Beazley & Andreopolis

FAMILY COURT OF AUSTRALIA

BEAZLEY & ANDREOPOLIS

[2009] FamCA 567

FAMILY LAW - CHILDREN – Best interests – Competing applications – With whom children should live and spend time with - Where children live with mother and spend supervised time with father at time of trial – Where children allege physical and verbal abuse by father – Where mother alleges physical and verbal abuse by the father - Where Apprehended Violence Order against the father – Where father alleges alienation - Whether father should spend supervised time with the children
FAMILY LAW - CHILDREN – Parental responsibility
FAMILY LAW - PROPERTY – Approximately eight year cohabitation - Assessment of contribution – Significant initial financial contribution of the wife – High income of the wife – Where husband contends significant non-financial contribution to the wife’s business - Full and frank disclosure

Family Law Act 1975 (Cth)

A and A (Appeal No. EA78 of 1997, 23 December 1997)
Blanks and Blanks [2006] FamCA 354
C v C (1998) FLC 92-824
Chorn and Hopkins (2004) FLC 93-204
C and L [2000] FamCA 1666
DJM v JLM (1998) FLC 92-816
Farnell and Farnell (1996) FLC 92-681
Finlayson v Finlayson and Gillam (2002) FLC 93-121
Harrington and Harrington (2007) FLC 93-317; [2007] FamCA 451
I and B [1999] FamCA 765
G and G [2000] FamCA 793
Kowaliw and Kowaliw (1981) FLC 91-092
Line and Line (1997) FLC 92-729
McCall and Clark (2009) FamCAFC 92
Omacini and Omacini (2005) FLC 93-218
Townsend and Townsend (1995) FLC 92-569

APPLICANT:

Ms Beazley

RESPONDENT:

Mr Andreopolis

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYF

2624

2004

DATE DELIVERED:

12 June 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

25 – 29 August 2008,
2 - 5 September 2008,
9 September 2008,
3 October 2008,
20 - 24 October 2008,
5 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Grieve QC with Mr Schonell

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Batey with Mr Tockar

SOLICITOR FOR THE RESPONDENT:

Willis and Bowring Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

COUNSEL FOR THE INDPENDENT CHILDREN’S LAWYER

Mr Harper and

Ms Ward

Orders

Parenting Orders

The wife is to have sole parental responsibility for the children C Andreopolis born … June 1998 and T Andreopolis born … July 2001.
Prior to making any decision about the children’s schools, change of residence, any invasive medical procedure which is not an emergency, or any other decision which is likely to mean a significant change for the children or either of them or likely to impact upon their long term welfare, the wife is to write to the husband and invite his input on the decision to be made. Provided the husband responds in a timely manner the wife is to consider his views before making a decision on that matter.
All communication between the parties is to be by email unless and until they agree to change that by written agreement. Each parent is to ensure the other is notified about any change in the email address of a parent.
The children are to live with the wife.
The children are to spend time with the husband each alternate Sunday from 10.00 a.m. to 4.00 p.m. The first occasion is to occur on the second Sunday after the date of these orders or as soon thereafter as the supervision provided for in these orders can be put in place.
The children’s time with the husband is to be supervised by a person arranged by the Dial-an-Angel organisation in NSW with the cost to be met as provided for in these orders.
For the purpose of facilitating the involvement of the Dial-an-Angel organisation each of the husband and the wife are to within seven (7) days contact the Dial-an-Angel organisation at the Sydney office and complete any assessment program required.
Should it transpire that the Dial-an-Angel organisation is either unavailable to the parties or ceases to be available within a period of six (6) months from the date hereof then the parties are to nominate to the Independent Children's Lawyer any other organisation which might be available to supervise, and the Independent Children's Lawyer is then to select one from that list or alternatively nominate a supervisor chosen by the Independent Children's Lawyer. The parties are to thereafter co-operate with the new supervisor and comply with all reasonable requests made of them. In the event of the supervisor no longer being available after the expiration of six (6) months from the date hereof then either party may apply to the Court for the appointment of a new supervisor in the event of the parties being unable to agree.
During the continuation of these orders the husband is to comply with the directions of the supervisor.
Any written report from a supervisor to the wife which provides detail of a serious breach by the husband of the conditions or directions of a supervisor is grounds upon which the wife may suspend the program of time for the children to spend with the husband. The wife is to cause the program of time to be reinstated again if conditions change which make it unlikely the husband will breach the conditions or directions of the supervisor again.
The husband and the wife are to meet the cost of the supervision equally. The wife is to pay the full cost of the visit in the first place. The husband is to ascertain the cost of the supervision at the conclusion of each session and is to pay one half of the cost to the bank account of the wife nominated by her within seven (7) days of the date of the supervision. The wife is not required to organise the next session of time for the children to see the husband until she has received the payment from the husband for the last session. Prior to cancelling any pre-arranged time for the children to spend with the husband because of non-payment by the husband of his 50% of the cost of the supervision the wife is to give the husband forty-eight (48) hours notice, by email, of her intention to cancel the time due to non payment by the husband. If the husband makes good his default within the forty-eight (48) hour period the wife is to proceed with the next visit if it can still be organised in time with the supervisor.
Additional supervised time is to be arranged by the wife for the children to see the husband at Christmas time, Greek Easter and Father’s Day.
The wife is permitted to remove the children from Australia during any of the school holiday periods, provided it does not exceed four (4) weeks at any one time, without the written consent of the husband first obtained or further order of a court.
The children are not to be removed from Australia unless they are being accompanied by the wife.
Until further order the husband (otherwise known as Mr Andreopolis) and his servants and agents are restrained from taking or sending or attempting to take or send the children C Andreopolis (a male) born … June 1998 and T Andreopolis (a female) born … July 2001 from Australia.
The Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
The Court requests that until further order the Australian Federal Police place the name(s) of the children on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders. The Australian Federal Police should note the wife, Ms Beazley born in 1958, is permitted to remove the children from Australia.
The children are to have telephone contact with the husband each Thursday and each Sunday. The husband may call the children at a time no earlier than 6.00p.m. and no later than 6.30p.m. on those days. The husband is to call the children on one (1) mobile telephone only that he provides to the wife for the purpose of taking that call. The wife is at liberty to monitor the calls and if necessary terminate the calls if she concludes the husband is being inappropriate in what he says to the children. The husband is otherwise not to telephone the children without first obtaining the wife’s written consent to do so. The wife is to be responsible for the security of the mobile telephone and ensuring it is charged and working at times when the husband is scheduled to call the children.
Each of the husband and the wife are restrained from discussing these proceedings with or within the hearing of the children. They are further restrained from denigrating the other or any member of the others’ family or household. Each is restrained from using physical discipline on the children, kissing them on the lips or squeezing their bottoms.
The husband is restrained from approaching or from entering or remaining within a distance of 500 metres of any residence of the wife including the rural property owned by her.
The Court notes that neither party should seek a variation of the orders made herein in relation to the children within a period of two (2) years from the date hereof unless there be a change of circumstance, separate to the elapsing of time, to warrant the Court reconsidering the case.
The wife is to ensure that the children no longer attend upon Ms K, psychologist, for any treatment. It is noted that no criticism has been made by the Court of Ms K’s role in treating the children nor should this order be seen in any way as the Court disapproving of Ms K as a therapist for the children.
Each party is within twenty-four (24) hours to notify the other in the event of their changing their residential address.
The wife is to immediately notify the husband in the event of either child being hospitalised. The wife may in writing permit the husband to visit the child or children at a specified time.
The wife is to authorise the children’s schools to send to the husband copies of each child’s school reports as the reports become available to the wife.
Unless already paid at the time of this order each of the husband and the wife is to pay to the Legal Aid Commission of New South Wales the sum of $17,737.50 within three (3) months from the date hereof being their contribution to the costs of the Independent Children's Lawyer.
The appointment of the Independent Children's Lawyer is to continue for a period of six (6) months from the date hereof.
The husband is restrained from coming into contact with the children or either of them other than as provided for in these orders.
Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property Orders

The husband is hereby given the option to retain the property situate at and known as P Street, Sutherland Shire, in the State of New South Wales, being the whole of the property contained in Certificate of Title Folio Identifier … (“the [P Street] property”) upon payment to the wife of the sum of $445,255 and simultaneously discharging the mortgage secured against the property at this time. If he chooses to exercise that option then he must within twenty-eight (28) days from the date hereof give notice in writing to the wife’s solicitors on the record of his intention to exercise that option. If he so advises then he must within a further period of fifty-six (56) days from the expiration of the said twenty-eight (28) day period (thus giving him a total of eighty-four (84) days from the date hereof) pay the wife the said sum of $445,255 whereupon the wife is to transfer all of her right title and interest in the P Street property. The husband is, at the same time as paying the wife the said sum of $445,255, to discharge the current mortgage on the property.
In the event of the husband:
(a)       Giving notice that he will not be electing to purchase the wife’s interest in the P Street property; or
(b)       Failing to give notice that he elects to purchase the wife’s interest in the property within the twenty-eight (28) day period provided for in the previous Order herein; or
(c)       Giving notice that he does intend to acquire the wife’s interest in the P Street property and then not paying the sum required in the prescribed time;
The wife shall have twenty-eight (28) days after the occurrence of any of the events set out above to give notice to the husband in writing that she intends to acquire his interest in the P Street property. In the event of her giving that notice then she is to pay to the husband within two (2) months from the giving of that notice the sum of $1,614,745.
Should the wife elect not to purchase the husband’s interest in the P Street property or alternatively fail to complete the purchase of the husband’s interest in the property as provided by these Orders then the parties are to cause the P Street property to be sold. The net sale proceeds of the P Street property (as defined hereafter) are to be divided between the parties 78.4% to the husband and 21.6% to the wife.
For the purpose of any sale of the P Street property the parties are to cause the property to be sold at auction through an agreed auctioneer and at an agreed reserve price. The property is to be put to auction within three (3) months from the date of the event occurring which thereafter requires a sale unless the parties agree otherwise in writing.
In the event of the parties being unable to agree upon an auctioneer or a reserve price then they are to appoint the President for the time being of the Real Estate Institute of NSW or his nominee to nominate an auctioneer and a reserve price. The parties are to equally contribute to any costs incurred as a result of this order by the President of the Real Estate Institute of NSW or his nominee. The parties are to thereafter jointly instruct the auctioneer to auction the property.
If the property is not sold at auction then unless the parties otherwise agree the property is to be resubmitted for auction at three month intervals until it is sold.
The parties are to appoint a solicitor to act on the sale of the property. In the event of their being unable to agree upon a solicitor to act for them then they are to appoint the President for the time being of the Law Society of New South Wales to nominate a solicitor to act for the parties on the sale of the P Street property.
Pending the acquisition of the P Street property by the husband or pending the sale of the property, the husband is to have sole occupancy of the property and he is to pay all of the outgoings on the property including mortgage payments, rates and taxes. The husband is to vacate the premises and leave the premises in a clean and presentable state no later than seven (7) days prior to any date fixed by the solicitor for the parties to settle the sale.
The net sale proceeds of the sale are to be those funds remaining after payment of the following:
(a)       Real estate agents commission and any other fees incurred in marketing the property agreed to by the parties.
(b)       Legal fees for the sale.
(c)       Discharge of the secured mortgage.
In the event of the husband defaulting in the paying of the outgoings for the P Street property pending the sale of the property he is to pay to the wife from his share of the sale proceeds (prior to distribution to him of the funds) the following:
(a) Refund of any outgoings paid by the wife.
(b) 21.6% of the sale expenses which the husband had failed to pay.
The yacht described as … Yacht named “…” registration No. … (“the yacht”) be listed for sale with a broker within four (4) weeks from the date of this Order. To assist in relation to the appointment of a broker the husband nominates the following brokers:
(a)       Broker 1.
(b)       Broker 2.
(c)       Broker 3.
Within seven (7) days from the date of this Order the wife elect one of the brokers identified in Order 39 to sell the yacht.
Following the Wife’s compliance with Order 40 the parties take all steps and do all things necessary to list the boat for sale immediately.
Upon the yacht being listed for sale, if an offer is made, each of the parties will have a right to purchase the boat for a figure equivalent to five percent (5%) more than the offer (the proposed purchase price).
In the event that the husband and wife both elect to purchase the yacht, a silent auction will be held with the broker, the effect of which is that both of the parties will deliver to the broker, at a time designated by the broker, their offer in relation to the purchase of the yacht, and following this the broker will sell the yacht to the party with the highest offer.
Following the sale or transfer of the yacht the proceeds be applied and distributed between the parties equally.
In the event of the husband refusing to pay or being unable to pay any fees or expenses required to be paid by the parties associated with obtaining a sale of the Sutherland Shire property or the yacht, then the wife is at liberty to pay such sum, the husband’s proportion of which is to be repaid to the wife from the husband’s share of sale proceeds prior to any funds being distributed to him from the sale. A copy of these Orders is to be provided by the wife to the solicitor acting on the sale of the P Street property and the boat broker acting on the sale of the yacht.
The wife is to cause the off road motor vehicle registration … (“the off road motor vehicle”) in the possession of the husband and the Toyota Land Cruiser registration … (“the Toyota motor vehicle”) to be transferred to the husband by signing any transfer portion of the registration papers for the vehicles which are presented to her solicitors by the husband’s solicitors. Further the wife is to indemnify the husband against any action taken against the husband by R Corporation Pty Limited relating to the off road motor vehicle.
It otherwise be declared that as against each other the parties are to be declared the owner of any real estate, shares, bank accounts, chattels, superannuation entitlements, motor vehicles or other assets currently standing in that party’s name and not otherwise the subject of another order made herein.
In the event of either party refusing to execute any deed or instrument in order to give validity and operation to these orders, then a Registrar of this Court is hereby empowered pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of the person who has so refused or neglected to comply.
Each party has leave to apply to seek further orders relating to the implementation of these orders.

Review Application filed 11 July 2008

The review application of the wife filed 11 July 2008 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2624 of 2004

Ms Beazley

Applicant

And

Mr Andreopolis

Respondent

And

Independent Children’s Lawyer

Respondent

Contents

ORDERS

REASONS FOR JUDGMENT

THE ISSUES

BACKGROUND FACTS

THE PARENTING PROCEEDINGS

Credit

Relevant Law

Legal Principles
Consideration of Section 60CC

The Evidence

The Evidence of Dr W, the Single Expert in the Parenting Case
Oral Evidence of Dr W

Determination of the Identified Issues

a) The involvement of each of the parties in the care of the children pre-separation

b) The husband’s mental state

c) Whether the husband has been verbally abusive and/ or threatening towards the wife

d) Whether the husband has been physically abusive to the wife, and, if so, the nature, degree and extent of such physical abuse

e) In particular, whether the husband assaulted the wife on 21 May 2006 and, if so, the nature, degree and extent of such assault

f) Whether the husband has been physically abusive of either of the children and, if so, the nature, degree and extent of such abuse

h) Whether the husband has been verbally abusive to the children, and, if so, the nature, degree and extent of such abuse
i) Whether the husband has made derogatory and demeaning comments about the wife to the children

j) Whether the children, or either of them, are frightened of the husband

k) If the children are fearful of the husband, the basis of such fear

l) Whether the wife made unilateral decisions regarding the children’s schooling, accommodation and care

m) Whether the wife unjustifiably sought AVO’s against the husband in order to frustrate him spending time with the children

n) Whether the wife has made statements to the children designed to indoctrinate them and to alienate them from the husband

o) Whether the wife has actively discouraged the relationship between the husband and the children

n) Whether the wife in fact agreed to the husband having the children with him on the weekend commencing 19 May 2006

o) Whether the wife’s brother, X Beazley, has been physically or verbally abusive towards the children

p) Whether the wife’s brother, Y, or the wife’s sister, Z, have conducted themselves in a way that is contrary to the children’s best interests

q) Whether the parties have discussed the proceedings with the children

r) Whether the husband’s behaviour poses a risk to the welfare of the children and how the court should craft Orders taking into account such risk (if any)

s) The truthfulness of either party in their affidavits and in their presentation to Dr W

Section 60CC Considerations

Primary considerations

Additional Considerations

Section 60CC(4) and (4A)

Any other submission

Section 61DA
Section 65DAA
The Orders

PROPERTY AND FINANCIAL MATTERS
The Balance Sheet
The Issues of Fact

Credit
Evidence of Mr L
Determination of the Balance Sheet

The Balance Sheet as Determined by the Court

Determination of the Issues of Fact

a) The initial financial contribution of the husband and the initial financial contribution of the wife and whether one party’s initial financial contribution was greater than that of the other

b) Whether the wife’s income during the course of the marriage was greater than that of the husband’s

c) The extent to which each of the parties paid for any overseas holidays undertaken by the parties

d) The financial contribution, if any, made by the husband to the payment of outgoings on the Wollongong area property during the course of the marriage

e) The extent of financial contribution made by each of the parties to the living expenses of the parties

f) The extent of the contributions made by each of the parties in their capacities as a homemaker to the other and to the children

g) The extent of each parties’ contributions as to parenting

h) The financial contributions made by the husband to the P Street property
i) The non-financial contributions made by the husband to the P Street property

j) The financial contributions made by the wife to the P Street property

k) The non-financial contributions made by the wife to the P Street property

l) The financial contributions, if any, made by the husband to the wife’s shareholding in R Corporation

m) The non-financial contributions made by the husband to the wife’s shareholding in R Corporation

n) The contributions made by the husband post-separation, if any, to the assets acquired by the wife post separation

o) Whether any party has failed to make a full and frank disclosure

p) The indebtedness of the husband to various parties as identified in the Schedule of Assets and Liabilities and the husband’s liability for such indebtedness

q) Whether there has been waste by the wife in the treatment of her superannuation entitlements with the R Superannuation fund

r) Whether borrowings by the wife from R Corporation are loans to be repaid, and if so the terms of the loan

s) The reasonable costs of the children and the extent of the husband’s contribution to their past and future needs
Further Submissions made on 5 June 2009

Assessment of Contributions

Contributions to the Superannuation Pool
Submissions as to Finding on Contribution to the Pool of Assets

Determination
The Post Separation Assets Pool Proposed by the Wife
Assessment on a Global Approach

Consideration of Section 75(2) Matters

Conclusion on Section 75(2)

Just and Equitable
The Property Orders Which Should be Made

THE REVIEW APPLICATION filed by the Wife on 11 July 2008

Conclusion

REASONS FOR JUDGMENT

This case was very hard fought. The parties have each spent “a kings ransom” on legal costs and associated expenses. The husband’s cost disclosure document as tendered in the hearing showed that he had paid $291,303 in legal fees and had incurred and not yet paid another $241,131. There was further legal work done on each side of the case following the date of the exhibits disclosing their legal fees paid and owing being provided to the court. The wife has paid $543,319 and still owes at least another $11,700. Each party has borrowed to pay legal costs.
The parties require a decision in relation to the division of their assets and in relation to parenting orders. At the centre of the parenting dispute are the parties’ two children: C, aged 11 and T aged almost 8. The evidence in this case illustrates the impact on the children of the parental conflict.
The wife in her final submissions sought orders largely in line with the orders proposed by the Independent Children's Lawyer; however, this is with certain marked changes. I here set out those orders as sought by her:
PARENTING ORDERS PROPOSED BY THE APPLICANT WIFE
Pending further order:-
1.        All previous parenting Orders in relation to the children, [C Andreopolis] born on [in] June, 1998 and [T Andreopolis] born on [in] July, 2001 (“the children”), be discharged.
2.        The wife shall have sole parental responsibility for making all decisions in relation to the major long term issues concerning the children, such major long term issues to include:-
2.1      The children’s education (both current and future); and
2.2      The children’s health; and
2.3      Changes to the children’s living arrangements.
3.        The children shall live with the wife and that she have sole parental responsibility for making all decisions concerning their day to day care, welfare and development.
4.        The children shall spend time with the husband supervised by Dial-An-Angel as follows:-
4.1Until 31 December, 2009, from 2.00pm until 5.00pm on each alternate Saturday.
4.2      In addition:-
4.2.1   From 2.00pm until 5.00pm on Christmas Eve.
4.2.2From 2.00pm until 5.00pm on Macedonia Orthodox Easter Sunday.
4.2.3   From 2.00pm until 5.00pm on Fathers Day.
5.        For the purposes of Order 4, the husband and the wife shall each within seven days do all acts and things necessary to arrange supervision by Dial-An-Angel, including participating in the intake assessment required by that service.
6.        During the periods of time referred to in Order 4, the husband shall observe and comply with all directions and recommendations of the Dial-An-Angel supervisor.
7.        The husband and the wife shall equally share the costs of supervision by Dial-An-Angel and for this purpose the husband shall pay in advance the full cost of each visit at first instance and the wife shall reimburse the husband for one-half of the said cost by transferring monies directly into account nominated by the husband within seven days of receiving a written request by the husband and a copy of the receipt showing the husband’s payment to Dial-An-Angel. At the conclusion of each contact event the supervisor is to provide a report to the mother and father as to how contact went, how the children coped and the fathers behaviour.
8.        Until the children commence spending time with the husband pursuant to Order 4, the children shall continue to spend supervised time with the husband at the […] Children’s Contact Service for two hours on two out of every three Saturdays.
9.        The children shall communicate with the husband by telephone on each Thursday between the hours of 6.00pm and 6.30pm and for the purpose of such communications:-
9.1The husband shall provide the children with a prepaid mobile telephone as required from time to time.
9.2      The wife shall ensure that the children’s mobile telephone is kept charged and is available to the children at the specified time.
9.3The husband shall telephone the children on such mobile telephone.
9.4      The wife shall ensure the children are available to speak to the husband in private but otherwise is at liberty to observe the children during those occasions.
9.5The wife shall use her best endeavours to encourage the children to speak to the husband.
10.The husband and the wife be, and are hereby restrained from:-
10.1Discussing these proceedings with or in the presence of, or hearing of, the children.
10.2    Denigrating or making derogatory remarks about each other or any member of the other’s family to, or in the presence or hearing of, the children.
10.3    Using physical discipline on either of the children.
10.4Kissing the children on the lips or squeezing the children’s bottoms.
11.The husband be, and is hereby restrained from approaching the wife or coming within a distance of 500 metres of any residential address of the wife.
12.The wife and the husband be, and are hereby restrained from removing the children or either of them from the Commonwealth of Australia, save and except that:-
12.1    The wife may remove the children from the Commonwealth of Australia for the purposes of an annual holiday during January of each year.
12.2The children may attend any school-sponsored international excursion.
13.The children’s names remain on the Australian Federal Police Airport Watch List and the Court request the assistance of the police in the implementation of this Order.
14.The husband and the wife shall advise each of their current residential address, telephone number and email address and shall notify the other of any change in these details at least seven days prior to such change.
15.      All communications between the parties be via email.
16.The husband and the wife shall notify each other immediately in the event that either of the children is hospitalised or suffers a serious illness while in their care.
17.      In relation to the children’s education, the wife shall:-
17.1    Forthwith do all acts and things necessary to authorise the children’s schools (both current and future) to forward directly to the husband a copy of the children’s school reports as such reports become available.
17.2    Notify the husband of any proposed change in either of the childrens’ schools at least 28 days prior to such change.
18.These proceedings are adjourned to a date after the preparation of Dr [W’s] report.
19.That Dr [W] be requested to prepare an updated report by 31 December 2009 in relation to:-
19.1    The impact of the arrangements set out in Order 4 herein on the children, on each of the parents, and on the children’s relationship with the husband.
19.2    Recommendations to future arrangements with the children to spend time with the husband and in particular as to any progression towards unsupervised time.
19.3Any other matter which Dr [W] considers relevant to the welfare of the children.
20.That the costs of Dr [W’s] update report and any future Court attendance be shared equally between the parties and each party shall pay one-half of Dr [W’s] costs to the Legal Aid NSW Trust Account within 28 days of receiving a written request from the independent children’s lawyer.
21.That, within three months, the husband and the wife shall each pay to Legal Aid NSW the sum of $17,737.50 being their respective contributions towards the cost of the independent children’s lawyer in these proceedings.
AND IT IS HEREBY NOTED that either party may file a further Application seeking final parenting Orders consequent upon the recommendations set out in Dr [W’s] update report.
The wife sough the following orders in relation to the property issues:
1.The husband shall, within 42 days, do all acts and things necessary and sign all instruments, documents and writings required to transfer to the wife the whole of his right, title and interest in the property known as [P Street, Sutherland Shire], in the State of New South Wales, being the whole of the property contained in Certificate of Title Folio Identifier […] (“the home”).
2.Simultaneously upon the husband’s compliance with Order 6 hereof the wife shall:-
2.1Do all acts and things necessary to discharge the mortgage in favour of the National Australia Bank registered upon the title of the property registered as dealing number […] and otherwise indemnify and save harmless the husband in relation to all liability pursuant thereto, including principal interest and fees.
2.2Transfer to the husband the ownership and registration of Toyota Landcruiser motor vehicle registered number […].
2.3Transfer to the husband the ownership and registration of [off road] motor vehicle registered number […].
2.4Transfer to the husband the ownership and registration of […] yacht “[…]” registered number […].
3.In the event that either party refuses or neglects to execute any deed or instrument in order to give validity and operation to these Orders, then a Registrar of this Court is hereby empowered pursuant to Section 106A of the Act to execute such deed or instrument in the name of the person who has so refused or neglected to comply.
4.Matter removed from the list of cases awaiting determination.
The husband sought the following orders in his Further Amended Response filed 13 August 2007:
Property:
1.That the Husband and Wife do all acts and things and sign all documents required to sell the property situate and known as [P Street, Sutherland Shire] in the state of New South Wales being the whole land more properly described in Folio Identifier […] (hereinafter referred to as “matrimonial home”) upon such conditions as are agreed between the parties or in the absence of agreement:
(a)      By public auction to be held after January 2006;
(b)By auctioneer and selling agent nominated by the President of the Real Estate of New South Wales;
(c)By reserve price as recommended by the selling agent;
(d)By a Solicitor acting for the parties nominated by the President of the New South Wales Law Society.
2.That upon completion of the sale of the matrimonial home, the husband and wife do all acts and things and sign all documents required to disburse the proceeds of sale as follows:
(a)To discharge any mortgages registered on the title to the matrimonial home;
(b)      To pay all outstanding land and water rates;
(c)To pay the costs of the sale, including legal fees, selling agents/auctioneer’s fees and advertising costs;
(d)      Thereafter in payment of:
(i)       50% to the husband;
(ii)      50% to the wife.
3.That the Husband and Wife do all acts and things and sign all documents required to sell the property situate and known as [C Drive, southern Sydney suburb] in the state of New South Wales being the whole land more properly described in Folio Identifier […] (hereinafter referred to as “the [C Drive] property”) upon such conditions as are agreed between the parties or in the absence of agreement:
(a)      By public auction to be held after January 2006;
(b)By auctioneer and selling agent nominated by the President of the Real Estate of New South Wales;
(c)By reserve price as recommended by the selling agent;
(d)By a Solicitor acting for the parties nominated by the President of the New South Wales Law Society.
4.That upon completion of the sale of the [C Drive] property, the husband and wife do all acts and things and sign all documents required to disburse the proceeds of sale as follows:
(a)To discharge any mortgages registered on the title to the matrimonial home;
(b)      To pay all outstanding land and water rates;
(c)To pay the costs of the sale, including legal fees, selling agents/auctioneer’s fees and advertising costs;
(d)      Thereafter in payment of:
(i)       50% to the husband;
(ii)      50% to the wife.
5.That the Husband and Wife do all acts and things and sign all documents required to sell the property situate and known as [O Road, Wollongong area] in the state of New South Wales being the whole land more properly described in Folio Identifier […] (hereinafter referred to as “the [O] Road property”) upon such conditions as are agreed between the parties or in the absence of agreement:
(a)      By public auction to be held after January 2006;
(b)By auctioneer and selling agent nominated by the President of the Real Estate of New South Wales;
(c)By reserve price as recommended by the selling agent;
(d)By a Solicitor acting for the parties nominated by the President of the New South Wales Law Society.
6.That upon completion of the sale of the [O] Road property, the husband and wife do all acts and things and sign all documents required to disburse the proceeds of sale as follows:
(a)To discharge any mortgages registered on the title to the matrimonial home;
(b)      To pay all outstanding land and water rates;
(c)To pay the costs of the sale, including legal fees, selling agents/auctioneer’s fees and advertising costs;
(d)      Thereafter in payment of:
(i)       50% to the husband;
(ii)      50% to the wife.
7.That the Wife sign all documents and do all things necessary to sell the property at [R Street] (“the [R] Street property”) owned by the company “[S] Developments Pty Ltd” upon such conditions as are agreed between the parties, or in the absence of agreement:
(a)      By public auction to be held after January 2006;
(b)By auctioneer and selling agent nominated by the President of the Real Estate of New South Wales;
(c)By reserve price as recommended by the selling agent;
(d)By a Solicitor acting for the parties nominated by the President of the New South Wales Law Society.
8.That upon completion of the sale of the [R] Street property, the husband and wife do all acts and things and sign all documents required to disburse the proceeds of sale as follows:
(a)To discharge any mortgages registered on the title to the matrimonial home;
(b)      To pay all outstanding land and water rates;
(c)To pay the costs of the sale, including legal fees, selling agents/auctioneer’s fees and advertising costs;
(d)      Thereafter in payment of:
(i)       50% to the husband;
(ii)      50% to the wife.
9.That pursuant to Section 78 of the Family Law Act the Husband to be declared, as between the Husband and the Wife to have the sole right, title and interest in the […] Yacht known as “[…]”.
10.That pursuant to Section 78 of the Family Law Act the Husband to be declared, as between the Husband and the Wife to have the sole right, title and interest in the Toyota Landcruiser Motor Vehicle registration number […].
11.That pursuant to Section 78 of the Family Law Act the Husband to be declared, as between the Husband and the Wife to have the sole right, title and interest in the proceeds of a life insurance policy number […] with Colonial Mutual Life.
12.That within 28 days of the date of Order the Wife pay to the Husband a sum of money which will effect an overall property division of 50% to each of the Husband and Wife.
13.That unless otherwise specified in these Orders each party retain all chattels, personal belongings, property, bank accounts, choses in action and all other property of whatsoever nature and kind in their current possession and/or control.
14.That the Wife indemnify the Husband and keep him indemnified in respect of any debts owed by her in relation to credit cards, either in her personal name or under the style and title of [R] Corporation Pty Ltd trading as [D Company].
15.That the Husband indemnify the Wife and keep her indemnified in respect to any debts or/and any debts or liabilities howsoever arising either in his personal name or under the style and title of [A] Unit Trust trading as [A Company].
16.That the business known as [R] Corporation Pty Limited (ABN […]) (“the Wife’s company) be restrained from commencing proceedings and continuing any proceedings against the Husband in relation to the recovery of property, including but not limited to the motor vehicle identified as [off road] 4WD registration number […].
17.That the Wife sign all documents and do all things necessary to cause the lease over the property at southern New South Wales (“the [rural] property”) to be transferred into the husband’s name.
18.That pursuant to Section 106A of the Family Law Act that in the event that either party refuses or neglects to execute any Deed, or Instrument required to be executed to give validity or effect to these Orders, a Registrar of this Court is appointed to execute such Deed, or Instrument in the name of the party who neglects or refuses to sign any such Deed, or Instrument upon the Registrar being provided with evidence of such refusal or neglect by way of an Affidavit sworn by the other party.
Children:
19.That the children of the marriage namely [C Andreopolis] (“[C]”) born [in] June 1998 and [T Andreopolis] (“[T]’) born [in] July 2001 live with the Mother.
20.      The Father shall have contact with the children as follows:
(a)Each alternate weekend from after school Friday until Sunday 6pm with the Father to collect the children from school on Friday and the mother to collect the children on Sunday at 6pm from Interrelate Children’s Contact Service at […] or at another mutually agreed location. On long weekends the contact shall extend until 6pm in the evening the day before the children recommence back at school.
(b)For one-half of each school holiday period with the Father to have contact with the children in the second half of all school holiday periods in even numbered years and in the first half of all school holiday periods in odd numbered years and all changeovers to take place at the Interrelate Children’s Contact Service at […]. If the children are not already with the Father for holiday contact then for the period January 6 to January 9 being the Orthodox Christmas period.
(c)For the duration of the Orthodox Easter period which period varies each year with specific dates to be provided by the Father to the Mother in writing at least 28 days prior to the Orthodox Easter period.
(d) If the Father’s birthday or each of the children’s birthday does not fall in a contact period to the Father then the Father shall have a make up contact day on the Saturday or Sunday on the weekend following the birthday.
(e)At family functions to which the father has been formally invited with the children which occur on a non-contact period then the children shall be entitled to attend at that function with the Father so long as the Father provides written details of the event to the Mother at least 14 days in advance.
(f)That the contact periods with the Father referred to in Order 18 above be suspended during school holiday periods and recommenced at the conclusion of each school holiday period as though the contact periods are continued throughout the holiday period.
(g)      Unlimited telephone contact.
(h)      At all other times as agreed between the parties.
(i)All changeovers other than when the children are collected from school will take place at the Interrelate Children’s Contact Service at […].
21.In the event that Mother’s Day or the Mother’s birthday occurs during a contact period with the Father then the Mother shall have contact with the children on those days from 9am to 6pm.
22.If Christmas period falls during a holiday contact period to the Father then the Mother shall have contact with the children from midday Christmas Eve until Boxing Day.
23.That the Mother be responsible for making decisions about the day to day care, welfare and development of the children during periods when they live with her.
24.That the Father be responsible for making decisions about the day-to-day care, welfare and development of the children during periods when they are having contact with him.
25.That the Mother and Father will have responsibility for making decisions concerning the long term care, welfare and development of the children.
26.That the Mother will not remove [C] from his current school without the prior written consent of the father and will not enrol [C] in any secondary school without the prior written consent of the Father.
27.That the Mother will not enrol [T] in any school without the prior written consent of the Father.
28.That the Mother does not attend on contact changeover with any other person.
29.That the Father be allowed to remove the children from Australia for a period of no more than 6 weeks each year for the purposes of travelling overseas to visit his extended family in Macedonia so long as these holidays are taken within the children’s school holiday periods.
30.That the Mother and Father sign all documents and do all things necessary to ensure that the children obtain an Australian Passport to enable them to travel overseas with the Father and that the Mother provide to the Father the children’s passports if he intends to travel overseas with the children.
31.That the Father be allowed to take the children to Macedonia on short notice in an emergency situation where a member of the father’s immediate family has either passed away or is in a life threatening situation.
32.That the Mother be restrained from removing the children from their current residence in the Southern Highlands.
33.That the Mother shall not leave the children unattended in the presence of her brothers [Mr X Beazley] and [Mr Y Beazley] or her sister [Ms Z].
34.That the Mother shall not leave the children overnight at any other person’s home without the prior agreement of the Father.
35.That both the Father and the Mother are restrained from swearing and using foul language and making derogatory or denigrating remarks about each other or members of the other family to the children, in the presence of the children or within the hearing of the children.
36.That the Mother and the Father are restrained from hitting or slapping the children or allowing anyone else to hit or slap the children or each of them.
37.That each of the parties be at liberty to attend all sporting, social and school related activities attended by the children.
38.That each party notify the other about any serious illness or accident that the children may suffer as soon as is reasonably practicable.

In his case summary document MFI2 the husband set out the amended orders he sought in relation to the children. They are as follows:-
THE ORDERS SOUGHT BY THE HUSBAND
(RELATING TO CHILDREN)
1. a)     Save as indicated hereunder, the Husband seeks Parenting Orders as set out at paragraphs 19 – 38 (inclusive) of his Further Amended Response to an application for Final orders filed on 13 August 2007.
1 b)     The Husband proposes that there be a period of transition from the current regime, graduated as follows:
2.1 for half a day on alternate weekends in the first month;
2.2for one day on alternate weekends in the second month;
2.3for two consecutive days on alternate weekends (not overnight) in the third month;
2.4      thereafter as per the Orders sought by the husband.
c)        The Husband further proposes that the first six sessions with the children be supervised by a professional supervisor (eg, “Dial an Angel”).
d)        As regards changeovers, the husband proposes that these occur at a contact centre.
The husband on 28 August 2008 filed in Court a minute of order which set out the orders he would seek if the Court was moved to make interim orders only in relation to the children’s matter. That document was marked as exhibit H4. It provided as follows:-
PENDING FURTHER ORDER:
1.That the husband and the wife shall each have equal shared parental responsibility for making all decisions in relation to the major long term issues concerning the children of the marriage, [C Andreopolis], date of birth […] June 1998 and [T Andreopolis], date of birth […] July 2001 (“the children”), including such issues as:
1.1The children’s education (including change of schools);
1.2      The children’s health;
1.3      The children’s living arrangements;
1.4      The children’s religious and cultural upbringing;
2.        That the children shall live with the wife.
3.For nine (9) months immediately following on from the date of making of these Orders, or such time the Court Orders the Father spend time with the children as follows:
3.1      Each Sunday from 10am to 5pm;
3.2      At Christmas Eve from 10am to 3pm;
3.3      On the Sunday immediately following the Father and each of the children’s birthdays from 10am to 5pm on a non school day if they are not otherwise spending time with their Father on that day, or from after school to 5pm on a school day;
3.4      On Father’s Day each year from 10am to 5pm;
3.5      Noting the children have school holidays for three (3) weeks, for two days during the school holidays from 10am to 5pm as agreed and failing agreement for the first and third Wednesday of the school holidays;
3.6      On 6 and 8 January each year between 10am and 5pm such days falling within the Orthodox Christmas period which falls each year between 6 and 9 January;
3.7      For on [sic] one day between 10am and 5pm each year, which falls within the Orthodox Easter period each year which period falls on different dates from year to year. The Father will notify the Mother in writing twenty-eight (28) days in advance of the day within the Orthodox Easter period that he wishes to spend time with the children in accordance with this Order.
4.That a representative from Dial an Angel will supervise the Father’s time with the children pursuant to Order 3, other than the time provided in Order 6.
5.That the parties will share the cost of the Dial an Angel service with the Father paying initially and the Mother reimbursing the Father within two (2) weeks of receiving a copy of the invoice provided by Dial an Angel or such Supervisor nominated by Dial an Angel.
6.That for the final two periods of time pursuant to Order 3, the time be unsupervised other than a responsible adult nominated by the parties.
7.That the Father be permitted to attend [C’s] Saturday sport on the second Saturday of each month, and any sport in which [T] participates on the 3^rd Saturday of each moth provided:
7.1The Father will not remove [C] and [T] from the school or from the school premises, and;
7.2      The Mother not attend the children’s sport on this day other than to drop the children off 15 minutes prior to the Father’s attendance, and 15 minutes after the Father has departed.
8.That the Father shall have telephone communication with the children as follows:
8.1      On each Thursday between 6pm and 6.30pm and on any Sunday that the Father does note spend time with the children between 6pm and 6.30pm;
8.2      For the purposes of 7.1 above, the Father shall telephone the children on their mobile telephone each Thursday and Sunday that he does not spend time with the children;
8.3For the purposes of telephone communication in accordance with Order 7.1 herein:
8.3.1The Mother shall do all things to ensure that the children are able to speak to their Father by telephone in accordance with these Orders in private;
8.3.2The Mother shall ensure that the children’s mobile telephone is kept charged and is available to the children at telephone communication times;
8.3.3The Mother shall do all things to facilitate the children having telephone communication with their Father in accordance with these Orders;
8.3.4Leave be granted to both parties to restore this matter to the list of The Honourable Justice Le Poer Trench on three (3) day’s notice to the Court and to the other party.
9.That within eight (8) months, or three (3) weeks prior to any adjourned date the parties attend upon such expert or Family Consultant as the Court appoints for the purpose of the preparation a further report for this Court.
10.That this matter be listed back before the Court within nine (9) months from the date of these Orders to determine the outstanding parenting applications.
The Independent Children's Lawyer submitted the following orders were in the best interests of the children:
INDEPENDENT CHILDREN'S LAWYER’S PROPOSAL
PENDING FURTHER ORDER:
1.That all previous parenting orders in relation to the children, [C ANDREOPOLIS], born […] June 1998, and [T ANDREOPOLIS], born […] July 2001, be discharged.
2.That, subject to order 3 herein, the mother and father shall have equal shared parental responsibility for the children.
3.That the mother shall have sole parental responsibility in relation to the children’s education (both current and future).
4.        That the children shall live with the mother.
5.That the children shall spend time with the father supervised by Dial-An-Angel as follows:
5.1.On the first 6 occasions – from 11.00 am until 3.00 pm on each alternate Sunday.
5.2.Thereafter – from 10.00 am until 4.00 pm on each alternate Sunday.
5.3.     In addition:
5.3.1.From 10.00 am until 4.00 pm on Christmas Eve in 2008.
5.3.2.From 10.00 am until 4.00 pm on Macedonian Orthodox Easter Sunday in 2009.
5.3.3.From 10.00 am until 4.00 pm on Father’s Day in 2009.
6.For the purposes of order 5, the mother and father shall each within 7 days do all acts and things necessary to arrange supervision by Dial-An-Angel, including participating in any intake assessment required by that service.
7.During the periods of time referred to in order 5, the father shall observe and comply with all directions and recommendations of the Dial-An-Angel supervisor.
8.That the mother and father shall equally share the costs of supervision by Dial-An-Angel, and for this purpose, the mother shall pay the full cost of each visit at first instance and the father shall reimburse the mother for one half of the said costs by transferring monies directly into an account nominated by the mother within 7 days of receiving a written request by the mother and a copy of a receipt showing the mother’s payment to Dial-An-Angel.
9.That, until the children commence spending time with the father pursuant to order 5 herein, the children shall continue to spend supervised time with the father at the […] Children’s Contact Service for 2 hours on 2 out of every 3 Saturdays.
10.That the children shall communicate with the father by telephone on each Thursday between the hours of 6.00 pm and 6.30 pm and on any Sunday when the children do not spend time with the father between the hours of 6.00 pm and 6.30 pm.
11.      For the purposes of order 10:
11.1.The father shall telephone the children on their mobile telephone.
11.2.   The mother shall ensure that the children are available to speak to the father in private but otherwise is at liberty to observe the children during those occasions.
11.3.The mother shall use her best endeavours to encourage the children to speak to the father.
11.4.   The mother shall ensure that the children’s mobile telephone is kept charged and is available to the children at the times referred to in order 10.
11.5.The father shall provide the children with a pre-paid mobile telephone as required from time to time.
12.That the mother and father be and hereby are restrained from:
12.1.Discussing these proceedings with, or in the presence or hearing of, the children.
12.2.   Denigrating or making derogatory remarks about each other or any member of the other’s family to, or in the presence of hearing of, the children.
12.3.   Using physical discipline on either of the children.
13.That the father be and hereby is restrained from approaching the mother or coming within a distance of 500 metres of any residential address of the mother.
14.That the mother be and hereby is restrained from causing either of the children to attend upon Ms [K], Psychologist, for the purposes of any therapy or counselling.
15.That the mother and father be and hereby are restrained from removing the children or either of them from the Commonwealth of Australia.
16.That the children’s names remain on the Airport Watchlist and the Court requests the assistance of the Australian Federal Police in the implementation of this order.
17. That the mother and father shall advise each other of their current residential address, telephone number and email address, and shall notify the other of any change in these details at least 7 days prior to such change.
18.That the mother and father shall notify each other immediately in the event that either of the children is hospitalised or suffers a serious illness while in their care.
19.      That, in relation to the children’s education, the mother shall:
19.1.   Forthwith do all acts and things necessary to authorise the children’s schools (both current and future) to forward directly to the father a copy of the children’s school reports as such reports become available.
19.2.   Notify the father of any proposed change in either of the children’s schools at least 28 days prior to such change.
20.That these proceedings be adjourned part heard to a date to be allocated by the Court in June 2009.
21.That Dr [W] be requested to prepare an update report by May 2009 in relation to:
21.1.   The impact of the arrangements set out in order 5 herein on the children, on each of the parents, and on the children’s relationship with their father.
21.2.   Recommendations as to future arrangements for the children to spend time with their father, and in particular, as to any progression towards unsupervised time.
21.3.Any other matter which Dr [W] considers relevant to the welfare of the children.
22.That the costs of Dr [W’s] update report and any future court attendance be shared equally between the parties.
23.For the purposes of order 22, each party shall pay one half of Dr [W’s] costs to the Legal Aid NSW Trust Account within 28 days of receiving a written request from the Independent Children’s Lawyer.
24.That within 3 months, the mother and father shall each pay to Legal Aid NSW the sum of $17,737.50 being their contribution towards the costs of the Independent Children’s Lawyer in these proceedings.

The Issues

On 7 August 2008 I made a number of directions in Chambers which the parties were to address prior to the commencement of hearing. Included was a direction for the parties to provide a collaboratively prepared list of issues of fact to be determined in relation to the parenting matter at trial. On the second day of hearing the parties jointly provided the document which is contained in exhibit X1 of the proceedings. The factual issues to be determined in the parenting proceedings are as follows:
1)The involvement of each of the parties in the care of the children pre-separation
2) The husband’s mental state
3)Whether the husband has been verbally abusive and/ or threatening towards the wife
4)Whether the husband has been physically abusive to the wife, and, if so, the nature, degree and extent of such physical abuse
5)In particular, whether the husband assaulted the wife on 21 May 2006 and, if so, the nature, degree and extent of such assault
6)Whether the husband has been physically abusive of either of the children and, if so, the nature, degree and extent of such abuse
7)Whether the husband has made derogatory and demeaning comments about the wife to the children
8)Whether the husband has been verbally abusive to the children, and, if so, the nature, degree and extent of such abuse
9)Whether the children, or either of them, are frightened of the husband
10)If the children are fearful of the husband, the basis of such fear
11)Whether the wife made unilateral decisions regarding the children’s schooling, accommodation and care
12)Whether the wife unjustifiably sought AVO’s against the husband in order to frustrate him spending time with the children
13)Whether the wife has made statements to the children designed to indoctrinate them and to alienate them from the husband.
14)Whether the wife has actively discouraged the relationship between the husband and the children
15)Whether the wife in fact agreed to the husband having the children with him on the weekend commencing 19 May 206
16)Whether the wife’s brother, Mr X Beazley, has been physically or verbally abusive towards the children
17)Whether the wife’s brother, Mr Y Beazley or the wife’s sister, Ms Z, have conducted themselves in a way that is contrary to the children’s best interests
18)Whether the parties have discussed the proceedings with the children
19) Whether the husband’s behaviour poses a risk to the welfare of the children and how the court should craft Orders taking into account such risk (if any)
20)The truthfulness of either party in their affidavits and in their presentation to Dr W.
In these reasons I will make determinations on these preceding matters.

Background Facts

The parties agreed on a chronology of non-contentious background facts relating to the children which formed part of exhibit X1. I here incorporate into these reasons that document:

Parties commence cohabitation.

Husband assets early 1996.

August 1996

Parties holiday in Europe.

1997

Wife falls pregnant at age 39, after undergoing IVF treatment.

12.1997

Parties marry.

06.1998

Birth of C. Presently aged 11 years.

Upon wife returning to work, C cared for by nanny at wife’s work premises.

Late 1998

Parties travel to South America.

July 1999

Parties move out of Wollongong area home.

April 2000

Parties travel to Macedonia.

July 2000

Parties holiday overseas. Husband’s parents travel from Macedonia. C is left with Ms B.

Late 2000

Wife falls pregnant, after undergoing IVF treatment. Doctor warns that child might have Down Syndrome. Parties decide to keep unborn child.

07.2000

Birth of T.

Healthy, but with hole in her heart (not dangerous).

Wife returns to work 7 days’ after T’s birth.

As with C, T cared for by nanny while parties at work.

July 2002

Husband travels to Macedonia with C (aged 4 years) for 2 weeks.

12.07.2003

Parties become involved in argument, and husband throws telephone against wall, damaging the gyprock.

November 2003

Incident where wife alleges that she was assaulted by h. Husband denies assault, but admits argument.

February 2004

C commences school at H School. Husband and wife attend on C’s first day at school.

19.02.2004-

5.03.2004

Husband travels to Macedonia with T (aged 2 years and 8 months) and business partner.

7.03.2004

Date of separation, after argument between the parties.

Wife alleges that she was assaulted by husband, and seeks AVO.

Husband denies assault, but consents to orders being made on 10 March 2004.

8.03.2004-

8.04.2004

Husband does not see C, and only sees T for about 10 minutes at … Swimming Pool. Husband thereafter charged with breach of AVO for attending the pool.

10.03.2004

AVO Order made for 2 years. Husband consents.

19.03.2004

Wife commences family law proceedings.

8.04.2004

Interim Orders made by Consent by Judicial Registrar Johnston. Children to live with wife and to spend alternate weekends, alternate Thursday nights and half the school holidays with the husband, as well as spending time with him on special occasions. Provision also made for telephone contact.

Approximately May 2004

Following allegations about difficulties at changeovers, husband suggests that changeovers take place at a police station, and from May 2004 to May 2006 all changeovers took place inside police stations.

Wife commences employing security guards to accompany her to C’s sporting events.

22.12.2004

Consent Orders made appointing Dr W to prepare an expert report regarding children’s issues.

19.06.2004

Husband charged with 2 counts of common assault and breach of AVO. Pleads guilty.

23.06.2004

Wife first consults Ms K (psychologist).

2005

Wife takes C to psychologist, Ms K, on about 6 occasions throughout the year.

November 2005

Husband proposes Central Coast holiday with children.

20.12.2005

Consent Orders made regarding arrangements for the 2005/2006 Christmas school holidays.

January – May 2006

During this time, husband spends no time with the children. Husband says that he did not spend time with the children as he feared being charged with breaching the AVO.

7.02.2006

Wife takes C to see psychologist, Ms K.

10.02.2006

Letter from wife’s solicitors advising husband that T had been enrolled at G School on Wednesdays, Thursdays and Fridays and warning husband that wife intended bringing application to vary and possibly suspend “contact” due to husband’s alleged “unacceptable” conduct over the Christmas holidays.

Husband alleges that he never consented to T being moved from the S Pre-school to G Pre-School.

2.03.2006

Letter from husband’s solicitors advising that husband would not collect T from the G Pre-school.

11.04.2006

Letter from husband’s solicitors making proposals for the husband to spend time with the children during the April school holidays.

13.04.2006

Letter from husband’s solicitors to wife’s solicitors explaining why the husband had not pursued contact with the children.

20.04.2006

Husband advised that wife had brought application to limit his time with the children to supervised time at a contact centre.

Late April 2006

According to husband, he speaks to wife and they agree to him having the children on the weekend commencing 19 May 2006.

This is denied by the wife.

Husband travels to Macedonia to visit parents.

7.03.2006

AVO extended at … Local Court.

19.05.2006

Husband collects C from school and spends weekend with him.

Wife alleges that at changeover at A Police Station on 21 May 2006, she was assaulted by the husband. This is denied by the husband.

Husband subsequently charged and convicted of breach of AVO and assault. Assault conviction overturned on appeal.

25.05.2006

Letter from husband’s solicitors proposing arrangements fro husband to spend time with the children in accordance with the then current Orders.

26.05.2006

Letter from wife’s solicitors referring to the wife’s pending application for a variation of the Orders to allow only supervised “contact”, and advising that until the application was heard, the children would not be made available to spend time with the husband.

27.05.2006

Husband attends at park in … to watch C play soccer.

Wife was present, accompanied by a security guard.

2.06.2006

Husband attempts to collect C from school for scheduled weekend, but child earlier removed from school by the wife.

23 – 25.06.2006

C spends weekend with the husband.

Wife says this was contrary to her wishes. Says that husband had attempted also to take T for the weekend.

23.08.2006

Interim Family Law Orders made.

7.07.2008

Wife advised by husband’s solicitors that he would be travelling to Macedonia from 10 – 18 July 2006 to visit his mother.

18.07.2007

Scheduled date of hearing of wife’s Application in a Case to vary Parenting Orders.

Matter adjourned to 23 August 2006.

Wife says she then decided that the children should not have unsupervised time with the husband pending the adjourned hearing.

28.07.2006

Husband collects C from school, and returns him to wife at A Police Station on 31 July 2006. This time with C was against he wife’s wishes, and was the subject of correspondence from her solicitors to the husband’s solicitors.

23.08.2006

Interim Orders made by Consent restricting husband’s time with the children to supervised time at a contact centre on 2 Saturdays out of every 3 weekends and to some telephone contact.

Husband says that, acting on legal advice, he reluctantly agreed to the Orders in circumstances where the Court was not able to deal with the matter as Dr W’s report was not yet available and the wife was not refusing to allow him to see the children.

3.09.2006

Father’s Day time at Contact Centre. Husband gives children mobile phones.

10.10.2006

Dr W’s Report furnished.

Recommends that husband spend time with children under supervision at a contact centre.

13.11.2006

Wife’s Application in a Case listed for hearing.

Husband says that he was advised that, on an interim basis, the recommendations of Dr W would probably be followed, and that he should consent to the Orders of 13 November 2006, providing for him to have supervised time with the children at a contact centre.

10.01.2007

Police attend the rural house and husband had left.

25.03.2008

Updated Report provided by Dr W.

A short narrative chronology of non-contentious facts is as follows.
The Applicant wife, Ms Beazley, was born in 1958. She will shortly be 51 years of age.
The Respondent husband, Mr Andreopolis (also known as … Andreopolis), was born in 1963. He will shortly be 46.
The parties commenced cohabitation in mid-1996.
Shortly thereafter, in August 1996, the parties travelled to Europe. There is dispute as to the financial contributions made by each of the parties to this holiday.
In 1997, after undergoing IVF treatment, the wife fell pregnant.
In December 1997 the parties married.
In June 1998 the parties’ first child, C Andreopolis, was born. Upon the wife returning to work after the birth, C was cared for at the wife’s workplace by an employed nanny.
In late 1998 the parties travelled to South America.
In July 1999 the parties moved out of the Wollongong area home. This property was owned by the wife prior to the commencement of cohabitation.
C is now 11 years of age. He attends a private school in the Southern Highlands of New South Wales. The wife meets all the expenses associated with his schooling.
In July 2001, T Andreopolis (known as T) was born. T is nearly 8 years old.
The parties agree that the date of final separation was 7 March 2004.
A decree nisi was granted on 29 April 2005. The total duration of cohabitation was approximately eight years.

The Parenting Proceedings

At the conclusion of the trial I ordered a transcript of the evidence. I have had the opportunity to review that transcript and my own notes in the preparation of these reasons.

Credit

The Wife

The wife gave her evidence in an apparently honest and straightforward manner. She was cross-examined over a lengthy period of time. I have had the opportunity to observe her in the witness box over that time and saw her address questions over a range of issues relating to the children and the property matters. I have reviewed the transcript of her oral evidence.
I formed the view that the wife holds a genuine fear of the husband. She was distressed on an occasion where it was suggested that she and the husband might meet for the purpose of discussing aspects of the children’s welfare. It was clear that the mere thought of meeting with the husband engendered fear in her.
It was put to the wife that she had no basis for any fear of the husband. It was suggested that she should seek counselling to deal with an anxiety she has about meeting with the husband. It was inferred in the questions that it was unreasonable for the wife to hold any fear of the husband.
The wife gave her evidence in a very considered manner. She appeared to think seriously about matters put to her or questions which asked her to delve into history or think about what approach she might take in the future.
The wife made concessions without argument. Although having a personal view very adverse to the husband, the wife said that she could see advantage to the children of having a relationship with their father and spending time with their father, provided they were safe.
Overall I was very impressed with the wife as a witness and a person. Unless specifically making of a finding to the contrary, elsewhere in these reasons, I accept her evidence in preference to that of the husband.
On 20 August 2008 the wife signed a Financial Statement in which, inter alia, she disclosed receipt of income by way of dividend of $10,192 per week. This was based on the dividend paid for the 2007 year of $530, 000.
On 3 September 2008 Mr D gave oral evidence. In that evidence he said that in the year end 30 June 2008 the wife had drawn one half of $1,750,000 or perhaps a little bit more. That would calculate as being a minimum of $875,000 in drawings made by the wife on the company R Corporation Pty Ltd.
The evidence of Mr D, the only other shareholder in the company R Corporation Pty Ltd, suggested on its face that the wife’s information contained in her Financial Statement sworn 20 August 2008, as to the amount of weekly income, was incorrect.
On 5 August 2008 the wife caused two affidavits to be filed in Court which were read in the proceedings. The first affidavit was sworn by the wife on 5 September 2008 and the second sworn by Ms N on 5 September 2008.
In the wife’s affidavit sworn 5 September 2008 she says that on Tuesday, 19 August 2008 the financial controller of D Company, Ms S, sent her an email containing details of the wife’s financial position. The wife annexed a copy of that email to her affidavit. The wife said she saw the email but only skimmed it, not reading it in detail. She noted that the email had been sent to her solicitor, Mr Bill Karras of Karras Partners Lawyers.
The wife says that she does not have a grasp on financial figures and she relies on Ms S to provide those details.
When she attended to swear her Financial Statement on 20 August 2008 she met with Ms N, an employee of Karras Partners Lawyers. The wife did not recall that Ms N produced a copy of the email forwarded by Ms S. The wife says that she was distracted at the time of signing her financial statement because she had been in a conference with her counsel.
At the time she signed the Financial Statement the wife did not have a copy of the email dated 19 August 2008 and had assumed that the Financial Statement was based on the latest information provided to her solicitor by Ms S. She became aware that was not the case upon hearing the evidence of Mr D.
The annexure to the wife’s affidavit discloses that the estimated franked dividend for 2008 is $903,000. The email further disclosed that a weekly tax figure of $6,267 more accurately reflects the current position. FL loan repayments are $1,977. The most current balance of the wife’s bank account is $19,824. There were two further bank accounts opened by the wife; one in the name of Ms Beazley with a balance of $1,066 at 23 July 2008 and the other titled FL Cottages with a balance as at 14 December 2007 of $34,507. There was other information provided in the email.
Ms N, an employee of Karras Partners Lawyers, swore an affidavit on 5 September 2008. Ms N is a legal secretary in the employ of Karras Partners Lawyers. She attached to her affidavit a copy of an email received on 20 August 2008 at 10.01am marked as “Attachment A”. That email provided current bank balances for the wife, current information in respect of mortgages and the state of the wife’s loan account with R Corporation Pty Ltd which was said to stand at $260,000, being monies advanced to the wife to meet her legal fees.
Ms N said she undertook the completion of the wife’s Financial Statement by reference to the updating financial information received from Ms S. When the wife attended in the afternoon to sign her Financial Statement Ms N provided her with a copy of the financial statement and a copy of the email received from Ms S dated 20 August 2008.
With the wife present Ms N asked her to check the Financial Statement before she signed it. Ms N allowed the wife some time to confirm the figures and after about 5 minutes she witnessed the wife’s signature on the document. At the time of signing the document the wife swore the contents of the document to be true and correct.
At the time of the swearing of the Financial Statement by the wife Ms N was unaware of an email dated 19 August 2008 from Ms S, a copy which is marked B and attached to her affidavit. That email is identical to the email attached to the wife’s affidavit sworn on 5 September 2008.
The wife presented herself for further cross-examination in relation to her affidavit sworn on 5 September 2008. Without specifying a date to which the question related the wife was asked whether on a monthly basis she received advice as to the amount of her drawings. The inference in the question was that it related to the financial year ended 30 June 2008. The wife said that she did receive a monthly email which set out in a spreadsheet form the total picture for operation of the company R Corporation Pty Ltd. She agreed that part of that statement was a summary of her drawings to date on a monthly basis.
It was put to the wife that on that basis as at 30 June 2008 she would have known what her drawings were for the year ended 30 June 2008. The wife replied she did not.
The wife’s evidence was that she did not have regard to those figures for the purpose of ascertaining what her drawings were. She relied on Ms S to provide all relevant information about the wife’s financial circumstances for the purposes of the preparation of financial statements. In relation to her Financial Statement sworn on 20 August 2008 she relied on Ms S providing accurate information to her solicitor.
The wife confirmed it was not until she heard Mr D’s evidence that she knew her drawings had been about $903,000 for the year ended 30 June 2008. She denied that she had earlier knowledge and she denied that she decided to place a lower figure for her income into her financial statement.
It was put to the wife on a number of occasions that she was endeavouring to deceive the Court. She denied that.
The wife confirmed that she has difficulty understanding “this financial stuff” and that she had left it completely to Ms S and Mr Karras to prepare her financial statement.
In this cross-examination the wife’s attention was drawn to the entry against Item 19 in her financial statement sworn 20 August 2008. That item requires a figure to be provided for “total income tax.” The figure provided is $6267. That figure coincides exactly with information contained in the email dated 19 August 2008 which was provided by Ms S to the wife and Karras Partners Lawyers. There is no explanation as to how that figure of $6267 came to be inserted in the Financial Statement if Karras Partners Lawyers did not have access to the email of 19 August 2008 prior to the wife signing her financial statement on 20 August 2008.
Ms N gave oral evidence and was cross-examined by the husband’s counsel.
Ms N confirmed that when the wife came to the office of Karras Partners Lawyers on 20 August 2008 there were some blank parts of the draft Financial Statement which she was to sign on that day. She cannot recall which particular figures were inserted by her prior to the wife signing the statement. Ms N was certain she did not have the email from Ms S dated 19 August 2008.
Ms N said that she and the wife went through the document and “we changed some figures, but I don’t remember.” She thought that she and the wife had been through the email from Ms S dated 20 August 2008 and changed some figures in the Financial Statement.
Ms N has checked the office email system and found that there was an email dated 19 August 2008 received from Ms S addressed to Mr Karras. The email was received into the office system but was not received into Ms N’s email.
Ms N was unable to recall whether the tax figure of $6267 was one that was inserted on 20 August 2008 during her conference with the wife.
The thrust of the cross-examination of the wife in relation to the swearing of her Financial Statement on 20 August 2008 was to suggest she had engaged in a deliberate attempt to hide some of her income. It is suggested that attempt involved the non-disclosure of nearly $400,000 of income.
I have carefully observed the wife giving her evidence and considered the material in relation to this aspect of the case and I do accept the evidence of the wife in relation to the preparation of and the signing of her Financial Statement. I also accept that she has relied very heavily on R Corporation Pty Ltd’s employee Ms S to provide relevant financial information to Karras Partners Lawyers on behalf of the wife. I also accept her evidence that the financial aspect of R Corporation Pty Ltd was something that she was not involved in and had difficulty understanding.
As to where the information in relation to the tax liability of $6267, as is incorporated into the financial statement sworn on 20 August 2008, might have come from other than the email from Ms S of 19 August 2008, I observe that exhibit W2 (formerly MFI3) was provided to the Court on 26 August 2008. That document is a table of annual taxable income in respect of the wife. The document notes that the figures have been extracted from the individual tax returns prepared for each relevant financial year. The table includes the taxable income for year ended 2007 which was $906,776.
The document suggests that the wife’s legal representatives, who compiled the document and tendered it, had available to them the wife’s tax return for the year ended 30 June 2007. It seems at least possible that information provided on behalf of the wife to her lawyers about her income and income tax may well have provided the source information for the entry at Item 19 on the Financial Statement sworn 20 August 2008 independent from the information contained in the email of 19 August 2008 from Ms S to Karras Partners Lawyers.
I refer to the above possible source of information only to illustrate that it is possible the information in relation to the taxation amount arose quite independently from a reading of the email dated 19 August 2008.
Whatever gave rise to that information I am satisfied that the wife was not involved in some deliberate attempt to deceive the Court. To the extent that it is necessary I am also satisfied that the wife’s lawyers were not involved in any attempt to deceive the Court or any inappropriate behaviour in relation to the wife’s obligation to disclose relevant information.
By way of further comment on the issue of the wife’s income it seems that the Financial Statement form really calls for “statement of taxable income”. The form uses the word income rather than earnings. The form provides no avenue to state business expenses or other tax deductible expenses associated with the income earned. It potentially creates a false picture if, as has happened in this case, the wife provides evidence of her gross takings rather than evidence of her taxable income.
In Item 10 the wife sets out rentals paid in respect of properties in Sutherland Shire and Wollongong area. Although unclear, it appears that the rental disclosed may be the gross weekly rent received prior to expenses associated with the properties being deducted.
I am left at the end of the day being uncertain as to exactly what income the wife has when I have regard to her Financial Statement. The better guide for me is exhibit W2 which shows her 2007 taxable income of $906,776. From the email of 19 August 2008 I am aware that her tax for that year was $402,000. That left her with $504,776 in after tax receipts which is $9,707.23 per week.
The evidence provided in the email of 19 August 2008 indicates that the wife’s drawings from R Corporation Pty Ltd increased significantly over the previous year. The increase is some $373,000.
I would have to assume that approximately half of that increased income would flow to the wife as after tax dollars and therefore provide her with an additional $3500 worth of net income each week.
The question of the veracity of the parties is one which Dr W had to grapple with in the preparation of his report. He was challenged about this in his cross-examination by the husband’s counsel. It was put to Dr W that it was an agreed fact between the parties that there were 11 occasions where the wife had complained to the Police that the husband breached an AVO and where the Police had taken no action. Dr W was asked whether in those circumstances it had occurred to him that the wife is not averse to making unfounded allegations about the husband. Dr W said that is one possibility. In defending his stance of largely accepting what the wife told him, Dr W said, “In general I felt that the wife was reliable.”
I agree with Dr W’s assessment that as between the parties the wife is a more reliable witness than the husband.

Dr W

Dr W’s credit was not directly attacked by the husband in his submission, however, it was submitted that his evidence should be given at least reduced weight because he relied upon “untested and disputed” facts. This submission was in reality a submission that the expert had accepted the wife’s version of fact in preference to the husband’s in some circumstances. As will be seen in these reasons and as foreshadowed above, I reach the conclusion that the wife’s evidence in the vast majority of all contested facts is to be preferred. I would therefore support an approach to the preparation of the expert’s report which likewise predominantly favoured the wife’s version of facts in areas where the parties are in dispute as to the particular facts of an event or circumstance.
In my view Dr W did nothing exceptional in the assumption of fact in the preparation of his report. Experts frequently refer to the two versions of the facts provided by the parties and then provide their opinions based on each version being accepted. To the extent that they do not do this then their reports are subject to the determination of fact by the trial judge. If the trial judge makes a finding which does not support an assumption made by the expert then that part of the report is not capable of being given weight by the Judge. Sometimes the entire report will become of little or no use where the assumption made permeates the whole report and the trial Judge finds against that presumed fact.
I will refer to this aspect of the weight to be given to Dr W’s report later in these reasons.

Mr D

Mr D was the former spouse of the wife in these proceedings. He gave his evidence in an apparently honest manner. He answered questions asked of him promptly. He was not extreme in any of his evidence and he made concessions in a manner which appeared to me to be fair to the husband.

X Beazley

Mr X Beazley presented as an apparently honest witness. He appeared to listen carefully to the questions he was asked. He appeared to answer the questions promptly and succinctly. He was questioned about the contents of his affidavit. He did not appear to take any extreme position in relation to any of his evidence. He gave concessions promptly when asked to do so. This witness told me that his sister, the wife in these proceedings, never lies.

Ms U

This witness swore an affidavit on 24 June 2008. She appeared to give her evidence in a straightforward and apparently honest manner. She readily made a concession when called upon to do so.

Ms P

This witness swore an affidavit on 18 September 2007. She was at relevant times an employee of D Company and later R Corporation Pty Ltd. She gave her evidence in an apparently honest and straight forward manner.

Ms J

This witness swore an affidavit on 26 June 2008. She is a long standing employee of R Corporation Pty Ltd. She says the company was also known as D Company. She gave her evidence in an apparently straightforward and honest manner.

Mr V

This witness swore an affidavit on 19 July 2008. He worked for R Corporation Pty Ltd from July 1998 until December 1998. He was the warehouse manager for the company. He gave his evidence in an apparently honest and straightforward manner. A number of propositions were put to him about a working relationship with the husband. He denied all such proposition. I did not detect any aspect of the way he gave evidence or its content which suggested to me he was being untruthful.

Ms V

This witness swore an affidavit on 24 June 2008. She is an employee of R Corporation Pty Ltd. She has been there for 14 years. She appeared to give her evidence in a straightforward and honest manner. She appeared ready to answer all propositions put to her in a considered fashion.

Ms E

This witness swore an affidavit on 23 June 2008. She works in the accounts department of D Company. She said she saw the husband tickling C when he was about two years of age. She gave evidence about that. She appeared to give her evidence in a straightforward and honest manner. She readily answered questions asked of her and appeared to consider carefully all questions asked of her.

I note the husband’s submissions call for no adjustment in favour of either party. However, such submissions were premised upon a finding that the husband should retain about $3.85 million to $4.02 million based upon assessment of contributions. My assessment sees the husband retain $1.66 million worth of net assets and I accept that faced with that assessment the husband would at least submit an adjustment should be made in his favour under section 75(2).
I consider the following matters are the most important in considering whether any adjustment should be made.
The husband is 45 years of age and in good health. The wife is 50 years of age and in good health.
Each party has the capacity to work. The wife currently does not work outside of caring for the children and managing her investments. The husband is engaged in full time employment in a business owned by him. The husband also manages his investments. The parties’ property and resources have been set out earlier in these reasons.
The wife has the care of the two children. Since early 2006 the wife has cared for the children with very little assistance from the husband whose time with the children has been supervised.
Each of the parties’ financial circumstances have been set out for the Court in the evidence relied upon by each. The wife has a very substantial income. The husband has a modest income when the expenses associated with his investments are taken into consideration.
The wife has the responsibility for financially supporting the children. This includes paying for private education. The husband has made very little financial contribution towards the care of the children. There is no child support assessment however, I agree with the husband’s submissions that given the wife’s income it seems unlikely that there would be any assessment of substance requiring him to pay child support. I also find it is unlikely the husband will offer to assist with any of the expenses of the children which the wife has been meeting.
Each of the parties will be able to access superannuation which they have accumulated when reaching a point of eligibility. Given the wife’s higher income it is foreseeable that she will have a greater capacity to increase her superannuation entitlement than the husband.
Post separation the wife has received the income and entitlements from R Corporation, the business of which company was significantly increased during the cohabitation.
During the course of the cohabitation the parties lived a very comfortable lifestyle. They were able to live in a desirable property and have lifestyle leisure facilities such as the rural property and a yacht moored near their house. Largely due to the wife’s business and her high income the parties enjoyed overseas holidays. The wife continues to have the capacity to live that comfortable lifestyle. The husband does to a much less extent.
The parties’ cohabitation was eight years. There were two children born during that cohabitation.
The orders for property division if made based upon assessment of contribution would see the husband with $1,664,351 worth of net assets and the wife with $9,431,325 worth of net assets. That represents a large disparity.
Since 8 April 2004 the husband has had the occupation of the P Street property.
The husband has claimed a liability for GST and other debts arising out of the breakdown of the partnership he had with Mr S. The debts claimed are substantial. One is said to be $244,000 and the other $20,251. These liabilities are also claimed as items 61 and 62 of the draft balance sheet. Item 62 relates to an alleged liability of $81,004. Given the evidence in the case about these alleged debts (some of which I have canvassed in detail earlier in these reasons) I consider it unlikely that the husband will ever pay such debts, however, I acknowledge the requirement to make some payment could not be entirely eliminated and I accordingly take it into account here.
I have removed from the balance sheet items for paid legal costs and for money borrowed to pay legal costs. In my reasons relating to the balance sheet disputes I dealt with the wife’s claim to have a liability to R Corporation for money advanced to cover legal costs in the sum of $260,000. I was concerned that the evidence from all quarters about this liability had a degree of conflict to it. I do accept that at a particular point in about August 2008 the wife had a loan account with R Corporation for legal fees paid by the company on her behalf of about $240,000. Given the distribution of income from the company to the wife in the 2008 and the 2009 tax years I think it probable that the loan account will have been paid off. The wife did have a further borrowing of $108,000 referred to in Exhibit W7. It was said to have been borrowed from the NAB on 16 October 2008. Given the date of borrowing it did not appear in the wife’s Financial Statement nor had it been included on the balance sheet. It needs to be taken into account here.
The husband borrowed at least $100,000 to fund legal costs and I accept at the date of the hearing that amount was owing. I will take that into account.
Each of the parties had paid legal costs of considerable proportions. The wife’s paid legal costs were $543,319 (Exhibit W7) and the husband’s paid legal costs were $291,303 with $24,911 being held in trust as against outstanding legal costs (exhibit H18). I will take into account that each have made those payments with post separation funding from income and borrowings.
The husband sought to include in the balance sheet credit card liabilities of about $11,000. I excluded those items from the balance sheet for the reasons stated and I now take into account that the husband has those liabilities. I accept that given the absence of evidence to the contrary those liabilities were incurred post separation.
Since the separation the husband has had the use of the Toyota LandCruiser and off road motor vehicle.
As set out earlier I assessed the husband’s contribution to the superannuation pool at 25%. This resulted in a finding of entitlement of the husband in the sum of $71,615. I do not consider that there should be any further adjustment to the division of superannuation having regard to the section 75(2) matters. The husband’s fund is valued at $63,038. I take into account here the shortfall to the husband between entitlement and that which he will retain. I further take into account that I will not make any further adjustment to the superannuation pool under section 75(2) but rather reflect an appropriate adjustment in favour of the husband into the determination I make for adjustment in relation to the asset pool.

Conclusion on Section 75(2)

Having considered all of the matters set out above I conclude there should be an adjustment in favour of the husband. The matters which tip the scales in favour of an adjustment over no adjustment are, in my view, the disparity in the distribution of assets based upon the assessment of contribution and the very high income earning capacity of the wife. Offsetting those matters to some extent is the probability that the husband will not contribute in any significant way to the financial support of the children and that responsibility will fall to the wife. I also accept that the wife will have a considerable burden of responsibility for the care and supervision of the children into the foreseeable future.
I agree with the submissions of the wife that the adjustment should be fixed as a sum of money rather than a percentage of the pool of assets and the pool of superannuation.
I need to consider the view of the Full Court of the Family Court in relation to making a large adjustment under section 75(2) which is significantly connected to 75(2)(b) and 75(2)(k). In this regard I set out the following extract from the case of Blanks and Blanks [2006] FamCA 354 a decision of Justice Watts delivered 19 May 2006:
DISPARITY IN FINANCIAL CIRCUMSTANCES AND THE DURATION OF THE MARRIAGE: Subsection 75(2)(b) and Subsection 75(2)(k)
62.Senior Counsel submitted that the future prospects of the parties were cast well before they met.
63.The husband argues that there shouldn’t be any adjustment made in that regard given that the genesis of the disparity in wealth is entirely unconnected to events of the marriage and because of that fact it would be not just and equitable to make a substantial adjustment on that basis.
64.The argument put by Senior Counsel for the husband is similar to the position taken by Guest J In the Marriage of Farmer and Bramley (2000) 27 Fam LR 316; FLC 93-060. This was a case in which the wife made a claim under s.79 FLA in circumstances where the husband had won $5 million in a lottery one year after the separation of the parties.
65.      At paragraph 223 of the judgment Guest J (in the minority) said:
“In relation to s.75(2)(b) as relied upon by the wife, I am of the view, and for the reasons stated, that there is no connection between the dictates of this paragraph and the life of the marriage in that it should effect an alteration in the interests of the property of the parties pursuant to s 79(1) of the Act. This paragraph is not designed to “… even up” in some way the financial position of the parties. It was not argued, for the circumstances of the marriage disentitled such a course, that the manner in which the parties arranged their lives had any impact or effect upon their respective future economic prospects. They had no assets at the time of separation. The wife re-married and (sic) which was a free and significant life decision on her part and disentitled her to any claim she might otherwise have had against the husband pursuant to the provisions of s 72 and s 74 for spousal maintenance. In the circumstances and for the reasons stated, I attach no weight in the balancing exercise to the provisions of this paragraph.”
66.      In Farmer and Bramley Kay J discussed Guest J’s analysis of s.75(2) considerations and said at paragraph 71:-
“The manner in which s 75(2)(b) can be utilised to bring about an adjustment of property interests was discussed fully in Collins (1990) FLC 92-149 by Ellis, Fogarty and Gun JJ. There their Honour's upheld Nygh J's judgment making an adjustment of $1,000,000 in favour of a wife, who already owned assets worth more than that sum. Nygh J had specifically identified a disparity in capital as a basis for making that adjustment. My apologies for setting out such an extensive passage but it seems to me to put to rest any suggestion that there can only be an adjustment under s 75(2)(b) if there is some causal nexus between the disparity and the marriage itself”
67.Kay J then extensively quoted from Collins and at paragraph 94 of the judgment his Honour concluded that the disparity in capital positions of the parties reached as a result of the distribution on contributions (at step 2) is a matter that can be taken into account (by inference under s.75(2)(b)). That is, his Honour disagreed with Guest J’s proposition that there had to be a connection between the capital position of the parties and the life of the marriage before weight could be placed upon a disparity in the financial positions of the parties in the balancing exercise.
68.More recently in GBT & BJT the Full Court (Kay, Holden and Warnick JJ), without specifically rejoining the debate emphasised that when giving weight to sub section 75(2)(b) FLA, the other subsections of s.75(2) FLA including subsection 75(2)(k) FLA also have to be weighed.
69.      At paragraph 64 of GBT & BJT the Full Court said:
“We are inclined to the view that, in addressing the weight to be given to the disparity in the parties’ incomes and earning capacities, his Honour may well have given insufficient weight to the shortness of the marriage (relevant under section 75(2)(k)) and to the minimal nature of the wife’s contributions, particularly having regard to the fact that such contributions as she did make were mainly in the homemaker sphere, the husband paid for the provision of a great deal of domestic assistance, and there were no children of the parties (relevant under section 75(2)(j)).”
70.Earlier in Kennon (Fogarty & Lindenmayer JJ) when dealing with 75(2) factors said of the facts in that case at page 84,303:
“On the one side, there are circumstances that this was a relatively short marriage, with no children, and the wife is able to continue employment of the type which she had previous to cohabitation….On the other hand, there are huge differences between the parties’ incomes, assets, future income-earning capacities and superannuation benefits. His Honour pointed out on a number of occasions that these differences existed at the time the parties commenced to live together and that if their paths had not crossed and if they had not lived together for five years it is likely that the difference would have remained the same. However, we are not persuaded that that is the beginning and end of the issues. Whilst we acknowledge that Section 79 is not a source of social engineering or as a means of evening up of the financial positions of the parties to the marriage, (see, for example Clauson & Clauson (1995) FLC 92-545; Waters and Jurek (1995) FLC 92-635 and Lyon and Bradshaw (Full Court 16 May 1997, not yet reported)), nevertheless the fact is that these parties were married for a not insignificant period, each made contributions which we have discussed and their obligations to each other do not cease on separation. Their marriage carried with it advantages and obligations and, so far as the settlement of their property on separation or divorce is concerned, those obligations are to be determined in accordance with the detailed provisions of s.79.”
71.The “not insignificant period” of the Kennon marriage was seven years.
72.In 2004 the median duration of an unsuccessful marriage to date of separation was 8.69 years. In 1984 it had been 7.7 years.
73.In this case the marriage is a little over six years. So, the husband and wife’s marriage is on the shorter side of median duration.
74.In this case I will take into account both the disparity of the financial circumstances of the parties and the length of the marriage as part of the mix of things I consider under Section 79(4)(d) – (g) FLA.
The cohabitation in this case is eight years.
I conclude the amount of the adjustment to the husband should be $1,675,904. This will increase the husband’s entitlement to $2,500,000 of net assets together with $63,038 in superannuation. The wife will have $8,595,676 worth of net assets and $214,844 in superannuation.
I am required to have regard to the matters set out in sections 79(4)(d), (f) and (g) of the Act. The impact of those sections has been considered by me in reaching the determination set out above or has no relevance to the facts of this case.

Just and Equitable

Given all the circumstances in this case I consider a result which sees the husband with $2,500,000 together with his superannuation and the wife with $8,595,676 together with her superannuation to be a just and equitable result. That conclusion is sustained not withstanding that the wife will keep almost $6 million dollars more in property than the husband.

The Property Orders Which Should be Made

As stated earlier the husband has $885,255 worth of net asset which he will retain. Thus he has to receive another $1,614,745 of assets.
The husband wishes to retain the P Street property. He has occupied the property since April 2004 to the exclusion of the wife. He should be given the opportunity to purchase the wife’s interest in the property. The property has a value of $2,250,000 and carries a mortgage of $190,000. The equity in the property is therefore $2,060,000. In those circumstances the husband would have to pay the wife the sum of $445,255. The husband should be required to discharge the mortgage on the P Street property at the time of acquisition of the property. The husband should give notice to the wife in writing, through her solicitors, of his intention to acquire the wife’s interest in the property within 28 days and should complete the acquisition of the property within a further two month period. Should he not give notice of his intention to acquire the wife’s interest as provided for then the wife should be given an opportunity to acquire the husband’s interest in the property. In the event of the wife giving the husband notice of her intention to acquire his interest in the P Street property then within a further period of two months from the date of her giving the notice to the husband she is to pay him the sum of $1,614,745 less the amount of any default by the husband of the order made herein for him to pay all the outgoings on the property pending the acquisition by the wife. If neither party wishes to retain the property then the property should be listed for sale forthwith at the conclusion of the wife’s 28 day period.
As and from the date of these orders the husband is to be responsible for all mortgage instalments on the P Street property. He is to have occupation of the property unless and until it proves necessary for any order to be made requiring him to vacate the property in order to effect a sale. The wife should be refunded any payment associated with the property made by her from the date of these orders until the sale is completed. Such refund to come from the husbands’ share of the proceeds.
The parties have reached an agreement about the sale of the yacht. When the matter was listed for further submissions before me on 5 June 2009 the parties presented a minute of consent order relating to the disposition of the yacht. The minute did not provide for the percentage distribution of the sale proceeds between the parties other than to leave it to me to determine how the proceeds should be divided.
Given that the sale price is unknown for the yacht I think the fairest method of distribution is to have the funds divided equally. In that manner the parties will share equally in any increase in the sale proceeds above the balance sheet value of $90,000 and equally share in any diminution in its value.
In the event of a sale of the property the following proceeds would be expected:
P Street Sale price   $2,250,000
Less sale expenses    These are to be
paid by the wife as to 77.5% and by
the husband as to 22.5%.
Less mortgage  $   190,000
Net sale proceeds  $ 2,060,000
The husband’s entitlement as referred to earlier is a payment of $1,614,745. That sum expressed as a percentage of the net sale proceeds is 78.4%. The husband should therefore receive 78.4% of the net sale proceeds and the wife the balance (21.6%).
As the sale expenses are not known they should be contributed towards in the same proportion as the parties have divided their assets. The husband receives $2,500,000 of the pool of $11,095,676. That represents 22.5%. The wife’s proportion therefore is 77.5%
The wife proposes that the off road motor vehicle be transferred to the husband. In such circumstances she should indemnify the husband against any action brought by R Corporation against him to recover the vehicle or any monies arising from the husband’s use of the vehicle.
Orders should be made for the Toyota LandCruiser and the yacht to be transferred to the husband.
I will make orders to facilitate that outcome.

The Review Application Filed by the Wife on 11 July 2008

The application under consideration is that filed by the wife on 11 July 2008. The wife seeks a review of the orders of Judicial Registrar Loughnan made 18 June 2008. The Orders made that day were as follows:
IT IS ORDERED
1.       The wife’s Application in a Case filed 21 April 2008 is stood
          over generally with liberty to either party to restore those
          proceedings to the list either before the Trial Judge or before a
          Judicial Registrar on giving 48 hours’ notice to the Court and to
          the other party.
2.        In the event that a Section 57 (2)(b) Notice issues in relation to
          the former matrimonial home at [P Street], the parties are to
          forthwith do all things and sign all documents to cause that
          property to be listed for sale, to agree on an appropriate selling
          agent, to agree on a solicitor to have carriage of the sale and in
          each case in default of agreement within 7 days of notice from
          one party to the other to instruct the President of the of the Law
          Society and the President of the Real Estate Institute of NSW to
          nominate a solicitor and real estate agent respectively to effect
          the sale.
3.       The parties are to do all things and sign all documents necessary
          to cause the net proceeds of sale, after the payment of all costs of
          sale, adjustments on sale, the satisfaction of all secured creditors
          and any other payments the parties agree upon, be then held in a
          controlled monies account on trust for the parties pending final
          property proceedings between the parties.
4.The costs of the parties are reserved.

The application of the wife dealt with by the Judicial Registrar on the 11 July 2008 was that filed by her on 21 April 2008. That application sought that orders 13 and 14 made on 8 April 2004 be discharged. It also sought orders for the husband to forthwith vacate the property at P Street and that the wife be permitted to rent the property and apply the rental to meet the mortgage payments.
Orders 13 and 14 of 8 April 2004 provided for the husband to have occupation of the P Street property and required him to meet the outgoings on the property including the minimum monthly mortgage payments, council rates and taxes, water rates, electricity, gas and telephone.
It is the wife’s case that the husband had paid only one payment on the mortgage between the date of the order and the date the trial concluded before me.
The wife’s submissions in relation to the review are as follows:
Submissions in support of Application for Review
The wife by way of Application the wife seeks to review the orders made by Judicial Registrar Loughnan on 18 June, 2008. The Orders under review in essence provide that in the event that the mortgagee of the [P Street] property issues a 57(2)(B) Notice then the property is to be listed for sale.
The background facts in relation to the home and the mortgage are not in contest. By virtue of Orders made 8 April, 2004, the husband was granted occupation of the home and was required to pay the mortgage and outgoings on the home. It is not in issue that for the entire period since the making of those Orders the husband has made only one payment under the mortgage in the sum of $1,329.00. It is not in issue that the wife has been obliged to make payments under the mortgage as a consequence of threats made by the mortgagee to proceed to realize their security as a consequence of the defaults under the mortgage.
The husband has, in the period since the parties separated, had the benefit of occupation of the home such occupation came upon the condition that he would pay the mortgage. He failed to comply with his obligations under the Orders and by which failure he imperiled the continued ownership of the home.
Judicial Registrar Loughnan’s Orders are of a self-executing nature such that the home is required to be sold in the event that the mortgagee issues a 57(2)(B) Notice. Given the husband’s failure to comply with the Orders, the only way that the mortgagee can be forestalled is by the wife making a payment under the mortgage.
The wife should not be placed in the position whereby in circumstances where she is the sole financial provider for the children, and is not in occupation of the former matrimonial home she is required to subsidize the husband’s accommodation as well as preserve assets of the marriage.
The wife seeks to retain the [P Street] property as part of her property settlement. A sale of the home would thus have the effect of defeating in part the wife’s claim. The wife has sought to have the property rented to defray the costs of the mortgage. The husband has opposed such claim.
In the event that the Court determines the property aspects of the case shortly then the wife accepts that a determination of the Review Application may well be subsumed in the final property Orders. In the event however, that this does not happen, then a more expeditious determination of the wife’s Review Application will be required.
The husband’s submissions are as follows:
THE REVIEW APPLICATION
On 18 June 2008 the wife’s Application in a Case filed on 21 April 2008 was stood over generally by Judicial Registrar Loughnan.
The wife’s Application was to have the husband’s right to occupy the [P Street] property set aside.
The wife sought a Review of the orders of JR Loughnan.
The wife has continued to agitate this matter, and seeks that the Review Application be determined.
This approach by the wife is consistent with the attitude adopted by her throughout the proceedings – she has been prepared to concede virtually nothing and has consistently maintained a hardline attitude.
This hardline attitude is maintained even in the situation where there is no practical benefit to her – property matters are about to be finalised, yet she seeks a gratuitous order that will be subsumed by the final orders that the Court will make in this matter.
The Court should recognize this vexatious approach for what it is, and should deal with it accordingly.

Conclusion

The parties’ post separation contributions towards the property at P Street and the husband’s occupation of the property have been taken into account by me in reaching a decision in relation to the division of the parties’ property. I will publish orders with these reasons which will finalise the position in relation to the P Street property.
The orders sought by the wife will not be required once the final orders are published.
I do not think the wife’s application which was filed on 21 April 2008 was an unreasonable application. The husband’s continued occupation of the property in circumstances where he was not contributing to the principal outgoing on the property (the mortgage) must have been very frustrating to the wife. The Orders made by the Court on 8 April 2004 were consent orders. It seems reasonably clear on the face of the orders that the wife had agreed to the husband occupying the property at P Street provided he met the outgoings on the property. The husband did not pay one payment on the mortgage until some years after the order was made and then he made one payment only.
Had the matter been listed for determination before me I believe I could well have made the orders sought by the wife. It is only the time lapse between the orders of 18 June 2008 and the determination by me which has defeated the wife’s claim.
The Order of the Court will see the review application of the wife filed 11 July 2008 dismissed.

I certify that the preceding one thousand three hundred and eighty three (1383) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date: 12 June 2009

[2009] FamCA 567

12 June 2009

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Jurisdiction

Injunction

Procedural Fairness

Remedies

Parties commence cohabitation. Husband assets early 1996.
August 1996	Parties holiday in Europe.
1997	Wife falls pregnant at age 39, after undergoing IVF treatment.
12.1997	Parties marry.
06.1998	Birth of C. Presently aged 11 years. Upon wife returning to work, C cared for by nanny at wife’s work premises.
Late 1998	Parties travel to South America.
July 1999	Parties move out of Wollongong area home.
April 2000	Parties travel to Macedonia.
July 2000	Parties holiday overseas. Husband’s parents travel from Macedonia. C is left with Ms B.
Late 2000	Wife falls pregnant, after undergoing IVF treatment. Doctor warns that child might have Down Syndrome. Parties decide to keep unborn child.
07.2000	Birth of T. Healthy, but with hole in her heart (not dangerous). Wife returns to work 7 days’ after T’s birth. As with C, T cared for by nanny while parties at work.
July 2002	Husband travels to Macedonia with C (aged 4 years) for 2 weeks.
12.07.2003	Parties become involved in argument, and husband throws telephone against wall, damaging the gyprock.
November 2003	Incident where wife alleges that she was assaulted by h. Husband denies assault, but admits argument.
February 2004	C commences school at H School. Husband and wife attend on C’s first day at school.
19.02.2004- 5.03.2004	Husband travels to Macedonia with T (aged 2 years and 8 months) and business partner.
7.03.2004	Date of separation, after argument between the parties. Wife alleges that she was assaulted by husband, and seeks AVO. Husband denies assault, but consents to orders being made on 10 March 2004.
8.03.2004- 8.04.2004	Husband does not see C, and only sees T for about 10 minutes at … Swimming Pool. Husband thereafter charged with breach of AVO for attending the pool.
10.03.2004	AVO Order made for 2 years. Husband consents.
19.03.2004	Wife commences family law proceedings.
8.04.2004	Interim Orders made by Consent by Judicial Registrar Johnston. Children to live with wife and to spend alternate weekends, alternate Thursday nights and half the school holidays with the husband, as well as spending time with him on special occasions. Provision also made for telephone contact.
Approximately May 2004	Following allegations about difficulties at changeovers, husband suggests that changeovers take place at a police station, and from May 2004 to May 2006 all changeovers took place inside police stations. Wife commences employing security guards to accompany her to C’s sporting events.
22.12.2004	Consent Orders made appointing Dr W to prepare an expert report regarding children’s issues.
19.06.2004	Husband charged with 2 counts of common assault and breach of AVO. Pleads guilty.
23.06.2004	Wife first consults Ms K (psychologist).
2005	Wife takes C to psychologist, Ms K, on about 6 occasions throughout the year.
November 2005	Husband proposes Central Coast holiday with children.
20.12.2005	Consent Orders made regarding arrangements for the 2005/2006 Christmas school holidays.
January – May 2006	During this time, husband spends no time with the children. Husband says that he did not spend time with the children as he feared being charged with breaching the AVO.
7.02.2006	Wife takes C to see psychologist, Ms K.
10.02.2006	Letter from wife’s solicitors advising husband that T had been enrolled at G School on Wednesdays, Thursdays and Fridays and warning husband that wife intended bringing application to vary and possibly suspend “contact” due to husband’s alleged “unacceptable” conduct over the Christmas holidays. Husband alleges that he never consented to T being moved from the S Pre-school to G Pre-School.
2.03.2006	Letter from husband’s solicitors advising that husband would not collect T from the G Pre-school.
11.04.2006	Letter from husband’s solicitors making proposals for the husband to spend time with the children during the April school holidays.
13.04.2006	Letter from husband’s solicitors to wife’s solicitors explaining why the husband had not pursued contact with the children.
20.04.2006	Husband advised that wife had brought application to limit his time with the children to supervised time at a contact centre.
Late April 2006	According to husband, he speaks to wife and they agree to him having the children on the weekend commencing 19 May 2006. This is denied by the wife. Husband travels to Macedonia to visit parents.
7.03.2006	AVO extended at … Local Court.
19.05.2006	Husband collects C from school and spends weekend with him. Wife alleges that at changeover at A Police Station on 21 May 2006, she was assaulted by the husband. This is denied by the husband. Husband subsequently charged and convicted of breach of AVO and assault. Assault conviction overturned on appeal.
25.05.2006	Letter from husband’s solicitors proposing arrangements fro husband to spend time with the children in accordance with the then current Orders.
26.05.2006	Letter from wife’s solicitors referring to the wife’s pending application for a variation of the Orders to allow only supervised “contact”, and advising that until the application was heard, the children would not be made available to spend time with the husband.
27.05.2006	Husband attends at park in … to watch C play soccer. Wife was present, accompanied by a security guard.
2.06.2006	Husband attempts to collect C from school for scheduled weekend, but child earlier removed from school by the wife.
23 – 25.06.2006	C spends weekend with the husband. Wife says this was contrary to her wishes. Says that husband had attempted also to take T for the weekend.
23.08.2006	Interim Family Law Orders made.
7.07.2008	Wife advised by husband’s solicitors that he would be travelling to Macedonia from 10 – 18 July 2006 to visit his mother.
18.07.2007	Scheduled date of hearing of wife’s Application in a Case to vary Parenting Orders. Matter adjourned to 23 August 2006. Wife says she then decided that the children should not have unsupervised time with the husband pending the adjourned hearing.
28.07.2006	Husband collects C from school, and returns him to wife at A Police Station on 31 July 2006. This time with C was against he wife’s wishes, and was the subject of correspondence from her solicitors to the husband’s solicitors.
23.08.2006	Interim Orders made by Consent restricting husband’s time with the children to supervised time at a contact centre on 2 Saturdays out of every 3 weekends and to some telephone contact. Husband says that, acting on legal advice, he reluctantly agreed to the Orders in circumstances where the Court was not able to deal with the matter as Dr W’s report was not yet available and the wife was not refusing to allow him to see the children.
3.09.2006	Father’s Day time at Contact Centre. Husband gives children mobile phones.
10.10.2006	Dr W’s Report furnished. Recommends that husband spend time with children under supervision at a contact centre.
13.11.2006	Wife’s Application in a Case listed for hearing. Husband says that he was advised that, on an interim basis, the recommendations of Dr W would probably be followed, and that he should consent to the Orders of 13 November 2006, providing for him to have supervised time with the children at a contact centre.
10.01.2007	Police attend the rural house and husband had left.
25.03.2008	Updated Report provided by Dr W.