Adamo & Vinci (No 2)

[2020] FamCA 873

FAMILY COURT OF AUSTRALIA

ADAMO & VINCI (NO. 2) [2020] FamCA 873

FAMILY LAW – PARENTING – Where the children have been subjected to ongoing parental conflict – Where the children spend time with the father on an ad hoc basis – Where the children seek more regular time with the father – Where the father alleges parental alienation – Where the father has directed abusive and derogatory language towards the mother – Where one child suffers from an illness – Where it is in the best interests of the children to spend regular time with the father – Where the father has not taken time with the children when available – Orders for children to spend alternate weekends with the father.

FAMILY LAW – PROPERTY – Where the wife made significantly greater initial contributions – Where the husband and wife made equal contributions during the course of the marriage – Where the parties lived together for six years post-separation – Where the wife’s post separation contributions are significantly greater than the husband’s – Orders for wife to have 70 per cent of the property pool and the husband 30 per cent – Where there is a ten per cent adjustment to the wife for future needs.

Family Law Act 1975 (Cth) ss 65DAA, 75(2), 79(2), 90MT(1)(b)

APPLICANT: Mr Adamo

RESPONDENT: Ms Vinci

INDEPENDENT CHILDREN’S LAWYER: Stidwill Solicitors

FILE NUMBER: SYC 3598 of 2018

DATE DELIVERED: 16 October 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 21, 22 & 23 September 2020

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Livingstone

SOLICITOR FOR THE RESPONDENT: Alidenes & Co Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Reid

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stidwill Solicitors

Orders

IT IS ORDERED

PARENTING

1. That the parents have equal shared parental responsibility for the children X born … 2006 and Y born … 2009 (“the children”).

2. That the children live with the mother.

3. That the children spend time with the father during school terms as follows:

   (a)From Friday after school until Monday when school starts on each alternate weekend;

   (b)In the intervening week, from Wednesday after school until Thursday when school starts; and

   (c)Such other time as the parents agree.

4. That the children spend time with the father during school holiday periods as follows:

   (a)For one half of each school holiday period and, in the absence of agreement, the second half;

   (b)From 6 pm on Christmas Eve until 11 am Christmas Day in even numbered years;

   (c)From 9 am on 31 December until 10 am on 1 January in odd numbered years; and

   (d)From 5 pm on Good Friday until 10 am on Easter Sunday in odd numbered years.

5. That the children spend time with the father:

   (a)From 9 am until 6 pm on Father’s Day; and

   (b)For three hours on each child’s birthday and on the father’s birthday.

6. That the operation of Orders 3 and 4 is suspended on the weekend of Mother’s Day and on the mother’s birthday.

7. That in the event that the father does not intend to spend time with the children, or either of them, on any occasion provided by these Orders, he shall notify the mother in writing by email or text giving reasons and the mother is permitted to allow the children to read the email or text.

8. That the father have telephone or FaceTime contact with the children at any reasonable time.

9. That for the purpose of any changeover that cannot take place at the school, the mother shall deliver the children at the start of the period and the father shall return the children at the end of the period.

10. That each parent is restrained from denigrating the other or members of the other’s family in the presence or hearing of the children.

11. That each parent do all things to ensure that the children have current passports from time to time, such passports to be held by the mother.

12. That in the event that a parent proposes that the children or one of them travels overseas, he or she shall provide to the other parent, not less than 14 days before the proposed departure date:

    (a)An itinerary;

    (b)Copies of the children’s tickets;

    (c)A copy of the travel insurance policy;

    (d)Copies of any relevant visas;

    (e)Evidence of relevant vaccinations; and

    (f)Telephone contact details.

13. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.

PROPERTY

1. That within six months of the date of these Orders, the wife pay to the husband the sum of $402,000, less any sum due to the wife by way of costs ordered to be paid and the husband’s half share of the costs of Dr C which have been paid by the wife.

2. That in the event that the wife has not paid the whole of the sum in Order 14 by the due date, she shall do all things required to sell the property at D Street, Suburb E in the state of NSW being the land comprised in Folio Identifier … and to pay the proceeds of sale, in the following order and priority:

   (a)To discharge any registered mortgage;

   (b)In payment of selling costs and agent’s commission;

   (c)To pay to the husband the sum of $402,000, or such amount as remains unpaid, together with interest calculated from the due date of payment in Order 14 until the date of payment at the interest rate prescribed by the Family Law Rules, less any sum due to the wife by way of costs ordered to be paid and the husband’s half share of the costs of Dr C which have been paid by the wife.

3. That from the sum received by the husband in accordance with Order 14 or 15 he shall pay one half of the costs of the Independent Children’s Lawyer in the sum of $5,681.50.

4. That the wife pay one half of the costs of the Independent Children’s Lawyer in the sum of $5,681.50.

5. That in accordance with paragraph 90MT(1)(b) of the Family Law Act 1975 (Cth):

   (a)Mr Adamo is entitled to be paid the specified percentage of each splittable payment made out of Ms Vinci’s interest in the Super Fund 1; and

   (b)Ms Vinci’s entitlement to payments out of her interest in the Super Fund 1, and the entitlement of any other person to splittable payments out of that interest, are correspondingly reduced by force of clause 18(a) of these Orders; and

   (c)The percentage specified for the purpose of clause 18(a) of these Orders is 50 per cent.

6. That the trustee of the Super Fund 1 shall do all such acts and things and sign all such documents as may be necessary to:

   (a)Calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001, the entitlement created for Mr Adamo by clause 18 of these Orders; and

   (b)Pay the entitlement to Mr Adamo whenever a splittable payment becomes payable out of Ms Vinci’s interest in the Super Fund 1.

7. That Orders 18 and 19 have effect from the operative time and the operative time for these Orders is one month from the date of these Orders.

8. That Orders 18, 19 and 20 bind the trustees of the Super Fund 1.

9. That the husband discontinue proceedings … against the wife in the District Court of NSW.

10. That the wife make available for collection by the husband, at his expense, the following items:

    (a)       His bike and sporting equipment;

    (b)       The small statue of Caesar Augustus; and

    (c)       Leather chess set.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adamo & Vinci has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3598 of 2018

Mr Adamo

Applicant

And

Ms Vinci

Respondent

REASONS FOR JUDGMENT

1. Mr Adamo (“the husband”) and Ms Vinci (“the wife”) married in 2002 and separated in 2012, although they remained living under the one roof until October 2018 when the husband was excluded from the home.

2. They have two children, X who is now aged 14 years and Y who is now aged 11 years (“the children”). Both children have lived primarily with the wife since the husband left the home.

3. The proceedings before the Court relate both to the parenting of the children and the distribution of their property.

4. The husband seeks an equal time arrangement for the children with each parent. The wife proposes that the children live primarily with her and spend time with the husband on alternate weekends from Friday afternoon until Monday morning, overnight on Wednesday night in the intervening week and for half of the school holidays.

5. By way of property settlement, the husband seeks orders that the wife pay him $1,300,000 together with a splitting order in relation to one of her superannuation interests such that her superannuation pension would be equally divided.

6. The wife seeks orders that she pay to the husband $350,000 by way of instalments over a period of four years and that there be a splitting order in relation to her superannuation such that the husband receives $146,309.

HISTORY

1. The husband is 48 years of age and the wife is 49 years of age.

2. In 1996, the wife purchased a property at D Street, Suburb E (“Suburb E”). There is no evidence of the amount which she paid for Suburb E or how much she borrowed.

3. They commenced co-habitation about a year before they married although the husband returned to live with his parents for a few months before the wedding.

4. It is the wife’s evidence that, when the parties married in 2002, there was a mortgage of $40,000. Her estimate that Suburb E was worth about $900,000 at the time of the marriage was not challenged by the husband.

5. At the time of the marriage, in addition to her interest in Suburb E, the wife had superannuation of $67,751.

6. At the time of the marriage, the husband had superannuation of about $70,000 and savings of about $10,000.

7. They were both working. The husband was employed in administration earning $78,000 per annum. The wife was employed in administration earning about $75,000 per annum. They were both members of a political party.

8. They lived together at Suburb E where the wife and the children remain.

9. After the marriage, the wife refinanced the mortgage over Suburb E, borrowing a further $100,000. Those funds were used to pay some of their wedding expenses, to buy a car for the husband for $45,000 and a car for the wife for $25,000 and to pay for holidays.

10. In October 2005, the husband commenced employment as a professional.

11. Until the end of 2005, the husband and the wife each paid $1,500 per month towards the mortgage repayments and paid the balance of their earnings into a joint account from which they met their expenses. The husband asserts that he continued to contribute to the mortgage until it was repaid in 2006 or 2007 but he does not assert that he continued to pay his earnings into the joint account. There is a dispute about the financial contributions made by the husband after he commenced employment as a legal professional.

12. Between 2003 and 2011 the wife was an elected official. There is a dispute as to the extent and value of the contributions of the husband towards her election which he asserts has relevance because as a result of her service, the wife has an entitlement to a pension.

13. In 2010, the wife became involved in an inquiry into allegations relating to her conduct. She borrowed $250,000 secured over Suburb E to fund her legal fees. Subsequently, she engaged in litigation in the Supreme Court of NSW and at appellate level in relation to the findings that had been made against her. There is a dispute as to the husband’s contributions in relation to that litigation.

14. In October 2010, the husband left his workplace and thereafter worked from home.

15. The parties separated in 2012 but remained living at Suburb E.

16. The wife did not work between 2011 and 2014. She received Austudy and Centrelink payments and borrowed money from her family. She secured permanent employment in October 2014. She asserts that thereafter she was solely responsible for the financial support of the household.

17. In 2017 the wife left her employment and received a lump sum which she used for the support of the household and the children’s private school fees.

18. She commenced new employment in March 2018.

19. In October 2018 the husband was excluded from the Suburb E property and thereafter lived with his parents at Suburb G.

20. These proceedings were commenced on 7 June 2018 by the husband’s filing an application for spousal maintenance.

21. In November 2018, the husband sought an Apprehended Domestic Violence Order (“ADVO”) against the wife. The children were named in the application as persons in need of protection.

22. On 12 August 2019, an order was made that the wife, within 28 days, pay the sum of $40,000 to the husband. The jurisdictional basis for that payment is unclear. In the reasons for judgment, the trial judge found that the husband had not met the threshold test for spousal maintenance. That being the case, I propose to treat the payment as a partial division of property.

23. In about August 2019, the wife received from the M Company a payment of $7,654 relating to damage to the car driven by the husband. The wife was the primary policy holder. The husband instituted proceedings in the District Court of NSW seeking the payment of those funds to him.

HUSBAND’S APPLICATION IN A CASE

1. On 30 April 2020, when the matter was before me for the first day procedural hearing, I made orders for the filing of affidavits in the following terms:

   2.That each party file and serve any affidavit material upon which he or she seeks to rely at hearing not later than 4pm on 19 June 2020 noting that each party and each witness will be entitled to rely on one affidavit only.

   3.That no further affidavit material is to be filed without the leave of the Court first obtained.

2. The wife filed in accordance with the directions. The husband did not.

3. On 8 September 2020 a Registrar directed that the husband file one consolidated affidavit, noting that trial directions had previously been made.

4. The husband’s trial affidavit was sworn on 14 September 2020 and filed at        6.43 pm that day. He did not file an updated Financial Statement.

5. No objection was taken at trial to the late filing.

6. Notwithstanding the trial directions made both by me and by the Registrar, on 17 September 2020, the husband filed a Case Outline in which he indicated that he sought to rely on a Financial Statement sworn 7 June 2018, and portions of four other affidavits which had been filed in 2018, 2019 and 2020.

7. On Saturday 19 September 2020, the husband efiled an Application in a Case seeking leave to rely on the additional material. That application was supported by an affidavit of the husband sworn 19 September 2020. The trial was scheduled to start on Monday 21 September 2020.

8. The application was opposed. After hearing submissions, I dismissed the application and indicated that reasons would be provided in the substantive judgment. These are the reasons.

9. The husband gave no explanation for his failure to file a trial affidavit within the time set in the directions. Neither did he give any adequate explanation for his failure to comply with the directions that each party would be permitted to rely on one affidavit only.

10. The wife was entitled to prepare her case relying on the assumption that the affidavit of the husband which was filed on 14 September 2020 was his evidence in chief.

11. The husband had in excess of four months, between the making of trial directions and the trial, to comply with the filing directions. He chose not to do so.

12. His application to rely on affidavits other than the trial affidavit was dismissed.

THE TRIAL

1. At trial, the husband was permitted to rely on his affidavit sworn 14 September 2020 and his most recent Financial Statement sworn on 8 December 2019.

2. The wife relied on her affidavit sworn 23 June 2020 and her Financial Statement sworn 3 December 2019.

3. An Independent Children’s Lawyer (“ICL”) had been appointed for the children.

4. The Court was assisted by a report from a single expert psychologist, Dr C dated 12 September 2019.

PARENTING

1. Each of the parties has made allegations against the other of physical violence and emotional abuse. The wife asserts that the husband exposed the children to psychological abuse. The husband asserts that the wife was financially controlling. Each accuses the other of intimidation, harassment and bullying. On either version of their six year separation under the one roof, it was acrimonious, conflictual and stressful, no doubt for both parents but, more importantly, for the children.

2. Sadly, the youngest child, Y, was diagnosed with an illness in March 2020.

3. Since the husband left the Suburb E property, he has lived with his parents and has not been able to provide suitable accommodation for the children to regularly have weekends with him. He deposed that he has been unable to take the children overnight regularly because his parents “are elderly and cannot deal psychologically or emotionally with such behaviour”.

4. The father deposed:

   I say that the current arrangement in which I spend time with the children as agreed at my parents [sic] is unsatisfactory and unworkable…

5. As a result, the husband’s time with the children was not regular and less than the children wanted.

6. When an order was made on 12 August 2019 for the wife to pay the husband $40,000, he did not use those funds to establish himself in rented premises so that the children could spend regular overnight time with him.

7. Consequently, at the time of the trial, the children were primarily living with the wife and the husband had been seeing them irregularly.

8. There had been some improvement in the regularity with which the husband saw the children after Y was hospitalised because of his illness.

9. It is the husband’s position that, in order for the children to spend half of their time with him, he needs to have sufficient funds from the financial proceedings to buy a property near to Suburb E. In cross-examination, the husband indicated this amount would be $600,000 to $700,000. He does not contemplate paying rent in order to house the children. In his oral evidence and in his submissions, he said that he does not believe in paying rent.

10. From the evidence and the submissions, the following issues emerged:

    ·    The husband’s allegation that the wife had alienated the children from him or attempted to do so;

    ·    The mutual allegations of family violence;

    ·    The allegations that each had involved the children in the proceedings;

    ·    Y’s health and its implications for his future care; and

    ·    The husband’s likely involvement in the future parenting of the children.

The husband’s allegation that the wife had alienated the children from him or attempted to do so.

1. It was a consistent theme of the husband’s case that the wife had attempted to alienate both children from him and that, in relation to Y, she had, for a time, succeeded.

2. It was difficult to understand the husband’s position in circumstances where the evidence of the mother and Dr C was that both children wanted to see their father and spend time with him.

3. In her report, Dr C stated that X had felt “lonely and abandoned” by his father and that he was “slowly reconciling himself to accepting that his time with his father who had been his primary source of nurturance had been significantly reduced and may remain that way”.

1. Dr C reported that Y “misses his father’s availability and is puzzled by what he now sees as his father no longer being present for him”.

2. At the time Dr C saw the family, the father was spending time with the children irregularly and when it suited him.

3. Dr C, in cross-examination, said that when she saw the children they were “desperate” for more contact with their father.

4. Dr C did not agree with the father’s proposition that the mother had either attempted to alienate the children or succeeded in doing so.

5. She said that some of the children’s comments to her in interview were a reflection of their despair in not seeing enough of their father. In answer to a question put to her by the father, Dr C told him that his children were “desperate to have more time with [him]”.

6. Dr C, had reviewed the notes produced by J Hospital and by K Health Service and she told the husband that, from her reading of the notes, the children’s wish to spend time with him had not changed.

7. The husband cited a number of instances which, he said, were evidence of alienation or attempted alienation.

8. On 29 March 2019 there was a text exchange between the husband and Y, who was aged 10 years, about the fact that his and X’s sports games the next day clashed:

   Husband:Y as I explained yesterday, I can’t get to both your trials because they are on around the same time.

   So work it out & let me know.

   I’ll take you both afterwards from Suburb H afterwards anyway.

   (As per the original)

   Y replied:

   Y:No it’s not always what you want and please stop texting me at 7.00 O’clock in the morning.

   HusbandI’ll get X then.

   Y:You don’t want to be part of our life’s then that’s your problem because we are sick of you always saying you will get us but then you don’t come alright chose a time or you don’t see us

   Husband:Y, you have to learn that if you think you can make things up, & hang up on me, then you won’t be in my life, & X will. So you better grow up.

   Y:Good, if you are going to continue the same way you behave no on one will want you

   Husband:Bye Y.

   Enjoy your new dad because you’ve lost this one.

   (As per the original)

9. It is difficult, if not impossible, to imagine a circumstance in which a parent could think this was an appropriate thing to say to a child.

10. In cross-examination, the husband said that he later apologised to Y by text and they “got over it”. I assume that the apology is contained in the following exchange some two and a half hours later:

    Husband:Y, you know i didn’t mean that message. But we’re going to have a nice talk about how you treat me, or we’re going to have some real problems. You know I love you.

    Y:Thank you, but I want to talk about how you treat me to

    Husband:Ok.

    By the way in your sentence where you use to meaning also, it is spelt “too”.

    (As per the original)

11. Later that afternoon the husband sent a number of messages to Y:

    Husband:I’m missing my Y….

    Husband:Y, do you still bite your toe nails?

12. The next day after school the husband texted Y:

    Husband:Y, ring dad if you want. I’m not going to ask again.

13. The husband called Y numerous time on the following days but Y did not answer.

14. In relation to the exchange between the husband and Y on 29 and 30 March 2019, Dr C said that would have caused great distress to Y and that “comments of that nature take a lot of repair, particularly for Y who has had an ongoing struggle with the role and the value he has in his father’s life”.

15. On 1 April 2019, after X had not answered a call from the husband, there was the following text exchange:

    Husband:X, your mum has no right to tell you not to take my call. Don’t be bullied by her & respond please.

    X:She didnt.

    I was in the bathroom and I thought you would be asleep by now

    Husband:That’s a load of shit. I rang you twice. I’m getting sick of you & Y not answering as soon as you can.

    X:You know my shits take 3 hours.

    Husband:I’m not impressed & I thought I made you understand I don’t like to be lied to.

    X:Ok

    Sorry

    Husband:No you’re not. You just don’t give a shit.

    X:Hey man I’m just trying to get through year 7 ok.      

    (As per the original)

16. The husband’s interpretation of this exchange is that the wife had threatened to take X out of his school if he answered the husband’s calls.

17. On 3 April 2019 there was a text exchange:

    Husband (at 3.33pm): 

    X has mum told you not to answer my calls & only to text me?

    Husband (at 3.34pm): 

    If you don’t answer soon, I’ll take the answer as yes.

    X:I just got out of school.

18. On 5 April the husband sent a message to X:

    Husband:…can you tell Y to call me please. Let me know what he says.

    X:He says he doesn’t want to

    Husband:Tell him he isn’t being fair. I bought him his mobile & now he is blocking me. He agreed to talk to me last time we texted each other.

19. The next time the husband saw Y, at sports, he confiscated Y’s phone. The mother gave evidence that Y was so distressed that she bought him a new phone.

20. X told the husband in a text exchange that Y had a new phone. The husband texted:

    Husband:She is so silly. What a waste. Instead of just teaching Y to behave.

21. The evidence does not support the husband’s assertions that the wife has made any attempt to alienate the children from him. On the contrary, the evidence suggests that the husband, whether consciously or unconsciously, has endeavoured to adversely influence X’s attitude towards his mother.

The mutual allegations of family violence.

1. Although the husband, in his trial affidavit, made generic allegations of violent conduct by the wife, it was difficult to find specific allegations detailing what she was alleged to have done.

2. He alleged that she threw a plate of food at him. The wife conceded that she had pushed a plate of food towards him and that food fell off the plate.

3. The husband made a private application for an Apprehended Domestic Violence Order (“ADVO”) on 26 October 2018. He named himself and both of the children as persons in need of protection, seeking orders, inter alia, that would have prevented the wife from living in the Suburb E home or going to the children’s schools. He also sought an order that the wife be prevented from restricting his access to Suburb E or failing to pay the costs of running the household, or costs relating to the ‘health and well-being’ of the husband and children.

4. In that application, he detailed the behaviour upon which he relied as the wife’s excluding him from the home and he alleged financial abuse in that she failed to pay his reasonable living expenses.

5. He also alleged that the wife had assaulted him but he gave no particulars of the alleged assaults.

6. The application did not proceed.

7. I do not accept that the behaviour alleged constitutes family violence. At the time of the application, the husband and the wife had been separated for six years and there was no order that she pay spousal maintenance. When the husband did apply for spousal maintenance in the Federal Circuit Court, there was a finding that he did not meet the test of being unable to support himself.

8. The husband, in his trial affidavit, referred to a statement made by the wife to police on 18 August 2018 in relation to her allegations of violence. In cross- examination, she disagreed with the husband’s summary of her allegations but, as the statement was not tendered, I can draw no inference from that evidence.

9. The wife made allegations of physical violence and of verbal violence towards her and towards the children.

10. The wife alleged that the husband has called her a slut. The husband denied that allegation. However, in an affidavit sworn by him on 5 September 2018, the husband deposed:

    I said words to the effect of,

    “Oh, what are you, a slut then?”

11. It is unlikely that the husband used that language on only one occasion.

12. The wife also alleged that the husband called her a whore.

13. The husband deposed in his trial affidavit:

    On 22 March 2020 when I came to drop Y off at [the wife’s] house, she was wasn’t there. I called her as we waited at the door. Y was very fragile and he told me what I believe to be the cause of his illness (which broke my heart), “Dad when I’m with you, I miss mum. When I’m with mum, I miss you. Why can’t we all just be happy together?” I said, “I’m sorry, but that is not going to happen. Though you have to understand you don’t have to pick sides. We both love you and care for you and some kids don’t have 2  parents that love them.” … I was very said at what Y had just told me. My car was parked on the street and I got into it. As [the wife] walked towards the front of the house, I opened my window and motioned for her to come close to me (which she did), as Y was still at the top of the driveway at the front door of the house. I told her, in a low pitched voice (which there is no way Y could hear), “You’ve destroyed that kid. He feels ripped between us. And why, because you’re a fucking whore”, and then I drove off. …

14. The parties had been separated for almost eight years in March 2020.

15. Again, I do not accept that this was the only occasion upon which the husband used that language.

16. In cross-examination, the husband put to the wife that she took delight in cuckolding him. There was no suggestion that the wife had entered into a new relationship before March 2018, some six years after separation.

17. The husband conceded that he had called the wife “mad; “an idiot” and a “person of low intelligence”.

18. The wife deposed that, on 20 September 2018, when she arrived home from an evening function, the husband was in her bed in his underwear. The husband did not dispute that allegation and his explanation, in circumstances where his bedroom was on the lower floor of the property, was entirely unconvincing.

19. The wife deposed that on 26 September 2018, she again arrived home from a function and, as she started to undress in the dark she was startled by the husband’s being in her bed. She deposed that the husband on that occasion suggested they have sex.

20. The wife gave evidence of an occasion before the husband left Suburb E when she said he pushed her into the ironing board on the wall, causing bruising. The husband denied that the event occurred as the wife alleged.

21. The wife alleged that, on 30 March 2019, after the husband had left Suburb E, he pushed his way into the house because X was not ready to leave and he helped X pack his bag. The husband told Dr C that the wife pushed him. On any version, the husband was well aware that she did not want him entering the house.

22. X told Dr C that he had not seen physical violence between his parents.

23. In relation to the incident on 30 March 2019, Dr C reported:

    Y referred to the incident that has recently occurred when his father allegedly "barged" through the door and pushed his mother. He said that his brother intervened and tried to stop his parents from fighting. He said that he subsequently blocked his father on his phone. Y exclaimed "I don't like talking about it" and began sobbing uncontrollably. He said that they left with their father that day and later, his mother called to ask if X was ok. Y said that his father grasped the phone and asked his mother why she was behaving that way. He said that his mother got angry and demanded to speak to X.

24. The wife alleged that the husband called the children “fuckwits” and “retards’. The husband denied that allegation although he deposed in his trial affidavit:

    If they misbehaved, I sometimes said, “Don’t behave like retards or fuckwits”. I don’t use this language with the children any more.

25. In relation to the husband’s use of hurtful language, Dr C reported of her conversation with Y:

    He also asserted that he does not like it when [the husband] says some bad and hurtful things. He added that his father probably does not realise that he hurts people’s feelings because he then tries to make up for having hurt people.

26. I accept that the husband has used derogatory and inappropriate language to the wife as she alleged and that there has been mutual pushing and shoving between them.

The allegations that each had involved the children in the proceedings.

1. The husband deposed:

   In around March 2018, X asked me what will happen if his mother and I divorce. X was worried for me. I replied, “I hope your mother doesn’t divorce me, but if she does, I think I’ll get at least half of everything she owns, including her pension”. I specifically avoided telling X that the house might be sold. However, more recently X has come to understand that the house might have to be sold, and he has told me, “I don’t care if the house is sold dad, I just want to live with you”.

2. The husband deposed:

   On the evening of 22 October 2018 (4 days after [the wife] had locked me out of what was then my home and workplace), I had a telephone conversation with X in which he asked me, “Dad, why did you have to leave?” I had assumed [the wife] had told X what she had done in getting the locks changed and locking me out. I said, “didn’t your mum tell you? I didn’t leave. Your mum changed the locks and locked me out”. I perceived X was in shock. He said “Yes, that is why there isn’t a key in the door anymore. She can’t do that. That is illegal”. I told him “Well I’m going to raise it in court”. He said, “the court will have to see that it is wrong”. I inferred from this discussion that [the wife], by not telling X what she had done, intended or at least was prepared to leave him under the impression that I had abandoned him. This distressed me and upset me no end.

   (As per the original)

3. The wife deposed that X has said to her:

   Dad says you will need to sell the house because he’s entitled to 50% of all of your house and the superannuation”

   and that, on 15 July 2018 X said to her:

   You have to pay dad out when he leaves, so the divorce won’t be over for at least 6 months.

4. Dr C said that the conversation between the husband and X put the child in the position where he had to take sides and was psychologically damaging for the child. She said, “Children should be shielded from conversations of that nature”.

5. The husband deposed:

   … on 15 August 2018 at the entrance to [the wife’s] bedroom after the first appearance before Judge Henderson, I heard [the wife] talking to a man on her mobile phone in an affectionate manner about the court proceeding. I asked her “Have you got a boyfriend? Are you speaking to your boyfriend?” [The wife] stuck her middle finger up at me a number of times and smiled and nodded her head to say yes. She did this with X in the area as he was next to me. When she finished her conversation I then said “Call him then. Let me speak to him”, and she got very defensive, saying “no”, and reached for her phone which she had put down. I then walked away from her bedroom. X had seen what had happened, and I then said, “Did you see X? Your mum has just admitted that she has got a boyfriend.” X than said, “You’re a hoe [sic] mum. You’re being hoeing [sic] on dad”. …

6. The wife, in cross-examination, said that she had been talking to a girlfriend and denied using a rude gesture. She was in her bedroom when the incident occurred.

7. It is to be remembered that this incident occurred six years after the marriage had ended. When this was pointed out to the husband he said “Well we were still married.” When put to him again they had been separated for six years, he responded “So what? No I’m sorry but we were still married”.

8. In cross-examination by counsel for the ICL, the husband said that he had made no attempt to discipline X or to explain to him that it was unacceptable to use such language to his mother because he, the husband, was “upset”. When pressed he said “Are you seriously saying in one instant when he was saying something I should have stopped him?… No I was upset at the time”.

9. Dr C referred to that incident as “very disturbing”. She said the incident was “totally undermining” of X’s relationship with his mother and planted the seeds of his disrespecting her.

10. Dr C described X as being “embroiled in these proceedings”.

11. Y told Dr C that he was upset with his father for accusing him of taking his mother’s side.

12. I accept Dr C’s assessment:

    Unfortunately, the living separated under the same roof arrangement which the parties had in place from 2011 until 2018, has meant that the children have observed some acrimonious and unbecoming interactions between their parents. This has unfortunately drawn them into the adult dispute.

Y’s health and its implications for the children’s future care.

1. On 27 April 2020 the K Health Service notes state:

   Y presents as a sweet, articulate and pseudomature boy. He has a history of perfectionism. From today’s session we were given the impression the origins of Y’s illness are rooted in his parents [sic] separation and the lack of reliability/predictability he experiences in his relationship with his father.

2. On 11 May 2020 the progress notes state:

   I met with Y’s parents today with the goal of reiterating the importance of reducing conflict and working better together for Y’s sake. It was an acrimonious meeting that was difficult to contain at times but both parents agreed on the goal and positively appeared to be on the same page re the [Family Behavioural Therapy] approach. They agree the open conflict between each other in front of Y needed to stop. For a long time Dad’s contact with Y has been ad hoc, Y was able to say he would like some certainty so Dad has been tasked with coming up with a regular time to see Y.

   Both parents noted significant conflict between Y and his brother [X] in the context of the eating disorder, so it will be useful to capture [X] in the [Family Behavioural Therapy] work.

3. On 8 April 2020 Y was assessed at K Health Service. The notes record:

   Y reported that he woke up one morning in January and “felt horrible”. “Felt I had nothing to look forward to”. He said that he had the image in his [mind] of being “fit and healthy”, but felt that it was a neverending process that he felt he may never achieve. …

   Alongside Y’s difficulties with body image, exercising and food intake, he started to describe feeling depressed and anxious and started to exhibit verbal and physical aggression in relation to “small things” and was mainly directed at his mother. Y’s aggressive behaviour included aggression towards his mother and [X] and “trashing” the house (“smashing things in the kitchen” and “trashing” the bedrooms); often requiring [the wife] and [X] needing to restrain him until he calmed down. (can take 1-2 hours for Y to calm down); generally remorseful afterwards. Initially this occurred 1-2 times/week, but escalated to daily occurrences. In March, [the wife] was so concerned she telephoned the Police, whi [sic] were very helpful in calming the situation down and talking to Y about his behaviours. When [the wife] called the Police a second time within 24 hours, they suggested taking out an AVO against Y. [The wife] was reluctant to do so and consequently [the husband] offered to Have [sic] Y come stay with him for a week. Initially Y was well behaved, but eventually the situation deteriorated and he “trashed” his father’s bedroom. His parents then decided to take him to [the emergency department] for assessment due to their concerns about his mood, disorder eating/excessive exercise and the frequency and high level of aggressive behaviour.

4. The assessor reported:

   A significant stressor is the parent’s [sic] acrimonious relationship and lengthy divorce proceedings through the Family Court. Both parties agree they have found it hard to reach a compromise and are cognizant [sic] of the fact that this is likely to have a negative effect on both boy’s [sic] mental health and wellbeing.

   Interview with [the father] separately:

   [The husband] has had sporadic contact with Y since he left the family home – “[the wife] locked me out” – and went to live with his parents in Suburb G. He maintains that he has had difficulty spending time with the boys because he cannot afford his own residence and has had to live a distance away. In general he estimated that he saw his sons about once every [three] weeks, although there is no consistent pattern. Y currently sees his father every second day. [The husband] reported that Y tends to have a closer relationship with [the wife].

1. The assessor noted in relation to the interview with the mother separately:

   [The wife] reported that Y has missed his father and acknowledges that it has been difficult for the boys because “they are never sure when they are going to see him again”. On returning from a visit with his father in January, Y refused to get out of the car and was distressed. [The husband] reportedly physically removed him from the car. Y reportedly told his mother that he felt “humiliated” by this incident.

2. On 30 April 2020 Y was admitted to J Hospital. The paediatric registrar wrote to K Health Service in the following terms:

   Just to keep you in the loop, we have admitted Y today given further deterioration in his behaviour this week and ongoing weight loss. Mum had to call an ambulance on Tuesday because he was compulsively exercising and became short of breath. He was also aggressive and so police also attended. We saw him on Tuesday afternoon and then again today – mum is not really able to contain him at home. He’s refusing meals, covertly exercising, and aggressive towards her. She is really struggling…

3. Mr N, a clinical psychologist at J Hospital, noted on 7 May 2020 in relation to a consultation with the mother and the father and Y:

   Reiterated importance of reducing conflict and working better together for Y’s sake

   …

   Discussed open conflict between each other in front of Y needed to stop.

   For a long time Dad’s contact with Y has been ad hoc.

   Y disclosed wanting certainty re visits.

   [The husband] agreed to establish a regular time to see Y

   Both parents noted significant conflict between Y and his brother X in the context of the eating disorder.

   …

4. On 11 May 2020 a psychologist at K Health Service noted:

   [The wife] provided update on last [two] weeks. Y maintained progress for just a few days after our initial session together, before increasing exercise, refusing meals and return of aggression towards her and [X]. Ambulance was called and police arrived too. Y has been in hospital since then.

   We explored impact of [the illness] on [X] and he demonstrated good reflective capacity and honesty with some age appropriate bravado.

   It seems [X] maybe a good ally for Y during [Family Behavioural Therapy] sessions as he grasps the concept of being a support to his brother during meals and has already been engaging in helpful distraction strategies when Y has been distressed. [X] has struggled somewhat due to having to tone down his own physical activity for the sake of Y as well as losing his usual physical and social outlets due to COVID restrictions.

   [X] has engaged in his own research and reading on [the illness] and appeared to have a good understanding. …

   [X] shared his reluctance to attend [Family Behavioural Therapy] due to having to miss school but also finding it confronting to talk about [the illness]. However, he agreed to come along from next week.

   We discussed the roles that [X] and [the wife] will have during the fight against the [illness] and ask them to think about how they can support each other and also get some time out.

5. On 12 May 2020 the progress notes from J Hospital referred to Y kicking and hitting his mother for bringing him to hospital and the wife reporting that Y had been more aggressive at home.

6. On 13 May 2020 the J Hospital notes referred to Y relating to stress about the issues between his parents and that Y stated that he could distract himself by exercising.

7. On 21 May 2020 the K Health Service psychologist noted:

   Y responds well to repetition, distraction and encouragement. When mother and brother get tense Y becomes harder to reach and physically lashes out. Sense that Y might not have a strong awareness of what the illness makes him do and this makes it hard for him to give his family clues about what is helpful.

8. On 25 May 2020 the K Health Service psychologist noted:

   Up and down last few days. Y generally eating ok and family getting more confident in pushing through when Y gets stuck. Ongoing explosive outbursts. Trashed [X’s] room on one occasion. Triggered by [X] attempting to restrain from exercising. Y understood it differently. [X] spent much of weekend at uncle’s house. [X] raising multiple grievances. Feels that Y is being rewarded for bad behaviour by being taken out for dumplings immediately after.

9. On 1 June 2020 the K Health Service psychologist noted:

   Ongoing friction with brother. Y is going to [X] a lot saying he is bored and this appears to be a codeword for feeling distressed, lonely and needing to be distracted. [X] seems to be grudgingly responsive to this. Where there are fights, Y generally finds it harder to eat. Involvement of uncle has been an affective circuit breaker.

10. On 11 June 2020 the K Health Service psychologist noted:

    Explored relationship with father. Emerged that Y has been triangulated into parental conflict as mother’s protector. Finds out pieces of information that contradict what his father tells him (eg angry text messages directed at mother). Said around time of separation and for a period was angry at father. Has enjoyed father’s availability since onset of illness – both feel illness has brought them together. [The husband] feels that he is unable to provide a clear structure re: visits until he has his own home and this is tied to legal matters. …

    We have tried to impress upon [the husband] that predictability and emotional availability will be important for Y going forward and that it will also be important it is not the illness bringing them together.

11. On 2 July 2020 the K Health Service notes stated “Relationship with father much stronger since onset of illness…”

12. Dr C said that, while she accepted the improvement in the regularity of the time that the husband was spending with the children, that improvement would need to be sustained. She stressed that these children, in particular, needed consistency and continuity.

13. Dr C said that Y had a strong need for order, predictability and stability. As to his ongoing care, Dr C said “Parents can’t blink – they can’t take their eye off the treatment plan... the capacity for manipulation and children finding ways for the eating disorder to take over are so ever present”.

14. Dr C said that an eating disorder has no magic cure, it is chronic and prone to relapse. She said that parents must put that child’s needs first “and not for three months, while the episode passes, for a lifetime”. She said that an eating disorder has an impact for life so the parents needs to be there for the child for life.

15. Dr C also expressed concerns for X because attention is diverted away from him by the sheer magnitude of Y’s medical issues. X has been prone to depression and, as is demonstrated by the notes produced by K Health Service, has also been adversely affected by Y’s behaviour.

16. Dr C said that, at the time she wrote her report, it was X who had come to the attention of the school counsellor because he was depressed. She described X as “very vulnerable”.

17. She said that, for X, Y’s aggression and dysregulation could be frightening and that he will likely deal with it by avoidance.

18. Dr C said that children who have been exposed to high conflict are predisposed to mental health fragility. She said that although X has been avoidant of engaging with therapists the parents need to be vigilant.

The husband’s likely involvement in the future parenting of the children.

1. After the husband moved out of Suburb E on 18 October 2018, he did not spend regular time with the children.

2. On 19 October 2018, there was the following text exchange:

   Wife:Hi – can we organise when you would like the children this week end. Can I suggest that I drop off the kids to your mothers place tonight and you can have them tonight and tomorrow. I can pick them up tomorrow night or 10am sunday morning. Let me know what u think. I will have an overnight bag packed for them.

   Husband:No. You took them from me, you can have them, for now. There is not enough beds/room here. I have stuff to do & my mother is not well. They can ring me whenever they want. Get the kids to ring me.

   (As per the original)

3. The wife tendered a volume of text communications which seemed to take a pattern of the wife asking the husband if he would have the children and his agreeing or not.

4. The following exchange occurred on 2 January 2019:

   Wife:When are you intending to take the boys this week. I can drop them off tomorrow and pick them up Saturday…

   Husband:I don’t trust you anymore & I want to limit seeing you. I’ll take them to the beach 1 day but they can’t stay here overnight, as my mum is too fragile. I’ve only told you 1 million times. We’ll go to the beach tomorrow or Friday for a few hours only…

   Wife:You have responsibilities towards these children. This is not about me. It is very disruptive when you only take them for a few hours. If you don’t want them during the holidays, that’s not a problem for me.

   Husband:This is the situation you’ve created. Not what I’ve created. Deal with it. I can only take them for a few hours for the time being. I want them. When you say stuff like that you make me detest you even more than i already do…

   (As per the original)

5. The wife prepared a schedule which was annexed to her trial affidavit of the times the children had spent with the husband between December 2019 and June 2020. The husband also prepared a similar schedule. Neither schedule was challenged.

6. In the December/January school holidays, the children spent only one period of five nights with the husband when he took them to Melbourne. He returned the children to the wife on 1 January, one evening earlier than planned. On 5 January and 16 January 2020, they spent a day overnight with him.

7. The husband does not complain that the wife prevented him from spending time with the children during the holidays.

8. In cross-examination, the husband conceded that the wife had urged him to see more of the children but said that she did so “in an unrealistic way”. In February 2020 the husband spent a total of two days and two nights with the children.

9. When asked by counsel for the ICL whether he could have had the children regularly on weekends each Saturday and Sunday, returning them to the wife’s home to sleep, he said “[The wife] never suggested that as an option”. He agreed that the wife had consistently wanted the children to spend overnights with him but he said “It’s just not practical… It didn’t suit them or me”.

10. Dr C said, in answer to a question put to her in cross-examination by the husband:

    …there are many ways the children could have been spending regular time at least with you, and certainly they weren’t at that time.

11. On the husband’s evidence, in March 2020, the husband spent one day overnight with Y.

12. Y was admitted to hospital on 1 April 2020. X spent that night with the husband.

13. When the husband was interviewed at K Health Service on 8 April 2020, it was his estimate that he had the children stay with him about once every three weeks.

14. After Y was discharged from hospital on 22 April 2020 the husband spent one period of two days and a night with Y and no time with X.

15. Y was readmitted on 30 April 2020 until 18 May 2020. During that period, X spent two nights with the husband.

16. In May 2020, after Y was discharged, the husband had a full weekend with X; a day and a night with Y and a full weekend with both children.

17. In June 2020, the husband does not appear to have spent any overnight time with the children.

18. I accept that, since July 2020, the husband has spent more regular time with the children, however, that time has not been consistent. On 23 July 2020 the following exchange took place:

    Wife:Are you taking the children this weekend?

    The wife received no reply and messaged again the following day:

    Wife:Can you turn your phone on and ring me as Y has been trying to get in touch with you

    Husband:No, not this weekend, nor probably next. Too much on

19. In cross-examination he conceded that he had spent “far less time” with the children than he was entitled to do because the accommodation at his parents’ home was not adequate.

20. In a Financial Questionnaire completed by the husband on 20 November 2019 the husband stated:

    The parenting orders which affect the children and I are critically linked to the property and any spousal maintenance orders as these orders affect the reasonable practicability of my spending equal time or significant and substantial time with my children.

21. When the husband had funds which he could have used to establish rented accommodate proximate to the children’s school in late 2019, he chose not to do so but bought a Motor Vehicle 1.

22. The husband was asked in cross-examination whether he will exercise his allotted time with the children if he does not receive what he considers to be an adequate property settlement. His answer was that, in his own estimate, he needed between $600,000 and $700,000 to buy an apartment with the assistance of a mortgage in the inner west. If he did not achieve that result, he said “It depends”.

23. The husband said on a number of occasions, and in submissions, that if he cannot afford to buy an apartment, he will not consider renting. When it was put to the husband in cross-examination that he could rent suitable accommodation, he said “Well that’s a matter for them”. The husband emphatically ruled out renting and said that he would remain living with his parents in Suburb G with the result that he would not be spending regular time with the children.

24. On the husband’s own evidence, the driving time from Suburb G where his parents live, to Suburb E is 30 to 40 minutes. He gave no satisfactory explanation for his failure to make arrangements to spend regular time with the children, even if not overnight.

25. There could be no confidence that the husband will have a significant and consistent role in the lives of the children, regardless of the orders which are made for him to spend time with them.

REPORT OF DR C

1. Dr C saw the family in May 2019 and produced a report dated 12 September 2019.

2. Dr C characterised the parenting arrangements after the husband left the home. I do not understand her characterisation to be challenged:

   The parties were unable to make any regular arrangements for the children who subsequently spent time with their father on what seemed to be a haphazard basis. The children have spent some weekends at the home of the paternal grandparents where [the husband] lives and for one week during the Term 1 2019 school holidays. [The husband] also attends the children's sporting activities on weekends. He stated that when the children are with him, they sometimes have lunch with family and friends, play on electronics, go to the movies, go bike riding or play sport in the park.

   Dr C reported that, “[The husband] said that his mother has physical and psychological health issues which makes it hard for her to tolerate having the children in the household.”

3. In relation to the husband’s proposals for parenting, Dr C stated:

   He said that the property and child matters are inextricably intertwined as being able to establish himself in a household where he can have the children in his  care, preferably in the family home as per his proposal, is contingent on him receiving a  favourable judicial decision on property and spousal maintenance.

4. Dr C identified the issues to be:

   ·The capacity of the parties to communicate and their loss of trust

   ·The live with and spend time with arrangements for the children

   ·The capacity of both parents to provide for the needs of the children given their current living arrangements

   ·The views of the children

   ·The interrelationship of the property and child matters

5. Dr C reported of her interview with X:

   … X indicated that he felt lonely and abandoned after his father who featured prominently in his life left the home. While his despair at the time which also coincided with him moving into high school was significant, he gave the impression that he has sublimated his feelings and out of necessity had become self-reliant and is turning his attention elsewhere to meet his emotional needs. X gave the impression that he was slowly reconciling himself to accepting that his time with his father who had been his primary source of nurturance had been significantly reduced and may remain that way. While he spoke affirmatively of his mother, he also commented that he found her inflexible and short tempered at times.

6. In relation to Y, Dr C stated:

   Y also raised questions about his experience of his family when they lived together and why they lived with such a fragmented arrangement. He spoke with longing about the ideal family. Y seems to have historically had a stronger relationship with his mother and has identified with her as the victim and his father as the perpetrator. He perceives his father as being quite insensitive to other’s reactions and self-absorbed. Y’s despair as he spoke about some of the experiences in the family was palpable. There were indications that Y misses his father's availability and is puzzled by what he now sees as his father no longer being present for him.

7. Dr C reported:

   Y stated that his mother tries to contact his father to make arrangements for them to see him but he does not answer the phone and says he is too busy.

8. Y said that he feels sad when his father does no respond to attempts to make contact with him.

CONSIDERATION

1. Unusually, in this case, the issue is not whether it is in the children’s best interests to have a meaningful relationship with both parents.

2. To the contrary, the real issue is whether, regardless of what orders are made, the husband will avail himself of the opportunity to spend time with the children.

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.

1. At the time that Dr C saw the family, she reported that X was “unable to articulate views on what he wanted for his future living arrangements”.

2. Y told Dr C that he would like to see his father more often.

3. Dr C stated:

   Notwithstanding some points of tension when the children have made some hurtful comments to at least one of their parents, both children reported that they have a strong relationship with both parents. The children now of an age where their voices need to be given some weight even if they are not totally granted. Each of them expressed views that they would like to spend more time with their father and they seemed to feel a sense of frustration that is not happening. It is important that the children do not come to see their father as being disinterested in them.

The nature of the relationship of the child with:

1. each of the child’s parents; and

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

1. Dr C described the children’s historical attachments in the following terms:

   There does however, seem to have been some splitting of the children’s relationships from a very young age with X spending more time and forming a stronger relationship with his father and Y spending more time with his mother. The parties described that the layout of the family home and the sleeping arrangements that were in place from when the children were infants as conducive to reinforcing this separation of the children from the other parent and from each other.

2. However, both children reported to Dr C that they have a strong relationship with both parents.

3. X indicated to Dr C that he felt abandoned by his father and:

   … he gave the impression that he has sublimated his feelings and out of necessity had become self-reliant and is turning his attention elsewhere to meet his emotional needs. X gave the impression that he was slowly reconciling himself to accepting that his time with his father who had been his primary source of nurturance had been significantly reduced and may remain that way.

4. In relation to Y, Dr C stated that he has historically a stronger relationship with his mother.

5. Dr C stated that the children appear to have positive relationships with each of the paternal and maternal extended families.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

1. to participate in making decisions about major long‑term issues in relation to the child; and

2. to spend time with the child; and

3. to communicate with the child.

1. The wife is rightly critical of the husband for his failure to spend regular and consistent time with the children.

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. The wife has, almost solely, borne the financial burden of caring for the children since about 2014.

2. Throughout his evidence, the husband was critical of the wife’s attempts through the Child Support Agency, to obtain more assistance from him.

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

1. either of his or her parents; or

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

1. Dr C stated:

   In this family, there is already a tendency for X to see his father as the rejected and disenfranchised parent and Y to see his mother as the parent who has carried the weight of the family on her own and is the victim. There is also an evident split between the siblings and some reported rivalry which could become deeper if the inter-parental conflict continues. It would be a great loss for the children if out of the stress they experience in their family, they cannot maintain a relationship with one parent and maybe with each other. It is not uncommon for such children also to ping pong between their parents but be unable to contemporaneously maintain a relationship with both.

2. The orders sought by the wife would have the effect that the husband would be able to see the children, if he chooses, with at least the same, if not greater, frequency and duration as he presently does. If the husband chooses not to avail himself of time with the children, they will be less disappointed than if the available time were greater.

3. The orders which are sought by the husband have the potential to cause disappointment and grief for the children who may find that, although they have an expectation that they will spend half of their time with their father, they will be placed in a situation where he chooses not to put the orders into effect.

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;

1. The practical difficulties inherent in the children’s spending time with the husband are of his own making.

2. He could have rented premises and had the children regularly overnight had he chosen to do so.

3. Dr C stated that the husband:

   … seems to have postponed making decisions in securing an independent abode based on spousal maintenance and occupancy of the house. He appears to experience inertia and a limited capacity to propose an environment where he could accommodate the children so that they would have two households between which they could share their time. Unfortunately, if the current situation continues the arrangements for the children might drift with the result that the current arrangements become the norm.

4. Dr C said:

   Should the parties be able to secure living arrangements which are geographically more accessible to each other, this is a matter where, based on previous care history and parental involvement, the children would benefit from spending substantial time with their father which includes preferably five evenings per fortnight, shared holidays  and  special occasions. The option of equal shared care is usually not indicated when parties have the level of acrimony between them that currently exists in this family.

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

1. Dr C said, of the husband’s evidence that he will not rent premises to enable the children to spend regular and substantial time with him, that the children’s needs must be put first. She said “Of course your needs need to be met, but not exclusively”. She said this was particularly so when dealing with a child with an eating disorder.

2. The husband takes no responsibility for the situation in which the children have been placed. On many occasions, during cross-examination, he said that the wife was solely to blame.

3. In the Child Dispute Conference (“CDC”) in September 2018, the Family  Consultant reported:

   The father attributed X’s anxiety to the mother allegedly raising the issue of divorce in front of the children. The father believes that the current arrangement, whereby both parents live in the family home, works well for the children. He claimed that the children are unaware that the parents have separated.

4. The husband’s explanation in cross-examination for that position was that, at the time of the interview, he believed it was in everyone’s interests to reconcile. He conceded that in 2018 the wife was complaining to him about the children copying his behaviour and said that “they might, in some small way” and conceded that tension in the home affected the children. However, he said, it was his perception that the children were unaware they were separated.

5. The notes produced by X’s school refer to discussions with X where X talked about his parents getting a divorce and where concerns were expressed about X being depressed. The husband was well aware of X’s depression as he had discussions with the school counsellor about that matter at the time.

6. As to Y’s illness, the husband said “I lay that at her feet” and the wife was the “main cause of it”.

7. The husband said that any suffering the boys have experienced out of separation is “mostly her fault”.

8. The husband said, “I think I’ve been a good father in the circumstances.” When asked by counsel for the ICL if he thought he had done anything wrong, he responded “Wrong? I don’t think I’ve done anything wrong.”

9. When asked if he was of the view that any sort of wrongdoing, or effect of wrongdoing on the children was the fault of the wife, the husband responded:

   How could it be my fault? No it wasn’t my fault - how could it be my fault? I just don’t understand how you can say it was my fault. She is the one who did it, she’s the one who took joy in it.

10. The husband repeatedly failed to take responsibility for his own actions saying that anything about which he was criticised was a reaction to provocation by the wife.

11. The husband appeared to be entirely unaware of the effect on the children of his behaviour.

12. In cross-examination, in relation to the text messages with Y on 30 March 2018, as in relation to a number of other events, the husband’s excuse was “I was upset”.

13. Similarly, in relation to the occasion on which X called the wife a “hoe”, the husband put to the wife in cross-examination “You could see I was upset”.

14. In relation to the incident in March 2020 when the husband called the wife a whore, he agreed in cross-examination that he wanted to upset her.

15. When the family participated in a Child Dispute Conference in September 2018, the Family Consultant reported:

    If the allegations by the mother that the father uses gendered insults against her in the presence of the children are accurate, the children may potentially absorb negative attitudes about the mother that may undermine their relationship with her.

16. Dr C agreed with that statement “absolutely”.

17. The husband took no responsibility for his failure to spend consistent and reliable time with the children which he said was the wife’s fault for excluding him from the house.

Any family violence involving the child or a member of the child’s family;

1. I have already detailed the allegations relating to family violence. Although there has been no incident since March 2020 when the husband called the wife a “whore” when returning the children to her, I have no confidence that his previous name calling will not be repeated or that he will refrain from coming into the wife’s home if he wants to.

Equally shared time

1. Section 65DAA of the Family Law Act 1975 (Cth) (“the Act”) makes the following provisions:

   (1)  Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)  consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)  consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)  if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

2. In cross-examination by the father, Dr C said that she did not recommend equal time because “there wasn’t even minor care”. She said that she could not get a sense from the husband of a proposal to accommodate the children, or a tangible proposal for regular care of the children.

3. Although Dr C accepted that there had been an improvement in the regularity of time with the children since Y’s hospitalisation, she said that improvement would need to be sustained, consistent and continuing.

4. Further, she said, the level of conflict between the parents contra-indicated equal shared care.

5. Dr C said that, before she could recommend equal shared care, she would need to see demonstrated “a very significant step up from what has happened to date”, referring to parental conflict. She would need to see the parents able to work closely together, to be “on the same page”. Dr C said that she didn’t know if the parents were capable of doing that. Addressing the husband, she said, “You weren’t able to do it last year”.

6. She said that the husband would need to present a very convincing argument that there would be no conflict, no undermining, no aggression and no name calling before she would recommend equal shared care.

7. Dr C did not accept the husband’s proposition that once the issue of the future living arrangements was finalised, the conflict would abate. Neither do I.

CONCLUSION

1. The orders for property settlement do not provide to the husband an amount which he will consider sufficient to purchase a property and, in those circumstances, it is unlikely that he will spend any more time with the children than he now does, regardless of any orders which might be made.

2. To make an order, as sought by the husband, for the children to have equal time with each parent will inevitably lead to their disappointment.

3. It is preferable, so as not to further disappoint the children, that the orders for future time reflect what the husband has demonstrated he will do.

4. The scheme proposed by the wife, and supported by the ICL allows the father to spend substantial and significant time with the children, should he choose to do so.

PROPERTY

1. From the narrative at the beginning of these reasons, it emerges that the issues of fact to be determined are:

   ·    What was the husband’s contribution to the wife’s election?;

   ·    What was the husband’s contribution to the wife’s litigation?;

   ·    What financial contributions were made by the husband to the family after he commenced employment as a professional?; and

   ·    What is the significance of the receipt by the wife of the sum of $7,654 from the M Company?

2. In the course of the hearing, it became apparent that the other issues to be determined were:

   ·    What are the husband’s actual earnings and financial capacity;

   ·    The extent to which the husband was likely to contribute to the children’s financial needs; and

   ·    The extent to which the husband was likely to continue to make a significant parenting contribution.

What was the husband’s contribution to the wife’s election?

1. Both the husband and the wife were interested in politics and active members of a political party. The wife’s election was an enterprise in which they were both interested and involved.

2. In submissions, the husband conceded that they each made a contribution to that endeavour according to their abilities.

3. The evidence does not admit of any finding other than that this was an enterprise to which they were both committed in the course of their marriage and that they each did everything in his or her power to facilitate it.

What was the husband’s contribution to the wife’s litigation?  

1. The husband supported the Supreme Court proceedings, both at first instance and at appeal.

2. The wife withdrew $250,000 from the mortgage and paid lawyers including senior counsel to represent her.

3. Although the wife purported not to recall his involvement, I am satisfied that he did work in support of those proceedings. There is no evidence to establish whether the work added value to the wife’s legal representation, but I am satisfied that he contributed in accordance with his abilities.

What financial contributions were made by the husband to the family after he commenced employment as a professional?

1. It is convenient to consider this aspect of the matter in conjunction with an enquiry as to the husband’s earning capacity.

2. The wife asserts that, after the husband commenced employment, he made no further contribution to the expenses of the family. The husband asserts that he continued to contribute to family expenses.

3. However, she conceded that he contributed to the repayment of the mortgage over Suburb E until the end of 2005, and she then continued to pay the mortgage until it was paid out in 2007 or 2008. She conceded that he had paid the expenses relating to the running of his own motor vehicle.

4. The husband did not provide an up to date Financial Statement but relied on a Financial Statement sworn in December 2019. More will be said about the accuracy of that statement.

5. The husband’s tax returns were not in evidence and such evidence as there was in relation to the husband’s earnings was found in a bundle of printouts from his computer which was, unhelpfully, incomplete, not totalled, not paginated or even arranged in date order.

6. After the husband commenced employment, his earnings were paid into his work account. He does not assert that he continued to pay his earnings into the joint account and I accept the evidence of the wife that he did not.

7. The records produced by the husband related only to his gross receipts between October 2005 and June 2019. Other than accounting for GST, the husband did not provide evidence of the costs of running the business, other than to tender a bundle of some 216 pages of various bank and credit card statements referable to the period from 2012 to 2018. It is not possible to ascertain whether the bundle contains the whole of the husband’s bank statements for that period or the whole of his credit card statements.  Some of the statements are for a joint account with the wife. There do not appear to be statements relating to any account for the running of his business. I was not taken to any particular entry in the bundle as evidence of the husband’s contribution to family or household expenses.

8. None of the entries was put to the wife in cross-examination.

9. I do not propose to trawl through the bundle to ascertain whether the husband made any payments that were identifiably for family expenses.

10. Between October 2005 when the husband started employment and 2012 when the parties separated, counsel for the wife calculated the husband’s disclosed gross income (including GST) as a professional as follows:

    2005  $11,000

    2006  $103,078

    2007  $142,721

    2008$83,655 (The husband invested $33,000 in L Company in 2008. The whole amount was lost.)

    2009  $113,645

    2010  $63,276

    2011  $29,728

    2012  $51,268

11. The evidence does not establish that the husband contributed his earnings to the expenses of the family. However, neither does it establish that he did not. I am thus left in the position of not knowing what, if anything, he contributed.

12. In 2010 and 2011 the husband paid for some household expenses using his credit card. He was unable to pay the credit card debt and the wife drew $10,000 from the mortgage account and paid the debt.

13. After the parties separated in 2012, they both continued to live at the Suburb E property.

14. The wife was not employed between 2011 and 2014. She deposed that when she resumed employment in 2014, she paid the entirety of the expenses of the household, although the husband continued to live there.

15. The husband’s post-separation receipts (inclusive of GST) as disclosed by him were:

    2013  $14,759

    2014  $10,018

    2015  $5,423

    2016  $41,336

    2017  $38,589

    2018  $9,350

    2019  $62,129         

16. In 2013, 2014 and 2015 the husband had minimal income after he paid GST and I accept that, whatever funds he had were not used to pay mortgage repayments or payments of outgoings for the Suburb E property.

17. I accept that the wife continued to pay the mortgage payments and outgoings after 2014 as she deposed.

18. Although the husband asserted that he contributed, he did not draw my attention to any evidence that supported that assertion.

19. The husband lived in the wife’s house after separation until 2018 while she paid the outgoings.

20. In the ADVO application filed by the husband on his own behalf in November  2018, he stated:

    [The husband] has used [his] home and workplace for business, and has been struggling financially for many years during which time he has been significantly underemployed and has only earned between $5,537 to $22,136 p.a. taxable income between 2012 to 2017.

21. The husband further stated:

    In these circumstances, [the wife] has exploited this power imbalance by engaging in a pattern of abuse… by unreasonably withholding financial support needed to meet [the husband’s] reasonable living expenses…

22. The husband’s representations in support of his application for an ADVO against the wife are inconsistent with his assertions that he contributed to household expenses after separation and I am satisfied that he did not.

23. The husband did not disclose his receipts after June 2019. That information emerged in cross-examination. Between April and September 2019, the husband received $120,000 in relation to one client. He has billed, but not been paid, a further $30,000 in relation to that matter. The bill is now the subject of taxation.

24. In September 2019, he also received $40,000 from the wife pursuant to orders. In those six months, he received $160,000.

25. In cross-examination, the husband conceded that none of the $160,000 he received had been applied to the children’s day to day financial support.

26. The husband chose, however, to buy a new Motor Vehicle 1, for which he currently repays $404 per week, and to repay the funds he had borrowed from family members and to pay his credit card debts.

27. The husband swore a Financial Statement on 8 December 2019, in which he disclosed an income of $835 per week. That evidence cannot be reconciled either with the gross income of $62,129 received in the first half of 2019 or with his receipt of $120,000 between April and September 2019.

28. In that Financial Statement, the husband deposed that he was paying $404  per  week for the Motor Vehicle 1 and child support for the two children of $82 per week.

29. There is no evidence of the husband’s income in 2020 although he gave evidence that he currently held two projects. The husband, in cross-examination, said that his capacity to earn income at present was limited because of his involvement in this project and in the taxation proceedings. He said that he intends to continue working as a professional and that he expects his income will increase when he is no longer required to attend to this project.

30. The husband is charging $2,400 per day plus GST.

31. His contact address according to his website is his workplace.

32. It is not possible to estimate what the husband might be capable of earning as a professional.

What is the significance of the receipt by the wife of the sum of $7,654 from the M Company?

1. Considerable attention was devoted by the husband to the fact that, in August  2019, after an accident in which his vehicle was written off, the M Company paid $7,654 to the wife, rather than to him, because she was noted on the policy (he contends wrongly) as the insured.

1. In January 2020, rather than pursue his claim for those funds in these proceedings, he instituted proceedings in the District Court of NSW by Statement of Claim against the wife.

2. He also sought, unsuccessfully, to have the amount credited by the Child  Support  Agency as a non-agency payment against his child support liability.

3. The money was received and retained by the wife at a time when she was meeting the children’s expenses, including their private school fees, with little assistance from the husband.

4. I do not consider that her receipt and retention of those funds is of such significance that it requires any adjustment as between the parties.

The extent to which the husband was likely to contribute to the children’s financial needs.

1. In the latter part of 2019, when the husband had an income from his employment of $120,000, he did not contribute any of that income towards the children’s support.

2. He currently owes arrears of child support of $8,537.

3. Since separation, there have been constant reviews of child support and there are currently proceedings in the Administrative Appeals Tribunal.

4. There could be no confidence that the husband will ever make an appropriate financial contribution to the support of the children. 

THE BALANCE SHEET

1. At the commencement of the trial, the parties submitted a balance sheet which, as amended at the commencement of submissions, is reproduced below.

2. It is readily apparent that the totals on the document are not accurate and it is not apparent how they were calculated.

3. The disputes about balance sheet items will be determined using the item numbers on the balance sheet.

Ownership		Description		Applicants value	Respondents value
ASSETS
1.	W	D Street, Suburb E		$2,600,000	$2,600,000
2.	J	Household Contents		$30,000	$5,000
3.	H	Motor Vehicle 1		$16,807	$58,000
4.	J	Motor Vehicle 2		$	$35,000
6.	W	Offset account		$	$5,762
7.	H	Bank Accounts		$3,000
Total
ADDBACKS
Total		$             0	$                0
LIABILITIES
8.	W	Mortgage on Suburb E		$	$587,495
9.	W	Motor Vehicle 2 hire purchase		$	$57,000
10.	H	Motor Vehicle 1 motor vehicle hire purchase		$55,719
11.	H	Credit card		$1,450
12.	H	Taxation Liabilities		$12,572
13.	W	Credit cards		$	$
14.	H	Costs order in favour of Respondent		$3,000
15.	H	Child Support in favour of Respondent		$8,537
16.	W	Applicant’s M Company car insurance payout		$7,654	$
Total
SUPERANNUATION
Member		Name of Fund	Type of Interest	Applicants value	Respondents value
17.	W	Super Fund 2	Acc	$	$56,309
18.	W	Super Fund 3	Acc	$	$87,000
19.	W	Super Fund 1	Defined	$1,255,685.75 & deferred pension currently valued at $90,892.48 p.a.	$886759
20.	H	Super Fund 4	Acc	$116,037.25	$122,464
Total		$116,037.25	$1,030,068

Item 2 – contents of Suburb E

1. The contents have not been valued and there is no evidence to support the assertion of the husband. This item will be included at the value of the wife’s admission.

Items 3 and 10 – the husband’s Motor Vehicle 1

1. There is no evidence of the value of the vehicle which was purchased new in 2018.

2. The safest course is to remove both the asset and the liability from the balance sheet.

Items 4 and 9 – the wife’s Motor Vehicle 2

1. I propose to take the same course of action in relation to the wife’s vehicle.

Item 11 – husband’s credit card debt

1. This is a liability of the husband and there is no evidence to suggest that the debt was incurred in relation to the marriage and should therefore be visited upon the wife. This item will be removed from the balance sheet.

Item 12 – husband’s tax liabilities

1. There is no evidence of when this liability was incurred. The parties have been separated since 2012. Any income which gave rise to the liability was retained by the husband. It cannot be regarded as a liability of the marriage and will be removed from the balance sheet.

Item 14 – costs order against the husband

1. This was an order made by the Full Court of the Family Court in relation to an unsuccessful application by the husband for leave to appeal against a procedural order.

2. It should not be taken into account as against the wife in order to reduce the husband’s assets. That would have the effect of the wife making a contribution towards the payment of the costs order.

Item 15 – husband’s Child Support arrears

1. This debt should not be taken into account as against the wife to reduce the husband’s liabilities. That would have the effect of the wife making a contribution towards the payment of the child support.

Item 16 – the M Company payment

1. This is not a debt. The money was received by the wife. The item will be removed from the balance sheet.

Item 19 – the wife’s pension

1. There is no dispute that the wife will not be entitled to receive her pension as a lump sum.

2. She has no entitlement to the pension until she reaches the age of 55 years in 2026.

3. At that time, she will be entitled to receive a pension which is the equivalent of 45 percent of the salary. Currently, the salary is $169,192. Thus the pension, based on the current figure, would be $76,136 or $1,464 per week.

4. There is no basis upon which that entitlement should be included on the balance sheet as a lump sum figure and it will be removed.

5. However the husband has made an application for a splitting order that will have the effect of his receiving half of any pension that the wife ultimately receives and that application will be considered.

6. I therefore find that the parties’ assets and liabilities, for the purpose of this determination, are as follows:

Ownership		Description		Value
1.	W	D Street, Suburb E		$2,600,000
2.	J	Household Contents		$5,000
3.	W	Offset account		$5,762
4.	H	Bank Accounts		$3,000
Total		$ 2,613,762
5.	W	Mortgage on Suburb E		$587,495
Total		$2,026,267
Member		Name of Fund	Type of Interest	Applicants value
6.	W	Super Fund 2	Acc	$56,309
7.	W	Super Fund 3	Acc	$87,000
8.	W	Super Fund 1	Defined	Pension
9.	H	Super Fund 4	Acc	$166,037.25

1. Thus the net, non-superannuation, assets of the parties are $2,026,267.

SECTION 79(2)

1. Both parties concede that there must be a division of their property in circumstances where the only substantial asset is the Suburb E property and it is conceded by the wife that the husband made contributions towards the property between marriage in 2002 and separation in 2012, and parenting contributions between 2006 and 2018.

CONTRIBUTIONS

1. I propose to deal with the superannuation interests separately.

2. The wife owned the Suburb E property at the commencement of the                   co-habitation. Her estimate that her equity at the time of the marriage was about $860,000 was unchallenged. Thus the wife’s initial contribution was substantially greater than that of the husband.

3. The husband does not assert that he contributed to the repayment of the mortgage or the outgoings in Suburb E before the parties married.

4. After the marriage, and up until separation in 2012, they both worked and they both contributed their income to the marriage.

5. They both contributed to the wife’s election and they both contributed to the subsequent litigation.

6. They both cared for the children according to their respective work commitments.

7. Doing the best I can with the evidence available, I find that it is likely that, until separation, the husband also made a contribution from his earnings to the family’s financial support.

8. I assess the contributions from the time of the marriage until separation as equal.

9. After separation, the husband lived in the wife’s house for six years and made no financial contribution, although I accept he continued to make a parenting contribution. The wife made both a financial contribution and a parenting contribution.

10. After the husband left the home in October 2018, his parenting contribution was minimal in that he did not regularly or consistently provide care for the children and he continued to make only a minimum financial contribution to the children’s needs.

11. The husband also received $40,000 from the wife.

12. The wife has paid the whole of the children’s private school fees without contribution from the husband.

13. Taking all of those matters into account, I assess the contributions to the non- superannuation pool as 70 per cent to the wife and 30 per cent to the husband.

14. In relation to superannuation interests, the husband has an accumulation fund valued at $116,037.25. The wife has two accumulation funds with a combined value of $143,000.

15. The evidence does not establish over what periods the accumulation interests accrued.

16. When the wife reaches 55 years of age in 2026 she will be entitled to receive a pension.

17. The husband seeks an order which would have the effect of dividing the pension equally between them when it is received. He proposes that he keep his superannuation entitlement.

18. The wife seeks orders which would allocate a total of $146,309 to the husband from her accumulation funds and leave her with the whole of the pension.

19. The wife’s entitlement to the pension accrued by virtue of her election in 2003 and her remaining there until March 2011. In relation to her election, I am satisfied that this was an enterprise to which the husband contributed his expertise and efforts. I am also satisfied that, when the wife was an elected official, she was assisted in carrying out her duties by the fact that the husband was available to care for the children.

20. The entirety of her entitlement to the pension accrued during the marriage and I consider that their contributions to it are equal. The orders will provide for the pension to be equally split.

SECTION 75(2)

1. Having regard to the state of the evidence about the husband’s earning capacity I am unable to find that his capacity is any less than that of the wife.

2. She has had periods of unemployment since she ceased to be an elected official but is currently employed in the public service. She is still in the probationary period of employment but expects that she will be confirmed in a permanent position by the end of October. Her current salary is $118,000 per  annum.

3. They will each share the wife’s pension.  Each has the opportunity to accrue further superannuation.

4. As has been explained earlier in these reasons, there is no certainty that the husband will continue to make a significant parenting contribution to the children.

5. It is likely that the wife will bear the majority of the parenting responsibility.

6. Because of Y’s illness, that responsibility and its attendant burdens is exacerbated.

7. In addition, I cannot be satisfied that the husband will make any significant contribution to the children’s financial care. He has not done so in the past. At the present time he pays almost five times more for his car each week than he does for his children.

8. Finally, the wife will continue to pay the children’s school fees. The husband has not made any contribution directly to the payment of the school fees since separation. They both agreed that the children should go to their current school and they both signed the enrolment forms albeit, as the husband deposed, only on the condition that the wife pay the fees. Neither proposes that the children be removed from their school. The husband put to the wife in cross-examination that the school fees for the rest of the children’s schooling would total $300,000, calculated on the basis that the fee is $30,000 per child per year. She said that the figure would be more. The current school fees are $32,560 for the older child and $26,780 for the younger but the fees increase each year.

9. The school fees which the wife will pay represent about 15 per cent of the net pool available for distribution.

10. In all of those circumstances it is appropriate to make an adjustment in favour of the wife of 10 per cent.

CONCLUSION

1. The husband will receive 20 per cent of the net pool or $405,253. He already has $3,000 of that sum and the balance will be rounded to $402,000.

2. The wife wishes to retain Suburb E and, in part for the reasons expressed by Dr C relating to stability for Y, she should be given the opportunity to do so.

3. Because the wife’s permanent employment has not yet been confirmed, and she may have difficulty arranging finance until it is, she will be allowed six months in which to pay.

4. The pension will be split but otherwise each party will retain his or her superannuation entitlements.

CHATTELS

1. In his amended application, the husband sought possession of a number of items. No evidence was directed to this application and no submissions were made in support of it.

2. The wife in her amended response did not consent to the orders sought by the husband relating to chattels. Similarly, the wife gave no evidence in relation to the issue of chattels and made no submissions.

3. The contents of the Suburb E property have been taken into account as the property of the wife and ascribed a value in her hands.

4. In those circumstances, I propose to make an order that the husband have those items which are not furniture and are clearly personal to him and to dismiss the balance of that application.

I certify that the preceding three hundred and twenty-nine (329) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 16 October 2020.

Associate: 

Date:  16/10/2020