SHROEDER & DRUMMOND

FAMILY COURT OF AUSTRALIA

SHROEDER & DRUMMOND

[2011] FamCA 741

FAMILY LAW - CHILDREN – Parenting Orders – Family Violence – Best interests of the children – Where there is a history of physical and psychological abuse against the children and the mother – Where the father sexually abused the mother and a subsequent partner – Where the children currently live with the mother – Where unacceptable risk to children of exposure to family violence - Where the mother is their primary carer – Where father denigrates mother and her partner to the children - Order for sole parental responsibility in favour of the mother – Father to have supervised contact with the children six times per year.

FAMILY LAW - PROPERTY – Small property pool – Where the mother made greater financial contribution and contributions as a homemaker and parent – Where the father has not paid child support – Where the mother had sole parental responsibility – Where the father is entitled to an inheritance the value of which was not disclosed– Mother to receive 100 per cent of the assets excluding the father’s inheritance.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Biltoft (1995) FLC 92-614
Chorn and Hopkins [2004] FamCA 633
Collu & Rinaldo [2010] FamCAFC 53
Farmer & Bramley (2000) FLC 93-060
Goode & Goode (2006) FLC 93-286
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
Johnson v Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Russell v Russell (1999) FLC 92-877
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Shroeder

RESPONDENT:

Ms Drummond

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

2853

2007

DATE DELIVERED:

22 September 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Newcastle

JUDGMENT OF:

Ryan J

HEARING DATE:

7, 8, 9, 10 June 2010, 20 May 2011 and 2 June 2011 and written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Graham

SOLICITOR FOR THE APPLICANT:

Thomas Mitchell Solicitors

Mr Shroeder appeared for himself on 20 May 2011 & 2 June 2011

COUNSEL FOR THE RESPONDENT:

Ms Barker

SOLICITOR FOR THE RESPONDENT:

Denise Clark

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boyd and Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That all existing orders regarding the children J born … February 2003 and K born … March 2005 (“the children”) are discharged.
That the mother have sole parental responsibility for the children.
That the children live with the mother.
That the children spend time with the father on six (6) occasions each year for two (2) hours, as scheduled and supervised by Contact Centre 1, Mr A or another agreed independent person/agency that provides professional supervision for children spending time with a parent, in Newcastle.
That within seven (7) days the parties make contact with Contact Centre 1 and/or the agreed alternate supervisor to register to utilise that service.
That the parties do all things required by Contact Centre 1 and/or the agreed supervisor and follow all reasonable directions the supervisor from time to time to facilitate the father spending time with the children.
That the father pay the costs of and associated with supervision.
That the father give not less than two (2) weeks notice to the mother in writing of his intention to attend or not attend each visit with the children.
That the parties are hereby restrained from denigrating each other in the hearing or presence of the children and are restrained from exposing the children to any other person denigrating the other party.
That the mother ensure that any school that the children attend is provided with the father’s current address details and is authorised to provide him at his expense, with copies of all material and oral information including face to face interviews with the school principal, in relation to the children’s academic progress and development with which a parent would be provided with in the normal course of events.
That the father ensure that the mother has his current address details and telephone number by providing them to her in writing.
That the mother ensure that the father has an address through which to communicate with her pursuant to these orders herein by providing the same to him in writing.
That the mother ensure that the father be notified in the event of the children being involved in an accident or being injured so as to require hospitalisation or urgent medical treatment, or on becoming aware that either of the children is required to undergo surgery and providing the father with details of the outcome of treatment or surgery.
That without the prior written consent of the mother, the father is restrained from being present or approaching the children at any place including but not limited to any school the children may attend from time to time, the vicinity of their home, and any sporting even or social activity providing that he may attend the children’s school out of school hours when the children are not there for the purpose of attending pre arranged meetings with the school principal or the children’s teachers.
The father is at liberty to provide the children with cards and gifts for their birthdays and Christmas.
Subject to Order 15, without the written permission of the mother, the father is restrained from directly communicating with the children by telephone, Facebook or other such similar program on the internet, by text message on the telephone or other such device, or by letter or card or by any other means.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That by way of property settlement the mother is entitled to receive forthwith and retain as her property the entire net sale proceeds of G Street, Town 1. To the extent required the parties shall forthwith do all acts and things necessary to give effect to this order.
Except as otherwise provided in these orders, the parties are declared to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, shares, equities, superannuation entitlements and personal effects in their respective possession and control.
All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2853 of 2007

Mr Shroeder

Applicant

And

Ms Drummond

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting and property settlement proceedings. The parenting proceedings relate to the parties two children, J born in February 2003 and K born in March 2005.
The parties separated for the first time in mid October 2005. J was about 20 months and K about 7 months. At separation the children remained with Ms Drummond (“the mother”). A few weeks later the parties reconciled and Mr Shroeder (“the father”) moved back into the family home. Within six months the parties’ relationship ended and in late May 2007 the father left the family home. Again, the children remained in the mother’s care. It was agreed the children would spend each alternate weekend and one night overnight each alternate week with the father. This arrangement broke down quickly and, after about three months negotiation the father provided the mother with a clear drug screen following which, supervised by their paternal grandmother, the children had a number of day only visits with the father.
From the outset the mother raised concerns about the father’s drug use, mental health and family violence. She was torn between trying to ensure the children had an ongoing relationship with the father balanced with concern for their safety and the effect on them of his aggressive behaviour. In any event, on 31 October 2007 the parties entered into interim consent orders which, in summary, provided for a six week lead in period during which time the children spent time with the father weekly supervised by the paternal grandmother. Provided the father produced clear drug screens, after six weeks supervised time the parties agreed the children would spend five nights per fortnight (in two periods) during school term with him and divide the shorter school holidays equally. The father provided clear drug screens and the children spent time with him in accordance with the orders.
In January 2009 K returned from time with the father with a bruising to his buttocks in relation to which both children said the father smacked K. K was not quite four years old. Other than to photograph K’s bruised buttocks, no further action was taken by the mother.
In mid May 2009 a family consultant interviewed the parties and children. Both children were observed to be “very happy and very relaxed” in each party’s and the maternal grandmother’s presence. The family consultant commented on the tension between the mother’s proposal that the children spend from after school Friday until before school Tuesday and half the school holidays with the father and allegations she made about his violence and psychological abuse. The family consultant reported that the mother said “she felt powerless to resolve this conflict as if she attempted to restrict the children from spending time with [the father] any further, she feared that [the father] would intensify his denigration of her to the children and this would be even more harmful for the children.”
The father denied he had been violent or abusive to the mother or children. Whilst he acknowledged that he may have been careless about the manner in which he spoke about the mother in the children’s presence, he denied denigrating her to them. Relevantly, the family consultant recommended the father obtain a referral for supportive individual counselling to assist him to better manage his feelings and separate any negative feelings he may have about the mother or any male friend of hers, from impacting upon the children’s relationships with her or any other party. It was further recommended “that if [the father] has a propensity to be abusive in relationships … [the father] undertake programs such as ‘[Men’s Parenting Program].’” It was observed that any improvement the father could make in this regard, would have a positive impact on his relationships with the children “as well as an indirect positive impact as good male role modelling for the children”. Prior to this hearing, the father attended a relationships/parenting program.
In circumstances where the parties were unable to agree on parenting arrangements, the family consultant recommended that the interim consent orders be changed so that the children spent one block period with each parent each fortnight. So that it is clear, the family consultant did not express an opinion about the duration of the respective block periods. When his opinion that the parties’ level of communication appeared “to be well below the level required for equal time shared care arrangement to be likely to be in the children’s best interests” is taken into account, there is little to support the father’s contention that, out of concern that he may obtain better and more time with the children, the mother escalated the gravity of her allegations about his violence and abuse.
On 9 June 2009 the father’s most recent girlfriend, Ms L, contacted the mother. Essentially, she spoke about the father taking drugs and drinking, his physical and verbal abuse of her and the children. The mother was informed by Ms L that she and the father had separated, Ms L was pregnant to him and he was defending an application for an apprehended domestic violence order initiated by the police for her protection.
Further interim orders were made on 24 June 2009 which, in relation to the children’s time with the father suspended prior orders in favour of day only periods, each Thursday and Saturday from 7.30 am to 5 pm supervised by the paternal grandmother. Contact occurred in accordance with the orders for three weeks. In mid July 2009 the paternal grandmother contacted the father’s solicitor who she informed that she was no longer willing to supervise. It is the paternal grandmother’s evidence that the father was rude and verbally abusive to her, uncooperative in relation to her attempts at supervision and indifferent to K.
The father nominated Mr R as an alternate supervisor, which nomination the mother appropriately rejected. The father then, without a supervisor, attended two of the children’s soccer games. There is conflicting evidence about whether the children briefly spoke with the father. While on balance I accept that they did, the conflicting versions are explained by the extent to which the various witnesses saw what occurred rather than matters of credit. While I accept he acted in accordance with legal advice, his claim he was not in breach of orders for supervised time is rejected.
In mid November 2009 the mother agreed to the father’s proposal that he see the children at a contact centre or supervised by a nominated paid professional. Yet no steps were taken by the father for follow up with the mother. While this is a result of miscommunication between the father and those advising him, it is illustrative that even when the parties agree implementation is highly problematic. In the event, in mid 2010 the parties agreed that the father would see the children supervised by a paid supervisor which, it is common ground, has been successful.
It is submitted by the father that the Court would reject allegations of sexual violence made by the mother (for the first time in 2007) and Ms L. Significant weight is sought to be attached to “… the children have consistently expressed a wish to see their father and have expressed that they are comfortable in their father’s home and enjoy his company. The father is supported by his now partner [Ms E] and the court could be well satisfied that his relationship with [Ms E] is a stable and positive relationship that will continue into the future.”
After these submissions were made, the father was given leave to reopen the parenting proceedings, in particular to inform the Court about the outcome of proceedings initiated by the police on behalf of Ms L. In this regard, mutual undertakings are in place which restrains them from coming into contact with each other. The Court was also informed the father no longer resided with Ms E and he had re-partnered with Ms M with whom he does not cohabit.
Ultimately the mother sought sole parental responsibility, supervised time for the children along the lines suggested by the Independent Children’s Lawyer (“ICL”) and twice weekly telephone contact and liberal contact by email. The father sought equal shared parental responsibility and that the children live with each party week about during school term, half school holidays and nominated special occasions. Because the parties live in close proximity; the mother in Town 2 and the father in Town 1 which are five kilometres apart, an equal time arrangement is reasonably practical.
Because of the complex issues raised in the parenting proceedings, an ICL was appointed to represent the children’s interests. Having taken an active and constructive role in the hearing, it is submitted by the ICL that it is in the children’s best interests for the mother to have sole parental responsibility, the children live with her and spend time with the father six times each year for two hours supervised by Contact Centre 1. It is submitted by the ICL that the Court will be satisfied that the father is a perpetrator of serious family violence (including sexual violence). The ICL submitted that the Court would reject that there was a conspiracy between the mother and others against the father and be satisfied that he has actively undermined the children’s relationship with the mother and behaved in an emotionally abusive manner towards the children. Essentially, after a careful analysis of the evidence, the ICL invited the Court to accept the mother’s witnesses as witnesses of truth and to be cautious about Ms E’s naive acceptance of the father’s version of events and accept that in many respects the father’s evidence was untruthful. Unless it is stated to the contrary I agree with the ICL’s analysis of the evidence and assessment of the children’s best interests.

The General Law in Parenting Cases

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children”. Section 61DA(1) provides that when making parenting orders the Court must apply the presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility. Essentially, the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2), the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.     The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.

In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
To the extent they are relevant to the particular case, the Court must consider thirteen additional considerations set out in s 60CC(3). Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities (s 60CC(4)). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence (s 60CG).
If the Court is satisfied parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with his or her parents (s 65DAA) and whether doing so would be in the best interests of the child (ss 65DAA(1)(a) and (2)(c)). The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in ss 65DAA(3) and (4).
Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests (Goode & Goode (2006) FLC 93-286).
By virtue of s 60CA, the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations as identified as issues arising in the particular case but not specifically referred to in the Act. Ultimately, the weight attached to each factor is a matter of discretion.

General principles to be applied in determining abuse allegations

The legal principles to be applied in a case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. The oft quoted passages are found at pp 76-77 where the High Court held:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
By way of further elaboration of the civil standard of proof, the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane and Gaudron JJ said at pp 170-171:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Although the authorities discussed above were decided prior to the Evidence Act 1995 (Cth) they have been applied in decisions made subsequently. That they apply to cases such as this one was clearly stated in Johnson v Page (2007) FLC 93-344.
The onus of proof in the civil standard of proof in accordance with s 140 of the Evidence Act. As the Full Court in Johnson v Page said a Court will only make a positive finding that sexual or other abuse has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235.
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather than only some, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard: Johnson v Page.
The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M (at p 76) the High Court said:
The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities.
If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events. In A v A the process is described thus:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the parties’ capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.

Background facts

Unless I have stated differently the balance of probabilities will determine findings of fact.
The mother was born in 1974. She is 37 years old.
The father was born in 1976. He is 35 years old.
The parties commenced cohabitation in November 1995. At that time the mother was employed as a clerk, which position she has maintained ever since. The father was an apprentice tradesman. He is a tradesman and has variously been employed by others and self employed.
In January 2002 the parties married.
J was born in February 2003. The day beforehand the mother commenced twelve months maternity leave.
From when J was born until 8 October 2003 the mother was his full time carer. Because of financial pressure the mother returned to work earlier than planned. She returned to work part time, and worked each Monday, Wednesday and Thursday evenings from 4 pm to 8 pm. The father cared for the child while the mother was at work. The mother says, and in this regard her evidence is accepted, that on many evenings when she returned home J was asleep in his bedroom while the father (with the baby monitor) was with friends in the garage smoking marijuana. Nonetheless this unsatisfactory situation continued for twelve months at which time the mother rearranged her work hours.
In January 2005 the mother’s hours increased to nineteen hours per week in relation to which she worked 7.5 hours each Monday and Friday and from 4 pm to 8 pm on Wednesday. J attended day care on Monday and Friday and the maternal grandmother cared for him on Wednesday evenings. The mother took J to and from day care and collected him from her mother on her way home on Wednesday.
K was born on 10 March 2005.
Because the mother was concerned about the father’s marijuana use, she arranged that the maternal grandmother care for J during her confinement.
Again, because of financial pressure, the mother returned to work sooner than was her preference. K was four weeks old when she returned to work nineteen hours per week. For the first two weeks following the mother’s return to work her sister cared for him each Monday, Wednesday afternoon and Friday. It appears that when K was six weeks old he commenced at the same day care attended by J each Monday and Friday. On Wednesday afternoon, from 12 noon to 4 pm the maternal grandmother cared for the children.
The mother’s father celebrated his 60^th birthday with a party in early October 2005. The mother rejected the father’s direction that she and the children not attend. This was the catalyst for the parties’ first separation and, four days later the father left the family home. After the parties separated the father asked for DNA testing in relation to K. When K was admitted to Hospital 1 a couple of weeks later, the father was uninterested in the child’s condition and, in effect, told the mother not to bother him because the child was not his. The mother remained at hospital with the children. The father did not visit K.
In early November 2005 arrangements were made by the mother and paternal grandmother for the father to have daytime contact with the children. In mid November 2005 the father apologised to the mother “for everything I have put you through”. She hoped and believed he was genuine in his promise to work on their marriage and, within a few days, the parties reconciled.
On 22 November 2005 the father, as punishment for her defying him anally raped the mother the details of which are set out in her affidavit. At that time the mother did not tell anyone what happened. Indeed, two years lapsed before she told anyone what happened.
On 2 December 2006 the parties attended a wedding. Mr S was seated at the same table. He became aware that the father left the wedding following an altercation the father had with a groomsman. Mr S gave unchallenged evidence which is accepted. He corroborates the mother’s evidence that she received a number of calls from the father, which she told him were abusive and that she was anxious to get home as soon as possible. The mother shared a taxi with Mr S and his wife. When the mother alighted from the taxi, as the taxi drove on, Mr S saw the father gesticulating in an aggressive manner and he appeared to be yelling at the mother. He saw the mother try to walk up the driveway with the father pushing her back down. Mr S stopped the taxi and asked the mother to leave with him. The father intervened and said “get back in the fucking taxi or I will deck you”. The mother was afraid that if she left the situation would only deteriorate and decided to remain and try to calm the father. She told Mr S she would call the police and he should go.
Once she was inside, the mother called the police. The father pushed her from behind and caused her to fall down a flight of stairs. The telephone flew out of her hand. A 000 operator called the mother back who allowed the call to ring out. When the operator called again the mother informed the operator the father had calmed down and requested that police not attend. The mother slept the night on the lounge. The following day, she had bruising developing across her chest, lumps across her chest and experienced difficulty breathing. Although she decided she would have to separate from the father, she did not feel strong enough to go to the police and/or become involved in court proceedings. Indeed, she was so embarrassed, she did not tell her sister about the situation in the home until after she separated.
On 19 May 2007 the mother informed the father that their marriage was over. Although he promised to work to improve their relationship, she refused his requests that they reconcile.
On 26 May 2007 the father vacated the family home. For the following three months he lived with his mother.
According to the mother by the time the parties separated the father regularly and heavily abused alcohol, all but daily used marijuana, most evenings from about 6 pm until 11 pm was spent by him in the garage (often with friends) using marijuana, was often verbally abusive to her, had been physically abusive to her, sexually abused her and was abusive to the children. It is argued by the father in support of his denials of the mother’s allegations that she would not have offered him unsupervised time to children aged four and two if what she said was true. His point being, in essence, if the mother considered the children were at risk in the father’s care she would not have agreed that the children spend each alternate weekend unsupervised with him. I agree that there is an obvious tension between the mother’s evidence about the father’s behaviour prior to separation and her immediate agreement that the children spend time with him unsupervised.
The mother explained that by the time the parties separated her self esteem was all but destroyed. She believed she was not strong enough to give evidence against the father and was ashamed about the situation she was in with him. She said “I was concerned about [the father’s] drug taking but I was more worried about getting an agreement in place so that I had orders and he could not take the children from me. I was still scared that he would follow through with his threats and take the children from me. I thought that by giving him what he wanted he would leave me alone and we could avoid any litigation. I just wanted it all over.”
The family consultant explained that victims of family violence can be made by the perpetrator to feel responsible for the violence. Belated disclosure by victims of family violence is, according to him, not inconsistent with earlier violence. In other words, victims of family violence often find it difficult to disclose what has occurred. This evidence is accepted and, as well as helping to understand the mother’s failure to disclose earlier what happened, also partly explains agreement that the children spend time with the father unsupervised. As will be discussed later, while this was a poor decision in terms of the children’s safety and needs, it is not without significance that the decision was made at a time when the father lived with his mother. In any event, notwithstanding the mother’s agreement for unsupervised time, the preponderance of evidence weighs in favour of the Court accepting that the father behaved prior to separation in the manner alleged by the mother.
Contact between the children and the father commenced on Saturday 9 June 2007. When the father arrived, the mother delivered the children to him at the car. Over her protestations he entered the house and inspected every room. He had been in contact with the mother’s friends and family questioning whether she was seeing someone. He searched the house that day for signs she was.

K underwent a day surgery hernia operation on 12 June 2007. The mother was at home with him the following day in relation to which it was agreed the father would collect J from day care and bring him to the mother’s home where he would see K. This occurred and went well. The following day the children attended pre-school. The mother arranged to work from home so that in the event K needed to return home, he could. The parties had agreed that the father would collect the children that afternoon from day care. During the day the mother received at least fifteen telephone calls from the father. She answered the first two and then took a call from him at about 3.30 pm. He wrongly accused her of being with another man in relation to which he said he was immediately coming to the home and “I want answers from you”. Afraid for her safety the mother left the house.
A short time later the mother received a telephone call from a male acquaintance who said he had received a call from a person who threatened his daughter. The male acquaintance and the mother had been to coffee a couple of times following the parties separation, which the father discovered and decided she had re-partnered. When the mother heard the message on her friend’s mobile telephone she thought it was the father, who it probably was. The mother spoke with the father who denied telephoning her friend. The father collected the children from pre-school. He spoke with the mother at 6.30 pm and said that because of the threat made to the mother’s friend, the children’s lives were in danger. He telephoned the police and, when the mother called to check on the children, he told her she would never see them again and that “I am taking the children and they are never coming back”. Through a mutual friend, the mother received information that the father was taking K to Hospital 2. After the mother set off, she received a further call to the effect that the child had been released and that her friend was following the father. The mother went to the paternal grandmother’s home where, having discovered nobody was present, she waited. Whilst there, the friend who had called her about Hospital 2, drove past. The father was in the passenger seat and the children in the rear. The father and his friend did not enter the paternal grandmother’s property (where the father resided) and drove on. I am satisfied the father saw the mother and kept going to keep the children from her.
The mother called the police. Because the father’s calls were going through to message bank they telephoned the driver friend. He then led police on a wild goose chase by sending them to various addresses and it was only when warned he may be charged, that he revealed the father’s whereabouts. The police retrieved the children from the father at his aunt’s home at about 11.30 pm. The father did not see the children again until Father’s Day 2007.
When the mother and children returned home, K went straight to bed. J refused to enter, saying “Daddy told me there is a bad man in there and he will do bad things to me and I don’t want to go in”. This is but one example of the father telling the children bad things about the mother the effect of which was to undermine their trust in her. In any event, the mother took him into every room, opened cupboards, looked under beds and reassured him no bad man was present. Unusually for him, J insisted he sleep with her and it was six nights before he went back to his own bed. So that it is clear, I am satisfied this is a direct result of the father frightening his son.
The father contacted the Department of Community Services to whom he alleged K required their intervention as a consequence of, in effect, the mother’s neglect following his hernia operation. Appropriately, having spoken to the mother, no further action was taken by the department.
So that it is clear K’s hernia surgery was minor and he was properly cared for by the mother and at pre-school. The father’s actions were inappropriate, caused enormous distress to the mother and must have been very confusing for the children. If, as the father said, his actions were motivated out of concern for K, it was at best hypocritical of him to complain that the mother sent him to pre-school compared to him, in effect, traipsing the child around until nearly midnight. His actions were manifestly inappropriate and demonstrate a serious lack of judgment in relation to parenting matters.
On 15 June 2007 the Director of the children’s pre-school wrote to the father about his behaviour. In short, three staff members reported the father’s behaviour towards them as frightening and it was pointed out that children at the pre-school “would also have been distressed and frightened by [his behaviour]”. It was observed that the children had attended their pre-school for four years and it had only been in the recent two weeks that the father had made himself known to staff. He was provided with a brochure “Appropriate Behaviour for Parents Policy” and informed that if his poor behaviour was repeated, the pre-school would “explore whatever legal avenues available to us to ensure the safety and well being of not only K and J but of all staff, children and families who use the [pre-school] services”. The father denied behaving inappropriately towards staff and said the letter was evidence of their allegiance to the mother. I do not accept his evidence. The letter itself makes plain the pre-school’s desire to work constructively with the father and their willingness to relegate these matters to history (provided there was no further poor behaviour). I am satisfied the father behaved in the manner described in the letter. Thereafter, once the parenting arrangements changed and changeover occurred at pre-school, subject to disagreements about him trying to alter sign in times, the father behaved appropriately when collecting and delivering the children to pre-school.
In the following days the mother discovered property damage at the home, personal items (underwear and clothes) removed, the pool timer reset to late at night and her Foxtel card deliberately tampered with. As no one else had access to the home she reasonably deduced the father was responsible. She was, at this time, continually receiving messages from him relayed through friends and acquaintances. He attended her mother’s workplace and frequently text messaged her. The mother believed the father’s deteriorating behaviour was probably related to drug abuse and she decided the children were unsafe in his care. Accordingly, on 21 June 2007 she withdrew her earlier offer of unsupervised weekend contact and asked that he provide:-
·   a psychological assessment which confirmed he was not a danger to the children;
·   a series of toxin screen analysis, seven days apart, which showed he is drug free; and said that
·   until further notice, he could see the children for three hours each Saturday or Sunday under supervision.
The following day, through his solicitor, the father proposed an interim arrangement whereby the children live for the first three days of each six day period with him. In other words, pending further order, two children aged four and two would move home every three days. With respect to the father’s proposal, it appears to have been focused on the needs of adults rather than the children. No mention was made by him about the assessments and drug screens sought by the mother. The mother did not agree to the father’s alternate proposal. It was agreed the father and children would speak each evening. This occurred most evenings with the mother helping the children telephone the father at about 6 pm. There were occasions when the children refused to make or receive a call.
The mother repeated her 21 June 2007 offer by letter dated 25 June 2007. The father made no response and drug screens were not provided.
On 12 August 2007 J was invited to attend a birthday party at a local McDonalds. That morning, after he asked to speak to the father, the mother dialled the father’s number and handed the phone to their son. During the conversation J told the father about the birthday party, including its location and time. There was no suggestion the father was invited to the birthday party and I infer he was not. Upon entering the restaurant grounds the mother noticed the father. When she stopped the car, the father opened the back door and tried to take J. J was screaming and crying and clung to a baby capsule in the middle seat. The mother told the father to let J go and shut the door. He complied. While the mother was seated with J, who was still crying, she received a text message from the father that informed her he had departed. This incident prompted the mother to request an apprehended violence order. Local police took a short statement from her at her home that evening and an apprehended violence order application was filed by them. It was returnable on 30 August 2007. By that stage the father had moved from his mother’s home and was living in shared accommodation at an address not known to the mother. The police were unable to serve him. Nonetheless, an interim apprehended violence order for the mother’s protection was granted on 30 August 2007.
In the meantime, the father asked the mother to participate in mediation and sought supervised time with the children. They were unable to agree upon a mediator. The father’s mother agreed to supervise and a clear drug screen taken on 28 August 2007 was provided. While the drug screen result is pleasing it is noteworthy that the father waited months before responding to the mother’s request that he undergo a drug screen. The point being, he had ample time within which drugs or excessive alcohol could leave his body. A toxins screen test undertaken within a day or two of the mother’s initial request which produced a negative reading would have been more compelling evidence about his substance use.
Supervised by the paternal grandmother contact between the children and the father resumed on 2 September 2007. When they returned J reported that the father had a new girlfriend who, along with her daughter, lived with the father. J returned particularly aggressive and took some time to calm down. He was concerned about being required to share his father with people he did not know and troubled about how future arrangements would be implemented with new people in his father’s life.
Although it is not entirely clear it would seem that the partner about whom J spoke is Ms D. She and the father lived together for about six months. Indeed, she is the first of three women with whom the father re-partnered and cohabited following separation and who he included in a significant way, in the children’s lives. Again this raises questions about the father’s parenting capacity including his awareness or interest in the children’s emotional needs.
The children spent time with the father, on the same conditions as that which occurred on Father’s Day, on 23 September 2007, 29 September 2007 and 20 October 2007.
The resumption of supervised time coincided with J, who had been fully toilet trained at two and a half, starting to bed wet and needing to wear night pants. He also bed wet during rest time at pre-school. This was out of character. His behaviour on return from his father was aggressive. He told the mother she was nasty and he hated her. He hit and kicked K. This was out of character. When K noticed the mother packing his bag preparing to spend time with the father, he became clingy and upset.
In the meantime, the apprehended violence proceedings were adjourned for hearing on 12 October 2007. The father retained a lawyer through whom he offered an undertaking similar to the orders sought by the application. After the mother spoke with the police, she accepted the father’s undertaking as a consequence of which on 12 October 2007 the police withdrew their application for an apprehended violence order. On the following days the father repeatedly telephoned the mother, indeed, on one evening he called her twelve times. Messages left by him on her answering machine on 16 October 2007 for J to call sounded as though his speech was slurred. I accept it is quite likely that he had been drinking.
As was mentioned earlier, interim consent orders were made on 31 October 2007 the effect of which was that supervised time by the children with the father resumed on 3 November 2007. After he produced six clear random urine analysis tests (requested by the mother), commencing 14 December 2007 on an unsupervised basis the children were to be with him from after pre-school – day care Friday until Monday each alternate weekend. Commencing 19 December 2007 on each other week, the children were to spend time with the father from after pre-school – day care on Wednesday until Friday morning. Provision was made for the father to spend half of each of the term one, two and three school holidays with the children, with specific arrangements for the January 2008 school holidays. The father produced clear drug screens and spent time with the children as provided by the orders. As well as numerous other examples which could be recounted, the mother’s agreement to this arrangement demonstrates she willingly promoted the children’s relationship with the father and counteracts in a real way his claim she has tried to undermine the children’s relationships with him.
Although the date is not entirely clear it appears that in December 2007 the father gave up paid work to care for his father who had terminal cancer. Thus when the children were with the mother, he stayed with his father. He returned to his rented accommodation and Ms D when the children were with him. The father did not tell the mother about these events. Because this potentially impacted upon his ability to pay child support, he should have done so.
In January 2008 the mother and children vacated the family home and moved to a rented property at Town 3. By arrangement with the mother, the father moved back into the family home. Ms D moved with him.
In June 2008 the father’s father passed away. He appointed the father and another person as executors and trustees of his estate, in relation to which he bequeathed his home in equal shares to the father and the father’s sister. The father’s sister has a disability and a dispute has arisen between the father, his mother and sister in relation to receipt by his sister of her inheritance. According to the father, his mother is so disaffected with him about his stewardship of his sister’s inheritance that she now aligns with the mother and, in this hearing, gave false evidence. There is no doubt that the father and his mother are estranged and she is disaffected by the manner in which he has dealt with his sister’s interest in her father’s estate. However, I am not satisfied that the father’s mother gave false evidence.
The mother and her partner (Mr P) commenced their relationship in August 2008. They now live together and have a settled and happy home life.
In late 2008, J commenced seeing a psychologist.
Notwithstanding searching cross-examination by counsel for the ICL it remained somewhat unclear about when the father resumed paid employment. He is self employed as a tradesman and it appears that within a couple of months of his father’s passing the father secured a not insignificant contract at Town 4. He was back and forth from Town 4 to spend time with the children in the family home. By then, his relationship with Ms D had ended and, in late September 2008 he commenced a relationship with Ms L. Ms L has two children; a boy named B and a daughter Z, born September 2009 by the father. Ms L fell pregnant to him in December 2008 and, in January 2009, moved in with the father. From early in her relationship with the father, when the children were with him, so were she and B.
There is no doubt the father was dishonest with the family consultant about his relationship with Ms L as well as in his parenting questionnaire. In his parenting questionnaire, in answer to question 47 “Who else will live in the home with the children where you propose the children will usually live? Include anyone who will live there full time or from time to time.” The father answered “[Ms L] – from time to time and rarely.” Ms L was already living in the home full time. The family consultant accurately reported on his consultation with the father in the following terms:
[The father] anticipates moving the homes and commencing a full time defacto married relationship with his current partner (and her five year old child from a previous relationship) in the next few months. [The father’s] partner is expecting their first child in September.
In short, the father failed to disclose he and Ms L cohabitated from January 2009. Also, that a few weeks earlier Ms L alleged he raped her and that they no longer cohabited. Clearly these were matters about which the father should have informed the family consultant and, had he answered the family consultant’s questions honestly would have been revealed. I am satisfied the father understood that the information provided by him to the family consultant and in the parenting questionnaire was untrue and that he gave his untruthful answers for perceived forensic gain. These matters weigh against the father being accepted as truthful when his uncorroborated evidence conflicts with that given by other witnesses.
By January 2009 the father said he was in full time employment. Ms L explained he was often at home during the week drinking with friends. Notwithstanding various statements about his intention to pay periodic child support, the father has not done so. In this regard, he has demonstrated disregard for his parental responsibilities and shown that, where his and the children’s interests differ and the children’s interests should come first, this is not something that the father can be relied upon to deliver.
The father continued to collect and return the children as provided for in the orders. There is no issue about the children being adequately fed and accommodated when with him. Other than January 2009 when K returned home with bruised buttocks (which will be discussed later) there was no evidence of physical mistreatment of the children. There were issues about timeliness in terms of K being delivered to pre-school, J needing psychological assistance and the father’s lack of attention to his school needs. In this respect, the mother often received telephone calls from the father on a school morning asking her to deliver a clean uniform because he either could not find or had not washed the child’s uniform. The father did not participate in K’s pre-school activities indeed he did not attend the annual Father’s Day event.
Because the father ignored school news letters the mother reminded him about school activities. She paid for the children’s excursions and reminded him, for example, about a school event for grandparents that his mother could attend. Completion of J’s homework while with the father was an issue for J who, on 15 May 2009, refused to take a written presentation to the father’s home because “daddy won’t pack it for me”. Of particular concern to the mother, was the children’s distress about the father’s attitude to her. The children believed they were not allowed to speak to the father about the mother, her partner, and members of her family because the father became upset. When both parties attended the children’s soccer games the children would not approach either her or her partner for fear of the father’s reaction.
It will be recalled the parties and children met the family consultant in May 2009. At that stage, the mother knew nothing more than the children told her about the situation in the father’s home and how the children coped when with him. J was six years and two months when the family consultant met him. He was in year one at School 1 and, it was the family consultant’s assessment that he appeared to be developmentally within normal parameters. Notwithstanding the family consultant’s assessment that “J is displaying some reservation about expressing his feelings about all matters openly with his father as he believes [the father] will become angry” the child raised a number of concerning aspects of the father’s care when they spoke.

In relation to their meeting, the family consultant said:
·[J] had some recollection of the time that his parents lived together but it was vague. [J] recalled listening to arguments between his parents where [the father] would be shouting at [the mother]. [J] also spoke about [the father] pushing [the mother] into a wall but it was not clear whether [J] was referring to a threat or whether he was referring to an actual event he had witnessed. It appeared as though [J’s] statements were based upon his direct experience rather than as a result of being told that these things happened but it is not possible to be certain given his young age.
·[J] was very clear when stating that in the past [the father] had spoken to him about not having to do what [the mother] said and [the father] speaking about running [the mother] over in his truck. [J] stated that these were things [the father] had said a long time ago and that [J] knew that it was wrong to disobey what his mother said and that [the father] did not say these things any more. [J] indicated that when he was with his father he would not say anything nice about [Mr P] (the mother’s partner) because his father would get angry. [J] stated that once he was talking with his mother on the telephone and he asked his mother if he could talk with [Mr P] and his father had taken the telephone off him and hang up.
·[J] reported enjoying spending time with both of his parents and with both sides of his extended family. During informal and formal observations both [J] and [K] were observed to be very happy and very relaxed in the company of each of their parents (as well as the maternal grandmother).
·[J] could not recall the specific details of his parents’ proposals but spoke in a confused way about spending seven nights and then eleven nights and then four nights with various parents. I appeared as though [J] had been exposed to some detail of one or both of his parents’ proposals but that he did not comprehend what he had been exposed to. When questioned about various possibilities for spending time with his parents in the future, [J] thought it would be good to spend more time with both parents but he was not keen on spending less time with either parent and in particular less time with his mother. This response is developmentally appropriate and broadly indicative that [J] loves each of his parents and that [J] does not have the developmental maturation to understand the implications of various parenting arrangements.
·If [J] has been exposed to the type of abuse that [the mother] alleges that he has been exposed to, this is extremely likely to be very damaging to [J’s] psychological development and is likely to have a significant negative impact throughout his childhood and into his adult relationships.
K was two years and two months when he met the family consultant and other than talking about colouring in, he barely spoke.
J’s discussion with the family consultant lends real support to the mother’s evidence that the children were distressed about the awful way the father spoke to them about her and her partner. In addition, it is clear J recalled the father shouting at the mother and it is likely he remembered seeing his father push her into the wall. J’s remarks are consistent with the mother’s description of his exposure to family violence inflicted by the father.
More became known about the situation in the father’s home when Ms L contacted the mother in early June 2009. By then, she and the father were separated and, on her behalf, the police applied for an apprehended violence order for her protection from the father. Ms L provided an affidavit and was cross examined. Her evidence was given calmly. She did not prevaricate and quietly and appropriately answered questions which explored matters which distressed her. Essentially, her evidence covered three areas. Namely, the father’s substance abuse, his maltreatment of the children and maltreatment of her. In relation to the last matter it is her evidence that twice in the weeks prior to their separation, the father raped her. There were inconsistencies in her evidence, however, these were mistakes rather than attempts by her to mislead the Court. In short, she was a credible witness whose evidence warrants reasonable weight. This is a matter to which I shall return.
The 31 October 2007 interim consent orders were suspended and orders made on 24 June 2009, for the children to spend time with the father supervised each Thursday and Saturday from 7.30 am to 5 pm. It will be recalled, that the father’s mother agreed to supervise and that after three weeks she withdrew. It was left to the paternal grandmother to greet the mother and children. J usually ran straight into the house and into the bedroom with his father. There the father remained and left it to the paternal grandmother to mind K. When the father came out, in the children’s presence, he was often rude and aggressive about the mother and her partner. Because the paternal grandmother tried to remain neutral for the sake of her own relationship with the children, often the father became really angry and stood over her and shouted at her. Attempts by the paternal grandmother to encourage the father’s involvement with K resulted in more anger directed at her by the father.
On one occasion, a friend of the father’s came over with whom the father started drinking. The father declined to collect J from school and it was left to the paternal grandmother to take K and collect J. She had minded K throughout the afternoon while the men had been drinking. A similar situation occurred with another of the father’s friends, Mr R.
The father admits he verbally abused his mother, for which he is unapologetic. He considers she overstepped the limits of her role as supervisor and, in effect, that it was time she was put in her place. According to him, he gave no thought to the effect this might have on her willingness and ability to continue to supervise his time with the children. He has a very poor view of her decision to withdraw as supervisor. In this respect, the father’s evidence is revealing. It shows his willingness to bully a woman and expect that she simply tolerates his abuse and continue to do what he expects from her. It resonates in a real way with the manner in which the mother and Ms L say he spoke to and treated them. Although Ms E’s evidence that the father treated her nicely is accepted, their relationship was of short duration. The gravamen of the mother and Ms L’s evidence is that they too, in their respective relationships with the father, were initially well treated. As a consequence, little weight is attached to Ms E’s evidence about the manner in which the father behaved towards her in the short time they were together.
The mother and children moved in with Mr P in June 2009.
The father and Ms L’s daughter, Z, was born in September 2009.
It was only in November 2009 that the father proposed alternate supervised arrangements. While the delay in making an alternate proposal relates to a breakdown in communication between the father and his solicitor it shows how compromised is the parties’ capacity to communicate in relation to the children. This becomes even more apparent when, after the mother agreed the father could spend time with the children at a contact centre or supervised by a nominated person, little was done by either of them to implement this agreement. Again, the effect of their inability to communicate in relation to the children is apparent as is the consequential impact upon the children.
By about November 2009 the father vacated the family home. The mortgage was in arrears when he left.
In late November 2009 the father attended a Local Court in relation to the apprehended violence order application the police brought for Ms L’s protection. Uninvited, the paternal grandmother also attended. After the proceedings were adjourned the father verbally abused her.
Arrangements have been made by the paternal grandmother and the mother for the children to regularly see their paternal grandmother and the father’s sister. Reasonably often they stay overnight. This arrangement works well and, irrespective of the outcome will continue.
In late June 2010 the apprehended violence order application in relation to Ms L was adjourned for further hearing. It was subsequently settled on mutual undertakings by her and the father, to in effect stay away from each other and only communicate through lawyers.
It is common ground that in mid – late 2010 the children spent time with the father supervised by a professional supervisor which went well.
On 17 March 2011 the mother and Mr P’s daughter Y was born. Y is Mr P’s only child.

Discussion in relation to the children’s best interests

In Collu & Rinaldo [2010] FamCAFC 53, the Full Court pointed out that a number of s 60CC considerations potentially overlap. Their Honours explained that where, for example, considerations which deal with relationships overlap, it may be appropriate to consider the additional considerations first. In my view, where the considerations clearly overlap, it is also reasonable to discuss the overlapping considerations simultaneously. I will adopt this approach.
J and K are lovely boys. J’s year one school teacher reported that he struggled academically and required remedial reading assistance and considerable assistance with mathematics and writing. Term one in 2009 was problematic with J evidencing behavioural problems. The teacher spoke with the father about these and, later to the mother. Only then did the teacher realise that the father had not communicated this information to the mother. By July 2009 J’s behavioural problems had resolved. The school reported he now got along well with other children, was a good child and doing well socially. The school reported no problems with his homework or attendance.
K was reported by the principal of his pre-school as having good social skills, good conflict resolution skills and good verbal skills. However, he was assessed as having very poor concentration, very poor receptive language skills, very poor fine motor skills, very poor school readiness skills in general and notwithstanding he was old enough to start school, it was recommended he delay kindergarten by a year. The pre-school reported that K never cries, which they viewed as very unusual. The pre-school raised concern about the father’s behaviour with K, particularly in the preceding six months. It was their observation that the father was very short with K. His language with the child was very aggressive, such that the child became scared and would run to staff. It was their observation that when the two children were together the father clearly favoured J and tended to ignore K. It was their observation and opinion that, the father related to J in an inappropriately mature way “as if he was talking with a same aged mate rather than a manner appropriate to a parent/young child relationship”. The information provided by the school and pre-school is accepted.
It is common ground that the children are very fond of both parents. J particularly said he enjoyed spending time with each parent. However, as the family consultant noted, J has been reluctant to speak openly in front of his father about matters which he perceives may upset him. In circumstances where I am satisfied that both children have been exposed to significant family violence by the father (verbal and physical) a cautious approach to their views and assertions they enjoy their time with him is required. This is because, just as victim partners can find it difficult to speak out against an abusive partner, so can children in relation to an abusive parent. In short, there is nothing inconsistent in the children loving the father, enjoying aspects of their time with him but also being frightened and frightened to speak out. Theirs would seem to be a complex relationship, which is fairly strong and which has healthy but also unhealthy features.
Whether the children are able to develop and maintain a meaningful relationship with the father which is beneficial to them is problematic. The answer to this question involves consideration of his parenting capacity and the magnitude of risk of exposure to family violence.
There is no doubt that the children have been primarily cared for by the mother. While the children have both, from an early age, been in child care, at other times the mother, more than any other person, cared for them. Until the parties’ final separation, the pre-school in effect knew nothing of the father. The point being, he was not involved in collecting or returning the children or in school based activities. While the father’s care for the children increased after the parties separated for the last time, the children continued to spend considerably more time with the mother. In effect, in their lives, she has been the most significant constant presence and carer. The mother impressed as a competent parent who aims to be the best parent she is capable of being. She is hardworking and responsible. No issues were raised by either child about her behaviour, nor did J raise issues with his psychologist which even hinted he was troubled by anything said or done by his mother. The preponderance of evidence strongly suggests the children love her, are strongly attached to her and would be very troubled if their relationship with her was diminished or threatened. In short, I am satisfied the children enjoy a loving and warm relationship with their mother, the continuation of which is particularly important for their long term psychological and emotional well being.
A question which thus arises is whether re-establishing contact between the children and the father and/or orders consistent with those sought by him, would be likely to jeopardise their relationship with the mother. Not only is this an issue about a significant reduction in the children’s time with her but also whether the father is able to suppress his negative views about the mother and her family whilst with the children. Ms L and the paternal grandmother’s evidence along with J’s statements to the family consultant and his psychologist persuade me that this is very likely beyond his capacity.
In her first affidavit, the mother gave detailed evidence about the father’s alcohol and drug abuse and family violence. Vigorous cross examination did not undermine the veracity of her evidence. Indeed she was an impressive witness whose evidence is generally accepted.
It is unnecessary to recite each abusive incident inflicted by the father. In short, the mother’s evidence established prolonged alcohol and drug (marijuana and ecstasy) abuse by the father which escalated when he was under pressure. Although episodic, in the sense there were periods when he did not use drugs or abuse alcohol, it was a significant and pervasive feature of family life following the children’s births. The father was more prone to verbal and physical abuse when affected by drugs or alcohol but also when unaffected was abusive and violent. He was sober when he attacked the mother on 22 November 2005. That incident has all the hallmarks of a deliberate assault designed to assert as much physical and psychological control over her as possible. Thus while there is evidence the father does not presently abuse drugs or alcohol it doe not follow that the risk of exposure to family violence has abated.
J, more than K, witnessed his father’s abuse of his mother. In the latter part of 2008 through to early 2009 J attended a psychologist, Ms X. To her he spoke about things that make him sad, which he identified as:
·fighting with K;
·bullies at school kicking;
·vegetables;
·dad smacking; and
·dad saying mean things about mum.
In addition, he spoke about his worry “about dad swearing at his girlfriend [Ms L] on the phone”. J told the psychologist that he and K drew pictures to cheer his father and, when his father was swearing at Ms L, they would go and play on their own. J specifically identified as a worry “that dad is going to hurt mum”. In the psychologist’s report to J’s general practitioner she said her therapy with J would deal with:
·his disrespectful and defiant behaviour towards his mother following visitations with his father;
·his worries about his mother after hearing his father threaten her;
·his concerns about his parents and who was lying and who was telling the truth; and
·on going anxiety as a result of the above.
When this material is considered in conjunction with the mother’s evidence about these matters and J’s discussions with the family consultant (particularly at their first meeting) even without Ms L and the paternal grandmother’s evidence, I am strongly satisfied that the child has been exposed to the father’s physical and verbal violence towards the mother. I am similarly satisfied he and K were exposed to the father’s verbal abuse of Ms L. There is also little reason to doubt, that when the father was rude and yelled at his mother while she supervised his time with the children, that this was witnessed by them.
The father physically abused K during a week in January 2009. When the children returned to the mother on 17 January 2009 J said to her “Mummy, have a look at [K’s] bottom!” She observed bruising on his buttocks. K said “Daddy smacked me hard”. J agreed and told her “I tried to help [K], mummy but daddy said he would smack my bottom too.” The mother became upset and then J said “No mummy – I remember what happened now. [K] got his bottom caught in the swing and it pinched him.” Although she was concerned about what occurred, J’s comment about the swing left her uncertain about what had happened. For abundant caution, she photographed K’s buttocks. The photograph is in evidence and depicts bruising.
Ms L was present when the incident discussed above occurred. According to her, the father had been drinking. The children were at the dinner table and K would not eat his vegetables. The father took K and his plate into his office. A few minutes later Ms L and J followed. In the office, the father was seated and K stood. The father took a spoonful of peas and physically forced K’s jaw down and placed the peas in his mouth. He forcibly closed the child’s mouth and said “Eat them [K]. Eat them.”
Then the father noticed Ms L and J. He yelled “Get him away from here”. Ms L and J left. The father closed the door and she heard him say “Eat those peas. I’ll be back, [K].” The father got another beer and returned to the office. Ms L saw that K was crying and had vomited on the desk. The father picked K up, pulled his pants down and smacked his bottom. He yelled “What the fuck have you done? You naughty boy [K].” Ms L rushed in and said “No [the father] don’t! Give me the plate and leave him alone.” The father replied “Don’t you dare try to come between me and my boys. Get out! Get [J] away!”
Then the father took K to the bathroom and put him in a bath. J said to Ms L “[Ms L], what’s happening to [K].” She tried to reassure him in relation to which J said “But [K] never eats his peas!” The father continued to remonstrate with K, took him into his bedroom where he again hit the boy. K was put to bed.
The following morning, when K awoke he entered the adult’s bedroom and quietly stood by the side of Ms L. The father picked him up and pulled his pyjama pants down. The child’s buttocks and top of his legs were bruised and marked. Prior to the children returning to the mother, the father instructed J to tell her that K fell and hurt his bottom on a swing.
The father’s treatment of K discussed above is very serious. It was physically and emotionally abusive in relation to which, his consumption of alcohol can be no excuse. Although not physically abusive of J, it was emotionally abusive. Both children must have been terrified. In short, it was a reprehensible misuse of superior physical strength by a parent of a child. So that it is clear, the mother had not raised this incident in the proceedings before Ms L contacted her in early June 2009. This was the first time the mother and Ms L spoke and Ms L was unaware that the mother photographed K’s bruised buttocks. I do not accept the women conspired and am troubled about the father’s failure to accept responsibility for his abusive treatment of K. This incident weighs against the father having unsupervised time with the children.

Section 79(4) – The evaluation of contributions and other factors

Section 79(4) requires that the Court looks at the entirety of the contributions, both financial and non-financial, to the welfare of the family, as well as to the acquisition, conservation and improvement of assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense: Farmer & Bramley (2000) FLC 93-060. In Ferraro, the Full Court highlighted the difficulty involved in evaluating and balancing a fundamentally different contribution. It also reinforced that the Court’s task includes evaluating the significance of the various contributions, the weighing of which is ultimately a matter for the Court.
There are relatively few factual disputes in relation to contributions and other factors prior to the parties’ final separation. Post separation, the issues relate primarily to management of their liabilities.
When the parties commenced cohabitation in 1995 the father was an apprentice tradesman and the mother employed as a clerk. The mother earned in the vicinity of $380 per week and the father earned considerably less. The mother had household furniture, a motor vehicle worth approximately $12,000, savings of between $4,000 and $5,000 and minimal superannuation. She had a small loan in relation to her motor vehicle. The father owned a motor vehicle worth about $22,000 which was encumbered to its value. He had no other assets. The parties lived in rented accommodation in relation to which the mother paid the outgoings and the father paid his living expenses and car loan.
In January 1996 the parties moved into the paternal grandmother’s home and then to property owned by the paternal grandfather at Town 5. They lived rent free which enabled them to save. The rent free accommodation is a contribution made on the father’s behalf.
In mid 1996 the parties purchased a block of land at Town 6 for $45,000. The 10 per cent deposit was paid from the mother’s savings with the balance of the purchase price borrowed. Although the mortgage repayments were paid by the mother, by then the parties’ income was managed jointly. So that it is clear, however, the mother continued to earn more than the father.
In late 1996 the parties moved into rented accommodation. Shortly thereafter they separated.
Town 6 was listed for sale in February 1997 but failed to sell. Eventually it sold in late December 1999 for $45,000. The parties received $1,901.72 from the sale proceeds. When holding and acquisition costs are taken into account, Town 6 resulted in a loss.
The parties resumed cohabitation in September 1997 and lived in rented accommodation. Two years later they sold their motor vehicles, the proceeds of which paid out the father’s car loan. It appears that at about the same time they purchased the Holden motor vehicle now in the mother’s possession and which she will retain.
In December 1999 the parties purchased in their joint names a property at L Street, Town 7 for $140,000. Although the father denies it, I accept the mother and her father’s evidence that he advanced by way of gift $5,000 towards the purchase price. The father’s father made a similar contribution. The balance of the purchase price ($131,994) was borrowed from Newcastle Permanent Building Society. L Street underwent significant renovation, which included the installation of a new bathroom and toilet, carpets removed and floor boards polished and windows repaired and/or replaced. Some of this work was completed by the father.
In addition to his qualifications as a tradesman, the father qualified as a leading hand. In early 2002 the father, with a partner, went into business and quite quickly his income increased to about $50,000 per annum.
It will be recalled that after the birth of each child the mother took a period of maternity leave and following which she returned to work part time.
There is a dispute about when L Street was sold which I cannot determine. Nothing turns on this issue. When L Street sold for between $318,000 and $320,000 the sale proceeds were used, in 2004, to purchase a property at G Street, Town 1 for $430,000. An amount of $300,000 was borrowed from Newcastle Permanent Building Society to complete the purchase. An additional equity loan of $44,000 was obtained and used for extensive renovation to the property. Whilst the majority of the renovations were undertaken by contractors, the father was also actively involved and undertook considerable work at the property.
Following the parties separation in 2005, G Street was listed for sale which did not proceed. By December 2005 the parties had reconciled and the father returned to live in the family home. Shortly after reconciliation, the parties moved into a rental property at Town 8 and tenanted G Street. G Street was rented out at $420 per week. However, after difficulties arose with timeliness in terms of rental receipt, on 18 September 2006 the parties returned to G Street.
The father’s business partnership ended during 2006. His partner retained the business and responsibility for its debts. In essence, other than a personal income tax liability, the father was able to leave the business debt free but without payment. He then established a business in his own right. The business was initially profitable and the parties reorganised their finances so that the father paid the mortgage and business related expenses while the mother’s income was used to cover the children’s day care costs and the family’s day to day living expenses and utilities. The father claimed it was agreed that the mother would put her money into superannuation which he said is what occurred. I accept the mother’s denial about any such agreement and note that the mother’s superannuation constitutes payments made by her employer and that she has not paid additional amounts into superannuation. For some months until the parties separated the following year, the mother did the father’s book keeping. Not a lot of work was required.
It will be recalled the father vacated the family home on 26 May 2007. Three days earlier he gave the mother a cheque in the amount of $3,000. It is his contention this was twelve months child support paid in advance. The mother denies this and said the payment related to joint expenses. The Child Support Agency reviewed this matter and determined the issue against the father. The evidence is not such that I would cavil with that conclusion. However, as there is no dispute that the payment was made, the fact of the payment is a contribution made by the father.
At separation the mother retained the Holden motor vehicle and household furniture. Basically the father left with his clothes and business equipment. It would appear that notwithstanding the father was doing well in the business he did not pay personal income tax and at separation he was indebted to the ATO. However, in the intervening years he had ample opportunity to repay this debt, including during the period after his father passed away when he returned to work but did not pay child support or the mortgage. At the rate of $403 per week which he says he pays to the ATO for arrears, pre-separation arrears should be discharged. It follows that his current indebtedness to the ATO relates to the post separation period.
For about three to four months after separation the father paid the mortgage. He then stopped and for a time the parties each paid half.
Nonetheless without child support from the father, the mother struggled financially. She had the $3,000 cheque referred to and otherwise supported the children from her income and social welfare support. Agreement was reached between the parties that upon the mother vacating G Street in 2008, the father would move back and thereafter pay the mortgage whilst he occupied the property. It will be recalled, that unbeknown to the mother the father ceased work to care for his father in late 2007 and did not resume paid work until after his father passed away in June 2008. At this time the children were in his care five days a fortnight during which he did not work. Without informing the mother the father stopped paying the mortgage and, it would also appear the rates. Each time he did this I infer the equity in G Street built up during cohabitation was depleted.
The parties agreed G Street would be sold, in relation to which the property would be listed for sale at $500,000. Despite this agreement they were unable to agree on an agent, and the property was not listed.
After his father’s death, the father returned to work and, obtained a not insignificant contract at Town 4. He had this job when his relationship with Ms L commenced in September 2008. The father remained in occupation at G Street until the latter part of 2009. The first the mother knew he vacated was when he filed an affidavit in the parenting proceedings which disclosed he no longer lived there. It appears that after he obtained work some mortgage payments were made by him.
In June 2009 the mother and children moved in with her partner, Mr P, in a home he owns at Town 2.
Having discovered that the father vacated the home, the mother and her partner attended G Street. The yard was overgrown and the house was filthy. Many weekends were spent by them cleaning the property and yard so that it could be listed for sale. The mother contacted the mortgagee who informed her the mortgage was in arrears in excess of $10,000 and that they were about to commence recovery proceedings. The mother negotiated an extension of time to allow the parties to sell the property, rather than have the mortgagee take possession.
In January 2010 the father and Ms E began to live together. They lived at G Street in relation to which Ms E understood the father paid the outgoings. She was at university studying. The father’s financial statement reveals that he provided accommodation and food for her and her son LL. He says he decided against paying the mortgage in order to force the mother to cooperate with the sale of the home. I do not accept his evidence. For some time the mother had sought his cooperation with a sale of the home and whatever the father’s real reason for not paying the mortgage it was not as he explained. I observe that the father chose to financially contribute to the support of Ms E and her son (to whom he had no obligation) yet failed to contribute to his children’s support or matrimonial liabilities in relation to assets under his control and from which he benefitted. Some repair work was undertaken by the father and an electrician friend to prepare the house for sale.
On 3 February 2010 the mother was served with a Statement of Claim whereby the mortgagee sought possession of G Street. Although the father lived there he was not served until later and denies that he was notified by the mortgagee about the arrears and its intention to take possession of the property. I do not accept the father’s evidence.
In any event, again, the mother negotiated with the mortgagee that the parties be permitted to sell the property, which was agreed. Prior to auction the parties received an offer to purchase at $430,000. The mother was willing to sell at this price but the father refused. At auction, the property sold for $11,000 more. This is an example of the market in operation and the higher selling price is not tantamount to a contribution by the father.
Putting aside the father’s interest in his father’s estate, the mother’s financial contributions significantly exceed those made by him. Simply put, she made a greater initial contribution and for a time whilst the parties cohabited she earned more than he did. Monies advanced by the parties’ fathers were equal in value. Post separation the father made a greater financial contribution in the sense that he paid more towards the mortgage than the mother. He, however, had far greater use of the family home and indeed lived there for a considerable time without paying mortgage or rates which had an adverse effect upon the parties’ equity in the property. The benefits he thus received from his use of the matrimonial assets post separation, significantly exceeds his contribution. Overall, for this component of the asset pool, (including the mother’s superannuation) her financial contribution significantly exceeds that made by the father.
At L Street and G Street the father worked to improve the property. To an extent, the significance of the work undertaken by him at G Street is moderated by his allowing the property to fall into poor condition which the mother and her partner addressed. Nonetheless, the father’s work to improve the properties, on balance, was greater than the mother’s.
The father’s inheritance is an asset contributed solely by him.
The mother was overwhelmingly responsible for the children’s care and, as a homemaker and parent prior to separation. In this regard, the father’s role increased post separation during the period the children spent five nights a fortnight during school term and block periods with him in school holidays. Since then, the mother has been solely responsible for the children’s care. The mother’s contributions as a homemaker and parent significantly exceed those made by the father and are given significant weight.
The orders will not affect either parties’ earning capacity.
The father has not paid child support and is about $8,500 in arrears.
In relation to that component of the asset pool, which excludes the father’s inheritance, I am satisfied the mother’s contributions and non s 75(2) factors amount to 70 per cent compared to the father’s 30 per cent.
In relation to the father’s inheritance, his contributions and non s 75(2) factors are 100 per cent.

Section 75(2) factors

Both parties are in good health and similar ages. The mother has a well established career as a clerk from which she earns approximately $65,000 per annum. Her partner earns about $85,000 per annum. He owns his own home and they enjoy a comfortable lifestyle.
According to the father he earns about $615 per week plus the amount paid in relation to motor vehicle lease and expenses. In his financial statement he implied he paid $505 per week on the mortgage and $25 per week for rates. As was earlier mentioned he had paid neither. In any event, I do not accept that the father’s earning capacity is reflected in his income. He earned more when he established his own business and, it is highly likely that once these proceedings are over, he will earn more than he claims to earn at present. He will have the half interest in the property bequeathed to him from which he can easily pay the amount outstanding to his former solicitors. It appears the father is indebted to the Australian Taxation Office. According to his financial statement, rather than make provision for personal income tax, he has used gross takings from his business to meet the business’ shortfall. If the shortfall referred to by the father related to business expenses, these are allowable deductions, the effect of which is that his personal income tax liability would be assessed after the expenses were taken into account. A more logical inference than the explanation given by the father, is that rather than pay personal income tax, those funds have been used for his personal expenses. Thus, while I accept he is indebted to the ATO this warrants little weight.
I have excluded from consideration the judgment debt which the father says , in effect, was wrongly entered and in relation to which he is confident it will be set aside.
The mother will have primary responsibility for the children until they are eighteen. This warrants an adjustment in her favour and is a factor to which it is appropriate to attach significant weight.
Presently, as I have mentioned, the mother has a comfortable lifestyle which is contributed to in no small way by her partner. In this respect Mr P is a financial resource of the type which the father does not have. He does not cohabit with his partner and, doing the best that I can with his evidence, he has a poorer lifestyle than the mother. This, however, appear to be directly referrable to him not exercising his earning capacity which, while this moderates the impact of his financial situation, the financial consequences of the mother’s relationship with Mr P warrants a small adjustment in the father’s favour.
The parties each have other children. The mother fulfils her financial responsibilities to Y whereas the father does not contribute towards Z’s support.
Although the father said funds could be taken towards child support from his property settlement, once any such funds are exhausted I am satisfied that he will do what he can to avoid paying child support. His record to date suggests that only if funds are seized by the coercive powers of the Child Support Agency is the mother likely to receive financial support for the children from the father. Because he is self employed and has not made provision for income tax, enforcement by the CSA is problematic. That the mother will have the children’s care without adequate financial support by the father, is a significant factor which weighs in favour of an adjustment to her.
I take into account the father’s inheritance may be worth more than the remaining assets. If it was worth comparatively little, I infer the father would have disclosed its value in his financial statement or prior to these proceedings being finalised. My point being, I am satisfied he failed to give evidence about its value because he was concerned this might, in effect defeat his claim to a share of the assets jointly acquired by the parties. This is an important matter which weighs in favour of an adjustment to the mother.
It is the mother’s contention that she should receive a sufficient adjustment pursuant to s 75(2) to receive the remaining matrimonial assets excluding the father’s inheritance. Because the outcome of the assessment of contributions and other factors has resulted in her receiving 70 per cent of those assets she seeks a 30 per cent adjustment of that pool in her favour. Given the modest value of that pool of matrimonial assets, having regard to all of the s 75(2) factors an adjustment in her favour of that magnitude is appropriate.
Because the Court must consider the actual orders, not just the percentage distribution under s 79(2), justice and equity in cases like this requires that the Court stands back and looks carefully at the outcome of the s 79(4) and s79(5)(2) process. It is at this stage that the Court considers the actual structure of the orders.
I do not propose to repeat my findings which led to this outcome. It is appropriate to emphasise, however, the mother’s greater financial contributions and contributions as a homemaker and parent. Although she presently earns more than the father says he does, he does not work to his earning capacity. The mother will have overwhelming responsibility for the children for many years to come and, just as she has supported them since separation without financial contribution by the father for years, that situation is likely to endure. The father’s failure to fulfil his financial obligations to support the children weighs against him. His failure to give full and frank disclosure in the manner discussed is another factor which has influenced the outcome of the s 75(2) deliberations. The father is not left penniless; he has from his inheritance sufficient funds to discharge his liabilities. In the unusual circumstances of this case, including the disclosure issues to which I have made reference, I am satisfied the outcome is just and equitable.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding one hundred and eighty seven (187) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 22 September 2011.

Associate:

Date: 22 September 2011

[2011] FamCA 741

22 September 2011

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Family Law

Equity & Trusts

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