transfer all his right, title and interest in the Ford Territory motor vehicle to the mother and at her expense (inclusive of the cost of any necessary roadworthy certificate and associated repairs).

9. The mother contemporaneously with paragraph (33) [re: Ford Territory] herein transfer all her right, title and interest in the Wesfarmers shares to the father.

10. The mother forthwith pay the GE loan attributable to the purchase of the television in the sum of $1,440.97 and, thereafter, the father be solely responsible for the balance of the GE loan.

11. Within 14 days the mother make available for collection by the father, at his expense, the items listed in “Annexure A” hereto, together with the sideboard (gifted by the father’s father), the knife block set (gifted by the father’s father), and the remaining approximately 30 bottles of wine located in the L Street property.

12. Save as otherwise ordered, each party retain all items of furniture and chattels and other personal property including choses-in-action and bank accounts in their respective possession power or control to the exclusion of the other.

13. Each party retain all superannuation benefits in their name or arising from their respective employment.

14. Each party indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

15. I reserve general liberty to apply as to the terms and conditions of sale of L Street.

COSTS

1. Any application for costs be filed and served within 21 days and be supported by a written submission of not more than 7 pages (13 point font and 1.5 spacing).

2. Any respondent to an application for costs file and serve any written submissions upon which he/she seeks to rely not more than 21 days after service upon them of the application and such submissions be of not more than 7 pages (13 point font and 1.5 spacing) and specify whether he/she wishes to make oral submissions in addition to written submissions.

3. Any applicant for costs upon whom a response is served, file and serve any reply in writing, such reply to be of not more than 4 pages (13 point font and 1.5 spacing) and specify whether he/she wishes to make oral submissions in addition to written submissions.

PROCEDURAL

1. Any application for parenting orders or enforcement of this Order filed within 12 months may be listed directly before me in the event that I am reasonably available.

2. All exhibits tendered in these proceedings be returned (to the party on whose behalf the exhibit was tendered) at the expiration of any appeal period or the determination of any appeal which is filed within time (whichever is the later).

3. The father and the mother do all acts and things necessary to return the tender bundle to my Court Officer AND IT IS DIRECTED that such documents be destroyed at the expiration of any appeal period or the determination of any appeal which is filed within time (whichever is the later).

4. The Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the person producing same within 14 days.

5. Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1159 of 2009

MS SEGUR

Applicant

And

MR SEGUR

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. These proceedings are competing applications for final alteration of property interests and determination of parenting matters with regards to the parties’ three children, B born in December 1999, H born in December 2001 and G born in July 2005.

2. The matter was heard over 16 days in February and March 2010.  The bulk of the hearing time was expended on the competing parenting applications; considering which parent the children should live and what time the children should spend with the parent with whom they are not living.  The property pool is modest and the issues much less contentious.  The competing property applications will be dealt with after the determination of parenting issues.

3. The parenting and property proceedings were originally listed for final hearing in July 2009 in the Federal Magistrates Court of Australia.  The hearing was vacated due to the parents filing interim applications arising out of allegations by the mother against the father of sexual abuse of G on an unspecified date and of B on 22 April 2009.  At the final hearing before me, the mother’s position with respect to the sexual abuse allegations was ambiguous. Her counsel conceded that the evidence could not substantiate a finding that the children spending time or living with the father would expose any or all of them to an unacceptable risk of sexual abuse.  Whilst the mother maintained the view that ‘something inappropriate had happened,’ she conceded it was unlikely to happen again.  The father’s case at the trial was that the mother had abused the children physically, through the use of inappropriate discipline, and psychologically, by maintaining sexual abuse allegations which, at best, she knew could not be substantiated, and at worst, were an act of malice on her part.

4. The evidence largely centred on the events preceding and subsequent to the sexual abuse allegations.  In addition, both parties made allegations of the other yelling, physically disciplining the children and other inappropriate or emotionally abusive behaviour.

5. This is a case of complex issues which in many ways belies the acknowledgement that was eventually forthcoming from the parties that the children will benefit from having a meaningful relationship with the other parent.  Each parent seeks primary care of the children but eventually agreed that the other parent should spend substantial time with them.  At the commencement of the hearing the operative parenting order provided that the children spend supervised time with the father on Sundays from 9.00 a.m. until 6.00 p.m.  By the time of final addresses, the parties agreed that the best interests of the children required that, pending judgment, the children should spend not less time with the father than each alternate weekend, from Thursday after school until the commencement of school on Monday, and every other Thursday from after school until the commencement of school on Friday as well as half of school holidays and on special occasions.

Evidence

1. At the trial the applicant mother relied upon the following evidence:

   a)Affidavits sworn by her on 7 February 2010, 2 February 2010, 9 December 2009, 23 October 2009, 25 June 2009, and 26 May 2009;

   b)The Notice of Child Abuse filed 27 May 2009;

   c)The mother’s financial statements filed 10 December 2008 and 23 October 2009;

   d)The affidavit of the maternal grandmother sworn 7 February 2010;

   e)The Department of Human Services (DHS) Magellan Report dated 24 June 2009;

   f)The Family Report prepared by Ms E dated 29 September 2009;

   g)Her oral evidence given over 2 days, with leave.

2. On Sunday 7 February 2010, the day before the trial commenced, the mother filed an affidavit electronically, sworn on the same date, which she sought to rely on in these proceedings.  The affidavit of the maternal grandmother was sworn and filed electronically on the same date.

1. The mother’s affidavit sworn 7 February 2010 purported to be a response to the affidavit of the father sworn 9 November 2009.  It contains a mixture of narrative replying to paragraphs of the father’s affidavit, as well as references to paragraphs of his affidavit as ‘admitted’, ‘denied’ or ‘not in issue.’  The mother’s counsel clarified at the commencement of the trial that paragraphs stating ‘not in issue’ signified that the mother had her own account of events. Leave was consequently granted for the mother to give evidence in chief on the items ‘not in issue’, as it became clear that these facts consisted of contested matters.  This evidence protracted the proceedings for approximately one and a half days.  Counsel for the mother explained that her instructing solicitor had not understood that evidence in response would be required and that he had prepared the case to a standard similar to a matter to be dealt with on circuit.  In addition, leave was granted for the father to give evidence in response, which further protracted the proceeding.

2. The mother and maternal grandmother were cross‑examined.

3. At the trial the respondent father relied upon the following evidence:

   a)His affidavits sworn 9 November 2009 and 3 December 2009;

   b)His financial statement sworn 6 November 2009;

   c)The affidavit of Ms N (his partner) sworn 6 November 2009;

   d)The affidavit of the paternal grandfather (his father) sworn 6 November 2009;

   e)The affidavit of the paternal grandmother (his mother) sworn 6 November 2009;

   f)The transcript of proceedings of 11 December 2009;

   g)The report of Dr W dated 16 May 2009[1];

   h)The single expert witness valuation report of C Valuers dated 16 November 2009; and,

   i)His oral evidence, given over two days with leave.

   [1]  Exhibit “ICL4”.

4. The father and all of his lay witnesses were cross‑examined.

5. The materials and evidence relied upon by the ICL were as follows:-

   a)The DHS Magellan Report dated 24 June 2009;

   b)The Family Report prepared by Ms E dated 29 September 2009 and the supplementary report dated 8 September 2010;

   c)The report of Dr W dated 16 May 2009.

   Ms E was cross‑examined by all parties in respect of her first report but was not required for cross‑examination in respect of her supplementary report.

6. In addition, the ICL relied upon the oral evidence of the following witnesses:

   a)Ms M, counsellor;

   b)Mr P, protective worker at DHS;

   c)Ms E, family consultant;

   d)Mr K, Principal of S Primary School;

   e)Senior Constable T, O Police;

7. Dr W was not required for cross‑examination.  I accept his evidence as not challenged.

8. There were numerous Exhibits and a court book or tender bundle[2] from which all parties tendered some documents.  The documents included in the court book were not admitted into evidence (or read by the Court) unless specifically tendered.  The following pages were tendered:-

   a)By the mother: pages 2, 3, 138, 139, 154-159, 270, 279-291, 420-427.

   b)By the father: 56, 57, 271.

   c)By the ICL: pages 292-404 and 433-445.

   The court book contained copy documents produced on subpoena including documents from DHS.  The book was produced on the basis that each copy would remain in the safe custody of counsel and be returned to the court at the end of the proceedings to be destroyed.

   [2] Exhibit “C6”.

9. Ms U, Deputy Manager of Child Dispute Services, attended briefly to inform the Court that the Court has insufficient resources to support any order for supervised counselling pursuant to s 65L of the Family Law Act 1975 (Cth) (‘the Act’) intended to operate after final orders were made.

Findings of fact

1. The relevant test for the Court’s assessment of evidence in this matter is found in s 140 of the Evidence Act 1995 (Cth). Section 140(1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities.

2. Lord Nicholls discussed the standard of proof to a balance of probabilities in Re: H & Ors (1996) 1 All ER 1[3] in the context of a wardship application.  His Lordship relevantly stated:

   "Despite their special features, family proceedings remain essentially a form of civil proceedings.  Family proceedings often raise various serious issues, but so do other forms of civil proceedings. 

   The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not.  When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.  Fraud is usually less likely than negligence.  Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. 

   Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher.  It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.  The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".

   [3] (1996) 1 All ER 1, 16.

3. In these reasons a statement of fact is a finding of fact.

4. Passages quoted from documents before the Court are reproduced verbatim; grammatical or spelling errors are not corrected. 

Financial matters dealt with after parenting matters

1. The parenting applications are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Act apply. Section 69ZT operates to exclude various divisions and chapters of the Evidence Act1995 (Cth) which deal with general rules about giving evidence[4], cross examination[5], documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. 

   [4] With the exception of ss.26, 30, 36 (s 69ZT(1)(a) of the Act refers).

   [5] With the exception of s 41 relating to improper questions.  

2. Section 69ZT(3) provides that in exceptional circumstances and having regard to various matters such as the importance, nature and subject of evidence, probative weight and natural justice, the Court can decide that certain excluded provisions of the Evidence Act1995 (Cth) should operate in the proceedings.

3. Several days prior to the commencement of this Magellan sitting, the Court invited submissions from the parties as to how the parenting proceedings (to which certain significant rules of evidence did not apply) could be heard at the same time as the financial applications (to which the rules of evidence do apply). Senior counsel for the father made application for the provisions excluded pursuant to s 69ZT to apply to the parenting proceedings in the same way as they apply to the financial proceedings. I granted that application for reasons which I delivered at the time, which I now incorporate into these reasons.[6]

   [6] Segur & Segur [2010] FamCA 556.

4. The Act requires one pathway for financial matters and another very specific pathway for parenting matters.  All evidence was received together but, as indicated, these reasons will deal first with the parenting matters and then with the financial matters.

Parenting matters

The mother’s position

1. The mother’s case is that the children are primarily bonded to her and should remain living predominantly in her care.  She says that parental responsibility should be shared between herself and the father and that, henceforth, she will be able to communicate with the father about the children by email or, if necessary, by telephone.

2. With respect to the allegations of child abuse against the father, the mother’s position ebbed and conflicted.  Her general position appeared to be that she believed something ‘inappropriate had gone on’, and that although B retracted her allegations the mother was not able to rationalise the statements of the younger child, B, which had preceded B’s.  It was submitted on behalf of the mother that she accepted that there was insufficient evidence to satisfy the Court of an existing unacceptable risk of abuse.

3. In terms of her conduct subsequent to the allegations of abuse, the mother submitted that she followed the advice of professionals and that she did not behave with malice towards the father or his partner Ms N.

4. The mother denies inappropriate disciplining or emotional abuse of the children and makes counter-allegations against the father.

5. Ultimately the mother seeks orders[7] that the children should reside primarily with her, spend five out of 14 nights with the father over alternate weekends and the children can ask to call the father by telephone when they wish to do so.  She agrees to holidays and special occasions being shared equally.

[7] Exhibit “W13” minutes of orders sought by the mother handed up in final addresses. 

The father’s position

1. The father’s case is that the mother has not permitted, and will not permit, the children to have a meaningful relationship with him.  The father contends that the mother’s limitation of time which he could spend with the children since separation, the perpetuation of sexual abuse allegations well after they had not been proceeded with by police and DHS and her uncontained and abusive behaviour in front of the children, were calculated to undermine the girls’ relationship with him.  He contends further that the mother has been unable to come to terms with his relationship to Ms N and has conducted herself will ill-intent towards him and his partner, which has had deleterious consequences for the children.

2. Like the mother, the father denies inappropriate disciplining or emotional abuse of the children and makes counter-allegations against the mother.

3. Ultimately the father seeks orders that the children live primarily with him and spend five out of 14 nights with the mother on alternate weekends, as well as half of school holidays and time on special occasions[8].

   [8] Exhibit “H27” minutes of orders sought by the father handed up in final addresses.

4. The father lives with his current partner, Ms N, who has shared care of her three girls.  Ms N’s children are similar ages to the children of the parties; A is aged 12, Y is 7 and Z is 4 years old.  The father’s proposal would involve the children spending five nights with Ms N’s children in their home, and five nights in their home whilst Ms N’s children are in the care of Ms N’s former partner, Mr J. Mr J was mentioned frequently during the proceedings, including in the context of having exchanged information with the mother (contrary to the interests of the father and Ms N).  He was not a witness.

The independent children’s lawyer

1. Pursuant to a request made on 28 May 2009, Ms Carlton, solicitor from Victoria Legal Aid, was appointed as the ICL for B, H and G within the meaning of Division 10 of Part VII of the Act. Her role has since been assumed by Ms Robyn Hamilton who is also employed by Victoria Legal Aid.

2. The role of the ICL is to form an independent view, based on available evidence, of what is in the best interests of B, H and G and then act in these proceedings in what she believes those best interests to be.[9] Ms Hamilton is not a legal representative retained by the girls and she is not bound by any instructions from them.[10]  The role of the ICL is to deal impartially with the parties, ensure that any views expressed by B, H and G are fully put before the Court, to analyse documentary evidence, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention.  The ICL is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[11] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[12]

   [9] Family Law Act 1975 (Cth) s 68LA(2)..

   [10] Family Law Act 1975 (Cth) s 68LA(4)..

   [11] Family Law Act 1975 (Cth) s 68LA(5)(d)..

   [12] Family Law Act 1975 (Cth) s 68LA(5)(e)..

3. At trial, Mr Laidlaw CSC, appeared on behalf of the ICL. The ICL intermittently attended Court.  Intermittent attendance is by no means a criticism.  I was informed that there is no grant of aid to cover the attendance of the ICL to instruct.  However, counsel for the ICL was of significant assistance to the Court. He was concise, even handed and clear.  I am satisfied that the girls’ interests have been well represented.  

4. From time to time in the proceedings the ICL has been required by the Court to formulate preliminary views and make them known to the parties.  At the conclusion of the trial, the ICL sought orders that the parents have equal shared parental responsibility for the children, that they live with the father and spend five nights out of fourteen with the mother (in addition to half of school holidays and special occasions).[13]  The ICL also sought an order that the mother and father be restrained from physically disciplining the children.

[13] Exhibit “ICL5” minutes of orders sought by the ICL handed up in final addresses.

Credit & impression of witnesses

1. In proceedings in this Court, there is sometimes a danger that events which would pass almost unremarked in daily life, were it not for litigation, are used to extrapolate character faults which are said to go to a party’s capacity to parent.  Usually, it is preferable for a case to be presented comprehensively rather than exhaustively.  The Court remains aware that the arena of litigation can act as a magnifier and that the Court should not lose a sense of proportionality.  Largely led by the father’s representatives, this case tended toward exhaustive examination of issues.  By comparison, the mother’s case appeared in some respects to have been unprepared by her solicitor prior to the commencement of the hearing.

Lay Witnesses

The Mother

1. The mother is 40 years old.  She is in part time employment as a nurse.  She works two shifts a week, including one night shift each month.

2. The mother impressed as a person who was deeply affected by the breakdown of her marriage and the father’s betrayal of her with Ms N, who was also a nurse where the mother and father worked.  

3. The parties commonly gave contradictory accounts of events which occurred post‑separation and of the other parent’s parenting capacity.  On either account, the parties’ post‑separation relationship is marked by deep conflict and resentment, as well as a certain level of ambivalence by each parent towards the other.  The children were not spared any of the conflict.  It is clear that both parties have acted destructively towards each other in ways which have had a lasting impact on the children, and that both now take little responsibility for their own actions and prefer to lay the blame with the other party.

4. The mother’s manner of giving evidence diminished her credibility. She was vague and evasive, skirting direct questions.  For example, when asked about the frequency and nature of insulting comments the mother had made about Ms N, she consistently responded using the perfect or subjunctive tenses (‘I have said that’ or ‘I would have said that’), rather than answering the question directly, specifying the frequency and nature of the insults.  Only after considerable probing did the mother concede that she has frequently called Ms N a ‘fat and ugly bitch’ and ‘probably a bitch along the way.’  The mother admitted to referring to the father as a ‘fucking cunt’ and, when asked whether the children overheard those comments she responded ‘it is possible but not intended’ that they listened.  The effect of the mother’s language was that she appeared to make significant omissions to avoid incriminating herself.

5. The mother presented to Ms E, the family report writer, as a ‘very anxious, somewhat hesitant’ woman who found it difficult to be decisive about her views or proposals for parenting arrangements.  This is consistent with my view of the mother giving evidence.  However, I attribute the mother’s lack of decisiveness as an unwillingness to relinquish any issue in favour of the father. In the witness box, the mother purported to have great trouble recalling events or sequences of events, and answered a large proportion of questions in cross‑examination with ‘I can’t recall’.  She spoke hesitantly and softly, giving the impression she was confused about her evidence.  The mother’s bearing left open the possibility that she was at pains to present an image of herself as vulnerable and confused by events to the point that her recollection was incomplete.  My impression is that her presentation in the witness box was a construct, the primary purpose of which was to avoid being pinned down to factual recollections in the course of cross-examination. 

6. Interestingly, the mother was able to be animated and lucid at certain points, for example, when giving evidence about chattels and when describing her sexual relationship with the father post‑separation (which he denies).  However, the mother was increasingly vague when speaking about the sexual abuse allegations and her subsequent conduct in that regard.  By the time of closing submissions, the mother’s case was based on having consistently followed the advice of professionals.  Her manner of giving evidence appeared to aim at affirming her own lack of accountability, but was otherwise open to be interpreted as symbolic of her behaviour as irresponsible, opportunistic and highly damaging to the children and the children’s relationship with the father.

7. Overall, the mother was an unreliable witness upon whose evidence it is difficult to place weight and whose attitude towards her own behaviour reflects poorly on her parenting capacity.

The maternal grandmother

1. The maternal grandmother impressed as an upfront and considered witness, who gave measured responses, albeit in the context of being overtly protective of her daughter and grandchildren.  The Court was left with the impression that she had thought about the mother’s case and emphasised what she understood to be important points, such as what she expressed to be the mother’s primary bond with the children.

2. The father and, to an extent, the paternal grandmother were greatly critical of the maternal grandmother’s assistance to the mother in caring for the children.  They complained about the maternal grandmother taking the older children to school (and the mother’s failure to undertake this task) and regularly babysitting the children. The maternal grandmother denied making the children’s lunches on a daily basis, stating this was always done by the mother.  I see little relevance in these criticisms, particularly as they largely reflect arrangements which pre-dated separation. The father and paternal grandmother’s criticisms of the maternal grandmother’s involvement in the children’s lives are, thus, more telling indicators of their attitude towards the mother and her family than to the mother’s capacity to care for the children on a day to day basis.  In brief, the father and the paternal grandmother were critical of arrangements which were in place prior to separation which continued to benefit the children post separation.

The father

1. The father is 41 years old.  He is a registered nurse in full time employment at a hospital in Melbourne.

2. As a witness, the father was considerably more cohesive and forthright than the mother, insofar as he was not hesitant or evasive and appeared to be speaking from his lived experience.  To Ms E, the father presented as a ‘quietly spoken, communicative and at times somewhat bewildered man’ that appeared at a loss at how the situation had progressed to such a stage.  I would generally accord with this description of the father.

1. Nonetheless, I find the father was dishonest when he perceived it would serve his interests, the most noteworthy example being his denial of a sexual relationship with the mother following separation.  Consistently, he sought to show himself as a victim of the mother and the legal system, which appeared to blur his perception of his own behaviour post‑separation.

2. The father’s narrative tended towards a high level of self-justification and defensiveness and he demonstrated only a limited level of critical analysis of his children’s attitudes and behaviour.  For example, the father only eventually conceded when pressed in cross‑examination that B’s expressed desire to live with him may indeed be partially motivated by her need to appease him.  Another impression of the father’s limited self-reflectivity was his lack of empathy towards the effect of his re-partnering on the children, particularly B, and her corresponding ambivalence towards Ms N and her children.  This attitude of the father resonates with his callous and disregarding attitude towards the mother’s emotions following the parties’ separation.

3. With regards to the sexual abuse allegations, the father’s denials of wrongdoing were cogent and compelling.  The recorded police interview of him was striking in its depiction of the father in a genuine state of shock.  I place weight on the father’s evidence, but do so cautiously with regards to some matters, as will become apparent, when there is conflicting evidence and the father appears to be lying or moulding his story to protect his own interests.

Ms N, the father’s partner

1. Ms N is the father’s current partner and the object of much of the parties’ post‑separation dispute. She is also a nurse and currently works shifts at O Hospital.  She describes herself as having a close knit extended family, all of whom live in O.

2. As stated earlier, Ms N has three children of similar ages to the children of the parties.  She shares care of her children with her former partner, Mr J.

3. As a witness, Ms N struck as somewhat shell-shocked and defensive. However, she was at times able to be more insightful than the parties with regards to the impact of her relationship with the father on both sets of children.  Like the father, she did not hold back from implicating the view that she and the father are victims of the mother and the legal system.  Also like the father, this attitude tended to blur her appreciation of the impact of the father’s behaviour on the children.

4. With respect to her attitude, I take into account the fact that Ms N has spent a great deal of time involved in prior family disputes, including court proceedings with Mr J, the father of her three children.  Her account of her own proceedings indicates that she has been extremely forbearing and prioritised what she perceives to be the needs of her children to have a positive relationship with their father over her own interests.  It is clear that Ms N is highly protective of the father, and appreciates that any outcomes of these proceedings would have a significant impact on her.

5. Overall, Ms N was an honest witness and I place weight on her evidence.

The paternal grandmother

1. The paternal grandmother, Ms Yarrow, is also a nurse.  She enjoyed a positive relationship with the mother until the allegations of abuse made against the father in April 2009.  Her evidence is of a close and loving relationship with the children.  She has supervised the children’s time with the father, along with her new husband, on a regular basis since the orders made by Brown J on 26 June 2009 and the new interim parenting orders made at the time of final addresses on 6 March 2010.

2. The paternal grandmother was a prickly witness who now bears a clear grudge against the mother.  She struck as being wrapped up in her own feelings about the parties’ relationship and her defensiveness of her son.  This preoccupation has restricted her ability to have insight into the lives of the children.  An example is her criticisms of the mother allowing the maternal grandmother to take the older children to school.  She was unable to contemplate that the arrangement well suited the older girls and benefitted G by allowing her to remain at home, quite possibly asleep.  The paternal grandmother’s position was unduly critical of the mother who she sought to imply was less of a mother than herself.  She failed to recognise that the maternal grandmother had been of similar assistance to the father and mother prior to separation.

3. Another example of this is clear in the paternal grandmother’s attitude to G. The paternal grandmother’s oral evidence emphasised G as a ‘mummy’s girl’, and it was easy to construe her comments as aimed to be critical of the mother.  The following passage in her affidavit sworn 5 November 2009 is emblematic of the impact her views of the mother have had on her attitude towards the children:

   [77] [G] is very large for her age but very immature compared to others of the same age.  She appears to be something of a “loner” and contributes very little in a social sense.  Her speech is poor and it is very difficult to have any sort of conversation with her; this is even worse on the telephone.

   [78] [G] is a clumsy child who does not presently displayed any strong personality traits apart from being prone to stubbornness and being destructive.  Her character is very difficult to determine.

   [79] I have heard [G] tell both her parents that she loves them. When in our company she talks a lot about how beautiful her mother is...

4. G would have been just over four years old at the time. The paternal grandmother’s attitude towards G strikes as critical to the point of being rather demeaning.

5. I find that although the paternal grandmother was not an inherently dishonest witness, her insights into the children and the impact of the parental conflict on the children was largely hindered by her negative attitude towards the mother and a perception that she, and therefore the father, is somewhat superior to the mother and her family.

The paternal grandfather

1. The paternal grandfather is retired.  He has a close and loving relationship with the children and has supervised the children’s time with the father, along with his new wife, on a regular basis pursuant to the orders made by Brown J on 26 June 2009.

2. The paternal grandfather was a straight-forward and honest witness whose evidence I place weight on. His evidence regarding the children was matter‑of‑fact and he was able to provide sound insights into the children’s lives as casualties of an acrimonious relationship breakdown.  He was an impressive witness.

Expert and professional witnesses

Ms M

1. Ms M works as a family and children’s counsellor.  She completed a social work degree in 2007 and previously worked as a teacher, including as a student welfare coordinator.  Ms M initially worked in S Primary School, and then began working in the schools program in Centrecare, where she would visit six schools over a fortnight including S School.

2. Ms M first met B through this role at S Primary School.  B was referred to Ms M by her classroom teacher who was concerned, around the time of the parents’ separation, about B’s mood and wellbeing.  B’s first session with her was on 28 May 2008.

3. My assessment of Ms M is that although she appreciated the impact of the parental conflict on B, her response to B’s sexual abuse ‘disclosures’ was unreflective of the context in which the allegations were made.  Ultimately, her response as a professional in a position of influence became a factor in the perpetuation of unsubstantiated allegations which were destructive to the three children.  Her involvement with B will be outlined further in the relevant history below.

The School Principal

1. Mr K, the school principal at S Primary school, which B and H attend, gave evidence and was cross‑examined.  Mr K is a teacher with 20 years experience.  He has been a school principal for 10 years.  S is a school of 241 children in 10 classrooms; Mr K takes classes only if required, but does a walk-through of each classroom on a daily basis and, consequently, he claims to know each child well.

2. Mr K was an impressive witness who was able to provide the Court with detailed insights into the personalities and issues facing B and H.  I place weight on his evidence.

The children

B

1. B’s presentation to Ms E in September 2009 was of an ‘anxious, extremely unhappy and very forlorn little girl of 9 years.’  In the supplementary assessment dated 7 September 2010, Ms E opined that it ‘appeared very little has changed in respect of this child’s since (sic) of peace and harmony since this Consultant last interviewed this child, save for her satisfaction of spending more time with her father.’[14]  As will be further outlined below, Ms E assessed her relationship with her parents, Ms N and Ms N’s children as extremely complex.

   [14] Child and parent issues assessment dated 7 September 2010 [2] annexed to affidavit of Ms E, family consultant, sworn 8 September 2010.

2. The school principal of S Primary School, Mr K, described B as a ‘very, very sad girl.’  His impression of her has not changed from the time he met her until now.  In contrast to H, who he describes as happy and oblivious to other people despite her social problems, B struggles to make and maintain friendships and constantly craves attention.  Mr K described B as “one of the very saddest children [he has] ever met.” In his assessment, her fragile emotional state impacts upon her academic performance and she struggles academically despite her best efforts.

3. B regularly leaves messages in the ‘worry box’ and speaks to the school chaplain.  Ms M, who is B’s current counsellor through Centrecare, was a former school chaplain at S School.  Her account of school life to Ms E was of being constantly bullied, including having children ‘pushing rubbish in my face’ and ‘telling me I’m fat.’  However, according to Mr K she is closely monitored by the teachers at school and is not a victim of bullying.  Rather, in Mr K’s opinion, it is B’s poor interpersonal skills which have created her social isolation.  For example, she will make inappropriate references to her family situation in the school yard, with the aim of other children feeling sorry for her but often inciting shock and standoffishness.

4. When she refers to her family situation, Mr K believes B is very confused about ‘her place in the scheme of things’. It is his opinion that her exposure to conflict, wanting to please each parent and not knowing with which parent she is going to end up has affected her immensely.  The records of B’s counselling sessions with Ms M paint a similar picture.  For example, a series of cartoon pictures dated 15 December 2008 depicting koalas with a range of emotional expressions are telling of the impact upon her of the parents’ separation.  Under a happy koala, Ms M has written ‘[B] feels safe when mum and dad are not fighting.’  Under a furious koala, ‘[B] feels angry when mum and dad say horrible things about each other eg when dad calls mum a slut.’  Under an irate koala, ‘[B] gets annoyed at dads house when [Ms N] is there on the kids weekend or Wednesday.’  I accept the observations of Mr K and Ms M as being of merit.

5. Mr K has spoken to both parents about B’s problems.  He says there is no issue with B’s grooming, presentation or food supplies for school.  It is Mr K’s prediction that B is on the path to a significant depressive illness.  Mr K is not a psychologist or an expert in mental illness but I have regard to the depth of his concerns.  In cross‑examination, Ms E, the family report writer, said she could not comment on this view in a clinical sense, but stated that B has a very low mood and an incredibly negative outlook unusual for an 11 year old.  When asked about counselling options for B, Ms E agreed it may be helpful but emphasised that it was the parents, through their lack of communication and obvious dislike for each other, who were the source of B’s behaviour.

6. B has been having counselling with the Centre Against Sexual Assault (CASA).

7. Regarding her physical health, the parents appear to agree it is satisfactory although she is somewhat overweight.

8. B has ongoing bed-wetting issues which predate the parents’ separation. She had a bladder operation but there is disagreement amongst the parents as to whether the operation was supposed to alleviate her bedwetting.  At the time of separation, B wet the bed almost every night, although she had better and worse periods when she would go days or weeks without wetting the bed.

9. The mother alleged that in the father’s care, B would frequently wet the bed and have to change her own sheets, to which the father has denied.  In 2009, B ‘miserably related’ to Ms E that she often wets the bed and gets up in the dark to change her sheets, stating she ‘wished she could hide the sheets because “Mum gets cross and tells me to stop it because it’s my fault”’.[15] In the recent assessment, B told Ms E that she is teased at school by students who now know about her enuresis, apparently by courtesy of H having told them.

   [15] Family Report dated 29 September 2009 [18].

10. The mother also alleged that the father yelled at B when she wet the bed. The father denied yelling at her, and counter-alleged that it was the mother who berated B.  He described an occasion where B hid a pair of soiled underwear in her drawer and the mother become extremely angry.  In contrast, the father stated he encouraged B positively and that they implemented strategies to manage the situation, such as using a plastic cover on her bed so that she could place the wet items in the laundry and return to a dry bed, dissuading her from drinking close to bed time and waking her up to use the toilet. He stated that B had not wet the bed in his care since December 2009.  The mother was not able to describe particular strategies she deployed to combat the issue, other than providing general support and encouragement.  The mother has sought no meaningful treatment for B. She said that her masseuse had said that she should consult a chiropractor or other allied health professional but that the mother did not act on that advice.

11. The father claimed Ms N’s attitude to the bed wetting was not negative as she had daughters that were also wetting the bed.  In cross‑examination, Ms N stated that she did not have a negative attitude towards B’s bed wetting, but maintained her daughters did not wet the bed past the age of toilet training, aged about three.

12. In Ms E’s recent assessment[16], it is recited that B ‘summed up her feelings thus, “I’m not going well” and that, ‘overall [B] rated her life as “5 out of ten, 5 at the most” She felt that almost every aspect of her life presented her with some insurmountable difficulty, and her endeavour to maintain some balance in her life was a struggle. What was clearly identifiable was [B’s] strong desire to spend more time with her father.’

[16] Child and parent issues assessment dated 7 September 2010 annexed to affidavit of Ms E, family consultant, sworn 8 September 2010.

H

1. H was described by both parties as a charismatic, sociable and active little girl, who is very honest and upfront. Ms E described her as ‘a happy, bubbly very active little girl, diametrically opposed to [B’s] presentation.’[17]  She is asthmatic and on 13 August 2009 was diagnosed as autistic by Dr R, paediatrician.  She was diagnosed with a severe language disorder by a speech pathologist in March 2008.

   [17] Family Report dated 29 September 2009 [22].

2. A psychological report dated 14 November 2008 was prepared by Mr F, educational psychologist, based on a cognitive assessment of H undertaken on 15 August 2008.[18]  The aim of the assessment was cited as being to ‘determine whether [H’s] non-verbal intelligence (Perceptual Reasoning IQ) is within the normal range, ruling out any other cognitive factors that may be affecting her language difficulties.’  The scores from cognitive tests indicate that H was at that time functioning within the average range of intelligence in comparison to peers of the same age, although her verbal index scale was at the bottom of the average range.

   [18] Psychological report of H dated 14 November 2008, Annexure “GWS 13” to the affidavit of the father sworn 9 November 2009.

3. A behavioural assessment was undertaken by Mr F and a further report written dated 18 December 2008.[19]  This report was based on questionnaires completed by H’s teachers and parents.  Mr F concluded that the results of behavioural observations of H by her parents and teacher indicate that H is exhibiting ‘challenging and negative behaviours, as well as experiencing significant adaptive difficulties in all settings.’  A summary of his assessment is as follows:

   [H’s] externalising behaviours may be her strategy for dealing with Anxiety producing situations. When she finds herself in an unfamiliar situation that she struggles to understand, her default behaviour may be to misbehave, in order to overcome her Anxiety. In the classroom when she struggles with a task, this may create the Anxiety; therefore she misbehaves to avoid experiencing a lack of success with the task. [H’s] diagnosis of a Severe Language Disorder will impact upon her behaviour and how she feels about herself. The results from the WPPSI-III assessment indicate that [H] is capable of learning and achieving some success in most curriculum areas. [H’s] attention difficulties are impacting upon her ability to learn, therefore continuing the cycle of anxiety and misbehaviour.

   Mr F concludes that H’s Atypical and Withdrawal behaviours, interpreted in the context of the other clinically significant behaviours, indicate a possible Autism Spectrum Disorder. He states that a diagnosis, however, would require exploration with a multidisciplinary team, including a paediatrician. He suggests that H requires psychological support to assist her in developing adaptive behaviours when she is faced with anxiety-producing situations.

   [19] Psychological report of H dated 18 December 2008, Annexure “GWS 14” to the affidavit of the father sworn 9 November 2009.

4. Dr R referred H to the Child and Adolescent Mental Health Service (CAMHS) for a multidisciplinary autism assessment. The assessment, dated 15 September 2009, concluded that H would benefit from continued speech therapy, and the assistance of an education aide at school ‘to take account of her autism.’[20]

   [20] Court Book, pg 426.

5. The mother has attended ‘support group meetings’ at H’s school on 18 May 2009[21] and 10 August 2009.  The mother has not, in my assessment, been vigilant in pursuing treatment for H.  Neither has she kept the father informed and advised as she should have.

   [21] Court Book, pg 358-367.

6. Mr K described H as a happy girl, who has faced challenges in life and tends to live in a world of her own.  His impression of her is that although she has language difficulties, and consequent difficulties understanding instructions, she will be able to work capably with kids of her own age with an individual learning plan. Social skills are her biggest challenge; although H loves everybody, she tends to be smothering in friendships.  An individual learning plan has been prepared for H this year.[22]

   [22] Court Book, pg 350-354.

7. H has consistently refuted the allegations that the father inappropriately touched B or G.  She told Ms E that ‘I want to see Daddy, and Mum won’t let me.’[23]

   [23] Family Report dated 29 September 2009 [22].

8. The mother agreed in cross‑examination that H is a child who ‘tells it like it is’ and is not prone to lying or story telling.  It is unusual, therefore, that she disregards H’s statements which are exculpatory of the father.  The father’s case emphasised H’s personality in this regard as support for his case that the allegations of sexual abuse are false.

G

1. G is a young child, who presented to the family consultant as a ‘smiling, seemingly happy little girl of four years.’  To Ms E, she appeared to be in good health and interacting well with children her own age in the playroom.

1. The father and Ms N each gave evidence that G has a close relationship with Ms N’s youngest child, Z, and that when in the father’s home they share a room and love to play together.

2. It was generally agreed by the mother, the father, Ms N and the paternal and maternal grandmothers that G is a ‘mummy’s girl.’  The mother herself states that G has a strong primary attachment to her, that she constantly tells the mother she is beautiful and that she loves the mother’s blonde hair.

3. Ms N and the paternal grandmother made the comment that G is a ‘mummy’s girl’ with disapproval and an implicit criticism of the mother’s parenting style.  However, given that the parties separated when G was approximately 2 years and 4 months old, it is hardly surprising that G is primarily attached to the mother.

4. The paternal grandfather expressed an opinion similar to the paternal grandmother that G is socially and intellectually less developed than four year old children.  Interestingly, in 2009, the family report writer had contact with G’s pre-school, who reported that G is a settled, happy and sociable child who ‘interacts well with other children’ and appears to be ‘functioning emotionally and socially “as one of the older four year olds”’.  In the recent assessment, Ms E described G’s presentation as ‘a seemingly immature child’[24] . I accept that G may be immature for her chronological age.

Relevant Chronology

[24]  Child and parent issues assessment dated 7 September 2010 [4] annexed to affidavit of Ms E, family consultant, sworn 8 September 2010.

Background: Pre-separation (1995) to Separation (22 November 2007)

1. The mother and father met in 1995 at Q Hospital where they both worked as nurses.  They moved in together in December 1996 and were married in 1998.

2. B was born in December 1999, H in December 2001 and G in July 2005.

3. In 2004, between the births of H and G, the mother suffered a miscarriage at 20 weeks which was traumatic for both parties.  The father deposed that it had a particularly devastating effect on the mother, who became withdrawn from him.

4. The mother alleged that in 2005, the father became extremely angry with B and struck her buttocks area with an open hand, to the extent that B sustained bruising.  The mother included this allegation in her notice of risk of child abuse filed 27 May 2009, stating it was an event which traumatised B, which B had raised as an example of being fearful of the father.  The father strongly denied the allegation that he has ever struck B in this manner or that B is fearful of him.  There is no evidence that the mother reported the incident to the authorities or discussed it with family members.  I am not satisfied that there was an incident in 2005 with which I should now be concerned.

5. In 2006, at the age of five, B contracted pneumococcal meningitis and was hospitalised for approximately 10 days.  The parties agree that they jointly cared for B during this time and enjoyed a cooperative relationship.

6. The mother claims that she has always been the primary caregiver for the children.  In her affidavit sworn 23 October 2010, she deposes to returning to part time work after taking maternity leave following each birth, thereby sacrificing her career to ‘almost exclusively’ care for the children.  She diminishes the father’s role, saying he occasionally bathed the children when he got home from work but never played with them.  In contrast, the father maintains he had a very ‘hands-on’ role with the children, who was constantly playing and engaging them in activities and it was the mother who never played with the children.  He gave evidence, which I accept, of B waiting at the gate for him each evening upon his return from work.  I am satisfied that the father was an involved and hands-on parent for such times as his work hours permitted.

7. The father commenced a sexual relationship with Ms N around October 2007.  At this time, the parties and Ms N were all employed as nurses at the same Hospital.  At times, the mother described Ms N as a former friend. Ms N denied the mother and she were friends, but conceded they may have worked shifts together occasionally.  Assessing the evidence as a whole, I am satisfied that that mother referred to Ms N as her “friend” as an embellishment and to portray herself as the victim of a double betrayal.  Nonetheless, I am satisfied that the mother found the father’s infidelity humiliating in the workplace as well as in their personal life.

8. The mother was deeply shocked and distressed by the separation. As will become apparent, these emotions manifested in a range of ongoing attitudes and behaviours.  To the family consultant, the mother stated that although she was aware they had some marital problems, she believed these could be resolved and considered they were ‘very happy together, and she had no idea that [the father] would leave the children and herself.’[25]

   [25] Family Report, [7].

9. Nonetheless, the mother’s stated history of the relationship to Ms E included some loud verbal disputes with a degree of reciprocal physical violence during the marriage.  The mother told Ms E that at times, the fights threatened to become out of control, such as an occasion when the father pushed her into a wall with his hands around her neck.

10. In contrast, the father told the family consultant they did not have a happy relationship, stating he felt ‘smothered’ by her.  His oral evidence was that the mother was a ‘sheer control freak’ who did not allow him to see friends or play golf without her approval or have a beer on Sunday. The father denied being physically abusive to the mother other than in self defence.  The father now paints a picture of a marriage in which he felt trapped and unhappy for years.  I accept that the father was disengaged from and deeply resentful of the mother well prior to having sexual intercourse with Ms N.  The father drew a distinction, which I accept, between having a sexual relationship with Ms N prior to separation and commencing an emotional relationship after separation.

11. The parties both gave evidence that during the marriage they consumed alcohol on a nightly basis.  The father’s evidence was that they would drink a few beers each and a bottle of wine between them.  The father states that he currently has no time to drink alcohol, but might have a beer or glass of wine when he gets home. Ms N’s evidence was that she and the father share a bottle of wine each night.  Regarding her current drinking habits, the mother stated she commonly has a glass of wine whilst preparing dinner.  I am satisfied that prior to separation the parents consumed significant amounts of alcohol. My impression is that the mother continues to drink alcohol to excess which may explain her otherwise inexplicable lapses in memory.  It is likely the father also continues to drink, but it is not my assessment that it has affected his recollection.

Separation (22 November 2007) to “Emotional detachment” (16 October 2008)

1. The parties’ separation occurred on 22 November 2007 when the father advised the mother that he had been intimate with Ms N.  The father claims that it was an unplanned announcement but I doubt that was the case.  My impression is that he waited for circumstances in which the mother would be least able to take the news calmly and be distracted from asking questions.  It was a demonstration of how much resentment and ill-will he held for the mother.  At best he showed a callous disregard for the mother. At worst, it was a cruel act.  Either way, the father’s admission of infidelity destabilised the mother, which inevitably impacted on the children.  According to the father, the mother then told him to get out of the house and physically assaulted him. He left the family house at around 10:00 p.m. and stayed with Ms N for two nights.  He then stayed in a hotel for around a week and in two different apartments over a period of three weeks before securing a rental property.

2. The father stated that he attempted to call to speak to the children the day after leaving and the days following but was unsuccessful.  He was eventually able to speak to the children by telephone to explain to them that he was not coming home.

3. The girls remained in the care of the mother.  Within a few weeks the father was regularly spending time with the children for one or two nights per fortnight, although he had established himself in accommodation and wanted to share care of the girls on an equal basis.  

4. On or about 22 February 2008, the mother claims to have arrived home at around 11:45 p.m. to find the father hiding in the walk-in-robe in her bedroom.  As the children were in his care, she says that she questioned him about who was looking after the children.  Her evidence is that he was upset and emotional.  The mother noticed her diary had been removed from her bedside drawer.  The mother gave evidence that the father was very upset and eventually left the house and got into his motor vehicle with the mother following behind him asking about her diary and to return the key to the house. The father threw the key on the ground, ‘forcibly removed’ the mother from his motor vehicle (which she had entered to search for her diary) and called the mother the next day to inform her he had thrown the diary under the bed.  The father denies this whole incident. The mother made no contemporaneous complaint, through solicitors, about this alleged violation.  On the evidence, I am not satisfied that the event as described by the mother occurred.

5. By around March 2008 the girls were spending time with the father each alternate weekend from afterschool on Friday to the commencement of school on Monday and overnight each alternate Wednesday.  G’s time with the father was the same as her sisters’ time notwithstanding that G was not at school or kindergarten and the father had sought more time with her.  The father’s account is that the children were expressing a desire to spend more time with him, and particularly B was asking to spend time with the father one-on-one.

6. According to the father, on 25 April 2008 he asked the mother if he could take some Xbox games from her house and the mother responded by becoming verbally abusive, calling the father a ‘fucking cunt’ and Ms N a ‘fucking whore’ and ‘slut’ in the presence of the children. I accept that occurred.

7. On 30 April 2008 the mother filed an application for an intervention order in the State Magistrates Court, claiming the father had been harassing her by sending late night text messages and coming to her home.

8. The father denied the allegations, but entered into a mutual undertaking with the mother on 7 May 2008 at the Magistrates Court to last until 7 August 2008.  The father claims the mother wanted to pursue reconciliation at this time.  The undertaking was to last until 12 August 2008 and consisted of provisions that the parties:

   ·    not enter each other’s homes unless invited;

   ·    not leave the children alone;

   ·    attend upon a marriage counsellor;

   ·    not engage in a romantic or sexual relationship with any other person.

   The mother withdrew her application for an intervention order. The undertaking about not engaging in a sexual relationship with anyone else is bizarre and demonstrative of the mother’s main motivation being to reconcile the marriage rather than to be protected from violence or threat of violence by the father. For his part, the father gave the undertaking disingenuously and did not abide by it.

9. In her evidence, the mother’s attitude towards the reconciliations was ambivalent.  On the one hand, she appeared to believe they were genuine attempts; at other times, she indicated that it was her impression that the father’s main interest was gaining access to the children.  Her description of their relationship was one of ‘emotional torture’, where the father would reassure her that ‘there is still something there’ and ‘I want you need you miss you’, but continued to carry on a sexual relationship with her and with Ms N.

10. The father’s evidence made clear that the motivation behind his attempts at reconciliation was squarely to negotiate better access to the children.  He admitted to ‘stringing her along’ as a means of achieving this purpose.  The father deposes that they attended upon a counsellor but the mother cancelled the third session declaring the marriage was ‘not fixable’, although it was his wish to continue in order to reach an agreement regarding the children. I accept the ICL’s criticisms of the father’s behaviour during this period, being that he deceived the mother by trading on her emotional need and continued hope for a reconciliation in his failed effort to get as much time with the children as he wanted.  The father’s game plan of ‘stringing her along’ is an example of his callous disregard for the mother.  It backfired; he did not get more time with the children, he merely confused and enraged the mother.

11. During the July 2008 school holidays, the father and Ms N went on a holiday to Queensland for one week between 24 and 31 July 2008.  The mother stated that the father did not seek to spend extra time with the children during the holidays and that he worked through the school holidays.  In cross‑examination, the mother said that she had seen the father’s roster 8 weeks prior to the holidays and noted that he was working.  The mother’s evidence was that over the week prior to the father’s holiday with Ms N, she and the father had had sexual intercourse on three occasions.  The father denies having done so.

12. The father strongly denied that he did not seek to spend more time with the children over the school holidays; he said that the mother would not permit more than four nights per fortnight even during school holidays.  The father’s plausible explanation is that he did not take leave over the school holidays because he was aware that he would not be able to have the children.

13. I accept that the father did seek more time with the children.  A letter from the mother’s solicitor dated 12 August 2008 states that his client feels that ‘the current arrangements are ‘appropriate’, particularly given the ages of the children, and the fact that the father had chosen not to take leave during the last school holiday period and the children had consequently remained with the mother.[26]  The letter also advises that the mother was not prepared to pursue mediation and that the father had ‘not really spelt out what he would like with respect to children’s issues other than to say he wants shared care.’  Initially in cross‑examination, the mother contended that she had arranged to accommodate the father’s holiday and had offered the father ‘whatever he wanted’; eventually, she conceded the father had requested more time with the children in the school holidays and she was not prepared to provide the children.

    [26] Exhibit “H4”.

14. The father’s affidavit evidence is that at around this time, the mother’s harassment of him escalated, including abusive text messages, telephone calls and verbal abuse in the presence of the children.

15. In turn, the mother tendered an entry from the father’s diary taken from the date 14 August 2008.  The entry reads as follows:

    had kids last night K [the mother] was ment to be working this morning and I was to drop G off at her mums. Saw car out front à K just got home after an all nighter. Face ½ off with the holy fuck look on her face. She had been out with the new boy. Good luck to her. Left G with her to make her suffer.[27]

    The father’s oral evidence was that he kept this diary on his solicitor’s advice to note any issues with changeovers.  He said that he dropped G at the mother’s house when he saw her in the front yard, rather than at the maternal grandmother’s house were he was going to leave her.  The entry is yet another example of the parties’ dismal attitude towards each other.

    [27] Exhibit “W8”.

16. According to the mother’s affidavit sworn 23 October 2008, the mother called Ms N in early September 2008 and ‘she made disclosures to me about the nature of her relationship with the father’; that is, that the father and Ms N were having a sexual relationship.  The mother’s evidence was that she had not been aware the father was continuing to have a sexual relationship with Ms N at this time, as she (the mother) was also having a sexual relationship with him.

17. The father gave evidence that on 11 September 2008 he encountered a collection of his personal belongings in the backyard of the mother’s house when he was dropping G off in the morning after having delivered the older two children to school.  The father left for work but returned at lunch time, with a ward clerk as a witness, in order to collect his belongings.  The father’s evidence is that when he arrived, most of the items were in plastic bags which he later discovered contained dog faeces. As he collected the bags, the mother slapped and punched the father. The mother admitted she was upset and became physically aggressive but denied placing dog excrement in the bags. Her affidavit sworn 23 October 2009 states that she confronted the father about ‘details of Ms [N’s] disclosures and an argument erupted and there was an incident following which the father left.’[28]  The mother acted inappropriately and without self‑control not only to the father but also in the presence of a work colleague who attended as a witness. It is indicative that nothing could temper the mother’s conduct at this time.

    [28] Affidavit of the mother sworn 23 October 2009, paragraph 18.

18. The mother conceded sending a text message to the father on 12 September 2008 with the words ‘Look in the mirror and c the lying scum i c. U r dead 2 me. I have not hated anyone the way i hate u.’

19. The father stated that around this time, the situation in the workplace was untenable and he decided to take extended leave from the hospital.  The mother continued to refuse to allow him more time with the children.  If she was working or going out, the mother left the children with her mother.

20. On 16 September 2008 the father states he called the mother’s house to wish B well on her school camp; he deposes that the mother hung up the telephone, and when he called back the mother began to abuse him.  Several arguments over the telephone ensued, which appeared to involve B, and in which, according to the father, he was attempting to speak to the mother about the children.  After several failed attempts, the father decided to drive to the mother’s home to reason with the mother.  His account is that when he arrived, the mother was outside and began to verbally abuse him and berate him about his relationship with Ms N, but did not ask him to leave.  Eventually, the parties went into the house, where the mother proceeded to take off all her clothing in the living room and whilst naked announced ‘You left this for that fat arsed bitch’ and continued to abuse the father.  The children were in bed at that time.  The mother conceded this had occurred.  She stated that her intention was to express to the father ‘don’t you miss me?’

21. The father’s and Ms N’s evidence was that, in around mid-September 2008, the children began spending time with Ms N, and soon thereafter were introduced to Ms N’s children. Although G and Z, Ms N’s youngest daughter, had had the occasional play date, Ms N had not spent any time with B and H other than being introduced to them as a work colleague a month or so prior to the parties’ separation. According to both the father and Ms N, the children have always gotten along extremely well with Ms N and her children.

22. As is apparent, the mother claimed, and the father fervidly denied, that the parties continued to have a sexual relationship after separation and until 15 October 2008. Copious evidence of text messages were tendered to corroborate the mother’s claim. A message sent by the father to the mother on 18 September 2008 at 7:23 p.m. reads:

    ‘So does that mean I need a blood test seeing you have sucked his cocking and fucked him on the first date?’[29]

    In cross‑examination, the father insisted that he and the mother had done no more than kiss and cuddle, and accordingly the text message could only relate to those activities. I do not accept the father’s evidence. I am satisfied that, post‑separation, the father had sexual intercourse with the mother frequently although not as frequently as she alleges. The father having sexual intercourse with the mother is consistent with his modus operandi of ‘stringing her along’ to achieve what he hoped would be a satisfactory outcome in relation to the children. I am satisfied that the mother raises the incidents of sexual intercourse in the proceedings to cause disharmony in the father’s relationship with Ms N. Both parents failed in their endeavour. Their efforts cast themselves in a poor light by demonstrating his and her disregard for the other and a willingness to perpetuate a hostile relationship which is played out at the expense of, and to the detriment of, the children.

    [29] Exhibit “W8”.

1. It is also relevant when considering contributions that I consider when the contributions were made.

2. The parties commenced living together when the father was 27 years old and the mother was 26 years old.  Neither had any children.  They had no assets of significance.

3. The parties lived first in rented accommodation in a north Melbourne suburb.  After about 12 months, they moved to O in regional Victoria where they rented the home at L Street from the estate of the mother’s late grandmother. In about 1998 the father and the mother purchased the L Street property from the estate of the mother’s grandmother.  At trial the mother asserted[132] that the purchase price was “lower than market [value]” There was no evidence which would enable me to make that finding to that effect and I make no such finding.

   [132]  Exhibit “W1”, wife’s summary of argument filed 7 February 2010 [6]

4. The father deposed that[133] “[to] fund the purchase we borrowed $80,000 from Aussie Home Loan to pay the purchase price, stamp duty, conveyancing fees and building material.  The mother’s parents agreed to be co-purchasers and co‑mortgagors but they were not expected to contribute to either the purchase price, the repayment of the mortgage loan or any outgoings of the property. They did not do so. (in approximately 2004 [L Street] was transferred from the four names of the mother’s parents and we into the joint names of the mother and me.  We released them from their obligations by refinancing the mortgage”.  I am satisfied that the parties could not have acquired the former matrimonial home without the assistance of the mother’s parents.  The agreement of the mother’s parents to assume liability and responsibility under the mortgage loan was valuable notwithstanding that they were not, in fact, called upon to pay.  It is akin to a commercial mortgage guarantee facility which is a valuable commodity in our economy, although no evidence was adduced as to what value could be attributed to the role of the mother’s parents in this case.  Nonetheless, it represents a significant indirect financial contribution on behalf of the mother, made early in the marriage, to the acquisition of the former matrimonial home, which I will take into account in my assessment of contributions.

   [133]  Husband’s affidavit sworn 9 November 2009 [202]

5. During the relationship, the father received monies from his father and his mother.  In 1998 the father’s step mother gave him $2,500 which the father says was used to purchase baby furniture and the mother says went towards the cost of lighting for the L Street property.  In any event, it went toward family expenses.  In 2002 he received $7,500 which was used to construct a shed.  In 2005 he received $3,000 which was spent on a split system heater/ air‑conditioner.  In 2004, the father received $2,000 from the estate of his paternal grandmother with which the parties purchased an outdoor setting, a gas heater and microwave.  These benefits, totalling $15,000, are significant direct financial contributions, also made early in the marriage, which I will take into account in my assessment of contributions.

6. The father alleges that he undertook many renovation tasks on the former matrimonial home including installation of the above ground pool and work complementary to the work of the professional builders. The mother’s evidence was that he did a lot of outdoor work, that her father assisted with fencing and painting and she assisted with painting but that, generally, the father overstates his involvement. The father was not cross examined with effect on his assertions about his role in fitting out the bathroom, demolition, plastering and painting.  It is not sufficient for the mother to make a bald assertion that the father’s evidence is overstated and then not demonstrate in cross examination or otherwise how that is so.

7. The mother concedes that the father assisted professional tradesmen in the construction of a carport, drive way, parking area and the installation of an above ground pool and that the father was, in turn, assisted by his father.

8. All in all, my impression is that the father was busy and worked hard on improvements to the family home in addition to his paid employment.  There is no evidence of the extent to which the father’s efforts saved the couple outlaying money for manual labour or the extent to which the value of the property was increased.  In some respects, such as clearing up after tradesmen, the father’s efforts probably saved the couple nothing but did make for a more liveable environment.  I am satisfied that the father’s indirect financial contributions to the improvement and maintenance of the former family home exceeded those of the mother and I them into account in a general way in my assessment of contributions.

9. The parties had three children in from 1999 to 2005.  The father alleges that he was a very involved parent.  The mother denies that he was as involved in hands on care as he claims.  My impression is that the father was physically and emotionally accessible to the children and was involved in their day to day care to the maximum extent that his paid employment allowed him to be.  That said, I accept that the mother was very busy with the birth and care of the children and upkeep of the home and, in due course, her paid employment.  I take into account that the mother’s contributions as a homemaker and parent exceeded those of the father in that capacity.  I take this into account in a general way in my assessment of contributions by the parties during cohabitation. Post‑separation, the mother has cared for the children’s day‑to‑day needs to a far greater extent than the father.  Notwithstanding that it was to a large extent the mother who excluded the father’s involvement in the children’s care and that I am critical of her actions in my determination of parenting issues, the mother’s contributions as a homemaker and parent post‑separation do exceed those of the father.  That said, the disparity in home‑maker and parent contributions post‑separation is limited in time and at its most significant only after the sexual abuse allegations in April 2009.  I take them into account generally.

10. I find that the indirect financial contribution of the mother, by her parents assuming a mortgage liability which enabled the couple to acquire the home, is equivalent to the $15,000 received by the father during cohabitation and applied in the acquisition and improvement and maintenance of the property of the parties.  I am unable to find that the father’s greater indirect financial contribution to the renovation of the home is any more significant than the mother’s greater home maker and parent contribution.

11. Taking all these matters in to consideration leads me to the view that, as a result of their respective and different contributions, the assets of the parties should be apportioned equally between the father and the mother.

Section 79(4)(d) to (g)

1. I now turn to the third step in the process of apportioning the assets available for distribution between the parties.

Section 79(4)(d)

The effect of any proposed order upon the earning capacity of either party to the marriage

1. The orders that I propose making in this matter will not affect the earning capacity of either party to these proceedings.  Each of the parties are trained as nurses.  The father’s remuneration is not able to be increased by overtime.  The mother works about 32 hours per week. As she will now have the children less of the time, she may be able to take more shifts but that was not a matter explored in cross examination of her or the subject of evidence.

Section 79(4)(e)

The matter referred to in s75(2) so far as they are relevant.

1. Mr St John SC for the father and Ms Colla for the mother submitted that the only relevant adjustive factor was the primary care of the children. I agree that is the most significant factor. However, the Court’s duty is to make an order which is just and equitable and otherwise proper having regard to the whole of s 79 for which purpose it is necessary for me to consider such other factors as appear on the evidence to be relevant.

   a)  The age and state of health of each of the parties

2. The parties are of similar age.  The father is 41 years old and the mother is 40 years.  They are both in reasonable health.

   b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

3. Both are employed and I have no reason to believe that they will not continue to be employed.  Neither party has assets which are outside the pool of assets divisible in this proceeding.  The mother received $20,000 from her parents to assist with her legal costs in these proceedings and, in particular, the hearing before Brown J on 11 December 2009 when senior counsel appeared on her behalf.  The Rule 19.03 costs notification by the mother’s solicitors to the mother at the commencement of the trial[134] recites costs paid by her at $26,524, unbilled at $17,679, counsel’s preparation at $5,200 and trial fees of $3,700 per day.  The father’s borrowed money from his father and step mother which they, in turn, raised by way of commercial mortgage security against their home.  The father’s costs approximate $370,000 or thereabouts and reflect that the father chose to have senior and junior counsel for all of the 12 main days of the trial and that the preparation of his case, by affidavit evidence and otherwise, was much more thorough than preparation of the mother’s case.  It is difficult to see how or when the father will ever repay the money borrowed from his father.  It is likely to be adjusted against the father against any entitlement he has to his father’s estate.  The father is struggling to pay the interest due to the lending bank at $500 per fortnight and, when he does not pay it, his father does so.  The costs of this long trial will wipe out the proceeds of any property settlement proceeds to which either of the parties were entitled and, in the father’s case, leave him with a huge debt.  However, each party chose to run their case in a certain way.  Proportionality in preparation and presentation of a case is something for which each party is individually responsible.  Accordingly, whilst the costs are very significant, I do not have regard to them as an adjustive factor.

   c)Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years

   [134] Exhibit “W2”

4. The girls will reside in the primary care of the father.  Once allowance is made for equal times in both houses during school term holidays and the long summer school vacation, I calculate that the children will spend approximately 138 nights per annum or a little less than 40% of their time in the mother’s home and 227 nights per annum or a little more than 60% of their time in the father’s home.  The father’s case was that if the children reside primarily in his care, there should be a 10% adjustment in his favour and, likewise, if the children reside primarily with the mother, there should be an adjustment of 10% in her favour.  On behalf of the mother it was submitted that the appropriate adjustment is 5% either way.

5. I agree that, on the facts of this case, this is the most significant adjustive factor in s 75(2).  In my view, and given the care arrangements which will now be implemented for the children, I conclude that there should be a 5 per cent adjustment in favour of the father.

   d)Commitments of each of the parties that are necessary to enable the parties to support himself or herself and/or a child or another person that the party has a duty to maintain;

   e)The responsibilities of either party to support any other person;

6. The mother has not re-partnered.  Ms N is not a financial impost on the father. Neither of the parties has commitments other than those necessary to support himself or herself and their children.

   f)The eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of any other country; or

   any superannuation fund or scheme, whether the fund or scheme was established or operates within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party;

7. The parties each have a comparatively modest amount of superannuation.  The value of the father’s superannuation interest is approximately $75,900 and the value of the mother’s superannuation interest is approximately $44,900. Neither party sought a superannuation splitting order.  Each party will be eligible and able to increase their superannuation in coming years.  However, at the moment, the value of the parties’ superannuation interests equates to more than 35 per cent of the pool of superannuation and non-superannuation property divisible between the parties. The discrepancy between the superannuation interests is $31,000 or 10 per cent of the pool of divisible assets.  Accordingly, in the absence of a splitting order, the father will carry a disproportionately high amount of illiquid (superannuation) assets.

8. The mother has been receiving an income tested pension or benefit referrable to her care of the children. Each parent may now be entitled to some relief.

   g)Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

9. Each has maintained a reasonable standard of living post separation. Unfortunately, the costs of these proceedings will leave both parties bereft of capital and the father in considerable debt.  Each will be reliant on income rather than capital to meet the expense of accommodating themselves and the children into the future.

   h)The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

   j)The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

   k)The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

10. This is not a case where either party makes application in respect of spousal maintenance.  Both parents have up to date qualifications and a sound capacity to earn income into the future.

    l)The need to protect a party who wishes to continue that party’s role as a parent;

11. Both parents were employed outside the home during the marriage and will continue to be so.

    m) If either party is cohabiting with another person – the financial circumstances relating to the cohabitation;

12. The mother is not co-habiting with a partner.  In practical terms, the father shares his expenses and income with Ms N who works shifts at O Health and at a hospital in the city, where the father works. There is not a lot of money between them but I am satisfied that it is easier to share the financial upkeep of their blended family than to assume sole responsibility for maintaining their households.  This is an advantage to the father to which I have regard.  

    na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;

13. A child support assessment is likely to issue against the mother but, on the current incomes of the parties, I cannot see how it would, or could, be anything other than a nominal amount.  No evidence was adduced in this respect.

    o)Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

14. I have already mentioned the disparity in illiquid assets holdings in the context of s 75(2)(f).  In the absence of the parties seeking a superannuation splitting order prior to, or during, the hearing, I will not make any such order.  However, treating the superannuation assets the same as non-superannuation assets results in the father having less access than the mother to liquid assets which is a disadvantage to him.

Conclusion on adjustive factors under s 75(2)

1. Taking all these matters into account, it is my view that it is appropriate that an adjustment be made in favour of the father so as to reflect that the children will reside predominantly with him.  The adjustment of 10 per cent contended for by Mr St John SC is too high.  The children will reside with the mother for less time than they do with the father but she will still provide a substantial amount of care.  I conclude that the appropriate adjustment is 5 per cent. I regard the disadvantage to the father in retaining a disproportionately high amount of illiquid assets in superannuation is cancelled out by the benefit he receives by sharing a household with Ms N.

Section 79(4)(f)

Any other order made under this Act affecting a party to the marriage or a child of the marriage.

1. There are no other orders made under the Act which affect a party or a child which needs to be taken into account, save for the parenting orders which are provided for herein and which will result in the children living for about 60 per cent of the time in the father’s household.

Section 79(4)(g)

Any child support that a party to a marriage has provided, or is to provide, or might be liable to provide in the future, for a child of the marriage.

1. The father has met his child support responsibilities to date.  Otherwise, these provisions have been considered in relation to s 75(2)(na) above.

Fourth step: are the orders just and reasonable?

1. My assessment of contributions and adjustive factors and matters otherwise to be taken into account result in a final alteration of property interests, expressed proportionately, at 55 per cent to the father and 45 per cent to the mother.  There is agreement on the current market value of the home but no certainty at all on what the net proceeds of sale will be.  Apart from the sale proceeds and leaving to one side chattels, the shares and the GE Personal Loan, in respect of which separate provision is made:-

   a)The father will take his superannuation at $75,900, his car proceeds at $400, and the funds he withdrew at separation of $5,000. This is a total of $81,300;

   b)The mother takes her superannuation at $44,905 and the car of which she has use valued at $8,000. This is a total of $52,905

2. As set out in paragraph 422 of these reasons, and if I have notional regard to the net value of the home at $176,500, the non-superannuation assets (excluding shares, chattels and the GE Loan) amount to $189,900. The superannuation assets are $120,805.  The total pool is $310,705. It follows:-

   a)The father will receive 62.8 per cent of the superannuation assets and the wife will receive 37.2 per cent of the superannuation assets;

   b)Each will receive approximately 50 per cent of the non superannuation assets;

   c)The total non-house assets are $134,205 of which the father retains $81,300 by way of his superannuation, the car proceeds and moneys withdrawn at separation. 55 per cent of the non-house assets equates to $73,812. Accordingly, the father must make an allowance in favour of the mother, from his share of the proceeds of sale of the home of $7,488. There is also to be an adjustment in relation to the Wesfarmers shares.  These adjustments are regardless of the price for which the house is sold.

3. Standing back and considering the operation of the orders, I am satisfied that the financial outcome is just and equitable.

Conclusions

1. For the above reasons I am satisfied that the parenting and property orders set out at the commencement of these reasons are appropriate and I make orders in those terms.

Costs

1. It was agreed that the submissions as to costs should follow publication of these reasons.  Accordingly, I will make provision for submissions within a reasonable time.

I certify that the preceding four hundred and sixty (460) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 10 September 2010.

Associate: 

Date:  10 September 2010