WEBBER & HATTON

[2013] FamCA 150

FAMILY COURT OF AUSTRALIA

WEBBER & HATTON [2013] FamCA 150

FAMILY LAW – CHILDREN – Change of residence – High level of parental conflict – Allegations by mother that father poses unacceptable risk to the children – where the Police and Department have investigated allegations –– children not at unacceptable risk of harm if father’s unsupervised care –  continuing allegations of abuse.

FAMILY LAW – PROPERTY – Small property pool - add backs, contribution and other factors

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Heath v Hemming (No 2) [2011] FamCA 749
Hartford and Ansilda [2009] FamCA 23

APPLICANT: Mr Webber

RESPONDENT: Ms Hatton

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

FILE NUMBER: BRC 1109 of 2009

DATE DELIVERED: 12 March 2013

PLACE DELIVERED: Hobart

PLACE HEARD: Brisbane

JUDGMENT OF: Benjamin J

HEARING DATE: 2011 - 28, 29, 30, 31 March 2011,  &
2012 - 13, 14, 16, 17, 27 & 28 August & 4, 5 & 31 October & 17 & 18 December 2012 &
2013 - written submissions closed  22 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Smith & Associates

COUNSEL FOR THE RESPONDENT: Mr O'Meara

SOLICITOR FOR THE RESPONDENT: Mark Treherne & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Justine Lilly
Legal Aid Commission of Queensland

ORDERS

CHILDREN

1. All previous parenting orders in respect of B born July 2006 (“B”) and J born January 2008 (“J”) (“the children”), be and are hereby discharged.

1. The father shall have sole parental responsibility in respect the children. Prior to making a significant decision about any such issue of parental responsibility the father shall:-

(a)Use his best endeavours to advise the mother in writing of the decision intended to be made;

(b)Seek the mother’s response in relation thereto;

(c)Consider, by reference to the best interests of the children, any such response prior to making any such decision; and

(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.

1. The children shall live with the father.

1. The time the children spend and communicate with the mother shall be as agreed in writing between the parties but in the absence of agreement shall be as follows:-

1. As to telephone communication:-

(a)For the period of four (4) months following the date of these Orders, the children shall have telephone communication with the mother each Sunday at 4.00pm.

(b)Thereafter the children shall have telephone communication with the mother each Sunday at 4.00pm and one other day during the week as agreed between the parties, and if they do not agree at 7.00pm Wednesday night and such other times as requested by the children.

1. As to the time the children spend with the mother:-

(a)The children will not spend any time with the mother from the date of these orders until Friday 28 June 2013.

(b)Commencing on Friday 28 June 2013 and continuing until the weekend preceding Monday 7 October 2013, the children shall spend time with the mother each alternate weekend from after school on Friday (or 3.30pm if not a school day) to the commencement of school on Monday (or 9.00am if not a school day).

(c)From the school week commencing 7 October 2013, the children shall spend time with the mother during school term from after school on Friday to the commencement of school on Monday and each alternate weekend thereafter (commencing the first weekend of that school term if the children were primarily with the father on the last weekend of the school holidays and commencing the second weekend of the school term if the children were primarily with the mother the last weekend of the school holidays) and from after school on Wednesday to the commencement of school on Thursday.

(d)As to school holidays from the end of term four 2013:-

i.for the 2013/2014 Christmas/New Year school holiday period and the three term school holiday periods in 2014 and each alternate year thereafter the children shall spend time with the mother for the second half of those holidays.  

ii.for the 2014/2015 Christmas/New Year school holiday period and the three term school holiday periods in 2015 and each alternate year thereafter the children shall spend time with the mother for the first half of those holidays.

iii.At the end of the Christmas/New Year School holiday periods the children are to be returned to the father three (3) days before the commencement of term.

iv.In the event that Easter is not part of a school holiday period then the children shall spend time with the mother from 1.00 pm Easter Sunday to the start of school after Easter.

v.If the children are not otherwise spending time with the mother on Mother’s Day then notwithstanding these orders (as and from 2014) the children shall spend from 9.00am Mother’s Day to the commencement of school the following Monday with the mother.

1. If the children are not otherwise living with the father on Father’s Day then the children shall be returned to the father at 9.00am on Father’s Day and the mother’s time with the children that weekend will conclude.

2. If the children’s changeover is to be at school then that shall be the place of changeover. 

3. If the changeover is not at school then up and until 15 December 2013 the changeover are to be effected by the children’s grandparents, Ms R and Mr Y (or such other person as shall be reasonably agreed by the parties in writing if either of the grandparents becomes unavailable).

4. If the changeover is not at school then, after 15 December 2013, the changeover shall be by collection of the children by or on behalf of the mother at the father’s home at the start of the visit and by or on behalf of the father at the mother’s home at the end of the visit.

5. Changeover may be by other ways as agreed in writing between the parties.

6. The mother is at liberty to communicate with the children by sending cards, letters and gifts to them care of the father’s postal address.

7. The father shall facilitate the children’s views and wishes as expressed to him to communicate with the mother, by sending cards, letters and gifts to the mother at the mother’s postal address.

8. The parties shall keep each other appraised in writing of any changes to their postal addresses and telephone contact details, within fourteen (14) days of any such change.

9. The mother is hereby authorised to contact the children’s schools about the children and to obtain (at the mother’s own expense) copies of school reports and photograph order forms for the children.

10. For the 2013 school year the father is restrained from changing the children’s schools. He may in 2014 and onwards change their enrolment to a public school in the area in which the children live.

11. Subject to these orders, the father shall keep the mother appraised in writing of the name of any school or educational institution at which the children are enrolled and attend, and shall notify the mother in writing at least one (1) month in advance of any such proposed change.

12. The mother is authorised to contact any medical practitioner, or associated professional, who treats the children, about the children, and to obtain from such practitioner/s (at the mother’s own expense) copies of documents about the children.

13. The father shall keep the mother appraised in writing of the name and contact details of any general medical practice at which the children attend, and of any specialist medical practitioner, or associated professional, on whom the children attend on referral from any general medical practitioner.

14. Each party shall advise the other as soon as practicable of any medical emergency involving the children.

15. The parties not denigrate each other to, or in the presence or hearing of, the children.

16. The parties, their servants and agents, be retrained and an injunction issue restraining the parties from raising or discussing with, or in the presence or hearing of, the children, at any time prior to the children attaining their majority, the matters which were the subject of evidence before this Court.

17. Pursuant to s 65DA(2) and S 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

PROPERTY

1. The father shall pay to the mother the sum of $77,151 within three (3) months from the date of this order.  At the same time or before the payment of the money provided in this order the father shall at his expense cause the mother to be released from all and any of her personal covenants provided in respect of the mortgage with the Q Credit Union over A Street, M Town in the State of Queensland (whether that be by way of refinance or other release).

2. The father shall indemnify the mother in relation to mortgage repayments, rates liabilities, home insurance premiums or other outgoing in relation to the said property.

3. Unless otherwise specified in these orders each party shall be solely entitled, against the other and to the exclusion of the other, to all other property, pension benefits, financial resources and chattels of whatsoever nature and kind in the possession and/or control of such party as at the date of these orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.

ADMINISTRATIVE ORDERS

1. So as to give effect to these Orders, the father shall collect the children from school and shall present them to the Family Consultant, Mr P, (or such Family Consultant nominated by him) located in Level 3, Harry Gibbs Commonwealth Law Courts, Brisbane at 2.00pm (EST) on the date these orders are made for the purpose of Mr P (or such other Family Consultant nominated by him or the court) explaining the nature and effect of these Orders to the children.

2. The Independent Children’s Lawyer is directed to forward to the Department of Communities (Child Safety and Disability Services), the child safety office and any other officer authorised by the Director-General:-

   (a)a copy of the Reasons upon which these orders are based;

   (b)a copy of these Orders;

   (c)a copy of the Mr P’s Report filed the 1 December 2010;

   (d)a copy of Mr P’s Report filed the 19 September 2011; and

   (e)a copy of Mr P’s filed the 10 April 2012

   within three (3) weeks from the date of these Orders.

3. Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits be returned to the person or persons who tendered same.

4. The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these orders or the hearing of the appeal.

5. All extant applications for parenting Orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Webber & Hatton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: BRC 1109 of 2009

Mr Webber

Applicant

And

Ms Hatton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. Prophetically, in his comments made in a Family Report, Mr P said:-[1] 

   It has been repeatedly shown that children who are exposed to their warring parents’ ways and who associate having a relationship with both parents with this conflict, are at a much higher risk (than children not exposed to long-term parental conflict) of developing social and emotional problems that typically manifest as mental health complications.  The parties’ unwillingness to modify their perception and attitude towards the other parent indicates to me that they have either not considered the serious consequences of their immature and self-absorbed behaviour or they are not concerned abut causing their children such harm. 

   [1] At paragraph 76 of Mr P’s Report filed the 1 December 2010.

2. These comments did not deflect or deter either of these parents from continuing this litigation and the ongoing conflict.

3. These proceedings relate to the parenting arrangements of B born July 2006 and J born January 2008.  The proceedings have been conducted over a long period of time as the parties entered into interim consent arrangements in March 2011 to see whether they could ameliorate the conflict clouding the lives of these children.

4. That experiment did not succeed and the proceedings came back before me in August 2012 for continuation of the hearing.  Unfortunately due to the illness of counsel and the subsequent unavailability of witnesses the evidence was not concluded until 18 December 2012 insofar as parenting was concerned.  As to property final submissions were delivered in mid February 2013.

5. In respect the parenting proceedings, an Independent Children’s Lawyer was appointed and the Magellan protocol were applied. This was as a consequence of past and ongoing allegations of alleged sexual abuse of the children.

6. At the conclusion of evidence the Independent Children’s Lawyer submitted that the children should live with the father and that he has sole parental responsibility for them.  The Independent Children’s Lawyer submitted that there should be a moratorium on the children seeing the mother for a period of four months following the changeover of residence and that the orders ought to be explained to the children by the Family Reporter, Mr P, or in his absence another family consultant.  It was submitted that the form of the moratorium should be that the children should have limited time with the mother for a limited period of time and thereafter should spend each alternate weekend, each Wednesday night and half of all school holidays with the mother.

7. The Independent Children’s Lawyer also sought orders restraining the parties from discussing these proceedings including the allegations of abuse.  In addition he sought orders enabling the mother to have information about the children and to eventually be able to attend school functions and obtain information from their school.

8. The mother asserted throughout the hearing and through submissions that the children were at an unacceptable risk of abuse whilst in the care of the father and that the children should remain in her primary care, that she should have sole parental responsibility. Further she sought orders that the children should spend no time or limited time with the father.  In the alternative the mother submitted that in the event that the Court was not satisfied that the children were at an unacceptable risk of abuse in the care of the father then the children should continue to live with the mother, she should have parental responsibility and the children should spend each alternate weekend and half of their school holidays with the father.

9. The father sought parenting orders substantially identical to those submitted by the Independent Children’s Lawyer.

THE ISSUES

1. In terms of the parenting issues the initial determination to be made by me, considering all of the evidence and having regard to all of the relevant factors under s 60CC was whether the children remain at risk of abuse in the unsupervised care of the father. The father contended that such was the nature of the mother’s behaviour (whether implicit or explicit) that her actions in making, fabricating and/or exaggerating allegations of abuse that in itself amounted to abuse of the children.

2. An underlying feature in these proceedings was the high levels of conflict that existed between the parties.  It is clear from the evidence that each parent:-

   ·    disliked the other parent;

   ·    did not trust the other parent;

   ·    did not respect the other parent; and

   ·    had concerns about the need of the other parent to be involved in the care of the children. 

3. The mother claims that the father constitutes an unacceptable risk to the children of sexually, emotional and physically abusing them and sought orders that she have sole parental responsibility and the children live with her. 

4. The relationship between the parents was toxic and has been so since at least early 2008.  This has permeated the children’s lives for most of their lives.  Once the question of unacceptable risk is determined then the Court would need to determine where the children should primarily live, who should exercise parental responsibility and what time, if any, and in what way, should the other parent spend or communicate with the children.

5. There seemed to be consensus (which was unusual in these proceedings) that there ought to be sole parental responsibility for the parent with whom the children live but such order should enable the other parent to have information with regard to the children’s health and education.  The question was which parent.  The only objection from this seemed to be the position of the mother in the event that the children were to live with the father, in that she sought joint parental responsibility.

6. At the conclusion of the hearing I raised with the parties whether the children should remain at their present school in the event that I determined the children’s living arrangements should be changed from the mother to the father.  It was asserted by the father that it was a 40 minute drive from his home to the children’s present schools and that would involve 80 minutes each way twice a day.  That was not evidence, although I have had regard to that submission when making the determination as to school in 2013.

7. The father asserted that the mother will not allow the children to have a meaningful relationship with him and has made false complaints of abuse to undermine that relationship.  He claims that the mother has an ultimate desire to relocate to Melbourne and that it is a ‘calculated agenda to use all means necessary to alienate the children from the father and significant others in his family’.[2]

   [2] Father’s case information document summary of argument filed 22 March 2011 at page 22, paragraph 5.

8. The father asserted that the mother has coached the elder child to make false disclosures and that as such the Court should be concerned that the mother does not have a capacity to protect the children from psychological abuse and in fact her conduct may amount to psychological abuse.  There is an issue about the mother’s capacity to comply with court orders and the underlying hostile relationship.  There is some assertion that the mother acts irresponsibly in terms of the care of the children.

9. There were also property proceedings and evidence was provided in that regard. At the conclusion of the hearing I gave directions for the parties to file written submissions in relation to property and reply by 1 February 2013. 

10. In the terms of property the father’s sought orders that the mother sign all documents necessary to refinance the mortgage secured over the former matrimonial home to him or his delegate, that at settlement he refinance the mortgage secured over the former matrimonial home into his sole name or the name of his delegate and pay to the mother a sum to be determined by the Court.  He also sought orders enabling each party to be entitled to all property, pension benefits, financial resources and chattels in their possession and indemnify the other in respect of any liability arising from these.  He also sought a costs order against the mother.

1. The mother sought orders that her total interest in the property of the parties, including the items which were set out in an annexure B to her amended response, taking into account matters under both s 75 and s 79 of the Family Law Act 1975 (Cth) be declared to be 60 per cent of the total matrimonial pool of assets.

2. In addition she sought orders that father acquire in his sole proprietorship the former matrimonial home and that its value be deducted from the amount of the father’s overall entitlement.  Further she sought an order that if its value exceeded his entitlement the father was to pay to her the amount of the difference and in the event that he was unable to do this the property was to be sold.  In the alternative the mother sought orders that the property be sold and the net proceeds be added to the pool of proceeds and be divided between them 60 per cent in her favour, or 70 per cent if the children were living primarily with her.  She sought orders for the return of white goods to the home and for her personal property to be returned to her.  Finally she sought orders that the value or the father’s interest in the MM Superannuation Plan be transferred to her.  

THE ISSUES

1. There were issues as to contribution and the other factors having regard to the outcome of parenting proceedings.

2. In terms of property, the parties have a relatively modest pool of assets and there appears to be a difference of about twenty five thousand dollars.

3. There were also issues as to add-backs, the treatment of various assets in terms of the sale of some cars, the contents of a shipping container and a container.  The father asserts that his initial contributions and contributions during the marriage overwhelmed that of the mother having regard to the property he had at the commencement of the relationship and monies he received as a consequence of his government employment.  The mother seeks the return of particular items from the former matrimonial home and asserted that there are items which have been retained or taken by the father.

4. The parties agree that the former matrimonial home at M Town has a value of $650,000 and should be retained by the father.

5. Each party is in recept of a form of defined pension or entitlement.  Neither of the parties seeks any splitting order with regard to superannuation.

6. The father asserts that the mother has a $70,000 entitlement to superannuation being an entitlement she is able to claim under an insurance policy attached to one of her superannuation policies.

7. In terms of contribution the father assert that there should be an overall adjustment of 88.5 per cent of the net asset pool and the mother should retain 11.5 per cent of the pool.-

8. In terms of contribution the mother asserts that the relative proportions of the parties matrimonial property is dependent upon an assessment of the evidence as to where the children are living.  The mother says that if the children are living with her then the overall division should be 70 per cent in her favour and 30 per cent in the father’s favour not withstanding the father’s greater financial contribution from lump sums.

BACKGROUND

1. At the end of 2012 the father was aged 41.  He was in receipt of a number of Government Pensions giving him a total income of about $1,147 per week.[3]  He has been in receipt of these pensions since 2004 or 2005.

   [3]Father’s financial statement filed 16 April 2012.

2. At the end of 2012 the mother was aged 38.  She is a retired public servant.  The mother worked with the public service from about 1992 and remained there until 2004 when she was discharged on medical retirement.  She is in receipt of a pension which is less than half that of the father.  

3. The parties met in 2005. According to the mother they commenced living together in 2005, the father says 2006.  The father informed Mr AA[4] that they commenced cohabitation in 2005, on balance I am satisfied that their cohabitation commenced in 2005.  The parties married in April 2007 and they finally separated in April 2008.

   [4] Mr AA’s report dated 7 December 2009 at paragraph 1, page 6.

4. After separation the parties entered into an agreement in late April 2008 that the children spend time with the father, which they did until November 2008.  After the alleged disclosure by B on 5 November 2011, the father’s time with the children ceased or was circumscribed.

5. The father did not see the children between about 5 November 2008 until mid August 2009 (a period of about nine or ten months).  Subsequent to that time the father has seen the children in a supervised capacity until 2011.  After that time various arrangements were put in place to enable the children to spend time with the father.

6. As at January 2013 B was aged six and a half and J aged five.

7. The parties have been in almost constant conflict since separation in terms of communication and negotiations.  Each blames the other for those difficulties.  In April 2008 the parties entered into a parenting plan which was not successful.  In February 2009 the father commenced proceedings in the Federal Magistrates Court and sought interim orders. 

8. In the same month proceedings were taken in the Magistrates Court and a consent order was made, without admissions, for a protection order under the Domestic and Family Violence Protection Act 1989 (Qld) for a period of two years. That order expired on 10 February 2011 but there is some evidence that a further temporary order has been taken out. I have had regard to those orders.

9. In March 2009 a Federal Magistrate made interim orders that the children live with the mother, that she have sole parental responsibility and the father see the children at a Contact Centre.

10. In October 2009 interim orders were made by a Federal Magistrate transferring the M Town home to the father.  In December 2009 proceedings were transferred to the Family Court.  The matter was designated a Magellan proceeding on 8 January 2010.

11. The proceedings were initially listed before me for hearing in March/April 2011.  The proceedings commenced and there were a number of days of evidence.  During the course of that part of the proceedings, the parties and the Independent Children's Lawyer negotiated a plan by which they believed they could resolve issues of parenting and of property.

12. As a consequence, on 30 March 2011, by consent, I made orders providing that the children spend time with the father with such time to be initially supervised by the children’s paternal grandmother but then become unsupervised.  Other orders were made.

13. Those orders were to become final if the parties did not apply within twelve months from 30 March 2011.  Unfortunately the trial parenting arrangements did not work out and the proceedings came back before a Registrar and were listed before me for finalisation of the hearing in August 2012.

14. As to the parenting arrangements, those interim applications came before Principal Registrar Filippello on 15 May 2012 and orders were made that the children spend supervised time with the father.

15. The hearing re-commenced in August 2012 and the evidence taken from the March 2011 hearings was included.  Each of the parties relied on further evidence and updated reports. For reasons outlined elsewhere, the hearing was adjourned part heard on a number of occasions from August 2012.

16. The matter came back before me for the finalisation of the hearing commencing 4 October 2012.  At the commencement of the hearing I was informed by counsel for the Independent Children’s Lawyer that there had been further disclosures made to the Department of Child Safety.  Tendered by consent was an updated Magellan Report dated 3 October 2012.  This Report showed that B and J had made further disclosures and had been interviewed by departmental officers.  The mother had also been interviewed. 

17. Any statement of fact in these reasons is to be regarded as a finding of fact unless the contrary is implicit from the context in which the statement is made.

PARENTING PROCEEDINGS

Evidence of father

1. The father relied upon his affidavits filed on 11 February 2011, 25 February 2011, 16 February 2012, 5 April 2012 and 3 May 2012.  In addition he relied upon his statements of financial circumstances filed 8 March 2011 and 16 April 2012.  He provided some oral evidence in chief.

2. In terms of that evidence, there was an issue about a statement that the father allegedly made to the mother’s former solicitor, Ms O, which read in context, could be treated as a threat to the mother.  The father said that he made a comment in jest that the two hundred metres exclusion zone was insufficient as he was a marksman.  The solicitor for the mother took it as a threat, although little was made out of it initially and the father said it was in made in jest.

3. I am not satisfied that it was made as a serious threat, however, it was an ill-considered remark made by the father and in many ways reflects his lack of insight as to the conflict, to which he has participated.

4. The father gave evidence in response to the mother’s affidavit of 14 February 2011 in particular an affidavit annexed to that primary affidavit being the affidavit filed in the Magistrates Court sworn 28 January 2008.

5. One of the parts of the evidence which the father took issue about was the suggestion that he endeavoured to commit suicide by crashing his vehicle in about 2004.  This was somewhat troubling evidence as the father said he was not endeavouring to commit suicide but did intend to crash his vehicle.  When cross-examined he said he was driving between the Gold Coast and Townsville and had spent overnight at Mackay.  The following morning whilst driving back towards Townsville he deliberately crashed the vehicle.  He said he let go of the steering wheel, closed his eyes and then followed the inevitable motor vehicle crash.  He went at lengths to say that it was not an endeavour to commit suicide.  I am not satisfied that it was not.  Having regard to the psychiatric evidence and the other evidence I am satisfied that was an endeavour on the father’s part to harm himself.  After that he acted out badly including hearing voices in his head, becoming disassociated with events and removing his clothing.  The present medical evidence is that the father’s mental health is not problematic, I accept that evidence.

6. The mother gave evidence of the father’s reaction to a perceived poor meal and other events where he was aggressive and verbally abusive.  The father admitted some level of ‘firmness’.  I am satisfied that the father from time to time expressed significant anger and aggression to the mother and to others around her.  In explaining events in May/June 2006 he denied throwing full bottles of beer out of the window of the car but said he threw an empty bottle. 

7. The father endeavoured to normalise what happened when he and his parents retained J in March 2008. I will deal with this issue in this part of the reasons, as it is convenient to do so.

   (a)This occurred when J was a very young baby who was at that time unweaned.

   (b)The conflict between the parents arose from a dispute as to whether J should be circumcised. The mother sought that procedure and the father opposed it.   The father eventually agreed to the circumcision, but claims that his consent was not of his free will (I do not believe him in that regard).

   (c)The father and his mother describe taking J from the mother care, in circumstances where the mother was drunk and confrontational.  The father claims the mother had struck him.  The father and his mother decided to wean the child.

   (d)The mother claims in her detailed history[5] a violent and concerning incident, which was fuelled by the father’s use of marijuana.

   (e)I accept that the mother was affected by alcohol and that the father was affected by marijuana and that these parents engaged in significant conflict in the presence of both children and that there were some elements of that conflict which involved physical violence (albeit – low level, if there is such a thing as low level violence).  

   (f)This was a determined mother who was affected by alcohol and a determined father who was affected by marijuana, and an awful outcome was inevitable. I treat the evidence of the mother and father as to their respective involvements as unreliable and the evidence of the paternal grandmother was coloured and subjective.

   (g)As to the father, having regard to his state and his anger, his behaviour was appalling. The same can be said of the mother and her use of alcohol.

   [5]Mother’s affidavit 14 February 2011, annexure KW1 – sheets 12-18.

8. The father conceded that he was a regular user of marijuana from his university days and at the time he commenced his relationship with the mother he was using marijuana regularly.  He now says that his use of it is rare or non-existent.  I accept his evidence as to his recent use of marijuana.

9. The father concedes that he was at one stage a heavy drinker.  He claims that his problem with alcohol ceased in about 2004 or 2005.  I have some doubts about the veracity of this evidence, although there is no evidence of recent abuse of alcohol by the father.

10. The father gave evidence orally arising out of an affidavit filed by the mother shortly before the commencement of the hearing.  There was an issue about the father collecting B from kindergarten and explanations as to what occurred on the second occasion that he collected the child.  The father denied a number of the allegations raised by the mother including telling B that she had to love the father, that he had placed a rat under her bed and that he was demeaning of the mother.  I accept the father’s evidence of this.

11. The father considers that the mother is stupid, difficult and at times ridiculous. The father’s evidence was that the communication between he and the mother is virtually non-existent.  It is clear that the father does not respect nor like the mother.  He says he does not expose the children to those beliefs, of that I am not convinced.

12. The father was cross-examined about some minor incidents in December 2011 where J was slightly burnt by a cigarette and another when J was inadvertently poked in an eye.  These were minor incidents which were blown out of proportion by the mother.  The father denied that he sticky taped J’s mouth, slapped J and generally denied that he uses bad language in the presence of the children. I accept that evidence.

13. The father gave evidence in relation to his views on AFL football which he described as ‘fairy football’.  His explanation as to the use of that term was unsatisfactory.  He clearly knew that it was a homophobic expression and his endeavour to minimise that expression was unsatisfactory. I am not convinced of the veracity of this evidence.

14. When cross-examined by the Independent Children’s Lawyer the father said he believed the mother had spent four years undermining his relationship with the children.

15. There was a claim, through B, that the father had photographed her in the shower and had pulled her pants down.  The father denied that assertion. This was investigated by the police and on this occasion, to the father’s credit, he facilitated their investigation by providing his computer.[6]  The police concluded:-[7]

    As a result of this investigation there appears to be minimal evidence to suggest that an offence has occurred.  This matter is to be solved (sic) as it is highly unlikely that an offence has occurred.

    [6] Exhibit ICL1 – Queensland Police Tab pages 87 to 90.

    [7] Ibid at page 89.

16. I have had the opportunity of viewing the father in the witness box and listening to his answers to questions in cross examination.  The father was not an impressive witness.  He is determined, fixed and at times heavy handed.

17. An example of this was when the mother became concerned as to the abuse of B.  On the advice of police she gave an explanation to the father as to why he could not see the children.  The father did not accept this explanation in November 2008 and attended the house, and I accept he was aggressive and demanding.  He then contacted the police and arranged for detectives to attend at the mother’s house to enquire (and no doubt observe) as to the well-being of the children.  He had little insight as to the impact of this upon the mother and upon the children.

18. From my observations of him in giving evidence both in 2011 and 2012 it is likely that he will comply with orders that the children spend time and communicate with the mother, but he is unlikely to positively promote a relationship between the children and their mother.  His request during part of the proceedings that the children should spend a short amount of supervised time with the mother on a weekly or fortnightly basis is an example of his fixed and rigid approach.

19. The father wanted to resolve matters after separation without the mother obtaining independent advice.  I am satisfied that his evidence in that regard, albeit coloured by his own views, shows some level of controlling behaviour.  The father endeavoured to undermine the mother’s relationship with her solicitors and had no insight into the impact of that.

20. The father was challenged as to whether he had a real interest in the younger child or whether his interest was primarily with the elder child. I accept he has an interest in and love of and for both of the children.

21. The father has a rigid and fixed approach and an example of the father’s rigid and determined behaviour was when he and the mother were having an argument in 2008 and he threw the mother’s handbag out of the car.  It was a way to get her out of the car. 

22. In terms of the father’s evidence in respect of the mother’s alleged entitlement to $70,000 in respect of superannuation, her contributions to the fund, his explanation as to the mother collecting material from the shipping container were indicative of the father’s prevarication and obfuscation in terms of his answers. 

23. Having heard his evidence and seen his demeanour, I am satisfied that the father has retained items of personal property and has not been forthcoming in disclosing the whereabouts of them, despite his evidence to the contrary. 

24. Observing the father giving evidence, he appears to be a very intense man and I am not satisfied that his evidence is reliable.  In earlier times the father made statements on a police investigation which he knew were false.  He was prepared, at that time, to mislead an investigation to preserve his own position.  The police records relating to him do nothing to cause me to be sanguine about his reliability and straightforwardness.

25. As to the reliability of the evidence of the father, he is not beyond using subterfuge to achieve a result.  In late April 2008 the parties entered into a parenting arrangement with the children which was less than he believed he was entitled to.  Whilst agreeing for less with the mother he saw a solicitor and was prepared to go to court to pursue his equal time.  

26. There was some evidence in relation to the father testing the rules in relation to his time and interaction with the children.  It is indicative of his character that he would push the rules and push authority however, this needs to be seen in the context that he had not seen his children for some time and was anxious to restore a relationship with them.

27. The father was cross-examined in relation to his use of marijuana and alcohol in terms of Dr K’s report he conceded most of the information in that regard.  He was not, initially frank, with Dr K in relation to the extent of the allegations of abuse.

28. The father gave evidence of normal toileting and care of the children whilst with him.  There was nothing remarkable in his evidence and he acted in accordance with discussions and the approach that he and the mother have consistently used.

29. The father asserted that Dr U, the mother’s psychiatrist, had told him that the mother was unable to make rational decisions when he said in his affidavit filed 11 February 2011:-[8]

    The mother told me that she raised the issue of wanting to separate from me with Doctor [U].  At the next session I briefly discussed this issue with Doctor [U] and he advised me that due to the mother’s depression, the mother ought to stay in the relationship as she was unable to make any rational decisions at that point in time ….

    [8] At paragraph 14.

1. In relation to this comment Dr U provided a letter to the mother’s solicitors:-[9]

   … I have been shown an affidavit of [the father] in which he states:

   My wife’s treating psychiatrist told me my wife is unable to make any significant life changing decisions. 

   I merely [but firmly] say that I have never made such a statement.

   [9] Exhibit ICL1 - Dr U Tab document 5

2. I prefer the evidence of Dr U to that of the father.  

3. The father was asked if he had considered the impact of changing the residence of the children.  He said he has considered that possibility.    

4. The father asserts that the mother has attacked him on two occasions, one in March 2008 when she allegedly slapped him three times and another on a flight to Asia when she hit him with a rolled up magazine.  There are no other episodes of alleged physical violence towards him.  I have doubts about the veracity of that evidence and the seriousness of the complaints.  

5. He asserts that he has not been violent to the mother, that he is not rigid and uncompromising in his approach to the mother.  I do not believe him, having regard to his evidence and that of the other witness and the medical report in respect of the father. 

6. The father says that he cares deeply for the children however, it is curious that he cancelled the medical insurance for the children because:-[10]

   I had also been maintaining private health insurance for the children but I cancelled this policy until the proceedings are resolved.  I am currently not spending any time with the children and do not have any access to them because of the Domestic Violence Order in place so it did not seem logical to continue to make these payments when the children would not be able to make use of them.

   [10] Ibid at paragraph 243.

7. When cross-examined in relation to this, the father prevaricated and asserted that he would volunteer to pay child support but then he cancelled his medical insurance.  It is a self focused approach in relation to this and I am not satisfied that his purported reasons for cancelling the insurance are his legitimate reasons.  He simply wanted to save money and he was covered by his entitlements through his pensions and entitlements.

8. During cross-examination it was asserted to the mother that the father was a passive person.  The mother denied that assertion and having observed the father giving evidence and having regard to the other evidence; including his approach to the investigation by police in November 2008 I am not convinced he is passive.  I am convinced he is assertive and is unafraid to robustly promote his views.

9. The father commenced these proceedings early 2009 and essentially sought equal time with the children within a short period of time.  Having regard to the age of the children, particularly J, it seems somewhat opportunistic and would have had an enormous impact on the mother and the then very young children.

Dr X

1. Dr X gave evidence in terms of his affidavit filed 8 August 2012.  Dr X is a Forensic Toxicologist and his qualifications were not seriously challenged.

2. Dr X prepared a report in which he analysed the Carbohydrate Deficient Transferrin (‘CDT’) test results of the mother to determine, in the absence of any other explanation, whether the results are consistent with alcohol abuse.  In summary Dr X concluded that the mother’s results were ‘elevated in the five of the seven samples collected including the most recent four samples collected between November 2011 and May 2012.’[11]

   [11] In the final paragraph, at page 17 of 17, of Dr B’s affidavit filed 8 August 1012.

3. He opined that in the ‘absence of underlying medical condition or analytical issues contributing to the elevation in the CDT results, those results were consistent with, and maybe caused by, or contributed to, by the excessive consumption of alcohol.’[12]

   [12] Ibid.

4. He said that the results were indicative of a possible moderate to heavy intake of alcohol.  I accept his evidence, in context with other evidence, that the mother was likely to be a heavy user of alcohol.

Ms R

1. Ms R is the paternal grandmother of the subject children and is the mother of the father in these proceedings.  She relied on three affidavits, namely those filed 11 February 2011, 5 April 2012 and 3 May 2012.  She gave evidence about her observations of conflict between the parties with regard to the circumcision of J and her observations of the mother consuming alcohol to excess.

2. Ms R endeavoured to be present at most of the visits (until May 2012) and maintained a diary.  She observed the handovers going reasonably well and that the children were happy in the care of the father.  She gave evidence of the father adopting a sensible child focused approach with the children.

3. In oral evidence Ms R said that the father did not use derogatory terms about the mother and that he does not physically discipline the children nor does he use belittling terms to them, particularly J.

4. Ms R says that when the children visited her son, their father, it was often at her home and that the father prepared meals.  There was an issue about two occasions where the children requested to be bathed and Ms R observed no difficulties with bathing.

5. Ms R presented as a careful thoughtful witness who was child focused.  She has clearly identified with her son however, she takes the care of the children seriously.  I generally accept her evidence, although it is coloured by reason of her close relationship with the father.  Her evidence is partly diminished by her failure to wholly acknowledge the inappropriate removal of J from the care of the mother in early 2008 and supporting the father’s desire at that time to wean the child.   

Ms N

1. Ms N was B’s home teacher at her present school.  She identified and confirmed the records she had kept in respect of the child.[13]

   [13] Exhibit ICL1 – Brisbane Catholic Education Tab, Bundles 32 and 37.

2. The mother had been concerned about the father collecting the child from the classroom rather than the office; this was another example of creating conflict by the mother.  The teacher said she observed the father there and when the mother complained she made an enquiry but on discussion with the principal there were no problems in this regard.  The father was not troublesome to the teacher.

3. Ms N said the child, apart from the first occasion when the child went to the father on subsequent occasions the child has been happy and runs to the father.

4. B is learning well at school.  There are some minor issues in relation to some behaviour, which, but for the background of this matter, would no doubt have been treated as iniquitous and were treated appropriately by the teachers.

5. I accept the evidence of Ms N.

Ms C

1. Ms C is the guidance officer at B’s school.  She has been assisting the child and her notes were part of Exhibit ICL1.

2. The mother had presented concerns about the child’s safety and also said the child B had displayed non-compliant behaviour.  This was not a concern of the school or a concern of the child’s teacher Ms N.

3. On 3 August 2012 the child saw Ms C at B’s request.  She wanted some information to provide to the Court, namely:-

   (a)    she would like to go to dad’s on Sundays;

   (b)    she didn’t like his food;

   (c)    she didn’t like dad collecting her from school;

   (d)    she wanted to sleep over at dads.

4. There was nothing in Ms C’s evidence causing concern in relation to the child seeing the father.

Detective Sergeant E

1. Detective Sergeant E gave evidence in accordance with material provided by Queensland Police particularly; QP …29 and QP …80.

2. These arose in respect of the complaints by the mother after the alleged disclosures by the child B in early November 2011.

3. The child B made no disclosures to the police officer.  What was worrying to the police officers was that there were two welfare checks requested by the father in respect of the children (none of which showed that the children were at risk).

4. The father declined to make a statement to police until he was informed of the nature of the allegations against him and when the nature of the allegations were raised he declined to make a statement except nominating someone else whom he thought may be responsible.  This police officer’s evidence does not assist in determining whether there is or is not a risk to the children if they are left in the unsupervised care of the father.

5. There is no doubt the mother was concerned for the children’s welfare at that time and complained to medical practitioners and to authorities.

6. The father would not accept a delay in the children seeing him and persisted with the requirement that there be welfare checks.

7. I accept the evidence of this police officer.

Detective F

1. Detective F was involved in the complaint made by the mother, in November 2011, that the father had acted indecently to the child B in terms of alleging that the father had taken a photo of the child with no clothes on and had pulled her pants down while she was sleeping and told her not to tell anyone.

2. The child made some limited disclosures and said that the father had taken photographs of her when she was getting dressed and pulled her pants down when she was asleep.  The police had access to the father’s computer, telephone and camera and found no photographs or any indication that photographs were present.

3. I accept the evidence of this police officer. 

Ms G

1. The mother relied upon an affidavit of psychologist Ms G filed 23 March 2012.  Ms G is a registered psychologist and no issue was taken as to her qualifications.  Ms G provided counselling to the child B between May 2009 and March 2011.  She was not seriously challenged as to the accuracy of her records.  Ms G agreed in cross-examination that the mother had informed her that the child had said ‘daddy hurt my wizzy’ and other matters contained in her intake form.

2. The purpose of her therapy with B was to go through protective behaviour.  The mother reported to Ms G incidents of the child acting out however, Ms G observed none of that in her sessions.

3. The child B made one disclosure on 26 June 2009 in these circumstances:-[14]

   [Ms G]   -     Who else is allowed to touch your private parts?

   [The child]  -  No-one

   [Ms G]   -     And you’re not allowed to touch anyone else’s private parts either are you?

   [The child]  -  Yes, daddy’s.

   [Ms G]   -     Why would you need to touch daddy’s private parts?

   [The child]  -  That is what he does.

   [14] At page 4 of Annexure KB1 of Ms G’s affidavit filed on 23 March 2011.

4. In February 2011 Ms G sent a letter to the child B’s then treating general practitioner, Dr H, informing her that ‘[B’s] mother (emphasis added) reports that [B] expresses considerable anger directed at her mother before contact and states that she does not want to see her father.’[15]  The psychologist went on to say that she explained to the child that it was not her mother’s decision and that she and the child worked on strategies to help B express her anger more appropriately.

   [15] At Annexure MB6 of Dr H’s affidavit filed 28 February 2011.

5. The complaint was apparently not made to Ms G.  There were no significant challenges to her evidence.

Dr U

1. Dr U is the mother’s treating psychiatrist and has been caring for her since December 2005.  There was no challenge to his qualifications.

2. He relied upon his affidavits filed 25 March 2011 and 3 May 2012.  He had diagnosed the mother as suffering from a major depressive disorder which was, at least in February 2011, in remission. 

3. In his subsequent affidavit Dr U expressed an opinion that he had seen the mother three times between March 2011 and March 2012 and that she remained stable by taking her medication.  He opined that the process of ‘divorce, separation, and custody are her stressors and without these stressors she may be able to cope without medication’.[16]

   [16] At Annexure AU-2 of Dr U’s affidavit filed 3 May 2012.

4. Dr U confirmed that the use of alcohol with the medication being taken by the mother has the effect of significantly increasing the impact of alcohol.

5. Dr U was taken to the report of Dr I dated 27 March 2007[17] where the mother disclosed drinking a bottle of wine per day.

   [17] Exhibit ICL1 - Dr U Tab at pages 8 to 13.

6. I accept the evidence of Dr U.

The mother

1. The mother relied on a series of affidavits filed 14 February 2011, 25 February 2011, 4 April 2012, 2 May 2012 and 9 August 2012.  In addition she relied on her financial statement filed 2 May 2012.

2. She gave evidence by leave including that she had a friendship with a person called Mr L (whom she says she has known for twenty three years) but is a friendship only and is not a romantic relationship.

3. In cross-examination the mother acknowledged that from time to time B had been untruthful particularly in her statements as to the mother’s relationship with Mr L.  However, the mother says she can tell when the children are being untruthful.

4. The mother was not an impressive witness.  There were a number of examples of her being less than frank.  One example was in terms of her response to questions about the delay from the date orders made in March 2009 and the commencement of the time the father spent time with the children in August 2009.

5. She prevaricated in terms of that evidence and often resorted to purported failure of memory.

6. Another example was in relation to the cross-examination relating to B’s alleged disclosures in January 2009.  I am not convinced that the mother saw the interaction between B and her cousin and it is more likely that it is simply a repeat of the story given to the mother by her sister.

7. To that end her evidence is at times unreliable.  Dr I (a psychiatrist) at page 5 of her report noted:-[18]

   [The mother] reports that at present she is consuming approximately one bottle of wine daily.  She usually drinks after her daughter has gone to sleep.  She finds that it relaxes her and helps her to sleep.

   [18] Ibid at page 12.

8. Dr U said that would have the effect of two bottles of wine and would cause her to go to sleep.

9. There is some evidence that the mother has, from time to time, had recommendations that she reduce her intake of wine.[19]

   [19] Exhibit ICL1 - Dr U Tab - Report Dr I dated 27 March 2007 at page 12.

10. I am satisfied that there is evidence of excessive alcohol consumption by the mother. 

11. The mother was questioned about whether there was another explanation for the child’s behaviour, which was, whether it was the result of the examination the child had been required to undertake by the various doctors following the alleged disclosure in November 2008.  The mother did not consider the other plausible explanation, which is, the father used a lotion rather than powder to avoid or treat nappy rash.

12. In her material the mother has asserted that when she was talking to the child on 5 November 2008 the child says that the father had hurt her.  That is clearly an amplification of the events by the mother.  The child had initially made it clear to both Dr H and the mother that the father had not hurt her.[20]

    [20] Exhibit ICL1 – V Medical Centre Tab at page 22.

13. Whilst it is not possible to determine that no abuse took place, the most likely explanation for the events was that when the father was changing the child’s nappy (as the father had done for many years in the past) he had applied cream to that part of the child’s anatomy.  As this was different to the approach adopted by the mother, the mother immediately concluded that the father had abused the child.

14. Irrespective of being shown what she said in her earlier affidavit and what is recorded by Dr H, the mother still insisted that the child asserted that the father had hurt her.  This is indicative of the mother reconstructing evidence and being reluctant to concede that circumstance even when it is obvious.

15. The mother was informed by Dr T of a number of innocent explanations as to the things said by B on 5 November 2008 but the mother rejected those and would only conclude that there was abuse by the father.

16. The mother was cross-examined in relation to some evidence that her mother had seen B put a bolt into her vagina.  That was not contained in the mother’s affidavits or her parent’s affidavits.  As a consequence there is concern about her evidence.  The mother’s explanation for this was that there were so many of these events.

17. Similarly in a report from the Department of Child Safety (created 23 September 2009 but in relation to events earlier that month) there was a suggestion that the maternal grandmother had caught the child endeavouring to place a toy syringe into her cousin’s vagina.[21]

    [21] Exhibit ICL1 - Department of Child Safety Tab at page 43.

18. After the alleged disclosure on 5 November 2008 the mother declined to allow the children to spend time with the father.  The father, on two occasions, arranged for the police to attend the mother’s premises in relation to the children.  The first was on 7 November 2008 and the second was on 10 November 2008.

19. When the police attended the mother’s home on the second of those occasions the police were unable to rouse her.  There is some evidence that the mother was intoxicated at the time.  Although the view of the police was that she was slightly effected by liquor and had consumed two glasses of wine.  I am not satisfied that she was significantly intoxicated at the time and I make no criticism of the mother in relation to her statement at the time.

20. The father had claimed that the mother had said she was going to cover herself and the children in petrol and set them on fire.  The mother denied that assertion.  Apart from a relatively iniquitous disclosure made to a psychiatrist in the context of a compensation claim there is no evidence that the mother has threatened the children or seriously threatened her own life.

21. The mother was cross-examined as to her relationship with the father during 2006 and 2007.  This cross-examination was of little assistance.  At times the mother said the father was helpful and at times she acknowledged that he contributed to the parenting of the children.  This was in the context of the mother’s pregnancy with the children and, clearly, the relationship deteriorating.

22. Similarly there was some criticism of the mother arising from discussions about a possible reconciliation in April 2008, the parties signing the contract to purchase property in May 2008 and a trip away in September 2008.  These are indicative of a couple whose relationship had come to an end and were obviously looking at alternatives other than the relationship breakdown.  It does not mean the mother was not afraid of the father from time to time.

23. The mother was cross-examined in relation to what she regarded as the father’s rejection of J.  I do not accept her evidence in that regard.  It is clear that the mother and father had negotiated an arrangement for the father to see J and it was, at that time, less than the time he was seeing B. 

24. I find that the mother’s assertions that the father had rejected J, in those early months prior to November 2008, but after separation in April 2008 are likely to be an exaggeration or fabrication by the mother.

25. The mother gave evidence that she will inform B of the history of this matter when she is older and it is clear, from her evidence, that she will also inform J.  The mother says that if the Court finds the father is not an unacceptable risk she would accept that decision.  This is somewhat at odds with the mother’s assertion that she would ‘go to her grave’ believing the father has sexually abused B and has emotionally and physically abused J.  It is also contrary to the mother’s approach in April 2011 when she consented to orders that the children spend unsupervised time with the father including leading up to overnight time.

26. After the events in early November 2008 the mother sought protection and went to a safe house with the children and eventually moved in with her parents.  The mother stayed in the safe house for about five weeks.  She also applied for a violence order.

27. She was criticised in cross-examination in relation to the father having a gun.  This was something of a ‘beat up’ on the part of the father.  I accept the mother was asked whether the father had access to guns and the mother informed authorities that he did, having regard to a gun on his father’s farming property.  In keeping with any aspect of this case the father then exaggerated the impact of that.  It was sensible for the question to be asked and enquiries to be made.  No more, no less.

1. The mother complained about the father’s parenting in that on one occasion he placed B in the bedroom with the lights off and when she intervened, the father yelled at her.  I accept there is some accuracy to this in terms of parents learning how to parent in a relationship which was under pressure.  Similarly as to the criticism of the father’s approach to B during swimming lessons (where he expected more of her), this is not indicative of abuse but indicative of learning how to parent and then being used as ammunition in the heat of the ongoing conflict between these parents.

2. In her domestic violence application the mother said that the father pushed B and lifted her by the arms.  From the mother’s evidence it is clear she had no concerns about this ‘so called violence’ by the father prior to separation.  I am satisfied that this is another exaggeration but by the mother on this occasion.

3. A further allegation of sexual abuse was on made 28 November 2008.[22]  The mother apparently telephoned the Department of Child Safety and informed them that B had allegedly made a disclosure to the aunt that ‘she [the child] had to play with daddy’s willy’ (sic).  The mother said this allegation was made by Ms S. The mother conceded that this allegation was not put in affidavit form. Yet the mother said in paragraph 55(q) of her affidavit filed 14 February 2011 that a similar allegation had been made and that it came out of the blue.  This is indicative of the mother at least exaggerating and perhaps fabricating evidence of some disclosures.

   [22]ICL1 –Department of Child Safety page 15. 

4. Commencing after the initial disclosures there were an increasing number and scope of disclosures at a time when the children were not seeing the father.  I have concerns as to the veracity of many of those claims. Some of those claims were made at times relevant to court proceedings or investigations.  There was a significant investigation by the Department of Child Safety, called a ‘SCAN’ investigation which involved staff, specialist paediatrician, the police detective sergeant, senior guidance officer, a team leader and a SCAN co-ordinator.  This took place on 1 April 2009.

5. The conclusion of that group was set out in their minutes where they concluded:- [23]

   SCAN advises that among the accumulated experience of the core members the clarity and demonstrativeness of the child’s disclosure would be highly unusual for two year eight month old child.  Therefore, despite the impression of protective behaviour on the mother’s part, concern remains about the possible coaching [emphasis added] in the context of ongoing family law dispute.  The future concerns of this nature are reported, the case should be reopened and SCAN with a view to agreeing on the correct course of action which may include ceasing any further investigations or interviews in relation to sexual abuse complaints.

   [23] Exhibit ICL1 Department of Child Safety – Tab - at page 37.

6. The case was then closed.  This was followed by further disclosures in April, May and June 2009 prior to the children having any time with the father.  The mother’s amplifications of her concerns about the child B continued after the child commenced spending time with the father at the Children’s Contact Service.

7. The mother provided information to B’s school which caused the school to put in place (appropriate) mechanisms in case there were indicators of some form of abuse.

8. The child now attends a counsellor at school and the school asked for a photograph of the father.

9. The mother was cross-examined about the time which she alleges the child was engaging in what the mother said was sexualised behaviour with her doll.  A similar disclosure was made a few days later but the mother said this was a different occasion.

10. The mother’s parenting of B is sometimes problematic.  B has only been sleeping in her own room since late June/early July 2012 and the mother sometimes feels that when she is talking to the child she is talking to an adult. She describes B being difficult at times including the need to change the locks on the doors and the child being defiant. B has exhibited anger towards her brother and the mother provided evidence in that regard.  The mother has sought assistance to help with her parenting and has undertaken a course in boundary rules and dealing with difficult behaviour.

11. The mother has limited insight into how her behaviour and that of her immediate family are adding to this problem, and in many ways this is reflected in the reports of Mr P.

12. When the mother was cross-examined about when the child B had said she wanted to sleep over at the father’s home the mother said she was shocked.  The mother conceded that at times she had difficulty containing her emotions.  When cross-examined by the Independent Children’s Lawyer there were quite a number of examples of the mother lacking insight at some levels.

13. The mother acknowledged that B, and for that matter J, were sometimes not accurate in their recollection of events however, when the children say anything negative about their father it appears that it is almost invariably accepted as accurate.  These include the following:-

    ·J and B saying that J nearly drowned in the swimming pool (although the mother admitted this was a dramatisation).

    ·The sticky tape allegedly put on J’s lips and then put on B’s lips.  The mother could see no problem with this and seeing the crocodile with its mouth taped shut.  The mother accepted this although when challenged about B saying that their mouth had been taped for 60 hours then reduced to half an hour the mother still accepted it.

    ·The mother rewards the children for saying bad things about the father as do the maternal grandparents.  The evidence is replete of those issues including confirmation that the children should feel unsafe and in many ways cross-examination by the Independent Children’s Lawyer showed that the mother and her family demonise the father and seem to treat the father as a ‘monster’ that the children should fear.  This is entirely unsatisfactory.

14. It is significant that one of B’s wishes is to spend overnight time with her father.  The mother does not support the child in this regard.

15. Having regard to the cross-examination of the mother, it is clear that B and J live in a household which is subject to criticism (sometimes vilification) and demeaning of the father, it is implicitly and explicitly encouraged.

16. The mother has not considered that B’s behaviour could arise by her limited relationship with the father.

17. I am satisfied the mother discourages the amount of time the children spend with the father and as set out elsewhere vilifies the father.

18. The mother’s evidence in this regard was troubling and at times incredible.

Ms L

1. Ms L is a speech therapist who has been treating the child J since May 2012 in terms of speech issues.  Ms L affirmed an affidavit of 9 August 2012.  In that affidavit she provides a report as to the assessment of J’s speech disorder.  She concludes that J has a severe phonological disorder and that further sessions are required to determine if ‘[J] responds well to a phonological approach to therapy or whether a more motor based treatment technique is more appropriate.’[24]

   [24] At page 7 of Ms L’s affidavit affirmed on 9 August 2012.

2. Her oral evidence was that she sees J weekly for about forty five minutes per session and that he is progressing and is maintaining that progress. 

3. Ms L said that the mother had initially contacted her but had been to see another speech therapist but had then come back to Ms L in May 2012.  She said that the father had left a message for her to call him on one occasion.  Ms L said she contacted a solicitor who suggested that she did not return the father’s call.  She acted in accordance with that recommendation.

4. She said that she can easily continue with J’s therapy if he lives with his father and says she has developed a rapport with the child.  She is happy to see the child and is comfortable working with the father.

5. At paragraph 8 of her affidavit Ms L observed the following:-

   On about Wednesday 1 August 2012 I was having my usual session with [J].  I often use pictures and images during our sessions and it seemed that something triggered [J’s] memory as he stated to me, out of the blue, words to the effect of ‘Daddy put ‘icky tape on me mouth when me was a baby’ and ‘that’s why my mummy ran away’.  I said to [J] “that’s not very nice is it”.

6. Her evidence was not seriously challenged.

Dr H

1. Dr H was B’s general practitioner.  Dr H swore two affidavits which were relied upon by the mother in these proceedings, namely her affidavit of 28 February 2011 and 3 October 2011.

2. Dr H’s qualifications as a medical practitioner were not put in issue; however her qualifications in terms of recognising child abuse were very limited.  Dr H conceded, in fairness, that she had no experience of dealing with disclosures in Australia in particular and later conceded that she had very little experience as a medical practitioner in terms of child sexual abuse.

3. Her evidence seemed to support the conclusion that the mother had high results of the CDT tests and that was most likely indicative of significant use of alcohol.  On 6 November 2008 when B presented with the mother it was the mother who reported what B had told to her including:-

   Last week [B] told her mother that daddy plays with her whizzy. [25]

   [25] Annexure MB1 of Dr H’s affidavit filed 28 February 2011.

4. Dr H confirmed the child did not say to her that the father hurt her ‘whizzy’ but Dr H assumed this from her questions.

5. In terms of her report on 7 November 2008 Dr H contacted the Department of Child Safety and sought guidance in completing the form. 

6. The practice adopted by Dr H, when the mother came to see her with the child, was to ask the mother what the disclosures were about and on some occasions the child would repeat those disclosures.

7. In re-examination Dr H conceded that the child acted out or displayed behaviour when repeating things the mother said.  However, I am concerned about the nature of those disclosures bearing in mind the circumstances.

8. In March 2009 the child was interviewed by a team arranged by the Queensland Child Protection Authorities, a SCAN[26] team.  This consisted of a paediatrician, police officer, and child safety officers from the Department of Child Safety.  Prior to that meeting Dr H was contacted by a child paediatrician, Dr T, who is an experienced staff specialist paediatrician with experience in dealing with child sexual abuse, and he informed her about what was going on.

   [26]Suspected Child Abuse and Neglect team

9. Sometime between 1 April 2009 and 6 April 2009 Dr T contacted Dr H and provided advice to her in relation to the outcome of the SCAN enquiry.  Dr H’s evidence was that Dr T raised issues about the potential of coaching and said that it may be better that Dr H did not interview the child.

10. Dr H had no clear recollection of that event although in her notes of 6 April 2009 she notes the following:-[27]

    [27]Exhibit F1 - Consultation notes of Dr H at page 13.

    [The mother] and her [the maternal grandmother] came to see me.

    [they were] very distressed about what Dr [T] said to me last week about the possibility of [B] being coached and also the fact that she cannot come into see me.

    [B] said things to me which she has never told them even, which came as a shock.

    She has a good report (sic rapport) with me and feels comfortable here.

    …[The maternal grandmother] read things out of a little pink book in which they write every time [B] says or does something which look suspicious.

    They will give me a copy of the information in the book.

    The solicitor told them to write everything in the book.  Will need it in Court.

    [The maternal grandmother] read to me what [B] said to her about touching her boobies.  Also she wanted to put the marker pen into her anus.  Very upsetting to both of them.

    Also how she rubbed her grandfather’s nipples.

11. Notwithstanding the advice given to her by the experienced paediatrician, Dr H put in a GP Mental Health Care Plan on 23 April 2009.[28]  In that report Dr H observed:-

    …The stories she has come out with is sickening and in my experience as GP, I don’t think a 2 year old will say things like this unless she was repeatedly exposed to some form of sexual abuse.

    [28] Exhibit ICL1 - V Medical Centre Tab at page 8.

12. Dr H continued to be a conduit for the mother and maternal grandparents to make complaints and lodge complaints through the Department of Child Safety.

13. I am satisfied that Dr H, in this case, lost objectivity.  Dr H did not consider alternatives and did not retain that objectivity which was needed. She had little regard to the then age of the child (2-3) and that the child had not spent any time with the father yet there were cascading and increasing complaints to her.  Dr H gave little weight to the recommendations of Dr T, a paediatric specialist in this area.  An example of this was that she set out in that mental health care plan the following:-[29]

    The SCAN team seems to think that she has been coached, even though the paediatrician only examined her once and could not get anything out of her because she was hysterical.

    [29] Ibid at page 9.

14. Most of Dr H’s information was taken directly from the mother (and her family) without reservation.

15. Unfortunately, because of her well intentioned but misguided approach, the evidence provided by Dr H needed to be treated with great care.

Ms W

1. Ms W provided evidence in three affidavits, namely those filed 15 February 2011, 4 April 2012 and 9 August 2012.  She is the maternal grandmother of the children.  The mother and children resided with her for some time following separation, although they have not lived with her for the last six months before the 2012 hearings.

2. The maternal grandmother is closely aligned with the mother and has little or no respect for the father.  She provided evidence much of which discussed an assessment of the father’s character and his temperament.  I accept her evidence that the father had a strong temper and a capacity to appear menacing and use a loud voice.

3. The maternal grandmother complained that the father was a heavy drinker from time to time.  I accept her evidence (although there is likely to be a degree of exaggeration in respect of the events in early April 2008 when the father lost his temper and was verbally abusive).

4. By the time the mother and father had finally separated in 2008 the maternal grandmother had adopted an overtly hostile approach to the father and saw little or no good in him.  I am concerned that her observations and her recollections were marked by this animosity to the father.  It also flavoured her evidence in terms of the mother.  An example of this was when the police attended at the mother’s home on 10 November 2008, in circumstances where the mother had been drinking alcohol (the police had asked the maternal grandfather to remain at the home).  The maternal grandmother in her evidence asserted:-[30]

   A short time later the police left [the mother’s] residence and [the maternal grandfather] decided to stay at [the mother’s] for the rest of the night as he had done on other occasions because of previous threats and abuse made by [the father] and because of this serious false complaint.

   [30] At paragraph 21 of the maternal grandmother’s affidavit filed 15 February 2011.

5. The evidence of the police, which I accept, was that they insisted that the maternal grandfather remain at the home. 

6. The maternal grandmother gave evidence of the continuing and ever expanding allegations of sexual abuse made by the child from late 2008 and onwards. These alleged disclosures continued throughout 2009 despite concerns raised by the Investigative Authorities (SCAN) in April 2009.  Dr H’s assessment (of which I have concerns and which were not based on professional experience) was that the child had been sexually abused.  This assessment was provided to the maternal grandmother.  I am satisfied that in this difficult and highly suspicious context any unusual behaviour of the child B was likely to be attributed to sexual abuse by the father.  The attitude of the maternal grandmother and mother was to encourage B and later J to make disclosures and/or complaints.  The cigarette burn and the poke in eye etcetera.

7. Another example of this was the assertion by the children in early 2012 that J had had his mouth ‘sticky taped’ shut.  This on the surface seems quite preposterous.  Added to this were further disclosures by one or other of the children that J was tied to a chair and that B needed to cut him free, and stories that entered into the realms of fantasy.  They were clearly fantasy.  They are likely to reflect the children seeing crocodiles with their mouths taped shut and reading stories.  However, both the mother and maternal grandmother accepted this evidence as absolutely correct.

8. In 2012 B reported at school that she was in trouble with the mother and maternal grandmother because when seeing a school counsellor she had raised overnight time with the father.  The mother’s and maternal grandmother’s evidence in explaining this was unconvincing.

9. I am satisfied that the child was met by overt criticism when she raised a question about spending a night with her father.  I am satisfied that the child was encouraged to blame the father for that thought.

10. What is educative about this evidence is that the maternal grandmother says that either the reporter was incorrect (which was unlikely in the context of these high conflict parents) or what the child had said had been misunderstood or misinterpreted.  The maternal grandmother is able to be discerning of the child’s statements made contrary to the interests of the mother but not likewise in relation to the father.

11. I am concerned about the veracity of her evidence in relation to her observation as to the alleged changes in J’s demeanour and his distress.  I also have concerns about the veracity of her evidence in relation to the encouragement of the children to see their father.

12. Overall, whilst some aspects of the maternal grandmother’s evidence are able to be accepted, much of it must be seen in the context of her animosity towards the father and, her determination for there to be no relationship between the children and the father.  As such her evidence must be assessed against objective criteria.

13. The maternal grandmother has no respect for the father and sees little positive aspect about him.

Mr Z

1. Mr Z is the children’s maternal grandfather.  He provided evidence contained in his affidavits filed 14 February 2011, 4 April 2012 and 9 August 2012.  He is a retired police officer and was very formal and careful in giving his evidence.

2. Mr Z saw little positive in the father apart from some initial positive views when the parties were first married.  He has little respect for the father.

3. In his affidavit the maternal grandfather provided a scathing assessment of the father and I am satisfied that there is a degree of exaggeration particularly in the early years.  I am satisfied that his evidence about the father’s volatile personality and anger is based in fact although the evidence is somewhat exaggerated.  There was an incident in March 2008 which the maternal grandfather described in his affidavit of 14 February 2011.  I accept that this was a genuine description of the event and the father’s anger and abusive language including use of the word ‘moot’ in a most derogatory reference.

4. The maternal grandfather was upset that his daughter was not being protected as much as he believed she ought to be.  It is clear that the maternal grandfather made threats of ‘bricking’ the father to the police.[31]

   [31] Exhibit ICL1 - Queensland Police Tab at page 76.

5. The maternal grandfather accepted unreservedly the abuse of the children including the sticky tape over the mouth.

6. He was, more sceptical, of the later disclosures about J’s hands being tied. 

1. In the husband’s affidavit filed 11 February 2011 he says:-

   154. The wife and I equally shared the mortgage payments on the [M Town] property which were deducted from our respective bank accounts.

   155.On the 6 March 2009 I suggested to the wife’s lawyers via email that the wife should take over the full mortgage repayments.

   156…Despite this email, I continued to make the mortgage payments as best I could, but due to a need for me to meet other expenses, by 7 April 2009, I was $1737.58 in arrears of those repayments.  For example I had to pay $2,000 after the motor in the [SUV] blew up, $800 to buy fresh tyres for [vehicle 2].

2. In his affidavit filed 25 February 2011 the father says:-

   27.The former matrimonial home has been transferred into my name only on the title deed pursuant to the transfer signed by the wife, and I as directed by FM Demack.

   …

   29. Since 6 February 2008 I have made the loan repayments to [Q] Credit Union totalling $35,611.06 and the mother has paid $7,357.22.  This represents a financial contribution of 82/18% in my favour.

   30. Since 9 February 2008 I have made all the rates repayments except for one payment from the mother on 5 October 2009.

   …

3. In his affidavit filed the 5 April 2012 the father says:-

   42.I maintain the house, including payments of the mortgage, (which I have refinanced with …Bank) into my own name with the assistance of my mother, [Ms R]) rates, insurance and outgoings etc. without any financial contributions from the mother.

   43.[The mother] made no contributions on a financial or non-financial basis to the house at all since separation. 

4. The mother has made contributions to the conservation of the house since separation, by reason of her continued exposure to the mortgage liability and leaving her capital in that property..

5. The mother says there should be rent paid on the M Town property.  Having regard to the evidence of the father I am satisfied that he placed people in that property to maintain it and I make no adjustment in regard to the claim for notional rent.

Other property

1. The mother claims $38,800 in relation to these items which she says were items left at the former matrimonial property at the time of separation.

2. The mother submits that there were whitegoods in the shipping container to the value of $8,800 and other items, including new furniture, kitchenware, china etcetera which were being stored for placement in the new house as well as pot plants which would cost money to replace.

3. There is evidence of the mother to say that these items were presents and evidence of the father to say they were not.  There was no evidence as to the value of these items or evidence as to what was taken and what was not taken.  The onus of proof is on the mother and in these circumstances that onus of proof has not been discharged.  As a consequence I will not be adding back the sum of $38,800 and I will not accept as property the alleged claim of $38,800.

4. The father was cross-examined in relation to the sale of the business.  He had an interest in this business although it was run by members of his family and by him and he was from time to time assisted by the mother and on a limited occasion her family.  The business ceased operating when he sold it to his sister.  I am not satisfied there is any undisclosed asset in respect of this business.

5. There was an issue as to the value of the mother’s jewellery.  No valuation was adduced in respect of the jewellery and the mother asserted it had little commercial value. 

6. The father did not address the question of the mother’s jewellery in his written submissions.  However, at paragraph 165 of his affidavit filed 11 Feb 2011 he says:

   During the Course of our relationship I estimate that I purchased approximately $20,000 worth of jewellery for the mother which remains in her possession.  This included $15,000 for the wedding, engagement and eternity rings; $5,000 for one pair of 1ct diamond earrings 2-3 pendants and assorted rings and bracelets.

7. In the absence of independent evidence of value and acquisitions, I will treat the value as nil.

8. During the course of the relationship the mother received some deposit monies by Mr HH.  The mother used these monies for living expenses.  I am satisfied that they were used for that purpose or have included a reduction of the father’s credit card liability.  I have had regard to this in terms of contribution.  As such I do not treat that refund as property for the purpose of this determination.

9. Each of the parties took goods and chattels at separation and has agreed on the value of that property.  I will treat such property as owned equally, subject to adjustment, if any according to law.

10. Having regard to the existing evidence, and as best I can, I have determined the existing legal and equitable interests the parties have in the property which they have identified.  As I said earlier the parties met and commenced living together in 2005, and they married in April 2007 and separated in April 2008. They have lived apart and been in dispute since that time.  I am satisfied that it is just and equitable to make a property orders.  The question is what appropriate orders, if any orders I should make.

Regarding the matters to be taken into account under s 79(4) and consideration whether to make orders for an adjustment of property from the existing interests having regard to the requirements of s 79(2)

Contributions

1. The father’s initial contribution was significant.  The father’s submissions were that the parties were in a largely similar financial position during their relationship in that they were both in receipt of modest compensatory pensions from government authorities.[62]

   [62] At page 8 of the father’s written submissions dated the 23 January 2013.

2. Further, counsel for the father submitted that the he had contributed the sum of $136,000 from the proceeds of sale from his II Property, the sum of $22,000 by way of compensation for a knee injury and a further sum of compensation payment of $22,000 for a Post Traumatic Stress Disorder.

3. Counsel for the father submitted that apart from the lump sum amounts set out above, that the father was unsure how the mother used the money (as the parties maintained separate accounts) and deposited it directly into her bank account, apart from the TPI compensation, which he said she had elected to by way of instalments rather than as a lump sum.[63]

   [63] At page 9 of the father’s written submissions dated 23 January 2013.

4. Counsel for the father submitted that the father also made financial contributions by way of payment of the family bills such as food, utilities, rates etcetera directly from his bank account.  He said this was in contrast to the mother who he said spent her money on shopping for clothes and other items for herself and the children.

5. Finally counsel for the father submitted that significant weight ought to be attached to the financial contributions made by the father because they were used towards the acquisition of the former matrimonial home.

6. Counsel for the mother submitted:-[64]

   [64] At page 3 of the mother’s written submissions provided 23 of January 2013.

   The mother agrees the father contributed $150,000 to the relationship being $136,000 (from the sale of the [II Property] owned previously) and $15,000 received as compensation for his knee. The mother does not accept the sum of $22,000 claimed to have been contributed by the Father from PTSD compensation payments.
   The mother contributed $74,000 to the relationship:

   a)$19,000 from the sale of the property at [FF Town];

   b)$8,000 from the sale of a vehicle 1 vehicle;

   c)$33,000 from Workcover compensation; and

   d)$16,000 from the [work] payout (which provided $5,000 toward the land deposit at [A Street]).

   Even so, the father has made a significant contribution (two times greater than the mother) by way of a lump sum.

1. As to initial contributions the father’s case is that he contributed over 90 per cent of initial contribution and the mother asserts it was 66 per cent.  On balance on this issue I prefer the evidence of the mother.

2. Following cohabitation the mother received compensation of $33,500 and $16,000.  Both parties received additional money by way of pensions and the like.

3. Counsel for the father submitted that the father made non-financial contributions in the form of cooking, cleaning, washing dishes and maintaining the house inside and out and was essentially a “house husband” during the parties’ relationship.[65]  In support of these assertions counsel for the father relied upon the subpoenaed notes of Dr U relating to the mother’s abuse of the father and her alcohol abuse.

   [65] At pages 11 and 12 of the father’s written submissions dated 23 January 2013. 

4. Counsel for the father submitted that the father not only cared for B but the mother as well, during the early days of their relationship, as the mother suffered from major depression and would often sleep up to 18 hours a day.

5. Although counsel for the father submitted that the mother was primarily responsible for the washing and ironing of clothes and that she usually fed the children.

6. I do not accept the father’s assertions in this respect and his evidence to that end was unreliable.  I accept his assertions that his money was used to pay bills and the mother’s for her personal use or that of the children.

7. Apart from the compensation payments of about $49,500 the contributions during the marriage were equal.  I accept that the mother used about $5000 of that sum as a deposit on the M Town property.

8. Each contributed equally to the other non financial contributions.

9. In relation to post separation contributions counsel for the father asserted that although the parties had purchased the land at M Town during their marriage the construction of the former matrimonial home did not commence until after they had separated and as a consequence the father must have contributed all of the increase in the value from $480,000[66] to $650,000 which is the current agreed value.  Further counsel for the father submitted that the father has made the entirety of the post separation contributions from the 15 October 2009 to the date of the trial in relation to an increase in value of the former matrimonial home of $170,000 (from $480,000 to $650,000).  Having regard to the comments made earlier I do not accept this submission.

   [66] It is noted that at paragraph 2 of the Orders made on the 15 October 2009 the parties agreed that the value of the former matrimonial home at that point in time was $480,000.

10. The mother had the primary care of the children from separation to the date of the hearing.  I am satisfied that the contributions post separation were equal.

11. The mother asserts that the father contributed $150,000 at the beginning of the relationship but does not accept $22,000 claimed to have been contributed by the father from a Post Traumatic Stress Disorder compensation payment. 

12. I am satisfied that the mother has made payments to the mortgage at various times over the years as asserted by her of $14,000 and then $7,300.

13. At one stage the mother asserted that she has had difficulties dealing with the father’s drug, alcohol, anger and psychological issues during the relationship.  This was a type of Kennon[67] claim.  That claim seems not to have been pursued, and in any event, on the evidence, and I am not satisfied that that claim was established. 

    [67] Kennon v Kennon (1997) FLC 92-757.

OTHER FACTORS

1. The matters to be so taken into account under section 75(2) of the Act are :-

(a)the age and state of health of each of the parties; and

1. The father is aged 41.  Counsel for the father submitted that the parties are of a similar age and suffer from similar health problems that totally and permanently incapacitate them from working on a full time basis.

2. I do not accept that he is wholly unable to undertake paid employment.  He has a blue card, although there is no evidence as to what employment, if any, is available to him.

3. The mother is aged 40 and says that she has been classified as totally and permanently incapacitated.  The mother does not address this factor in her final submissions.

(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

1. Each party has a pension entitlement, however, the father’s pension entitlement is double that of the mother.  Counsel for the father asserts that the parties have similar incomes and financial resources.[68]  I do not accept that submission, as the children will be in the care of the father and as a consequence the mother will no longer receive the family benefits for the children.

   [68]

2. Counsel for the mother asserts that the father will have an income producing asset as the sole owner of the former matrimonial home.  The father will have either the ability to occupy the property at A Street or to rent it.  Either way he would be responsible for the mortgage.  The father lives on his parent’s property and that will assist him in terms of accommodation for the children, provided he lives there.

3. Each of the parties have limited capacity to earn income.

(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

1. As a consequence of the orders I intend to make, the father will have the primary care of the children however, after four months, the mother will have significant and substantial time with the children. 

(d)commitments of each of the parties that are necessary to enable the party to support:

(i)himself or herself; and

(ii)a child or another person that the party has a duty to maintain; and

1. Counsel for the father submitted the father’s commitments have increased as he has been meeting the payments of the full mortgage over the M Town property up to and since its refinance.[69]  The father can dispose of the M Town home or reside in it.  

   [69] At page 16, paragraph 43 of the father’s written submissions dated 23 January 2013.

(e) the responsibilities of either party to support any other person; and

1. This is not a relevant consideration in these proceedings as neither parent has re-partnered or supports other persons, except into the future the father will support the children. 

(f)subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under:-

(i)any law of the Commonwealth, of a State or Territory or of another country; or

(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

1. Counsel for the father submitted that both the parties are eligible for lifetime support via a pension.  I adopt that submission.

(g)      where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and           

1. Neither party addressed this issue in their final written submissions; as such I accept that it is not relevant.

(h)The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling the party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

1. It was submitted by counsel for the father that this was not a relevant consideration in these proceedings.  He submitted that the health issues suffered by both parties means that they are incapacitated from work.  I accept that submission.

(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

1. Neither party addressed this factor in their written submissions and as such I do not consider this is not a relevant consideration in these proceedings.

(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

1. The mother did not address this factor at all in her submissions.  The father said it was not applicable and that neither party has made any significant contribution in this regard.  This is not a relevant consideration in these proceedings.

(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

1. The parties’ marriage was of a relatively short duration of 11 months.  Their entire relationship was a total of about three years.

(l)the need to protect a party who wishes to continue that party’s role as a parent; and

1. This is a matter where both parties wish to continue in their role as parents to the children which is ultimately a decision for the Court to determine.  The orders I intend to make will enable the parties to continue in that role, although the father will be the primary carer of the children and the mother will eventually spend significant time with the children in accordance with those orders.

(m)if either party is cohabiting with another person the financial circumstances relating to the cohabitation; and

1. Neither party has formed a new relationship or has re-partnered.  However, the father is living with his parents and there are caretakers in the former matrimonial home and he anticipates that sometime in the future, he will move into that home. 

(na)the terms of any order made or proposed to be made under section 79 in relation to:

(i)the property of the parties; or

(ii)vested bankruptcy property in relation to a bankrupt party; and

1. This factor was not discussed by either party in their written submissions and as such I will treat it as not being relevant.

(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

(i)a party to the marriage; or

(ii)a person who is a party to a de facto relationship with a party to the marriage; or

(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii)

1. This factor was not discussed by either party in their written submissions and as such I will treat it as not being relevant.

(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

1. Counsel for the father submitted that if the Court orders the children to live with the father, he does not expect to receive any significant amount of child support from the mother.  Alternatively, if the Court orders in line with the proposal for an equal shared care arrangement, it is submitted that neither party will pay child support to the other but rather each party will be responsible for the children’s living expenses as both parties have similar incomes. I will treat this factor as not being particularly relevant.  The children will live with the father and he has a much larger pension entitlement than does the mother.  The children will eventually spend significant and substantial time with her. 

(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

1. This factor was not discussed by either party in their written submissions and as such I will treat it as not being relevant.

(p)the terms of any financial agreement that is binding on the parties to the marriage; and

1. This is not a relevant consideration in these proceedings.

(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

1. This factor was not discussed by either party in their written submissions and as such I will treat it as not being relevant.

2. In the circumstances of these proceedings I do not intend to make any adjustment for the other factors either in favour of the father or the mother.

JUST AND EQUITABLE

1. Having regard to the property, legal and equitable ownership of same and the factors having regard to s 79(4) of the Act I have determined that overall the property ought to be divided as to 60 per cent to the father and as to 40 per cent to the mother. Each party should otherwise retain the property currently in their respective possession or control.

2. Therefore the total nett value of property, including superannuation, is $233,502.

3. The father will retain the following property:-

   Property to be retained by father

Description

Value

A Street, M Town

      $650,000

SUV

          $4,500

Goods & chattels in father’s possession

          $8,024

Shipping container

          $2,500

Vehicle 1

        $16,500

Vehicle 2

        $19,000

Super Fund 1

        $13,000

Super Fund 2

Total

             $728

      $714,252

Liabilities to be retained by the father

Description	Value
Mortgage on A Street, M Town	$492,000
Visa card	$5,000
Total	$497,000

1. The mother will retain the following assets:-

Property to be retained by the mother

Description

Value

Car

        $15,000

Goods and chattels in mother’s possession

          $1,192

Super Fund

                $58

Total

        $16,250

1. Having regard to the matters to be taken into account under s 79(4) and considering what I regard as just and equitable, according to law, I will order that the father pay to the mother the sum of $77,151 which I consider is an appropriate order.

I certify that the preceding four hundred and seventy seven (477) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 12 March 2013.

Associate:     

Date:  12 March 2013