TURTON & BLACK - [2011] FMCAfam 5

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TURTON & BLACK

[2011] FMCAfam 5

FAMILY LAW – Parenting – residence dispute – parents have highly conflicted relationship and both have a history of mental health issues – expert evidence and children’s wishes support the children continuing to live with the wife and to spend five nights each fortnight with the husband – orders made accordingly.

FAMILY LAW – Property – small property pool – wife found to have made significantly greater contributions and to have significantly greater future needs pursuant to section 75(2) of the Family Law Act 1975 – ordered 80:20 division of the matrimonial asset pool in the wife’s favour.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75, 79

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143

Applicant:

MR TURTON

Respondent:

MS BLACK

File Number:

MLC 3867 of 2010

Judgment of:

Bender FM

Hearing date:

24 November 2010

Date of Last Submission:

24 November 2010

Delivered at:

Melbourne

Delivered on:

14 January 2011

REPRESENTATION

Counsel for the Applicant:

Self-represented

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Ms Wiener

Solicitors for the Respondent:

Lampe Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Bearman

Solicitors for the Independent Children’s Lawyer:

Townsend Wylde Lawyers

ORDERS

Parenting:

All previous parenting orders be discharged.
The parties have equal shared parental responsibility for their children [Y] born [in] 2000 (“[Y]”) and [Z] born [in] 2002 (“[Z]”).
[Y] and [Z] live with the wife.
[Y] and [Z] spend time and communicate with the husband as follows:
(a)from the conclusion of school Thursday until the commencement of school Monday (or 4.00pm if a non-school day) commencing 3 February 2011 and each alternate week thereafter;
(b)from the conclusion of school Thursday until the commencement of school Friday (or 4.00pm if a non-school day) commencing 10 February 2011 and each alternate week thereafter;
(c)for one half of the term school holidays as agreed between the parties and failing agreement the first half from after school Friday to 12.00 noon the middle Saturday;
(d)for one half of the long summer vacation as agreed between the parties and failing agreement the second half in 2010/2011, to conclude at 5.00pm on the Friday before [Y] and [Z] start school, and each alternate year thereafter and the first half in 2011/2012, to commence after school on the last day of fourth term, and each alternate year thereafter;
(e)from 5.00pm Christmas Eve to 12.00 noon Boxing Day 2011 and each alternate year thereafter;
(f)from 12.00 noon Boxing Day to 5.00pm on 27 December 2012 and each alternate year thereafter;
(g)if not living with the husband on Father’s Day from 10.00am on Father’s Day to before school the following Monday;
(h)if not living with the husband on either of their birthdays, the husband’s birthday or [X]’s birthday, if on a school day for three hours as agreed between the parties and failing agreement from after school to 6.30pm and if on a non-school day for four hours as agreed and failing agreement from 11.00am to 3.00pm; and
(i)as otherwise agreed between the parties.
The husband’s time with [Y] and [Z] pursuant to orders 4(a) and 4(b) herein shall be suspended during the school holidays and recommence on the basis that [Y] and [Z] shall spend time with their father pursuant to order 4(a) commencing on the first Thursday of each term.
Despite anything otherwise provided for in these orders, the husband’s time with [Y] and [Z] shall be suspended as follows:
(a)from 12.00 noon Boxing Day to 5.00pm on 27 December 2011 and each alternate year thereafter;
(b)from 5.00pm Christmas Eve to 12.00 noon Boxing Day 2012 and each alternate year thereafter;
(c)if not living with the wife from 10.00am Mother’s Day to before school the following Monday; and
(d)if not living with the wife on either of their birthdays or the wife’s birthday, if on a school day for three hours as agreed between the parties and failing agreement from after school to 6.30pm and if on a non-school day for four hours as agreed and failing agreement from 11.00am to 3.00pm.
Changeover for the purpose of [Y] and [Z] spending time with the husband shall occur at [Y] and [Z]’s school/s in the absence of the other parent, or if a non-school day at [omitted] Supermarket at [omitted] and only the parties shall be in attendance unless notice by SMS is given of an agent of a parent attending due to an emergency.
The parties shall continue to utilise a Communication Book to be handed to the other parent at changeover, such book to contain only matters relevant to [Y] and [Z]’s health, education and extra-curricular activities and each party is restrained from permitting either of [Y] or [Z] to read the Communication Book.
The husband and wife be permitted to attend all school functions to which parents are usually invited to attend and receive all school newsletters, notices and school photographs (at their own expense) and the husband be permitted to continue to participate in [Y] and [Z]’s reading programs and the like.
The husband and wife be permitted to attend [Y] and [Z]’s

extra-curricular activities as are usually attended by parents.
The husband and wife keep the other notified in relation to:
(a)their residential address and contact telephone numbers;
(b)any medical emergency or serious health issues affecting either of [Y] and/or [Z] whilst in their care; and
(c)full name and contact details of any medical practitioner or other health professional that either of [Y] and/or [Z] attend whilst in their care and shall authorise such practitioner to communicate with and provide information to the other parent.
The wife forthwith provide a copy of these orders to [Y] and [Z]’s school principal and to their school counsellor Mr M.

Property:

The husband pay to the wife the sum of $30,770.00 (“the payment”) on or before the 14^th day of February 2011 (“the date”).
Contemporaneously with the payment:
(a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband, at the expense of the husband, all of her right, title and interest in the real property situate at and known as Property H (“the real property”); and
(b)the husband indemnify wife against all payments and liability pursuant to the mortgage to the ANZ Bank (“the mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
In the event that the whole of the payment has not been made by the date then the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)first to pay all costs, commissions and expenses of (the said trust transfer and) the sale;
(b)secondly to discharge the mortgage and any other encumbrance affecting the real property; and
(c)thirdly the balance be divided as follows:
(i)the wife receive an amount whereby she receives 80 per cent of the parties’ total asset pool (the parties’ total asset pool having been defined to consist of the net proceeds of sale of the real property and the wife’s superannuation entitlements of $18,898.82), such 80 per cent to include the wife’s superannuation entitlements of $18,898.82 which she is to retain; and
(ii)the balance to the husband.
Pending the payment or completion of the sale:
(a)the husband have the sole right to occupy the real property and during such right of occupation the husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)neither party encumber the real property without the consent in writing of the other party.
In the event it is not registered in the wife’s name, the husband forthwith do all necessary acts and things and sign all necessary documents to transfer to the wife, at the expense of the wife, all his right, title and interest in the Ford Falcon Station Wagon.
In the event it is not registered in the husband’s name, the wife forthwith do all necessary acts and things and sign all necessary documents to transfer to the husband, at the expense of the husband, all her right, title and interest in the Mitsubishi motor vehicle.
In the event either party refuses or neglects to comply with any provision of this order:
(a)a Registrar of the Federal Magistrates Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these orders;
(b)the defaulting party is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this order and providing his/her damages; and
(c)for the purpose of this order, an affidavit setting out the defaulting party’s failure to comply with the orders shall be sufficient evidence of neglect and default.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the husband, save for those items listed in Annexure A hereto which the wife and her nominated agents shall collect from the real property within 14 days);
(b)insurance policies remain the sole property of the owner named thereon;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
The wife shall give the husband 48 hours notice by text message of her intention to attend with her nominated agents upon the former matrimonial home to collect the chattels to which she is entitled pursuant to order 20(a) herein.

AND THE COURT NOTES THAT:

A.The husband denies knowledge of the whereabouts of the items marked with an asterix (*) in Annexure A.

ANNEXURE A

Samsung two door fridge/freezer;
Cake stand and server (from Aunty [name omitted]);
Popcorn Maker;
Milkshake Maker;
Two pots (belonged to wife’s grandmother);
Cake and muffins tins/moulds;
Crystal bowls and plates (from wife’s grandmother);
Toy box;
Kodak digital camera;
Wife’s books;
Green vase (wedding present from Ms P);
Bedside drawers (loaned by wife’s parents);
Big white chest of drawers (loaned by wife’s parents);
Bathroom scales – weight watchers;
Trundle and spare mattress (from wife’s parents);
Volta vacuum cleaner;
Sewing machine;
4 Burner BBQ and gas bottle;
Outdoor setting – table and four chairs;
Trampoline;
50” plasma TV Samsung full HD *;
Samsung DVD player *;
Movie lounge suite *; and
An equal division of the parties’ DVD’s which shall be divided between the parties on the basis of each choosing a DVD in turn, a boxed set of DVD’s being deemed to be a single pick, and the wife to have first pick.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BENDIGO

MLC 3867 of 2010

MR TURTON

Applicant

And

MS BLACK

Respondent

REASONS FOR JUDGMENT

Introduction

This matter involves the parties’ respective Applications in relation to both children and property matters arising from the breakdown of their relationship in April 2010.
The husband is seeking orders that the parties’ two children [Y] born [in] 2000 (“[Y]”) and [Z] born [in] 2002 (“[Z]”) live with him and spend alternate weekends from after school Friday to before school Monday, half school holidays and special days with the wife.
In relation to property matters, the husband seeks orders that he retain the former matrimonial home and that otherwise each of the parties retain all assets currently in their respective possession.
The wife is seeking orders that [Y] and [Z] live with her and spend time with the husband in week one from after school Thursday to before school Monday and each alternate week thereafter and in week two from after school Thursday to before school Friday and each alternate week thereafter. This reflects the current interim arrangements that were put in place by consent on 29 September 2010.
The wife also seeks orders that school holidays be shared, that [Y] and [Z] spend the entirety of Christmas Day with each parent in alternating years, that each parent have the children for the whole of Easter in alternating years and that no orders be made for the children to spend time with the parent they are not living with on their birthday.
In relation to property matters, the wife is seeking orders that the former matrimonial home be sold, that she retain the net proceeds of sale, that she retain her superannuation entitlements, that she retain named chattels currently in the property and the parties otherwise keep that which is currently in their respective possession.

Background

The husband was born [in] 1968 and is 42 years of age. He is engaged in home duties. He has not re-partnered.
The husband’s eldest daughter [X] born [in] 1991 (“[X]”), his child from his previous marriage, lives with the husband and lived with the parties for the entirety of their relationship.
The wife was born [in] 1979 and is 31 years of age. She is currently engaged in home duties and will be commencing full time study next year doing a [omitted] Diploma at [omitted] University. She has not re-partnered.
The parties commenced cohabitation in early 1999, married [in] 2001 and separated on 2 April 2010 when the wife, [Y] and [Z] left the former matrimonial home.
At the time the parties commenced their relationship, [X], then aged seven years, was diagnosed with Ewings Sarcoma, a form of cancer which is now in remission.

During the relationship the husband was not in paid employment. He suffered from agoraphobia and anxiety as well as from ongoing back problems. In these circumstances he rarely left the matrimonial home and it was the wife who assumed responsibility for all external activities of the family, including taking [X] to her medical appointments, and [Y] and [Z] to kindergarten and school, parent/teacher interviews, medical appointments and extra-curricular activities.
The husband was involved in creating [omitted] from home and devoted considerable time, energy and effort to this activity. A number of these items were sold during the marriage and the wife estimates the parties received approximately $20,000.00 from these sales over the course of the relationship.
In September 2003 the wife commenced permanent part-time work with [T]. This employment continued to 2009. The wife’s income, together with Centrelink payments, was the primary financial support for the family.
In 2004 the parties engaged with the Department of Human Services to build the former matrimonial home through the Group Self Build Program. This program enabled families in the program to build their own home and the homes of the other families in the program at a reduced rate. The parties qualified to join the program because the wife was in permanent employment and they were able to take out a loan to join the program. The amount of that initial loan was not made known to the court. The mortgage was serviced from the wife’s income from [T].
Under the program there was a contractual obligation to contribute approximately 20 hours a week of physical work for a period of
14 months. The wife fulfilled these obligations on behalf of both parties. The husband was unable to take part in that aspect of the program because of his agoraphobia.
When the house was completed, because of the wife’s labour, the parties were not required to pay a deposit and the parties were left with $50,000.00 equity in the former matrimonial home.
When the home was completed the parties took out a further $20,000.00 home loan to purchase new furniture, make improvements to the home and repay a debt to the wife’s parents of $7,000.00.
In November 2006 the parties extended their home loan by a further $20,000.00. This money was utilised to build the “movie room”, a large shed in the back garden of the property as well as to purchase movie equipment and memorabilia. The parties also purchased a Ford Falcon station wagon. The wife retains that motor vehicle.
In 2007 the wife received two sales bonuses from [T] which were used to pay out the parties’ Mitsubishi motor vehicle which they had initially purchased under finance in 2001. The husband retains this motor vehicle.
In May 2009 the wife ceased her employment due to anxiety and depression arising from issues of bullying that arose in her workplace from late 2008. She reported symptoms of tiredness, sleep disturbance and depression for which she received ongoing counselling and medication.
The wife also reported ongoing issues with the marital relationship. The parties separated on 2 April 2010 after an altercation between the parties, following which the wife, took [Y] and [Z] to live with her parents in [E]. At this time the wife unilaterally removed [Y] and [Z] from their school in Bendigo and enrolled them in [E] School. The husband did not see [Y] and [Z] for two months following separation.
On 8 April 2010 the wife obtained an urgent interim intervention order against the husband in the Bendigo Magistrates Court which included an order that the husband vacate the former matrimonial home.
On 14 April 2010 the matter again came before the Bendigo Magistrates Court on the husband’s application for an intervention order against the wife as well as his application to vary the interim orders of 8 April 2010. On 14 April 2010 the court extended the period for the husband to vacate the former matrimonial home to 18 April 2010.
It was the wife’s evidence that when she returned to the former matrimonial home on 22 April 2010, the husband had changed the locks and had removed most of the contents of the home. Because of this, she and the children were unable to return to the home. The husband denied he had removed any contents from the home.
On 28 April 2010 the husband made an application to revoke the wife’s intervention order. On 30 April 2010, by agreement, the order was varied to enable the husband and [X] to return to the former matrimonial home.
On 12 May 2010 the parties resolved their respective intervention order applications by way of mutual undertakings which expire on

13 May 2011.
The husband commenced these proceedings by way of an Initiating Application filed on 29 April 2010. The matter first came before the court on 18 May 2010 and was adjourned to 21 May 2010 to enable the wife to file answering material.
At this time the husband reported his agoraphobia and anxiety to have resolved and thereafter was able to fully participate in all activities for [Y] and [Z]. He has represented himself in these proceedings since August 2010.
On 21 May 2010 interim orders were made by consent which provided for the wife to forthwith return [Y] and [Z] to their Bendigo school, [C] School, for [Y] and [Z] to live with their parents on a week about basis and for the husband to have sole use and occupation of the former matrimonial home. Orders were made for the appointment of an Independent Children’s Lawyer as well as for a psychiatric assessment of each of the parties and for the preparation of a Family Report. The matter was otherwise listed for mention at the Bendigo sittings of the Federal Magistrates Court on 26 July 2010.

On 27 July 2010 the matter was fixed for final hearing in Bendigo in the circuit commencing 22 November 2010.
On 26 August 2010 the wife issued an urgent Application in a Case seeking orders on an interim basis that she have sole parental responsibility for [Y] and [Z], that they live with her and spend supervised time only with the husband. In her affidavit in support of the Application in a Case the wife expressed concerns as to the husband’s mental health and more particularly raised concerns as to the impact that shared care was having on [Y] and [Z], particularly [Y] such that she reported [Y] evidencing suicidal ideation and having been referred to Dr B, child psychologist.
On 9 September 2010 when the wife’s urgent Application came

before the court, orders were made that adjourned the matter to

16 September 2010, for the husband to file his answering material and otherwise suspending the order for shared care and providing for [Y] and [Z] to live with the wife.
On 16 September 2010 the court was advised that the parties, [Y], [Z] and [X] were attending on Dr K, Clinical Psychologist, on

27 September 2010 for the purposes of the preparation of the Family Report for the final hearing. After consultation with Dr K, the wife’s interim Application was adjourned to 29 September 2010 and an order made for Dr K to provide the court with an oral report as to his recommendations, if any, for the interim living arrangements for [Y] and [Z] in light of the wife’s urgent Application. Otherwise interim orders were made for [Y] and [Z] to spend time with their father from 10.00 am to 7.30 pm every second day until the adjourned date.
Dr K was able to provide the parties and the court with his Family Report on 28 September 2010. On 29 September 2010 Dr K also gave the court an oral report as to his recommendations for the interim living arrangements for [Y] and [Z]. It was Dr K’s evidence that the interim living arrangements for [Y] and [Z] should reflect the recommendations contained in his Report as to the long term arrangements for them, that is that they live with their mother and spend five nights per fortnight with their father, being from 4.00 pm Thursday to Monday morning in week one and 4.00 pm Thursday to Friday morning in week two.
At the conclusion of Dr K’s evidence, the matter was stood down. The court was subsequently advised that the parties had reached agreement and interim consent orders were made which provided for [Y] and [Z] to live with the husband from after school Thursday (or 4.00 pm if not a school day) to before school Monday (or 4.00 pm if not a school day) in week one and from after school Thursday (or 4.00 pm if not a school day) to before school Friday (or 4.00 pm if not a school day) in week two and otherwise [Y] and [Z] live with the wife.

Parenting Matters

The husband’s proposal

As set out earlier in this judgment, the husband’s proposal is that [Y] and [Z] live with him and spend alternate weekends with the wife from after school Friday to before school Monday, as well as half holidays and special occasions such as Christmas, birthdays and Mother’s Day.
It was the husband’s evidence that he has a close and loving relationship with [Y], [Z] and [X] and that as the home father for all their lives he has been their primary carer.
The husband raised concerns about the wife’s mental health and was of the view that the depression and anxiety from which she suffered prior to separation continues to impact on her mental health and her capacity to care for the children.
The husband complained that the wife is too quick to take the children to the doctor but, when cross-examined as to those instances where medical assistance was sought by the wife since separation, conceded that the intervention of the doctor was appropriate.
The husband raised issue with the company that the wife and children now keep, alleging that the wife now associates with known drug-dealers and that as a result of this the children were losing contact with their previous friendship groups.
The husband complained that the children were constantly having sleepovers when in the wife’s care, were being carted back and forth to Melbourne every weekend that they were with their mother, that the children were hardly ever at home, that they were not getting enough sleep and that they were not the wife’s priority.
Whilst conceding that the wife made no issue with him attending [Y]’s soccer on the Monday when they were not in his care, the husband complained that the wife, on the last three Mondays, had not brought [Z] to soccer and indicated that this was a deliberate ploy by her to prevent [Z] being able to spend additional time with him.
It was the husband’s evidence that he believes that the wife continues to denigrate him to the children and make false claims against him.
When the husband was asked to expand upon his complaint that the wife denigrates him, he made particular reference to an entry made by the wife in the parties’ Communication Book, and in particular the wife’s entry for 4 November 2010 which will be reproduced here:
“In relation to the booklets produced by the Department of Education to assist with Literacy & Numeracy, your discussion with Mr B should have made you aware that these booklets were distributed and sent home with the children on Oct 28^th. That was THURSDAY last week, the night that you picked them up. This means that you had the information before I did. I found both [Y]’s and [Z]’s copies in [Z]’s school bag. I have left one copy in there for you as they are exactly the same.
I would also appreciate it if lunch containers and the children’s mobile phone are returned. We use the containers daily”
Mr Turton’s response in the Communication Book was as follows:
“I’m not sure who you are trying to impress, but I have already been accused by you once of stealing lunch boxes. And [Y] and [Z] never used them when we were together, and they still don’t use them while with me. If the lunch boxes go missing it is either in their rooms, or at school.
You already know [Y] has been exepted (sic) into soccer, but apparently you want this book to be some sort of forum such as Biggest Loser, so here it is again, 4:45pm Mondays at the oval across from [omitted]. If you wish to now use this book as a launching pad for your lies and a new way to try and contact me, sorry I’m NOT INTERESTED.
You also know [Y] replaced the phone, not me.”
These entries were read out loud to the husband in the witness box in an endeavour to ascertain why they were derogatory and his response was:
“Thankyou for proving my point.”
The husband was unable to give any further explanation as to why he found the wife’s entry in the Communication Book derogatory.
The husband agreed that the children want the current living arrangements that were put in place in September 2010 to continue. However, it was his evidence that the children are saying whatever their mother wants them to say and that comments by the children in these terms do not truly reflect their wishes.

The wife’s proposal

The wife is seeking orders in accordance with the recommendations of the Family Report prepared by Dr K, being the arrangements that have been in place since orders were made by consent on an interim basis on 29 September 2010. It was the wife’s evidence that these arrangements have been working well for [Y] and [Z] and that they have both indicated they would like these arrangements to continue into the future.
It was the wife’s evidence that she has been the children’s primary carer, both during the marriage and following separation. It was her evidence that because of the husband’s agoraphobia and anxiety issues, as well as his back troubles, she was almost solely responsible for all the day-to-day external requirements of the children, including taking them to kindergarten, school, medical appointments, sporting commitments, parent/teacher interviews etc.
The wife conceded that in the 18 months prior to separation, she did suffer from mental health issues that arose in part as a result of the stressors associated with the bullying that she received during her employment with [T] but also in part because of the difficulties in the marital relationship, in particular the lack of self-esteem and self-worth that she felt as a result of the husband’s ongoing denigration of her.
It was the wife’s evidence that since the parties separated, a lot of these issues have resolved and that she is mentally and physically much healthier than she was in the lead-up to the parties’ separation.
It was the wife’s evidence that she agrees that the children do have a close and loving relationship with their father, as well as with [X], and that the current arrangements will ensure those relationships continue.
It was the wife’s evidence that the former week-about arrangement did not work for the children and that [Y] in particular became highly stressed as a result of the difficulties that this arrangement put in place for her in the context of the parties’ conflicted relationship.
The wife denied the husband’s allegations that she is associating with known drug dealers or that [Y] and [Z] were losing contact with their previous friendship groups. The wife also denied that when with her, [Y] and [Z] were rarely at home. It was her evidence that [Y] had had one sleepover at a friend’s home since separation. The wife also denied taking [Y] and [Z] to Melbourne every weekend they were with her, though agreed that there were occasions they had visited her family in Melbourne.
As to [Z] not attending [Y]’s soccer in recent times, it was the wife’s evidence that [Z] had chosen to play at a friend’s house instead.
The wife denied denigrating the husband to either of [Y] and [Z] and of making false claims against him.
It was the wife’s evidence that she is returning to full-time study next year at [omitted] University doing a [omitted] Diploma. Whilst she did not as yet know her hours of study, she indicated that she was of the understanding that most of her university hours would occur during school hours and if there were tutorials or lectures that took place outside school hours she would be able to put in place appropriate arrangements for the care of the children.
It was her evidence that upon completion of her studies, she would be looking to return to employment in order to be able to properly support herself and the children into the future.

Dr E

Dr E completed a psychiatric assessment of both the husband and the wife in this matter. His Report dated 18 October 2010 were placed before the court by way of an affidavit sworn and filed 22 November 2010. Dr E was also very briefly cross-examined by the husband at the final hearing of this matter.
In relation to the wife, on page 7 of his Report under the heading ‘Diagnosis’, Dr E states as follows:
“Ms Black has an Adjustment Disorder with Depressed and Anxious Mood”
and further on the same page under the heading ‘Summary’:
“Ms Black currently does not present with psychiatric symptoms.”
In relation to the husband, on page13 of his Report under the heading ‘Diagnosis’, Dr E reports as follows:
“Mr Turton has a Dependent Personality Disorder and a Generalised Anxiety Disorder.”
On page 13 and 14 of his Report under the heading ‘Opinion’, Dr E states as follows:
OPINION
1.Ms Black and Mr Turton describe a conflicted and largely unsatisfactory relationship. Their relationship began in the context of [X]’s illness, and ended in the context of

Ms Black’s depressive illness and her wish to leave the marriage. It is Ms Black’s account that she was subsumed by her husband’s neediness and continued wish for attention. After taking over the care of [X], she soon found herself pregnant. Mr Turton was unable to assist her with the pregnancy due to his illness at the time. Progressively, following the births of [Y] and [Z], Ms Black found herself doing all of the work at home and supplying an income ([T]), at the same time, being subjected to Mr Turton’s attempts to control and undermine her. She struggled to maintain relationships with friends and was constantly subjected to accusations of having affairs. Mr Turton’s morbid jealousy and failure to understand and relate to her as a person, eventually drove her away from him in the context of her involvement with ‘The Biggest Loser’ Forum.
2.In the course of the relationship, Ms Black described recurrent depressive symptoms and her sense of emotional and physical exhaustion. At one stage, as well as working, she was also building a house on weekends and received no assistance from Mr Turton in that respect due to his “agoraphobia”. Since the separation in 2010, Ms Black describes herself as alive again and her psychiatric symptoms have resolved. In the post-separation period, she undertook a number of Intervention Orders due to

Mr Turton’s various alleged threats and attempted intrusions into her life. She describes a loving and stable relationship with the children, and despite Mr Turton’s presence in the home, regards herself as having provided most of the primary care of them. Since the breakdown of the relationship, [X] has sided with her father. It is

Ms Black’s account that the children are embroiled in

Mr Turton’s wish to denigrate her.
3.Mr Turton presented as a struggling figure, a man of low self esteem and tendencies to develop dependent relationships with his various female partners. His account of the relationship with Ms Black and depiction of her as a domineering, controlling person, belies the more likely scenario that he simply handed over many of the adult roles in the relationship to her, preferring to spend his time at home under the guise of his agoraphobic condition and his longstanding interest from childhood in making and playing with models. It is likely that he afforded Ms Black little in the way of freedom, found it difficult to relate to her, and as she says, engaged in a range of denigrating and undermining comments and behaviours. Whilst he relies on his account as to Ms Black’s erratic mental state as a reason for the children to have residence with him, her emotional symptoms more than likely occur as a result of his corrosive influence on her.
4.Mr Turton’s newfound freedom and reinvention of himself provides testimony to the true origins of his agoraphobic condition, a self serving construction which has enabled him not to work for many years. He now portrays himself as the victim of Ms Black’s lack of care, as he has with his parents, who he now needs to assist him. His insistence on making a residency application is likely in these circumstances to serve more as a form of revenge than to represent any true ability on his part to act in the care and interests of the children. I note and agree with opinion of Dr K (28^th September 2010) in respect to the mental health of the parents, both of whom indicate that they have recovered from their previous difficulties, and both of whom may have problems in these areas in the future. Dr K viewed

Mr Turton’s difficulties as being the more significant largely related to personality difficulties, and as such, can be considered more significant than those of Ms Black. Based on my assessment of Ms Black and Mr Turton, whilst it is important for the children to continue to have contact with their father, in my opinion it is Ms Black with whom they should spend the majority of time.
As noted earlier, the husband cross-examined Dr E very briefly. He challenged Dr E’s conclusion that the wife had been the primary carer of the children. Dr E confirmed that it was his view that the wife was the one who had been the children’s primary caregiver.
Neither the wife or the Independent Children’s Lawyer sought to

cross-examine Dr E.

Dr K

Dr K is a Clinical and Forensic Psychologist who prepared a Family Report in this matter dated 28 September 2010. Dr K also gave brief viva voce evidence when he was cross-examined by the husband at the final hearing of the matter.
In his Report, Dr K indicated that he was of the view that both children have a sound relationship with each of their parents.
Dr K reported that the wife has been the organiser within the family and based on comments of the children had been the more significant caregiver.
In relation to the mental health of the parties, Dr K was of the view that whilst both indicated that they had recovered from their previous difficulties, it was likely that both could have problems in these areas in the future. Dr K reported that individuals with panic disorders and with agoraphobia have significantly greater functional problems than those with depressive problems. Dr K was also concerned in relation to the husband’s difficulties with his family of origin and his tendencies towards cutting off relationships, and as such was of the view that the husband’s mental health problems can be considered more significant than those of the wife.
On page 23 of his Report in the final paragraph, Dr K states as follows:
“In conclusion, based on the above and the results of this evaluation, it would appear a home-base arrangement is most appropriate, and that the children spend a larger percentage of the time with the mother than with the father. At this point, it is unlikely that an entirely shared-care arrangement would be appropriate. For this reason, I would suggest that the children have a home base arrangement for the next 2-3 years, with the possibility of a fully shared-care arrangement when [Y] reaches age 13 years or the start of secondary school. Nevertheless, this should not be considered as a fait accompli, or something that should necessarily occur, but such an issue would need to be assessed at the time.”
On page 24 of his Report, Dr K sets out as follows:
RECOMMENDATIONS
1.In my opinion, it is appropriate that 5 days of each fortnight be spent with the father, and 9 days with the mother, with half the school holidays being allocated to the care of each parent, and appropriate allocation of special days.
The following represents a possible arrangement:
Week 1 – Time with father – Thursday 4pm to Monday am (4 nights)
Week 2 – Time with father – Friday 4pm to Saturday noon, or
Thursday 4pm to Friday am

(1 night)
2.It is important that [Y] and [Z] continue to have counselling with the school counsellor. It is also appropriate that [Y] continue to have psychological assistance separately. In my opinion, it is also appropriate that each parent obtain psychological assistance with an experienced clinical psychologist independently.
When cross-examined by the husband, Dr K was challenged as to whether he had a bias in favour of women, and in particular whether the process for the preparation of the Family Report was such that Dr K spent a great deal more time with the wife rather than with him.
Dr K indicated that he assessed the family as it presented, that he had no bias, and that from his recollection he had spent approximately the same amount of time with both of the parties. Dr K was quite clear that the Report and its’ recommendations were based purely on his professional assessment.
Neither the wife or the Independent Children’s Lawyer sought to

cross-examine Dr K.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
In this matter, both parties are proposing that they have equal shared parental responsibility for [Y] and [Z]. Whilst there is no doubt that the parties have some real difficulties in their relationship and capacity to communicate, they have both been able to put in place appropriate arrangements for the care of their children including, at times, being able to make alternate arrangements to those as set out in the interim orders in order to accommodate particular needs of the children.
In addition, they are both continuing to be actively involved in the children’s sporting and extra-curricular activities and were able to cooperate and communicate when [Y] recently broke her arm. In these circumstances I am more than satisfied that an order for equal shared parental responsibility would be in [Y] and [Z]’s best interests.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)         the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

Section 65daa (5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Neither party is seeking orders that [Y] and [Z] spend equal time with each of their parents. Dr K, in his Report, made it quite clear that such an arrangement would be contra-indicated for [Y] and [Z] at this time, both because of their relatively young ages and because of the conflicted parental relationship.
The husband’s proposal would not see [Y] and [Z] spending significant and substantial time with the wife as defined by the legislation. The wife’s proposal does provide for [Y] and [Z] to spend significant and substantial time with the husband.
When determining what arrangements should be put in place for children, whether it be significant and substantial time or some other arrangement, the best interests of the child are paramount.
When determining what is in a child’s best interests, the court must consider the matters set out in section 60cc(2) and (3) of the Act. Each of the matters contained in these subsections, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals and a decision then be made as to which party’s proposal, or such other arrangement as the court may determine, is in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which the court must take into account when determining best interests.

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

The children have a close and loving relationship with both of their parents.
Whilst the husband believes himself to have been the children’s primary carer as a result of him being at home for all of their lives, I am satisfied that the reality is that the children’s primary carer was and is their mother and it is to her that they have their primary attachment. Because of the husband’s agoraphobia during the relationship, it was the wife, even though she was also working, who was the organiser and the parent responsible for all the children’s activities and for their primary care.
It is also clear from the comments made by the children to Dr K that they too saw and see their mother as their primary carer. On page 12 of his Report, Dr K notes that [Y] told him that she is closer to her mother than her father and that it was to her mother that she tended to talk.
[Z] seems more closely aligned with his father than [Y], something conceded by both [Y] and the wife. However, it would appear that [Z] too sees his mother as the parent to go to when in trouble and the parent who does most of the organising for him.

Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

There is no doubt that both [Y] and [Z] have been badly affected by their parents’ separation and by their parents’ ongoing conflicted relationship.
[Y] in particular was clearly very distressed subsequent to separation, such that she was referred to Dr B, child psychologist.
Both parents have a history of mental health issues from which both report to have recovered since their separation. Dr K raises concerns that both parties may be subject to ongoing mental health issues that will need to be carefully monitored and managed into the future.
Both [Y] and [Z] have reported their father saying negative and inappropriate things in relation to their mother and this too has been most distressing for them.
Having said that however, the children’s school has reported that both children are doing well, both educationally and socially, since separation and speak positively of both parents in the context of their involvement with their children and support of them generally.
I am satisfied, subject to the parties ensuring that they shield the children from their conflict, that both are able to properly provide for [Y] and [Z]’s physical and psychological health.
Section 60cc (3) of the Act sets out the additional considerations to be taken into account and these will be looked at in turn where relevant.

Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Both parties report that the children have indicated that the current arrangements are satisfactory and wish for them to continue into the future.
Dr K was concerned that the children had been coached by one or either of their parents and had been influenced in their discussions with him by their parents’ comments or behaviours.
In these circumstances Dr K was of the view that the children’s wishes had:
“probably been contaminated by family process, both coaching and influence. Both children wish to see both parents.”

Section 60cc 3(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

As indicated earlier in this judgment, the children have a close and loving relationship with both of their parents.
In addition, [Y] and [Z] have a close and loving relationship with their sister [X], who has been in their household and part of their lives since they were born. It will be of real importance to them and to [X] that any arrangements put in place enable this relationship to continue into the future.
Additionally, and particularly since separation, [Y] and [Z] have spent considerable time with the extended maternal family and these relationships too will continue to be of importance to both of them.

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the court must also take into account

sub-s.60cc(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)    to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)    spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The husband holds the view that the wife is actively trying to undermine his relationship with the children and that this is evidenced by her taking the children from Bendigo to Melbourne for some two months when the parties first separated.
The wife denies that she is trying to undermine this relationship and it was her evidence, which is accepted, that she has made the decision to remain living in the Bendigo area to ensure that the children’s relationship with their father and sister [X] is nurtured and maintained.
Of greater concern is the husband’s attitude towards the wife and her role in the children’s lives. When cross-examined, the husband was unable to say anything positive about the wife or her parenting of the children. Whilst he conceded that she has a good relationship with the children, he was of the view that it was controlling and manipulative and he did not think that she was a good mother.
When questioned as to how his proposal that the children only spend alternate weekends with their mother would affect the children or impact on their relationship with her, it was the husband’s evidence that the wife would be able to:
“move down to Melbourne and get on with her own life.”
A reasonable inference from this evidence was that the husband could see very little role for the wife in the children’s lives.
In his Family Report on page 23 under the heading ‘Access to the other parent’, Dr K reported as follows:
“With respect to the factor of the parent who is most likely to provide access to the children to the other parent, based on this evaluation, the mother appears most likely to be cooperative with respect to this issue. This is despite her behaviour following the separation, which are of concern, and her ties with [E]. I note that the father, following his first separation, left [town omitted], and the impression was that [X] does not necessarily have a particularly close relationship with her own mother.”

Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

I am satisfied on the evidence that both parties intend to remain living in the Bendigo region, though from the perspective of the husband this appears to be based on his expectation that he will retain the former matrimonial home.
I have accepted the wife’s evidence that she will remain in the Bendigo region and therefore any orders made by this court will enable the children to continue to spend time with both their parents and with [X] without disruption or difficulty.
Needless to say, should the wife change her mind in this regard and seek to move to Melbourne in the future, she would be unable to do so in the absence of an order from this court.

Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

As noted in the previous subsection, both parties are intending to remain in the Bendigo area and as such there are no practical difficulties with any arrangements put in place for the children to spend time with both their parents.

Section 60cc 3(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

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

Both parents have the capacity to provide well for [Y] and [Z]’s physical, intellectual and emotional needs.
However, as set out previously in this judgment, there has to be concerns in relation to both parties managing their mental health issues such that they ensure that any issues that arise for either of them are quickly addressed so as not to impact on their capacity to care for the children.
Further, as already noted in this judgment, it is important for both parents to work on their relationship, each with the other, in order to shield [Y] and [Z] from their conflicted relationship.
[Y] and [Z] have been engaged with their school counsellor for some time and continue to see him regularly. The court was advised at the final hearing that [Y] has indicated she no longer wishes to see Dr B but would continue to engage with her school counsellor.
In particular, it will be very much incumbent upon the husband to ensure that he ceases any and all negative comments in relation to the wife when the children are in his hearing and/or presence, and also ensuring that [X] refrains from making any such comments as well.
It is somewhat saddening to note that the relationship between [X] and the wife has broken down at this time. It is apparent that [X] has found it necessary to side with her father and it is sad for her that she has lost the support of the wife, who has been such an important part of her life for well over ten years.

Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The impact of the husband’s agoraphobia and his inability to be involved in his children’s lives beyond the home environment for the majority of the marriage has impacted on them and on their relationships with him.
The apparent resolution of this issue post-separation however does seem to have made this a matter for the past.

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

Not relevant.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

This judgment has already touched on this issue at some length.
The wife’s unilateral decision to take the children out of Bendigo to [E] for the first two months after separation impacted negatively on them and has contributed to the issues that continue to this day in relation to the relationship between the two parties.
The husband’s ongoing bitterness towards the wife following the breakdown of the relationship, from which he is not shielding the children, is also of concern and must be addressed by him to ensure that this does not continue to cause real problems for [Y] and [Z].

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

It was the wife’s evidence that at the time of separation there was a violent incident between herself and the husband such that she took out an urgent intervention order.
The husband also gave evidence of friends of the wife pursuing and threatening him in recent times. This evidence was somewhat chaotic and not supported by any corroborative independent evidence.
Realistically, the issues for these parties were more concentrated around emotional and psychological abuse, which their separation would appear to have greatly diminished for both of them.

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

As set out earlier in this judgment, both parties sought intervention orders against the other under State domestic violence legislation. This was resolved in May 2010 when mutual undertakings were given which expire in May 2011.

Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It is always difficult to know if the orders made are more or less likely to lead to the institution of further proceedings.
However, having said that, I am of the view that it is important that orders be made that formalise the arrangements for [Y] and [Z] to ensure certainty for them.

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

The court was advised by the representative for the Independent Children’s Lawyer that the Independent Children’s Lawyer had met with the children the day before the final hearing commenced and that they had confirmed to her that the existing arrangements were working very well for them and they were happy for those arrangements to continue into the future.
The Independent Children’s Lawyer indicated through her representative that in all the circumstances, she supported the existing arrangements for [Y] and [Z] being made as final orders.
The one outstanding issue between the parties in relation to arrangements for special occasions related to Christmas Day. In relation to Christmas the wife was seeking orders which would make provision for [Y] and [Z] to spend the whole of Christmas Day with each of their parents in alternate years. I note that whilst the wife’s Application also sought specific orders as to arrangements for Easter, she did not pursue this aspect of her Application at the final hearing.
It was the wife’s evidence that she has a large family of many siblings and that every second year the family gets together as a whole and spends the whole of Christmas Day together at her parents’ home in [E]. It was her evidence that if she and the children were to attend her family gathering, it would be extremely difficult for there to be a sharing of Christmas Day between herself and the husband. Accordingly she sought orders that would have the children spending all of Christmas Day with her in even years to enable she, [Y] and [Z] to be able to attend her family’s bi-annual Christmas gathering.
It was the husband’s evidence that he preferred arrangements that saw a more “usual” arrangement for Christmas whereby in each alternate year the children would wake up with one or other of their parents on Christmas morning and that there would be a changeover in the afternoon.

Conclusion

It is apparent that for [Y] and [Z] the immediate aftermath of their parents’ separation was quite tumultuous. However, since arrangements were put in place in September 2010 which provided that they live with their mother and spend five nights each fortnight with their father, things appear to have settled down considerably and are very much more on track from the children’s perspective.
The wife, having initially moved to Melbourne with the children, has accepted that it is in the children’s best interests that they be able to spend considerable time with both their parents. Accordingly, she has committed to continuing to reside in the Bendigo area in order to enable that to happen.
The husband is somewhat dismissive of the wife as a person and in particular in her role as the mother to [Y] and [Z]. He is of the view that it is in the children’s best interests that they live with him and spend relatively limited time with their mother so that she can “get on with her life”, whether that be in Melbourne or elsewhere.
The husband sees himself as a home-parent and is of the view that he is best placed to continue in the primary parenting role for his children into the future.
It is clear however from the evidence that the primary carer for these children for all their lives has been the wife and that she has performed this role, even when in full-time employment, as a result of the husband’s agoraphobia which was prevalent during the whole of the marital relationship.
The wife, whilst concerned about the husband’s negativity towards her, is conscious of the importance of the children maintaining a meaningful relationship with their father, who she acknowledges they love and wish to be able to spend significant and substantial time with.
The initial arrangement put into place for the children by this court was a shared-care arrangement. It was quite clear that this did not work for [Y] and [Z] and that they are in need of a home base and orders that enable them to spend significant time with their other parent.
I am satisfied on the evidence that the parent with whom [Y] and [Z] should have that home base is their mother and that orders should be put in place that confirm that, but also ensure that [Y] and [Z] continue to spend significant and substantial time with their father and sister [X] so that the meaningful relationship [Y] and [Z] have with them is consolidated and allowed to continue to develop.
In those circumstances orders will be made that confirm the existing arrangements that were put in place by way of interim consent orders made in September 2010.
Orders will also be made in relation to a sharing of all school holidays, provision for birthdays, Mother’s Day and Father’s Day.
In relation to Christmas, I am satisfied that it would be in the children’s best interests to be given the opportunity to enjoy Christmas Day in toto each alternate year with each of their parents and in particular to enable them to fully engage in a long-standing arrangement that the maternal family have for a gathering of the entire family every second year and orders will be made accordingly.

Property Matters

The issues

The issues that I have identified between the parties in relation to property matters are as follows:
a)What comprises the matrimonial property pool, and in particular:
i)What is the value of the husband’s figurine and movie memorabilia collection?
ii)Does this form part of the pool for division between the parties?
b)Should there be an in specie division of chattels in the former matrimonial home between the parties?
c)Did the wife make a greater contribution to the parties’ asset pool?
d)What should the adjustment as between the parties be arising from section 75(2) factors?
e)Can the husband retain the former matrimonial home if required to “pay-out” the wife?

The legislation

Section 79 of the Family Law Act1975 (“the Act”) defines the Court’s powers in determining applications for property settlement. Sub-section 79(2) of the Act provides that:
The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

The four-step approach

In Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at [39], the Full Court of the Family Court described the preferred four-step approach in property matters as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), ("the other factors") including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case ….

Assets and liabilities

Neither party filed any sworn valuation in relation to the former matrimonial home at Property H. In the wife’s Form 13 financial statement sworn 30 June 2010, she deposes to the property being worth $226,000.00. In the husband’s Form 13 financial statement sworn June 2010, he deposes to the former matrimonial home being worth $220,000.00. For the purposes of this judgment the figure of $223,000.00 will be taken to be the value of the former matrimonial home.
The former matrimonial home is currently encumbered by way of a mortgage of some $179,800.00, leaving an equity in the property of approximately $43,200.00.
In the husband’s Form 13 financial statement, he swears the value of his movie collectables/sculptured items, inclusive of stock on sale, as being $50,000.00. The wife in her Form 13 financial statement deposes to the contents and collection originally held in the former matrimonial home at being valued at approximately $80,000.00.
It was the wife’s evidence that when she, together with her father, returned to the former matrimonial home on 22 April 2010, she had a locksmith remove the padlocks which were on the movie room at the former matrimonial home and that when she went inside all the movie collectables, figurines and the electronic equipment including DVD players, plasma screen televisions and the like had been removed. In evidence she produced photographs of the empty room with that date shown on the photographs.
It was her evidence that in those circumstances, she had not been able to obtain any formal valuation of the movie collectables.
The husband denied removing the contents of the movie room and was unable to explain their current whereabouts, save to infer they had been taken by the wife.
It was his evidence that when completing his Form 13 financial statement, he had been asked by his then legal representatives as to the value of the collection and that he had responded by saying the wife will think it’s worth $50,000.00 and therefore they had included that figure in his Form 13 financial statement. It was the husband’s sworn evidence at the final hearing of this matter that he did not believe the collection had any value.
It was the wife’s evidence that in the ten years of cohabitation, the sale of figurines and movie memorabilia had generated approximately $20,000.00. The husband did not challenge this figure.
Photographs were given in evidence of the figurines and memorabilia produced by the husband, including photographs of some items in a window of a memorabilia shop at [omitted] Shopping Centre. These items did not display a price tag.
I am not able to be satisfied as to what value these items would have and can only be guided by the reality that in ten years the sale of this material generated no more than $20,000.00, an average of approximately $2,000.00 per annum. I am also unable to make any findings as to the whereabouts of such items at this time, though I am satisfied that in all probability the husband was responsible for their removal from the movie room and would be able to locate them at some time into the future when these proceedings have been finalised.
Whilst these items have some value, especially to those with an interest in such items, I find that it is not possible to attribute a value to these items such that they can be properly included in any pool of assets for division between the parties.
Both parties have in their possession a motor vehicle of approximately the same value and neither made submissions that those vehicles be included in the pool and that there be any orders made other than they each retain the motor vehicle that they currently drive.
The wife provided to the husband a list of chattels and personalty that she believes continues to remain in the former matrimonial home and in which she highlighted those items that she wished to have returned to her. This document was provided to the husband with the request that he mark those items he agreed to return to her. The husband alleged that many of the items sought by the wife were already in her possession, claimed were gifts or indicated he was unaware of their existence. The reality is that the value of these items are minimal and cannot be included in the pool. However orders will be made for the return of some of those items to the wife.
The final asset of any value is the wife’s superannuation entitlement with [T] which has a current value of $18,898.82.
In all these circumstances I find the matrimonial pool for division between the parties consists of the following:

Property H Victoria, with a value of $223,000.00, less mortgage to ANZ Bank of $179,811.60 $43,188.40

Wife’s superannuation $18,898.82

Total $62,087.22

Contributions

As set out in the introduction to this judgment, the parties acquired the former matrimonial home as a result of their involvement in the Group Self Build Program developed by the Department of Human Services in 2004.
Under the Program, the parties were required to contribute some

20 hours of physical labour per week for a period of 14 months. It was common ground that this obligation was performed solely by the wife because of the husband’s agoraphobia.
It was also common ground that the wife was the sole income earner of the family, save for the small amount contributed by the husband as a result of the sale of his [omitted]. It was from the wife’s income that the mortgage was served during the marriage.
It was submitted on behalf of the wife that in addition to being the sole income earner of the family, she also performed the primary role as homemaker and parent, particularly in relation to any activities involving the family away from the matrimonial home.
It was therefore submitted on behalf of the wife that hers has been by far the greater contribution to the parties’ relatively small asset pool and that in those circumstances she should receive the greater proportion of the matrimonial assets.
The husband made no submissions on this issue.

Section 75(2) factors

The husband is aged 42 years and has not been in any form of paid employment for some 20 years. He is currently in receipt of a disability pension arising from mental health issues as well as a long-term back problem. When the parties met, he was caring for his then seven year old daughter who had been diagnosed with serious health issues.
It is the husband’s evidence that he does not believe he is able to obtain any form of paid employment and that he sees his role in life as being a full-time parent.
The wife is aged 31 years and describes herself as being in good health both physically and mentally. As a result of anxiety and depression suffered in her previous employment with [T], the wife was off work on Workcare payments for approximately six months from late 2008.
The wife pursued a claim against [T] for damages arising from the stress suffered by her because of the workplace bullying that lead to her ceasing her employment. It was her evidence, confirmed by way of correspondence produced to the court, that her claim against [T] has resolved on the basis that they have paid her legal fees only and she will not be receiving any lump sum payment.
The wife commences a [omitted] Diploma on a full-time basis at [omitted] University in 2011 and it is her evidence that at the completion of her studies she will be looking for employment in order to be able to support herself and the children.
It is apparent that the husband will not be able to undertake any form of paid employment into the future and that he will continue to be dependent upon social security for his financial support.
In those circumstances, the majority of the financial responsibility for [Y] and [Z] will fall on the wife’s shoulders. They will be living primarily in her care, albeit spending significant and substantial time with their father.
The husband has the responsibility for his adult daughter [X], but I accept evidence that she is currently undertaking a course of study and it was my understanding that she is also in some form of part-time employment as well as in receipt of Youth Allowance which contributes to her support at this time.
It was submitted on behalf of the wife that in those circumstances, and in particular because the wife will bear the majority of the financial responsibility for [Y] and [Z], that there should be a substantial loading in her favour as a result of section 75(2) factors.
The husband made no submissions on this issue.

Just and equitable

It was the husband’s proposal that he retain the former matrimonial home and its’ current contents, and that the wife retain her superannuation and all other assets in her possession.
It was his argument that he had a positive obligation to provide a home for himself, [X], [Y] and [Z] and that in the circumstances where it was his proposal that [Y] and [Z] live with him, that such an outcome would be just and equitable in all the circumstances.
It was the husband’s evidence that he was able to manage the current mortgage repayments on the matrimonial home from the monies received by him through Centrelink. The current mortgage payments exceed $600.00 per fortnight and it was apparent that the husband would not have a capacity to service any higher mortgage payments. It was also clear that he would be most unlikely be able to further borrow against the property looking at the very limited equity that the parties have in that property.
The wife submitted that in the circumstances of her greater contribution, the section 75(2) factors and in particular that she will have the financial responsibility for [Y] and [Z] into the future, that it would be just and equitable that orders be made that the former matrimonial home be sold, that she retain the net proceeds of sale and that otherwise each party retain all assets currently in their possession, including that she retain the benefit of the whole of her superannuation entitlements.
It was submitted on her behalf that this represented an 80:20 division of the assets between the parties on the basis that the collectables and figurines in the husband’s possession were worth somewhere between $40,000.00 to $50,000.00.

I am in agreement that an equitable division of the parties’ assets is that the wife receive 80 per cent of same and the husband receive 20 per cent of same. This reflects the fact that the matrimonial property pool is very small, the wife made by far the greater contributions to that small pool and that the wife will bear the financial responsibility for [Y] and [Z] into the future.
As set out earlier in this judgment, I have found that the property pool consists of the equity in the matrimonial home and the wife’s superannuation entitlements, a pool of $62,087.22.
The husband wishes to retain the matrimonial home. I intend to give him an opportunity to buy the wife out, accepting that this will only be possible if there were family or friends who are in a position to lend him the money to do so. On my calculation the amount required to be paid by the husband to the wife is $30,770.00 and as this is a relatively small amount, such assistance to the husband may be possible.
Accordingly, orders will be made that the husband pay to the wife the sum of $30,770.00 within 30 days and upon payment of same she transfer the former matrimonial home to him.
In the event that the husband is unable to raise those funds, the orders will provide for the former matrimonial home to be sold and that the net proceeds of sale be divided whereby the parties receive a distribution such that when the net proceeds of sale from the former matrimonial home are added to the wife’s superannuation there be a division of the total pool such that the wife receives 80 per cent of the pool, including all of her superannuation entitlements, and the husband receives 20 per cent of the pool.
I also intend to make orders that the wife and her agent are to attend upon the former matrimonial home within 14 days to collect named chattels that will be set out in the orders and the husband is to make them available for her collection.

I certify that the preceding one-hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 14 January 2010

Property H Victoria, with a value of $223,000.00, less mortgage to ANZ Bank of $179,811.60	$43,188.40
Wife’s superannuation	$18,898.82
Total	$62,087.22