Teachey and Teachey - [2009] FMCAfam 1490

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TEACHEY & TEACHEY

[2009] FMCAfam 1490

FAMILY LAW – Property settlement – application to set aside orders altering property interests – applicant contends change of circumstances of an exceptional nature since making of consent orders – consideration of medical evidence including when doctors were first consulted – consideration of the facts of the case in conjunction with the elements – required to be satisfied to set aside an order – finding of pre-existing conditions – application dismissed.

Family Law Act 1975 (Cth), ss.75(2) and 79A(1)(d)

Simpson & Hamlin (1984) 9 FLR 1040
Taylor & Taylor (1979) 25 ALR 418 at 429

Applicant:

MS TEACHEY

Respondent:

MR TEACHEY

File Number:

ROC 669 of 2007

Judgment of:

Coker FM

Hearing dates:

11 & 12 November 2009

Date of Last Submission:

12 November 2009

Delivered at:

Townsville

Delivered on:

18 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr Jones

Solicitors for the Applicant:

Fishburn Watson O’Brien

Counsel for the Respondent:

Mr Theobald

Solicitors for the Respondent:

Colin Fleming & Co

ORDERS

That all outstanding applications be dismissed.

IT IS DIRECTED:

That any submissions by the Respondent in relation to costs be filed and served within 21 days.
That any submissions in response by the Applicant be filed and served within 14 days of the receipt of such submissions.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
TOWNSVILLE

ROC 669 of 2007

MS TEACHEY

Applicant

And

MR TEACHEY

Respondent

REASONS FOR JUDGMENT

This application is brought by Ms Teachey. I shall, for convenience, refer to her during these reasons as “the wife”. The respondent to the application is Mr Teachey. Again for convenience I shall refer to him during the balance of these reasons as “the husband”.
The application that is before the court is one that was brought by the wife, initially in the court in Rockhampton, on 12 February 2008. It is an application which stems from the provisions of section 79A of the Family Law Act; a section which is headed "Setting aside of orders altering property interests."
The orders that the wife seeks in relation to this matter were detailed in her original application, but were amended in an amended initiating application, which was filed during these proceedings, and then a further amended application was filed on 20 July 2009. The final orders that were sought by the wife were set out in orders 1 through 11 of the orders detailed in the further amended initiating application. They were in these terms:
1.That pursuant to Section 79A(1)(d) of the Family Law Act 1974 that the Family Court Orders dated 17^th October 2006 be varied to include the following Orders:
1.That within 28 days the Husband pay to the Wife the additional sum of $55,000.00.
2.That the base amount allocated to Ms Teachey out of the interest held by Mr Teachey in the [A] Superannuation Fund is $55,000.00.
3.That, pursuant to paragraph 90MT(1)(a) Family Law Act 1975, whenever the trustee of the [A] Superannuation Fund makes a splittable payment from the interest held by the Husband the trustee shall pay to the Wife or her administrators, executors, beneficiaries, heirs or assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement the Husband would have had in the [A] superannuation Fund but for these Orders.
4.That Order 3 has effect from the operative time.
5.That the operative time of these Orders is four business days after service on the trustee of the Orders made.
6.That the trustee of the [A] Superannuation Fund, in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make payment to, the wife in accordance with Order 3 of these Orders.
7.Each of the parties and the Trustee of the [A] Superannuation Fund have liberty to apply in relation to the implementation of the splitting orders affecting the superannuation interest.
8.That subject to the above orders and as between the parties that the Husband and Wife pursuant to Section 79 each other be declared to have the sole right title and interest in:
8.1Any chattels goods furnishings and other property which are, at the date hereof, in their possession respectively.
8.2Any moneys shares debentures superannuation and life insurance policies which stand in their sole name respectively at the date hereof, and
8.3Release and indemnify the other from any liability held in their sole name respectively at the date hereof.
9.That the husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
10.That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court is appointed pursuant to Section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
11.That each party pay their own costs of and incidental to these proceedings.
The response, which was filed by the husband in relation to the proceedings sought simply for the application, originally filed on

12 February 2008, to be dismissed and additionally sought an order with regard to the wife paying the husband's costs of and incidental to the proceedings.
When the further amended initiating application was filed in respect of the proceedings, an amended response was filed by the husband on 10 September 2009, but it did no more than add to the orders already sought the addition of the words "further amended" and the inclusion of the final date contained with the further amended initiating application, 20 July 2009.
In other words, the husband's position in relation to the matter was to simply say that the appropriate course was still that which had been indicated in the original response, which was for the application of the wife to be dismissed and for the wife to pay the husband's costs.
As I say, the application is brought pursuant to the provisions of section 79A. In particular, however, it refers specifically to the provisions of section 79A(1)(d) of the Family Law Act. That particular section is in these terms:
Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has care and responsibility for the child (as defined in subsection (1AA)), the applicant will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order,
the court may, in its discretion, vary the order or set the order aside and if it considers appropriate make another order under section 79 in substitution for the order so set aside.
That is really the nub of this particular proceeding, because it is contended on the part of the wife that circumstances have arisen since the making of consent orders which are of such an exceptional nature and relate specifically to the children, though also the wife addresses concerns in relation to her own health, that it is appropriate because of hardship that will be suffered by she and the children, that the orders should be set aside.
Those orders were in fact sought by way of an application for consent orders filed on 10 October 2006. The orders were formally made in the court by consent, before a registrar on 17 October 2006. The orders were comprehensive in that they dealt both with arrangements in relation to the parenting of the children of the marriage, [X], [Y] and [Z], but additionally went on to provide for arrangements in relation to issues of property settlement. The orders that were to be made were detailed in orders 7 through 12 of the consent orders which were made on 17 October 2006.
It appears in no way contested that those orders were made by consent. The real issue here is one which arises as a result of the wife's contention that there have been changed circumstances of an exceptional nature, which give rise to issues of concern as a result of hardship to both her and to the children of the relationship.
The wife says therefore in the further amended initiating application, that upon variation of the orders, and of course that is to be exercised at the discretion of the court, orders should be made for payment of further sums of money to her, including an additional sum of $55,000, and in addition that there should be a further allocation to the wife of an interest in the husband's [A] Superannuation Fund, which is again quantified in the sum of $55,000.
The wife does not in the material, as best I can understand it, set out any specific information as to what might be the basis upon which the calculation is made or as to contribution or other factors, including those which arise pursuant to the provisions of section 75(2). That is not to say that the court cannot properly still exercise its discretion, pursuant to the provisions of section 79A, particularly in light of the fact that the court may set the orders aside and make other orders or of course, set the matter for a further determination.
The real issue then, as I have already indicated, is to consider the evidence that is before the court and then to determine the circumstances with regard to whether there has been both a change in the situation of an exceptional nature and whether, in fact, there has been evidence of hardship specifically caused to the wife or the children.
In support of the wife's position in relation to this matter a number of witnesses were called. Of course, evidence was taken from the wife in relation to the difficulties that she has experienced with each of the children, and in particular with issues in respect of the mental health of each of the children, and she had evidence from a number of medical practitioners, as well as psychologists, addressing issues in relation to the continuing difficulties that exist, in relation to the children. The wife also called evidence from her mother in relation to assisting in respect of this matter.
The only evidence which was called on the part of the husband was his own evidence in relation to these proceedings.
It is obviously necessary that I make some comment, however brief it might be, in relation to the various evidence called from experts in relation to this matter and in that regard I intend, almost in a lump sum manner, to consider the evidence of the various witnesses of an expert nature that were called in relation to these proceedings.
In particular, at the conclusion of the first day of hearing evidence was taken from Ms R. Ms R is a psychologist and had for some time provided assistance in relation to psychological treatment for each of the children whilst working at the offices of another psychologist,
Mr M.
Ms R's evidence was of limited compass in relation to her treatment of the children, though she did confirm that in the time that she had been seeing them, she had been providing assistance in what might be called cognitive behaviour therapies. It was certainly indicated by Ms R that the children were benefiting from the treatment and in particular from cognitive behaviour therapy.
Insofar as other psychological evidence was concerned it was noteworthy that Mr M, the employer of Ms R in the past, was also called. Mr M indicated that he had been treating each of the children, [X], [Y] and [Z], though it was the case, that at the present time, he had only seen the child [Z] and had not had the opportunity to see the girls but would be seeing them in due course.
Mr M commented in relation to the perusal of the records that were available to him in respect of the children, and especially in respect of his attendance with [Z]. He indicated that the child was, as was advised by Ms R, being treated with cognitive behavioural therapy and that he appeared to be progressing.
Noteworthy, was the fact that Mr M indicated, that it was still his opinion that a further 10 sessions or thereabout in relation to the child [Z] might be all that he would see as necessary, either to reach whatever goals might be hoped to be reached in relation to therapeutic benefits to the child or, though it was not clear, achieving whatever level might be able to be achieved, without real prospect of further improvement.
In relation to [Y] it was also noted that the child appeared to be responding well to the treatment that was being provided and that unfortunately it would seem that the child was experiencing long term cognitive disorder and that she had had it, as he described it, all her life. He unfortunately was of the view that this would mean that she would have long term social problems, again one would expect to varying degrees, for the whole of her life.
With regard to [X] the comments that were made were interesting. It appears clear that a diagnosis had been determined that she was experiencing a depressive disorder of a non-specific nature and that her treatment was to give her skills to deal with her responses to others. It was clear that there were again real hopes of progress being made and he indicated, in particular, that being the oldest of the children, and therefore of course naturally more matured, that there were real expectations of significant benefits that would flow in relation to the child.
I also had the opportunity of hearing evidence from medical practitioners, including the children's current medical practitioner

Dr K, although it appears from the evidence, as best I can understand it, that Dr K had not seen the children in more recent times and that appears to have developed from the fact that the children were now seeing Dr J.
It appears that that change was made, not because of any concerns with regard to the treatment being provided by Dr K, but more as a result of the fact that Dr J was also involved, not only in medical treatment but was more inclined to consider alternative therapies, including such treatments as naturopathy and massage therapy, and it was hoped that that might have achieved further improvements in the children's behaviours and general demeanour.
It should be noted, when considering Dr K's evidence, that he had been involved with the children, and in particular the children [Y] and [Z], since 2006. It appears clear that the records indicate that Dr K first saw the children, or at least other doctors within his practice saw the children, on or about 28 August 2006.
Additionally, it is noteworthy that the history that is before the court indicates that the symptoms, which were referred to the doctors, and obviously at least in the first instance they must have come from the mother, related to issues of behavioural problems and matters of that nature. It was clear that there were obvious difficulties being experienced by the mother, in relation to particularly the behaviours of the children, [Z] and [Y], though of course the extent or degree of such behaviours is a matter which need to be further considered in relation to these proceedings.
It's also noteworthy that Dr J had seen the children very early on. In fact it would appear that Dr J saw both [Z] and [Y] before arrangements were made in respect of Dr K seeing the children. The first records of Dr J would appear to indicate that he saw [Z] on or about 17 March 2006, and [Y] on or about 27 July 2006.
At that time it was also indicated, that there were concerns as to particularly, the child [Y]'s behaviour and his own records would indicate that at the time that he saw [Y], in or about July of 2006, the reason for the attendance was that the mother had brought [Y] in, as her teacher had expressed some concern as to whether the child might be exhibiting some of the traits or characteristics of Asperger's Syndrome.
I note, that as a result of his examination, and obviously confirmation of the obvious concerns that were held, that he referred the child to
Dr B, a paediatrician, for the purposes of consultation and that the report of Dr B, which was dated 10 August 2006, spoke of at least certain possibilities of there being difficulties with regard to the child [Y] and in particular issues which might arise, in respect of Asperger's Syndrome.
I also had the opportunity, although only of a limited nature, of hearing the evidence of Dr N. Dr N was a consultant paediatrician and he confirmed that he had diagnosed various of the children with concerns in respect of both ODD and ADHT. More particularly he had in his report, which was annexed to his material, made reference to the possibility of there being Asperger's Syndrome, though he had noted with a number of question marks following that diagnosis.
When asked why Asperger's Syndrome in his report was noted with a number of question marks he indicated that the reason for that was because of the fact that the criteria indicating Asperger's Syndrome were very difficult to assess. He said certainly that is was a situation where there was evidence from the school, as well as evidence from the mother, which was of a confirmatory nature to the effect that at least [Z] and [Y] were displaying various behaviours which were possibly indicators of experiencing Asperger's Syndrome.
In the end, having considered all of the evidence in relation to this matter, it is clear, and it appears accepted by the husband, that the children are experiencing difficulties and, certainly in relation to the younger children, [Y] and [Z], that there is a real prospect, if not a clear cut diagnosis of Asperger's Syndrome or even autism, the most extreme variant of the difficulties, then there is clearly evidence of ODD and ADHD, in relation to the children's behaviours.
The real issue here, is whether they are new developments and new developments which could not possibly have been anticipated, in relation to the children and their behaviours. In that respect, therefore, whilst the medical evidence is of assistance in relation to the proceedings, the real issue and the real factual basis upon which any determination can be made, must stem from the evidence particularly of the mother, and to a lesser extent of the father, but also from the observations of the maternal grandmother.
In that respect, I note that the cross‑examination of the mother, entered into by counsel on behalf of the father, was of a very specific nature. In particular, the mother was taken to the application for consent orders which, as I indicated before, were filed on 10 October 2006. Whilst filed on 10 October 2006 the application for consent orders itself was signed by the mother, on 6 September 2006.
In that application seeking the consent orders, was reference particularly to issues in relation to parenting orders and specifically arrangements and issues in respect of the circumstances of the children. Under the heading "Health", in relation to the oldest of the children, the following notation was made:
The child is of good health.
Interestingly and, it was emphasised to me by counsel for the father, significantly, the initial introduction in relation to health under the heading "Child one" was:

The children are of good health.
That however, was changed, but it is unclear from the evidence, even though the mother was questioned in relation to it, as to whether that change was brought about as a result of a specific indication by her or perhaps only as a result of some typographical error. No matter what might be the case it is significant, and again was emphasised as being significant on behalf of the father, that in relation to the child [Y] and also in relation to the child [Z] under the heading of "Health", the notation was made in these terms:
Currently being assessed for psychological problems.
It is clear that the mother, who gave the instructions in relation to the application for consent orders, was of the view at that time, that there were difficulties being experienced by at least two of the three children, in relation to their psychological wellbeing or, to put it in more blunt terms perhaps, the mental health of those two children.
For that reason, understandably, the thrust of cross‑examination related to that particular aspect of the matter and in particular what observations the mother might or might not have made, in relation to the children and to their health, particularly prior to the obtaining of the orders, in relation to this matter.
The very first question that was directed to the mother in cross‑examination was in these terms, "The children were showing signs of problems prior to separation, weren't they?" The mother quite honestly responded, "Yes."
The mother acknowledged also that the child [Y] had, about a year or more prior to even separation in 2005, been assessed by the Queensland Bush Children's Health Scheme as being a child with certain needs. The mother said that her understanding was, that they related to issues in respect of occupational therapy and in particular, the reports from the Queensland Bush Children's Health Scheme referred to issues with regard to visual perception and acuity, in respect of the child. In any event it was clear, and it was appropriately acknowledged by the mother, that there were certain difficulties that were being experienced in relation to the child and to the children.
This situation, if you like, was to some extent at least confirmed by the maternal grandmother, Ms M. She again had filed material in relation to this matter but was cross‑examined much more in relation to her recollection and perceptions of the circumstances of the past.
In particular, she was asked whether, whilst the parties, that being the husband and the wife, were still living together in [B], she had visited the children and her daughter and the husband in [B] and she indicated that she had. She said that she visited approximately once each year or so and usually stayed for a fortnight, more often than not, in our about August.
She was asked what her observations were at that time in relation to the children. In particular, she was asked how she recalled [X]'s behaviour at times when she was visiting in [B] and she indicated that the child was, as both the mother and father would appear to indicate, usually fairly normal in behaviour; though the grandmother noted that if the child was aggravated, she might go a little quiet.
It's noteworthy of course, that the psychologist Mr M, also noted that this was a child who had perhaps, to some extent, slipped under the radar in relation to behaviours, understandably, as a result of the far greater difficulties that were being experienced in relation to her younger siblings, [Y] and [Z].
When asked what her recollections were of the behaviours of the child [Y], she indicated that [Y] had always been a pretty anxious child, she did not sleep well at night, she was up and down a lot during the night, and indicated that she was what might be called, a restless child. She also indicated that she had been told by the wife that [Y] had been experiencing some troubles at school whilst still in [B] and that there were concerns about her being, what could be called, disruptive within the class.
When asked what her recollections were in relation to [Z], she indicated that as the mother was working at the time that she would visit, particularly in the latter years prior to departure from [B], she spent quite a bit of time with [Z] and noted that he was a child who was easily upset, particularly if the mother left him, including even leaving him with his maternal grandmother. He was a child who would scream and yell, he would climb the gates and fall, he would slam doors, and that there were real difficulties in fact, in even calming the child.
Ms M went on in cross‑examination to note, that after separation had occurred in the latter part of 2005, the children had then come with the mother to live with her and that she had observed similar type behaviours, and that there was defiant behaviours on the part of [Y]. In fact, there was more of the screaming, door slamming and behaviours of that nature, which were of concern.
It was also the case she said, in relation to [Z], that he had become what she described as, “really difficult”. She said that he would go into bad temper tantrums, he would run away, and he would have to be found. She also said that the behaviours of door slamming and other bad behaviour was a continuing indicator of problems with the child.
She was asked particularly whether the mother had expressed to her any concerns in relation to the children, including particularly after they had moved from her residence to the residence which had been purchased by the wife in the [C] area. She indicated that both she and the mother continued to have concerns and that when the children had started school, the mother was regularly attending with the teachers and that there were difficulties with their bad behaviours, continuing at school.
I was assisted by the evidence of the maternal grandmother in relation to this matter, because clearly, it was an independent, or at least as best one could expect, independent observation of the children and their behaviours, both prior to and subsequent to separation occurring.
Insofar as the evidence of the father was concerned, it did not, with respect, take the matter terribly far in relation to my determination of this matter. In particular, for example, I noted that the husband indicated that there was what might be called a traditional division of labour and responsibility within the house and, as he said in his affidavit material, it was more a situation of him being out and working and the children being in the care of the mother than one where he was significantly involved in the children's care and development.
What he did note, however, was that on the occasions that he was available to spend time with the children, that he would generally not find them behaving in a manner that might be described as displaying temper tantrums, running away, or other behaviours, but rather that he thought that they were on what might be called, their best behaviour with him.
It was clear that the husband's observations in relation to the matter, were couched far more in terms of the difficulties being something that was experienced, more as a result of the mother's interaction with the children. This in fact was evidenced particularly by the fact, that in his cross‑examination, he indicated that at least to some extent, he thought that part of the problems being experienced by the children were as a result of the mother's lack of discipline or approach, in relation to the children.
What was clear, however, is that the father was, at least to some extent, aware of the involvement that had already occurred with these children, with regard to inquiry as to their behaviours and reactions. Annexed to the father's own material, were copies of correspondence from the Bush Children's Health Scheme and a notation that, on 27 June 2005, there had been involvement by the Queensland Bush Children's Health Scheme and that, at least in [Y]'s case, there was seen to be a basis upon which she should be admitted to the scheme, for the provision of assistance.
Of course there was also an acknowledgement by the father, and it had properly to be given, that when the children had in May of 2003 through until about November of 2005 attended at different times at the [B] medical practice of Dr B, they had seen either Dr B or colleagues of his and that Dr B had not noted issues or concerns, with regard to behavioural problems in relation to [Z] or, it would seem, either of his sisters.
The fact is therefore, that there are real issues here as to what may or may not have existed, in relation to the circumstances of the parties and, in particular, what their understanding was of the behaviours of the children and of their actions. In particular, I was referred, understandably, to determinations made in relation to matters of this type and, in particular, the basis upon which the discretion should be exercised.
I was referred particularly by counsel for the husband to the decision of Simpson & Hamlin (1984) 9 FLR 1040, a decision of the Full Court of the Family Court in relation to issues of whether property orders should, pursuant to the provisions of section 79A, and in particular in that particular case section 79A(1)(d), be set aside.
It appears clear the matters that need to be proven in relation to the determination of whether a discretion should or should not be exercised are three-fold. Firstly, it must be found that there have been circumstances which have arisen since the making of the order, and of course at this time, the relevant date is 17 October 2006. Secondly, it is necessary to consider whether they were of such an exceptional nature as to effect issues, particularly to give rise to issues with regard to hardship to the child or to the parent having the care of the child and, thirdly, it was necessary to consider whether there were other alternatives that need to be considered, in relation to the provisions of the exercise of the discretion necessary, in relation to the matter.
In that respect I was referred particularly to the decision of the Full Court of the High Court in Taylor & Taylor (1979) 25 ALR 418 at 429 where Mason J made the following comments:
What section 79A(1) does is to give the court a discretion to set aside an order when it has been obtained by false evidence. In such a case the court will be extremely reluctant to exercise its discretion in favour of setting aside the order unless something more appears than that false evidence has been given and has procured the making of the order. The importance of bringing an end to litigation and the evil of allowing cases to be retried on the same evidence are powerful deterrents against setting aside a judgment whenever it appears that it has been obtained by false evidence without more. Where, however, more appears, as, eg that the judgment was obtained ex parte without the benefit of the evidence to be given by one of the parties, then the court will the more readily exercise its discretion in favour of setting aside the judgment. Then the setting aside of the judgment will not result in a retrial on the same evidence but in a trial on the evidence given by both parties.
The court in Simpson & Hamlin (Supra) then went on to comment upon that, particularly in light of the fact that there had been amendments to the provisions of section 79A in 1983 and that therefore there needed to be considered whether the inclusion of section 79A(1)(d) would in some way vary the determination. The Full Court in Simpson & Hamlin (Supra) said the following:
This passage relates of course to the original version of section 79A(1) under which the grounds for setting aside an order were severely restricted. The amendments in 1983 certainly extended the range of situations in which orders could be set aside or varied. However, it did not alter the nature of section 79 orders as orders which cannot normally be altered. This conclusion is fortified by the operation of section 81 of the Act.
Section 81 is of course simply a section which sets out the obvious hope or expectation in relation to orders. It is in these terms:
In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
The Full Court in Simpson & Hamlin then went on to say the following:
The importance of bringing an end to litigation remains an important consideration and the remarks of Mason J remain applicable to paragraph (d) mutatis mutandis. To paraphrase his Honour's remarks: it is not sufficient that it appears that the circumstances have arisen of an exceptional nature resulting in hardship to the applicant, the court must consider in the exercise of its discretion whether that hardship is of such a serious nature and results in such inequity that it can only be rectified by the extreme step of setting aside or varying an existing order of the court.
They then went on to comment in that particular case, that they left aside the question of whether special considerations apply in consent orders, but in my view that is not necessarily required to be considered here, because the issue now in relation to consent orders, and in particular the consent orders that are before the court here and the application for consent orders filed on 10 October 2006, detailed at length issues in relation to the children, as well as issues in relation to the property of the parties.
It was noteworthy, for example, that in relation to the children, there was much set out with regard to issues of education, housing, supervision and financial support, as well as to the health of the children.
In relation to property matters a significant amount was set out in relation to the assets of the parties, as they apparently existed at or near the end of 2006, and it was noted then that there was a retention by the parties of 52 per cent of the total value of the assets to the husband and 48 per cent of the total value of the assets, to the wife.
It should be noted, however, that it appears agreed that there was an additional sum of about $39,000 which was retained by the wife, such moneys being held in an account on trust for the children. But it appears also now, to be properly acknowledged that those moneys were utilised by the wife, albeit for purposes which were beneficial to both she and the children, in that moneys were used for the reduction of the mortgage which currently exists over the property situate at [C] and occupied by the wife and children.
Additionally, and it was emphasised on the part of the husband in relation to this matter, there has to be a real consideration of the distinction between what the wife received and what the husband received. The reason for that distinction is that the wife received, to a very significant degree, virtually all of the immediately available or material assets of the parties, whilst the husband retained the interest in superannuation entitlements, which were held by him.
The wife therefore received significant cash or material assets, whilst the husband received more limited amounts in that regard. It was contended that this was a suitable exchange of property as between the parties, because the position of the wife was one which could best be described as being a situation, where it was more convenient for the wife to receive the assets which were of a material nature as they could be utilised by her forthwith, particularly in respect of the purchase, as she did, of a residence in [C].
Whilst there is an obvious need to consider the assets of the parties in their entirety there is, in my view, a certain strength in the argument that was put on the part of the husband with regard to the fact that what the wife received may have been about 48 per cent of the total value of the assets of the parties, but as was calculated by counsel for the husband, she received somewhere in the vicinity of 65 per cent of the non‑superannuation pool, which was available for distribution between the husband and the wife.
In any event, the issue that needs to be looked at here is whether in fact, there were circumstances which have arisen since the order. Whether those circumstances were of an exceptional nature in respect of the children and the wife, and whether there was actual hardship or hardship that would be suffered.
As I indicated also, there is a necessary consideration additionally in respect of whether the difficulties, if found to exist, could not be rectified by any other means than the setting aside of the orders.
In this matter, there is an obvious difficulty that the wife is experiencing. If it were simply a case of there being hardship which needed to be determined in relation to the matter, it would clearly be a non-controversial determination to find that there were concerns and that there may be a basis upon which the orders might be able or required to be set aside. The fact however that there is the preliminary requirement for consideration, as to whether the circumstances have arisen, since the making of the order.
The thrust of the wife’s case in its entirety in this matter, relates to the circumstances of the children [Y] and [Z]. There are certainly some indications of changes in relation to the child [X], it being the case that she was a child who, as Mr M indicated, may have slipped under the radar, but it would appear that the very real pointers in relation to this particular matter are that difficulties that are being experienced by [X], and perhaps even by extension the difficulties being experienced by the wife, are as a direct result of the difficulties that were already being experienced by the children [Y] and [Z]. There can be no other explanation in relation to this matter.
The medical evidence that is available in respect of the proceedings, as well as the incontrovertible observations of the maternal grandmother, are that [Y] and [Z] were difficult children. The mother in the application for consent orders made specific reference, and it would appear it could not be interpreted any other way, and also clarified the position in relation to the children [Y] and [Z], as indicating that they were currently being assessed for psychological problems.
The indicators were that there were problems being experienced. The maternal grandmother noted that those difficulties were being experienced at her house and were commented upon by the mother, subsequent to the move from her house to her own accommodation in [C]. The mother attended with Dr J in relation to concerns with regard to the children and in that respect the concerns were taken so seriously by Dr J, that the child [Y] was referred to Dr B, for the purposes of an assessment.
There were real concerns in relation to this matter and they were ongoing concerns. As counsel for the husband so aptly put it, “all that has happened in this matter, since the orders were made is that the problems that particularly were being experienced by the children [Y] and [Z] have been given a name”.
It is clear that the circumstances that the mother seeks to rely upon in relation to the difficulties within her household are not circumstances that have arisen since the making of the orders of 17 October 2006.
The circumstances are unfortunate but are not of an exceptional nature relating to the care, welfare and development of the child or children of the marriage. They are, one would think, easily within the assessment of either of the parties' circumstances, that had existed. Unfortunately, the situation may have become more aggravated or exceptional with the passing of time, but they are not new.
Whilst I have no doubt that the mother and the children are experiencing hardship in relation to this matter, I am satisfied on the evidence that's before me, that it is not hardship arising from circumstances that have arisen since the making of the orders or circumstances that are of such an exceptional nature, relating to the care, welfare and development of the children.

In any event I am also obviously concerned about the alternatives that might have been open, rather than the rather drastic step that is contended on the part of the mother which is to suggest that the orders of 17 October 2006 should be set aside.
It is not a situation where the problems can only be rectified by the extreme step of setting aside or varying, the existing orders.
There is no evidence whatsoever of any steps having been taken by the mother in relation to seeking either assistance by way of spousal maintenance, it being contended on her part that she is not able now to work because of the very specific concerns that exist, in relation to the children. There is no evidence also of any steps taken by the mother in relation to seeking to vary or to in some way seek some further provision of child support, as a result of the special needs of the children.
Those are circumstances which can, I would think, more fully and more appropriately be dealt with, before the drastic and significant step is taken of seeking to set aside or vary the orders, that have been in place.
For those reasons obviously it is my intention to dismiss the further amended initiating application and the orders sought within that further amended initiating application, filed on 20 July 2009.
I should indicate, however, that even if it were not the case that I found that that were the appropriate course to follow, in relation to this matter, I would, with respect, have found it impossible to make orders in terms of those which were sought by the wife in the further amended initiating application. It is impossible, as was contended quite properly on the part of the husband, to conclude what variations there might have been in relation to the value of the assets of the parties.
There is no information whatsoever upon which there could be any determination of matters with regard to contribution and certainly, whilst there may be some concerns in respect of the issues with regard to the health of the children and therefore the effect of that health upon the mother, her household and her capacity to provide for she and the household, there is little upon which there could be a determination of those factors relevant, pursuant to the provisions of section 75(2).
Accordingly, at the very best, even if the wife had been successful with the application pursuant to the provisions of section 79A(1)(d), it would have been the case where a further consideration would be required, in relation to the issue of property.
As I say, however, in my assessment that is not the proper course or a necessary course to follow in relation to the matter, because the applicant has been unsuccessful in the first of the elemental requirements that must be met, which is to satisfy the court that circumstances have arisen, since the making of the orders or that those circumstances are exceptional or that they could not be dealt with in other more appropriate ways.
As I say, for those reasons, the order that I intend to make is to dismiss the further amended initiating application in relation to these proceedings.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate: C Herbst

Date: 15 April 2010