Yates and Yates

[2010] FamCA 775

FAMILY COURT OF AUSTRALIA

YATES & YATES [2010] FamCA 775

FAMILY LAW – CHILDREN – Allegations of violence against wife who was primary carer
FAMILY LAW – PROPERTY – Significant initial contribution by husband, insurance claim by wife as a result of serious illness during relationship and 75(2) factors

Family Law Act 1975(Cth) ss 60B(1), 60B(2), 60CC (2), (3), (4A), 60CA, 61C, 61DA , 65DAA, 75(2) and 79

Juliet & Jones [2010] FamCA 523
MRR v GR [2010] HCA 4
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

McIntosh J, Smyth B, Kelaher M, Wells Y and Long C – “Post Separation Parenting Arrangements and Developmental Outcomes for Infants and Children” – May 2010

APPLICANT: Ms Yates

RESPONDENT: Mr Yates

INDEPENDENT CHILDREN’S LAWYER: Mr Patrick Fitzgerald

FILE NUMBER: HBC 506 of 2009

DATE DELIVERED: 7 September 2010

PLACE DELIVERED: Hobart

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 23, 26, 27, 28 & 29 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P McViety

SOLICITOR FOR THE APPLICANT: Ms J Higgins

COUNSEL FOR THE RESPONDENT: Mr Munro

SOLICITOR FOR THE RESPONDENT: Mr Munro

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of Tasmania

Orders

Parenting

1. All previous parenting orders in relation to the child, F born … January 2004, be vacated.

2. BY CONSENT the wife and husband have equal shared parental responsibility in relation to the child.

3. As and from 6 August 2010, the child shall live with the wife except as otherwise provided in these orders or as agreed in writing between the parties.

4. The child shall live with and communicate with the husband as follows:-

   (a)During school term on a 2 week cycle:-

   i.in week one (initially commencing Friday 13 August 2010) from after school on Friday until the commencement of school on Monday morning, extending to the commencement of school on Tuesday morning in the event that the Monday is a public holiday or a student free day.

   ii.in week two from after school on Wednesday to the commencement of school on Friday morning. 

   iii.such alternate fortnightly cycle shall commence on the first Friday after the commencement of each school term (and including the Easter school break) if the child was primarily with the wife for the last week of the preceding school holiday period.

   iv.such alternate fortnightly cycle shall commence on the second Friday after the commencement of each school term (and including the Easter school break) if the child was primarily with the husband for the last week of the preceding school holiday period, provided that in this event the week 2 of the fortnight cycle shall apply in the first week of term.

5. The husband’s application for an order that the school term living arrangements change to equal time after three months or some other specified time is dismissed

6. BY CONSENT the child shall live with and communicate with the husband as follows:-

   (a)in the event the child is not in the care of the husband on the weekend of Father’s Day from 4.00pm on the Saturday before Father’s Day until commencement of school on the following Monday morning;

   (b)in each odd numbered year; during the school Easter holiday, from after school on the Thursday before Easter until 5.00pm on the following Wednesday;

   (c)in each even numbered year; during the school Easter holiday, from 5.00pm on the Wednesday after Easter until the commencement of school on the following Monday morning, or Tuesday if the Monday is a public holiday or a pupil free day;

   (d)in each even numbered year from 3.00pm Christmas Day until 3.00pm Boxing Day;

   (e)in each odd numbered year from 3.00pm on Christmas Eve until 3.00pm Christmas Day;

   (f)in each odd numbered year on the child’s birthday from 3.00pm until 10.00am the following day;

   (g)in each even numbered year on the child’s birthday from 3.00pm on the eve of his birthday until 10.00am on his birthday;

   (h)for the last half of the term 1 and term 2 school holiday period with such time to commence in September 2010;

   (i)in 2010/2011 for one half of the Christmas/School holiday period on a week about basis;

   (j)in 2011/2012 for one half of the Christmas/School holiday period on a fortnight about basis as agreed between the parties and failing such agreement, in each even numbered year commencing on the last day of the school term and each alternate year thereafter;

   (k)on each year on the father’s birthday from 3.00pm on the eve of his birthday until 9.00am the day following his birthday;

   (l)such additional or alternate times as may be agreed between the parties from time to time.

7. BY CONSENT the child shall additionally live with and communicate with the wife as follows:-

   (a)in the event that the child is not in the care of the wife on the weekend of Mother’s Day from 4.00pm on the Saturday before Mother’s Day until commencement of school on the following Monday morning;

   (b)in each even numbered year; during the school Easter holiday from after school on the Thursday before Easter until 5.00pm on the following Wednesday;

   (c)in each odd numbered year;  during the school Easter holiday, from 5.00pm on the Wednesday after Easter until commencement of school on the following Monday or Tuesday morning;

   (d)in each odd numbered year from 3.00pm Christmas Day until 3.00pm Boxing Day;

   (e)in each even numbered year from 3.00pm on Christmas Eve until 3.00pm Christmas Day;

   (f)for the first half of the term 1 and term 2 school holiday period commencing September 2010;

   (g)in 2010/2011 for one half of the Christmas/School holiday period on a week about basis;

   (h)in 2011/2012 for one half of the Christmas/School holiday period on a fortnight about basis as agreed and failing such agreement in each odd numbered year commencing on the last day of the school term and each alternate year thereafter;

   (i)in each even numbered year on Finn’s birthday from 3.00pm until 10.00am the following day;

   (j)in each odd numbered year on Finn’s birthday from 3.00pm on the eve of his birthday until 10.00am on his birthday;

   (k)on each year on the wife’s birthday from 3.00pm on the eve of her birthday until 9.00am on the day following her birthday;

8. BY CONSENT both parents shall be entitled to attend all school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent-teacher interviews and social functions.

9. BY CONSENT in the event of a medical emergency with regard to the child, the parent who first has knowledge of the emergency shall forthwith notify the other parent.

10. BY CONSENT handovers on a school day shall take place at the child’s school and on a non-school day at the playground in the L Park unless otherwise agreed in writing between the parties.

11. Neither party shall abuse, demean or belittle the other party or members of the other party’s family in the presence or hearing of the child.

12. Each party shall keep the other informed, as soon as practicable, of any significant health or educational issue which impacts upon the child.

13. 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. Within thirty (30) days of the date of these orders, the husband sign all documents and do all acts to transfer to the wife a total of 320 shares he holds in AXA Asia Pacific holdings Limited.

2. The parties shall do all acts and sign all documents necessary to register the necessary easement at the M Street property and each of the parties shall contribute equally towards the payment of registering that easement and in the event that one party pays the whole amount then the other party shall be entitled to reimbursement together with interest in accordance with the Rules under the Family Law Act.1975.

3. The parties shall do all acts and sign all documents to cause the property at M Street to be sold subject to:-

   (a)the parties shall agree on an agent and solicitor to act on the sale.  In the event they are unable to agree then such agent and/or solicitor shall be the agent or solicitor nominated by the President of the Real Estate Institute of Tasmania and the President of the Law Society of Tasmania, respectively, with such a request able to be made by either party;

   (b)the property shall be sold by such manner as is agreed between the parties, but if not agreed, then by public auction; 

   (c)if the property is sold by private treaty the sale price shall be as agreed between the parties or if the parties are unable to agree then the sale price shall be any unconditional offer made on the property at $775,000 or above where at least one of the parties agrees to that sale price;

   (d)In the event that the property is unable to be sold by private treaty and at the request of either party then the property be sold by auction with the reserve price to be as agreed between the parties or if they are unable to agree $775,000 (or such other amount as is determined by a registered valuer appointed by the President of the Institute of Valuers, Tasmania at the request of either party);

   (e)from the proceeds of sale of the property the outstanding amounts shall be paid in respect of the:-

   i.Legal costs and disbursements on the sale, real estate agent’s fees and commissions, auction fees, fees in relation to the appointment of an agent, valuer or solicitor, valuation fees, if any for the sale;

   ii.The reasonable costs and disbursements accrued by the parties with Douglas and Collins in obtaining an easement in respect of this property (including the liability for $2,652).

   iii.Mortgage to the ANZ Bank of about $125,975 (the husband to meet the normal payments of principal and interest on this mortgage pending settlement.  Any amount in excess of the agreed amount of $125,975.00 is to be met from the husband’s share of the proceeds of sale of the property, in the event that the capital is reduced both parties will have the benefit of such reduced capital).

   iv.Debt to Mr HN of $16,000;

   v.Capital gains tax liability of the wife of $11,491.71;

   vi.Overdraft account in the name of the wife up to $5,729.69;

   vii.Debt to Harcourts of $2,750; and

   viii.The balance of the proceeds of sale is to be divided as to 43% to the husband (plus or minus any adjustment of Council rates) and as to 57% to the wife.

4. The wife sign all documents to assign to the husband any interest she has in Y Group Pty Ltd as Trustee for the Yates Family Trust and resign any position she has with that company and the husband shall indemnify the wife in respect of the liabilities of that company (which company the husband wishes to retain).

5. As to G Street:-

   (a)Within sixty (60) days from the date of this order the husband will pay to the wife a sum calculated as being 57 per cent of the parties’ (or their corporate or trust structure) net interest in that property. The calculation is the value of the property, $552,500, less the following liabilities (the ‘liabilities’);

   i.The amount due to the Bank of Queensland for the overdraft account (balance approximately $89,070.08);

   ii.the mortgage amount due to the Bank of Queensland of about $300,000;

   iii.Payables of the Yates Property Trust not exceeding $22,680;

   iv.Debt due to Ms FR $87,520;

   v.Yates Property Trust ANZ overdraft …051 $35,545.10;

   vi.Mercedes Finance on husband’s car $28,281.30;

   vii.Mercedes Finance on wife’s car $7,092.62;

   viii.Y Group Pty Ltd as Trustee for the Yates Family Trust ANZ overdraft …606 $15,702.98;

   ix.Payables of Y Group Pty Ltd as Trustee for the Yates Family Trust not exceeding $38,610.00;

   (b)Upon such payment, the husband shall pay out the liabilities or secure (to the satisfaction of the wife) a release of her personal covenants in respect of the liabilities;

   (c)Upon such payment of or release from the liabilities the wife shall do all acts and sign all documents to transfer to the husband her interest in G Street and/or shares in any corporate owner or trustee of it and/or any benefit or entitlement under any trust of the parties which has an interest in the property.

   (d)The husband shall indemnify the wife in respect of the liabilities and any other liability in respect of the property, the trustee company and the trust. 

6. In the event that the husband is unable or unwilling to pay to the wife the  sum calculated in respect of G Street then, the parties shall sign all documents and do all acts to cause the Yates Property Trust and its trustee to list G Street for sale subject to the following terms:-

   (a)The parties shall agree on an agent and solicitor to act on the sale.  In the event they are unable to agree then such agent and/or solicitor shall be the agent or solicitor nominated by the President of the Real Estate Institute of Tasmania and the President of the Law Society of Tasmania, respectively, with such a request able to be made by either party;

   (b)the property shall be sold by such manner as is agreed between the parties, but if not agreed, then by public auction; 

   (c)if the property is sold by private treaty the sale price shall be as agreed between the parties or if the parties are unable to agree then the sale price shall be any unconditional offer made on the property at $552,500 or above where at least one of the parties agrees to that sale price;

   (d)In the event that the property is unable to be sold by private treaty and at the request of either party then the property be sold by auction with the reserve price to be as agreed between the parties or if they are unable to agree $552,500 (or such other amount as is determined by a registered valuer appointed by the President of the Institute of Valuers, Tasmania at the request of either party);

   (e)from the proceeds of sale of the property shall be paid:-

   i.Council rate adjustments;

   ii.legal costs and disbursements on the sale, real estate agent’s fees and commissions, auction fees, fees in relation to the appointment of an agent, valuer or solicitor, valuation fees, if any for the sale;

   iii.the liabilities;

   iv.A sum to be retained in trust by the solicitor acting on the sale to meet any capital gains tax liability on the sale of the property, any GST on the sale of the property, any anticipated expenses on the winding up of the trust, and if necessary, winding up of the trustee company. Included in such expenses are the costs and disbursements of the solicitor/trustee and necessary accounting fees. On finalisation of the tax calculations and payments and winding up of the trust and trustee any remaining amount in trust is to be divided as to 57 per cent to the wife and 43 per cent to the husband. If there is a shortfall it is to be paid as to 57 per cent by the wife and 43 per cent by the husband; and

   v.the balance of the proceeds of sale is to be divided as to 43% to the husband and as to 57% to the wife.

7. In respect of the variable liabilities namely Yates Property Trust, Bank of Queensland overdraft, Bank of Queensland building loan, Yates Property Trust overdraft, wife’s capital gains tax debt, Y Group Pty Ltd as Trustee for the Yates Family Trust, Mercedes Benz finance debts and Y Group Pty Ltd ANZ overdraft; the payment of those debts will be to extinguish the loans subject to neither party making any further drawings against such loans between the date of hearing and the date of payment.  The parties are given leave to apply in respect of any issues regarding these loans for a period of six months from the date of these orders.

   (a)That the husband provide to the wife an affidavit annexing the invoices for each and every one of the payables.

   (b)That the husband provides to the wife a description of each of the liabilities referred to in those invoices.

   (c)The amount of payables for the Yates Property Trust and Y Group Pty Ltd as Trustee for the Yates Family Trust will be those which are:-

   i.Liabilities of the respective trusts properly incurred in the course of business prior to the hearing;

   ii.Not for any personal benefit to the parties or any of their children.          

8. If the wife disputes any liability referred to in those disclosed payables leave be given to the parties to file affidavits and apply to the Court for determination of those limited issues.  Such leave to apply will be for four (4) months from the date of these orders.  The husband is to provide his affidavit within twenty one (21) days and if the wife disputes any amount she is to provide an affidavit in reply within a further period of twenty one days.

9. Within fourteen (14) days of the date of these orders:-

   (a)The husband make available for collection by the wife the items referred to as “From the Husband’s list Agreed items and already conceded”. The ownership of those items, as between the husband and wife, to vest in the wife.

   (b)The parties to consolidate their lists to a single list, and to provide to each other such list subject to:-

   i.such lists generally including those chattels listed in the husband’s list and those in the wife’s list (attached and referred to her Counsel’s property submissions),

   ii.such lists excluding the family heirlooms referred to in the reasons, the children’s furniture, P’s baby clothes and dresses, the heart containing a lock of L’s hair, F’s toys and children’s collectables, photographs and fixtures attached to the former matrimonial home,

   iii.each party to consecutively number the items they wish to retain on the consolidated list.  The property is to be divided in order of selection, one item at a time, with the wife to have first choice then turn about.

   iv.each party is entitled thereafter to take possession and ownership (as against each other) of those items in their list.

   v.I give leave for the parties to apply in respect of this order, such leave to be available for a period of two (2) calendar months from the date of this order.

   vi.In the wife’s list are items of property marked ‘missing or the like’.  If the husband asserts that the property exists, it ought to be left on the list.  If the husband asserts that the property has been lost or disposed he will provide that to the wife when providing his list.

10. If not otherwise arranged between the parties:-

    (a)within  twenty eight (28) days from the date of this order the husband shall deliver to the wife’s solicitor’s office all family photographs and negatives (if some photographs are only in digital form a CD with a copy of such digital photographs),  

    (b)once delivered, the wife shall, within a further period of twenty eight (28) days, select such of those photographs and negatives, including photographs of the children under the age of eighteen years, as she determines (the ‘wife’s photos’).  Any CD or CD’s containing digital photographs shall be forthwith made available, and shall be her property.  

    (c)the remaining photographs and negatives shall be made available for the husband to collect,

    (d)the husband shall be entitled to inspect the wife’s photographs and request that any one or more of those photographs be re-produced, 

    (e)such re-produced copies will be forwarded to the husband; and

    (f)the parties are to contribute equally to the cost of reproducing such photographs.

1. The equitable ownership of the lock of L’s hair is declared by this order to be the property of P and F as joint tenants, subject to:-

   (a)the legal title and possession of the lock of hair shall remain that of the husband and wife as trustees and as joint tenants;

   (b)upon the death of both of the parents, legal title and possession of the lock of hair will vest in F and P;

   (c)during the lives of the husband and wife the lock of hair shall be in each other’s possession for one year (or such longer or shorter term as the husband and wife may agree). 

   (d)the lock of hair will be delivered by the husband to the wife within fourteen (14)  days from the date of this order and will then be returned to the husband twelve months later with changeover to be each alternate year thereafter.

   (e)the husband and wife, if they both agree in writing, may earlier transfer the legal ownership and/or possession of the lock of hair to their said children.

2. Within twenty one (21) days of the date of these orders the husband transfer to the wife’s frequent flyer account 454,632 frequent flyer points. 

3. Save and except for the property identified elsewhere in these Orders:-

   (a)each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank's record 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 of payment out of such entitlement.

   (b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

4. This matter be removed from the list of cases requiring determination.

5. With the exception of Exhibit ‘ICL 6’, all subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

6. The appointment of the Independent Children’s Lawyer be discharged after twenty eight (28) days of the date of this order.

   IT IS CERTIFIED

7. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 506 of 2009

MS YATES

Applicant

And

MR YATES

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms and Mr Yates have been involved in Family Court proceedings since June 2009.  The disputes are about the parenting arrangements for their six year old son, F, and how the parties should divide the property they accumulated during their marriage.

2. These parties were married in September 1989 and until 2007/2008 had what appeared to be a very strong and close relationship.  The parties worked hard as a team and genuinely admired each other.  It was an unusual feature of this case that both parties spoke positively of the other and the others contributions over the first 18 or 19 years that they were together.  For the sake of their children, I hope that some elements of that mutual regard will resurface in the years to come.

3. As a result of a series of tragedies and events, that relationship spectacularly unravelled between early 2008 and March/April 2009 with awful consequences for the parties, their two children and their broader relationships.  The parties separated in February 2009.  The genesis of the relationship breakdown came from much earlier times.

4. The context of this dispute and the devastating events that have visited this family over the last 16 years, needs to be understood.

5. In 1991 the parties’ daughter, P was born and welcomed into the family.  Subsequently the wife fell pregnant with twins.  One of the twins died in the wife’s uterus at about 12 to 13 weeks.  The other twin, L, was born in October 1994.

6. After L was born it was discovered that he had suffered a massive intracranial haemorrhage.  L was blind and would never be able to walk or talk.  To this family he was small but perfect.  He had developmental challenges and they were met and managed by his parents.  The parents dedicated themselves, with great will and determination, to care for their children and in particular, L.  In the words of the wife “he chose us, he could not have had better parents”.

7. As he became older, L commenced having seizures.  From after their commencement, these seizures increased incrementally in scope and regularity.  In October 2000 L suffered a massive seizure and needed medical attention.  The parties called urgently for an ambulance, but that assistance did not arrive for about 40 minutes.  As a consequence of that seizure, and perhaps the delay in medical intervention, L passed away the day before his sixth birthday.  There is no doubt that he is deeply loved and sadly missed by his family.  

8. The emotional and psychological impact of his death tormented the various members of this family from that moment in time.  Each parent harbours self blame and guilt for their perceived inability to save L.   

9. In 2003 the wife again fell pregnant and F was born in January 2004.  The wife was his primary attachment figure up to at least 2008 and probably beyond.

10. In March 2007 the wife’s health took a dramatic turn for the worse when she discovered she had Hodgkin’s Lymphoma.  This diagnosis was followed by radical treatment over 2007.  In early 2008 she was told her cancer was in remission and she is presently free of that disease.

11. The wife (and possibly the husband and P) suffered from serious unresolved grief over the years that followed L’s death.  The wife’s psychological state adversely impacted on her family and in particular P.  P says that the wife was not the mother that she hoped for, and she sees her mother as manipulative, controlling and failing to meet P’s emotional needs as she developed.

12. With this background combined with the dramatic events surrounding her parent’s relationship breakdown, (particularly in her last year of Secondary School), P has now, seemingly, rejected all contact with her mother.  Over the previous years P suffered emotional and psychological difficulties together with associated illnesses.  She has aligned herself to her father’s cause. This paragraph is not in any way intended to be a criticism of P, for she too has endured difficult times.

13. This was a family dealing with enormous (and at times overwhelming) physical issues, emotional problems and pressures over many years. 

14. Over 2008 the relationship between the parents deteriorated and the wife acted out in inappropriate ways. She threatened self harm and was, at least, verbally violent to her family.  It is likely the wife was physically violent to P and to her husband.

15. In February 2009 the parties separated and the wife was initially forced, then later agreed, to have medical treatment for mental health issues.  F was taken into the primary care of the husband.  At that time, the husband genuinely feared for F’s safety in the wife’s care.  To be fair to the husband, having regard to the wife’s behaviour over those months, his fears over that period of time were reasonably based.

16. The husband sought the protection for himself and the children by way of a Family Violence Order, this was put in place in April 2009.  The wife commenced these Family Court proceedings in June 2009. She wanted to continue her relationship with F and needed a property settlement.

17. The husband sought and obtained an affidavit by P to assist him in these proceedings.  To the wife’s great credit she specifically instructed her lawyers not to seek or allow cross examination of P, irrespective of its impact on her case.  This was a powerful example of her ‘child focused’ behaviour.

18. With the help of her father and her maternal grandmother, P obtained an interim Family Violence Order. In February 2010 this Order was replaced by the wife’s undertaking to the Magistrates’ Court, that she would never again contact P.

19. To add to the difficulties faced by these parties, over the last few years their financial circumstances became more than problematic.  The parties’ business failed.  This enterprise had been operated by the parties since 1995 and provided most of their income.

20. In addition the husband had a poor relationship with his father and they had been estranged since October 2000.  The husband’s father became ill and later died in late 2009.  The husband reconciled with his father shortly before his death.  The conflict between the husband and his father had part of its roots in the father’s reaction to L’s health, death and funeral.  The reconciliation caused some disharmony between the wife and the husband as a consequence of that background. 

21. The wife became (and remains) alienated from her mother and father. Regrettably the wife’s mother provided evidence for the husband and against the interests of the wife at the final hearing.  There was some indication that the wife’s father had been threatened with divorce if he made contact with his daughter.  That fact was not established.  Whether true or not, the wife’s belief that it was a fact added immeasurably to her sense of isolation and abandonment.

22. The wife, the husband, P and F are ordinary Australians who have been forced to endure the most difficult of circumstances. 

23. Objectively, from F’s perspective, his primary carer became sick in 2007, this was the year of his third birthday.  In 2008 his parents’ relationship was clearly failing and he observed elements of that conflict.  In 2009 his dad and mum’s marriage failed and his primary carer disappeared from his life in circumstances of high conflict.  Then for a long period of time (from his perspective) he did not see his mother.  After many weeks he began to spend limited supervised time with his mother but in circumstances which were artificial and where his father was concerned for his safety.  The conflict continued into 2010.  These difficulties and conflicts have occupied more than half of his life. 

24. There have been a number of interim parenting hearings.  Initially, as a consequence of the events surrounding the relationship breakup, F was permitted to spend time with the wife only on a supervised basis.  An Independent Children’s Lawyer was appointed to represent F’s interests, and he provided great assistance to the Court in this difficult matter, not the least in the provision of expert evidence. 

25. As the wife’s health recovered and the medical and social science evidence became clear, her time with F was increased and the need for supervision diminished and disappeared.  The husband opposed these interim applications and had great difficulty accepting the improvement of the wife’s health and the opinions of a number of very qualified health professionals.  The husband, seemingly, did not want to accept that change had occurred. 

26. At the commencement of the hearing the husband still harboured concerns over the wife’s care of F, although he clearly did not assert that the wife presented as a physical risk to F, he still believed she posed an emotional risk to the child.  For the husband’s benefit, I add that no Court can guarantee human behaviour; all any Court can do is make the best possible decision based on the available evidence.   

27. At the conclusion of the parenting hearing the parties, to their credit, were in almost complete agreement as to the living arrangements for F, which were essentially equal time during school holidays and primarily living with the wife during school term but living each alternate weekend plus two other nights with the husband.  The only issue left for me to decide was whether these arrangements should continue indefinitely (as sought by the wife) or be a defined period of three months or more and then to go to an equal time arrangement during school term (as sought by the husband).

28. This should not be seen as a minor dispute by reference to the final determination.  The proceedings themselves were a difficult journey for the parties.  In June 2009 the determination was whether the wife should spend any time with the child.  Later in that year the question was what limited time the child should spend with his mother and whether and to what extent there should be supervision.  In early 2010 the question was whether the child should spend more time with the wife.  At the commencement of the hearing the husband sought orders that the child live with him primarily during the school term.

29. The property was difficult for the parties because of issues such as:-

    ·Significant initial and subsequent contributions by the husband’s family.

    ·A significant contribution by the wife as a consequence of her 2007 health difficulties.

    ·Issues over the pool of assets, and

    ·The parties’ deteriorating financial circumstances.  

30. The wife says that her contributions ought to be treated as equal and that there ought to be an adjustment in respect of the other factors and as such she should receive 60 per cent of the pool of assets and the husband 40 per cent.

31. The husband says that his overall financial contributions were much greater than those of the wife and that there should be an adjustment in his favour on the basis of 60 per cent to him and 40 per cent to the wife.  In submitting this approach the husband’s counsel said that if there is to be an adjustment in favour of the wife in respect of the other factors it should be one or two or three per cent and that such amount is already included in the division proposed by the husband.

32. In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear for the context of the statement. 

RELEVANT LEGAL PRICINPALS TO APPLY IN RESPECT OF PARENTING ISSUES

1. In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.

2. The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-

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

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

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

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

3. The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-

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

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

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

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

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

4. Each of the parents of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s 61DA of the Act. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[1] for the child, subject to subsections 61DA(2), (3), (4) and (5).

   [1] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”

5. If the presumption is not rebutted and it is in the child’s best interest a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted, under s 61DA(2) but a Court determines that it is in a child’s best interest for an order for an order for equal shared parental responsibility, it should be made.

6. The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. 

7. The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s 64B(2)).  This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA.  In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.

8. Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

9. The factors guiding how a court determines what is in the best interests of a child are set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. The relevant parts of s 60CC read as follows:

   Primary considerations

   (2)        The primary considerations are:-

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

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

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)      Additional considerations are:-

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

   (b)the nature of the relationship of the child with:

   (i)each of the child’s parents; and

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

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

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

   (i)either of his or her parents; or

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

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

   (f)the capacity of:

   (i)each of the child’s parents; and

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

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

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

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

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

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

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

   (j)any family violence involving the child or a member of the child’s family;

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

   (i)the order is a final order; or

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

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

   (m)any other fact or circumstance that the court thinks is relevant.

1. A court must consider the s 60CC(2) considerations as “primary considerations”.  This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face to face time and communication.

2. In that evaluation, if there is to be an order for equal shared parental responsibility (whether arising pursuant to the presumption or otherwise), the Court must consider;

   Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents[2].

   [2] MRR v GR [2010] HCA 4.

3. The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child.  

WITNESSES

Dr A

1. Dr A prepared a report[3] in respect of the parties.  His report was read into evidence.  Of the husband, Dr A said:-[4]

   … His mental state is normal.  He has shown considerable resilience through a series of adversities.  He is showing normal grief in response to the present situation.

   [3]Report dated 16 October 2009.

   [4]Ibid at page 22.

2. As to the wife Dr A said the following:-[5]

   Because of the history of thyroiditis resulting from a series of disturbances of the thyroid function, it is likely that [the wife] is suffering from sub-clinical hyperthyroidism having ceased to take effective anti-thyroid drugs.  A hyperthyroid condition is not at this time clinically evident but may manifest in mood disturbance.

   She has a history of infectious mononucleosis with cerebral symptoms, and of a Hodgkin’s lymphoma which may in some cases be a sequel to infection with the causal virus.  She thus has two medical conditions which may produce subtle effects on the brain and contribute to the behavioural or mood disturbances described.  Both of these conditions had their onset during her later teens, and have almost certainly contributed to the development of personality traits evident during the stressful situations of recent years.  Menopausal changes have also contributed to mood and behavioural disturbance.

   [5]Ibid at page 23.

3. He went on to say further in relation to the wife:-[6]

   … The present policy of limiting the child’s contact with the [wife] to supervised visits is probably barely sufficient to provide a countervailing positive experience of [the wife].

   The [wife] is alleged to have made extreme threats concerning her intentions towards herself and the child.  These would appear to be histrionic rather than part of a settled intention, but they have been taken seriously by the [husband], and the maternal grandmother, so they are not persuaded of the safety of [the child] in his mother’s care.

   With a credible history of intermittent emotional behavioural disturbance it is not possible to be certain of the safety of the child in the [wife’s] unsupervised care at this time.  In my opinion the risk of considered suicidal behaviour on the part of the [wife] is low, and the risk of harm to her child is even lower.  There is, however a continuing risk of impulsive behaviour which might cause considerable anxiety to others, and be disturbing to the child if witnessed by him. …

   [6]Ibid at pages 23 and 24.

4. In that report Dr A went on to recommend that the parties consider conciliation by a skilled family therapist.  That in fact occurred but was not successful.

5. I accept the evidence of Dr A. 

Dr CD

1. Dr CD is an Endocrinologist who provided a report dated 18 November 2009.  Her report was admitted into evidence without challenge.

2. Dr CD noted the wife had hyperthyroidism secondary to an autonomous thyroid nodule.  Dr CD observed that in a recent test the wife’s serum free T3 was slightly above normal and recommended that the wife should start medication.

3. She went on to say that the wife was compliant with her medication.  This report was obtained following the concerns raised in Dr A’s report of
   6 October 2010.  Dr CD’s statement is annexure ‘H’ to the affidavit of the Independent Children’s Lawyer filed 6 July 2010.

G School

1. A letter dated 18 March 2010 from the Headmaster (together with a statement from the Head of the Junior School) of the G School was read into evidence without challenge[7].

   [7]Exhibit ICL 3.

2. In that letter the Principal and the Head of the Junior School set out information provided to both parents with regard to the school’s procedures, guidelines and daily routines in relation to the school’s procedures and expectations.

Evidence of Ms H, Ms R and Ms B

1. The evidence of these three witnesses was in their respective affidavits filed 17 September 2009, 15 September 2009 and 14 September 2009 and was read into evidence.

2. The evidence was only read in so far as it related to the supervision provided by these witnesses in terms of F’s time with the wife in late 2009.

Ms I

1. Ms I is a registered psychologist who works for the Department of Health and Human Services and is part of the Children and Young Persons Program (“CHYPP”).  This program forms part of a State based Family Violence Counselling and Support Services.  Three reports were tendered in evidence[8]. Ms I gave evidence of her background as a psychologist, academia and her work in that area.  She commenced work with CHYPP’s in about 2008.  Her qualifications were not challenged

   [8] Exhibit ICL 1.

2. F had been referred to this service by the husband and reports were prepared by Ms I.  She saw F on about 17 occasions between April 2009 and December 2009.  She stopped seeing F after an interim order was made by me in December 2009.

3. The philosophical approach of the CHYPP program is that there has been violence and that there is a single offender.  The wife was referred to as “the offending parent” in the documentation in evidence.

4. In her report dated 19 October 2009 it was noted that referral information was provided by the husband in May 2009 who reported the following concern regarding the child:-[9]

   [The husband] reported that the [child] was having difficulty maintaining and controlling his anger.  This had been a concern for approximately eight months.  When angry, [the child] would kick things, violently shake, scream and hold his breath. 

   [9] At page 2 of the report.

5. There was a diagnosis that the child presented with significant post-traumatic stress symptoms related to anxiety and depression.  In that report the child did not disclose information regarding the wife.

6. In the report dated 10 December it was observed that the child had some positive feelings towards the wife but indicated that the wife “smacked him and tells him off and makes him cry.”[10]  That assessment was largely “non-verbal”.

   [10] At page 6.

7. In the 17 sessions Ms I had with the child, the husband was present about 60 per cent of the time.  Generally the husband was in the back of the room although on a number of occasions he was engaged in the counselling process.  Ms I did not investigate the veracity of any allegations and no allegations were made to her by the child.  Ms I collected information from the husband and the child’s teacher and of course information from the child and the husband in the counselling sessions.  The wife was not involved in any of the counselling and it would not have been acceptable in the normal processes adopted by CHYPP’s.

8. Ms I did not believe that the service was being manipulated or inappropriately used.  She said she was aware of concerns about the veracity of the allegations and became more vigilant.  Ms I described the child as an “avoidant character” and it was only in the second last session that he let her know his feelings.  This was through a non-verbal test.  She observed of the child that he was “hyper aroused, not able to calm himself and was often physically agitated”.  She said that it was a common experience for a child to have conflicting feelings about parents where there was violence.

9. In the December report the child said he did not want to go to his mother.  The husband was present at that time.

10. I accept the evidence of Ms I, although it must be seen in the context of the nature of the counselling and in the absence of the wife.  This includes that the child had been removed from his principal carer at the time of separation.  That would have had a significant impact upon him.  It was a highly conflicted separation and in the home of the husband, the child lived with his father and his sister where the wife was poorly regarded, at least through 2009.  The child spent significant time with his maternal grandparents, who in turn had aligned themselves with the husband and with whom the wife does not presently have a relationship.

11. It is likely that there were either explicitly or implicitly negative views towards the wife in those environments, at least for the initial 12 months. The non-verbal communication between Ms I and the child may have arisen from violence or may have arisen out of a reflection of the concerns expressed to the child by other members of his family.

Ms S

1. Ms S is a Family Consultant (“the Family Consultant”) employed by the Family Court.  She prepared three reports in respect of this child, the first dated 21 September 2009, a Children’s Parents and Issues Assessment (“the first report”), the second report dated 10 December 2009 ( “the second report”) and a final family report dated 9 June 2010 (“the final report”).

2. In her second report the Family Consultant recommended the child live primarily with the husband.  In her final report the Family Consultant recommended that the child live with the wife.

3. The Family Consultant was cross-examined and challenged by counsel for the husband as to whether she was biased towards the wife or had pre-conceived gender prejudice with regard to the care of the child.  There were a number of areas where the evidence of the Family Consultant was challenged by the husband.  The Family Consultant made appropriate concessions and I am satisfied that her evidence is accurate and truthful.  I am not satisfied there is any bias or that the Family Consultant came from any particular stand point.

4. In her first report the Family Consultant observed:-[11]

   … He [the child] explained he was “scared to be with mummy alone”.  In response to further enquiry he said “something bad might happen”, but indicated that nothing bad had ever happened nor could he think of something bad that his mother might do.  These comments did appear to be somewhat contrived and adult in context.

   [11]At page 3 of the first report.

5. She said this was particularly the case bearing in mind that she later observed the child “joyfully playing with the wife and showing no signs of anxiety”.[12]

   [12]Ibid.

6. I accept that the fears expressed by the child may have been contrived, particularly having regard to the evidence of the Family Consultant that what the husband was saying and what the child was saying (in that somewhat contrived and adult content) were congruent. 

7. The Family Consultant gave evidence that in all of the reports the husband expressed that the wife had “no insight” into her behaviour and this flowed through to the last report where at page 10 the Family Consultant observed:-[13]

   [the husband’s] stance, which is motivated by his perception of risk to the children through association with their mother, is considered to be out of proportion to the expert medical opinion and the actual events that occurred.  It is also consistent that the [wife’s] relationship with [the child] prior to separation; her consistent effort to remain a fixed feature in [the child’s] life since separation; and [the child’s] obvious connection with her, indicate that joint parental responsibility rather than sole parental responsibility is important.

   [13]At page 10 final paragraph of the third report.

8. The Family Consultant went on to say that the husband did not accept any responsibility and allocates blame to the wife.  The husband softened that view when giving oral evidence.

9. In her first report the Family Consultant observed that the husband was overly focused on “information that supported his view that [the child] is at high risk in the unsupervised care of his mother”.[14]  The Family Consultant went on to say that the husband needs to “consider more carefully the professional reports that the wife was not in a psychotic state”[15] and not a danger to the child.  The Family Consultant says the wife was positive about her ongoing use and reliance on a counsellor and likewise with her general practitioner.

   [14]At page 5 of the first report.

   [15]Ibid.

10. On the other hand she said that the husband, when seeing her, seemed guarded and evasive[16].  The reason the husband could have behaved this way was because he did not trust the Family Consultant and thought that she was moving too quickly in putting the child at risk.

    [16]At paragraph 13 of the third report.

11. Having regard to the husband’s evidence and that of the Family Consultant, I am satisfied that the husband at that time did not “recognise the mother’s role in the child’s life and that he does not give significant value to that [role]”.  The Family Consultant noted that the husband appeared “surprised” when she was not as alarmed as him.

12. In the second report the husband said he considered the wife responsible for any financial hardships the family were now suffering.  Having regard to the loss of the Telstra contract in 2007 and the wife’s illness this was indicative, at that time, of the husband’s lack of insight.

13. The Family Consultant set out her evaluations of the parties and their respective parenting in paragraphs 23 through to 35 of her third report.  The Family Consultant observed:-[17]

    … It is therefore imperative that [the child] lives primarily in a home where he has the best chance of regularly spending substantial time with the other parent and with the least negativity towards the other parent

    [17]At paragraph 33 of the third report.

14. Having regard to all of the evidence and findings I accept that view.

15. The husband was of the belief that the Family Consultant’s view was either biased or gender driven.  I did not observe that in the demeanour and evidence of the Family Consultant, and as such I do not accept that implicit submission. 

16. The husband’s counsel suggested that because the Family Consultant saw the wife first she formed a particular view which was not able to be shifted.  I do not accept that submission.

17. The Family Consultant was concerned that if one or other party was given sole parental responsibility it could create a dynamic of less importance in one parent or the other in the child’s mind.  It may be that equal shared parental responsibility would be the least detrimental option although it would make parenting difficult.  At the conclusion of the evidence all parties and the Independent Children’s Lawyer all submitted that equal shared parental responsibility would be the least detrimental option, I accept and adopt those submissions, having regard to the evidence and findings made in these proceedings.

18. The earlier issue was that the husband did not believe the child to be safe with the wife, which is no longer his view.  Another issue was whether the husband’s view of the wife was so coloured that it could damage the relationship between the child and the wife.

19. The Family Consultant was referred to material recently published including views and research by Associate Professor McIntosh including “Post Separation Parenting Arrangements and Development of Outcomes for Infants and Children”.[18]  The Family Consultant generally approved of the views of the learned authors.

    [18] Smyth B, Kelaher M, Wells Y and Long C – “Post Separation Parenting Arrangements and Developmental Outcomes for Infants and Children” – reports prepared for the Australian Government Attorney General’s Department May 2010

20. The Family Consultant agreed with the comments made in that report about children’s adjustment and well-being in that:-[19]

    a)After adjusting to initial levels of conflict, children in shared care groups reported higher levels of inter parental conflict four years after mediation than children in the primary residence or changing care groups.  Reports of conflict over time were similar to those children in the “no or rare” group.

    b)Children in sustained share care were more likely than children in other care groups to report ongoing feelings of being caught in the middle of parents’ conflict.  Over the four year study, the greatest decrease in children’s scores were feeling caught in the middle whilst the children were in the primary parenting group.

    c)Children’s reports of distress about their parents’ conflict did not vary by overnight care patterns.

    d)After four years, stable living arrangements and greater amounts of overnight time were independently associated with the children’s report of greater emotional availability of his/her mother but not of his/her father.

    e)Neither the nature of the children’s living arrangement at any single point of time, nor their pattern of care across time, independently predicted mental health scores after four years (as measured by the Strengths and Difficulties Questionnaire”).

    f)Children’s experiences of living in shared care over three to four years was associated with greater difficulties in attention, concentration and task completion by the fourth year of the studies.  Boys in rigidly sustained share care were most likely to have Hyperactivity/Inattention scores in the clinical/boarder line range.  Children who were already vulnerable to Hyperactivity/inattention tended to remain that way over time, regardless of the overnight care arrangements.  The small, high conflict nature of this example says that care should be taken and not generalised in this finding.

    [19]At page 14.

21. The reports also reiterate the children’s’ outcomes from a number of publications.[20]  These include:-

    g)Litigating and high conflict families who enter substantially shared care arrangements are different from co-operative parents who self-select into self parenting.  They enter on a different track, and stay on that track by different means, with different outcomes.

    h)Parents in this population frequently experience elevated stress and anxiety through concern about their child’s well-being in the care of the other parent.

    i)Continuing abuse of power by cohesive and controlling ex spouses can be amplified in shared arrangements.

    j)Children in conflicted shared parenting are exposed to high levels of conflict between their parents, of the type that embroils them or uses any expression of conflict between the parents.

    k)These children are distressed by the living arrangements.

    l)There is an elevated risk of poor mental health outcomes for children who sustain shared care in the climate of ongoing parental acrimony, who are at a highly vulnerable phase of their development, and/or who are already vulnerable through other circumstances.

    [20]At page 104.

22. I accept that analysis in a general sense although it needs to be seen as a generalisation.  This research has in part influenced the view of the Family Consultant, who now recommends that the child spends four days with one parent on a basis of a three day weekend from Friday to Monday and one day in the other week.

1. The Family Consultant gave evidence that both parents are emotionally available and in many ways have overall similar objectives for F in terms of his education etc.

2. In these proceedings the evidence of the Family Consultant was that the husband tended to be inflexible and rigidly applied the processes.  That is indicative of this father’s behaviour.  It is also troubling that there seems to have been minimal effective encouragement of P’s relationship with her mother since separation over eighteen months ago.

3. The Family Consultant gave evidence as to the dynamics of the family.  She said the wife was the organiser of the family and the husband normally went along with her although he was not afraid to express himself.   As this dynamic changed and with the wife’s illness and the other events the wife became angry and frustrated.

4. The husband and wife had an agreement in relation to the contact with the child’s paternal grandfather.  When the paternal grandfather died the wife was quite upset about the change of that arrangement and sent an email to the husband on 29 September 2009 which was regrettable.  It is indicative of insensitivity on the part of the wife.

5. However, there was significant change in the pattern of power and the wife ended up being isolated from her children, the husband and the family.  Since that time the husband’s fear and anxiety has increased. The Family Consultant’s evidence was that his fear and anxiety has been greater than is reasonable in the circumstances.  I accept that evidence.

6. I also accept the evidence of the Family Consultant that the parents need family therapy but I decline to make an order in that regard.  That is a matter for them to determine in the years to come.

7. Having heard the evidence of the Family Consultant and the wife I am satisfied that if the child was in the wife’s primary care the ability to have a more shared care arrangement would work than if the child lived primarily with the husband. 

Dr N

1. Dr N gave evidence in accordance with her affidavit filed 29 June 2009 and her two reports dated 4 September 2009 and 10 December 2009.[21]

   [21] Exhibit ICL 4.

2. Dr N has been the wife’s general practitioner for about ten years and had from time to time seen the children of the family.

3. Dr N was cross-examined by counsel for the husband and the Independent Children’s Lawyer.  She was an impressive witness, she was clear, articulate and had a good understanding of the wife’s medical needs and exhibited a careful and appropriate approach to those needs.

4. Dr N was cross-examined as to the wife’s mental health at separation in or about February/March 2009.  She described the wife as being distressed, sad, upset and not sleeping or eating well.  The wife had told the doctor she had suicidal thoughts but had no intention of acting on them.

5. Dr N observed no serious suicidal threats despite the husband’s counsel asserting that the wife had said in front of the husband that she would take tablets. 

6. She continues to be the wife’s general practitioner, although in the large practice in which she works she no longer sees the husband, P or the child.  Dr N said, and I accept, that over all of the time she has seen the wife, the wife had not, in her words, “put him down”.  She said the wife was functioning normally.  She also said that the wife did not exhibit signs of anger about the husband but more signs of disbelief.

7. Dr N said the wife had regretted her approach to parenting P, particularly since the death of L, and I am satisfied on that evidence the wife has expressed insightfulness and regret about the events over the recent years.  The wife has expressed to Dr N the view that she would work with the husband to care for the children and encourage a relationship. 

8. Dr N was an impressive witness whose evidence I accept.

Mrs HN

1. Mrs HN is the wife’s mother and the child’s maternal grandmother.

2. For the second time in these proceedings she provided evidence against the interests of her daughter.  In this hearing, her evidence was contained in her affidavit filed 14 July 2010.

3. In that affidavit the maternal grandmother set out the problems that the wife had over the difficult times in 2008 and early 2009.  The maternal grandmother is very critical of her daughter.

4. On 27 April 2009 the maternal grandmother ceased her relationship with the wife.  She said that the wife had been her daughter for forty four years and that for forty three years she loved and devoted herself to her daughter.  She says she can no longer do so. The maternal grandmother is aligned with the husband.

5. As a consequence, the maternal grandmother has further isolated the wife from her children and broader relationships.  The maternal grandmother sees that no responsibility is to be borne by the husband or herself in terms of the current circumstances in which this family find themselves. The maternal grandmother accompanied P when she went to the State Magistrates’ Court on two occasions in respect of P’s application for Family Violence Orders against her mother.  The maternal grandmother said that the husband went with P to see her solicitors in respect of those proceedings. 

6. The wife’s evidence was that she wanted a relationship with her mother and the maternal grandmother’s evidence was that she has taken no steps in respect of reconciling her relationship with her daughter.  The maternal grandmother treats the wife’s previous psychological and/or psychiatric condition as a character flaw.  She is an unforgiving woman.  The maternal grandmother claims that she says nothing negative about the wife in the presence of the children.  This may be the case, but having seen her demeanour in the witness box and having read and heard her evidence, I infer that her rejection of her daughter would be easily apparent to the child and P and has the capacity to damage the children’s perceptions of their mother.

7. I am concerned that her lack of empathy and almost poisonous approach to the wife will impact on the child in terms of the necessary and important relationship he has with the wife.

8. The wife gave evidence that the maternal grandmother had said she wished the wife was dead. The maternal grandmother denied this. The maternal grandmother said that when she presented the wife with a photograph of herself, she said to the wife “where is this woman”.  The maternal grandmother said the wife replied saying “she was dead”.  On balance, I prefer the evidence of the wife.

9. It is deeply troubling that the maternal grandmother is a supporter of the alienation of the children from the wife.  The maternal grandmother appears to lay the fault for these proceedings at the feet of the wife.

10. The maternal grandmother was cross-examined about her diary.  The maternal grandmother wrote about when the child was going to the wife in January 2010 and said “[the child] was going to her [emphasis added]”.  The maternal grandmother did not call the wife by her name and referred to her in a dismissive form.  Later in her diary the maternal grandmother referred to the wife by initials.

11. I accept that the evidence of the maternal grandmother is generally reliable, from her subjective point of view.  However, I am concerned that since at least April 2009 she has actively subverted the relationship between the wife and P and has added to the conflict rather that reduced it.

Ms WM

1. Ms WM is the husband’s sister and gave evidence in accordance with her affidavit of 13 July 2010.  She was a friend of the wife prior to separation.  Ms WM is the parent of two boys and a girl.  One of her sons is close to the child.  These children attend the same school and play together.

2. Ms WM was not aware of the circumstances of the marriage break-up and gave evidence that she left flowers at the wife’s home for her birthday in March 2009.

3. Ms WM was not apprised of the psychiatric and psychological difficulties of the wife but has, seemingly accepted uncritically the views of the husband (her brother) in respect of the wife.

4. Sadly the wife gave evidence that she valued her friendship with Ms WM and felt cut off and alienated from her.  Ms WM said she felt that the wife had cut herself off from the family.  Hopefully this relationship may be restored, at least at some levels, to reduce the conflict and anxiety to which the child has been exposed in recent years.  The evidence of the wife is that she felt cut off initially from her immediate family and then her broader family.

5. In her affidavit, Ms WM, was complimentary of the husband’s parenting ability.  She provided some insights as to the level of conflict between the parties in 2009 and in early 2010.

6. I accept her as a reliable and at times an impressive witness.  She is likely to be a bridge between these parents in the future.

Ms D

1. Ms D, the wife’s psychologist gave evidence in accordance with her affidavit.[22]  Her qualifications were not in issue.  I accept her qualifications and her evidence was not in any way diminished by cross-examination.  Her evidence supported the wife’s case in that the wife was bewildered and helpless as to what was happening in 2008 and 2009 and that the wife had endeavoured to engage in family therapy at least in the middle of 2008.  The wife was initially grieving the loss of L and was struggling with the change in circumstances.  The wife now consults Ms D monthly.

   [22]Filed 6 July 2010.

2. Ms D opines, and I accept, that the wife’s psychological health is presently good.

The wife’s evidence

1. The wife gave evidence in accordance with her affidavit.[23]  She was a good witness, she made concessions against her interests and acknowledged, at some levels, her inappropriate behaviour and was clearly sad in respect of the loss of her relationship with P.  I am satisfied that her evidence is generally reliable.

   [23]6 July 2010.

2. The wife’s evidence was that that she did not object to, and positively supported, the husband being involved in the child’s schooling life.  This evidence was impressive.

3. The wife’s evidence in respect of the episodes of alleged violence and threats of self harm and her verbal abuse of the other members of the family, over 2008 and particularly 2009 were troubling.  She minimised and at some levels obfuscated the behaviours that she exhibited over that period of time.  

4. The wife was challenged in relation to the telephone calls she arranged for the child to make to the husband each night.  The wife said this was organised as part of the child’s routine because she accepted (and seemed very content) that the child has a close relationship with his father.  As a result the wife arranged for the calls to be made by the child each night.  She said that the child cried on one occasion but was generally very happy to talk with the husband.  The husband wanted the calls made to his mobile number and suggested that the child was distressed and was being forced into this course.  I accept the evidence of the wife that the child is happy to call his father and further that she tries the husband’s home number first and if he does not answer, the child calls the father on his mobile telephone.

5. The wife was cross-examined in relation to her email sent to the husband after the child’s paternal grandfather had passed away in late 2009.  The email was clearly sent in anger or anguish and it was in the context that the wife had been protective of the husband in relation to the treatment she believed was given to him by his father.  She said the husband’s father needed to be called to visit the husband after the death of L and did not attend L’s funeral.  There was a great disharmony between the husband (and presumably the wife) and the husband’s father.

6. I am satisfied the wife has now managed her mental health issues and is compliant of medication and maintains good and appropriate contact with her health care professionals.

7. The wife denied the violence as asserted by the husband although she admitted yelling, screaming and some levels of poor behaviour.  This must be seen in the context of a long relationship coming to an end and the wife’s tendency to reconstruct her recollections of those times.

8. Some emails passed between the parties in July 2010 which showed that the wife was flexible in her parenting approach and that the husband was relatively fixed in his parenting approach.  This supports the analysis of the family dynamics by the Family Consultant.  The wife was encouraging of the child spending time with his sister on her birthday and was encouraging of the husband to attend a football match.

9. The relationship between the wife and P was shattered by the events over 2008 and 2009. 

10. A Police Family Violence Order was made in April 2009 restraining the wife from involvement with the husband, the child and P.  Later in 2009, with the support of the husband and the maternal grandmother, P applied for a Family Violence Order from the State Magistrates Court.  An interim Family Violence Order was made and the proceedings were listed for final hearing in February 2010.  Rather than put her daughter through such a process the wife gave a written undertaking to the Magistrates Court in the following terms:-[24]

    [the wife] not approach [P] directly or indirectly including by telephone, email, facsimile or letter 

    [24]Annexure K to affidavit of husband filed 12 July 2010.

11. The effect of this undertaking was to place a permanent obligation on the wife, not to contact her daughter.  P was at that time represented by a solicitor and the wife was unrepresented when she appeared at the State Magistrates’ Court.  In 2009 the wife endeavoured to contact P by sending her a birthday present and card, as well as writing to her on a number of occasions and in September 2009 she left a Facebook message.  In that material the wife made it clear that she deeply loved P and acknowledged her failing as a mother to P.  The wife continued to send text messages to P, however she learnt that in April 2009 that P’s telephone had been changed some time in the past. 

12. The support of the husband and the maternal grandmother in P’s drive for such an outcome is problematic in terms of the philosophy set out in s60CC(3)(c) of the Act. The husband gave evidence well before that time that he considered the child safe in the wife’s care, the rhetorical question is then, why not promote a relationship with P?

13. I accept the wife’s evidence that it was important that the husband have regular and meaningful time with the child and she would endeavour to put that into place.

14. While the evidence of the wife had some problematic areas, I generally accept that she endeavoured to be accurate and straightforward from her subjective standpoint. 

The husband

1. The husband gave evidence in accordance with his affidavit[25] and was cross-examined by counsel for the wife and the Independent Children’s Lawyer.

   [25]Filed 12 July 2010.

2. The husband was not as an impressive witness as was the wife.  From time to time he prevaricated in terms of his answers; an example of this was in relation to cross-examination on P’s relationship with the wife and other aspects of his evidence.

3. His evidence in relation to P and the proceedings she took for restraint orders against the wife in the State Magistrates’ Court and the undertakings was troubling and I had difficulty in accepting some of that evidence.

4. The husband had little insight into the impact of his approach to the wife in relation to the parenting of the child and in regards to the relationship between the wife and P.  Prior to the hearing the husband seemed to look to create obstacles rather than to look for solutions.  Examples of those are his refusal to attend the sporting occasions set out by the wife[26] and declining an invitation not wanting the child to be returned for P’s birthday as set out in Exhibit W1.

   [26]Exhibit W2.

5. The husband said the wife was a wonderful mother but this was somewhat begrudging and understated.  The husband said that in October 2009 he formed the view that the wife posed no risk of physical harm to the child, however, he continues to believe that the wife is a risk of causing emotional harm to the child.  Having regard to paragraph 17 of the Family Consultant’s report his answer in that respect was somewhat glib and was not persuasive.  Some elements of that evidence seem to be by way of reconstruction.

6. The husband filed evidence by the parties’ elder child P,[27] and relied upon that evidence. The husband’s counsel submitted that as the evidence was unchallenged it should be accepted in preference to that of the wife. That is the normal rule that would generally apply. It was made clear to me that the wife had specifically instructed her Counsel not to cross-examine P. The wife is devastated at the loss of and the current state of her relationship with P. The wife will not and is reluctant to do anything to cause any further damage to that relationship. The wife was aware that such a course could lead to P’s evidence being preferred over her own.

   [27]Filed 13 July 2010.

7. It is indicative of a child focused approach on the part of the wife that she adopted that course.  On the other hand the husband, at one stage, was going to call P to give further evidence notwithstanding the wife’s reluctance to further subject that child to the processes of the Court and cross-examination.

8. That determination by counsel for the husband could only have been done on instructions.  In some ways that is supportive of the criticisms made of the husband by the Family Consultant in terms of his gathering of evidence and his, at some levels, lack of insight into the damage that “almost tunnel vision” approach adopted by him could have caused to P, the child and the wife.

Discussion

1. The parties agree that there should be equal shared parental responsibility.  I reiterate what I said in Juliet & Jones [2010] FamCA 523 at para 194;

   I am then left with equal shared parental responsibility, the best of the poor choices which are available to me.   

Parental responsibility

1. In these proceedings I have some concerns about equal shared parental responsibility but having regard to all of the factors, facts and findings I propose to accede to the parties’ preferred approach and make such an order

2. At the commencement of the hearing the issue as to time was significantly broader than it was at the end of the hearing.  At the end of the hearing the parties consented to making orders that the child live primarily with the wife during school term and live with the husband substantially in accordance with the recommendation made by the Family Consultant.  The issue in this case was whether the child spend significant or substantial time with each parent or equal time with each parent.  Having regard to the evidence of the wife (which I generally accept) and the evidence of the Family Consultant I find that equal time, in the circumstances of this case, would be more to meet the needs of the parents rather than the needs of the child.  To the credit of both parents neither seeks equal time and neither does the Independent Children’s Lawyer.  Accordingly, in accordance with the law I have considered equal time but I will not make an order for equal time.

3. It may be that as the child becomes older as he is finishing primary school or going into high school then at that time and in the circumstances that may exist at that time, equal time may be a consideration.  One of the factors the parties would have to consider at that time is the nature of their relationship.

4. During the course of the trial I raised with counsel whether I needed to make a determination as to the extent of the violence asserted by the husband, P and the child’s maternal grandmother as distinct from the evidence of the wife.  The view of the Independent Children’s Lawyer was that I did and it seemed to be the view of counsel for the husband.

5. On the evidence I am satisfied that the behaviour of the wife, irrespective of whether it was as severe as asserted by the husband and his witnesses or less severe as asserted by the wife, arose out of a set of circumstances during the breakup of the marriage over 2008 and early 2009.  I am satisfied that they are unlikely to occur again as the wife has taken, and had taken, significant steps to address those psychological and emotional issues.

1. An affidavit was filed[37] during the course of the hearing by Mr HE, an accountant who prepared figures in respect of the Yates Property Trust and the Y Group Pty Ltd as Trustee for the Yates Family Trust.

   [37] 27 July 2010.

2. This affidavit was filed and served during the course of the hearing.  Mr HE prepared a statement of the assets and liabilities of the Y Group Pty Ltd as Trustee for the Yates Family Trust and the Yates Property Trust.  He provided financial information which was wholly based on material provided by the husband.  He was not challenged as to the documentation although there were some issues about the underlying material provided to him.

3. All of the information provided by Mr HE was information provided by him to the husband.  During the course of the hearing the wife complained that the husband had not provided her with the MYOB financial records which would enable her to properly analyse the finances of the two trusts.

4. The wife submitted that no evidence was given to the Court about the purpose, timing or participation of the wife in relation to these payables.  Further the wife had received no income source from either entity and the husband did not make proper disclosure of the relevant accounts for either entry.

5. The husband, in his submissions, says that full disclosure was provided.  The draft orders which I propose will procure that issue.

6. The wife was not in a position to argue the various payables as the details had not been made apparent to her.  I am also conscious that the parties were primarily focused on children’s issues and that property may not have received the attention that it needed.

Debt allegedly due to Mrs S Yates

1. The husband claims there is an amount due to S Yates of $27,827.  The wife disputes that debt and says that no evidence was given to the Court about the purpose, timing or participation of the wife in respect of the alleged loan nor did she receive any benefits from that sum.

2. Neither party sought any add-back or accounting in relation to legal costs.  The wife seeks an add-back of the sum of $57,500 retained by the husband and the husband seeks add-backs in relation to payments to the wife of $32,876 and the wife seeks a further add-back in relation to $43,753 paid to the husband.

3. During 2009 and into 2010 the parties had serious financial problems in addition to the broader family problems articulated earlier in these reasons.  Funds were disbursed to the parties to enable them to survive.

4. The father had the full time care of the child and was responsible for P.

5. Having regard to the financial circumstances of both parties I do not intend to make any add-back in respect of these sums.  However I am conscious that the amount paid to the husband was far greater than the sum paid to the wife and having regard to that and the lack of definition in respect of the debt to S Yates I adopt the approach submitted on behalf of the wife that that sum ought to be disregarded.

Wife’s overdraft

1. The wife claims an overdraft of $5,729.69, this was not challenged during the course of the hearing.  I propose to allow that liability and direct that it is paid out of the sale of one of the properties. 

Superannuation

1. In terms of superannuation neither party seeks a splitting order.  Both parties have approximately the same superannuation entitlements although the value of the husband’s superannuation is slightly more than that of the wife.

2. Having regard to the adjustment of property in respect of the non-superannuation assets and having regard to the questions of contribution, other factors and just and equitable it seems to me that the superannuation funds should remain as they are in the control of each of the respective parties.  I do not intend to further adjust the superannuation.

3. It was the submission of both parties that the superannuation ought to be divided equally.  I accept and adopt that submission.

Property at M Street

1. The property at M Street has an agreed valuation of $775,000. There is an issue as to the creation of an easement to preserve that value. It is not in issue that the documents necessary to create the easement are in place and there is a financial cost to register that easement. That is a matter for each of the parties and I will direct that they each contribute towards the payment of registering that easement and if one pays the whole amount then the other party shall be entitled to reimbursement together with interest in accordance with the Rules under the Act.

Contents and furniture

1. During the course of the hearing there were some issues in respect of the contents of the former matrimonial home and a former rented property.

2. In submissions on behalf of the wife she referred to a list of chattels attached to the husband’s pleadings with the addition of a number of items that were not previously disclosed in the husband’s list.  Also included in the wife’s list was the lock of L’s hair and the photographs, both of which I have dealt with separately in these reasons.

3. In her evidence the wife wanted excluded from the list the Chaise lounge, dining room table and chairs, P’s desk, roll-top desk and silver server.  I have adopted that course.

4. In terms of the husband he sought that the contents and furnishing of the former matrimonial home be divided as per his response to an application for final orders.

5. There are some items in the wife’s list of furniture where she describes them as “missing” or the like.  When the husband deals with this he ought to indicate whether that property exists, and if so where.

6. In terms of the photographs, most of those are held by the husband.  They have little or no economic value but for any family, and particularly this family, they have significant emotional value.  That value cannot be determined by normal methods of valuation.

7. Fortunately photographs are able to be copied, both in hard copy form and digital form.  I propose to make orders requiring the husband to deliver to the wife’s solicitors all of the family photographs held in his control.  These must include children’s photographs of P (prior to her eighteenth birthday).

8. Those photographs will be held by the solicitor for the wife for a period of twenty eight (28) days and in that time the wife shall select the photographs she wishes to retain.  The husband will be informed of those photographs and may inspect them and if he requests copies of any one or all of those photographs, copies will be produced and each of the parties will contribute equally to the cost of such production.

9. The photographs which the wife has not selected will be returned to the husband together with any copies made pursuant to such orders.  The copies selected by the wife will be handed to her.

10. The second piece of property is a lock of L’s hair.  The emotional value of this property cannot be understated.  I am not prepared to order that it is owned by one party or the other bearing in mind its history.

11. What I intend to do is declare that the lock of hair is the property of F and P and make an order that the husband and wife retain control and possession of the lock of hair for the remainder of their lives.  On the passing of both parents (or some time earlier as agreed between the parents) the lock of hair will be given to F and P.  In the meantime the hair will be in the possession of each party on a year about basis with the lock being given to the wife within fourteen days from the date of this order and thereafter its change will be annual.

Frequent flyer points

1. It is agreed that the husband has 909,264 frequent flyer points.  It was an agreed fact that the husband is able to transfer some if not all of these frequent flyer points to his wife’s frequent flyer account.  Having regard to all of the facts and circumstances in this matter I will order that the husband assign to the wife 454,632 frequent flyer points within twenty one (21) days of the date of these orders.

2. I am aware that I am dividing these frequent flyer points equally.  I have not included this item in the otherwise holistic approach I have adopted.  I had considered including them in that approach but determined the nature of these points and they were not valued and this was a just and equitable approach.

G Street

1. The parties agree that the property at G Street has a valuation of $552,000.  Both parties wish to acquire that property.  As a consequence the orders I will make will enable the property to be sold at auction at a reserve price of $552,000.  If either one or other of the parties purchases the property at auction it will be treated as a purchase pursuant to these orders.

2. Out of the proceeds of sale of that property (whether it be to one of the parties or a third party buyer) the following will be paid; the amount due on the trust overdraft, the Bank of Queensland, Mr HN, the wife’s capital gains tax, Douglas & Collins, the wife’s overdraft, the amount due to Harcourt and the amount due to Mrs FR.

The trust and various companies

1. There was some issue as to what should happen to the companies.  The husband indicated that he wished to keep the company structures.  I will make an order to that effect, however, I will direct that the husband indemnify the wife in respect of any further liabilities or other liabilities of that corporate structure.

Capital gains tax on the sale of property

1. The wife sold the properties at H Street in June of 2009.  The husband requested that the wife delay the sale to mitigate against the capital gains tax.  Capital gains tax would still be payable but counsel for the husband’s submission was that it would have been less.  There was no evidence to that effect and no accounting evidence was called.  I am satisfied that the capital gains tax was incurred on the sale of that property and was a joint liability and ought to be paid out of the proceeds of sale of G Street.

2. Initially there was a dispute between the parties in respect of the amount of goods and services tax and capital gains tax which would be payable on the sale of G Street.  If the property is retained by the parties no goods and services tax or capital gains tax will be payable.  However if the property is sold the orders adequately deal with these expenses.

Loan from Mrs FR

1. The husband’s aunt, Mrs FR advanced $87,520 to the parties.  The wife thought it was $80,000. The husband asserted that none of the capital had been repaid.  The wife initially asserted that all but about $30,000 to $40,000, (she thought it was about $35,000) had been repaid.

2. The parties eventually agreed that it was $87,250.00.

Contributions

1. The husband made significant initial contributions at the start of cohabitation.  He had a motor car and a gun collection.  The wife disputes the value of the gun collection.  No valuations were provided.  In addition the husband was given the forty hectares of land at M Street in Tasmania.  Subsequent to that the husband’s father and mother gave him $30,000 a year for between five and seven years.

2. One of the cars which the husband says was part of the initial contribution was, according to the evidence of the wife, subject to his work entitlements.  Whichever way it was, the husband made a significant initial contribution of which I have had regard.  This was during the time that he was working at the farm and was paid a low income.

3. The husband asserts that he completed works on the matrimonial home to enable the provisional easements to the property.  I have had regard to that contribution.

4. The husband asserted that he undertook the renovations to G Street to improve its value.  The evidence of the wife (which I prefer) was that the husband and the wife worked on that property.  There was no evidence to show how much, if any, of the renovation work changed the value or whether the value was changed by the passing of time and the general increase in real estate in Tasmania in recent years. 

5. Since separation the husband has undertaken significant work to the M Street property which he has set out in his affidavit.  I accept that work has been done by the husband.  However, he has had the benefit of the exclusive occupation of that home.  I have had regard to that contribution in determining the contributions between the parties.

6. In March 2007 the wife was diagnosed with cancer.  Over the next eight months she had to undergo treatment and was unable to work.  She had an insurance policy and received a lump sum payment of $190,000.  Of that sum $120,000 was used towards paying their home mortgage.

7. From the evidence of both parties it is clear that each contributed to the best of their ability throughout their relationship.  I am satisfied the wife has been the carer of the three children, in particular L.  The wife concedes that both she and the husband put as much effort as they could in relation to the care of L during the time he was with them.

8. I have had regard to the significant initial contributions of the husband and contributions since separation.  I have had regard to the contribution by the wife in terms of her insurance when she was unwell.

9. I have had regard to the husband running the parties’ business until its insolvency in March 2010 and the efforts undertaken by the husband in preparing the former matrimonial home for sale.  I have had regard to the husband’s contributions in respect of the H Street property.

10. The wife submits that the contributions should be treated on the basis that there ought to be an adjustment in her favour in the sum of 5 per cent.  I do not adopt that submission as I am satisfied that overall the husband’s past contributions are slightly greater than that of the wife.

11. Having regard to all of those circumstances I find the contributions as to 47 per cent by the wife and 53 per cent by the husband.

THE OTHER FACTORS

1. The wife deposes, and I accept, that she is working part time and holds three positions as set out in paragraph 8 of her affidavit.  The wife intends to continue working from 9.00am until 5.00pm from Monday through to Thursday.  This will fit in with her proposal to be the primary carer of the child during school term.

2. The wife was taking medication for depression however she is no longer prescribed this.  The wife continues to meet with her general practitioner, Dr N every six to eight weeks and her psychologist Ms D.

3. As indicated earlier, in March 2007 the wife was diagnosed with Hodgkinsons Lymphoma and underwent radical chemotherapy and radiotherapy.  She meets with her specialist every three months and attends at a cancer Clinic every six to eight weeks for treatment and blood tests.

4. The wife is prescribed with medication for a thyroid condition and undertakes other treatment including hormone replacement therapy.  Counsel for the wife submits that she has a debilitating health condition which is likely to have practical and financial effects on her future life with medical costs and interruption of her working capacity.  I generally accept that submission although not to the extent asserted on behalf of the wife.  I am satisfied that her health is problematic and that her income is likely to remain at the present level of about $850 per week (subject to consumer price index increases).

5. There is no evidence of the present state of the husband’s health and in the absence of such evidence I am satisfied that he is in good health.  The husband asserts that he has been able to renovate properties and work full time over a long period of time.  He ran his own business for a period of time and was, for much of the marriage, the primary income earner.

6. The husband is aged 43 and the wife aged 44.  The wife’s health is problematic and there is no issue about the husband’s health.

7. The parties’ finances have deteriorated over recent years as a consequence of their economic circumstances, the wife’s poor health and the global financial crisis which lead to the undermining of the parties’ business.

8. The wife will resume her role as primary carer of the child although the child will live with the husband for a significant amount of time including one half of the school holidays.

9. The husband has a commitment to support himself and the child.  The wife has a commitment to support herself and the child.  There is no evidence of either party having re-partnered.

10. Both parties have a responsibility to support the child.

11. There is no evidence that either party is entitled to a pension or an allowance.

12. It is clear that the standard of living of both parties has deteriorated since their relationship dissolved.  It was necessary for the parties to apply part of their capital for living expenses over the last twelve to eighteen months.

13. The parties had been in a relationship from about 1989 and separated in early 2009, a period of twenty years.  In the later part of those years the husband was the primary income earner.  The wife had the care of the three children of the marriage, albeit with significant assistance from the husband.

14. As a consequence of the property orders both parties will have sufficient funds to house themselves in the local community.

15. There is no evidence as to what child support would be paid or is payable.  That will depend upon the husband resuming full time work and a determination of his income stream.  Having regard to his history of hard work and full time work I am satisfied that he would, in the medium term, earn an income substantially greater than that of the wife.  The husband has shown a pre-disposition to this in setting up his own business and in the assets the parties accumulated over the years.

16. Having regard to all of those facts and circumstances I am satisfied that there ought to be a further adjustment in favour of the wife to the effect that she would receive 57 per cent of the pool of assets and the husband 43 per cent.  This will not include the superannuation and frequent flyer points which I am leaving in place which is approximately equal between the parties.

JUST AND EQUITABLE

1. One of the issues is how I treat the superannuation.  The parties had sought that the superannuation be dealt with on the basis that each party retain their own and neither seeks splitting orders.

2. Having regard to these submissions I will be treating the superannuation differently to that of the remainder of the property.

3. The other property which I intend to deal with differently is the frequent flyer points.  It was open for me to divide these on the basis in accordance with the process that I adopted for the remainder of the property, however, bearing in mind that these points were accumulated during the marriage I have adopted a different course for them, that is to divide them equally.

4. The consequence of this will be that the debts of the parties, including that to Mrs FR, will be paid out in full.  The primary assets of the parties will be divided equally after payment of mortgages.  This includes the proceeds of sale of the property at M Street and the sale or acquisition of the property in G Street.

5. Each party would end up with an equal proportion of the furniture and effects.  In my view that result is just and equitable.

6. The former matrimonial home at M Street is to be sold.  One of the things that is necessary in relation to the sale of the property is the completion of an easement.  This will maximise the value and the return to the parties.

7. The amount of the costs associated with that easement are not determined but both parties agree that the reasonable costs and disbursements incurred by them through employing Douglas & Collins in obtaining that easement are reasonable expenses on the sale.

8. I will not be directing a money payment be made as the substantial assets of the parties are comprised in the former matrimonial home and the property at G Street.  The effect of the order I will make will mean that the net proceeds of sale will be divided as to fifty seven per cent to the wife and forty three per cent to the husband. 

9. I am satisfied that that is, in all the circumstances, just and equitable.

I certify that the preceding three hundred and seventeen (317) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 7 September 2010.

Associate:     

Date:   7 September 2010.