Todd and Reyneke

FAMILY COURT OF AUSTRALIA

TODD & REYNEKE

[2014] FamCA 484

FAMILY LAW – CHILDREN – Best Interests – Narrow dispute – With whom the child shall live and spend time – Child has meaningful relationship with both parents – Child’s residence with the mother entirely uncontroversial – The child shall live with the mother – Child to spend gradually increasing substantial and significant time with the father

FAMILY LAW – CHILDREN – Parental Responsibility – Presumption of equal shared parental responsibility does not apply – Reasonable grounds to believe the father and/or his wife engaged in family violence – Equal shared parental responsibility still allocated to the parties as it is in the child’s best interests

FAMILY LAW – PROPERTY SETTLEMENT – De Facto Relationship – Father sought cash settlement – Application dismissed – Not just and equitable to alter the parties’ property interests

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 65Y, 79, 90SF, 90SM, 117
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Family Law Rules 2004 (Cth) rule 14.06

Bevan & Bevan [2013] FamCAFC 116
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
MRR v GR (2010) 240 CLR 461
Stanfordv Stanford (2012) FLC 93-518; [2012] HCA 52

APPLICANT:

Ms Todd

RESPONDENT:

Mr Reyneke

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

1765

2011

DATE DELIVERED:

8 July 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

23, 24, & 25 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T Bates

SOLICITOR FOR THE APPLICANT:

Brennan Garrick Solicitors

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr G Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Parenting Orders

All former orders relating to the child N, born … 2007, (“the child”) are discharged.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:
(a)Up to and including the 2014/2015 Summer school holidays:
(i)During school terms, each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday, commencing on the first Saturday of each term;
(ii)For the first half of the Spring school holidays; and
(iii)During the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays.
(b)From the commencement of Term 1 in 2015 up to and including the last day of Term 2:
(i)During school terms, each alternate weekend from the conclusion of school on Friday until 5.00 pm Sunday, commencing on the first Friday of each term; and
(ii)For the second half of the Autumn school holidays.
(c)From the commencement of the Winter school holidays in 2015 and thereafter:
(i)During school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday if Monday is a public holiday), commencing on the first Friday of each term;
(ii)During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year; and
(iii)During the Summer school holidays, for the first half of such holidays in the years when the holidays commence in an even numbered year, and for the second half of such holidays in the years when the holidays commence in an odd numbered year.
Order 4 hereof is suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and
(b)Between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
For the purposes of implementation of Order 4 hereof, the school holidays are deemed to commence at 9.00 am on the first day following the last day of school term, the holidays are deemed to end at 5.00pm on the last day preceding the day upon which the child is due to return to school, and the mid point is the day and time halfway between those first and last days.
Unless otherwise agreed, for the purposes of implementing Orders 4 and 5 hereof, the parties shall respectively ensure the child’s:
(a)Collection from:
(i)School, whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term; or otherwise
(ii)The other party’s residence.
(b)Return to:
(i)School, whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; or otherwise
(ii)The other party’s residence.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:
(a)The father each Wednesday at 6.00 pm when the child is living with the mother, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother and the mother shall ensure that the child is able to receive the father’s calls on that number at that time;
(b)The mother each Wednesday at 6.00 pm when the child is spending time with the father, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father and the father shall ensure that the child is able to receive the mother’s calls on that number at that time; and
(c)The parent with whom the child is not then staying, on the child’s birthday at 6.00 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.
Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
The parties are at liberty to provide a sealed copy of these orders to:
(a)Any authority entitled to issue Australian passports;
(b)Any authority with control over international departure points in Australia;
(c)Any doctor or therapist engaged to assess or treat the child; and
(d)The principal of any school attended by the child.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications for orders pursuant to Part VII of the Family Law Act are dismissed.

Property Settlement Orders

The Amended Initiating Application filed on 9 October 2013 is dismissed.
The Third Amended Response filed on 30 January 2014 is dismissed.
Any and all outstanding applications for orders pursuant to Part VIIIAB of the Family Law Act are dismissed.

Costs

Costs are reserved for 28 days.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1765 of 2011

Ms Todd

Applicant

And

Mr Reyneke

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The parties have indulged in a protracted dispute about their child and their property since these proceedings were commenced in July 2011.
In truth, their disputes are relatively narrow and should have been compromised long ago.
In respect of their son, who is now seven years of age, the parties agreed he should begin spending much more time with the father than is currently the case. They agreed the child’s engagement with the father should expand in steps, but they disagreed over whether the acceleration of the expansion should be governed by advice from the child’s treating psychologist and the rate of the acceleration. They also disagreed over the allocation of parental responsibility for the child.
In respect of their property, their de facto relationship was relatively short on any view of it. The mother maintained the brevity and circumstances of their relationship rendered it unjust and inequitable to make any property settlement orders, whereas the father considered he was entitled to payment of a large cash settlement from the mother.

Short history

The parties agree they began cohabitation in June 2006 and finally separated in December 2010, but they endured an intermediate period of separation from early 2007 until early 2008.
The parties’ child was born in February 2007, only several weeks after the parties initially separated and the father vacated the mother’s home.
By the time of the parties’ final separation in December 2010, the mother’s financial position was significantly worse than it was at the commencement of the parties’ cohabitation.[1] By comparison, the father’s financial position was either largely unchanged,[2] or only modestly deteriorated.[3]
[1] Mother’s affidavit, paras 357, 407
[2] Mother’s affidavit, paras 358, 409
[3] Father’s affidavit, pages 23-25
Immediately after the parties’ final separation, the child spent time with the father several times each week.[4]
[4] First Family Report, para 11
In March 2011 the mother prepared a draft parenting plan, which she submitted to the father, providing for her to hold responsibility for decisions related to the child’s “health, education, and wellbeing”, for the child to spend time with the father for some hours each Sunday afternoon, and for the child to speak with the father by telephone one afternoon each week.[5]
[5] Father’s affidavit, page 10, Annexure A; First Family Report, para 13
The father did not agree to the mother’s terms and they were unable to compromise. The child’s interaction with the father over the next couple of months was inconsistent, though the parties offered different explanations for why that was so. In any event, in early May 2011 the parties argued over the mother’s refusal to allow the child to spend time with the father and the mother lodged a complaint with the police. An interim apprehended violence order was made against the father for the protection of the mother and, as a consequence of that order, the child did not see the father for five weeks. The order was contested by the father and it was ultimately dismissed.[6]
[6] Mother’s affidavit, paras 149, 168-175; First Family Report, para 17
The child resumed spending time with the father in June 2011, but the resumption stalled.
The mother commenced these proceedings in July 2011, in the Federal Magistrates Court (as the Federal Circuit Court then was), just after learning the father had married.[7] The father alleged the mother then thwarted the child’s interaction with him, which he imputed was in spite.[8] Even if not in spite, the mother still refused to allow the child’s visits with the father.
[7] Mother’s affidavit, para 197; First Family Report, para 19
[8] First Family Report, paras 16, 21
It was not until interim parenting orders were consensually made in December 2011 in the Federal Magistrates Court (as the Federal Circuit Court then was) that the child began to see the father again. Those orders provided for the child to live with the mother and to begin spending gradually increasing periods of time with the father each Sunday, with the first ten visits to be supervised.
The orders were only successfully implemented for a few months. In early 2012, apparently on the advice of one of the child’s psychologists, the mother formed a view that the child was not coping with the regularity of weekly visits with the father and unilaterally decided to cut back the frequency of the visits. Instead of weekly visits with the father, the mother instituted a regime of one visit every three weeks, which later changed to fortnightly visits.[9]
[9] Mother’s affidavit, paras 220-229, 237-240; Second Family Report, para 3
The mother said in cross-examination she acted in contravention of the interim orders because she believed she was invested with discretion to do so by the terms of a notation made by the Court in the following terms:
The parties acknowledge that the progression [of the time spent by the child with the father] proposed in these Terms are dependent upon [the child’s] development and may progress more quickly or more slowly than proposed in these Terms.
Self-evidently, the notation could not have empowered the mother in the manner she believed, but the incorporation of a notation in those terms within the Court’s orders was understandably confusing.
Irrespective, the father acquiesced to the mother’s decision to change the frequency of the child’s visits with him. He took no steps to rectify the situation, even after the proceedings were transferred to this Court in March 2013, preferring to avoid antagonising the mother with further confrontation or dispute pending the final hearing.[10]
[10] First Family Report, paras 66, 71
The child still spends unsupervised time with the father for most of the day each alternate Sunday, but in the last couple of months the parties agreed to extend the child’s visits with him by a couple of hours.[11]
[11] Mother’s affidavit, para 250; Exhibit M1, paras 1-3

The evidence

The mother relied upon:
(a)Her affidavit filed on 21 January 2014;
(b)A statement of additional evidence in chief, which she adopted without objection by either the father or Independent Children’s Lawyer;[12]
(c)Her financial statement filed on 21 January 2014;
(d)The affidavit of her sister, Ms T, filed on 23 January 2014; and
(e)The affidavit of the child’s psychologist, Dr S, filed on 28 January 2014.
[12] Exhibit M1
The father relied upon:
(a)His affidavit filed on 17 January 2014 (the paragraph numbers of which are confusing, because they are sequentially numbered 1-147, but then on page 25 revert to sequential numbering from 1-109);
(b)His financial statement filed on 17 January 2014;
(c)The affidavit of his wife, Ms Reyneke, filed on 24 February 2014.
The parties and the Independent Children’s Lawyer also relied upon the two Family Reports prepared by the Family Consultant, dated 7 February 2013 and 14 August 2013. The Family Consultant was cross-examined and she proved to be an excellent witness. I accept her evidence.

Parenting dispute

Proposal of Mother

The mother acknowledged the child should spend more time with the father, but contended the increase in the time they spend together should be graduated slowly. The mother’s proposal was promulgated in the alternative.
Primarily, she pressed for the orders set out within her Amended Initiating Application filed on 9 October 2013, under which the gradually increasing time spent by the child with the father would be entirely dependent upon the recommendations of Dr S.
In the alternative, the mother proposed dispensation of the need for reliance upon advice from Dr S, but still a gradual expansion that culminates some 18 months hence in a routine of alternate weekends, parts of school holidays, and other special occasions. A minute of orders to that effect was tendered.[13]
[13] Exhibit M12
In either case, the mother sought sole parental responsibility for the child.

Proposal of Father

The father proposed the orders set out within his Third Amended Response filed on 30 January 2014, save for one variation. He proposed that the child’s visits with him each alternate weekend should commence at the conclusion of school on Friday and end at the commencement of school on the following Monday. The change in proposal was not a complete surprise because he mooted that possibility with the Family Consultant in August 2013.[14]
[14] Second Family Report, para 46
He sought that the parties have equal shared parental responsibility for the child.

Proposal of Independent Children’s Lawyer

Before the final hearing commenced, the mother made an application to discharge the Independent Children’s Lawyer, but that application was dismissed, for which ex tempore reasons were given.
The Independent Children’s Lawyer tendered a minute of the orders he proposed after the close of the evidence.[15] His proposal found mid-ground between the parties’ proposals.
[15] Exhibit ICL4
He contended the parties should have equal shared parental responsibility for the child.
He also contended the time spent by the child with the father should increase in a graduated fashion, but with less incremental steps and at a faster rate than was proposed by the mother. He maintained the orders should be final and prescriptive, rather than dependent upon any recommendation by Dr S.

Applicable legal principles

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of child – primary considerations (s 60CC(2))

The parties each acknowledged the child enjoyed meaningful relationships with them both, from which he derived benefit.
Although the mother has undoubtedly been anxious about alterations to the regime of interaction between the child and the father, she certainly wants their relationship to flourish and for their time together to be increased. The mother said in cross-examination words to the effect:
[The child] is always positive about seeing [the father]
He [the child] loves his father
It would be good for [the child] to spend more time with [the father]
The mother made similar comments to the Family Consultant.[16]
[16] First Family Report, para 53
The mother’s opinions were consistent with the observations of the Family Consultant, who witnessed the child in the company of the father in both February and August 2013.
In February 2013, the Family Consultant observed the child to be delighted to see the father, leaping up to greet him with shouts of pure joy.[17]
[17] First Family Report, para 95; Second Family Report, para 16
Similarly, in August 2013, the Family Consultant observed the child to be particularly affectionate with the father, flinging himself onto the father and shouting “Daddy”.[18]
[18] Second Family Report, para 59
The mother has herself witnessed such behaviour by the child.[19] Of course, the child is just as affectionate with her.[20]
[19] Mother’s affidavit, paras 242, 252, 340
[20] Second Family Report, para 57
It was agreed the child should continue to live with the mother. That will ensure the continuity of their meaningful relationship. However, so as to ensure the child continues to enjoy and derive benefit from his meaningful relationship with the father, the orders must expand the amount of time he spends with him. Their current visits, which are confined to one day each alternate weekend, are not enough.
One reservation held by the mother about expansion of the time spent by the child with the father is her belief the child might be exposed to family violence committed by the father. That belief arises from her allegations about the father’s past conduct towards her and the father’s more recent conduct with his wife. The mother told the Family Consultant there was “a good chance” the father would expose the child to further violence in his household.[21]
[21] Second Family Report, para 29
While the mother’s belief in the significant risk of harm to the child may be genuine, it is not objectively reasonable, for reasons which need to be explained.
It is worthwhile remembering that, because of the date upon which these proceedings were commenced, the amendments to the Act introduced by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) do not apply. Therefore, the former definition of “family violence” applies to these proceedings; not the new definition (s 4AB). Relevantly then, for present purposes, “family violence” entails only actual or threatened conduct by one family member towards another that causes the victim or any other family member to reasonably fear for or be apprehensive about the victim’s personal well-being or safety.
The mother alleged the father was emotionally abusive towards her both during their relationship and after their separation.[22] She confirmed the father had never physically harmed her, but had behaved in a “controlling or coercive” manner towards her.[23] The evidence to which she deposed in support of those conclusions was, however, relatively sparse. She referred to two heated incidents between them in March 2007 and August 2007 while they were separated,[24] neither of which was reported to police. The mother voluntarily chose to continue seeing the father in that period and to reconcile and resume cohabitation with him in May 2008. She would not likely have done so if she felt in fear of him. They resumed cohabitation in her home. It would have been easy enough for her to preclude his attendance at the property, which was owned exclusively by her, if she wanted.
[22] First Family Report, para 36
[23] Second Family Report, para 63
[24] Mother’s affidavit, paras 17-22, 36-45
The mother also alleged the father threatened her after their final separation when they argued over the time the child should spend with the father in March 2011.[25] Notwithstanding the argument, the mother adhered to her demand that the father should still see the child regularly and that such visits should still occur within her home.[26] Logically, she could not have been in fear of the father if she continued to invite him to attend her home, where she would be the most vulnerable.
[25] Mother’s affidavit, paras 126-129
[26] Mother’s affidavit, paras 132-166
The mother alleged the father threatened her again in May 2011 during an argument about the child, following which she terminated the father’s visits with the child for five weeks. When she allowed the visits to resume in June 2011, she no longer insisted the visits occur at her home.[27] The interim apprehended violence order made against the father was defended by him and eventually dismissed.[28]
[27] Mother’s affidavit, paras 167-197
[28] Father’s affidavit, pages 15-17
The mother adduced no evidence of any threats, abuse, or intimidation by the father towards her since May 2011.
The father denied he was violent or abusive to the mother. In fact, he conversely alleged she behaved in that manner towards him and that she formerly struck him on two occasions.[29] In cross-examination the father denied the mother’s allegations of his hostility towards her in March 2007 and August 2007.
[29] First Family Report, paras 21, 36; Father’s affidavit, page 11
The evidence of the parties is irreconcilable, but even if the mother’s evidence about past events is accepted as correct, there is little potential for future violence between them. The Act directs attention to the future (s 60CC(2)(b)), even though the past may be a foundation for prediction.
The Family Consultant reached the same conclusion. She observed in February 2013:[30]
…although the parental conflict is ongoing, it is of a fairly low level and there would appear to be no significant risk of future violence as predicted by past behaviour.
[30] First Family Report, para 36
The Family Consultant’s opinion was unchanged during her cross-examination in June 2014.
There was never any direct physical violence between the parties historically and they now appear well past any potential for future violent confrontations. There has been no overt animosity between them for over three years, during which period they have frequently met at changeover venues, chatted amiably, and corresponded courteously. Consequently, the father does not pose any appreciable risk of family violence to the mother, nor is the child at any unacceptable risk of harm by exposure to family violence between the father and mother.
Objectively at least, the mother acknowledges the absence of any such risk. Significantly, she demanded that the father could only spend time with the child at her home for a period after their separation, even in the face of her historical allegations of intimidation. At her request, the parties still exchange the child between them at her home,[31] because she told the Family Consultant she would not feel comfortable using a public venue for changeovers.[32] Her future proposal is for the parties to take turns attending one another’s homes to exchange the child.[33] The mother would not have countenanced those past arrangements, nor made that proposal for the future, unless quite satisfied she and the child were both safe and not exposed to any appreciable risk of violent conduct by the father.
[31] First Family Report, para 36
[32] First Family Report, para 48
[33] Amended Application filed 9/10/13, Order 9; Mother’s affidavit, para 356
However, the mother’s apprehension about the child’s safety is also based on the father’s conduct towards his wife, because an incident of family violence occurred between them in June 2013. The father was charged with her assault and an apprehended violence order was made, but in November 2013 the charge and interim apprehended violence order were dismissed.
The father and his wife minimised the gravity of the incident, but it was considerably more serious than they admitted. Even on their admissions, they had a physical altercation during which the father struck his wife with his hand, his wife struck him with a mop, and his wife held a pair of scissors towards the father in self-defence. All the while, their children were within the household. Even though the children may not have directly observed the violence, they were certainly aware of the heated argument, which caused one of the children to be so alarmed she summoned a relative for help. Even the father’s wife perceived the incident was serious enough to warrant police intervention.
The father and his wife appeared gravely embarrassed by their behaviour on that occasion, which embarrassment probably explains their mutual attempt to deflect attention from it. They have since participated in counselling and now regard the incident as a regrettable exception to the normal harmony of their loving relationship. I accept that is so, since there is no reason other than cynicism to reject it. I do not accept the validity of the mother's speculative theory that the child is, by reason of that isolated event, at unacceptable risk of exposure to family violence within the father’s household.

Best interests of child – additional considerations (s 60CC(3))

The issue that generated the most heat in the parties’ conflict was the child’s diagnosis with autism and the parties’ respective attitudes to his diagnosis, the extent of his impairment, and the concomitant requirements for his proper care. That issue underpinned the contest about the speed with which the child’s interaction with the father should be increased.
First, it is convenient to record the uncontroversial facts, of which there are many.
The mother began investigating the prospect of the child’s autism in early 2011, not long after the parties separated, about which she notified the father. The diagnosis was confirmed following the child’s consultations with specialists over a period of a few months.
The child’s condition is at the mild end of the autism spectrum, in the opinion of both Dr S and the Family Consultant.[34] Dr S told both parties the child was at the mild end of the spectrum,[35] to which opinion he adhered in cross-examination.
[34] Second Family Report, para 53
[35] Second Family Report, para 39; Mother’s affidavit, para 314
After his diagnosis in 2011, the child improved significantly. The mother described him making “great strides in all areas”.[36]
[36] Mother’s affidavit, paras 202-204
In early 2012, the mother arranged for the child to consult with two psychologists – one to manage his autism (Dr S) and the other to proffer strategies to manage his behaviour, particularly at school (Ms A).[37] The child “made good progress over all areas throughout the course of 2012”.[38]
[37] First Family Report, paras 14, 15, 28; Affidavit of Dr S, Annexure B; Mother’s
Affidavit, para 233
[38] First Family Report, para 30
In early 2013, following release of the first Family Report, Ms A refused to confer with the Family Consultant and declined to provide any further service to the child and mother,[39] but that did not impede the child’s progress.
[39] Second Family Report, para 7; Exhibit M9
The child’s reading and computing skills were excellent in early 2013. By late 2013 his academic progress was “on track, if not above that of his peers”. He is a proficient reader. He understands calendars and knows when he is to visit the father. He copes well with the fortnightly visits to the father.[40]
[40] First Family Report, para 54; Second Family Report, para 17
The child moved from the specialist autism school he formerly attended to mainstream school at the commencement of the 2014 academic year. Dr S visited him at the school twice – once in February 2014 and again in May 2014. On the first occasion Dr S considered the child had adapted to the change reasonably well. On the second occasion he found the child much more anxious, but the school principal informed Dr S of several recent changes to the child’s routine at school that could logically account for some ephemeral disturbance. Dr S told the Family Consultant he believed the child should remain in a mainstream class once the transition was made.[41] Nothing he said in cross-examination detracted from that opinion.
[41] Second Family Report, para 66
The mother believes the child has made “wonderful progress” since the time of his diagnosis with autism.[42]
[42] Mother’s affidavit, para 305
Notwithstanding that uncontroversial historical context, the parties had different opinions about the child’s future care and management.
The mother maintained the child’s behaviour was erratic and difficult to control. She told the Family Consultant there was “significant fallout from [his] visits [to the father]”.[43] The mother also alleged the child was disruptive at school,[44] but the Family Consultant said in cross-examination that did not correlate with the information to which she was privy about his performance and behaviour at school.
[43] Second Family Report, para 25
[44] Exhibit M1, paras 21-22
The mother was anxious to minimise any changes for the child, which caused the Family Consultant to remark upon the mother’s past and present emotional health and lead her to believe the mother’s anxiety represents an impediment to the expansion of the time spent by the child with the father.[45]
[45] Second Family Report, para 70
The Family Consultant reported the mother’s medical records show she has been prescribed anti-depressant medication since 1998, though perhaps not continuously. She was also previously diagnosed with Post Traumatic Stress Disorder as a consequence of her serious illness and hospital admission in early 2007. She has been consulting a counsellor over a long period.[46] Anxiety obviously is, and has been over a long period, a problem for the mother. In all probability her emotional condition is a contributory factor in the child’s unsettlement with her. I accept the Family Consultant’s opinion that the mother is unable to calm the child and manage his behaviour as well as the father and his school teachers.
[46] First Family Report, paras 5, 50; Second Family Report, paras 4, 30; Exhibits ICL1, ICL2;
Mother’s affidavit, para 324
The father and his wife maintained they do not experience the seriously adverse behaviour of the child, as the mother alleged she experiences when the child is in her care.[47] The father told the Family Consultant he does not believe the child’s impairment is as serious as the mother contends. He told the Family Consultant he accepts the diagnosis of autism, but believes the child functions at a higher level than the mother believes.[48] The father was more argumentative in cross-examination though. He said he did not accept the diagnosis of autism on the basis of only the mother’s history of his behaviour, but he did acknowledge the child had problems which were typical of autism. Sensibly, the father’s wife accepted the child was correctly diagnosed on the autism spectrum. Presumably her good sense will influence the father.
[47] First Family Report, paras 66, 73-79
[48] First Family Report, para 80; Second Family Report, para 17
The Family Consultant found the child to act quite differently in the company of the parties on the two occasions she consulted with them in February 2013 and August 2013.[49] In cross-examination she commented how she found the change to be so dramatic she was “shocked”. The Family Consultant’s observations were significant because her consultations necessarily entailed frequent disruption to the child’s routine and sense of structure on those occasions. Despite the likelihood of the child’s adverse reaction to such disruption, it did not occur and the Family Consultant found that to be remarkable. She therefore tended to corroborate the father’s perception as valid.[50] The Family Consultant posited the mother’s experience of bad behaviour by the child might be explained by his insecure or disrupted attachment with her.[51] That theory was not explored further, presumably because it was accepted the child would remain living with the mother.
[49] First Family Report, para 38, 94, 96-99; Second Family Report, paras 52-53
[50] First Family Report, paras 86, 88
[51] First Family Report, para 102
The Family Consultant undoubtedly has the necessary expertise and experience for her opinions to be afforded substantial weight,[52] but the mother was dissatisfied with the Family Consultant’s opinions. It was suggested to the Family Consultant in cross-examination she was not as impartial as she should have been, but that accusation or implication was convincingly defended by the Family Consultant. I was left with no doubt about her veracity or the validity of her opinions, which she explained logically and fairly. Most probably, the mother realised her future plans for the child were in jeopardy in the face of the Family Consultant’s evidence and attacked when she should have defended. She even resorted to denigration of the Family Consultant.[53]
[52] First Family Report, para 102
[53] Second Family Report, para 23
The mother’s contrary attitude towards the Family Consultant does not influence the decision about the child’s future, just as I accept it made no difference to the impartiality of the Family Consultant’s opinions. It is mentioned only to acknowledge the existence of the issue and the rejection of its validity.
The parties and Independent Children’s Lawyer accepted that few of the factors prescribed by s 60CC(3) of the Act relevantly applied because of the narrow scope of the parties’ dispute, but two other aspects of the evidence are worth mentioning.
The child’s views were not canvassed.[54] However, his positive and warm behaviour with the father, and with other members of the father’s family, was telling and spoke volumes.[55]
[54] Second Family Report, para 49
[55] First Family Report, paras 40, 95-97; Second Family Report, paras 57-59
Finally, no complaint was made by the mother about the father’s payment of child support for the child.[56]
[56] First Family Report, para 12; Mother’s affidavit, para 263

Conclusions and Orders

The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe that either the father, his wife, or both of them engaged in family violence during the fracas between them at their home in June 2013 (s 61DA(2)(b)). That finding accords with the submissions of the mother and Independent Children’s Lawyer. The father did not directly address the issue.
Notwithstanding the inapplicability of the presumption, as the Independent Children’s Lawyer correctly submitted, equal shared parental responsibility may still be allocated to the parties if the child’s best interests warrant that outcome. The father and Independent Children’s Lawyer both submitted it did, whereas the mother sought exclusive parental responsibility for the child.

The mother maintained that her allocation of exclusive parental responsibility for the child was the only tenable outcome, but slightly different reasons were offered for that conclusion. She told the Family Consultant she found it impossible to communicate with the father,[57] whereas she said in cross-examination she and the father could not reach agreement. However, the facts belied the mother’s reasoning on both counts.
[57] First Family Report, para 47; Second Family Report, para 14
The mother complained in her affidavit that she had to take care of “all parenting decisions [for the child] with little or no consultation with [the father]”,[58] implying she would have liked more consultation with him. In cross-examination she confirmed she would have happily consulted the father about the child if he was more willing to engage with her. According to the mother, she and the father sat down together months after their final separation to discuss the child’s unruly behaviour and to investigate on the internet whether he might have autism.[59] Over the ensuing years she regularly exchanged emails with the father about the child’s medical appointments and therapy.[60] The mother said in cross-examination the child’s therapists are now getting “a lot of input” from the father and they have occasionally attended appointments together, which she implied was a favourable development. Dr S told the mother’s general practitioner in July 2013 that he found the father “agreeable and not difficult to deal with”,[61] which should allay any concern the mother might have about the father frustrating the child’s therapy. The parties were also able to recently negotiate an extension of the time spent by the child with the father by two hours.[62]
[58] Mother’s affidavit, para 84
[59] Mother’s affidavit, paras 146-148
[60] Exhibits M2, M3, M4, M5, M6, M7
[61] Exhibit ICL3
[62] Exhibit M1, paras 1-3
It was submitted for the mother that she was apprehensive dealing with the father against the background of family violence. Her behaviour over past years does not vindicate that conclusion. The Family Consultant said, and I accept as accurate, the mother is angry with the father, not fearful of him.
It was also submitted for the mother that the parties’ disparate beliefs about the extent of the child’s autism impairment were “fertile ground” for further confrontation and would be a “weeping sore” in their future dealings with one another. While their disagreement is foreseeable, the submissions for the mother exaggerated the difference between their opinions. The father’s more doubtful attitude was, at least in part, corroborated by the Family Consultant. It would be anomalous if the father was denied an equal share of parental responsibility simply because he failed to concede an unreasonably strong opinion held by the mother. I am far from convinced the father would unreasonably reject advice from respected experts about the child’s proper care and management. The parties are both highly intelligent and both desire what is best for the child. They can work co-operatively if they are inclined.
The parties should have equal shared parental responsibility for the child, just as the Family Consultant recommended.[63] The mother is perfectly capable of corresponding with the father in writing, either by email or text, as she has done before. There is no obligation upon her to negotiate face-to-face with the father over matters of long-term importance to the child if that causes her discomfort.
[63] Second Family Report, recommendation I
The proposals of the mother and Independent Children’s Lawyer for a suite of other orders regulating the parties’ conduct in respect of the child are unnecessary in light of the allocation of equal shared parental responsibility.[64]
[64] Exhibit M12, Orders 11-16; Exhibit ICL4, Orders 9-10, 12-14
Given the allocation of equal shared parental responsibility to the child’s parents, consideration must be given to whether it is both reasonably practicable and in the child’s best interests to order that he live with both parties for equal time, or alternatively, live with one and spend substantial and significant time with the other (s 65DAA).
An “equal time” arrangement is not in the child’s best interests. There was agreement about that between the parties, Independent Children’s Lawyer, and Family Consultant. It is therefore futile considering whether such an arrangement is reasonably practicable. The child’s residence with the mother was entirely uncontroversial throughout the proceedings.
While there was agreement that the child should spend substantial amounts of time with the father, the mother’s proposal arguably fell short of the definition of “substantial and significant time” (s 65DAA(3)). The father’s final proposal did amount to substantial and significant time, as did the final stage of the Independent Children’s Lawyer’s proposal.
There is no doubt it is reasonably practicable for the child to spend substantial and significant time with the father. The mother lives in the lower Hunter Valley and the father lives in Newcastle. Their homes are in reasonable proximity. The parties both have cars, driver’s licences, and sufficient income to cover the necessary transport costs.
The argument was about whether it was in the child’s best interests to spend substantial and significant time with the father immediately or eventually.
Dr S and the Family Consultant agreed the child could begin spending overnight time with the father immediately, but the overall program of their interaction should expand progressively.
Dr S told both the father and Family Consultant months ago there was no reason why the child could not spend time with the father overnight.[65] The Family Consultant also reported months ago that the child would probably adjust to the immediate introduction of overnight time with the father.[66]
[65] Second Family Report, paras 39, 66
[66] Second Family Report, para 53
Although Dr S believed a staged expansion of the child’s time with the father was appropriate,[67] when pressed in cross-examination he expressly disavowed acceptance of ultimate responsibility for determining how swiftly the remainder of the expansion should occur. He earlier told the mother’s general practitioner in July 2013 he was “quite perturbed” about being left with responsibility to make a judgment about the child and his “parental access”,[68] and he told the Family Consultant in August 2013 he felt pressured by both parties to support their case.[69] Clearly, and understandably, he did not want to be caught between them.
[67] Second Family Report, para 66
[68] Exhibit ICL3
[69] Second Family Report, para 65
In essence, Dr S only placed two caveats on the expansion of the child’s time with the father. First, the changes should not occur contemporaneously with the child’s settlement into mainstream school, which will not be the case since the child started mainstream school six months ago. Second, the changes should occur in a “structured, consistent, and predictable manner”,[70] which the Family Consultant remarked did not mean “dragged out and delayed”.
[70] Affidavit of Dr S, Annexure C
The Family Consultant agreed with both of Dr S’s propositions, but she was more forthcoming with positive ideas. She recommended staged expansion of the time spent by the child with the father on alternate weekends, beginning with immediate introduction of Saturday nights and then successive incorporation of Friday and Sunday nights. She envisaged the expansion occurring over a period of only a couple of months, with the incorporation of weekly visits in school holidays within another couple of months.[71] In her view, such expansion should have begun years ago and there should be no further delay. She said that although the child will be challenged by the changes, that was no reason to delay them.
[71] Second Family Report, para 54, recommendations II and III
As the Family Consultant insightfully observed, the child’s condition justifies routine and stability, but not at the expense of his relationship with the father.[72]
[72] First Family Report, para 87
The orders therefore impose a regime increasing the child’s interaction with the father in a graduated manner, which generally correlates with the Family Consultant’s advice. Each incremental step occurs approximately six months after the last. There are only three steps in all before the regime reaches its zenith.
Ultimately, the child will spend alternate weekends with the father during school terms, commencing at the conclusion of school of Fridays and ending at the commencement of school on Mondays. The Family Consultant recommended that routine as meeting the child’s best interests and the father adopted the idea.
The mother’s program of much slower graduation is rejected. She conceded her proposal did not have the imprimatur of either the Family Consultant or Dr S. It was merely a manifestation of her opinion about what would best serve the child’s interests, but her opinion carries no weight by comparison with the expert opinions of the Family Consultant and Dr S.
The child will be collected from and returned to school whenever possible, but otherwise will be exchanged by the parties or their delegates at their homes, which was uncontroversial. No explanation was offered, either in evidence or submissions, about whether it would be better for the child to either be delivered to or collected by the party with whom the child would be living or spending time. Presumably then, it makes no difference.
The mother’s primary proposal for the expanding regime to be subject to the overriding advice of Dr S is rejected for three reasons.
First, Dr S did not want that responsibility.
Second, the Family Consultant said Dr S only assesses autism in children, but does not counsel them. If a child he assesses requires counselling, Dr S refers the child elsewhere. That probably accounts for why the child also consulted with Ms A until early 2013. Despite the child’s consultation with Ms A for one year and Dr S for more than the last two years, the extent of his interaction with the father has not materially increased, so one wonders whether it ever would if left to Dr S’s control.
Third, the Court should not delegate its statutory responsibility to decide what orders should be made in the best interests of the child, particularly when the person proposed as the delegate does not enjoy the parties’ uniform and unconditional respect. Dr S was unilaterally chosen by the mother. She is so enamoured of him she wants and expects to work with him professionally, either during her tertiary study or after she qualifies as a healthcare professional. Although Dr S said he had not agreed to such collaboration, he and the mother had certainly discussed the prospect. Even if Dr S is completely unbiased, he does not have the desirable appearance of impartiality expected of a forensic expert.
An order provides for the child to have telephone communication with the parties on a weekly basis, in accordance with the Independent Children’s Lawyer’s proposal. The Family Consultant recommended twice weekly communication,[73] but said there was “no magic” about the frequency. Although the mother said the child is uncomfortable participating in telephone conversations[74] and will only speak on the telephone with the speaker function activated, she did not advocate against the Independent Children’s Lawyer’s proposal. In fact, she actively sought that telephone communication occur.[75]
[73] Second Family Report, recommendation VI
[74] Exhibit M1, para 13
[75] Exhibit M12, Orders 6-8
The remaining orders either accord with the various proposals or could not be the subject of reasonable objection.
The Independent Children’s Lawyer proposed an injunction precluding the child’s removal from Australia without both parties’ consent,[76] presumably because the mother alleged the father had threatened international abduction of the child in the past, even though the father denied it. Significantly, the mother did not seek such an order, nor did she expressly support the Independent Children’s Lawyer’s proposal. The father said in cross-examination he would consent to an injunction precluding removal of the child from Australia without both parties’ consent, but the provisions of the Act make such an order superfluous (s 65Y). Since the parties have equal shared parental responsibility for the child, an Australian passport cannot be procured for the child under the Australian Passports Act 2005 (Cth) without their mutual consent. I accept the father has no intention of permanently departing Australia with the child.[77]

Property settlement dispute

[76] Exhibit ICL4, Order 15

[77] Father’s affidavit, page 18

Proposal of mother

The mother did not seek the orders set out within her Amended Initiating Application filed on 9 October 2013.
The minute of orders tendered by the mother did propose certain orders be made under Part VIII of the Act,[78] but in reality, she did not seek any orders at all, other than the dismissal of the father’s application. She intended for the parties to retain their existing legal and equitable interests and to bear responsibility for their own debts.
[78] Exhibit M12, Orders 19-22

Proposal of father

The father’s ultimate proposal was for the mother to pay to him a sum of cash equivalent to 15 per cent of the combined total of her net assets and her superannuation interest. Her assets had a net value of $490,744 and her superannuation interest was valued at $182,466, totalling $673,210. The father therefore sought a cash settlement of $100,981.50 (= 15% x $673,210).
His final proposal was quite different from his earlier proposals.
At the commencement of the final hearing, his application was simply for the mother to pay him $150,000 in cash.
His earlier application, set out within both the Response filed in December 2011 and the Amended Response filed in May 2013, was for the mother to pay him $300,000 in cash.
The father did not and could not articulate how the payment of any cash sum to him by the mother was appropriate, even on the facts as asserted by him. The value of the cash settlement for which he applied was quite arbitrary.

Applicable legal principles

Orders under the Act altering the property interests of parties may only be made if the Court is first satisfied it is just and equitable to make such orders. It is necessary to begin that inquiry by identifying the existing legal and equitable property interests of the parties. It must not be assumed the parties’ rights to or interests in property are or should be different from those that then exist, or that a party has the right to have the parties’ property divided by reference to the statutory considerations (see Stanfordv Stanford (2012) FLC 93-518).
Although the High Court was dealing in Stanford with an application between spouses for property settlement pursuant to Part VIII of the Act, the principles are equally applicable to applications between de facto partners pursuant to Part VIIIAB of the Act.
It is permissible for the factors prescribed by s 90SM(4) (the counterpart to s 79(4)) to inform the inquiry under s 90SM(3) (the counterpart to s 79(2)) of the Act about the justness and equity of making property settlement orders (see Bevan & Bevan [2013] FamCAFC 116 at [83]-[89], [163], [169], [171]-[172]).

Section 90SM(3) – is it just and equitable to alter property interests?

The parties’ relationship spanned a period of about 54 months, between June 2006 and December 2010. They temporarily separated for a period of about 15 months, but they disputed the nature of their relationship during the separation.
The mother alleged their separation extended from February 2007 until June 2008,[79] but she conceded the father spent nights at her home and also regularly visited the child at her home in that period.[80] She also conceded their relationship “somewhat re-commenced” by May 2008.[81] In cross-examination she conceded she had a key to the father’s apartment during their separation.
[79] Mother’s affidavit, paras 10-12, 68, 88
[80] Mother’s affidavit, paras 49, 60
[81] Mother’s affidavit, para 64
The father agreed their separation commenced in February 2007 and, although he alleged in his affidavit they resumed cohabitation in May 2007, he admitted in cross-examination it was not in fact until May 2008. In the period of separation he allegedly spent “most” of his time outside of work hours at the mother’s home.[82]
[82] Father’s affidavit, page 3
It was acknowledged any contributions made by the parties during the temporary separation would be recognised pursuant to s 90SM(4) of the Act, so the fact of separation itself was not decisive.
The parties’ evidence about their respective contributions was, in large measure, inconsistent, though there were some aspects of commonality. They each worked and derived income and they each cared for the child, though the mother was the child’s primary carer. They employed casual workers to undertake some of the housework and some of the yard work.
The father conceded he worked shifts of nearly 12 hours duration and travelled for two hours each day commuting to and from his place of work. He attended musical and theatrical rehearsals two nights each week after work, entertained at venues on Saturday nights, and coached two sports teams. He cared for the child on Saturdays, but obviously had little time for anything else.
The parties maintained a joint banking account between July 2008 and January 2011, but its credit balance was always very modest.[83] The parties otherwise kept their finances separated.
[83] Exhibit F1
The father alleged the mother had access to his accounts, but the mother explained that was only at his request and only to service his debts whilst he was travelling abroad.[84] I accept her evidence about that.
[84] Mother’s affidavit, paras 66-67, 71-72, 394-396
The parties disagreed over the financial contributions made by the father to the household. The mother maintained his contributions were minimal. It was surely not the case he “contributed nothing financially”,[85] because the mother conceded he paid some household bills amounting to about $4,500.[86] The father tendered banking statements to contradict the mother,[87] but his effort was in vain. Although he apparently frequently spent money acquiring comestibles, the quantum of his expenditure did not necessarily contradict the accuracy of the mother’s impression.
[85] Mother’s affidavit, para 81
[86] Mother’s affidavit, paras 97, 377
[87] Exhibit F2
The mother made other payments to, or for the benefit of, the father and his family. She gave him money to travel to Africa and money to his family members in Africa.[88] The mother admitted she was only repaid a small proportion – about $1,000 – by the father’s sister.
[88] Mother’s affidavit, paras 65, 70, 392, 397, 398
The parties disagreed about whether the father made any contribution to the cost of installation of a swimming pool upon the mother’s residential property. The mother alleged she paid for it exclusively,[89] and tendered copies of the cheques she drew on her account.[90] The father alleged he won $16,500 on poker machines and spent most of that on the pool construction.[91] However, in cross-examination the father conceded the winnings were paid by cheque made payable to the mother. He could not account for why monies due and owing to him were in fact paid to the mother. The evidence does not establish on the balance of probabilities that the father contributed any money to the cost of construction of the swimming pool upon the mother’s property.
[89] Mother’s affidavit, paras 368-371
[90] Exhibit M10
[91] Father’s affidavit, page 24
When the parties began cohabitation in June 2006, the mother’s financial position was very much stronger than it was when they finally separated in December 2010, and also much stronger than it is currently. In 2006 her company was valued at $2,200,000,[92] whereas it is now valued at only $695,000.[93] At the outset of the hearing both parties confirmed they did not dispute the values respectively attributed by them to their assets and liabilities. Nor was there any allegation that either failed to satisfactorily disclose their financial position. The mother’s evidence can therefore safely be accepted as correct.
[92] Mother’s affidavit, para 357
[93] Exhibit M13; Mother’s Financial Statement, para 41

The father’s financial position has not changed much since June 2006. In cross-examination he admitted the effect of the mother’s evidence about his financial position,[94] even though his evidence in chief was slightly different.[95] He admitted entering the relationship with debt in excess of $30,000 and he deposed he left the relationship with debt of about $40,000.[96] In any event, he has always owned a car and he has always been in debt. His liabilities exceeded the value of his assets in 2006, which remains the case now.
[94] Mother’s affidavit, paras 358, 409
[95] Father’s affidavit, pages 23-24
[96] Father’s affidavit, page 25
Although the father denied it as a motivation, he told the Family Consultant he had no alternative but to seek a property settlement because of the legal fees he incurred defending the former apprehended violence proceedings and prosecuting these proceedings.[97] That may not be the only reason he sought a property settlement, but to the extent he was thereby motivated he is in error. Costs in the apprehended violence proceedings conducted before the State court should have been determined in those proceedings. In these proceedings, the parties ordinarily bear their own costs, subject to demonstration of some feature that would warrant departure from that orthodoxy (s 117).
[97] First Family Report, para 67
The mother has no cash reserves. The only assets she has available to use as security to raise funds for payment to the father are her home and her company. The house is heavily encumbered and her current income seems insufficient to cover the additional repayments on any significantly increased loan. The mother is already heavily indebted to her company on her director’s loan account and there is no evidence she is able to use her position of authority over the company to use its assets to raise further funds for her private purposes.
Otherwise, the mother has a modest superannuation interest. The father did not seek a superannuation splitting order and no evidence was adduced of his compliance with Rule 14.06 of the Family Law Rules, thereby precluding any splitting order being made.

Conclusions and Orders

It would not be just and equitable to alter the parties’ property interests in circumstances where:
(a)Their relationship was relatively short and punctuated by a period of separation anyway;
(b)Apart from maintaining a single joint banking account, which contained only a small credit balance for only part of their relationship, the parties kept their assets and income separate;
(c)They did not acquire any assets together;
(d)The father made no discernable financial or non-financial contribution to the acquisition, conservation or improvement of any asset owned by the mother;
(e)They each contributed at least part of their income to the running of a joint household while they cohabited, but the father’s financial contributions were no greater than, and probably inferior to, the mother’s;
(f)They each cared for and supervised the child, though the mother was his primary carer;
(g)The mother has given considerable sums of money in the past to both the father and members of his family;
(h)Over three years have now elapsed since the parties separated and in that period the father did not make any material contribution, apart from care of the child for a period of hours once each fortnight;
(i)The father is not now in any significantly worse position than he was when he began cohabitation with the mother; and
(j)Any cash adjustment payable by the mother to the father would almost certainly entail sale of her home and the dislocation of her and the child, depriving her of the home ownership she has always enjoyed.
In final submissions the father suggested his entitlement to property settlement was premised upon factors prescribed by s 90SF(3) of the Act, but he did not make a persuasive case. He is nearly 10 years younger than the mother, he is in good health, he is in full-time employment, and his current income is superior to hers. True it is the mother enjoys a superior financial position, due to her existing property interests, but that was always the case. Her position of superiority was even more pronounced prior to the parties’ relationship. The mother will continue to bear the primary burden of caring for the child, who is still only seven years of age. The father reliably pays child support to the mother, but it is a modest amount and would only cover a small proportion of the actual cost of maintaining the child.
The father’s application for property settlement under Part VIIIAB of the Act should be, and is, dismissed.

I certify that the preceding one hundred and forty three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 8 July 2014.

Associate:

Date: 8 July 2014

[2014] FamCA 484

8 July 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Appeal