W and W

[2006] FCWA 123

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	W and W [2006] FCWA 123
CORAM:	HOLDEN CJ
HEARD:	13 AND 16 OCTOBER 2006
DELIVERED:	28 NOVEMBER 2006
FILE NO/S:	PT 6507 of 2005
BETWEEN:	W

Applicant Husband

AND

W

Respondent Wife

(Page 2)

Catchwords:

CHILDREN - equal or substantial and significant time - parties have poor relationship - older children aligned with different parent

SPOUSAL MAINTENANCE - wife did not establish she is unable to support herself

Legislation:

Family Law Act 1975 s 60B
Family Law Act 1975 s 60CA
Family Law Act 1975 s 60CC
Family Law Act 1975 s 60CG
Family Law Act 1975 s 60DAA

Family Law Act 1975 s 72

Category: Not Reportable

Representation:

Counsel:

Applicant Husband	:	Mr Warner
Respondent Wife	:	Ms Lane

Solicitors:

Applicant Husband	:	Richard Warner
Respondent Wife	:	Nash Clavey

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

Nil
(Page 3)

1 Before me are the competing applications of the parties with

respect to:

(a)	the living arrangements for the youngest child of the marriage;
(b)	settlement of property; and
(c)	spousal maintenance for the wife.

The parties, children and the marriage

2 The husband was born November 1967 and is 39 years of age. The wife was born May 1965 and is 41 years of age.

3 The parties do not agree when they met and commenced a de facto relationship. The husband says it was in February or March 1986 and that therefore the eldest child of the marriage is his natural child. The wife says the parties met at a later date and T is not a child of the husband.

4 It is unnecessary for me to determine the issue as to when the parties commenced to live in a de facto relationship in order to resolve the issues set out above. Prior to the marriage, the eldest child, T, was born May 1988. The parties married on 1 September 1990. There are two further children of the marriage, M, born March 1991 (aged 15) and B, born November 1996 (aged 10).

5 It is unnecessary for me to determine the paternity of T and suffice it to say that since her birth she has been treated by the husband as his natural child. She does not know there is a possibility that she is not.

6 The final separation took place on 7 May 2005.

7 As at the date of trial, T was residing with her father and working full-time in a clothing store. M and B were both living with their mother in a house which was also shared by Mr R.

8 There is a current order of the court, dated 20 February 2006, which is as follows:

“1.

Until further order of the court, the applicant, Mr W, do have contact with the child, BW, born November 1996, as follows:

(a) during the school term from the conclusion of school on Friday until the commencement of school on the following Monday in each alternate weekend commencing on 24 February 2006;

(Page 4)

(b)	during the school term from the conclusion of school on Wednesday afternoon until 7.30 pm with effect from the first Wednesday of football training or football induction; and
(c)	for the first half of each of the child, B’s, school vacations.

2.

In relation to telephone contact, each party do have liberal telephone contact with the said child when the child is in the care of the other party, in accordance with these orders.

3.

This is an order to which s 68R of the Family Law Act 1975 applies, and to the extent that this order is inconsistent with the family violence order made in proceedings between the parties on 28 July 2005 in the Magistrate’s Court at [the town], bearing complaint no. 359/05, the aforesaid contact order shall prevail and the family violence order is invalid to the extent of the inconsistency.”

CHILDREN’S ISSUES
Family Relationships

9 Before using my best endeavours to sort out the issues relating to the children, I believe it appropriate for me to describe the state of the relationships between all those involved in these proceedings. I start by noting that the husband and wife neither like, nor respect each other. It appears that as at the date of trial they had not spoken a word to each other for a period of fourteen months. If I were to accept the evidence of the wife, the husband is an alcoholic and violent person, at least towards her. If I were to accept the evidence of the husband, the wife is a drug-using, pathological liar, living in a de facto relationship with a person who is also a drug user. There is (or was) a violence restraining order against the husband granted after a defended hearing.

10 The husband is obsessed with the fact that the wife is living in a de facto relationship with Mr R and lying about the fact that she is doing so. As a result, he reported her to Centrelink and to the Legal Aid Commission of Western Australia, neither of which bodies has taken any action against her to date.

11 The eldest child, T, is at the present time completely estranged from her mother. She wants nothing to do with her mother, nor is she prepared to attend any counselling in order to repair the

(Page 5)

relationship between them. She doubts she will ever be able to forgive her mother for what she perceives was her wrongful conduct towards T in effectively barring her from the home in which she resides. She is not permitted to go to the wife’s residence and, on one occasion, in mid-September this year, when she attempted to visit her brother, B, she was hosed down by Mr R. According to the counselling report, dated 14 August 2006, M enjoys a close relationship with her mother and has, in effect, aligned herself with her. She seldom sees or converses with her father. The result is, because of the above situation, that T and M have little opportunity to spend time together.

12 To make matters worse, it is apparent that each of the parties has, to some extent, involved B and M in their dispute. I am satisfied that it has been the father who has done this to a greater extent than the mother. This is no doubt because of his strongly held conviction that she is living in a de facto relationship with Mr R and seeks to obtain information through the children about what is going on in the wife’s household.

13 Not only is there bad blood between the husband and the wife but between the husband and Mr R. Each accuses the other of describing them as a “dead man walking”.

14 In summary, this is a case in which each parent intensely dislikes and mistrusts the other. There are dysfunctional relationships all over the place. I mention all of this because this case is one of the clearest examples that I have run into in 15 years as a Judge, where the parties expect me, applying the principles set out in the Family Law Act 1975, to solve the many problems that exist and which are of their own making. It is abundantly clear to me that I cannot do that. Whatever orders I make, problems in this family will continue to abound. It is only with a change in attitude of all those involved in this case assisted by intensive counselling that the situation will improve. Having said that, however, the fact is the parties have invoked the jurisdiction of the court and I am therefore charged with the responsibility of doing what I consider to be in the best interests of the children, no matter how impossible that task may be.

Applicable law

15 The principles governing this case are set out in the Family Law Act 1975 (Cth). Section 60CA provides that in deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration.

(Page 6)
16	In determining what is in the best interests of the child I must consider the matters set out in s 60CC(2) and (3). Section 60CC(2) sets out the primary considerations, which are:

(a)	the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)	the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

17 The Act indicates that these considerations are to be considered as having particular importance. They are described as the “primary” consideration and as the note to s 60CC points out, are consistent with the first two objects of Part VII as stated in s 60B.

18 I am also required to take into account the thirteen additional considerations as set out in s 60CC(3). These will be discussed later in these reasons for judgment. I must also consider, pursuant to s 60CC(4), the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other parent in fulfilling his or her parental responsibilities.

19 Finally, pursuant to s 60CG, I must ensure that any order I make is consistent with any family violence order and does not expose a person to unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interests being treated as paramount.

20 I am also guided by s 60B which sets out the object of the part of the Act dealing with children and the principles underlying that object. It reads 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
(Page 7)
(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)

For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and

encouragement necessary:

(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(Page 8)
(ii)	to develop a positive appreciation of that culture.”

Orders Sought

21 By a Minute of Orders Sought, which commences on p. 11 of the applicant husband’s Papers for the Judge filed on 11 October 2006, he seeks the following orders:

“Children's Issues

1. That the children of the marriage, MW born March 1991 and BW born November 1996 share equal time with their mother and father or at any other such times as both the parties agree.

2. For the purposes of these orders the child, M, shall spent (sic) time with her father according to her own wishes.

3. For the purposes of these orders the child, B, shall spend time with his father according to his own wishes once he reaches the age of 14 years old.

4. Subject to orders 2 and 3 above the father shall spend time with the children;

(a)	Every alternate week from the date of these orders from Friday 3.00pm to Friday 8.30am with the father to pick up and deliver the children to school.
(b)	The first half of all gazetted Western Australian school holiday periods with the father to collect the children from school and with the father to deliver the children to the mother's residence at end of time spent with the children.
(c)	From Christmas Eve at 12.00noon to Christmas Day at 12.00noon that commences in an odd numbered year AND the mother shall have care of the children from Christmas Eve at 12.00noon to Christmas Day at 12.00noon in even numbered years.
(d)	For the children's birthdays:

(i) should same fall on a day not on a weekend and not during any time spent with the father - from 3.00pm to 5.00pm;

(Page 9)
(ii)	should same fall on a weekend and not during any time spent with the father - from 12.00noon to 5.00pm;
(iii)	should same fall on a weekend during time spent with the father, then the mother shall have the care of the child - from 3.00pm to 5.00pm; and
(iv)	should same fall on a weekend during time spent with the father, then the mother shall have the care of the child - from 12.00noon to 5.00pm.

(e)

For the father's birthday:

(i)	should same fall on a day not on a weekend and not during any contact period of the father - from 3.00pm to 5.00pm; and
(ii)	should same fall on a weekend and not during any time spent with the father - from 12.00noon to 5.00pm.

(f)

For the mother's birthday:

(i)	should same fall on a day not on a weekend and during time spent with the father then the mother shall have care of the child - from 3.00pm to 5.00pm; and
(ii)	should same fall on a weekend and during time spent with the father -

from 12.00noon to 5.00pm.

(g)	For Father's Day, should same fall on a day not during a contact period, then the father shall have care of the children - from 9.00am to 5.00pm.
(h)	For Mother's Day should same fall on a day during a contact period, then the mother shall have care of the child - from 9.00am to 5.00pm.

Specific Issues

5. That the parties share the responsibility for the long term care, welfare and development of the children.

(Page 10)
6.	That the father have the sole responsibility for the daily care, welfare and development of the children during periods when they are with him, and that the mother have the sole responsibility for the daily care, welfare and development of the children during periods when they are with her.
7.	Unless otherwise specified in these orders, the father shall collect the children from the children's schools or mother's residence, as necessary, at the commencement of the time spent with the children and the father shall deliver the children to the mother's residence at the end of time spent with the children AND the father shall stay in his motor vehicle at all times during changeover.
8.	The father and the mother shall keep each other informed at all times of their residential address, home telephone number and mobile telephone numbers AND shall notify the other in writing of any change not less than 21 days before the change of their residential address AND within 72 hours of the change in their telephone number and mobile telephone numbers.
9.	Each party shall keep the other party informed of any illness or injury or treatment relating to the children that requires medical attention as soon as practicable on the same day telephone or text message AND SHALL FURTHER provide to the other party the name, address and telephone number of the medical provider so that the other party may discuss with the medical provider the child’s condition and treatment, at that party’s expense.
10.	This Order shall be authority to the children’s medical and educational providers to discuss with either parent the children’s care, welfare, development and treatment.
11.	Neither party shall denigrate the other party or allow a third party to denigrate the other party, in the sight or hearing of the children.
12.	The parties shall act civilly to each other and keep the peace at all times”.

22 In an amended Form 1A Respondence filed on 9 August 2006 the wife seeks the following orders with respect to the children:

(Page 11)
“1.	The children of the marriage namely MW born March 1991 ("M") and BW born November 1996 ("B") live with the Respondent.

2. The Respondent be responsible for the major long term issues relating to the children.

3. Subject to B's wishes, the Applicant spend time with B as follows:

a)	Each alternate weekend from the end of school on Friday until the commencement of school on Monday morning.
b)	In addition to the above, each intervening Saturday morning during the football season from 9.00am to 12.00pm so that the Applicant can take B to his football games.

4. The time the Applicant spends with the child as provided for in paragraph 3(a) be suspended during school holidays, during which periods and subject to B's wishes, time with B the Applicant shall have contact:

a)	For the first half of each of the 3 mid-year school holidays commencing after school on the last day of school and concluding at 6:00pm on the second Saturday of each holiday period or as otherwise agreed between the parties.
b)	Subject to paragraph 6 below, for the first half of the Christmas School holidays commencing after school on the last day of school 2006; and

5. B be at liberty to telephone his parents at all times and each parent shall facilitate and encourage such telephone communications.

6. The Applicant spend time with B at Christmas:

a)	From 4:00pm on Christmas Day to 4:00pm on Boxing Day, each alternate year, commencing 2006; and
b)	From 4:00pm on Christmas Eve to 4:00pm on Christmas Day, every other year, commencing 2007.

7. In the event that Mother's Day falls during the Applicant's time, the time spent be suspended between 9:00am to 5:00pm on that day.

(Page 12)
8.	In the event that Father's Day falls on a day when the Applicant is not due to spend time with the child, he do so, between 9:00am to 5:00pm on that day.
9.	In order to facilitate the Applicant's time spent with the child as set out above, the Applicant collect the child from the Respondent at the commencement of that time and deliver him to the Respondent at the end of contact.
10.	The Applicant be restrained by injunction from abusing alcohol while the children are in his care.”

The best interests of the children

23 I do not propose to make any orders with respect to M. By the orders that they are seeking, each of the parties implicitly accepts that M will see or communicate with her father when she chooses. Given the fact that she is over 15 years of age and given the history of the fractured relationships in this family, I cannot see that it is in her best interests to make any orders with respect to her.

24 As I understand the husband’s position, he seeks that I make orders with respect to M as a demonstration to her that he did not in effect abandon her or that he did not regard her relationship with him as important. I accept that the husband truly desires to maintain a relationship with M. It would not, in my view, however, be assisted by the making of any orders by me.

25 I now turn to the issues relating to B. I turn first to the primary considerations.

26 In my opinion, it would be a relatively rare case where one could say that maintaining a meaningful relationship with each parent would not be an important benefit to a child. In my view, it would be a benefit to B in this case. I fear, however, that like his sisters, he may become aligned with one or other parent; probably his mother. There is little I can do to prevent that happening as it will very much depend upon the future behaviour of the parties. It is an important consideration which I have considered carefully when arriving at my decision in this matter. In my view, it would not assist matters if I were to make orders that required B to spend equal time with each of his parents.

27 I have also considered carefully the need to protect B from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Considerable time was taken at trial canvassing issues of physical and verbal violence during the marriage. It is unnecessary for me to make specific findings with

(Page 13)

respect to these matters. Suffice it to say I am satisfied that during the marriage there was considerable verbal and possibly some physical unrest between the parties. It may well be that the husband was domineering and controlling. I do not, however, find that he was physically violent towards the wife to the extent alleged by her.

28 Whatever the position was during the marriage, it is much different now. The parties do not have any personal contact, nor have they communicated for a considerable period of time. There is a violence restraining order in place. So long as I ensure that orders are made that do not require the parties to come into personal contact, I am satisfied there will not be any risk of exposing B to physical or psychological abuse. Having said that, it is quite apparent to me that unless the parties change their ways, there is every possibility that B could suffer psychologically.

29 I am required to take into account any view expressed by the child and any factors (such as the child’s maturity or level of understanding) that I think are relevant to the weight I should give to the child’s views. There is a report prepared by Sally Kirk, a Family Consultant, dated 14 August 2006. She described B as “a delightful little boy who was bright, articulate and thoughtful in considering his responses”.

30 Insofar as B’s wishes were concerned, she reported as follows: “32. I asked B to consider the various options before the

court and his responses were; if the status quo were maintained he would be unhappy because his father would continue to take him to the pub on every visit and that was boring and annoying. I asked how he would feel if he lived with his father for one week alternately and he said it would be no good and he could not think of anything positive he would do with his father for that extended time and he would not want to be away from his mother or M and S.

33. B’s preference would be for the court not to make an order for him to have to spend time with his father. He said he would like to decide for himself when he goes over, just as M does. I suggested that his father may be unhappy with that proposal because M did not go very often and he may be worried that B may not as well. B’s reply was to repeat that he didn’t really want to see his Dad.”

(Page 14)

She went on to say:

“53. B reports having a good and close relationship with his mother, his sister M, her boyfriend S and the mother’s friend and landlord Mr R (sic). B does not report having a good relationship with his father, saying he is bored going there, that he misses his family and does not like going to the pub or hearing his father berate his mother.”

31 The views expressed by B in the report are totally at odds with the husband’s description of his relationship with him, which is supported by T, to a very great measure. T, although aligned with her father, I found to be an impressive witness. I am suspicious of the views expressed by B in the report. The complaints that he makes very much parrot complaints made by his mother in her affidavit evidence. In my view, it is probable that B’s opinion of his father has, to a considerable degree, been influenced by his mother. Her view of the husband clearly emerges from the counselling report where it is said:

“44. It is Ms W’s view that she was in an abusive relationship with a domineering controlling man who was on occasion violent to her and excessive in his discipline with the children. She says that with the assistance and support of a long time family friend she was finally able to leave the marriage. She alleges that the father’s real interest in the children is as a means to get to her and get information about her. She says that whilst together she would have to report to Mr W three times a day who she had seen and what she had done, and now he has resorted to hiring private detectives to pursue her.

45. It is also the mother’s view that whilst Mr W spends a lot of time trying to find out what she is doing and who he (sic) is involved with, he does not spend the same time or energy doing interesting or fun things with his son, and has not even bought B a bed or set up a space for him in his home.

46. Ms W believes that part of Mr W’s strategy to punish her for leaving is to not contribute properly to Child support of his children and she also believes that he has set up two separate raids by police of her home recently. Both of these raids resulted in nothing being

(Page 15)

found or charges being laid but were extremely distressing for Ms W and the children. Ms W is convinced Mr W is behind the raids and these incidents have added to her concerns and left her anxious, upset and weary of the constant perceived harassment by Mr W.”

32 I am required to take into account the nature of the relationship of B with each of his parents or any other person (including any grandparent or other relative of the child).

33 As described by the counsellor, B has a “good and close relationship” with his mother, sister M and her boyfriend S and Mr R who lives in her household.

34 Notwithstanding what B has stated in the counselling report, I am satisfied that he does now enjoy, and probably always has enjoyed, a good relationship with his father. This is evidenced by the fact that he spent nine days with him over the last school holidays. Clearly, however, B is more closely aligned with his mother in this dispute.

Parenting and discharge of parental responsibilities

35 In the circumstances of this case it is convenient to deal under this heading with a number of considerations listed in s 60CC and also sub-section (4). I consider under this heading the following paragraphs of s 60CC(3):

“(c)

the willingness and ability of each of the child’s parents to facilitate and encourage, a close and continuing relationship between the child and the other parent;

(f)

the capacity of:

(i)	each of the child’s parents; and
(ii)	any other person (including any grandparent or other relative of the child);

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

(i)

the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents;”

36 I also consider under this heading, subsections (4) and (4A) which are as follows:

(Page 16)
(4)	Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a)

has taken, or failed to take, the opportunity:

(i)	to participate in making decisions about major long term issues in relation to the child; and
(ii)	to spend time with the child; and
(iii)	to communicate with the child; and

(b)

has facilitated, or failed to facilitate, the other parent:

(i) participating in making decisions about major long-term issues in relation to the child; and

(ii) spending time with the child; and

(iii) communicating with the child; and

(c)	has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4(A)	If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular,, to events that have happened, and circumstances that have existed, since the separation occurred.”

37 I am not satisfied that either party has demonstrated the willingness or ability to facilitate or encourage a close and continuing relationship between the child and the other parent. They each have a very poor opinion of the other and hate each other.

38 I am satisfied that each of the parties has the capacity to provide for B’s physical needs. I am satisfied that each parent could provide for B’s intellectual needs. It appears to be the case that he is progressing very well at school in his present circumstances.

39 Each of the parties has demonstrated that they have, to some extent, ignored B’s emotional needs as a result of the dispute between them. The mother has, in my view, promoted in B a negative view of his father. The father, on the other hand, has

(Page 17)

upset B emotionally by questioning him as to the mother’s
activities and by making negative comments about his mother.

40 In my view, I have already covered in these reasons the matters that I am required to take into account under sub-sections (4) and (4A).

Equal or substantial and significant time with each parent

41 I am required by s 65DAA to consider whether to make orders that the child should spend equal time or substantial and significant time with each parent. In doing so, I must consider:

(a)	whether the child spending equal time with each parent would be in the best interests of the child;
(b)	whether the child spending equal time with each parent is reasonably practicable; and
(c)	if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

42 Giving consideration to the above factors, I do not conclude that spending equal time with each parent would be in the best interests of B for the following reasons:

(a)	the history of these proceedings;
(b)	the hatred that exists between B’s parents;
(c)	the parties’ lack of regard for each other; and
(d)	the likely inability of the parents to even discuss important issues in B’s life, let alone come to an agreement.

43 One can only speculate on the likely effect of making the orders that the husband proposes. In my view, it would be totally unworkable. Furthermore, in my opinion, there is a risk that it would lead to an escalation of litigation, rather than a diminution of it.

The solution

44 What then is the solution to this dreadful and very sad mess this family finds itself in?

45 The following passage from the counselling report probably

says it all:

(Page 18)

“55. From the time they are 7 to 9 years of age, children begin to develop the capacity for self-reflexive thinking. They can simultaneously hold more than one perspective at a time and can begin to imagine how their parents view them. These new cognitive capacities mean that children of this age consciously feel acute loyalty conflicts, because they can comprehend the incompatibility of their parents' viewpoints.

56. Children cannot sustain these kinds of loyalty shifts in intensely disputing families for very long however, probably because ambivalence is too painful to bear. So expectably, between the ages of 9 and 12 years, children begin to fix their alignment with one or the other parent and with varying degrees of intensity begin to exclude or reject the other parent. Having not yet developed the ability to separate themselves from their parents' conflict, these children may become stuck in the simplistic view that one parent is right and the other parent is wrong.

57. In general, the more intense and prolonged the divorce conflict and the more exposed children are to parental disputes, the more likely the children will be drawn into the alignment with one parent and become alienated from the other. This is an expectable outcome and has occurred in this family with each of the children. The older two children who are able to self-determine have removed themselves from the conflict by each ceasing to spend time with one parent.

58. The ideal is for parents to stop fighting and parent co- operatively but I do not believe that this is possible at this time in this case. The next best option is referred to a (sic) parallel, separate parenting where the parents develop protocols for communication, set up barriers to constrain their interaction (no in-person contact) and exchange the child in a neutral place. The current court order puts these processes in place yet it has not reduced the conflict.”

46 The answer is that there is no satisfactory solution. The husband needs to forget about his obsession with whether or not the wife is living in a de facto relationship with Mr R. He needs to stop questioning the children and he needs to stop denigrating the mother in their presence.

(Page 19)

47

The wife, for her part, needs to put what she perceives as the injustices of the marriage behind her and promote a healthy relationship between B and his father. Whether either of the parties can do these things, I doubt. I am not prepared to make an order for equal time. In fact, I am not prepared to extend the time B spends with his father beyond that set out in the interim order of 20 February 2006. Neither am I prepared to make the time that B spends with his father subject to his wishes. In my opinion that is an unfair burden to put on a 10 year old child. If B wishes to spend more time with his father, then the answer is simple. He tells his mother that he wants to and asks his father if he can.

Property

48 The property dispute between the parties related basically to chattels. I am comfortably satisfied that during the course of his evidence the husband abandoned his claim for property settlement. In those circumstances, there will be an order that all applications for property settlement be dismissed.

Spousal Maintenance

49 The wife seeks an order for spousal maintenance in the order of $215 per week.

50 Section 72 of the Family Law Act 1975 provides as follows:
“(1) A party to a marriage is liable to maintain the other

party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a)	by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)	by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)	for any other adequate reason;

having regard to any relevant matter referred to in subsection

75(2).”

51 There are three reasons why I do not propose to order the husband to pay spousal maintenance. The first is that I am not satisfied that the wife has established that she is unable to support herself adequately. As I see her case, the only reason she advances

(Page 20)

is that she has the care and control of two children of the marriage, who are under the age of 18 years. They are aged 15 and 10 respectively and are both full-time students. It seems to me that there is no reason why the wife could not obtain employment to fit in with their schooling. In any event, M is of an age where she could assist the wife in caring for B during after-school hours. The parties have now been separated for approximately 1½ years and it seems to me that the wife has made no serious attempt to contribute to her own support.

52 The second reason is that I have serious doubts as to whether the wife and Mr R are being truthful when they say they do not reside in a de facto relationship. I formed the impression during the course of the trial that neither of them was a particularly reliable witness. One could be forgiven for thinking at the outset of the proceedings that they were just “good friends”. It was at a relatively late stage in the proceedings that they admitted they had a sexual relationship. In my view, it is a real possibility that the two of them are arranging their affairs so as to ensure that the wife is able to claim Centrelink benefits.

53 In support of that conclusion, I allude to the following:

(a)	the fact that there is a sexual relationship between them;
(b)	the extent to which Mr R has become embroiled in these proceedings. In my opinion, it is not what one would expect of a person who is simply a friend extending generosity to the wife. He is clearly a protagonist for the wife;
(c)	T’s evidence that she was basically forced to choose between her boyfriend and Mr R who she described as her mother’s de facto;

54 The photographs that were tendered as exhibits which, in my view, tend to establish that there is an affectionate relationship between the wife and Mr R and as is evidenced by the counselling report the extent to which Mr R seems to have become a significant adult in the life of the children.

55 It is difficult to imagine why, if he was just a friend, he would involve himself in these proceedings to the extent that he has. It is difficult to imagine why he would ban T from attending on his property, why he would hose her down when she did attend and

(Page 21)

why he would refer to her on his own admission as a “spoilt little
bitch”.

56 The third reason why I would not order spousal maintenance is because although the husband earns a reasonable income he is otherwise a man of modest financial resources. From his after-tax income he has been assessed for child support at the rate of $650 per fortnight and on top of that has to pay $120 per fortnight arrears of child support. The exact amount of the child support arrears is not known as it is the subject of dispute between the husband and the Child Support Agency. It was suggested by counsel for the wife that the husband has the capacity to pay spousal maintenance in the amount sought because it is approximately the amount that he is subsidising T who is in full-time employment and able to support herself. There may well be some force in that argument. However, in my view, the issue was not sufficiently canvassed at trial to lead me to any definitive conclusion. Having regard to all of the above, I intend to dismiss the wife’s application for spousal maintenance. In my view, her claim was motivated by the desire of each of the parties to punish each other, rather than a real need for spousal maintenance.

Proposed Orders

57 As I have already indicated during the course of these reasons for judgment, I will invite counsel to prepare a Minute of Orders with respect to the time that B will spend with his father based on these reasons. The other orders that I propose to make are:

1. All applications relating to the child of the marriage, M, born March 1991 be dismissed.

2. All applications for settlement of property be dismissed.

3. The wife’s application for spousal maintenance be dismissed.

58 Upon publication of these reasons I will hear counsel with respect to the orders that I propose to make and any other matters arising out of these reasons for judgment.

59 If either party feels aggrieved then they have an automatic right of appeal to the Full Court of the Family Court of Australia. As I have indicated, I cannot find a solution for this family. However, it may be that the members of the Full Court can. I do not envy them in their search.

(Page 22)

I certify that the preceding [59] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate