Ullrich and Ullrich

[2013] FCCA 1351

FEDERAL CIRCUIT COURT OF AUSTRALIA

ULLRICH & ULLRICH [2013] FCCA 1351

Catchwords:
FAMILY LAW – Parenting Orders – consideration of parallel parenting or shared parenting – alignments of the children – property – contributions –s.75(2) factors.

Legislation:

Family Law Act 1975

Federal Magistrates Act 1999

Federal Magistrates Court Rules 2001

Mazorski v Albright [2007] FamCA 520
McCall v Clark [2009] FamCAFC 92
G v C [2006] FamCA 994
Rice v Asplund [1979] FLC 90‑725
Stanford v Stanford [2012] HCA 52
Bevan v Bevan [2013] FamCAFC 11
Pierce v Pierce [1999] FLC92 844

Applicant: MS ULLRICH

Respondent: MR ULLRICH

File Number: HBC 323 of 2012

Judgment of: Judge McGuire

Hearing dates: 13 & 14 June 2013 and 15 August 2013

Date of Last Submission: 30 August 2013

Delivered at: Melbourne

Delivered on: 30 October 2013

REPRESENTATION

Counsel for the Applicant: Mr Turnbull

Solicitors for the Applicant: Ogilvie Jennings

Counsel for the Respondent: Mr Crisp

Solicitors for the Respondent: Blissenden Lawyers

ORDERS

Children:

1. That all extant Orders in respect of the children X (born (omitted) 1998), Y (born (omitted) 1999), Z (born (omitted) 2002), and W (born (omitted) 2006) be discharged.

2. That the applicant wife and the respondent husband have equal shared parental responsibility for the children X, Y, Z and W.

3. That the child X live with the husband and spend time with the wife as agreed between the parties.

4. That the child Y live with the wife and spend time with the husband as agreed between the parties.

5. That the children Z and W live with the wife.

6. That the children Z and W spend time and communicate with the husband as follows:

   (a)In week one of a fortnightly cycle from Friday at the conclusion of school until Sunday at 6.00 pm;

   (b)In week two of a fortnightly cycle from the conclusion of school on Thursday until the start of school on the Friday;

   (c)For one half of each gazetted school term holiday periods as agreed between the parties but failing agreement then for the first half of such holidays.

   (d)In 2014 and in each alternate year thereafter from 1 January until 15 January and in 2015 and in each alternate year thereafter from 15 January until 29 January or otherwise as agreed between the parties in writing;

   (e)At Easter in 2014 and in each alternate year thereafter from the conclusion of school on Easter Thursday until 5.00 pm Easter Sunday and in 2015 and  in each alternate year thereafter from Easter Sunday at 5.00 pm until the return to school;

   (f)In any event, in 2013 and each alternate year thereafter from 4.00 pm Christmas Day until 4.00 pm Boxing day and in 2014 and each alternate year thereafter from 5.00 pm Christmas Eve until 4.00 pm Christmas Day and that the children spend time with the mother at Christmas 2013 and in each alternate year thereafter from 5.00 pm Christmas Eve until 4.00 pm Christmas day and in 2014 and in each alternate year thereafter from Christmas day at 4.00 pm until Boxing Day at 4.00 pm.

   (g)With all four children in 2014 and each alternate year thereafter from 5.00 pm on the eve of each child’s birthday until 3.00 pm on the child’s birthday and in 2015 and each alternate year thereafter from 3.00 pm on the child’s birthday until 3.00 pm the following day but that the children have time with the wife on W’s birthday in 2014 and in each alternate year thereafter from 5.00 pm on the eve of W’s birthday until 3.00 pm on W’s birthday;

   (h)If the children are not otherwise with the husband pursuant to these Orders on Father’s Day Weekend then from 5.00 pm on the Saturday until 5.00 pm on the Sunday;

   (i)If the children are with the husband on the Mother’s Day weekend then the husband’s time shall cease at 5.00 pm on the Saturday;

   (j)In the event that the children are with the wife on the husband’s birthday, from 9.00 am on the day of the birthday (or at the conclusion of school in the event it is a school day) until the following day at 9.00 am or return to school;

   (k)such other times as agreed between the parties from time to time in writing.

7. That time for the children with the husband pursuant to Orders (6)(a) and (b) hereof be suspended during all school holiday periods.

8. That unless otherwise agreed between the parties, all changeovers for the children’s time with the husband which do not occur at school will have the husband collecting the children at the start of such time from the wife’s residence and the wife collecting the children from the husband’s residence at the end of each period of time provided that the husband lives in the greater Hobart area failing which the husband be responsible for both collection and return of the children at the designated times.

9. That each of the parents be and is hereby restrained from denigrating the other parent to or in the presence of any of the children of the parties.

10. That each of the parents be and is hereby restrained from providing or allowing to be provided to any of the children copies of any of the affidavits or reports or other materials on the Court file and/or a copy of the Reasons for Judgment in this matter.

Property:

1. That within sixty (60) days of the date of these Orders, the husband pay to the wife a lump sum of $71,808.

2. That within sixty (60) days of the date of these Orders, the husband do all things and sign all documents so as to transfer his right, title and interest in the following to the wife absolutely:

   (i)The property situated at Property T in Tasmania, comprised in Certificate of Title Volume (omitted) Folio (omitted);

   (ii)The Toyota (model omitted) motor vehicle;

   (iii)The single jet-ski trailer;

   (iv)All personalty and chattels in the possession of or under the control of the wife as at the date of these orders;

   (v)The balance of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders;

   (vi)The balance of any (omitted) policies accounts and investment accounts;

   (vii)The wife’s superannuation policies and entitlements with (omitted) Fund and (omitted) Fund

3. That the wife be solely responsible for and indemnify the husband in respect of the (omitted) Bank mortgage secured by the property at Property T, and make her best endeavours to obtain a release for the husband from his liability under that mortgage within sixty (60) days of the date of these Orders.

4. That contemporaneously with the transfer order in Order 12 hereof, the wife shall do all things and sign all documents so as to as to transfer all her right, title and interest in the following to the husband absolutely:

   (i)The property at Property F in Tasmania registered in the name of the parties and comprised on Certificate of Title Volume (omitted) Folio (omitted);

   (ii)The (omitted) dinghy on trailer with motors and fishing and safety gear in the possession of the husband;

   (iii)The two (2) jet skis in the possession or control of the husband;

   (iv)All personalty and chattels including motor vehicles in the possession or control of the husband as at the date of these Orders and for these purposes the wife shall within twenty-eight (28) days of these orders permit the husband’s sister to enter the property at Property T by pre-appointment so as to collect the husband’s personalty as gathered and packed by the wife and including the following:

   ·CD’s and LP’s;

   ·Trophies;

   ·Clothing;

   ·All personal contents from filing cabinet, certificates and like;

   ·Tools from within the house;

   ·All miscellaneous hand tools of trade;

   ·All air-conditioning equipment save and except that system connected to the house;

   ·All personal bits and pieces from the shed;

   ·Husband’s stored items put in shed;

   ·Electrical tool connections box;

   ·Seven (7) piece dining setting;

   ·(omitted) DVD player;

   ·Mother’s suitcase;

   ·Camera;

   ·Sub-woofer;

   ·Printer;

   ·Drill press and drill bits belong to the husband’s father;

   ·Building materials within and outside the brick shed;

   ·Jet ski Hull and spare parts;

   ·Bench top grinder;

   ·(omitted) wood lathe, lathe tools and chucks;

   ·Train set belonging to X; and

   ·(omitted)

   (v)The balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these Orders; and

   (vi)The husband’s superannuation policies and entitlements with (omitted) Superannuation Fund and (omitted) Superannuation but subject to these Orders.

5. That each party be solely responsible for and indemnify the other in respect of the following liabilities:

   (i)Any and all liabilities attaching to any of the assets retained by that party pursuant to these Orders; and

   (ii)Any and all liabilities incurred by that party since separation in either joint names or in that party’s name alone.

6. That the wife will be solely responsible for the repayment of debts owing to Ms B and shall indemnify the husband in respect of the same.

7. That whenever a splittable payment becomes payable to the husband from his interest in (omitted) Superannuation Fund, the wife will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $35,119.12 and there be a corresponding reduction in the entitlement the husband would have had but for this Order.

8. That having been accorded procedural fairness in relation to the making of this Order, this Order binds the Trustee of the (omitted) Superannuation Fund.

9. The operative time for this order is four working days after the service of this order on the Trustee of (omitted) Superannuation Fund.

10. The husband be restrained from giving the Trustee of the (omitted) Superannuation Fund a Binding Death Benefit Nomination in favour of a child which would have the effect of reducing the value to the wife of the splitting order made above.

11. That the husband’s legal personal representative indemnifies the wife out of the husband’s estate in respect of any loss the wife suffers as a result of the husband failing to comply with the preceding order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

HBC 323 of 2012

MS ULLRICH

Applicant

And

MR ULLRICH

Respondent

REASONS FOR JUDGMENT

Applications

1. These are proceedings for property settlement and as to the parenting arrangements for the two younger children of the parties, being Z born (omitted) 2002 (11 years), and W born (omitted) 2006 (7 years). 

2. The parties have four children, including X born (omitted) 1998 (aged 15 years), and Y born (omitted) 1999 (aged 14 years). 

3. The parties agree that they should have equal shared parental responsibility for all four children.  They agree that X will live primarily with the father and spend time with the mother as agreed between the parties and Y live with the mother, and spend time with the father as agreed.  They also agree that the younger two children spend half of their school holidays with each parent.  The issue therefore is time between the parents for Z and W during school terms.

4. The mother argues for a regime on a fortnightly basis whereby the children spend from 6 pm Friday until 6 pm Sunday in week 1, and from after school Thursday until the commencement of school Friday in week 2 with the father being a total of three nights per fortnight.  The father’s preference is for a shared care regime whereby the children spend six nights per fortnight with him as follows:

   a)Week 1 – from after school Thursday until commencement of school on Monday (or 5 pm if not a school day);

   b)Week 2 – from after school on Wednesday until return to school on Friday.

5. As a fall‑back that is certainly not his preferred model, the father would accept a reduction on his proposal to five nights per fortnight with week 1 to commence on the Friday after school.  The rationale for this seems to be the agreed fact of which I was made privy that the wife put a proposal to the husband in these terms in February 2012.

6. The parties also agree much of the distribution of their assets.  They agree on a superannuation split.  Leaving aside some relatively minor skirmishes, the essence of the dispute in respect of financial matters is that the wife wants 65 per cent of the net tangible property.  The husband argues for fifty‑fifty division.

Background

1. The husband is 51 years of age.  The wife is 41 years old. 

2. They commenced cohabitation in 1994, and married on (omitted) 1997.  Separation occurred in 2011.  The wife says the relevant date is 21 May.  The husband says 19 July was the date of separation when he was excluded from the former matrimonial home.  Little turns on this small disagreement, except to say that there was an incident between the parties in May of that year which was significant in the demise of the marriage.

3. The wife has re‑partnered with a Mr B.  There is no evidence that the husband has re‑partnered. 

4. A police family violence order was made on 2 November 2011 against the husband.  An interim family violence order was taken out by the wife against the husband on 6 December 2011.

5. The wife continues to live in the former matrimonial home.  The husband now lives with his sister in suburban Hobart.  He moved there during the course of the trial having previously lived at Property F being approximately 90 minutes drive from Hobart.

6. The husband is an (occupation omitted) working for a commercial firm known as (omitted).  The wife works part‑time as a (occupation omitted). 

Children’s Issues

1. The essence of the wife’s argument against a shared care arrangement is her claim that the husband inappropriately involves the children in the parties’ disputes.  She says that he denigrates her to the children.  She says that he lacks capacity to attend to and insight into the children’s needs.  She says that the children lack routine, order and supervision in the husband’s household.  The wife emphasises the history of family violence perpetrated by the husband against her as a further reason for the younger two children to live with her.

2. The husband argues that the children will benefit by having a shared care arrangement between their parents.  He generally disputes the wife’s arguments as to a lack of routine, supervision and capacity.  He refers to the wife’s concession that he is apparently able to care for the children during block periods in school holidays, and says that he can also do so during school terms.  He says that his proposal gives the children a better relationship with X, who lives with him.  He also accuses the wife of involving the children in the adult dispute.  He says that whilst there may have been family violence between the adults within the broad definition in the Family Law Act 1975 (“the Act”), both parties are culpable in this regard and that no violence has been perpetrated directly on the children. 

3. Mr Ullrich says that the wife has previously made an open proposal for a shared care arrangement on a nine night/five night regime, and I am asked to infer, therefore, that her current application is motivated perhaps by self‑interest rather than objectively in the best interests of the two youngest children.

The Evidence

1. The applicant wife relied on her trial affidavit filed 6 May 2013 and her financial statement filed 7 June 2013. 

2. The wife adduced evidence from her mother, Ms B, whose affidavit was filed 11 June 2013.  Ms B was not required for cross‑examination.  Her evidence was limited to financial matters and, in particular, that she loaned the wife $1356.92 in November 2011 by way of payment of car and home insurance for the wife.  Ms B says that she requires repayment.  She says she also made a further interest‑free loan to the wife of $2000 to assist with mortgage instalment payments on 21 November 2012.  She says that she has otherwise generally assisted the wife.

3. The husband relied on his trial affidavit and financial statement both filed 7 June 2013. 

4. Both parties were represented by Counsel at the trial and the presentation of the cases and the cross‑examination was proper, relevant, intrusive and of real assistance to the Court in its determination.

The Family Report

1. The Court also had the benefit of a Family Report from family consultant, Ms M, prepared on what she says was a “preliminary assessment” and dated 28 September 2012.  Ms M did not recommend a further comprehensive Family Report.  Ms M was cross‑examined. 

2. Ms M interviewed the parties and all four children.  She readily observed X’s alignment to the father, and Y’s to the mother.  In this respect, X was noted[1]:

   About visiting his mother X said, “Mum’s with the other dude, I don’t like him, he is 60 (years old).”  X said that is does not seem right that his mother has a relationship with a ‘random person’ to him.  X said that if his mother’s partner did not stay the night he might stay overnight with his mother.  X was not sure if he would visit his mother for the day if her new partner were to be present.

   [1] Family Report – Page 3

3. Ms M observed Y to be anxious but confident in his statements to her.  His preferences were noted[2]:

   Y said, “I’d like it how it is; pretty sure Dad wants us to visit more.”  Y followed on to say that he wants the choice not to visit his father if he has lots of homework, or if he would just prefer to stay with his mother.

   Y outlined that there are fewer distractions at his mother’s home and that he feels more comfortable there.  Y reported that it is pretty cold at his father’s house and that he “makes the others (meaning Z and W) tell him stuff about Mum’s”.  Y stated that his father does not quiz him for information because “he knows I’m not silly, I’d say ‘never you mind’.”

   [2] Family Report – Page 3

4. Z was 10 years old at the time of the interview.  He initially proffered to Ms M that he would prefer a regime of Wednesday and Thursday in one week and every alternate weekend with his father because “Mum’s got us more now”.  He then stated that he would prefer a relationship in the same terms that Y has with his father. 

5. W was just six years old at the interview and it does not appear to have been an intrusive one due to her young age.

6. In his interview, Mr Ullrich claimed that he encourages X’s relationship with his mother.  He reported that Ms Ullrich made false allegations of domestic violence so as to obtain a police family violence order, and confirmed that X had prepared an affidavit in those proceedings.  He said that he believed the younger children wanted to spend more time with him and would benefit from doing so.

7. Mr Ullrich maintained that he had not made negative comments about the wife, “at least for a long time”.  To the contrary, he claimed that the children had been “brainwashed” to make false allegations that he denigrates the wife.

8. In her interview, the wife made allegations of family violence, including harassment, intimidation and threats at the hands of the husband prior to separation, during the period that they were separated under the one roof, and continuing post‑separation.

9. Ms M concluded that[3]:

   Over time X’s identification with his father’s negative thoughts and feelings about his mother seem to have impacted negatively on his emotional wellbeing, as well as on his relationship with his mother, as indicated by the deterioration in important areas, such as his school attendance … Mr Ullrich is placing X in a psychologically conflicted position of both acting as “agent” against his mother and telling him that he should visit her.

   [3] FamilyReport – Page 7

1. In her report of September 2012 Ms M recommended counselling from a psychologist, Mr W or similar, for X.

2. Ms M concluded that Ms Ullrich had also involved Y in negative conversations about the husband but that Y was able to rationalise his own conclusions.  Ms M appears to differentiate between the parents by concluding[4]:

   Ms Ullrich seems to deter Y from taking an active role in supporting her in relation to her dispute with Mr Ullrich, rather than encouraging this behaviour.  Of greatest significance indicating that Y’s alignment with his mother is not emotional (sic) harmful, is Y’s ability to continue to have a relationship with his father despite the difficulties between his parents.

   Mr Ullrich appears to be misguided in his belief that he does not expose the children to his negativity about their mother.

   [4] Family Report – Page 8

3. In her report Ms M concluded that the then existing arrangements of X living with the father, Y and the younger two children living with the mother, and with Z and W spending time with the father each second weekend and one night in the off‑week was appropriate.

4. In her cross‑examination Ms M emphasised the importance for the children in being free from parental conflict.  She expressed some disquiet as to the standard of the father’s accommodation in that the children do not have their own rooms, and saw the mother as being able to provide better for the children in a more ordered and structured environment.  She noted from her report Y’s comments that he felt unable to do his homework at his father’s then home.

5. Ms M was referred to her suggestion for counselling for X and confirmed that she was told that the father had already made inquiries in this regard at the time of the interviews. 

6. The mother’s open proposal from February 2012 of a nine night/five night fortnightly arrangement was put to Ms M.  She responded, “I would think such a proposal is misguided”.

7. Ms M was cross‑examined as to the alleged lack of routine and lack of capacity of the father.  It was put to her that there was no evidence of the younger children having missed school and that X’s change of school from (omitted) College to (omitted) High School had rectified this situation.  She saw this as an indication that X was now adapting better to his parents’ separation.  Whereupon it was put to her that the difficulties she observed at interview with the children may be related simply to them coming to terms with the fact of separation rather than the mother’s allegations against the father.  Ms M rejected this suggestion, saying that “you cannot conclude that all is okay with the children just because there are no problems at school”.

The Law – Children

1. Part VII of the Act gives the Courts jurisdiction in children’s matters and provides at s. 60CA that a court must regard the best interests of the children as the paramount consideration in determining parenting orders.

2. The framework and rationale of the legislation in the sense of its objects and principles are set out at s.60B of the Act as follows:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;  and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential;  and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child‘s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;  and

   (d)parents should agree about the future parenting of their children;  and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. The Act at s.61DA provides a rebuttable presumption that parents have “equal shared parental responsibility” for their children, meaning all the duties, powers, responsibility and authority which, by law, parents have in relation to children[5].  For practical purposes, such responsibilities may manifest in decisions in respect of children’s education, medical procedures, religion and the like.

   [5] Section 61B of the Act

4. The presumption does not apply if there are reasonable grounds for a Court to believe that a parent has engaged in abuse of a child or in family violence within the broad definition now provided in the Act[6] .  Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the child’s best interests for the parents to exercise equal shared parental responsibility[7].  If the presumption applies, is not rebutted, or I determine, in any event, that the children’s best interests are served by an order for equal shared parental responsibility then I must follow a statutory and intellectual course of consideration as to their optional living arrangements.

   [6] Section 61DA(2) of the Act

   [7] Section 61DA(4) of the Act

5. Firstly I must determine whether an order for the children to spend equal time living between their parents is both in their best interests and reasonably practicable.  If the answer to either of these questions is in the negative then the Court moves to consider whether the children spending “substantial and significant time” with each of the parents is both in their best interests and reasonably practicable.

6. “Substantial and significant time” is defined in the Act[8] as:

   [8] Section 65DAA(3)

   Achildwill be taken to spend substantial and significant timewith 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.

7. “Reasonably practicable” is defined broadly in the Act[9] 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.

   [9] Section 65DAA(5)

8. Strictly in accordance with the definition, the proposals of each of the parties are in line with “substantial and significant time”.  Obviously, however, the husband’s proposal involves more weekday time for the two younger children with him.

9. At this early stage, and on the evidence of both parties, I have little difficulty in determining that there has been family violence in this relationship, and hence the presumption of equal shared parental responsibility does not apply.  I note that each of the parties still urges me to make such an order and it is available for me to do so if I determine that course proper having regard to the children’s best interests. 

10. In this respect I note the evidence that the parties “have not spoken” for some two years.  I note the general air of animosity that prevailed during the hearing.  I note the mutual allegations that each makes against the other of involving the children in adult disputes and in denigration.  Nevertheless it seems that the parties’ agreement, or perhaps not manifested disagreement, in respect of important issues, and notably X’s change of school from (omitted) College to (omitted) High School gives me confidence that these two parents are able to put aside their own bitter personal animosities when necessary to make important decisions for their children. The evidence suggests that prior to their separation these two parties were capable and child focussed parents. The separation has overwhelmed each of them to a large degree. Nevertheless, a lack of a current ability or willingness to communicate would not ordinarily, in my view, justify the removal of a right and obligation of parental responsibility. I respectfully adopt the comments of Murphy J in Lennon and Lennon[10]:

    The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person. There is no doubt that the exercise of that discretion ought to be resolved in favour of an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration, nor that the legitimate fundamental rights of a parent are irrelevant

    [10] [2011] fam CA 571

1. However, it remains for these parents to acknowledge and understand that their children’s best interests demand a greater effort by each parent to separate their own residual difficulties from the objective responsibilities of parenthood.

2. Consequently, I must determine the children’s best interests, both in respect of parental responsibility and for their living arrangements. These best interests are my paramount consideration. In reaching my conclusions I am obliged to reference the statutory considerations set out in s.60CC(2) and (3) of the Act in respect of the proposals of the parties and the probative evidence before me. Those considerations are divided into “primary” and “additional” factors. There is generally no hierarchy of importance within that list, save that recent amendments to the Act at s.60CC(2A) oblige me to place greater weight on any issues and findings of family violence.

3. The two primary considerations are:

   a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and

   b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

4. There are then numerous additional considerations to be addressed, including:

   ·The views of the children as to their living arrangements and the maturity and rationale of such views;

   ·     The nature of the relationship of the children with each of the parents or any important persons in their lives;

   ·     The capacity of the parents to attend to the children’s needs, be they physical, emotional or moral needs;

   ·     The effect on the children of any changes in their circumstances;

   ·     The attitude of the parents towards the responsibilities of parenthood, including their historical acceptance and discharge of those responsibilities;

   ·     Any issues of family violence, including the making family violence orders;

   ·     The making of orders which will hopefully alleviate the likelihood further proceedings between the parents.

Section 60CC Factors

Section 60CC(2)(a) – The benefit to the children of having a meaningful relationship with both of the children’s parents.

1. The Act itself does not define the term “meaningful relationship”.  Brown J in Mazorski v Albright[11] likened the notion to “significant”, “important”, “of consequence” and “valuable to the child”.  The Full Court in McCall v Clark[12] agreed with Her Honour that this is a qualitative rather than quantitative term.  That is, the strength and benefit of the relationship between children and parents is not, and should not, be defined simply by days and hours but by the quality of the relationship.

   [11] [2007] FamCA 520 at [2006]

   [12] [2009] FamCAFC 92

2. Secondly, it is clear that the enquiry is a “prospective one”[13].  That is, the Court is concerned as to relationships between children and parents into the future whilst obviously needing to look at the current state of such relationships when making a determination.

   [13] G v C [2006] FamCA 994 and McCall v Clarke (Supra)

3. The evidence suggests that the relationships between these children and their parents are variously dysfunctional and certainly not what would generally be called “meaningful” or “successful”.  I am satisfied that each of the parents has improperly and dangerously involved these children in their personal dispute.  The children have been used as messengers.  They have been allowed to become aligned to one or other of the parents.

4. Examples include the father condoning and assisting, which I find, despite his explanations in Court, X preparing an affidavit in the mother’s State Court intervention proceedings.  Similarly, Y has photographed the father and/or X attending the mother’s home to collect property.  Both boys readily conveyed to Ms M the particulars of their favoured parent’s views against the other.  The father has made grossly inappropriate comments to the children such “I’ve lost a son” to Y, and that he would “sell the house” to W.  Z was observed by Ms M to be very concerned that his father “would go off at him” about his statements to the Family Reporter. I am satisfied that all four children have been embroiled in their parents’ disputes. They have been used as messengers. They have been subjected to denigrating comments about each parent. The parents are both culpable in these matters.

5. The problems here lay with the parents but manifest in the demeanour of the children, and particularly with the older two boys.  X’s relationship with his mother is minimal in all respects.  Y’s relationship with his father appears to be irregular and one where the child is reluctant and hesitant.  It beholds these parents, therefore, to reassess their priorities.  They must immediately desist from using the children as the conduit of their own bitterness.  There is little that any Orders of this Court can do to assist a resurrection of meaningful relationships between the children and their parents unless the parents gain the requisite insight.  The real fear here is not just of a lack of meaningful relationship but of the potential emotional and psychological damage to these four children as they travel though childhood and adolescence and enter adulthood.

6. As such, I reject and find surprising the submission on behalf of the father in his case outline[14] as follows:

   The father’s proposal is in the best interests of the children Z and W as it enables him to have a meaningful relationship with them, he does not and it cannot be that he can have a meaningful relationship with them if confined with the three nights in 14 as proposed by their mother.

   [14] Page 10

7. Such a statement is contrary to the observations of the Full Court in McCall v Clark (supra). It suggests that the father equates a meaningful relationship with quantity of time and generally displays a lack of insight into the nature of relationships between children and parents such that are often both delicate and complex.  It can be understood to be a concession from Mr Ullrich that he does not believe that he currently has any meaningful relationship with Z & W given the time they now spend together although the evidence, including that of the Family Reporter, suggests otherwise and that these two young children do in fact have a meaningful and beneficial relationship with their father.

8. Z and W at least have the benefit of spending regular and frequent time with each parent. If, however, past behaviour is a best indication of future behaviour then the danger is that these youngest two children will be pressured to align with one or other of their parents in much the same way as their older brothers with the consequent effect on their relationships with both parents. In this respect each of these parents is on notice.

Section 60CC(2)(b) – The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, common neglect or family violence.

1. I have made it clear above that I am satisfied that these children have been embroiled in their parents’ dispute.  The results for X and Y is already manifested in their unsatisfactory relationship with one of their parents for each of them.  The use of children as sounding boards for personal bitterness fits easily into any definition of abuse.  The encouragement or tacit condoning of alignments likewise constitutes abuse.  I am not persuaded by the husband’s alleged ignorance of X’s involvement in preparing an affidavit for the intervention order proceedings.  He was fully aware of X’s intentions. He assisted him in having the document executed. Mr Ullrich (in my view with some reluctance) admitted in cross‑examination that he had made inappropriate comments to the youngest child, W, in the terms reported in the Family Report[15] by Ms M as:

   About her parents not getting along well, W said her mother broke her hand and then could not explain how.  She reported that “Dad says things about Mum … breaking her arms … he used to say it all the time … Dad says he’s going to sell the house.”

   [15] Family Report – Page 5

2. Mr Ullrich’s claims in the witness box that he now understood and regretted his previous behaviour were unconvincing.  I had the opportunity to view and listen to him during cross‑examination.  His demeanour was concerning.  I considered much of his evidence to be calculating, selective and generally unconvincing.  Any admissions against interest were made only with great reluctance.  He was, in my view, prepared to make responses that he thought might assist his case but which were no more than unsubstantiated comments.  A prime example was when he volunteered during his evidence that his job was in jeopardy – an assertion that does not appear to have eventuated into fact and one which was not supported by any evidence or corroboration or even satisfactory explanation.  Similarly, his claims of encouraging X and the young children in their relationships with their mother is simply against the weight of the evidence.  From my observations he remains extremely bitter towards his ex‑wife.  I am satisfied that even during these proceedings he has kept X informed of the evidence, notably resulting in X making a call or text to his mother in the early hours of the morning criticising her for what she had said in her evidence in Court.  Again the husband’s explanation of innocence on his part was unconvincing.

3. The mother’s affidavit alludes to physical violence in the marriage and including sexual assault and other demeaning incidents.

4. In his trial affidavit at paragraph 13 the husband says:

   Until early in 2011 our marriage had been a happy one, we lived active lives, with each other and our children.  We both worked and parented more or less equally.  All that changed in early 2011, Ms Ullrich told me she no longer loved me, we began to argue, I wanted to go to counselling but Ms Ullrich said she would not.  In mid‑May 2011 there was a physical altercation between us, we had been out, we had been drinking and were intoxicated, I made sexual advances towards her, she hit out at me and I pushed her down on the bed.

1. There is little difference in the wife’s account of this incident. Nevertheless, the veracity of some of the wife’s allegations are tempered by her concession that she was often affected by alcohol at the times of these alleged incidents.  Indeed, it seems clear that the husband himself suffered a facial injury during one of his attempts to engage in intimacy with the wife.

2. Generally, I am satisfied that there was an air of family violence within this household in the latter stages of the marriage.  I am satisfied on the evidence that the husband was at the very least overly aggressive in his advances to the wife which were clearly unwanted.  I am satisfied that these situations were exacerbated by the use of alcohol by both parties.  I am also satisfied that the children were at times exposed to these unfortunate occurrences.  After hearing both parties give their evidence, I am satisfied that each of them tends to underplay their own roles but whilst emphasising those of the other party.

3. Save that there has been exposure to the children to this family violence, I am satisfied that there has been no direct physical violence perpetrated on the children outside of my comments as to emotional abuse.

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

1. The views of X and Y as to their living arrangements are clear and have been acted upon by the parties.  I am not entirely satisfied, however, that these views are rational or soundly based or, indeed, in their best interests.  Rather, they have become aligned each to one parent.  Their relationships with the other parent are problematical in the extreme.  Such is the danger perhaps with simply acceding to the views and preferences of the children whether or not they be teenagers!  In summary, the exposure and involvement of these boys in their parents’ marital breakdown has not permitted them to either make informed decisions or to enjoy beneficial relationships with both their parents.

2. The younger two children are also the victims of this parental dispute.  Fortunately, they have not yet manifested any alignment but such would be almost inevitable unless the parents rapidly become aware of and cease their damaging self‑interested involvement of these children.  As such, I place little or no weight on the views of Z and W as to their preferred living arrangements such as those views might be.

Section 60CC(3)(b) – The nature of the relationship of the children with each of the parents or any other person.

1. This consideration has been dealt with above.  The nature of the older children’s relationships is fractured and dysfunctional.  These children have not been allowed to maintain and develop their relationships with both their parents.  They have effectively been asked to choose between parents and take sides.  These are not therefore proper, desirable, or beneficial parent‑children relationships.  The effect on the younger children remains to be seen, although the manifest effects on X and Y might be a good indication.  Already these young children are fed information by one parent about the other.  On occasions direct threats of violence are indicated as for example the husband’s threatening statements made to the six year old W. On the evidence before me and having had the benefit of seeing the parties give their evidence, I am satisfied that the husband has been actually and more consistently culpable in this regard than the wife and this accords with the opinions and observations of Ms M as to the different relationship between X and his mother as opposed to that of Y and his father.

Section 60CC(3)(c) – The extent to which each of the children’s parents has taken, or failed to take, the opportunity: 

(i)  to participate in making decisions about major long‑term issues in relation to the children; 

(ii) to spend time with the children; 

(iii) to communicate with the children; 

(ca) the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain the children.

1. On the evidence before me I am satisfied that each of the parents has been lacking to a degree in respect of this consideration.  The wife seems almost resigned to leaving X to his own devices and within the father’s home.  She has, of course, been met with rejection when she has endeavoured to spend time with X and X has been the conduit of his father’s denigration and criticism.  Similarly, the husband does not seem to actively pursue any more regular relationship with Y.  Whilst it is not perhaps fair to say that each parent has abandoned or rejected one of their children, they appear to have simply accepted the alignments taken by each of X and Y.  I expect that they have done so without considering the ongoing relationship between these two brothers.  I note, however, that Y does appear to spend very occasional time with his father albeit on an irregular basis whilst there is simply virtually no direct contact between X and his mother.  The two youngest children continue a routine of spending each second weekend and one night in the off week with their father.

2. The husband, to his credit, has visited the younger children at their schools on some Tuesdays.  Not surprisingly, he was subjected to criticism at the trial for doing so.  I find such criticism unjustified.  He says that he encourages X to spend time with the wife, although he appears to lack the insight into the effect on X of his own behaviour and his denigration of the wife. There is little or no corroborative evidence of his claimed positive encouragement while there is an abundance of evidence of his denigration of the wife and of his manipulation of these children.  As such, any “encouragement” is lip-service only.  Alternatively, if he has tried but not been able to maintain a relationship between X and the mother then this is a statement as to Mr Ullrich’s poor parenting skills generally.

3. The wife says that she has facilitated Skype communication between the children and their father.  She says in her affidavit that she has encouraged Z and W to spend time with their father despite their reluctance and the mother’s own reservations. Although the younger children do see their father regularly, I make similar comments in respect of the wife. I have little doubt that all four children are very much aware of her views, subjectively justified or not, of the husband. I expect both parents simply pay lip-service to their responsibility to encourage these children to have beneficial relationships with the other parent.  The evidence is however that Y has maintained some relationship with his father and the difficulties are often of a practical basis as opposed to X who seems to have become very much enmeshed in his father’s bitterness towards his mother and rejected her accordingly.

4. The father pays child support as assessed. 

Section 60CC(3)(d) – The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents or any other children, or other person (including any grandparent or other relative of the children) with whom he or she has been living.

1. The difficulties for X and Y are now well documented and apparently entrenched.  The Orders that each of the parties seeks for Z and W would maintain an ongoing relationship for them with each parent.  The current regime has the two younger children living primarily with the mother.  Any change as proposed by the father would effectively give them two home bases.

2. To my mind, such a change would generally require the parents being able to cooperatively establish similar routines within the two households and generally a consistent parenting model.  Each parent would need to address the education requirements for the children and there would need to be a degree of civil communication, cooperation and respect between the parents to allow the children to deal with such a change.

3. The notion of “parallel parenting” was raised during the trial, and perhaps on the general observation and mutual concessions that these parents do not currently communicate well or at all.  Even a change to parallel parenting would need a monumental improvement in the attitudes of these parents as, at the moment, their inclination is to criticise the other parent and the parenting capacity of the other, as well as to involve the children in those criticisms.  Parallel parenting is the implementation of two regimes running parallel.  The concept itself creates a routine.  Neither regime is understood to be superior to the other.  Nevertheless, the requirements of co-operation and respect remain very much integral parts of parallel parenting.  Criticism of one parent by the other is as destructive of the parallel-parenting model as it is of co-operative parenting. 

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

1. At the beginning of the trial the husband proposed that he would have the children live with him at Property F.  This would, involve considerable and relatively onerous travel to and from school on each day. The travel time is about 90 minutes each way.  This issue was not so relevant for weekend time.  When the matter came before me on the third day of the trial and after an adjournment, the husband announced that he was living in suburban Hobart with his sister and her partner.  X was still living with him and Mr Ullrich’s evidence was that Y had “been coming more frequently; twice per month”. The home has three bedrooms.  X has his room with a double bed and bunks.  The husband has a room with a double bed and a single bed and W and Z stay in his room with him.  The husband says he has taken over the lease of that property from his sister, although she is still a resident. She occupies the third bedroom.  He did not elaborate on why this occurred.  In cross‑examination the husband volunteered that he continues to spend most weekends at Property F.

2. Although not stated explicitly, the only inference I can draw is that the husband has now recognised that there would be a problem for the children travelling on a number of days per week to and from school from Property F on his original proposal although he did not concede this to be a problem for the children when he first gave his evidence.  It was put in cross‑examination to the husband that his new arrangement was not sustainable on a long‑term basis whereby, for example, he was sharing a bed with W and that the bedroom was also occupied by Z.  He disagreed.

3. Further in cross‑examination the husband volunteered “I’m there until everything is sorted out”, and that he pays the rent of $350 whilst the sister pays the outgoings.  The practical reality of the husband’s most recent proposal in the long‑term is, of course, a consideration for the Court but even in his own words there appears to be some uncertainty as to the longevity of the arrangement. 

Section 60CC(3)(f) – The capacity of each of the children’s parents, and any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs.

1. The wife is critical of the husband’s capacity to care for the children, and especially during school weeks.  She says that there is no routine in his household.  She says that he does not attend to the children’s hygiene; there are no set meal times; and that the children are not provided with healthy food.  She says that the children are allowed to watch inappropriate movies and/or video games. 

2. The wife argues that the husband’s current and most recent accommodation does not address her concerns as to his capacity.  The wife says that she was at all times the primary parent of the children and the tenor of her evidence at times was that the husband, during the marriage, pursued his own extracurricular activities rather than prioritising the children.

3. After hearing the parties in cross‑examination, I find that the wife has been selective in her evidence and/or has embellished it when it suited her.  She has herself allowed the children to play inappropriate video games.  She conceded, albeit reluctantly, that the husband during the marriage was involved with the children.  He attended their sporting activities.  He worked hard to establish a family beach house at Property F for the family, and that they enjoyed activities together. I find her historical criticisms to be unjustified and contrary to the facts.

4. The husband conceded in cross‑examination that the mother was an adequate parent, although he was certainly not enthusiastic in his response.

5. Clearly the capacity of both of these parents is compromised by their lack of insight in involving the children in their own dispute.  I am satisfied that during the marriage there was a traditional delegation of roles and that this family enjoyed a family lifestyle and activities together.  It is clear that there was a traditional separation of tasks, with the husband being the breadwinner and being absent working on the family shack but with the agreement of the wife.

6. There are a number of criticisms of the husband as to his day‑to‑day care of the children.  They are relayed to the wife variously by the children and must be seen within this context and where alignments and loyalties assume real importance.  Nevertheless, it is incumbent upon the father to ensure that the children are properly cared for and accommodated whenever they are in his care.

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

1. This consideration is not relevant to my determination.

Section 60CC(3)(h) – Whether the children are Aboriginal or Torres Strait Islander.

1. This consideration is not relevant to my determination.

Section 60CC(3)(i) – The attitude to the children, and the responsibilities of parenthood, demonstrated by each of the children’s parents.

1. Each of these parents comes to Court claiming to prioritise their children’s best interests. The evidence and my observations of each of them in the witness box suggests otherwise.  They are each still dealing with the demise of their marriage and this is their priority.  Their parenting is compromised by their involvement of the children in their own disputes.  Their attitudes to parenting generally are to criticise the other parent and the result for their children is there for all to see.  Each seems oblivious to the potential damage to their children. The evidence of each parent was almost entirely negative in respect of the other. Some of the mutual criticism is, of course, justified. Any positive concessions were gained only with the greatest of reluctance.

Section 60CC(3)(j) – Issues of family violence and family violence orders.

1. The wife has an ongoing family violence order against the husband.  I am satisfied that issues of family violence permeated this marriage, and particularly near its end.  I am also satisfied on the evidence that some of the inappropriate comments made to the children by the father have involved threats to the mother or her partner.  The husband conceded as much in his cross‑examination whilst also acknowledging and conceding that such comments were inappropriate.

Section 60CC(3)(l) – Whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to the children.

1. Courts attempt to provide a form of finality and “moving on” for both parents and children when making parenting orders.  As such, there is a requirement that there be a significant or material change in circumstances before there can be further litigation (Rice v Asplund)[16].  However, it beholds parents, in matters such as the one now before me, to understand that children can and should generally be able to maintain successful and beneficial relationships with both parents despite a marriage breakdown. This will only be achieved when parents are able to gain the requisite insight into children’s emotional needs and their need to maintain and enjoy those relationships.  Litigation over children per se is usually destructive, at least to a degree, and ongoing argument should be avoided.  It is for these parents to reach a level where they can cooperatively and respectfully parent their children despite the marriage breakdown.  They must understand that the orders that courts make are an attempt to give them a platform to work from and to avoid further litigation.

   [16] [1979] FLC 90 - 725

Discussion and Conclusion

1. The matter now before me is an unfortunate and sad one.  The four children of this marriage have been grossly and obviously affected by the breakdown of their parents’ marriage but predominantly by the actions of their parents following separation.  All four children have been brought into and directly involved in the adult bitterness and conflict.  Alignments have been encouraged and perpetuated.  Relationships between child and parent have, for all practical purposes, broken down.  Any orders that I make will have little effect on assisting meaningful relationships to flourish unless the parents themselves show a dramatic improvement in their own attitudes and priorities towards their children. The older two boys have unfortunately felt that they have had to make a choice between their parents. They have done so and to their detriment. The parents seem oblivious to the results and to the danger of losing Z and W into the same mire.

2. I am satisfied that the demise of this marriage was characterised by family violence and that abusive behaviour, within its broad definitions, has continued post‑separation.  However, I am satisfied that prior to separation these four children enjoyed beneficial relationships with both their parents.  The breakdown of the marriage has had a more pronounced and enduring effect on the husband. He was the aggrieved party. My observations are that he was yet to come to terms with the fact.  He presented in the witness box as bitter and angry such feelings seemingly entrenched.  I am satisfied that his anger and bitterness has and continues to be conveyed to and placed on the shoulders of the children. The wife was the instigator of the separation. She has been more able to “move on” although she also has been guilty of involving the children. I find however, that she has a greater insight and objectivity than the husband and is now less prone to involving the children. I am satisfied that she has and will continue to encourage the relationships between the husband and the two younger children.

3. I place little or no weight on the views and preferences of the children within such a caustic environment post‑separation and generally deplore the licences given to X and Y to make choices between their parents.  The results for these two boys remain to be seen in respect of whether they can establish or resurrect relationships with their parents and also the effects on them emotionally as they move to adulthood and attempt to establish and maintain their own personal and social relationships.

4. The wife proposes a more traditional regime of she being the primary parent of the younger two children and them spending each second weekend with their father punctuated by one overnight in the other week.  The father’s proposal, in accordance with the 2006 amendments to the  Act, is one for shared care.  He suggests that “parallel parenting” is a way to achieve his preferred regime of eight nights per fortnight with the mother and six with him.

1. I have little difficulty in finding that the desirable traits of communication, cooperation and respect are missing in these adults.  They have not communicated for two years.  They do not respect each other as parents.  Each is quick to criticise the other.  After hearing both parents in the witness box, I am satisfied that the husband’s attitude in this regard is more entrenched.  He has not shown any inclination to encourage the children’s relationship with their mother.  His bitterness towards her was palpable from the witness box.  I find that X’s almost non-existent relationship with his mother comes predominantly from his father’s inappropriate manipulation of this boy.  I am satisfied that the husband’s behaviour has continued unabated even during this trial where, for example, the husband has told X of the wife’s evidence in Court and probably in a selective and self-interested fashion.  The conveying of threats to the mother or her partner through W is inexcusable.  His statement to Y to the effect that “he is no longer his son” is self-centred and ignorant of his son’s emotional needs. My impressions of Mr Ullrich are of someone who was a good and proud parent but who has become so overwhelmed by his sense of loss from the marriage breakdown that he is blind to the destruction he is causing his children and their relationships.

2. As such, I cannot be confident that a shared care arrangement or even “parallel parenting” would succeed or would be in the children’s best interests.  I accept and adopt Ms M’s responses in this regard. Parallel parenting might involve the parents parenting individually. There must however still be some consistency and routine. It is not enough simply to say that we don’t communicate and can’t co-operate, so we will “parallel-parent”. To do so would be to ignore the needs and best interests of children. The absence of denigration and manipulation, for example, is just as important an aspect of parallel parenting as it is of co-operative parenting. Again, the idea that quantity of time is somehow definitive of a successful relationship per se very much misses the point.

3. Ironically and sadly, the evidence suggests that this was once a functional and loving family with traditional roles and values. There is no evidence of any of the four children suffering any anxieties or troubled relationships prior to their parents’ separation. Whilst any marriage breakdown will inevitably bring traumas and adjustment difficulties, the breakdown of this marriage has brought dysfunction and destruction. Relationships have been lost and perhaps irretrievably destroyed. Children have been enlisted as supporters and used as messengers of menace and vitriol. The innocence of childhood has been lost to destructive alignments and naïve, misplaced loyalties. The mutual support that siblings glean as a unit in dealing with their parents’ marriage breakdown has been fractured.

4. I am satisfied that Z and W need stability, routine and consistency within their home lives and to give them the best opportunities in their schooling, where I expect they achieve some respite from involvement in their parents’ disputes.  They need to be quarantined from exposure to these disputes and certainly not be the messengers of each parent’s opinion of the other.  They are still young children.  They need the opportunity to develop their relationships with both parents independently and without the negative influences and manipulation that has befallen their older brothers.

5. I have concerns as to the father’s capacity to attend to the children’s day-to-day needs.  I am not satisfied that his current accommodation best serves those needs.  It may be adequate for weekends (although he appears to regularly still travel to Property F on weekends) but is not suitable for school days.  The children do not have their own space.  The two younger children are expected to share a room with their father.  From hearing the husband give evidence and the timing of his change in accommodation I suspect the move from Property F was simply a “knee jerk” reaction by him to initial criticism put to him in cross-examination, albeit a not well thought through one. 

6. The mother has been the primary carer of these two young children both prior to and post‑separation.  They will be well able to continue a relationship with their father on the mother’s proposal, including shared school holidays.  I reject the father’s submission that the quantity of time spent with the children is the essence of them having a meaningful relationship with him. The mother has stable accommodation.  The father concedes her ability to care for the children on a day-to-day basis.  They remain in the former matrimonial home.  I accept Ms M’s evidence that the father’s proposal would serve only to give him a greater opportunity to undermine the mother and her parenting in the eyes of the still young and vulnerable Z and W.

7. I am satisfied that the children’s best interests are served by there being orders in accordance with the wife’s proposal save that the father should be able to pick the children up from school on each second Friday rather than at 6.00 pm as proposed by the mother.  I also prefer the father’s proposal as to time at Easter in that it may allow further and equitable block periods for the children with him dependent upon when school returns.

Property – Relevant Law

1. It was generally accepted until recently that there was a well‑established multi-step process of consideration for the courts in arriving at just and equitable orders for alteration of property interests between parties to a marriage. That process involved firstly determining the pool of property including assets, liabilities and financial resources, with superannuation entitlements to be “treated as property” for these purposes. The Court was to attribute value to the property pool. Secondly, the Court was to identify and attribute weight to the various contributions of the parties to that property pool, including financial, non‑financial, direct and indirect contributions, and including those as homemaker and parent. After making a determination, usually but not necessarily on a percentage basis, on contributions, the court was to address the relevant matters under s.79(4)(d)-(g) of the Act including those matters under s.75(2). The court would then make any further appropriate adjustment accordingly. Finally, and arguably, there was a “fourth step” where, pursuant to s.79(2) of the Act, the court was to consider whether the proposed orders are just and equitable. It was the Orders themselves that must be just and equitable, not simply the percentage distributions.

2. However, following the recent High Court decision in Stanford v Stanford[17] and another by the Full Court of the Family Court in Bevan v Bevan[18], it is clear that a trial judge should not religiously follow such a staged‑process. Rather, the Court should determine at an early stage, pursuant to s.79(2), whether it is just and equitable to make any orders at all altering the parties’ current legal and equitable interests in their property. The Full Court in Bevan v Bevan suggests that this is not any new or profound development in the relevant jurisprudence and it has always been for the Court to consider throughout its process whether or not it is just and equitable to make any orders.

   [17] [2012] HCA 52

   [18] [2013] FAMCAFC 116

3. Importantly, the High Court and the Full Court of the Family Court agree that a consideration of whether it be just and equitable to make orders is not simply to be conducted on a strictly staged consideration of contributions and s.75(2) factors, and therefore to conflate the requirements of s.79(2) with s.79(4) of the Act could lead a Court into error. Rather, the Court is to consider at an early stage the particular circumstances of the parties and their property interests at the date of the trial, and make such a determination pursuant to s.79(2).

4. The majority in Stanford set out three fundamental propositions in the process under s.79 of the Act:

   First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and  equitable  interests of the parties  in the property. So much follows from the text of s 79(1)(a ) itself, which refers to "altering the interests of the parties  to the marriage  in the property"
   (emphasis added ). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just  and equitable to make a property  settlement order.

   Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement  order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed  that  a power  to make such order with respect to property and costs "as [the judge ] thinks fit", in any question between husband  and wife as to the title to or possession of property, is a power which  "rests upon the law and not upon judicial discretion" . And  as four  members  of  this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong: (Footnotes omitted )

   “The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles , including the principles which the Act itself lays down".

Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is ''just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses". The question presented by s 79 is whether those rights and interests should be altered. [Footnotes omitted]

Third, whether making a property settlement order is ''just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters ( including financial and other contributions ) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is ''just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. [Footnotes omitted]

1. For practical purposes, the courts noted that in most cases a finding of it being just and equitable to make alteration of property interests between parties is not a difficult one. In the matter before me the parties have separated. They no longer have common use of their property which has accrued during a lengthy relationship and which involves joint title to real property. I am satisfied accordingly that it is just and equitable to alter those interests and in doing so I must still consider and weigh the contributions and the relevant s.75(2) factors.

Property Pool

1. To their credit, the parties have agreed the majority of the property pool.  There is a very minor dispute in respect of their estimates of value of the contents.  No expert valuation evidence was adduced.  I have therefore simply taken the mean of their estimates.

2. The remaining issues in dispute are:

   a)(i)       The wife seeks an “add-back” to the pool of a sum of $7442 in respect of the husband’s withdrawals from the mortgage account following separation and between 25 May and 3 August 2011.  Alternatively, and following the recent Full Court judgment in Bevan (Supra), her Counsel concedes that this be a matter properly considered under s.75(2)(o) of the Act.

   (ii)The husband made three withdrawals during the relevant period from the mortgage account and into his personal account.  The wife, herself, made withdrawals totalling $5480.  She says that she used this moneys to pay for X’s braces and for mortgage instalments.

   (iii)   At paragraph 30 of her trial affidavit, the wife deposes:

   Mr Ullrich spent $2000 at (omitted) between 29 May 2011 and 7 June 2011.  Mr Ullrich took this money from the mortgage account and bought items such as a plasma television.

   (iv)The wife says that the husband’s removal of these moneys from the mortgage account was a provocative act and a form of financial abuse consistent with his behaviour generally at the time of separation.  The husband agrees that he had $1899 in his own account at the time that he removed the moneys from the mortgage account.

   (v)The husband’s explanation is summarised at page 14 of his trial affidavit, as follows:

   Since separation, I have struggled to meet expenses (rent, living costs and legal costs).  I was removed from the family home with nothing but my personal clothing and bedding.  I used about $5000 from our joint account soon after separation to set myself up in rented accommodation.  I have since had to borrow a large sum of money to pay legal bills and to purchase other furniture so that I can provide for my children when they are with me.  When Ms Ullrich fell behind in the mortgage payments by $1800, I had to borrow more money to pay that.  I have since put X through school with no financial help from Ms Ullrich.

   … Since separation, I personally withdrew from our joint account $2000 on 25 May 2011 for a bed and a television and $2742 on 3 August 2011 for rent and bond on the rental property I was to occupy.  This is a total of $4742.  I deny Ms Ullrich’s claim I took any more.  There was approximately $10,000 in the account when we separated, and I left over $5000 for X’s braces and some financial help for Ms Ullrich.

   (vi)On consideration of the evidence, I do not intend to “add-back” the amount sought by the wife.  It is clear that both parties enjoyed the benefit of withdrawals from the mortgage account.  I am satisfied that both effectively contributed to X’s orthodontic needs.  They each had their personal benefit from the withdrawals.  They have each retained furniture and contents including that purchased by the husband post-separation.  I have no complete inventory or valuation in respect of furniture and contents.

   (vii)The wife initially sought a further add-back of $3000.  She did not pursue this issue by the time of final addresses.

   b)(i)     The husband claims that there is a liability to his employer, (omitted) Pty Ltd, for a solar hot water system installed in the former matrimonial home and in a quantum of $4949.10.  The wife disputes that this is a legitimate debt, or one that is or will be pursued by (omitted) Pty Ltd.

   (ii)The wife’s argument is put at paragraphs 26 and 27 of her trial affidavit as follows:

   Mr Ullrich claims the existence of a liability to his employer, (omitted), in the sum of $4949.  This alleged debt relates to a damaged and discarded hot water cylinder that was retrieved from the (omitted) waste bin and repaired by Mr Ullrich in his own time.  Mr Ullrich retrieved and repaired the cylinder with his employer’s consent.  Mr Ullrich also had collected the associated panels required to install the cylinder over a period of approximately 18 months.

   Payment for this cylinder was demanded soon after separation occurred, some eight months after Mr Ullrich installed the cylinder.  Immediately prior to Mr Ullrich leaving the former matrimonial home he said to me, ‘Do you realise if you keep the house, I will make you pay for the hot water service.’  Mr Ullrich also told my step-father that he had been fortunate to find the hot water service that was to be thrown away by (omitted) because it needed repair and that Mr Ullrich was able to repair it and did not have to pay for it.

   (iii)On consideration of the evidence, I do not accept that this is a legitimate debt or one that is or is likely to be pursued by (omitted) against the husband.  The system was installed before separation.  (omitted) did not, however, render an account until eight months later and only well after the parties separation.  The parties have now been separated for well over two years.  The husband works in a (omitted) position at (omitted).  I do not accept or understand his response in cross-examination when he was asked, “Why didn’t they bill you straight away?”  His response was:

   Because I hadn’t finished it.  The bill was for supply only, no labour costs.

   (iv)The husband swore a financial statement on 2 July 2012.  He references a liability to (omitted) in that document but with his 50 per cent share of the liability being only $1428, making the total liability apparently $2856 as opposed to the $4922 he now claims.  He was unable to give an explanation for this discrepancy during his cross-examination and simply said:

   …it must have been wrong.  It could have been a typo…

   (v)The husband swore a second financial statement on 12 June 2013. That document is silent as to any alleged debt to (omitted). 

   (vi)There is no evidence before me of any probity that the debt has actually been pursued over the last two or more years, save and except that the husband volunteered in cross-examination that:

   I was asked by the accountant at work the other day.

   (vii)There was no evidence from the accountant or from (omitted) themselves.

   (viii)The husband makes an assertion that there is a liability of the parties to (omitted).  As such, there is an onus on him to prove what is a disputed liability and on the balance of probabilities.  For the reasons set out above, I do not accept that he has discharged that onus. 

   (c)The wife claims a Centrelink debt owing by her in a sum of $1200 as a debt of the marriage.  The husband disagrees.  She says that the liability was struck on 20 January 2012, and due to the husband filing an amendment to his return with the Australian Taxation Office.  She has repaid the debt. Again, the current jurisprudence argues against “add-backs”.  At best, this is a contribution by the wife. However, I note that the husband’s unchallenged evidence that the wife has received the totality of family tax benefit since separation despite X living full-time with the husband, which, of course, in a relative sense is a contribution by the husband.  Given these factors and the nature and quantum of the property pool, and the quantum of the items in dispute, it assumes minimal or nil significance and I do not intend to include it in the property pool.

3. Consequently, I find the pool of property to be the following:

Assets	$
Matrimonial home at Property T (wife)	350,000.00	Agreed
Shack at Property F (husband)	220,000.00	Agreed
Toyota (model omitted) 2001 (wife)	6,500.00	Agreed
(omitted) aluminium dinghy on trailer with (omitted) horsepower motors, fishing and safety gear (husband)	12,500.00	Agreed
Jet Ski (2) in husband’s possession (husband)	700.00	Agreed
Jet Ski trailer (double) in husband’s possession (husband)	700.00	Agreed
Jet Ski trailer (single) in wife’s possession (wife)	60.00	Agreed
Contents at Property T (house) (husband)	70.00	Mean of Estimates
Contents at Property T (garage) (husband)	610.00	Mean of Estimates
Contents at Property R, including shed (husband)	675.00	Agreed
Items stored at Property R (husband)	150.00	Agreed
Contents at Property F  (husband)	518.00	Agreed
Contents at Property T (second site)  (husband)	443.00	Agreed
Contents at Property T (house)  (wife)	3,443.00	Mean of Estimates
Contents at Property T (garage) (wife)	2,513.00	Mean of Estimates
(omitted) investment account  (wife)	8,356.00	Agreed
607,238.00
Liabilities
(omitted) Bank home loan	192,486.00	Agreed
Debt to Ms B (wife)	1,356.92	Agreed
Debt to Ms B	2,000.00	Agreed
195,842.92
Net Assets	411,395.08
Superannuation
(omitted) Superannuation – husband	82,762.00	Agreed
(omitted) Superannuation – husband (inactive since 1995)	6,696.90	Agreed
(omitted) Superannuation (wife)	5,403.25	Agreed
(omitted) contributory  (wife)	10,095.92	Agreed
(omitted) accumulation  (wife)	3,233.47	Agreed
(omitted) (wife)	488.00	Agreed
108,679.54

Contributions

1. There have been a number of direct financial contributions by and on behalf of each of the parties to this marriage.  The husband entered the relationship with equity of about $35,000 in a home.  That property was sold and the equity applied to the purchase of the former matrimonial home at Property T.

2. The husband also deposes to receiving $5000 from his late father’s estate and a gift of $3000 from his mother put towards the construction of the family shack at Property F.  He later deposes to receiving amounts of $2000 and $5000 as gifts from his parents.  There was little or no cross-examination on these alleged contributions and I accept the husband’s evidence accordingly.

3. The wife received an inheritance of $9096 from her late father’s estate in 2006.  The husband says that, “She kept it to herself as I know nothing of it.”  I reject this evidence.  The wife says that the moneys were applied to the general benefit of the family. I find the husband’s comment to be uncorroborated and unparticularised and generally in line with his willingness to be spontaneously negative of the wife whenever the opportunity presents. I repeat that this seemed to be a cooperative and well-functioning family unit until separation intervened. I think it more likely that the wife contributed her inheritance to the marriage just as the husband did his.  The nature of the marriage was that both parties made contributions by their labours and from inheritances and gifts from their families.  I accept the wife’s evidence in this regard.  Similarly, the wife received a gift from her mother of $3000 in 2009, which was put towards the construction of the shack.

4. The husband worked full-time during the marriage.  The wife worked as a (omitted) until the birth of their first child.  She returned to work part-time for a period but was generally the primary carer of the four children and contributed as major homemaker.

5. The husband used his skills to construct the shack at Property F and to make some improvements on the former matrimonial home.  I accept that he gave up much of his holiday and weekend time to do so and this is a contribution by him.  However, during such periods the wife would have been taking on the additional responsibility for the four young children of this marriage, and in this sense I consider this to be a joint enterprise and I accept that the wife also assisted with the building in so far as her skills and obligations to the children allowed..

6. Since separation, the wife has had the primary care of the three youngest children of the marriage, whilst X has lived with the husband.  The husband is assessed to pay child support.  I accept that, despite some confusion as to the use of joint bank accounts immediately following separation, both parties have contributed to X’s orthodontic needs.

7. On my findings above, the husband has also made contributions through his employment by being able to provide and install a replacement hot water cylinder to the former matrimonial home.

8. The wife claims to have reduced the mortgage liability by $10,000 in the more than two years since separation.  She has, however, had the sole use, occupation and benefit of the former matrimonial home since that time.  The husband, effectively, has had the use of the shack at Property F, which is not subject to a separate mortgage.  He has also stayed for a time with his parents.  More lately, he says that he has taken a lease on a property.

9. The wife provides a document prepared by her which simply shows total instalment payments made since 1 June 2011 of $32,230, which mainly appear to be in terms of $620 per fortnight or $310 per week.  Her sworn financial statement suggests an obligation of $400 per week to the mortgage.  In addition, it is the wife’s evidence, and I have accepted as contributions on her part, that moneys were advanced from her mother which went towards mortgage payments.

10. Taking all of these matters into account, and with a lack of evidence in many particulars as to any reduction in the mortgage out of the norm, I give no weight to this claimed extra contribution by the wife. 

11. In summary, there have been many and varied contributions by and on behalf of these parties.  They have both worked for the benefit of the family and contributed as homemaker and parent.  The net pool of assets exceeds $400,000 in value.  The relationship was a long one of some 17 years duration.  The husband’s initial financial contribution was a significant one at that time and is still evident in the equity in the former matrimonial home at Property T and it was clearly the financial trigger for what is now a significant equity in the Property T property.

12. Despite the duration of the relationship and the various other contributions to the parties, I am of the view that the initial contribution of the husband of $35,000 was important at the time in its quantum and in the impetus it gave this family in obtaining equity in the home at Property T and that it should still be accorded some weight[19]

    [19] Pierce v Pierce (1999) FLC92- 844

13. I otherwise find the contributions of the parties as a whole to be equal.  In all of the circumstances, I’m of the view that there should be an adjustment to the husband of 2.5 per cent of the property pool of net assets on account of superior contributions, as above.

Section 79(4)(d) – (g) Factors including Section 75(2) Considerations

1. There is no evidence before me to suggest that the orders I’m asked to make by either party would impact on their earning capacities.  I’ve already noted the living arrangements for the children and the child support situation where the husband pays to the wife $102 per week.

2. The wife seeks an adjustment of at least 15 per cent due to the greater responsibility that she has for the three youngest children of the marriage, and a discrepancy in the earnings of the parties. She says that there should be a further adjustment pursuant to s.75(2)(o) on account of what she says were withdrawals by the husband from a joint mortgage account in the amount of $7442. I have already made findings in this regard and reject her argument.

3. The husband concedes that there should be some adjustment for the wife on account of the children’s living arrangements and the relative responsibilities for the care of the children. He says that this is the only relevant factor under s.75(2) of the Act and that any adjustment to him on account of contributions would be set off by that s.75(2) consideration and resulting in an equal division of the net assets of the parties.

4. The husband is employed in a long term position.  He volunteered in evidence that the continuation of his work might be at jeopardy.  I reject that evidence.  In my view, his statement was opportunistic, uncorroborated and contrary to along and stable history of employment.  The evidence is that the husband has reduced his work commitment since separation. Whilst I accept that he has the responsibility for the care of X, there is no reason on the evidence before me why he should not be continuing to work to his previous capacity.  He works in a (omitted) role and has been with the same company for many years. The income disclosed in his financial statement filed June 2013 is $63,024 per annum.  He receives some additional benefits from his employment.  The wife has an income of something less than $19,000 per annum.  She has the primary responsibility for the care of the younger children of the marriage,  and on my orders will continue to do so for some considerable time. 

5. The wife works as a (omitted) and has no other qualifications which might easily provide her with alternative employment of greater remuneration.  I do note, however, that she is now in an apparently committed relationship with Mr B. There was much cross-examination as to the direct and indirect financial benefits to the wife (and the children) of that relationship.  After hearing her evidence, I am of the view that Ms Ullrich downplays the nature of benefits of that relationship.  Whilst I did not have evidence from Mr B, I am satisfied that there is a financial benefit to the wife from that relationship which obviously involves some commitment and a degree of cohabitation, although not on a full-time basis. Mr B’s purchase of a motor cycle for the wife which she says she must ‘repay’ is a case in point. Evidence as to holidays and joint entertainment for the wife and Mr B are suggestive of a more beneficial relationship for her than she cares to admit although the state of the evidence does not permit me to find that she is financially dependent upon Mr B.

6. In respect of these matters under s.75(2) of the Act, I am satisfied that there should be an adjustment to the wife of 12.5 per cent of the net property pool with emphasis and weight attributed to the discrepancy in earnings and earning capacity and the likely longer term responsibility for the wife in the care of the children.

7. Consequently, I am satisfied that orders whereby the wife receives 60 per cent of the net assets of the parties, together with an equal division of superannuation, and the husband receives 40 per cent of the net assets, are just and equitable.

8. The orders will provide that the wife retain the following at value:

Assets	$	$
Property T	350,000.00
Toyota (model omitted) motor vehicle	6,500.00
Jet Ski trailer (single)	60.00
Contents at Property T (house)	3,443.00
Contents at Property T (garage)	2513.00
(omitted) investment account	8,356.00
370,872.00
Liabilities
Mortgage	192,486.00
Debt to Ms B	1,356.92
Debt to Ms B	2,000.00
195,842.92
Net Assets Retained by the Wife	175,029.08

1. The husband will retain:

Assets	$	$
Shack at Property F	220,000.00
(omitted) aluminium dinghy on trailer with motors and fishing and safety gear	12,500.00
Jet Ski (two)	700.00
Jet Ski Trailer (double)	700.00
Contents at Property T (house)	70.00
Contents at Property T (garage)	610.00
Contents at Property R, including shed	675.00
Items stored at Property R	150.00
Contents at Property F	518.00
Contents at Property T (second site)	443.00
Net Assets Retained by the Husband	236,366.00

1. I have found the net assets of the parties to be $411,395.08. The wife is entitled to 60 per cent or $246,837 in dollar terms.  She has retained assets to a value of $175,029.  The husband is entitled to 40 per cent of the net assets or $164,558.  He has retained assets to a value of $236,366.  Consequently, there will be a cash adjustment payable by the husband to the wife of $71,808.

2. In all of the circumstances of these parties and including the children’s living arrangements together with the history of the marriage and the contribution of the parties in all respects I am satisfied that Orders in these terms are just and equitable.

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 30 October 2013