Blatch & Blatch (No 5) - [2022] FedCFamC1F 651

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Blatch & Blatch (No 5) [2022] FedCFamC1F 651

File number(s): SYC 1613 of 2021

Judgment of: REES J

Date of judgment: 31 August 2022

Catchwords:
FAMILY LAW – PARENTING – Application by the father for equal shared parental responsibility – The mother seeks sole parental responsibility and that the father spend no time with the children – Where the children’s views are to be given weight – Where the parents present with all the features of a high conflict dispute – The father poses no physical risk of harm to the children – Orders made for the children to live with the mother and spend time with the father

FAMILY LAW – PROPERTY – The wife seeks 65 per cent of the net assets by way of property distribution –Where the wife has paid for majority of the children’s private school fees – Where the husband is in arrears of child support – Orders made pursuant to s 123(1)(b) and s 123A of the Child Support Assessment Act 1989 (Cth) for the husband to pay child support by way of lump sum – Orders made for the husband to pay half of the children’s school fees – Orders made for the wife to receive 60 per cent of the net assets – Orders made appointing the wife as the trustee for sale of the matrimonial property in the event that the husband is unable to retain the property

Legislation:
Child Support Assessment Act 1989 (Cth) s 123(1)(a), s 123(1)(b) and s 123A

Child Support (Registration and Collection) Act 1989 (Cth) s 113A

Family Law Act 1975 (Cth) s 65L, s 69ZX(3), s 75(2), s 79(2) and s 79(4)

Division: Division 1 First Instance

Number of paragraphs: 286

Date of hearing: 17, 18, 19 & 22 August 2022

Place: Sydney

Counsel for the Applicant: Mr Blackah

Solicitor for the Applicant: Justice Family Lawyers Sydney

Counsel for the Respondent: Mr Othen

Solicitor for the Respondent: Lander & Rogers

Counsel for the Independent Children's Lawyer: Mr Jackson

Independent Children's Lawyer: Brian Samuel & Associates

Table of Corrections

14 December 2023 In paragraph 33(d) of the orders reference to number “24” has been corrected to show number “30”.

ORDERS

SYC 1613 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BLATCH

Applicant

AND:
MS BLATCH

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

REES J

DATE OF ORDER:

31 AUGUST 2022

THE COURT ORDERS:
Par 33(d) amended 14.12.2023 pursuant to slip rule, Rule 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021
1.That the mother have sole parental responsibility for the children X born in 2010 and Y born in 2012 (“the children”).
2.That the mother immediately inform the father of any decision she makes in the exercise of her parental responsibility for the children.
3.That the children live with the mother other than as provided in these orders.
4.That the children live with the father during school terms each alternate weekend, commencing on the first weekend of each school term, from the end of school on Thursday until school starts on Monday, or Tuesday if the weekend is a long weekend, the father to collect the children from school on Thursday and return them to school on Monday.
5.That the operation of Order 4 commence on Thursday 8 September 2022.
6.That the father is entitled to attend any school or sporting event on the days that the children live with him and the mother is restrained from attending such events on any day, including Thursday and Monday, or Tuesday if the weekend is a long weekend, that the children live with the father.
7.That the mother is entitled to attend any school or sporting event on the days that the children live with her and the father is restrained from attending such events on any day that the children are not in his care.
8.That each parent is restrained from enrolling the children in any activity which occurs when the children are in the care of the other without the written consent of the other parent.
9.That the mother authorise the school which the children attend to provide to the father all information which is usually provided to parents including but not limited to newsletters, school reports, bulletins and photographs.
10.That the children live with the father in the holidays at the end of Terms 1, 2 and 3 for the first half of each school holiday period commencing at the end of school on the last day of the school term and ending at 5.00 pm on the day which is the mid-point of the holiday and the father shall collect the children from school and return them to the mother at the end of the period by parking his car outside the mother’s residence and allowing the children to go inside. During changeover, the father is to remain in his vehicle and the mother is to remain inside the residence.
11.That in the Christmas holidays at the end of 2022 and in each even-numbered year thereafter, the children live with the father for the first half of the holiday commencing at the end of school on the last day of the school term and ending at 5.00 pm on the day which is the mid-point of the holiday.
12.That in 2022 and each even-numbered year thereafter, the children shall spend time with the mother on 26 December from 9.00 am until 6.00 pm, the father to deliver the children to the mother’s residence and the mother to return the children to the father’s residence.
13.That in the Christmas holidays at the end of 2023 and in each odd numbered year thereafter, the children live with the father for the second half of the holiday commencing at 9.00 am on the day which is the mid-point of the holiday and ending at 5.00 pm on the day before the first day on which the children attend school in Term 1 of the new year.
14.That in 2023 and each odd numbered year thereafter, the children shall spend time with the father on 26 December from 9.00 am until 6.00 pm, the mother to deliver the children to the father’s residence and the father to return the children to the mother’s residence.
15.That for the purpose of Christmas holiday changeover in accordance with Orders 11, 12, 13 and 14, and for the purpose of Orders 16 and 17, where changeover does not occur at school, the parent with whom the children has been living will deliver the children to the residence of the other parent, the delivering parent will remain in his or her car and the receiving parent will remain inside his or her residence.
16.That on the weekend of Fathers’ Day, if the children are not living with the father pursuant to Order 4, the children will spend time with the father from 4.00 pm on Saturday until 8.00 pm on Sunday.
17.That on the weekend of Mothers’ Day, if the children are not living with the mother, the children will spend time with the mother from 4.00 pm on Saturday until 8.00 pm on Sunday.
18.That each parent will permit the children to initiate telephone or electronic communication with the other parent at any reasonable time.
19.That each parent do all acts and sign all documents required to ensure that the children have valid passports at all times.
20.That, during the time the children spend with each parent pursuant to these orders, that parent is entitled to travel interstate and overseas with the children provided that the other parent is provided with contact information and a travel itinerary not less than 14 days before the departure date and provided that the travel takes place during the time allocated to the travelling parent pursuant to these orders.
21.That each parent keep the other advised of his or her residential address and contact details.
22.That the mother ensure that the father is provided with the telephone number of the children’s mobile telephones.
23.That each parent advise the other by text message or telephone call if either of the children suffers a medical emergency and provide details of the treating medical practitioners and, if applicable, hospital and the mother shall authorise the child’s medical practitioners and the hospital to provide to the father any information he seeks about the child’s condition and treatment.
24.That the husband pay, as and when they fall due, one half of any account issued by U School for the tuition of the children. In the event that the husband does not pay half of the school fees in accordance with this order and those fees are paid by the wife, then the husband shall reimburse the mother for the amount he should have paid.
25.That the payments referred to in Order 24 not be credited against any other liability of the husband to pay child support.
26.That the Court declares that the husband is in arrears of periodic child support payable to the wife in the sum of $31,115 as at July 2022.
27.That pursuant to s 113A of the Child Support (Registration and Collection) Act 1989 (Cth) the said sum shall be paid to the wife within 42 days in accordance with Order 30 or on the sale of the Suburb K property in accordance with Order 33.
28.That pursuant to s 123(1)(b) and s 123A of the Child Support Assessment Act 1989 (Cth), the husband shall pay to the wife the sum of $186,238 by way of lump sum child support the said sum shall be paid to the wife within 42 days in accordance with Order 30 or on the sale of the Suburb K property in accordance with Order 33.
29.That the sum of $186,238 is to be credited against 100 per cent of the husband’s assessed child support liability.
30.That within 42 days of the date of these orders, the husband pay to the wife the following sums:
(a)$1,006,527
(b)$186,238
(c)$31,115
(d)$21,586 pursuant to orders made 10 August 2022 together with interest payable at the rate prescribed in the Family Law Rules from the due date until the date of payment.
(e)$20,000 pursuant to orders made 8 February 2022 together with interest payable at the rate prescribed in the Family Law Rules from the due date until the date of payment.

31.That upon payment of the sums referred in Order 30 the wife shall do all acts required to transfer to the husband her interest in the property at L Street, Suburb K (“the Suburb K property”) and the husband shall indemnify the wife against any and all liability arising from any mortgages secured against the Suburb K property.
32.That the husband pay the interest on any mortgage secured over the Suburb K property from the date of these orders.
33.That in the event that the husband does not pay to the wife the sums referred to in Order 30 by the due date, then within 14 days of the date for payment specified in Order 30 the husband shall vacate the Suburb K property and the wife is appointed trustee for sale to sell the Suburb K property at the best price available and to distribute the proceeds of sale in the following manner and priority:
(a)To discharge the mortgages secured over the property.
(b)In payment of the agents’ commission, legal fees on the conveyance and costs of sale.
(c)In payment of 60 per cent of the balance remaining, less the sum of $49,556 to the wife.
(d)In payment to the wife of the sums referred to in Order 24 30(b), (c), (d) and (e).
(e)In payment of any arrears of interest payments arising by the husband’s having failed to pay interest on the mortgages in accordance with Order 32.
(f)In payment of the balance remaining to the husband.

34.That, absent agreement, the husband do all things required to sell the furniture and whitegoods in the Suburb K property and account to the wife for half of the proceeds of the sale.
35.That other than as provided in these orders, each party is solely entitled to any item of property, including any entitlement to superannuation, in his or her possession at the date of these orders.
36.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Blatch & Blatch has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J

Mr Blatch (“the husband” and “father”) and Ms Blatch (“the wife” and “mother”) commenced their co-habitation in 2003 and married in 2005. They have two children, X who was born in 2010 and is 12 years old and Y who was born in 2012 and is 10 years old.
The parents separated under the one roof in April 2018 and physically separated after an incident in late 2018 after which the father was charged with assaulting the mother and an Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother. The father was convicted of assault in relation to that incident but the conviction was overturned on appeal.
The mother and the children live in the home of the maternal grandparents. The mother has not re-partnered.
The father is in a relationship with Ms DD but the evidence does not suggest they live together. Ms DD has a daughter, JJ.
The proceedings before the Court concern the parenting arrangements for the children and the division of their property.
I will deal firstly with the parenting matters.
PARENTING
The father seeks equal shared parental responsibility for the children and, initially, that the children spend five nights each fortnight with him, progressing after six months to an equal time arrangement. He asks that the children spend half of their holidays with him.
The mother seeks sole parental responsibility for the children.
The mother’s preferred proposal is that the children spend no time with their father and have no communication with him. Her alternate proposal is that the children spend time with their father each alternate Sunday during school terms from 9.30 am to 5.00 pm. During school holidays, she proposes that they spend two, non-consecutive days with their father from 9.30 am until 5.00 pm, once in each of the short holidays at the end of terms 1, 2 and 3 and in alternate weeks of the long Christmas holidays. All of that time is to be professionally supervised by a supervising agency chosen by the mother and paid for by the father until each child is 18 years old.
The Court was assisted by the appointment of an Independent Children’s Lawyer (“ICL”) for the children and by the preparation of a report by a single expert psychologist, Mr J.
Because the mother’s allegations that the father is a perpetrator of family violence were central to the proceedings, I propose to deal firstly with those allegations.
FAMILY VIOLENCE
The most serious allegation arises from an incident between the parents on 2 December 2018 which precipitated the mother’s leaving the home with the children.
Each has given a version of the event. The mother’s evidence is:
[The father] was holding my phone in his right hand and refused to give it back to me, He attempted to walk around me, but I was blocking the corridor. I again said to [the father], “you can’t take my phone, please give me my phone.” As I reached for my phone, [the father] moved it behind his back. At no point did I touch [the father] , but I recall that he propelled me up and backwards, by forcefully striking at my upper body whilst my left hand was on the phone. My body went flying backwards and to my left side, so both of my legs were up in the air, and I fell horizontally straight down onto my back. I could not move, and felt paralysed in shock, fear and pain. I remember [X] screaming, “no daddy, you’ve broken mummy’s back”.
The father’s evidence is that, at the time of the incident, he had a broken ankle. He deposed:
At one stage, I saw [the mother] grab her phone and I said, “If you film me, I will take that phone back”. As mentioned above, since separation and during our arguments, [the mother] often filmed me with her phone and I feel that [the mother] did this in an attempt to antagonise me or get me to react. I went to the bedroom and started packing my things, having decided to remove myself from the situation and leave the house. When I left the bedroom, [the mother] was sitting in the dining room and I walked over and picked up the phone from the table. [The mother] quickly got up from the dining table and pursued me as I retreated with her phone to the hallway. [The mother] started pressing up against me, trying to get the phone which I had held behind my back. I couldn’t move as [the mother] had pushed me up against the closet in the corner of the hallway. My ankle was in excruciating pain and on a number of occasions I exclaimed to [the mother] “Stay away from me!”, “Watch my ankle” and “Don’t come near my ankle” or words to that effect. The children were behind [the mother] and [X] was yelling at us both to stop. I felt a sharp pain in my ankle and I pushed [the mother] off me with my left arm and she landed on her bottom on the tiled floor. I checked to see if [the mother] was ok before walking to the bedroom. I observed that [the mother] was sitting on the floor and was not crying or visibly distressed.
The father was charged with assaulting the wife and convicted. He appealed and the conviction was quashed.
The appeal, which was a re-hearing over two days, was heard in the District Court of New South Wales (“the District Court”) and judgment delivered in 2020. The judgment is in evidence before me pursuant to the provisions of s 69ZX(3) of the Family Law Act 1975 (Cth) (“the Act”) which provides:
(3) The court may, in child‑related proceedings:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
The learned judge noted:
A. The fact the accused might be the original aggressor or provoke the action against which he was defending himself does not preclude a finding of self-defence;
B. There is no rule that an accused must retreat from aggression before self-defence is available although it may be relevant to the issue of reasonableness; and
C. Even if the attack on the accused is lawful, that of itself does not preclude the accused lawfully defending himself, such a circumstance was said to be unusual.
What happened in the bathroom corridor with four people present is central to deciding this case.
In the judgement, the learned judge noted that the mother said:
I didn’t want to be left without my phone so I was trying to get the phone back from him that’s when he picked me up and slammed me down on my back on top of the floor.

The judge noted that later the mother said:
“When I got slammed down onto my back…” and then later still, “This is the first time he’s actually picked me up and slammed me down”.
The mother denied that the father pushed her, saying:
Not as if he was to push me to the side, no. He somehow was able to get my entire body up in the air.
His Honour stated:
In this regard it should be noted that the bruising to the [mother], which I described as being in the coccyx area, is consistent with falling back onto the buttock area. There were no other apparent injuries resulting from what the [mother] described as a fully horizontal fall.
It is not in dispute that, during the incident that the mother described, the father was holding her phone in one hand and that he had a broken ankle. His Honour found:
Noting that the [mother] herself was uncertain as to the actual physical manoeuvres made by the [father] it is unlikely that he could lift her into a horizontal position and then throw or drop her onto the ground while one hand held a mobile phone. The [mother] herself acknowledged she could not be placed in this position with the use of only one hand. Further there is independent evidence that the [father] had a fractured ankle. The photographs clearly show the swelling. In addition there is evidence from the [mother] herself that he did have a fracture, combined with his many references in the ERISP made shortly after the event including being in extreme agony and experiencing excruciating pain, which make it highly unlikely that he could effect the manoeuvre not precisely described by the [mother] …
His Honour concluded that the bruising on the mother’s coccyx lent support to the father’s evidence that he pushed her backwards causing her to fall on the tiled floor and that the absence of other injuries did not support the mother’s evidence that she was dropped or thrown horizontally to the floor.
His Honour stated:
However, looking at the evidence as a whole and giving the [father] the benefit of a full character direction, along with the fact that his own wife has said that he had never been physically violent towards her in the past, the Court can accept that there was a push by the [father] to the [mother] causing her to fall backwards and to fall onto her coccyx area.
His Honour found that it had not been proved that the father did not act in self-defence.
The conviction was quashed and the ADVO was set aside.
Before me, the mother did not assert that the father picked her up and slammed her down on her back. I accept that he did not. However, the difference between the evidence she gave in the criminal proceedings and the evidence she has given before me causes me to be concerned about the veracity of her evidence before me in relation to these and other allegations, particularly where her evidence in the District Court was that there had been no previous violence towards her by the father.
I note that the facts upon which the provisional ADVO made in 2018, were based, include the statement:
According to the [mother] this is the first time the [father] has been physical with her.
Further, in the facts it is stated:
During this incident, the [mother] decided to take out her mobile phone and film the interaction that she was having with the [father]. During this video, the [father] can be heard telling the [mother] that he will be taking the car and house keys away from [her] as he had paid for them. No alleged assault could be seen on the video… the [father] could be heard and seen giving the [mother] 2 middle fingers and saying “Eat Shit Die”.
It is more likely that the father, as he asserted, pushed the mother away in an attempt to shield his fractured ankle and that she fell to the floor as a result.
In so saying, I do not intend to suggest that the father’s actions were acceptable or that the push does not constitute family violence, but this was an incident in which two people were actively involved and they must each bear the responsibility for their respective actions. The mother, notably, in answer to questions from me, said that she bore no responsibility for her part of the incident.
I accept that, on that occasion, the father was verbally abusive towards the mother.
I am unable to find that there were earlier incidents of physical violence as the mother now alleges, and the father denies.
I am, however, satisfied that there were arguments and verbal abuse between the parents and that each was verbally abusive towards the other.
Having seen both of the parents cross-examined over the period of the trial, I accept that the father is likely to have behaved in a manner that was intimidating and aggressive towards the mother. Equally, I accept that the mother would have behaved in a manner which was seen by him as provocative and this was particularly so in her refusing to engage with him in response to his various propositions and proposals about how they were going to arrange their lives, the children’s lives and their financial affairs.
AFTER PHYSICAL SEPARATION
On the evening of the incident, when the mother left the house with the children, she went straight to the police station, taking the children with her. In cross-examination, she said that she did not take the children to her parents’ home, which was reasonably close by, because she thought the husband might be following her. She conceded that she did not see him following her.
When the police told the mother they wanted to interview the children and take statements from them she did not demur and she did not seek legal advice about whether she was entitled to refuse to allow the children to be involved. She took the children to the police station the next day to be interviewed. As a consequence, the children, then aged six years and eight years, were interviewed by the police and called as witnesses and cross-examined both before the Local Court and in the appeal.
Within a very short time the mother engaged with her therapist, Ms EE and she also consulted a Separation Strategist.
The mother did not agree to the father’s spending time with the children other than by attending at their sporting and school functions.
In January 2019, the father reported to the police that the vehicle driven by the mother, which was registered to his company, had been stolen. He was well aware that this was false and he also demanded its return from the mother.
Without consulting the father, and without his consent, the mother engaged Ms AA, a clinical psychologist to whom she was referred by NN Services, as therapist for the children. The referral letter from the mother’s doctor, dated 24 January 2019, stated that the referral was “for supportive counselling post witnessing physical assault to her mother…”
Ms AA’s records refer to three consultations with the children on 21 December 2018, 22 January 2019 and 6 February 2019 although the mother recalled that one of those consultations might have been a phone call and the last did not proceed. Thus it appears that the children had one face to face session with Ms AA.
The mother provided “updates” to Ms AA by email. An email of some two pages from the mother to Ms AA dated 31 January 2019 is in evidence. That email sets out the mother’s version of the events of the past week or so.
The father was told of the engagement of Ms AA by the mother’s solicitors by letter dated 1 February 2019 by which time the children had engaged in two sessions of therapy. He objected to Ms AA’s continuing to see the children on the basis that she was neither independent nor neutral, an assessment with which Ms AA seemed to disagree. In an email to the father sent on 21 February 2019, Ms AA stated that her purpose was for the children to “talk about what they have been through… in a neutral, safe environment”. It is difficult to understand how Ms AA might have come to the view that her engagement with the children was neutral, having regard to the fact that she had not engaged with the father; had received such information as she had only from the mother; had told the father already that she did not feel comfortable allowing him to come to her office and had not responded to his request that she see him with the children.
It is also difficult to understand why the mother, who was by this time in receipt of legal advice, persisted in insisting on the children’s continued engagement with Ms AA as a condition precedent to the children’s spending any time with their father.
On 23 February 2019, the father sent a text to the mother advising her that the car she used was shortly to be unregistered and uninsured and that she was not authorised to either register or insure it.
I have attempted to reconstruct the sequence of correspondence putting the parties’ respective positions about the father’s time with the children and the narrative that follows taking into account the evidence which was before the Court. Relevantly, some of the responses from the father’s then solicitors to the mother’s proposals are not in evidence.
On 15 March 2019, the mother’s lawyers proposed that the father spend time with the children, professionally supervised “for a few hours each weekend” for eight weeks and that the children resume counselling with Ms AA. The email stated:
[Ms AA] may also be requested to prepare a report around the conclusion of the 8 week supervision period which the parties may consider in terms of next steps.
The email concluded:
Regrettably, if this proposal is not agreed and your client fails or refuses to adhere to our client’s requests, then she will have no choice but to consider filing a court application, including seeking various restraints against your client.
On 24 April 2019, there was a further proposal from the mother’s solicitors. I infer that the father had proposed that his mother, the paternal grandmother, supervise some time. That proposal was not accepted by the mother. She proposed, relevantly, that the children spend time with the father, professionally supervised; that he abstain from drinking alcohol before and during the time with the children and that the children re-engage with Ms AA. Further, the father was to enrol in and complete a behavioural change course.
The father instructed his solicitors to respond, agreeing to abstain from alcohol but not agreeing to supervision. Further, the solicitors advised that the father agreed to counselling for the children provided that both parents were equally included in the process and the therapist was an independent person agreed upon by both parents.
On 29 August 2019, there was another proposal from the mother, rejecting the assertion by the father’s solicitors that she was deliberately obstructing the father’s having contact with the mother, although it is difficult to see how the mother’s continued insistence on Ms AA’s involvement could be construed as anything other than obstructive on her part.
Again, in the email of 29 August 2019, the mother proposed that the children re-engage with Ms AA “forthwith” and that, once the children resumed regular counselling with Ms AA, they start spending time with their father at a contact centre.
As the mother must have anticipated, the father did not agree. The father continued to attend at sports and school events and it appears that there continued to be conflict. The mother complained that the father passed a gift to one of the children; that he had taken photographs; that he left a small cake for one of the children on the mother’s car. The mother took photographs of the father to which he objected. The father came to the mother’s home to wish X a happy birthday to which the mother objected.
The mother made a number of complaints to the police upon which they declined to act.
The father made a proposal for time with the children on 23 March 2020 but its terms are not in evidence.
On 26 March 2020, by which time the father was unrepresented, there was a further proposal, again conditional upon the children resuming counselling with Ms AA. The email stated:
As noted previously, our client remains of the view that the girls’ familiarity with [Ms AA] will create an environment in which they feel supported, such that the reintroduction of time with your client can be assessed.
The father responded, saying that he was not opposed to therapy for the children but was opposed to Ms AA’s being the therapist.
On 15 May 2020, the mother’s solicitors emailed the father stating:
While your email dated 26 March 2020 indicated an aversion to the Children seeing [Ms AA], you have not provided any alternative proposal for an appropriate therapeutic professional. [Ms AA] is someone with whom the Children are familiar and comfortable, and already have an established relationship. In those circumstances, our client remains of the view that [Ms AA] is best-placed to assist them in the current circumstances.
In the event you maintain your opposition to [Ms AA], our client is prepared to agree to an alternate therapist recommended by [Ms AA].
(Emphasis added)
Again the mother proposed that once therapy had been resumed, contact could commence in a contact centre. The email concluded:
Once the Children are seeing [Ms AA] on a regular basis, our office will make enquiries of supervised contact centres.
The father responded on 8 June 2020 stating:
I am agreeable to Supervised Visits. I do not agree to these being held in a supervised centre and prefer to protect our Children from having to enter such centre.
I believe the advice of [Ms AA] was for the children to first visit me in the presence of somebody known to both of the Children. I am confused as to why [the mother] insists on the Children seeing [Ms AA] if she is to not follow such advice.
I am concerned [the mother] has surrounded herself prior to the 2nd December with a panel of providers as recommended and promoted by her Separation Strategist and that such supervised visits will be used to further manipulate the truth which has been my experience so far.
The father proposed that he spend time with the children in a public place such as a park and that the maternal grandfather be present. He proposed that he spend time with the children the following Saturday at a named park between noon and 3.00 pm and that the children bring their bikes and scooters with them.
There does not seem to have been any response to that proposal.
The father’s conviction was quashed on 15 October 2020 and he wrote to the mother’s solicitors asking for time with the children.
On 16 October 2020, the mother again proposed that the children resume therapy with Ms AA, stating:
…our client proposes to seek guidance from the Children's therapist as to what time arrangements moving forward may be in the children's best interests.
For abundant clarity, our client does not consent to the Children spending time with your client from 16 October 2020 to 18 October 2020.
The father consulted new solicitors who wrote to the mother’s solicitors on 4 December 2020 with another proposal:
1. That the children spend time with our client every Saturday from 10:00 am to 1:00 pm on a supervised basis with such time to commence on Saturday, 12 December 2020.
2. That the children spend time with our client every Saturday be supervised by the following member of your client’s family:
a) Your client’s sister-in-law, [Ms QQ]; and/or
b) Your client’s father.
3. That the children spend time with our client on Christmas Eve between 5pm and 8pm, in addition to the time proposed at point 1 above. We note that the supervision for this time would need to be provided by a member of our client’s family. Our client invites your client to nominate an acceptable family member to supervise our client’s time with the children on Christmas Eve.
4. That both parties and the children participate in family therapy with [Mr FF] of [HH Services] with the purpose of such therapy to be as follows:
a) The reintroduction of substantial and meaningful time between the
children and our client;
b) Assistance for the parties in relation to their co-parenting relationship
(noting that the parties are likely to consult upon [Mr FF] separately);
and
c) Assistance for the children, as recommended by [Mr FF].
In the event that your client insists that the supervision be provided by a paid supervision agency, we are instructed that our client will require your client to meet the costs of supervision.
We note that your client has historically pressed for the children to attend upon [Ms AA]. Our client does not agree to this nor will he agree to the children attending a practitioner recommended by [Ms AA]. We confirm that our firm has made the appropriate enquiries and have been informed that [Mr FF’s] first available date is 27 January 2021.
We are instructed to make the above proposal on an open basis. Our client has spent considerable time and resources defending the criminal proceedings brought against him and is not willing to engage in lengthy correspondence between our firms.
In the event that your client seeks to impose further conditions in relation to our client’s time with the children in addition to the requirement for supervision, we confirm that we hold instructions to commence proceedings in the [Court].
The mother’s solicitors responded on 11 December 2020 proposing that the children engage in therapy with Ms GG and:
That the children spend time with your client supervised through [B Contact Centre] with the time and frequency as agreed to between our client's [sic] in consultation with the children's counsellor, [Ms GG].
The mother did not make any proposal for the children to see their father during the Christmas period, even with supervision.
The father’s solicitors replied on 16 February 2021:
We are instructed to propose the following parenting arrangements for the immediate future:
1. Commencing on Sunday, 21 February 2021, our client to spend time with the children supervised with [B Contact Centre] at [Suburb C Park], near [Suburb C Train Station] from 10am until 12pm, such time to occur on a without admissions basis.
2. That our client will meet the costs of the supervised time.
3. That [Ms GG] of [HH Services] be engaged immediately to provide therapeutic support to the children and that both of the parties are to meet with [Ms GG] prior to her commencing therapy with the children.
4. That your client facilitate the children contacting our client by Facetime each Tuesday and Thursday evening at 6pm or at a time otherwise agreed between the parties in writing.
The advice of the mother’s solicitors to the mother about the father’s proposal is annexed to her affidavit. The mother’s solicitors wrote to her on 1 March 2021 stating, inter alia:
We have made enquiries with [HH Services] and [Ms GG] is available to engage with you and [the father] for the initial parent intake sessions on 18 March 2021.
We advise that we should simply respond to the letter from [PP Solicitors] as you and he agreed to attend the intake sessions with [Ms GG] on 18 March 2021, and do not specifically respond to his proposal in relation to recommencing time with [the father].
Also on 1 March 2021, the mother’s solicitors wrote to the father’s solicitors confirming that she agreed that the children see Ms GG.
Ms GG wrote to the parties in the following terms:
… There would also need to be an agreement between the parties or court orders as to the time the children spend with their father and under what circumstances and an understanding by the parents that [Ms GG] will not be providing the parents with any recommendation re: parenting arrangements, about the suitability or otherwise of supervised time or about the time spent by the children with the father. Her role would be as therapist to the children and creating a better psychological environment for them to discuss what was happening on their family.
It is unclear whether the children ever saw Ms GG.
The father initiated these proceedings on 8 March 2021. The father had stopped paying child support in accordance with the assessment.

On 25 March 2021, Ms GG advised the parties that individual therapy for the children was not appropriate and recommended family therapy.
On 21 April 2021 an ICL was appointed for the children and orders were made in the following terms:
6. After the parties have attended four sessions of family therapy in accordance with these Orders, the children spend time with the Father each alternate Sunday from 1pm to 4pm with such time to be supervised by [B Contact Centre] (“the supervisor”) who shall be requested to provide a written report to the parties in respect of each period of supervision, with the cost of such supervision and report to be paid for by the Father.
7. Changeover take place at the home of the Maternal Grandparents ([D Street, Suburb C]) when the children will be delivered into the care of the supervisor.
The father was ordered to have Carbohydrate Deficient Transferrin testing (“CDT testing”) not more than twice each month and to refrain from consuming alcohol before and during time with the children.
The father filed an application to review some of the orders made on 21 April 2021, including the requirement for supervision.
In relation to the requirement for CDT testing, the father, in his trial affidavit, deposed:
These orders were designed to coercively control me, which was the exact behavioural trait of the mother which led me to wish to separate. The orders were designed to reduce me into a criminal like alcoholic, dehumanise me and in their hope they produced a reason after the fact to justify the mothers [sic] unwillingness to facilitate time between a father and his two daughters.
Ms R was appointed to be the family therapist and the first appointment with Ms R was on 27 May 2021. Her notes record her impression that the father was desperate and missed the children while the mother saw no advantage to the children in a relationship with their father. She noted her goals to include psychoeducation about the children’s relationships with each parent and the impact of ongoing acrimony and conflict on the children. After four sessions, Ms R concluded:
The four sessions as ordered completed. Both parents attended. Attempts through therapy to focus on the children’s development and needs, impact on them of parental conflict, benefit to them of a relationship with [the father], preparation for the children reconnecting with [the father]. The parents are fixed in their views about the other. Very little change though the family therapy process. Impacted by their relationship, brittle, dislike each other greatly; both expressed grievance about harm done to the children by the other. Family therapy not indicated. Individual therapy on the issues is possibly appropriate. Turnover to the litigation process. Child Inclusive Conference may help progress the matter. Concerning allegations re pa and fv. Full expert assessment indicated if goes to trial. Possibly revisit in a parenting coordination/therapeutic hybrid role post Orders. Therapy at risk of reinforcing/replicating negative dynamics.
Plan; Communicate/provide information to ICL. No further attempts at therapy indicated now.
(As per the original)
Ms R wrote to the ICL in the following terms:
Providing you with an update in the above matter, each parent attended individual appointments on 4 occasions as per the Orders. Joint sessions were not considered viable. [X] and [Y] were not interviewed, there being no clear purpose, given the limited time frame and uncertainty about the prospects of further family therapy being of benefit. Therapy was concluded with each parent at the end of session 4. Ongoing therapy was not offered or considered likely to be of benefit at this stage.
The focus of the sessions was on child development, the children's emotional needs and the benefit to the children of positive relationships with each parent, reduction of stress and exposure to any parental acrimony on the children. There was an emphasis on each parent's preparation for the upcoming supervision of the children with [the father] this being reinforced as a priority given the Orders.
After a period of supervision, for example of around three months, it may be of assistance to the parents to revisit family therapy, possibly involving the children, towards positive directions in their relationship with their father.
Alternatively, a Child Inclusive Conference assessment/report by an independent practitioner may be of assistance, particularly in the context of ongoing Court proceedings.
It is not in dispute that the reports of the contact supervisors were entirely positive about the time the children spent with their father. While the children were being home schooled during the Covid-19 lockdowns, they had some electronic communication with the father using their school computers. The mother did not oppose this provided that it was not during school hours.
The father instructed new solicitors and, on 17 September 2021, the father’s solicitors wrote to the mother’s solicitors providing a copy of a CDT test report and asking what the mother’s proposal was in relation to ongoing contact arrangements, stating that the father did not believe that there was a need for ongoing supervision. The father’s solicitors also raised the issue of a single expert’s report.
The mother’s solicitors replied, inter alia:
Our client does, however, agree to the Children having additional facetime periods with your client outside of school hours, and will support and facilitate the Children contacting your client should they request to do so. Our client will also review her position in relation to supervision once a family report has been prepared.
The father’s application to review the orders made on 21 April 2021 was heard on 30 November 2021. Campton J ordered that supervision continue for four further periods of contact and that once the father produced three consecutive CDT tests showing a result less than 2.1 per cent, his time with the children would be unsupervised between 9.30 am and 5.00 pm on alternate Sundays. Specific orders were made for Christmas Eve. Mr J was appointed as single expert to prepare a report for the purpose of the hearing. Orders were made for the parents to attend mediation organised by the Legal Aid Commission.
The mother does not allege that the children have not enjoyed their time with their father. She concedes they have fun with him. She does not assert that any psychological harm has been caused to the children by spending unsupervised time with their father.
Mr J’s report was issued on 4 April 2022. The report is considered in detail later in these reasons. For present purposes it is sufficient to state that Mr J recommended that the children spend unsupervised weekend and holiday time with their father.
The father began an escalating campaign for time with the children in accordance with Mr J’s recommendation which the mother strongly resisted.
A dispute arose over whether the children could attend their cousin’s birthday party. They both agreed that the children should attend but they could not agree on the logistics. Whether they attended the party is not known.
On 30 May 2022 the father emailed a senior registrar, with copies to the mother’s solicitors and the ICL stating, inter alia:
What must I do to make it more of a priority. [I] haven't had dinner with my children in 3.5 years - if you don't see urgency it only reinforces my view that I need to handle this matter myself. It is at a stage where I am being forced to hold the children and allow the mother to submit a recovery application.
I hope that last sentence gets your urgent priorities in order.
The senior registrar’s associate responded, urging the father to seek legal advice.
The father wanted to take the children to visit their paternal grandmother in KK City in the July school holidays. The mother did not agree.
The father’s communications became increasingly angry and offensive towards the ICL and the mother’s solicitors.
On 18 June 2022, the father sent an email to the mother’s solicitors, MM Organisation, Senator LL, the ICL and the associate to Campton J stating, inter alia:
(Copied [Senator LL] and [MM Organisation]) Media will follow.
I have had enough of the tangled web of deception your firm propogates and the propensity for corruption of [barristers’ chambers] and Judicial officers.
It is concerning that a founding partner Of [barristers’ chambers] who when newly appointed to the bench was allocated my case within a week, following 6 months of refusal to allocate my matter at various mentions by [the Registrar].
(As per the original)
Campton J had been a member of the named chambers before his appointment.
In the email the father complained about his own counsel (also a member of the same chambers), and accused the mother’s solicitor of lying, stating, inter alia:
It is evident that on the 13th May 2021 [barrister’s chambers] negotiated an outcome without instruction of either party. It has failed because it's premise was built on a foundation of deception and dishonesty, failing the best interests of the children. The ICL was available and engaged in these secret discussions, despite an email the day earlier saying he was not available.
The mother involves the children with her constant restraint. They are aware and their awareness will only increase as they grow older. The Single Expert Family Report is being ignored by you all by failing to list my matter yet again. Put the children first now! A district court judgment has been ignored and in part manipulated by Justice Campton (founding member of [barristers’ chambers]).
…
It really is a disgrace when a Senior Judicial Registrar feels compelled in her orders of the 8th April 2022 (13 months from my first notice of harm to children) and following provision of a single expert family report to invite the parties to re-list their matter and to order Family Dispute Resolution when all previous court ordered family therapy or otherwise failed. The audacity to invite a re-listing of a matter as if families have money to burn into the hands of incompetent legal practitioners and judicial officers is a stark message to me that I cannot rely on our legal system.
…
Dear [Senator LL] - I am aware of your views on this area of law and I believe my matter has solid grounds to highlight the issue with family law is not a lack of resources, it is the trickery and willingness to abuse court process by practitioners and judicial officers which is the very core of the problem. This view is limited to the sydney accredited family law circuit where they are far too friendly with each other.
I would be willing to have my voice heard with yourself and the Attorney General to prevent today's children becoming the next stolen generation and continued victims of the Australian legal System.
I shall be engaging a PR agent and media to ensure the corrruption ends and practitioners face the full consequence of the law.
(As per the original)
On 17 June 2022, the mother’s solicitor wrote to the father advising that the mother did not agree with his proposal for school holiday time with the children.
On 1 July 2022, the father wrote to the mother’s solicitors, I infer in relation to his request for holiday time with the children:
It was not a request. Court process has been abused long enough.
The mother has not given any evidence to support her views. The mother lacks mental capacity to know what is in their interests.
Conversely I have told you and the courts the heightened issue of long term effects to my children. You all ignored them and so I have no choice but to ignore Justice Campton who quite frankly played games to protect his own chamber members who acted without instruction and have been caught out.
On 1 July 2022, the father sent an email to a number of recipients including the mother’s solicitors, his own solicitors, the ICL, the associate to Campton J and the Office of the Legal Services Commissioner headed “Children to stay at my house from Sunday 2^nd July for 7 nights – non negotiable”. He stated, inter alia:
Justice Campton did not provide your client with sole parental responsibility. I have an equal say in what is in their interests. My view is balanced, your clients is demonstrative of a self serving mother who can't put the childrens [sic] needs and desires first. I am concerned for the long term damage. [Y] is already insecure, anxious and terrified of upsetting her mother. That is an awful way for a child to be.
…
It is this simple, I believe the childrens interest are best served to spend this week of their holidays with me. So this is what will be happening and if this requires you to send the police and traumatise my children further, then that would be unnecessary, traumatic and abusive of the mother yet again.
The police already know what [the mother] is doing. It's written in the subpoena material.
Justice Campton clearly stated he would like to hear the girls views yet they have been heard and ignored. The single expert has shared the views of the children, the children have shared them with me. You all ignore it and abuse court process with pointless FDR wasting further years of my relationship with two daughters.
Please advise your client to pack bags for the children for the week. They are coming home. I expect the children at the designated venue and the designated time. I warn your client against abusing the children further. The courts might tolerate it, I won't.
(As per the original)
The mother’s solicitor responded:
We remind you that Orders made by Justice Campton on 30 November 2021 provide for the Children to spend time with you each alternate Sunday from 9.30am to 5.00pm ("the current interim Orders").
Our client does not agree to the Children spending time with you for one week of the school holiday period because she does not consider it to be in their best interests at this time.
We are therefore instructed to confirm that our client will facilitate the Children's time with you on Sunday in accordance with the current interim Orders, and she will attend changeover at 5pm on Sunday to collect the Children.
(As per the original)
The mother delivered the children to the father in accordance with the orders. He did not return them.
On 3 July 2022, the father sent an email to the mother’s solicitor, the ICL and the associate to Campton J headed “Section 70NAE – Family Law Act 1975”. Section 70NAE deals with the circumstances wherein a person may be taken to have had a reasonable excuse to contravene an order. The father stated:
It is my intention to breach the orders today by not returning the children. I have had the regrettable position of weighing up what I hope is a short term impact vs long term benefits of my actions of the childrens wellbeing.
I hope this is only necessary for a short period and the mother can consent to share time arrangements as previously requested by me and recommended by [Mr J]. Preferably before 5pm today and failing that by tomorrow.
I have elected to do this in the holidays to minimise the impact for the children and hope this is a clear message to the mother that there are laws to protect children. I am relying on Section 70NAE of the Family Law Act 1975 and believe I have more than reasonable grounds to contravene an unnecessary and temporary order.
(As per the original)
The father was clearly aware that his actions were in breach of court orders, a fact he acknowledged in cross-examination where is said that, on balance he was satisfied with the outcome of his actions because he was able to spend holiday time with the children.
The mother texted the father asking him to return the children. He responded “Call your solicitor”.
During the time that the father retained the children, the mother provided the details of a party to which one of them had been invited and she also arranged for asthma medication to be delivered to the father’s home so that one of the children could continue to take the medication. The father sent photographs of the children engaged in activities to the mother but did not arrange for them to speak to her. The father deposed:
This period demonstrated that the mother has the capability to co-parent as she dropped off medicine, provided details for the birthday party for the children to attend. To the children, with an external perspective, it looked like things were returning to a level of normalcy, they appeared content.
The mother filed a recovery application which was heard by Schonell J on 11 July 2022. The transcript of those proceedings was in evidence. Pressed by his Honour to say when he proposed to return the children, the father initially responded, “Look, my ideal position would be the mother needs psychotherapy”. Eventually, his answer was, “When we have an agreement on orders, whether they be by consent, that respect the children’. Schonell J ordered that a Recovery Order issue and lie in the registry to give the father an opportunity to return the children without police involvement. He did so.
The mother does not allege that there were any adverse effects on the children from spending time with their father or that they made any complaints about that time.
Since the children were returned to their mother, the unsupervised contact with their father has continued.
THE EVIDENCE OF MR J
Mr J conducted interviews in March 2022 and his report is dated 4 April 2022.
In his report, Mr J summarised the parameters of the dispute between the parents.
The father’s version is that the mother:
5.…is insightless as to her contribution to the problems in the relationship, that she is aggressive, belittling, negative, condescending and engages in a mirroring of allegations such that that about which she accuses him is the behaviour displayed by her, and that her behaviour places the girls at risk of parental alienation.
The mother’s version is that the father:
6.…physically assaulted her in [late] 2018, that he has a history of problems with alcohol consumption, emotional and behavioural dysregulation, and that he is unable to elevate the needs of those around him ahead of his own. [Ms Blatch] refers to family violence, gas lighting, emotional abuse and physical intimidation all having continued in the post separation period. She has been anxious about the impact of his behaviour upon the girls, and the risks to which they may be exposed as a consequence; she has been frustrated by the interference created by [Mr Blatch] in so far as her efforts to obtain psychological assistance for the children.
Each parent complained to Mr J about the damage that the other continues to do to the children and he described their conflict as “highly polarised and unresolved”. He stated:
7.Their presentation suggests that their dispute falls well within the realms of what is described as high post separation conflict, and I note that with the passage of time, and notwithstanding all that has transpired, including various hearings in different Courts, the involvement of Police and therapeutic endeavours, that they remain fixed and their concerns pertaining to the other parent remain unwavering.
(As per the original)
Mr J observed:
8.It is however particularly noteworthy that notwithstanding the concerns, the history, the conflict, the litigation, and the continuing allegations and counter allegations, that what is conspicuous by its absence is any real concern regarding the behaviour of the children, notwithstanding that both parents harbour a construction of concern that reflects their concern for what they believe to be the risks to the children, predominantly as a consequence of the behaviour of the other parent. Both rely in part on emotional facts, that is, they elevate their beliefs about what has occurred, and their belief about the level of influence by the other parent upon the children to a level of fact, when the objective consideration of the girls and their behaviour suggests that they are doing considerably better than might otherwise be anticipated.

Mr J was provided with the reports of the supervised contact and observed that they were all “unequivocally positive” as to the interaction between the children and the father and that the supervisors noted that the children wanted more time with the father.
He was also provided with a copy of the judgment of the District Court in relation to the criminal charges and noted that the judge found that it was highly unlikely that the father could have acted as the mother alleged, given that he had a broken ankle at the time. He further noted that the presiding judge accepted that the father had acted in self-defence.
As to the children’s perception of the situation between their parents, Mr J stated:
21.… my assessment of the children clearly communicated a sense on their behalf that they were acutely aware of the unspoken and continuing tensions that exist between their parents, that the middle ground of their parents’ conflict is uneasy and causes to them anxiety, that they understand an unspoken expectation on the part of both parents for loyalty and messages of restraint, amidst each parent’s negativity and percolating hostility that continues to underpin this dispute.
Mr J commented that whatever may have been the mother’s experience of the father, it does not necessarily follow that this is also the children’s experience of him.
Mr J recorded that the mother told him that, despite past history and her complaints about the father’s behaviour towards her, she wants the girls to have a good relationship with their father. She conceded that the children had coped well with the time they spent with him.
After recording in detail the complaints that each parent made to him about the other, Mr J stated:
54.As is so common in high conflict families, [the father] described a mirroring of allegations, that is, that [the mother’s] portrayal of him was exactly how he portrayed her and her intent.
Mr J observed the children in the father’s home and reported:
45.I had the opportunity to observe [the father] and the children at his home as part of this assessment. Upon greeting their father, the girls were buoyant, enthusiastic and engaged with him in an extremely excited and enthusiastic manner. They easily separated from their mother and transitioned comfortably and confidently into the care of their father. Whilst they were subsequently joined by [Ms DD] and her daughter, prior to their arrival, both girls clambered for their father's attention, very actively pursued conversation and discussion, enthusiastically sought his physical attention and affection, and excitedly and confidently physically embraced him. Both of the girls were heard to tell their father that they loved him, that it was good to see him, as they actively vied for the opportunity to share with him their experiences of the week past, and to discuss with him what they wanted to do. Both embraced him confidently, easily and effortlessly. The description of the girls’ interaction with their father provided by [the father] was what I observed. They reacted with similar excitement and enthusiasm when [Ms DD] arrived and interacted easily and confidently both with her and with [JJ], even though this at times was frenetic with excitement.
Under the heading “Children’s Interviews”, Mr J stated:
62.Given the level of hostility conveyed by both [the parents], and the antipathy felt by both in relation to the other, and especially so given the context of blame and counter blame for the level of dysfunction and disturbance in their relationship, it is remarkable that [X] and [Y] presented in such an unremarkable manner.
64.… [X] and [Y] presented well. In many ways, the most conspicuous feature of both girls’ presentation was that their parents’ conflict and the origins of that conflict, were embedded in the distant past, the aetiology of which was lost to them.
X told Mr J that her parents were not friends; that they fought and she told them to stop but they kept fighting and that “her parents used to fight about what the truth was, but she could remember none of it”. X said that her mother in particular holds disdain for her father; that she does not like looking at him; will not talk to him and is obviously uncomfortable in his presence. Mr J recorded:
67.[X] told me that she was not really sure how she felt, did not really know who to believe, was unsure which of her parents she should trust, and she had simply come to a point of acceptance within the family that things were as they were. She was however clear that she wanted to see more of her father, to be able to sleep over at his home and to spend holiday time with him.
X said that she has come to accept the separation as normal but:
66.… she wished to be allowed a more unrestricted relationship with her father, to be able to see him and his family, and to be able to spend more time uninterrupted with him. She spoke about how difficult it was for her to have such restricted contact with him, how she could not understand why she could only see him at sporting events, and how strangely, it felt unusual when she started to see him more frequently, albeit that she enjoyed the reintroduction.
X said that she did not think her mother really wanted her to see her father or have holiday time with him. Nevertheless, Mr J reported:
68.Specifically, she told me that she would like to spend holidays with her father, that she would like to be able to sleep over at his home, that there was nothing about the time spent with him that frightened or worried her, that she trusted him, and that she felt safe with him. [X] told me that whilst she wished that her parents could be more friendly, that she has become used to their lack of communication, that she accepts that their conflict is just part of who they are, that she does not worry much about them, that their relationship does not weigh upon her, and that she considers herself to have a good relationship with both parents and was looking forward to being allowed a more unrestricted relationship with her father. [X] told me that she understands that her mother is worried about her and scared about her spending time with her father, but from [X's] perspective, these concerns are unfounded. She described her father as kind, loving, fun, that she is happy when with him, and that she was sure that he could look after her. [X] also told me that there was little about family life that she could remember, and that while she recalled that her parents had conflict, she could not recall the details and this most certainly did not worry her in the present.
Y’s conversation with Mr J was in similar terms to X’s. She told him that her family was in conflict; that her parents didn’t get on; that they were constantly “mad at each other”; were not friends and did not talk to each other. Y said this leaves her feeling sad and that it caused her and X not to see her father for a long time which was difficult for her.
Mr J reported:
71.[Y] told me that she does not understand why her parents cannot be friendly, why they cannot talk with each other, or why they cannot agree on what is best for her and [X]. She opined that it would be good for her if they did not constantly avoid each other but that she has accepted that this is how it would be. [Y] clearly indicated that should [sic] like to spend more time with her father, including overnight and holiday time.
Mr J concluded:
81.[Both parents] present compelling, believable, even internally coherent accounts of what transpired in their relationship, culminating in the separation. They very obviously present conflicting narratives…
86.Significantly, neither parent believes there will be resolution to their dispute, both expect that the matter will go to final hearing and the trial judge will need to make decisions on their behalf, and in this regard, they remain fixed and polarised in their stance and position in relation to each other.
He stated:
87.[The parents] present with all the most obvious features of a high conflict dispute; most notable is the mirroring of allegations. They accuse each other of almost exactly the same shortcomings and behaviour. This type of symmetrical escalation of conflict is common in these fixed disputes and are typically underpinned by significant personality difficulties or vulnerabilities in one or other parent. Characteristic of these disputes is an external locus of control, that is, a justification of their behaviour based on the perceived behaviour of others, and a shifting sand of conflict such that every issue is in dispute. There is inevitably a splitting process such that those involved in the dispute become very quickly defined as either being in full support or not of one parent's position, and so, those who become involved in the dispute are very clearly defined as being all good, or all bad. There is typically little in the way of ambivalence, conflict escalates symmetrically as does blame encounter blame; it is not uncommon for children to be caught very much in the dispute amidst conflicting loyalties, and a state of dissonance as they try to sort each parent’s version of the truth and to determine which parent to believe.
88.In the midst of such competing narratives, there is a testable fact pattern that cannot be ignored. As this matter has progressed through the court process, a determination has been made that quashed the Conviction and the Intervention Order, and in this regard, the findings are in favour of [the father]. Notwithstanding that [the mother] feels that a profound misjustice has been carried, the facts as they are portrayed and the decisions made as a consequence of those facts are unwavering. It is also an immutable fact that notwithstanding the many contacts with Police, that no offence has been recorded against [the father] The supervision reports indicate that the children have related extremely warmly, very well, with enthusiasm and excitement in relation to their father, that they have shown no resistance and no reluctance, and this concurs with my own direct observation of the children in the company of their father.
He said that the children do not want to be burdened with their parents’ conflict and don’t understand their parents’ ill feelings towards each other. The children’s recollections of the events of December 2018 likely:
89.…reflect a combination of recollection, reconstruction, confabulation, parental influence, and be infusive of what they have been told and what they have gleaned from the adults around them.
Mr J stated:
90.The presentation of both girls was in my view conspicuous by virtue of how little relevance those events contributed to their current presentation. The indications are that they are presenting well, they do not present with any overt symptoms of anxiety, there is nothing about their behaviour to suggest that they are psychologically distressed or disturbed, and any residual effects as a consequence of either parent's behaviour, or indeed of the events of [late] 2018, need to be factored against the enduring and ongoing effect of having parents in such conflict, who do not communicate and who convey such hostility.
Mr J said that the children are confused by the enduring conflict between the parents but have “come to accept the inevitability and inescapability of their parents’ positions upon them”.
Mr J had a warning for both parents.
91.I would also strongly suggest that [the parents] have some control over their future actions and the choices they make in relation to each other, as compared to an over reliance on matters historical about which they have no control. Put differently, it is more likely that the choices made by [the parents] moving forward will impact upon the children significantly and proportionally more than what from the children's perspective is reflective of the distant past about which they have only clouded and hazy memory. Their parents’ relationship and what this means about them, including difficulties with transitions and what must be for the children an untenable emotional middle ground between their parents, is far more likely to correlate in the long- term with ongoing and significant problems.
Later in the report he pleaded:
I implore [the parents] to reflect upon the steps they can undertake now to have a very significant, positive and protective impact on their children, and conversely, the extent to which the choices they make moving forward can amplify the risks for the children very significantly.
Mr J very strongly recommended that the children spend time with their father with changeovers at school and that the parent with whom they are not living stay away from school and sporting activities during those periods.
He suggested that they spend four or five nights each fortnight with him and that they spend half of their holidays with him.
Mr J concluded:
I would also like to draw to the Courts attention not only the children's enthusiasm to spend time with their father but that the social science findings of children's parents who separate, and whose fathers live away from home, but whose fathers are actively involved in around their children school lives, have children who do significantly better socially, emotionally and behaviourally and that this is especially so for girls.
Mr J’s oral evidence in cross-examination was confirmatory of his report.
He maintained his recommendation that the children spend time with their father both during school terms and for half of the holidays. He did not support the mother’s primary position that the children spend no time with him and he did not support her alternate position that they spend day only, supervised time with him. He similarly did not support the father’s position that there should be equal time or equal shared parental responsibility.
In relation to the proposition that there be equal time, Mr J said:
… the social science says that children whose parents share their care and maintain high levels of conflict and share their care equally tend to do worse than any other group because they’re constantly embroiled in the midst of that. I think you reap what you sow. And it is difficult for me to imagine how an equal care arrangement could work for this family. I mean, it might. Can I just point out: you can cut an apple in half, your Honour. That doesn’t mean you’re sharing it. It means you’ve got half an apple. And, by analogy, I’m concerned about the impact on the apple. These children are already living very split and very divided lives. I think we probably have to embrace the reality of what we’ve got.
In answer to questions from counsel for the ICL, and having been informed of the father’s retention of the children in July 2022, Mr J said:
…it’s hard to see how on the basis of the information available to me at this stage, unless new information has emerged, that the children are at such a risk with their father to warrant no time with him, and especially given that they want to see him, they love him, they relate warmly and well with him. The problems between the parents, again as I think I allude to in my report, I think are intractable and I think will continue well after our involvement with this family.
Mr J said:
But if all of us is comprised literally of half our mum and half our dad, having a sense of integration and having a relationship with both one’s parents and one’s extended family and the social capital that comes with is associated with really significant long-term benefits and, you know, is associated with protective considerations in the aftermath of separation. Having a sense of your parents and – I mean, I don’t mean to be trite and I don’t mean to be disrespectful to anyone, but we’re all stuck with our parents. Part of the challenge is to come to terms with who our parents are, their strengths and their weaknesses and have the best relationship we can with them. Splitting them off and rejecting them is a different way of having a relationship with them, but it’s not a good way to have a relationship with them. I think it’s far better to resolve the relationships and to have the best relationship they can with each of them in the context of their family circumstances.
Mr J was strongly critical of the father’s behaviour in retaining the children in July but said that it was not appropriate to punish the children for the father’s wrongdoing. He said:
[The father’s] choice of options is spectacularly unimpressive, yes? There’s nothing – no amount of spin is going to distract from what a tremendously poor judgment he exercised, okay? And if anything, it lends considerable support to the characterisation of him by [the mother]; that is, that he’s single-minded, thinks only of himself, doesn’t imagine or reflect upon the impact of his actions on others. So in that regard, it’s quite helpful in terms of creating some clarity about what to expect. I don’t think there’s any hope of a shared care arrangement for these people. Do I think that that should – should he be punished for his actions? Possibly. The question is who gets punished more as a consequence of the choices made by him? [The father] or the girls? So if as a consequence of his actions the girls have no relationship with him for the next foreseeable number of years, then I think that’s a bad outcome for the girls. Does that mean that his behaviour is any less deserving of condemnation? No, it doesn’t. I mean, it’s incredibly poor choice and extraordinarily bad judgment…
He confirmed that the children relate warmly and well to their father and that they want a relationship with him and for him to be involved in their lives. He said:
This comes from a really interesting study from the Department of Statistics in the United States, your Honour. They looked at some tens of thousands of children, and they looked at it from not a social science but a purely statistical perspective and what happened to these children, and they simply found that children whose parents separated, who had both of their parents more actively involved in their lives, had children who did significantly better, and in the case of fathers, the girls did better if their fathers were involved around their school lives. I guess, by implication, …, the opposite is true, that if they’re not involved – of course, there are variables about the nature of the relationship, their father’s construction, the conflict, all of those things, but as a general finding, it – I don’t think it’s rocket science. If you’ve got your mum and dad constructively involved in your life, it’s more likely you will do well.
Mr J said that, because of the intractable nature of the conflict between the parents, it is necessary for the time that the children spend with their father to be non-negotiable and for the orders to be incapable of variation. He said:
That is, that there’s no overlap, there’s no quid pro quo, there’s no make-up time, there’s no sharing of – of dates that, when the child is in the care of one parent, that child – the other parent effectively quarantines themselves. They don’t have input. Their advice, their requests, their involvement is not sought. The children are, in fact, siloed. And they live in two homes and the overlap is kept to an absolute minimum. There are clear boundaries. There are clear directions. There are – there is a calendar of dates and times. There is no ambiguity, there’s no negotiation, there’s no changing of dates. You can ask but there’s no quid pro quo. It really is living your life like parallel train tracks; going in the same direction but having no contact with each other.
CONSIDERATION
The Act mandates that I consider the benefit to the children of having a meaningful relationship with their father and that I also consider, and give priority to, the need to protect the children from physical or psychological harm and from being subjected or exposed to abuse, neglect or family violence.

The mother’s case is that the children have suffered harm as a result of being exposed to family violence and that they risk being exposed to violence in the care of their father. I do not accept those propositions.
Mr J stated in his report:
Based on this assessment and based on the reports of the children's behaviour, it is difficult to conclude that the children have experienced psychological harm as a consequence of their father's behaviour, or treatment of them. Even the earlier assessments and reports by [Ms AA] do not in and of themselves identify the children as being symptomatic or having psychological problems. However, there should be no confusing the risk factors for the children of later psychological harm depending on the decisions made by their parents.
([Ms AA] was a therapist to whom the mother took the children without the father’s knowledge).
I accept the evidence of Mr J that the harm which has been caused to these children, and the risk of further harm, stems from the intractable and unabated conflict between their parents.
Unfortunately, since neither appears to have heeded Mr J’s very clear warnings about the effect of the parents’ behaviour upon their children and the possibility of further psychological damage to the children if they do not take steps to remediate their respective attitudes to one another and their method of relating to one another, I am unable to make any orders which will effect those necessary attitudinal changes.
I have every confidence that these parents will continue to behave as they have in the past, heedless or regardless of the consequences for their children.
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The children’s views are clearly stated. They want to spend more time with their father including overnight time and holiday time.
They are 12 and 10 years old and they understand that their mother does not support their wishes.
Their views need to be given considerable weight.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Mr J stated:
[X] and [Y] are very obviously primarily attached to their mother, whom they perceive to be the source of their primary dependency needs being met. However, notwithstanding the fractured nature of their relationship with their father, both their individual presentation, and my observation of them in the company of their father conveyed an obvious affection, comfort and importantly a wish to be with and spend more time with him.
Mr J said that both children spoke positively about their maternal grandparents with whom they have lived for the past three years.
He also said:
My observations of the children in the company of [Ms DD] and her daughter [JJ] were also very positive; they engaged easily and comfortably with [Ms DD], greeted her warmly and with affection, and both girls interacted spontaneously and enthusiastically with [JJ].
They have had very minimal contact with their extended paternal family since the parents separated.
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)        to participate in making decisions about major long term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)      to communicate with the child;
The father has not been afforded any opportunity to participate in decision making and very limited opportunity to spend time with the children.
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother is rightly critical of the father’s failure to provide for the maintenance of the children.
He has failed or refused to pay child support as assessed and he has failed or refused to contribute to their school fees, despite the fact that the children were enrolled in the current school with his agreement.
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Mr J reported:
The only change contemplated is an introduction of regular time for the children with their father. There is no suggestion that there should be a change in living arrangements. Both girls indicated enthusiasm to spend time with their father, including overnight time, are looking forward to spending holiday time, and to enjoy the benefits that living with their father might provide to them. No doubt they would be aware of their mother's concerns, and I think it extremely likely that despite what the Court decides and what Orders are implemented, that these concerns will continue unabated. My expectation is that there will be no significant negative impact as a consequence of an Order providing for the children to spend time with their father, both during the school week and during school holidays.
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs; and the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents are capable and well-resourced and can provide for the children’s schooling, intellectual and physical needs.
I accept Mr J’s evidence that:
Children who are embroiled in conflict, their parents’ separation, and who are continuously exposed to conflicting views of parental reality, are at significantly high risk of having problems of anxiety and depression, drug and alcohol use, and having trouble sustaining satisfactory intimate relationships. The overwhelming finding is that regardless of how the children present, the impact of parental conflict and family discord has a sleeper effect that manifests later in children's lives.
Each of the parents fails to take responsibility for his or her contribution to risks that the children face as a result of the parents’ continuing conflict.
The father at least acknowledged that the mother is a good parent with the exception of her staunch opposition to his having a relationship with the children.
I do not accept the father’s evidence that, by co-operating with him in July 2022 to ensure that the children’s needs were met, the mother demonstrated that they can parent together. Rather, I characterise the mother’s actions as evidencing that she was capable of ensuring that the children’s needs were met in a situation which was beyond her control.
The mother, although asked on a number of occasions what benefits the father might bring to the children if he were able to have a relationship with him, could only say that they had fun with him. She was unable either to comprehend or acknowledge that the children might benefit from the qualities they see in their father.
any family violence involving the child or a member of the child’s family;
I have dealt at length with the issue of family violence earlier in these reasons.
There is no evidence that the father has ever been violent towards the children and, as I have stated, the mother has not established that there was any incident of violence between them before 2 December 2018, at a time when they had separated and were still living in the same house. They both bear some responsibility for that event although the mother does not accept this to be so.
I accept the evidence of Mr J that the wishes of these children are to spend time with their father and to have a real and meaningful relationship with him and that therefore the orders will provide for them to spend fortnightly block periods with their father and half of all school holiday periods.
I also accept that it is necessary for the interaction between the parents to be minimised to the greatest possible extent and that the orders must be such that no negotiation or agreement is required for them to work effectively.
I accept the evidence of Mr J that an equal time arrangement will not be appropriate.
I accept the evidence of Mr J that, for the children, whether the arrangement is for five nights each fortnight or four, and whether there is a night with the father in the off week, is of no significance and the scheme of the orders will provide for the children to spend a block period of four nights with the father each fortnight and half of each school holiday period. Having regard to the nature of the children’s relationship with their father as described by Mr J, I see no necessity for the arrangements to be graduated or phased in.
PARENTAL RESPONSIBILITY
I also accept the evidence of Mr J that equal shared parental responsibility is not an option for these parents.
The presumption in favour of equal shared parental responsibility is rebutted by the incident of violence in late 2018 and I am unable to find that it is otherwise in the children’s best interests to make such an order.
The parents have had no communication, other than through third parties, since the date of the incident in late 2018.
I have no confidence at all that these parents are capable of reaching any decision in relation to their children, however minor. The father’s method of problem solving, by bullying and aggression, and his disregard for court orders, was amply demonstrated by his actions in July 2022 when he retained the children. The mother is no more conciliatory as she has demonstrated in her stanch refusal to allow the father to spend time with the children and her entirely unreasonable insistence on retaining Ms AA as a therapist.
The children will spend the majority of their time with their mother and she will have sole parental responsibility.
That authority is, of course, limited to the matters specifically defined in the Act as:
"major long-term issues", in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)       the child's education (both current and future); and
(b)      the child's religious and cultural upbringing; and
(c)       the child's health; and
(d)      the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
PARENTING CO-ORDINATOR OR S 65L ORDER
Mr J strongly recommended that consideration be given to making an order pursuant to s 65L of the Act, which provides for the parenting orders to be supervised by a family consultant, (now a court child expert) or appointing a parenting co-ordinator.
Neither party appeared to favour that proposal and no submissions were addressed to it.
There is no evidence that there is any present capacity for supervision pursuant to s 65L in the Sydney Registry.
In the event that the parents agree that it would be of assistance to have a parenting co-ordinator, and that they agree on who that person should be and how he or she should be paid, I am happy to make consent orders in chambers to that effect without further evidence.
PROPERTY
The husband seeks an equal division of the available assets such that he would retain the property at L Street, Suburb K (“Suburb K property”).
The wife seeks 65 per cent of the available property. Further, she seeks payment of arrears of child support calculated to be $31,114.92 as at 26 July 2022; payment of the sum of $20,000 ordered to be paid to her by the husband by way of costs; an order that, by way of child support, the father pay half of the children’s private school fees and lump sum child support in the sum of $186,238.
The husband and the wife commenced their co-habitation in 2003 and married in 2005.
At the commencement of their co-habitation, the husband had savings of about $20,000, a car and superannuation of about $40,000. He was earning either $80,000 per annum or, as the wife asserts, $70,000.
The wife had a car which she sold for $5,000, some superannuation of unknown value and she was earning $55,000 per annum.
The wife resumed work after X was born and, after Y was born, worked three days each week.
In 2006 they bought a property at Z Street, Suburb W using their accumulated savings and a mortgage. The wife asserts that her parents gave them $7,000 towards the purchase. The husband’s evidence is that they received $7,000 as a First Home Owners’ Grant. It is more likely than not that the $7,000 was the First Home Owners’ Grant.
Later in 2006, the wife’s parents gave them $50,000.
In February 2009, the husband and his business partner incorporated M Pty Ltd (“M Pty Ltd”) as a vehicle to conduct financial business. In about July 2009, the husband incorporated N Pty Ltd to be the trustee of the CC Trust (“the Family Trust”) and transferred his shares in M Pty Ltd to the trustee. The husband controls the trustee and thus the Family Trust.
And in 2017, the Blatch Self-Managed Superannuation Fund (“the Blatch Self-Managed Superannuation Fund”) was established. The husband is the only member of the Blatch Self-Managed Superannuation Fund. He is also the only director of the trustee company.
In 2013 they sold the Z Street property and purchased the property at Suburb K which was their home until they separated.
In 2017 the children started school at U School. In order to lessen his tax obligations, the husband made notional distributions from the Family Trust to the wife’s parents and to the wife, with their consent.
In October 2018, they borrowed against the Suburb K property for renovations. The renovations were not done.
The wife asserts that on 23 November 2018 the husband withdrew $80,000 of joint funds.
The wife left the home with the children in late 2018 after an incident between the husband and the wife that evening which has been discussed earlier in these reasons. Thereafter the wife and the children lived with her parents and the husband remained in the jointly owned home.
After separation, both the wife and her parents withdrew their consents to receive distributions from the Family Trust.
The wife asserts that the husband failed to pay child support as assessed and that he failed to pay the mortgage payments on the joint mortgage loans while he continued to live in the Suburb K property.
Since separation, the wife has paid almost all of the children’s school fees. The husband paid half of X’s fees in 2019. The wife has paid the balance. As at July 2022, the wife has paid $163,206.
The husband stopped paying child support in March 2021.
On 30 November 2021, the husband was ordered to pay arrears of child support to the wife in the sum of $36,743.54. That amount represented arrears accrued to 1 November 2021. That amount was paid by the husband by drawing from the mortgage facility and it is agreed that there was consequently a partial property settlement to the husband of that amount.
Each withdrew $100,000 from the home loan account in July 2022.
The parties were asked to draw a list of the issues to be determined and those issues are agreed to be:
·The husband’s withdrawal of $80,000 in November 2018 – how should it be treated?
·The significance of distributions to the wife and her parents from the Family Trust – was the husband’s ability to pay child support thus impaired?
·Did the husband comply with orders relating to mortgage payments?
·The consequences of the wife’s having paid the majority of the children’s school fees.
·What is the husband’s real income and earning capacity?
·Whether there should be an order for lump sum child support?
·Has either party failed to make full and frank disclosure?
The husband's withdrawal of $80,000 from the mortgage loan in November 2018 - how should it be treated?
It is not disputed that the husband made the withdrawal.
In cross-examination, the wife conceded that the husband had deposited $80,000 into the mortgage account from his personal account and that later he transferred the funds back to his personal account. She said that he frequently moved funds between accounts.
The evidence does not establish that he later removed the funds from his personal account so that they have not been accounted for.
These funds will not be added back.
The significance of distributions to the wife and her parents from the Family Trust - was the husband's ability to pay child support thus impaired?
There was no obligation upon either the wife’s parents or the wife to allow the husband to use the device of notional distributions to them from the Family Trust to lessen his tax liability. The notional distributions (it is not in dispute that the husband kept the money) would have had the result of potentially increasing the tax liability of the recipients with no ascertainable benefit to any of them.
This transaction will be given no further consideration.
Did the husband comply with orders relating to mortgage payments?
Order 21 made on 30 November 2021 provided:
Pending further order, the father be responsible for and pay all outstanding instalments of principal and interest due on any mortgage or loan facility secured upon the [Suburb K Property], all rates, taxes and other outgoings in respect of the property and all comprehensive insurance premiums in respect of the property as and when they fall due, and in the event any such payments are in arrears for a period greater than three (3) months, the parties shall forthwith do all such things as are necessary to list the [Suburb K Property] for sale on the terms identified in Order 19 above, such auction sale to occur within six (6) weeks of the event of default pursuant to this Order, and the balance of proceeds of such sale be applied in the following priority identified in Order 20 hereof.
The husband paid the instalments on the first registered mortgage, albeit that he negotiated with the mortgagee to make the payments on an interest only basis from late 2020.
He did not meet the periodic payments on the second mortgage but allowed those payments to be deducted from the re-draw facility.
The consequences of the wife's having paid the majority of the children's school fees.
The husband did not make any contribution to the children’s school fees after 2019. The wife’s unchallenged evidence is that she has paid $163,206 in school fees.
Both parents signed the enrolment documents for the children to attend the school and it was their choice that the children attend the school while they were together.
The wife’s payment of school fees is a contribution for the purpose of s 79(4) of the Act.
What is the husband’s real income or earning capacity?
In the financial year ended 30 June 2020, the husband’s tax return discloses a taxable income of $363,896.
In the year ended 30 June 2021, his taxable income was $316,207.
In the Financial Statement sworn 1 August 2022, the husband disclosed an income salary of $3,340 per week or $173,680 per annum. In Part D of the Financial Statement, he declared that he had received no income from M Pty Ltd. In cross-examination, the husband conceded that he had, in fact, received funds from M Pty Ltd and that his income for the financial year ended 30 June 2022 would be about $267,333 or $5,135 per week.
Has either party failed to make full and frank disclosure?

No submissions were addressed by either party to this issue.
I accept that the husband was tardy in his disclosure and that a deal of material had to be chased up by those acting for the wife. Ultimately, however, such material as did exist was provided.
CHILD SUPPORT APPLICATIONS
The wife seeks relief pursuant to the provisions of the child support legislation in three separate applications:
Firstly, she seeks to enforce payment of the arrears currently owing in the sum of $31,114.92 as at 26 July 2022, pursuant to s 113A of the Child Support (Registration and Collection) Act 1988 (Cth).
Secondly, she seeks an order pursuant to s 123(1)(b) and s 123A of the Child Support Assessment Act 1989 (Cth) (“the Assessment Act”) that child support be paid in a lump sum.
Thirdly, she seeks an order pursuant to s 123(1)(a) of the Assessment Act that the father pay half of the children’s school tuition fees as they fall due.
Arrears of $31,114.92
Although the husband did not consent to the payment of those arrears, he did not dispute the quantum or the fact that they are owed, other than to say that he had, unsuccessfully, made an application for certain payments to be treated as non-agency payments of child support.
This is the second time the wife has been obliged to seek payment of arrears. On 30 November 2021, Campton J ordered the husband to pay arrears then owing of $36,743.54. In his reasons, Campton J set out the legislative framework applicable to that application and the basis upon which the wife was entitled to seek payment of the arrears. I respectfully adopt his Honour’s formulation which applies equally to the present application in finding that the wife has standing to seek payment of the arrears.
The husband put forward no proposal to pay the amount owed and no reasonable basis upon which the arrears should not be enforced as the wife seeks.
The orders will provide that the lump sum arrears will be paid from the husband’s share of the sale of the Suburb K property or added to the amount that is to be paid to the wife in the event that the husband retains the property.
Lump sum child support
The husband has not paid child support in accordance with the assessment since March 2021.
Although it is submitted on his behalf that he will pay voluntarily henceforth, he gave no evidence to that effect and I have no reason to believe that his future behaviour will be any different from his past behaviour.
The wife has been forced to enforce the assessment on two occasions. She should not be required to do so again.
There was no challenge by the husband to the wife’s calculations of the amount to be paid.
I am satisfied that it is just and equitable and otherwise proper to make the order sought by the wife and that the amount to be paid equals or exceeds the annual rate of child support payable for the children pursuant to the assessment.
The husband will pay lump sum child support in the sum of $186,238.
Tuition fees
Section 123(1)(a) of the Assessment Act authorises the payment of child support otherwise than in the form of a periodic payment.
It is not in dispute that the parents both signed the applicable documents to enrol the children in their current school and that they both intended, during the marriage, for the children to attend that school. X has attended since she was in Year 3 and Y’s enrolment was completed in November 2018, shortly before the parents separated. The documents signed by both the husband and the wife included an agreement to pay Y’s fees. Y has attended since the beginning of 2019.
It was only after the parents separated that the father wrote to the school stating that he did not intend to continue to pay the school fees.
I do not accept that the husband is unable to make a contribution to the school fees. He is currently in receipt of some $5,135 per week and, according to his Financial Statement sworn 1 August 2022, he has expenses of $3,808. (Part E expenses, not including child support are $3,003 and Part N expenses are $805).
I am satisfied that it is just and equitable and otherwise proper to make the order sought by the wife.
SECTION 79(2)
Both parties ask the Court to make an adjustment of their jointly owned assets. They have separated and can no longer jointly enjoy the benefits. It is just and equitable to make an adjustment.
THE BALANCE SHEET
The parties tendered a joint balance sheet which is reproduced below. I have made some adjustments to the document because of concessions or agreements made in the course of the trial. I will deal with the disputes arising on the balance sheet using the item numbers on the document.

Ownership Description Applicants value Respondents value

ASSETS

1 Joint L Street, Suburb K ("Suburb K property") 3,200,000 3,200,000

2 Joint Household Contents 10,000 20,000

3 Wife NAB Classic Banking Account #…32 (as at 28 July 2022) 41,262

4 Wife NAB Smart Reward Saver Account #…03 (as at 28 July 2022) 155,419

5 Husband Interest in M Pty Ltd Nil NK

6 Husband Westpac Choice Account #...71 11,844 11,542

7 Husband Motor Vehicle 1 99,000 140,000

8 Husband Motor Vehicle 3 9,890 12,000

9 Husband CC Trust Nil NK

10

Total $    3,330,734 $           3,580,223 + NK

ADDBACKS

11 Husband Child support arrears enforced per Orders dated 30 November 2021 36,744 36,744

12 Husband Monies withdrawn from Westpac Account #…30 at separation 80,000

13 Husband Monies withdrawn from Westpac Account #…30 on 11 July 2022 100,000 100,000

14 Wife Partial property settlement pursuant to Orders made on 30 November 2021 less money currently held in Wife's bank account (approximately $50,000) 200,000 150,000

15 Wife Monies withdrawn from Westpac Account #…30 on 12 July 2022 100,000 Nil

Total $           436,744 $           366,744

LIABILITIES

16 Joint Westpac Home Loan #…87 (Wife’s figure as at 13 July 2022, Husband’s figure as of 1 Aug 2022) 1,009,896 998,485

17 Joint Westpac account #…30 (Wife’s figure as at 28 July 2022, Husband’s figure as of 1 Aug 2022) 443,104 443,460

18 Wife Unpaid income tax 3,778

19 Wife Monies owed to parents for legal fees 110,128

20 Husband Westpac Card #…27 14,850 12,170

21 Husband Motor Vehicle 1 Car Finance 115,000 NK

22 Husband Income tax owed 77,622 Nil

23 Husband Loan owing to M Pty Ltd 407,000 Nil

24 Husband O Company Account Nil NK

Total $           2,067,472 $           1,568,021 + NK

SUPERANNUATION

Member Name of Fund Type of Interest Applicants value Respondents value

25 Wife V Super Fund Accumulation 249,652 249,652

26 Husband Blatch Superfund Self Managed 390,966 390,966

27

28

Total $           604,402 $           249,652 + NK

FINANCIAL RESOURCES

Ownership Description Applicants value Respondents value

29

30

31

32

Total $              0 $              0

NET TOTAL ASSETS (including Superannuation) $           2,289,998 $           2,627,079 + NK
Item 2 – household contents

Ownership	Description	Applicants value	Respondents value
1	Joint	L Street, Suburb K ("Suburb K property")	3,200,000	3,200,000
2	Joint	Household Contents	10,000	20,000
3	Wife	NAB Classic Banking Account #…32 (as at 28 July 2022)	41,262
4	Wife	NAB Smart Reward Saver Account #…03 (as at 28 July 2022)	155,419
5	Husband	Interest in M Pty Ltd	Nil	NK
6	Husband	Westpac Choice Account #...71	11,844	11,542
7	Husband	Motor Vehicle 1	99,000	140,000
8	Husband	Motor Vehicle 3	9,890	12,000
9	Husband	CC Trust	Nil	NK
10
Total	$ 3,330,734	$ 3,580,223 + NK

ADDBACKS
11	Husband	Child support arrears enforced per Orders dated 30 November 2021	36,744	36,744
12	Husband	Monies withdrawn from Westpac Account #…30 at separation	80,000
13	Husband	Monies withdrawn from Westpac Account #…30 on 11 July 2022	100,000	100,000
14	Wife	Partial property settlement pursuant to Orders made on 30 November 2021 less money currently held in Wife's bank account (approximately $50,000)	200,000	150,000
15	Wife	Monies withdrawn from Westpac Account #…30 on 12 July 2022	100,000	Nil
Total	$ 436,744	$ 366,744

LIABILITIES
16	Joint	Westpac Home Loan #…87 (Wife’s figure as at 13 July 2022, Husband’s figure as of 1 Aug 2022)	1,009,896	998,485
17	Joint	Westpac account #…30 (Wife’s figure as at 28 July 2022, Husband’s figure as of 1 Aug 2022)	443,104	443,460
18	Wife	Unpaid income tax	3,778
19	Wife	Monies owed to parents for legal fees	110,128
20	Husband	Westpac Card #…27	14,850	12,170
21	Husband	Motor Vehicle 1 Car Finance	115,000	NK
22	Husband	Income tax owed	77,622	Nil
23	Husband	Loan owing to M Pty Ltd	407,000	Nil
24	Husband	O Company Account	Nil	NK
Total	$ 2,067,472	$ 1,568,021 + NK

SUPERANNUATION
25	Wife	V Super Fund	Accumulation	249,652	249,652
26	Husband	Blatch Superfund	Self Managed	390,966	390,966
27
28
Total	$ 604,402	$ 249,652 + NK

FINANCIAL RESOURCES
29
30
31
32
Total	$ 0	$ 0

There is no evidence of the value of these items. No submissions have been addressed to the discrepancy in the parties’ respective estimates or to what I should do about them. Neither party seeks any orders specifically addressed to household items. I will remove the item from the balance sheet and order that the items be sold and the proceeds divided equally between them. The parties can, of course, come to some other agreement.
Item 3 – wife’s bank account
The wife gave evidence that this is the account into which her salary is paid and the funds represent her post separation income and savings. The item will remain in the balance sheet.
Item 4 – wife’s bank account
The wife gave evidence that these funds are the remainder of the $200,000 she received by way of interim property settlement and the sum of $100,000 that she withdrew from the mortgage account in July 2022. Since those funds are accounted for in the agreed add-backs this item will be removed from the balance sheet.
Item 5 – husband’s shares in M Pty Ltd
There is no evidence that the shares have any value. This item will be removed from the balance sheet.
Item 9 – value of the Family Trust
There is no evidence that the Family Trust has any value or any assets other than that the husband’s income from M Pty Ltd is paid into the trust and then distributed. This item will be removed from the balance sheet.
Item 12 - $80,000 withdrawn by husband
For the reasons given earlier in these reasons, this item will be removed from the balance sheet.
Item 13 – $100,000 withdrawn by husband in July 2022
Each of the husband and the wife has agreed that the most effective way to deal with funds withdrawn or advanced to each of them is to add them back to the pool of assets. There are sufficient funds in the pool that this will not produce an artificial result.
The husband withdrew these funds to pay legal fees and agrees that it be added back.
Item 14 - wife’s partial property settlement
The wife received $200,000 by way of partial property settlement and the mortgage was consequently increased to fund that payment. The amount of $200,000 will be added to the balance sheet.
Item 15 - $100,000 withdrawn by wife in July 2022
The wife withdrew those funds and agreed that they should be added back.
Item 18 - wife’s unpaid tax
There is no evidence that the tax liability accrued during co-habitation and thus no evidence that this is a joint liability.
This item will be removed from the balance sheet.
Item 19 – wife’s debt for legal fees
The money used by each party for the payment of legal fees will be removed from the balance sheet. Each is entitled to spend any amount he or she chooses on legal fees but not to visit the consequences of those decisions on the other party. This debt will be removed from the balance sheet.
Items 20 – husband’s credit card debts
There is no evidence that the credit card liabilities accrued during co-habitation and that they are consequently a debt referable to the expenses of the family. These liabilities will be removed from the balance sheet.
Item 22 – husband’s tax debt
There is no evidence that the tax liability accrued during co-habitation and thus no evidence that this is a joint liability.
This item will be removed from the balance sheet.
Item 23 – husband’s debt to M Pty Ltd
There is no evidence of this asserted debt other than a document produced by the husband entitled “Balance Sheet Comparison as at 30 June 2022” which he described as “management accounts”. The husband said in oral evidence that the document had not been audited and did not constitute the statutory financial accounts of the company.
There is no evidence that the asserted debt will ever be called to be repaid.
The husband in his affidavit deposed:
Each fortnight the business draws money and distributes to myself and my co-director. These amounts are simply loans.
These loans remain until the directors resolve at each financial year how much to wage expense of the drawings and how much to leave in loans.
In cross-examination, the husband said that the directors had not yet decided how to treat the money that had been advanced and that “some of it might be expensed as drawings”.
The husband conceded that the directors have a number of options available:
·To treat the whole amount as wages.
·To declare a dividend for some or all of the amount.
·To treat the whole amount as a loan.
The onus is upon the husband to prove that the money is owed and must be repaid. He has not discharged that onus.
This item will be removed from the balance sheet.
Item 24 – husband’s O Company account
There is no evidence that any debt is payable. This item will be removed from the balance sheet.
I therefore find that the assets and liabilities of the parties, for the purpose of these proceedings are:

Assets Value

Joint 29 L Street, Suburb K ("Suburb K property") 3,200,000

Wife NAB Classic Banking Account #…32 (as at 28 July 2022) 41,262

Husband Westpac Choice Account #…71 8,459

Husband Motor Vehicle 1 99,000

Husband Motor Vehicle 3 9,890

Total $3,358,611

Add backs Value

Husband Child support arrears enforced per Orders dated 30 November 2021 36,744

Husband Monies withdrawn from Westpac Account #…30 on 11 July 2022 100,000

Wife Partial property settlement pursuant to Orders made on 30 November 2021 less money currently held in Wife's bank account (approximately $50,000) 200,000

Wife Monies withdrawn from Westpac Account #…30 on 12 July 2022 100,000

Total $436,744

Liabilities Value

Joint Westpac Home Loan #…87 996,758

Joint Westpac account #…30 443,104

Husband Motor Vehicle 1 Car Finance 109,178

Total $1,549,040

Superannuation

Member Name of Fund Type of Interest Value

Wife V Super Fund Accumulation 249,652

Husband Blatch Superfund Self-Managed 390,966

Assets	Value
Joint	29 L Street, Suburb K ("Suburb K property")	3,200,000
Wife	NAB Classic Banking Account #…32 (as at 28 July 2022)	41,262
Husband	Westpac Choice Account #…71	8,459
Husband	Motor Vehicle 1	99,000
Husband	Motor Vehicle 3	9,890
Total	$3,358,611

Superannuation
Wife	V Super Fund	Accumulation	249,652
Husband	Blatch Superfund	Self-Managed	390,966

The parties have assets (including add backs) of $3,795,355 and liabilities of $1,549,040 leaving net assets of $2,246,315.
Excluding the Suburb K property and its mortgages, the wife has (net) assets (including funds added back) of $341,262. The husband has net assets (including funds added back) of $144,915.
CONTRIBUTION
Each had modest assets at the commencement of their co-habitation. The only significant third party contribution during their relationship was the gift of $50,000 to the wife.
After separation, the wife has been almost solely responsible for the financial support of the children but, with the exception of the amount she has spent on school fees, she will be reimbursed for the husband’s share of those expenses by the payment of the two amounts of arrears of child support.
It is a fact that the wife has been the sole carer for the children since separation but it has been her choice to exclude the husband from that role and I do not propose to make any adjustment on that basis.
The wife’s contributions of some $213,000 require an adjustment in her favour and I assess contributions to favour the wife as to 55 per cent and the husband as to 45 percent which is a differential of ten per cent.
SECTION 75(2) ADJUSTMENT
The husband’s earning capacity exceeds that of the wife and he has more superannuation than she does.
The wife will have the responsibility for the day to day support of the children but she will have the benefit of the entirety of the husband’s contribution to child support having been paid in advance.
The disparity in income warrants a small adjustment in the wife’s favour of 5 per cent.
CONCLUSION
The wife will receive 60 per cent of the net assets together with the arrears of child support and the lump sum child support. She will also be paid the two outstanding amounts ordered to be paid by the husband to her by way of costs on 30 November 2021 and 10 August 2022.
The husband wishes to retain the Suburb K property and the wife is content that he be given the opportunity to do so.
The wife is entitled to receive $1,347,789. She already has net assets of $341,262 so the husband must pay her $1,006,527 plus the additional sums referred to above.
If he is unable to do so, then the proceeds of sale of the Suburb K property will be paid so that the wife receives an overall adjustment of 60 per cent of the assets. In order to achieve that result, the wife has net assets of $341,262 and the husband of $144,915, a total of $486,177. The wife is entitled to 60 per cent of their net assets or $291,706. Thus she must make an allowance to the husband of $49,556 and then receive 60 per cent of the net proceeds of sale of the Suburb K property and the amounts I have ordered to be paid by way of child support and costs.
APPOINTMENT OF TRUSTEE FOR SALE
In the event that the husband is unable to retain the Suburb K property, the wife seeks to be appointed as trustee for sale, relying on the husband’s history of non-compliance with court orders and their complete inability to act co-operatively since they separated.
No submissions were directed to this application but I assume that it is opposed by the husband.
I am satisfied that there is no possibility that the husband and the wife can act co-operatively in relation to the marketing and sale of the property. It is in both of their interests that the property be sold for the highest possible amount but it is in the interests of the husband, who is in occupation, to delay and obfuscate.
In those circumstances, I am satisfied that it is appropriate for the wife to be appointed as trustee for sale and for the husband to vacate the property to allow her to market and sell it.

I certify that the preceding two hundred and eighty-six (286) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.
Associate:
Dated: 31 August 2022

File number(s):	SYC 1613 of 2021
Judgment of:	REES J
Date of judgment:	31 August 2022
Catchwords:	FAMILY LAW – PARENTING – Application by the father for equal shared parental responsibility – The mother seeks sole parental responsibility and that the father spend no time with the children – Where the children’s views are to be given weight – Where the parents present with all the features of a high conflict dispute – The father poses no physical risk of harm to the children – Orders made for the children to live with the mother and spend time with the father FAMILY LAW – PROPERTY – The wife seeks 65 per cent of the net assets by way of property distribution –Where the wife has paid for majority of the children’s private school fees – Where the husband is in arrears of child support – Orders made pursuant to s 123(1)(b) and s 123A of the Child Support Assessment Act 1989 (Cth) for the husband to pay child support by way of lump sum – Orders made for the husband to pay half of the children’s school fees – Orders made for the wife to receive 60 per cent of the net assets – Orders made appointing the wife as the trustee for sale of the matrimonial property in the event that the husband is unable to retain the property
Legislation:	Child Support Assessment Act 1989 (Cth) s 123(1)(a), s 123(1)(b) and s 123A Child Support (Registration and Collection) Act 1989 (Cth) s 113A Family Law Act 1975 (Cth) s 65L, s 69ZX(3), s 75(2), s 79(2) and s 79(4)
Division:	Division 1 First Instance
Number of paragraphs:	286
Date of hearing:	17, 18, 19 & 22 August 2022
Place:	Sydney
Counsel for the Applicant:	Mr Blackah
Solicitor for the Applicant:	Justice Family Lawyers Sydney
Counsel for the Respondent:	Mr Othen
Solicitor for the Respondent:	Lander & Rogers
Counsel for the Independent Children's Lawyer:	Mr Jackson
Independent Children's Lawyer:	Brian Samuel & Associates
Table of Corrections
14 December 2023	In paragraph 33(d) of the orders reference to number “24” has been corrected to show number “30”.

SYC 1613 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BLATCH Applicant
AND:	MS BLATCH Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	REES J
DATE OF ORDER:	31 AUGUST 2022

SUPERANNUATION
Member		Name of Fund		Type of Interest	Applicants value	Respondents value
25	Wife	V Super Fund		Accumulation	249,652	249,652
26	Husband	Blatch Superfund		Self Managed	390,966	390,966
27
28
Total		$ 604,402	$ 249,652 + NK

Add backs		Value
Husband	Child support arrears enforced per Orders dated 30 November 2021	36,744
Husband	Monies withdrawn from Westpac Account #…30 on 11 July 2022	100,000
Wife	Partial property settlement pursuant to Orders made on 30 November 2021 less money currently held in Wife's bank account (approximately $50,000)	200,000
Wife	Monies withdrawn from Westpac Account #…30 on 12 July 2022	100,000
Total	$436,744