STACK and SEARLE - [2015] FCWA 44

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: STACK and SEARLE [2015] FCWA 44

CORAM: CRISFORD J

HEARD: 27, 28, 29, 30 JANUARY 2015 AND 4, 5, 6 MAY 2015

DELIVERED : 12 JUNE 2015

FILE NO/S: PTW 1158 of 2009

BETWEEN: MR STACK
Applicant
AND
MS SEARLE
Respondent

Catchwords:

CHILDREN’S ISSUES – Where there is a question of unacceptable risk – where the father was convicted of criminal charges relating to children, including indecent dealing with a lineal relative and imprisoned for three years – where the father seeks an order for equal shared parental responsibility and for the children to spend time supervised time with him on a fortnightly basis – where the mother seeks orders for sole parental responsibility and for the children to spend no time with the father – where one of the main issues related to the father’s risk of re-offending – where the Court found the mother should have sole parental responsibility for the children – where the Court found that there was an unacceptable risk of harm to the children – where the Court found it was not in the children’s best interests to spend any time with the father.

CHANGE OF NAME – Where the children have the same surname as the father – where the mother and the Independent Children’s Lawyer seek the children’s surname be changed to the mother’s surname – where the Court is persuaded it is in the best interests of the children to have the same surname as the mother.

PROPERTY SETTLEMENT – Where it is just and equitable to make orders in relation to the parties’ property – where the parties cohabitated for around eight years – where the parties accumulated modest assets during their relationship – where the mother’s post-separation contributions have been overwhelming – where the Court considers the mother has made a contribution of 67.5 per cent – where the Court considers the mother is entitled to an adjustment of 5 per cent pursuant to s 75(2).

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Mr S Jones
Independent Children's Lawyer : Mrs R Cohen

Solicitors:

Applicant: Self Represented Litigant
Respondent: Jeffery Paul S Gore Lawyers
Independent Children's Lawyer : Legal Aid WA

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

B and B (1993) FLC 92-357
Beach and Stemmler (1979) FLC 90-692
Goode & Goode (2006) FLC 93-286
Loddington v Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Mellick and Mellick [2014] FamCAFC 236
MRR v GR (2010) 240 CLR 461
Mulvany & Lane (2009) FLC 93-404
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL

JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED
1[In] March 2008 the police arrested [Mr Stack] (“the father”) in relation to child pornography charges. His life and the lives of people close to him were turned upside down. In particular, [Ms Searle] (“the mother”) and the two children the subject of these proceedings, [Child A] born [in] 2001 and [Child B] born [in] 2003, have endured over seven years of emotional, social and financial difficulty.
2[In] October 2009 the father was sentenced to a total of three years’ imprisonment. The charges involved one count of indecent dealing with a child who is a lineal relative, four counts of possession of child pornography and one count of supplying child pornography. The father was released from prison [in] July 2012.
3The father has always sought to play an active role in the children’s lives. He filed an application for final orders on 12 March 2009.
4[In] June 2014 the father was charged with a count of sexual penetration of a child under 13 years and a further count of indecent dealing with a child under 13 years. The charges relate to incidents alleged to have occurred [in] January 2006 in relation to a five year old female who is unrelated to the father. He has pleaded not guilty to the charges. They are yet to be disposed of in the District Court of Western Australia.

Orders sought by the parties

5The father is seeking to spend time with the children every fortnight on a supervised basis. He asks that this be reviewed at six monthly intervals and that the children’s paternal grandparents be allowed to attend.
6The father seeks to communicate with the children by telephone and to have unlimited written communication with them. He seeks he to be provided with school reports and to be able to purchase copies of the children’s school photographs.
7There is also an application for the Court to determine financial matters. The father seeks the mother pay him the sum of $100,000 “in recognition of the financial and non-financial contributions made to the relationship both before and after the parties’ marriage”.
8The mother seeks that the children live with her and she have sole parental responsibility for them. She seeks an injunction restraining the father from being within 500 metres of the school attended by the children and from communicating with them in any way. She opposes the father having photographs of the children and coming near their home. She seeks the final discharge of Orders 1 and 2 made on 6 October 2011 for the supply of school reports. On 20 October 2014 I suspended Order 2 pending my determination after trial.
9The mother wishes to change the children’s surnames from [Stack] to [Searle].
10She seeks an overall division of the parties’ modest property on the basis of around 77 per cent in her favour.
11The Independent Children’s Lawyer, Mrs Cohen’s, position is akin to that of the mother. She seeks the children live with the mother and that she have sole parental responsibility for them.
12The Independent Children’s Lawyer has proposed extensive injunctions restraining the father from coming near the mother and the children whether it be at home or at school. She considers it appropriate that there be a declaration that it is in the best interests of the children to be known by their mother’s surname.
13This trial commenced on 27 January 2015. On 29 January 2015 after commencing the cross-examination of the mother the father suffered an acute anxiety attack and was taken to Royal Perth Hospital. He was unable to continue. The matter resumed on 4 May 2015.

Approach to be adopted in children’s matters

14These child-related proceedings were conducted pursuant to Div 12A, Pt VII of the Family Law Act1975 (Cth) (“the Act”) as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
15The legislation is strongly in favour of both parents having substantial involvement in their children’s lives.
16Section 60B(l)(a) of the Act provides, most importantly here, that the objects of the legislation are to ensure that the best interests of children are met by the children having both of their parents involved in their lives in a meaningful way.
17Section 61DA(1) of the Act provides that when making a parenting order the court must apply a presumption that it is in the best interests of the parents to have equal shared parental responsibility for the child. It is not a presumption about the amount of time a child spends with each parent. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. The presumption, however, does not apply in certain circumstances. Section 61DA(2) provides that the presumption does not apply if a parent has engaged in abuse of the child or family violence. Section 61DA(4) provides that the presumption may be rebutted if the court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child.
18Any order the court makes for the parties to have equal shared parental responsibility for children casts upon them an obligation to consult on major long term issues.
19In cases where the court decides not to order equal shared parental responsibility there is no guidance to be found in the legislation as to what the court should consider or contemplate in making the decision most likely to promote the best interests of the children. In U v U (2002) 211 CLR 238 the High Court said that in such matters the court is “obliged to give careful consideration to the proposed arrangements of the parties”, but is not bound by them.
20Whilst the father seeks an order for equal shared parental responsibility, the mother is strongly opposed to this. She seeks an order for sole parental responsibility. In this case I am satisfied that not only has the presumption been rebutted, but in any event it is not in the children’s best interests for these parties to share equally in long term decision making. The rationale for coming to this conclusion will be canvassed in the body of my judgment and in the discussion at the end.
21Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. Section 60CC sets out how to determine what is in a child’s best interests. Section 60CC(1) provides that in determining what is in a child’s best interests the court must consider the matters set out in s 60CC(2), being the primary considerations and also the matters set out in s 60CC(3), being the additional considerations. To a certain extent a number of the considerations overlap and there may be a need for dual consideration of some issues.
22The best interests considerations set out in s 60CC of the Act are crucial when considering all the matters a court must decide, not only in relation to the child’s best interests, but also in relation to whether it is reasonably practicable for a child to spend either equal or substantial and significant time with each parent. They are also important where an equal shared parental responsibility order is not made. It is necessary to remember that the legislation contemplates individual justice.
23In navigating this complex legislative pathway I have turned to a number of authorities for assistance: Goode & Goode (2006) FLC 93-286; Taylor & Barker (2007) FLC 93-345; Mulvany & Lane (2009) FLC 93-404; Starr & Duggan [2009] FamCAFC 115; and the High Court decision of MRR v GR (2010) 240 CLR 461.

Applying the law

24I will firstly turn to the primary considerations in determining what would be most likely to promote the best interests of the children.
•the benefit to the child of having a meaningful relationship with both of the child’s parents.

25It is now accepted that “meaningful” in this context is synonymous with “significant”. Thus, to have a meaningful relationship is to have an important relationship or one of some consequence (McCall & Clark (2009) FLC 93-405).
26To be meaningful, a relationship “must be healthy, worthwhile and advantageous to the child” (Loddington v Derringford(No 2) [2008] FamCA 925). It is one that is “important, significant and valuable to the child” (Mazorski v Albright (2007) 37 Fam LR 518).
27It is a matter of making a qualitative assessment of the benefit to the child of having such a relationship with the parent.
28It is common ground that at present the father has no relationship whatsoever with the children. However, he maintains that historically he had a very good relationship with them. In order to assess any benefits of such a relationship that may flow to the children here it is helpful to have some contextual background.
29The mother is 37 years of age and the father is 45 years of age.
30The mother has two children from a previous relationship [Child C] who is now 19 years of age and [Child D] who is almost 17 years of age. The boys lived in the household with the parties during their relationship.
31The parties were engaged in January 2000 and started to live together in early 2001. They married [in] April 2002 and separated on 17 March 2008 when the father was arrested and charged with serious sexual offences. Child A was aged about seven years when the parties separated and Child B was four.
32The father’s position is that during the time the parties were together all four children had a very meaningful relationship with him. He says that they had a strong bond with him and he took time to make each of the children feel special. The father also said that he had developed a stronger and closer bond with all the children given he played a greater role in their upbringing.
33Although the father denied actively cultivating a particularly close relationship with Child A the facts show that this was, indeed, the case. The objective evidence is that the mother had little parental bond with Child A.
34The father maintains that the lack of bond the mother had with the children generally was because she chose to pay them little attention, was involved in her study and work and did not relate to them on the same emotional level he did.
35The mother paints a completely different picture of the father. She said he deliberately cultivated a close relationship with Child A in order to groom her. She says there were occasions when the father would ask Child A whether she loved her mother or her father best. This angered the mother who felt it was completely unfair to put such a question to Child A. When the mother expressed her displeasure to the father he would say it was only a joke.
36Whilst incarcerated the father applied for special category visits to his daughters. At that stage Child A was nine and Child B was six. In his “explanation of benefit of visit for specific child” he states in relation to both children:
Prior to my arrest I was a major influence in my children’s lives. Studies have shown that in cases of family dislocation, the less time that young children are separated from their parents before their eventual reunion, the less emotional and psychological damage is caused, especially in cases where the other parent is opposed to the reunion, as in this case.

37I will return to the issue of whether it is of benefit to Child A and Child B to have a meaningful relationship with their father when I complete my analysis of all of the relevant considerations.
•the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

38The definition of abuse relevant to these proceedings is:
abuse, in relation to a child, means:
(a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.

39In this case there are many different facets to this particular consideration.
40I will deal with three categories of abuse here to help inform the Court as to whether the father poses an unacceptable risk to the children.
•Known past abuse

41On or after 6 March 2008 the Australian Federal Police alerted the West Australian Police that the father had been accessing an international child pornography website. Charges were then laid.
42The offences which resulted in the father’s term of imprisonment involved him possessing, on a home computer, 720 pornographic images; 3 video recordings; and 15 cartoons of young girls in various states of undress and engaging in sexual acts. Twelve photographic images of the same nature were located on a separate computer in the family home. It was suggested that a number of the sexual acts in the images involved animals. The father had uploaded images of Child B, 3 years old at the time, to a known international child pornography site. The father also participated in online chat rooms posing as a female child engaging in a sexual relationship with her step-father and animals. The father pleaded guilty to these charges.
43The father was also initially charged with indecently recording a child who was a lineal or de facto relative when the mother incorrectly identified Child A as a girl in a photograph with her legs spread apart with a sign which read “You want me Steven?” This charge was subsequently dropped due to the incorrect identification of Child A.
44The father also pleaded guilty that on one occasion, whilst in his home study watching a pornographic video recording of an adult man performing oral sex on a female, Child A entered the room and was standing watching the video recording.
45There is some dispute whether the female upon whom oral sex was being performed was a child or an adult. There is also some doubt whether the father allowed or condoned Child A viewing the pornography.
46In any event the father was sentenced in relation to each of these charges [in] October 2009. He was sentenced to a total of three years imprisonment with eligibility for parole. Parole was not granted. He was released [in] July 2012.
•Allegations of past sexual abuse

47The charge of indecent dealing with a child who is a lineal relative or de facto child, which involved Child A watching a pornographic video provided by her father, was originally of a completely different factual matrix.
48The original charge was that the father knowingly sexually penetrated a child who was a lineal relative. The alleged facts were that the father performed oral sex on Child A in the parental bedroom whilst the mother was spending the night at a family friend’s house.
49This charge was withdrawn. There was no direct evidence about the reasons for its withdrawal. The father maintains that the police had no genuine evidence to support the charge. He denies it happened.
50The mother’s position is that Child A was too young to be put through the trauma of giving evidence despite disclosures. The mother said that Child A giving evidence:
was too much for her, she was still very shy and quite withdrawn. She wouldn’t go into the room with all the cameras in it…She felt responsibility for putting her father into that position and we did not want to do any more damage to her than absolutely necessary because she was so fragile.

51Dr Alison Hay, Senior Clinical Social Worker at Princess Margaret Hospital and Child A’s therapist since July 2008 said:
Around the time of the Criminal proceedings regarding the allegations of sexual abuse of [Child A] by [the father], [Child A] displayed an increase in anxiety related behaviours such as inability to sleep, emotional outbursts and at school (as reported by her teacher) withdrawn behaviour, lack of interest and participation in tasks and difficulty in concentration. The stress of Court proceedings and the emotional distress of again having to think about the details of the abuse became too much for [Child A]. Her inability to communicate about her sexual abuse experience made her a poor witness for the purpose of cross examination and as a result the Prosecutor made a decision not to pursue the criminal charges in relation to [the father].

52The mother said that Child A disclosed details of that allegation approximately six weeks after the father had been imprisoned on the other charges:

…she knew what her daddy liked to look at on the computer and that there was other stuff as well but it was too “gross”…
It was then that [Child A] opened up to me and said “Daddy likes to lick my mimi”. (Mimi was the word that she used for her vagina”.
[Child A] told me that at night, or when I wasn’t in the house, he would go to her room and perform oral sex on her. She also that he asked her to lick him too but she refused saying words that was “too gross!”

53[In] June 2008, Child A was interviewed by the child abuse investigation team when she again described her father looking at “gross stuff” that she used to call “me-mes” but are “actually called vagina”. She said that sometimes her father liked to “suck it” and described it occurring on her mother’s bed when the mother was sleeping somewhere else.
54Child A also made the same disclosures to Dr Hay but in a context unrelated to any questioning about the events themselves.
55There are other allegations of sexual impropriety which are mostly unrelated to family members either as victims or as the reporter of the abuse but which the Court considers to be relevant here:
•In around 2005/2006 the father disclosed to the writer of an extended pre-sentence report in 2008 that “a few years ago he was accused of exposing himself at school”;
•Also in 2006 the young daughter of a family friend who had recently stayed overnight with the parties said the father had tried to get her to touch him on the penis;
•In 2007, the mother located a pornographic hidden file on the home computer. She accessed this inadvertently. When she confronted the father about it he protested his innocence and denied any knowledge of it;
•There were allegations of inappropriate touching by the father of the thigh of a 12 year neighbour in 2007. The father tried to convince the mother this was untrue but she made the father leave the house. The mother was not prepared to allow the father to return home until he saw a counsellor. The parties saw a counsellor who told the mother to trust her father. They reconciled;
•In 2007 the police contacted the mother as her car registration number had been written down in relation to an allegation of wilful exposure by the father who was driving the car at the time; and
•The police arrested the father in mid-2014 and in about December he was charged with sexual penetration of a child under 13 years and indecent dealing with a child under 13 years. The offences are alleged to have taken place on [in] January 2006 in a public toilet block. The charges have now been laid apparently due to changes in DNA testing procedures.

•Likelihood of future offending

56One of the main issues canvassed during the course of evidence was that of the father’s risk of reoffending in the future. The father maintains that, both in and out of prison, he undertook a variety of courses and programs that will ensure he does not reoffend in the future.
57The father’s risk of reoffending was discussed in numerous reports prepared whilst he was in prison. In an “Update Pre-Sentence Report” dated June 2009 an attached psychological report noted that the father possessed “a reasonable risk of re-offending and requires treatment needs in regards to his sexual interests, social/emotional functioning and interest in child pornography”. [In] August 2009, a Harm and Supervision Assessment report noted that the writer thought the father was “minimising what he has done and thinks he will be “fixed” soon, because he is doing a programme”. In September 2009, Julie Hasson, Forensic Psychologist, prepared an Updated Specialist Pre-Sentence Report and stated that the father’s comments during the assessment:
indicate a level of minimisation, justification and distortion not present during previous assessments and are cause for concern given that he has only recently completed an intensive intervention program through SafeCare.

58Ms Hasson said that:
Given that deviant sexual interests are a key dynamic risk factor in risk of sexual reoffending [the father’s] Static-99 score which places him in the Low risk category suggesting a 1 in 20 chance of re-offending within a five year period may not accurately reflect his level of risk… It would appear that [the father] presents with many identified dynamic risk factors such as evidence of justification and minimisation, poor integrity of family relationships, limited social relationships and community ties, intimacy deficits, easy access to victims, he was in a position of trust and responsibility, and finally [the father] acknowledged a long standing interest in child pornography of several years. These factors are cause for significant concern and suggest a much higher level of risk than actuarially predicted.
…
Of concern during the current assessment were his comments about his inability or unwillingness to view taking photographs of his own child and uploading them onto a child pornography website as anything other than criminal behaviour.
…
Given [the father] has acknowledged a long standing sexual interest in and attraction to children his risk estimate at this time has been adjusted through structured clinical judgement and is more cautiously estimated to be in the Medium to High range.

59[In] November 2010 the father completed a sex offender treatment program, the completion report summary states:
it is considered that [the father] retains an ongoing sexual attraction to prepubescent female children and his risk of reoffence is therefore considered to be Medium

60In a State Parole Assessment dated November 2010 it is noted that “[the father] admitted that his fascination for child pornography had become an ‘addiction’”. [In] January 2011 the father was denied parole with the reasons given as “outstanding treatment needs. He had completed a medium intensity sex offender treatment program but the completion report said there were outstanding treatment needs”.
61The father said he did not get parole because it was not being given over the period of time he applied.
62The reports referred to above are historic.
63Janice Paige, Registered Psychologist, has been involved with the father since July 2008 when he entered the SafeCare sex offender treatment program whilst in prison. She has continued to be the father’s treating therapist since his release. He actively sought ongoing treatment and is personally responsible for the cost. Ms Paige’s position is that the father has completed two comprehensive sex offender programs and individual therapy and she supports the father spending supervised time with the children.
64In her report dated 22 March 2013, Ms Paige said that “research has shown that denial/non acceptance of responsibility is not an indicator for higher risk of reoffending”. Ms Paige said that the position adopted by SafeCare was to assume the abuse had taken place, whether people were denying its occurrence or not, any denial should not prevent someone receiving treatment. Ms Paige said that “the father was admitting some, but not all, of the offending [and] it is unsafe and unrealistic to deny people treatment because they can’t bring themselves [to admit to their offending]”. Ms Paige said it was more important to think about what was going to happen in the future and there was no link in the research to suggest there was a connection between people that denied abusing and recidivism.
65In her oral evidence, Ms Paige was asked for her view on the allegations of abuse made by Child A:
I maintain a position of assuming that the offence he was alleged to have committed had happened. I think it would have been remarkable, given his activities online, if he hadn’t…touched his child. But he denies that and as far as I am concerned what is important is safety now and how he is now not what he did back then.

66Ms Paige said that individuals who have a sexual attraction to children cannot change that attraction but rather they can take steps to contain it, such as creating boundaries by not having unsupervised access to children. In her report dated 25 August 2011 Ms Paige comments that:
where adults have been sexually attracted to children, it is unrealistic to expect that treatment can eliminate that attraction. The best treatment can do is to provide the motivation not to act on the attraction and to provide the tools to achieve that self-restraint until a sexual attraction to adults can be consolidated.
…
“Statistically, internet offenders do not appear to have high rates of recidivism either for online or offline offenses”…In view of this, and considering the progress he has made in recent months, I believe that [the father’s] current risk of re-offending, online or in person is now low to medium at worst.

67Ms Paige said that she did not know if the father still retained a sexual attraction to children but there is “no evidence that that has changed” and in 2011 the father admitted to her that he still had an ongoing sexual attraction to children.
68Despite the positive view of the father’s progress by his treating therapist, Dr Hay’s position was very different. She had not had contact with the father. Dr Hay described the father’s “position of denial and minimization” as a cause for concern. She said that although the father “paints himself in a positive light” in describing his completion of various courses and programs the father “has never admitted to the charges of sexual abuse of [Child A] [and] it is perplexing to how he could claim to be making such progress”. Dr Hay said:
The fact is until [the father] can; acknowledge and take responsibility for his sexual abuse of his daughters, fully understand the impact of the abuse on them without minimization or excuses such as depression and anxiety, as well as understands his offending cycle there is no evidence of progress.

69On 1 August 2012, Jean-Pierre Menagé was appointed as a Single Expert Witness by the Court, he prepared a report which was published on 18 October 2012. Mr Menagé also expressed a different opinion to that of Ms Paige. In his report he said that he:
Had a conversation with … [Ms Paige], [who the father] has been consulting. [Ms Paige] informed me that she considered [the father] had been participating constructively in the Safe Care program. She asserted it would be good for the children to spend time with [the father]…
I did not feel [Ms Paige] adequately recognised the details of this particular case. In summary I did not sense that [Ms Paige] shared my perception of the risks [the father] poses to the children, perceiving him as well advanced in the rehabilitation process. [Ms Paige] told me that she could not know whether or not he had sexually abused [Child A], because he denied doing so. She refuted that the child’s allegations were necessarily true.

70Mr Menagé said that he supported the view of Dr Hay that the children should have no contact with their father until he can demonstrate that he does not pose a risk of re-traumatising them. Mr Menagé said that the only way in which the father could do this was by:
acknowledging the abuse he perpetrated, facing the consequences of this, apologising to the children for the harm he’s caused them, affirming this was not their fault but his, working to promote their well-being and atone for the harm done, and holding himself accountable to measures intended to ensure their safety while spending time with him.

71The father’s position is that the only offences he has actually committed are the ones he pleaded guilty to. He maintains everything else is simply innuendo and baseless allegation. Whilst he accepts Child A believes her version of what took place he says that it is wrong. He is prepared to apologise for the significant distress he has caused his children by his activities but he vacillates between saying he did not do such activities or, if he did, he retains no memory of them. The latter position of lack of memory was put forth by him very late in the trial.
72Although Dr Hay was the therapist for Child A, and to that extent supportive and believing of her, I found her reports and oral evidence to be persuasive and mostly factual. Her views largely coincided with those of Mr Menagé.
73The Court needs to assess whether there is an unacceptable risk of abuse currently and in the future.
74I will now turn to the relevant additional considerations set out in s 60CC(3) of the Act. These are additional considerations and not secondary considerations. They are matters to be read in conjunction with the primary considerations that I have identified as being relevant here.
•any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

75Mr Menagé interviewed Child A and Child B on 17 October 2012. He saw them each individually for about 10 minutes. He reported that both children, Child A in particular, seemed anxious and that this was most likely the result of ongoing post-traumatic stress.
76Child A was very agitated when she spoke to Mr Menagé. She tried to remain composed and advised him she did not want to see the father. She said she did not want to explain why because it was too uncomfortable for her.
77Child B appeared to Mr Menagé to be a little less stressed than her sister. She said she liked living with the mother and that she understood her father was no longer living with them because he had done something bad. She said she knew about this because the mother had told her what had happened. She said she would rather not communicate or spend time with the father in any way. She explained that this was because of what he had done.
78Dr Hay had been asked by the Independent Children’s Lawyer in October 2014 to ascertain Child A’s present wishes in relation to spending time with her father. This was addressed within [Child A]’s regular appointment time with Dr Hay who then produced a report on 24 November 2014. Child A was adamant that she did not wish to have any contact with her father. She did not wish to expand on this for the Family Court.
79Vikki Jones, Senior Clinical Social Worker at the Child Protection Unit Therapy Service at Princess Margaret Hospital, had contact with Child B on two occasions. On the second occasion on 4 November 2014 she spent time with her talking about her family. Child B was unaware of the Family Court proceedings and Ms Jones asked in a general way if she wished to have any contact with the father. Child B said she did not want to have any contact with the father. She did not want the father to know where she lived or what school she went to. She said she did not wish to discuss the father at all.
80The father’s position, which is in line with the position of Ms Paige, is that the children need to actually meet him and be reintroduced to him in conjunction with some therapy before they can legitimately express any cogent view. He says that to now seek their views after such a hiatus in their relationship would not reflect their true feelings. He says he wants the opportunity to meet them and apologise for the affect his behaviour has had on them.
81The father points to the inconsistency in the children’s views immediately after his arrest and to the views they presently hold. Immediately after his arrest Child A was devastated and wanted to see the father. She said she loved him. The present views are the exact opposite. The father waxed and waned about what he saw as the reason behind this change but he said the mother was vindictive and the children may have been subject to coaching.
82I accept that there is an explanation for the conflicting views. Child A’s relationship with the father was very close at the time he was arrested. He was her best friend. Child A had a feeling of guilt about his arrest. She was very young. She is now a teenager with a different set of views about her journey in life to the present. Her relationship with the mother is much different from what it was at the time of the father’s arrest, at that time there was a poor relationship between Child A and the mother.
83I see nothing inconsistent in the change of views and attribute it to a maturing and an understanding of the dynamics of the household and the father at the time of his offending.
•the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)

84The present relationship between the mother and the children is very strong. She has been a constant support to them in very difficult circumstances. Leading up to the father’s arrest in 2008 the mother had little parental bond with Child A. I accept Child A could not confide in her mother and related poorly to her.
85For some years prior to the father’s arrest there had been considerable difficulties within the household. The father says he suffered from undiagnosed depression and made poor judgements. I find he was involved in prurient activities. The mother was completing her studies. She had four children at home. She grappled with trust issues relating to the father. Over and above this I accept her evidence that the father took steps to align himself very closely with Child A.
86There is no doubt that Child A had a close bond with the father. Child A told Dr Hay that the close relationship made it difficult for her to talk about the offences she says the father committed upon her. She had wanted the behaviour to stop. She felt she was in an elevated place with him and his absence from the household left her adrift. Dr Hay says that it is her belief the father cultivated an exclusive relationship with Child A. She felt responsible for him. His behaviour militated against Child A developing a close and supportive relationship with her mother.
87Neither Child A nor Child B has any present relationship with the father.
88Historically the children had a good relationship with their paternal grandparents. This was shattered on the father’s arrest. Although there were some attempts to maintain contact, I find that the grandmother’s stated preference for supporting her son and believing his account of events to work against there being an ongoing relationship with the mother and the children. Dr Hay said Child A had hoped her grandparents would believe and support her but it had not happened.
89I accept it is extremely important for Child A to know that her version of events is believed. When it was suggested to the paternal grandmother, by the Independent Children’s Lawyer, that her support of her son made Child A feel there was a lack of support for her, the grandmother said her priority was her son.
•the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

90The mother is implacably opposed to the children having any contact or communication whatsoever with the father.
91I do not accept the mother’s stance is vindictive. When the father was charged in mid-2014 with further offences relating to events alleged to have taken place in 2006 his name was used in the media. As the victim was not related to the father there was no suppression order made. The mother and the children were severely affected by the possibility of being linked to an alleged child abuser. The very name Stack caused Child A, in particular, to have an upset stomach and nightmares.

92The scars of the past remain. More recent events including the continuation of these court proceedings are unlikely to allow the mother to encourage a close relationship between her daughters and the father. The mother does not accept the father has changed.
•the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

93The only real change put forward here is for the children to see their father in a supervised environment. Mr Menagé reports:
I predict that if either one or both of the children were to commence spending time with [the father], irrespective of whether or not this was supervised, it would cause enormous stress to the mother, who has herself has been traumatised by the events in this family and struggled to maintain her mental health on which her parenting capacity, and her children’s healing, depend.

94He predicted that the stress caused to the mother by forcing the children to spend time with the father against their wishes would have two effects. He said that the mother’s distress would distract her from attending, as well as she has been to date, to the children’s needs.
95He also predicted that the children would be exposed to the father’s views about his abuse. This is to deny it happened or if it did that he has no memory of it. Mr Menagé said this is an act of abuse in itself. He said it would cause the children distress. It would contradict the interpretation developed by Child A, with the support of therapy, and which has helped her understand what the father did was wrong and that it was not her fault.
96Although the Court accepts the father has pleaded guilty to the charges of online pornography, he has categorically denied either committing or remembering that he committed other offences. Child A and, it appears, Child B both believe their father has done far more. In any event, they are of an age where the father’s continuing impact on their mother is likely to be apparent to them.
97Dr Hay had a strong view that it would be unreasonable to expect the mother to support contact between the children and the father. It would be likely to cause her considerable distress and it would compromise her ability to be attuned and available to Child A. In short she says it would have a highly negative emotional and psychological impact upon any protective mother.
•the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

98This is of no real relevance here. If there was any resumption of a relationship between the father and the children it is understood it would need to be supervised. There would be some practical difficulty and expense in this regard. However in the context of this case it is not a matter of any great import.
•the capacity of:
(i)Each of the child’s parents; and
(ii)Any other person (including any grandparent or other relative of the child);

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

99I am satisfied that the mother has the capacity to cater for all of the children’s needs. She has strong family support in both a practical and emotional sense. She has dealt with difficult issues in a sensitive fashion. She is dedicated to the children.
100The capacity of the paternal grandparents is compromised by their loyalty to their son. They have formed an adverse view of the children’s mother. The genesis of this was some of her behaviour around the time of the father’s arrest. Like the father, they consider her to be vindictive. They believe her anger was out of proportion to what was happening. I do not accept this to be the case.
101They have given unfailing support to the father and this has compromised their ability to cater for the children’s needs in an emotional and psychological sense.
102The father has focused on his very strong desire to reconnect with his children. To this end he has done what he considers to be the maximum amount possible to ensure his previous online pornographic offending does not reoccur. He tells the Court that his many hours of therapy in a group and individually have taught him how to deal with his addiction to pornographic material and its content. The emphasis on persuading the Court of his own recovery has blinded him to the stark reality of the impact of his behaviours on others. The impact of his behaviours has had an insidious and long term effect. I am satisfied that this cannot be overcome by the father’s assertion that he will not reoffend. The father does not understand the wider implications of his offending, especially the impact on victims.
103The father talks of restorative justice in wanting to meet with his children. He maintains it would be empowering for them to meet him so that he can apologise for the distress he has caused. Generally speaking, the idea of restorative justice is extremely helpful to victims when the circumstance fits.
104Dr Hay pointed out that there are layers to any apology in these circumstances. It is her view that an acknowledgment by the father of abuse would be a starting point for Child A. Such an acknowledgment is not forthcoming. I accept that, at this stage, for Child A to meet with her father would be the very opposite of empowering. It would be inappropriate. She is still a vulnerable child in need of considerable support. I am not satisfied supervision is likely to provide that support to her.
105Another area in which the father’s capacity to provide for the children was found wanting was in his intention to call Child A as a witness in June 2013 in Violence Restraining Order (“VRO”) proceedings in the Children’s Court of Western Australia.
106The father said he opposed the VRO being granted. He said he felt it may be necessary to call Child A as a witness. He said he believed the VRO was unnecessary.
107The father accepted calling his child was inappropriate and he realised that at the time. Ms Paige had also confirmed that with him at the time.
108Despite this, on 8 May 2014, the father wrote to the Principal Registrar of the Family Court of Western Australia with copies to the Independent Children’s Lawyer and the mother’s then lawyer, advising that he wanted to be able to call certain witnesses during the trial before this Court including Child A and Child B.
109Dr Hay said that to call the children to give evidence in the circumstance of this case was a form of emotional abuse. It showed a gross failure in the father’s ability to empathise with Child A in her position.
•the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

110The father had been a member of a website termed the “Forbidden Realm”. It was an international child pornography website with, according to the father, thousands of members.
111The father explained that there was a graded system of hierarchy in the Forbidden Realm. There were various levels of membership based on a feudal system with different ranks to which certain rights and obligations were attached. Some of the levels were termed Peasants, Lords and Royals. The father had acquired a third-tier rank of a Royal.
112The father said he had no further access to the website after November 2007 as he had been banned from using the site. He explained he had disagreements with the administrators and considered they were showing preferential treatment to other people.
113The father had uploaded three photographs of Child B, then three years, to the Forbidden Realm website as a last ditch attempt to remain in favour with the organisation. The pictures were said to be the father’s gift to the Royals. He had hoped such a gesture would allow him greater access to pornography.
114The father said that the photographs of Child B were not pornographic in content but rather they were only pornographic in the context in which he uploaded them. I find this excuse disingenuous.
115The father’s actions in uploading images of his very young daughter to an international pornographic website were a gross breach of trust. As the person charged with the protection of his daughter, he failed completely. The father said he regretted what he did. He accepted his behaviour was abhorrent. He was remorseful and embarrassed.
116The father was unable to confirm whether the pictures of Child B were still available to members of the website or elsewhere.
117The father failed to understand the mother and the children’s distress at the thought of him obtaining their school photographs. One of the items in the pornography collection involved a child in school uniform. The father accepted that on a bulletin board related to the Forbidden Realm one of the members had uploaded a picture of his niece in a school uniform. When this was put to the father he replied that he did not find the photograph of the girl in a school uniform to be pornographic in nature.
•any family violence involving the child or a member of the child’s family

118The relevant legislation defines family violence:
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

119I consider the father’s acts to both Child B and Child A in so far as they relate to the pornography charges to fall within this definition. I find his conduct to be likely to cause both Child A and Child B to fear him and be apprehensive about their personal wellbeing and safety. This spills over to other members of the Searle family especially their mother.
•any family violence order that applies to the child or a member of the child’s family, if;
(i)the order is a final order
(ii)the making of the order was contested by a person

120On the day after the father’s arrest in March 2008 the mother was granted an interim ex-parte VRO to protect herself and all four children. The mother did not attend the final court hearing in December 2008 and the interim order was not extended.
121The mother explained that she understood the father’s bail conditions prevented him having contact with herself and the children.
122In February 2009 the mother again applied for VRO’s to protect herself and all four children. In October 2009 these orders were dismissed. The mother did not appear at the hearing. The father was in custody at the time.
123On 12 July 2012 the mother again applied for VRO’s to protect the four children. At the time the father was in custody but his release date was [in] July 2012. It appears the VRO’s were granted on an interim basis. However in June 2013 the orders were discharged and the applications dismissed. The father said he was prepared to enter into a written undertaking to not attempt to contact the children unless he was allowed by Family Court orders to do so. The mother on the other hand explained her reluctance to proceed to obtain a final order on the basis it was unlikely she would be successful in obtaining an order on behalf of her two older sons. She accepted the undertaking of the father which covered all the children.
•whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

124I consider it in the children’s best interest for the father to not continue to pursue his desire to reunite with his children until they are in a position to make that decision themselves as adults. Any further institution or continuation of proceedings is likely to impact on their mental wellbeing in an adverse manner.
125While this Court acknowledges without reservation the importance of a child being able to maintain ties with natural parents this should not come at the expense of a child’s health, mental and physical, and their general wellbeing. Once the children are 18 they will be able to establish contact or not as they see fit.
126Any further court proceedings will be detrimental to them. To date the father has pushed ahead with his desire to see the children at the expense of their views. Child A says the father continues with court proceedings to ensure he remains implanted in her brain. I understood this to mean she believes he wishes to continue to control her.

Discussion and conclusion

Parental responsibility

127In all the circumstances of this case I intend to make an order that the mother have sole parental responsibility for the children. The parties are unable to communicate on any level and this has been the case from at least 2008. For whatever reason, the father has been absent from the lives of the children.
128The ability to consult and effectively communicate was discussed by the Full Court in Mellick and Mellick [2014] FamCAFC 236 where a decision to order sole parental responsibility to one party, where both parties had proposed they have equal shared parental responsibility, was upheld. The decision to award sole parental responsibility was founded on the parties’ inability to consult with one another and make joint decisions. The Full Court said:
[69]… his Honour had a large body of evidence where important decisions made by the parents about the children were contrary to the children’s best interests and where their inability to communicate and agree on matters of real significance to the children’s immediate and long term welfare compromised their best interests. In addition, his Honour specifically doubted that had he made an order for equal shared parental responsibility, the parties could have carried out their obligations under that order. As previously mentioned, those obligations, imposed by s 65DAC [the equivalent to s 89AC], were to consult, to make a genuine effort to come to a joint decision and to jointly decide major long term issues.
[70]There was ample evidence upon which his Honour could reach the conclusions that he did and error as asserted…has not been established.

129By virtue of the father’s conduct the family has been irretrievably fractured. It is appropriate that the parent with whom the children primarily reside has such responsibility. The mother has shown an ability to make appropriate and protective decisions for the children.

Primary considerations

130I now turn to the issue of whether the father is to spend time with the children and if so in what circumstances. I have already discussed in detail the two primary considerations. In trying to determine the benefit to the children of having a meaningful relationship with both their parents, in this case, it is necessary to deal fairly and squarely with the second named primary consideration which deals with the need to protect the children from physical or psychological harm from being subjected, or exposed to abuse, neglect or family violence.
131When I consider the definition of abuse applicable to these proceedings I have little hesitation in finding the offences for which the father was convicted and served time in gaol fall within that definition vis-à-vis both Child B and Child A.
132The father involved both Child B and Child A in a sexual activity; uploading a photograph of Child B to a pornographic website as a sexual object; and looking at pornographic videos when he knew, or should have known, Child A would join him in the viewing.
133In addition there are numerous allegations of sexual abuse against other children. There is also the allegation of Child A that her father performed cunnilingus on her. Despite the fact they are simply allegations it is necessary to weigh up whether the father poses an unacceptable risk as a result of them. I will deal firstly with the physical aspect of it.
134The lack of proof of this past abuse does not mean that the abuse did not occur. There are many inferences that can be drawn from the failure to proceed through a court.
135I find the reasons given for not pursuing the allegations made by Child A, and which have been previously canvassed in the judgment, to be appropriate, understandable and in no way an assessment of the innocence of the father. Whether or not the exact nature of her disclosures is believed, the actual effect on Child A of the father’s actions has been devastating with long term psychological impact. The father opined that Child A’s disclosures may have had a genesis in the pornographic video he was watching and she saw.
136There is ample evidence of an ongoing effect on Child A. She is also affected by what it is said the father has done to others. Her fears are genuine. The father accepts she has suffered as a result of his actions.
137The Court is mandated to consider, in a prospective fashion, the need to protect the children from psychological harm caused by their subjection or exposure to abuse or family violence when it makes parenting orders.
138When looking at whether the father’s past behaviour or alleged past behaviour poses an unacceptable risk to the children in a prospective way there are a number of issues to consider. Two, in particular, favour the father’s case.
139Firstly, the evidence of Ms Paige is that the father has, at best, been completely rehabilitated of his sexual predilection for prepubescent girls or he has, at the very least, developed strategies to ensure that it does not manifest itself in an unlawful fashion again.
140Secondly, the allegations against the father are historic. Like the proven offences they all relate to children in an age range of which Child B and Child A no longer belong.
141At first blush, and if the two factors above were accepted, this may suggest an unacceptable risk does not exist. The father is cured and the girls are out of his target age group.
142However, even if that was the case, it is necessary to look at whether the father’s past proven behaviour and the allegations generally pose an unacceptable risk of psychological harm to the children going forward.
143In parenting cases where there are allegations of child sexual abuse the Court still has the fundamental responsibility to craft orders which will serve the best interests of the children.
144In M v M (1988) 166 CLR 69 the High Court said as follows:
… 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.

145The High Court went on to say:
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.

146The High Court then referred to a “variety of formulations” by courts in their efforts to define the magnitude of the risk and arrived at following:
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.

147The Full Court in the case of B and B (1993) FLC 92-357 said:
The “unacceptable risk” test is therefore the standard used by the Family Court 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”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

148I come to the conclusion there is an unacceptable risk of harm to the children here. That conclusion arises from an accumulation of factors. However, some factors taken alone, such as the actual proven abuse and its ongoing impact, are enough to say that the risk of harm outweighs the benefit of the children seeing the father.
149The father has a tendency to minimise, justify and excuse even those offences for which he has previously pleaded guilty. I am not persuaded that it is certain the father will not reoffend as posited by Ms Paige, given the countervailing evidence here. Any offending is likely to have an impact on the children.
150The Court has an obligation to make orders that will shield the children from harm. The physical aspect of harm is only one matter to take into account. The psychological trauma has not abated with the passage of time. The laying of recent charges, albeit about an historic event, has had a palpable effect on the girls. Child A needed to have further counselling from Dr Hay and her feeling of security in a school environment has been fractured.
151I also find that the secondary considerations support that it is not in the children’s best interests to maintain contact with the father. Given the finding of an unacceptable risk to the children if they spend time with the father there will be no orders in this respect.

Change of name

152On 30 January 2015 I made an order:
1.Until 4 May 2015, the children, [CHILD A] born [in] 2001 and [CHILD B] born [in] 2003, through the Respondent, [MS SEARLE], be at liberty to use the surname “[Searle]” for all educational purposes, including but not limited to enrolment details and merit certificates or awards.

153The Full Court in Flanagan and Handcock (2001) FLC 93-074 reviewed the authorities in relation to change of name applications, including the leading Full Court decision of Chapman and Palmer (1978) FLC 90-510. In Chapman and Palmer (supra) six factors were identified:
(a)the welfare of the child is the paramount consideration;
(b)the short and long term effects of any change in the child’s surname;
(c)any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or case and control;
(d)any confusion of identity which may arise for the child if his or her name is changed or is not changed;
(e)the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
(f)the effect of frequent or random changes of name.

154In Beach and Stemmler (1979) FLC 90-692 Connor J identified a further six considerations:
•The advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now.
•The contact that the father has had and is likely to have in the future with the children.
•The degree of identification that the children now have with their father.
•The degree of identification which the children have now with their mother and their stepfather.
•The degree of identification which the children will have with the child that is about to be born to their mother and any likely confusion in the future if their father’s surname is restored.
•The desire of the father that the original name by restored.

155In Flanagan and Handcock (supra) the court stated at para 35:
The matters which frequently need to be considered in deciding whether or not to permit or prohibit a change of name have been considered in several decisions of this Court, both at first instance and on appeal. The most significant feature that appears from those cases is that they turn on their individual facts.

156The use of the surname “Stack” at a school assembly in 2014 resulted in Child A needing to have further counselling from Dr Hay. Child A told Dr Hay that she did not want any reminders of the father. She described feeling shocked and sick in her stomach at the use of the surname and that it was a reminder of the father that brought back bad memories and nightmares.
157When Child A heard the father’s surname on the television in 2014 she made another appointment with Dr Hay and was quite distressed. She described to Dr Hay her shock at hearing the surname and her worry that the children at her school would link the surname Stack to her. Child A was worried about the fact the father may have abused other children and that the release of the surname was going to result in her being bullied at school.
158I also intend to make the injunction sought by the mother and the Independent Children’s Lawyer. They are appropriate given the father’s very strong desire to be a part of the children’s lives.

Background to the financial dispute

159The parties cohabited for around eight years. They separated in 17 March 2008 and a divorce order was granted on 14 June 2010. They accumulated modest assets during their relationship.
160The father seeks that the mother be solely responsible for the payment of a jointly held credit account with P & N Bank (formerly Police and Nurses Credit Society). He seeks that each party be responsible for any outstanding credit card accounts in their sole name.
161He also seeks the return of items he owns but which remain with the mother. Most importantly he wishes to receive the sum of $100,000 from the mother and contemporaneously with such payment he agrees to transfer the ownership of the former matrimonial home at 7 [Street C], [Suburb D] (“Suburb D”) to her.
162The mother seeks the transfer of Suburb D to her. She accepts that she will take over payment of the outstanding mortgage and all other outgoings relating to that property. She wishes to otherwise retain any motor vehicles or chattels in her possession. This includes the furniture and items that she continues to have despite court orders made by consent on 12 October 2012 for these to go to the father.
163The mother seeks a splitting order of the father’s [H] Superannuation Fund in an amount of $40,000.

The parties’ property

164The parties were able to agree the values of most of their property but how the court should treat some of it remains in issue.
165I find the balance sheet to be:

PROPERTY	Value ($)
7 Street C, Suburb D	475,000
Mother’s Police and Nurses	678
Mother’s Police and Nurses account	2,007
Mother’s 2012 motor vehicle	12,000
Mother’s 2001 motor vehicle	1,500
Mother’s household contents	3,000
Mother’s [X], [Y] and [Z] Superannuation	10,241
Father’s NAB account	30
Father’s NAB account	800
Father’s 2006 motor vehicle	4,000
Father’s household contents	1,000
Father’s [H] superannuation	120,000
Father’s interim property settlement	36,074
Total Property (Including superannuation)	666,330
LIABILITIES
Mortgage over [Street C, Suburb D]	137,984
Mother’s Loan	14,000
Mother’s credit cards	5,560
Total Liabilities	157,544
TOTAL NET PROPERTY (INCLUDING SUPERANNUATION)	508,786

166The parties disagree about how the father’s superannuation should be distributed. Although originally the mother sought a splitting order in an amount of $40,000 the father understood she was not going to pursue this. At trial she maintained her claim for such a splitting order. The father opposes this. He wants his superannuation to remain intact.
167I will deal with this issue when I consider the justice and equity of the orders I intend to pronounce.
168Another item in contention is an order made by consent on 12 October 2012. This order, relevantly states:
1The mother make available to a person agreed between the father and the mother and at a time agreed between the parties the following items sought by the father:
a.Panasonic Plasma Television $3,124
b.The items listed in Documents “I” submitted to the Court on 6 October 2011 and subsequently attached to the father’s Form 2 Application filed 9 July 2012, and now attached to this Minute, less the following items:
i.Limited edition Disney plush toys
ii.Camera (APS format)
iii.Photo albums and photographs (already provided)
Total value of items in (b) $31,950
Total value of interim property to the father $36,074

169The father says that when the order was made the value of the goods he was to retain was listed at their replacement value. His subsequent legal advice was that it should have been at a current market value and, thus, lower. At trial, he sought to set aside the order and argued a minimal amount be attributed to the items he is to retain. The items set out in the order of 12 October 2012 currently remain with the mother. Despite that order the father has not had the benefit or use of any of that property.
170The father did not appeal the order even when he became aware that the value attributed to his property may not have been in his favour. It was an order made by consent. No steps appear to have been taken by the father to obtain the property. I do not intend to vary the order for the purpose of the balance sheet but I will consider this issue later in the judgment.
171Each party wants to include various individual debts which accrued after their separation in the balance sheet.
172The mother says a loan from her mother, a credit card debt and a debt to legal aid should not be removed from the balance sheet given the low level of child support paid by the father since separation. Given his circumstances he has paid a maximum of approximately $30 a month for the children. She has been solely responsible for the children financially.
173The mother says, however, that although her debts should be included the father’s debts of credit cards and a loan from his parents should be excluded. Firstly, she says the credit card debts should be paid by the father given his low level of child support. His evidence is the loan from his parents relates to legal fees in criminal courts and which had a bearing on the children. The loan is identified in the father’s financial statement filed 9 May 2014 as $30,000. I have little evidence about which it relates. His affidavit is silent in this regard. His mother’s affidavit does not deal with it. The mother argues it would be unjust for her to contribute to any of the father’s legal fees. She says her loan from her mother relates to living expenses for her and the children.
174I intend to remove what I accept may well represent the parties legal fees – either by way of loan or memorial. Each will be responsible for those costs. I also accept that the father has made only nominal contribution to the support of the children since separation. I will exclude his credit card debt and include the mother’s debt in that regard. I will reconsider these matters later in my judgment.
175The father acquired a [Toyota] motor vehicle during the marriage. After his arrest and incarceration the mother used it until it broke down. She had no money to repair it. The registration lapsed and eventually it was towed away by the local council. I do not intend to include this in the parties’ property. It no longer exists.
176The major asset of the parties is the Suburb D property. This is a property in joint names. The parties require the court to make orders in order to ensure a just distribution of this major asset. In all the circumstances given the background to this dispute I consider it appropriate to make orders altering the parties’ interest in various items of property.

Contributions

177It is accepted by the mother and it is beyond doubt that the father made a substantial initial contribution when the parties commenced their relationship and cohabitation. The father had a block of land at [K] River in [Suburb E] which after sale in 2004 realised about $72,000. He also had shares of around $9,000 and a motor vehicle of around $3,500. In 2001 he received an inheritance of $21,000. The father was able to access a first home buyer’s grant when the parties purchased their property at Suburb D. This was considerable in the context of their overall position at that time.
178During the parties’ relationship I accept that the father earned a reasonable wage. The mother was able to pursue her studies which has resulted in her obtaining a Bachelor of Psychology in 2006 from Murdoch University and also a graduate diploma in Education (primary) in 2007. The father supported her during most of this course of study. She started work as a [casual employee] in about February 2008.
179I also accept, whatever his motive the father played a considerable part in caring for the children. I accept that the mother was also involved with the children, including her two sons. Her contribution to the girls was more in a practical sense. The father had a stronger bond with the girls.
180After separation in March 2008 I find that the mother has been solely responsible for the welfare of all children in particularly difficult circumstances. Her relationship with Child A was initially poor. That parental bond was almost non-existent. It has taken her considerable time and energy to be in a position to support both her daughters emotionally, socially and financially. She has had a total lack of support from the father and his family and she has had to call upon her own family to assist in a number of ways.
181She has had to ensure the children’s emotional and psychological wellbeing has been addressed on a continual basis. She has had to do all things possible to enable them to continue their education without the spectre of the father’s behaviour looming large in daily school life.
182She has received nominal child support. However, I acknowledge that the exclusion of the father’s post-separation debts from the balance sheet such that he is solely responsible for them constitutes some further additional contribution by him in a financial sense.
183Although the father’s initial contribution was substantial, events that took place after 2006 and continuing to the present have, in my view, been balanced with the enormous contribution the mother has been called upon to make to the children in the most trying of circumstances. The circumstances were brought about by their father and have been dealt with earlier in the judgment.
184The Court has carefully considered each of the contributions put forward by the father. These include his financial contributions and also the effort he put in early in the marriage. I have no doubt that he had a good relationship with all the children but his motivation in spending time with the girls especially Child A is open to question. The fallout of the close relationship he cultivated with Child A has necessitated an enormous ongoing commitment in both time and effort by the mother.
185Her post-separation contributions have been overwhelming. I consider they should be assessed at 67.5 per cent of the parties’ property. I take into account that this is a modest pool of assets.

Section 75(2) matters

186The mother is presently aged 37 years and has four children aged 11, 13, 17 and 18. In the past four years she has worked [as a casual employee] and derives income from that source; Centrelink; tax benefits; nominal child support; and loans from her family.
187The father is 47 years. He is employed as a [labourer] and he says he earns less than $500 per week.
188I accept that the mother was able to obtain professional qualifications and is able to earn a reasonable income. Her ability to put this income earning capacity into practice has been severely compromised by the actions of the father in relation to the children. Despite their ages I accept they require her to be available in order to ensure ongoing emotional stability. Child A in particular still requires considerable emotional support. Both girls have attended counselling.
189The father has his own set of difficulties surrounding his ability to generate an income. He has serious criminal convictions which may well preclude him undertaking certain areas of employment. However, the father is articulate and tenacious. I consider it likely that he will be in a position to support himself adequately in the future.
190His ability to generate an income such that he will provide a reasonable amount of child support is questionable. This obligation will fall to the mother.
191Both parties have some debts to service. The father will receive certain personal items, including a television, which I accept are taken into account at a rather inflated value. They have sentimental significance to him. I accept he has not had those items as anticipated by the 2012 orders.
192Unfortunately the immediate future for each party is uncertain and attended with difficulty. In the short term the mother has to continue to provide an enormous amount of support to the children. They are still in a fragile state although things have improved. I have no doubt there will be some fallout from these proceedings and that needs to be dealt with.
193The father has further criminal charges that he needs to deal with. His future is uncertain in that regard. He says he continues to attend fortnightly group therapy sessions relating to his previous offending. He pays the cost of any therapy he undertakes himself.
194The matter that persuades me that some adjustment should be given to the mother is her need to continue to provide financially for the children as they enter their teenage years. I consider that an adjustment in her favour of 5 per cent is appropriate.

Just and equitable

195On the basis of my assessment the mother will retain 72.5 per cent of the property set out in the balance sheet. This will be $368,870. She presently holds net property worth $346,882.
196The father will retain $139,916 worth of property. He presently has property including his superannuation worth $161,904. The percentage allocation I have arrived at will mean he would need to pay the mother $21,988.
197I have taken into account that the interim property settlement which the father has not had the benefit of and its somewhat inflated value. I balanced this against the fact it was an order made by consent and the father has taken no steps to obtain possession of the property. I will however reduce the amount he has to pay to the mother to $20,000.

198The only manner in which this amount can be realised is to make a splitting order in relation to his superannuation.
199The father will not receive any money or settlement in these proceedings. It is appropriate that the mother retain the Suburb D property for herself and the children. She is solely responsible for the mortgage and other debts over that property. She has other debts to service. The father has some debts to service but has no debts of any great moment. He will need to start his financial future more or less from scratch but, in the sad circumstances of this case that is the only outcome that accords justice and equity to the parties to this marriage.

Orders

200Subject to any submissions by counsel or the father I intend to pronounce the following:
IT IS DECLARED THAT the Court having found it is in the best interests of the children, [CHILD A STACK born [in] 2001 and [CHILD B STACK] born [in] 2003, that their names be changed and that the said children henceforth be known as [CHILD A SEARLE] and [CHILD B SEARLE].
IT IS ORDERED THAT: -
1.All previous orders be and are hereby discharged.
2.The Registrar of Birth Deaths and Marriages, Western Australia, do effect the required change to the said children’s birth registrations pursuant to this order.
3.The children live with the Respondent [MS SEARLE], and she have sole parental responsibility for the said children.
4.The Applicant, [MR STACK], be restrained by injunction and an injunction is hereby granted restraining him from:
(a)entering upon, remaining upon, loitering or being within 50 metres of the nearest external boundary of where the Respondent lives or the children’s school;
(b)approaching the children or the Respondent or being within 25 metres of either of them, save and except as allowed for by these orders, or to comply with any other orders of the Family Court of Western Australia;
(c)contacting, communicating or harassing the Respondent or the children or having any third person do so on his behalf, save and except as allowed for by these orders, or to comply with any other orders of the Family Court of Western Australia; and
(d)attending at or contacting any school the children attend or attending any sporting events or extra-curricular activities the children are participating in or having any third person do so or attempt to do so on his behalf, save and except by order of the Family Court of Western Australia.

5.The orders set out in paragraph 4 are made for the personal protection of the Respondent and the children with the intention that the powers of arrest pursuant to s 114AA of the Family Law Act 1975 (Cth) will apply in the event of any breach of those orders.
6.The Respondent have liberty to remove the children from the Commonwealth of Australia, for the purpose of a holiday, without obtaining the consent of the Applicant and to that end, the necessity for the Applicant to consent to the issue of a passport be and is hereby dispensed with.
7.Subject to any other requirements of the Department of Foreign Affairs and Trade, passports be issued to the children to enable them to leave Australia, for the purpose of a holiday.
8.In the event it is necessary, the Registrar of the Family Court of Western Australia have leave to sign in lieu of the Applicant any such passport applications and any other documentation necessary to allow the children to travel overseas, for the purpose of a holiday.
9.The appointment of the Independent Children’s Lawyer be and is hereby discharged.
10.Within 30 days of these orders, the Applicant transfer to the Respondent, the whole of his right, title and interest in the property at Street C, Suburb D in the State of Western Australia being more particularly described as the whole of the land comprised in Lot XX on Plan XXXXX in Certificate of Title Volume XXXX Folio XX (“the property”).
11.The Respondent indemnify the Applicant and keep the Applicant indemnified in relation to all liabilities and outgoings with respect to the property including all obligations pursuant to the mortgage registered against the title to the property.
12.Pursuant to s 106A of the Family Law Act 1975 (Cth), the Principal Registrar or a Registrar of the Family Court of Western Australia at Perth is hereby appointed to execute the transfer of land and all deeds and documents in the name of the Respondent as may be required to give effect to the transfer of the property at Street C, Suburb D in the State of Western Australia.
13.Each party be solely responsible for any outstanding liabilities including in relation to credit cards, loans and standing in their name.
14.In accordance with s 90MT(4) of the Family Law Act 1975 (Cth), a base amount of $20,000 is allocated to the Respondent out of the Applicant’s interest in the [H] Superannuation Fund (“the Fund”).
15.In accordance with s 90MT(1)(a) of the Family Law Act 1975 (Cth):
(a)the Respondent (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)the entitlement of the Applicant in the Fund (or the entitlement of such other person who becomes entitled to receive a payment of the Applicant’s superannuation interest) is correspondingly reduced by force of this order.

16.The Trustee of the Fund (“the Trustee”) shall do all acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) the entitlement awarded to the Respondent in the immediately preceding order; and
(b)pay the entitlement whenever the Trustee makes a splittlable payment from the Applicant’s interest in the Fund.

17.Paragraphs 14, 15 and 16 have effect from the operative time and the operative time is twenty eight (28) days after service of this order on the Trustee.
18.The Respondent forthwith make available to a person nominated by the Applicant the items identified in paragraph 1 of the orders made on 12 October 2012.
19.The proceedings otherwise be and are hereby dismissed.

I certify that the preceding [200] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate