Bretz & Jankowska
[2024] FedCFamC1F 579
•3 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bretz & Jankowska [2024] FedCFamC1F 579
File number(s): SYC 451 of 2019 Judgment of: CURRAN J Date of judgment: 3 September 2024 Catchwords: FAMILY LAW – PROPERTY – Where the parties were married for seven years – Where the husband had superior initial contributions – Where the parties made equal contributions during the relationship – Where the wife made superior contributions post-separation – Where the husband intentionally concealed assets – Consideration of Weir and Weir (1993) FLC 92-338 and Black and Kellner (1992) FLC 92-287 – Where the wife seeks an adjustment pursuant to Kennon & Kennon (1997) FLC 92-757 – Where the husband’s conduct was found to have made the wife’s contributions more arduous – Two pools approach – Adjustment of property – Where a just and equitable outcome is that sale proceeds be divided as between the parties – Where 15 per cent adjustment made in favour of the wife – Where not just and equitable to adjust the superannuation interests of the parties.
FAMILY LAW – PARENTING – Where the mother alleges the father poses an unacceptable risk of harm to the children’s safety – Consideration of meaning of safety – Where the father poses an unacceptable risk of harm due to his mental health – Where there are allegations of family violence – Where the father poses an unacceptable risk of physical harm to the children – Where orders for the mother to hold sole parental responsibility made by consent – Whether the father should spend supervised time with the children – Where orders made for the father to spend only supervised time with the children – Long term supervision orders made
Legislation: Acts Interpretation Act 1901 (Cth) s 15AA
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61CA, 61D, 64B, 75, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04
Mental Health Act 2007 (NSW) Sch 20
United Nations Convention on the Rights of the Child (1989) Art 19
Cases cited: AJO & GRO (2005) FLC 93-218
Amalgamated Wireless (Australasia) Ltd v Philpott (1961) 110 CLR 617
Baini v R (2012) 246 CLR 469
Benson & Drury [2020] FamCAFC 303
Black and Kellner (1992) FLC 92-287
Briese and Briese (1986) FLC 91-713
Britt & Britt (2017) FLC 93-764
Candle & Falkner (2021) FLC 94-069
Corporate Affairs Commission NSW v Yulli (1991) 172 CLR 319
C & C (2005) FLC 93-220
Eastley & Eastley [2022] FedCFamC1A 101
G and G (1984) FLC 91-582
Garrod & Davenport [2018] FamCA 825
Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006
Isles & Nelissen (2022) FLC 94-092
Jones v Dunkel (1959) 101 CLR 298
Kannis & Kannis [2002] FamCA 1150
Keating & Keating (2019) FLC 93-894
Kennon v Kennon (1997) FLC 92 -757
Kowaliw and Kowaliw (1981) FLC 91-092
Lainhart & Ellinson [2023] FedCFamC1A 200
M & M [1998] FamCA 42
Maine v Maine (2016) 56 Fam LR 500
Murray & Murray (2020) FLC 94-000
NHC & RCH (2004) FLC 93-204
Norbis & Norbis (1986) 161 CLR 513
Prince and Prince (1984) FLC 91-501
Stanford v Stanford (2012) 247 CLR 108
Sweet & Sweet [2022] FedCFamC2F 676
Townsend and Townsend (1995) FLC 92-569
Trevi & Trevi (2018) FLC 93-858
Vass v Vass (2015) 53 Fam LR 373
Weir and Weir (1993) FLC 92-338
Y & Y [2004] FamCA 799
Division: Division 1 First Instance Number of paragraphs: 384 Date of hearing: 7-14 May 2024 Place: Sydney Counsel for the Applicant: Mr Othen Solicitor for the Applicant: Gayle Meredith & Associates Counsel for the Respondent: Ms Mooney SC Solicitor for the Respondent: Pearson Emerson Family Lawyers Counsel for the Independent Children's Lawyer: Mr Cook Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 451 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRETZ
Applicant
AND: MR JANKOWSKA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
3 SEPTEMBER 2024
THE COURT ORDERS THAT:
PROPERTY
1.The net proceeds of sale held in the controlled monies account of Gayle Meredith & Associates Solicitors for the sale of D Street, Suburb E, shall be distributed 65 per cent to the applicant and 35 per cent to the respondent within 7 days of receipt if they are yet to be received, and otherwise within 7 days of the date of these orders.
2.Within 7 days of the date of these orders the proceeds of sale of B Street, Suburb C held in the controlled monies account of Gayle Meredith & Associates Solicitors shall be distributed 65 per cent to the applicant and 35 per cent to the respondent.
3.Within 7 days of the date of these orders the respondent do all acts and execute all documents necessary to cause Motor Vehicle 1 to be transferred to the applicant free from encumbrances.
4.That within 14 days of the date of these orders:
(a)The applicant do all acts and execute all documents to resign as a director and/or other officeholder of G Pty Ltd and F Pty Ltd and to transfer to the respondent the shares owned by her in each of those companies;
(b)The respondent and the applicant do all acts and execute all documents necessary to cause H Pty Ltd and the J Family Trust (“the Trust”) to transfer to the applicant or as she may direct in writing 100% of the shares in L Pty Ltd owned by the company on behalf of the Trust free of encumbrances;
(c)The applicant do all necessary to assign to the respondent any loan documents in her name either solely or jointly in the J Family Trust, G Pty Ltd and F Pty Ltd;
(d)Upon compliance with order 4 the applicant shall resign as an officeholder in H Pty Ltd.
5.The respondent is restrained by injunction from taking possession of any property and assets of H Pty Ltd and J Family Trust in accordance with the terms of the Loan Agreement dated 9 January 2021 between F Pty Ltd and H Pty Ltd or any other agreement, on behalf of himself, the said companies, K Ltd and any other company or entity in his name, ownership, possession or control.
6.The respondent shall indemnify and keep indemnified the applicant in relation to all liabilities, claims, and demands of whatsoever nature and kind of the J Family Trust and H Pty Ltd, G Pty Ltd, K Ltd, and F Pty Ltd, or any claim against the applicant by any other third party (or in respect of) which the husband or an affiliate (as defined in s 328 of the Income Tax Assessment Act 1997 (Cth)) has control (within the meaning of s 50AA of the Corporations Act 2001 (Cth)).
7.The respondent be restrained by way of injunction both now and in the future from making any claim or demand as a potential discretionary object of the M Trust and the Bretz Family Trust.
8.Within 14 days of the date of these orders the applicant advise the respondent a date and time when she will collect from his possession:
(a)Mirror from dining room belonging to the applicant’s brother;
(b)Mirror from study being gift to applicant from late grandmother;
(c)Carved wooden item;
(d)Table, glass and lamps all in living room at separation; and
(e)Christmas tree.
PARENTING
Parental responsibility
9.The applicant shall have sole parental responsibility and sole decision making authority in respect of all decisions concerning major long term issues as defined in section 4(1) of the Family Law Act 1975 (Cth) effecting the children, X, born 2014, and Y, born 2016 (“the children”), except in respect of the children’s names.
10.The applicant shall notify the respondent of such decisions she makes as to major long term issues defined in section 4(1) of the Family Law Act 1975 (Cth) within 7 days of doing so.
11.The applicant may not change the children’s names without the respondent’s written consent.
Live with
12.The children shall live with the applicant.
Spend time with
13.The children will supervised spend time with the respondent under the supervision of his mother, Ms N (conditional on Ms N providing an undertaking to the Court as set out in Notation A) at any times agreed between the parties in writing, and failing agreement as follows:
(a)Each alternate Friday from after school until the commencement of the first of the extracurricular activities of the children the following day, being Saturday; and
(b)Each alternate Wednesday from after school and until the commencement of school the following day, being Thursday;
(c)During the Term 1, Term 2, and Term 3 school holidays from 3.00pm on Friday until 3.00pm on Monday in the middle weekend of the holidays;
(d)During the long Term 4 school holidays each alternate weekend from 3.00pm on Friday until 3.00pm on Monday;
(e)On Father's day from 5.30pm on the Saturday immediately preceding Father's day until the commencement of school on the Monday immediately following Father's Day; and
(i)Any time the respondent was scheduled to have with the children from 5.30pm on the Saturday preceding Mother's day until the commencement of School on the Monday immediately following Mother's day is suspended.
14.In the event Ms N is, for whatever reason, not able to supervise the respondent's time with the children:
(a)The parties will agree upon a professional supervision service to be used and in the event they cannot agree the respondent will nominate three professional supervision services within 7 days of a request to do so, the applicant will select one and advise of the supervision service to be used within a further 7 days and the parties will forthwith do all things necessary to register with the selected professional supervision service; and
(b)Upon acceptance into the professional supervision service the children spend time with the respondent on a supervised basis from after school until 7.00pm on each alternate Friday and from after school until 7.00pm on each alternate Wednesday thereafter, with all associated costs for such supervision to be met by the respondent.
15.The respondent is permitted to attend the children's extracurricular activities provided that the applicant is also in attendance.
Changeover
16.For the purpose of parenting changeovers unless otherwise agreed between the parties in writing through the 2Houses Application:
(a)On school days, each parent pick up and drop off the children at the school attended by the children at the commencement and conclusion of the children's time with each parent;
(b)When handover takes place at sporting or other extra-curricular activities pursuant to order 13(a) each parent shall pick up and drop off the children at the first of those events to occur;
(c)When orders 16(a) and (b) (above) do not apply, all changeovers take place at the carpark of McDonalds Suburb O adjacent to the entrance of the store.
Communication
17.If the children are not otherwise spending time with the respondent, the applicant shall make the children available to communicate with the respondent by electronic means each Wednesday night between the hours of 6.00pm and 6.30pm, and at all other times that they reasonably request.
Restraints
18.Each party be restrained from video recording the other party and their family members during parenting changeovers.
19.Both parties are restrained from:
(a)Using physical force upon either of the children or physically disciplining the children;
(b)Denigrating the other party or members of the other party's family to the children or either of them or in their presence; and
(c)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings or matters relating to them, with or in the presence or hearing of the children and from permitting any other person to do so.
Information sharing
20.These orders act as authority for:
(a)The principal and staff of the school that the children may attend from time to time to supply to the respondent all school reports, school photographs, school counsellor's notes, memos, school newsletters, access to all school apps and any other information in relation to the children that the respondent may request from the school;
(b)All medical practitioners that the children may attend from time to time to communicate with and provide the respondent with copies of all documents that he may request from time to time at the respondent's sole expense.
(c)The parties to provide a copy of these orders to the children's school and medical practitioners and the receipt by the school or medical practitioner of these orders is sufficient to provide the applicant's authority pursuant to order 20(a) and (b) above.
21.Each parent shall keep the other informed of their residential address and telephone number at all times and notify the other in the event of any changes.
22.Each parent shall notify the other as soon as practical of any serious injury, illness, or emergency suffered by either of the children whilst they are in the care of that parent.
23.The parties shall keep the other informed of the names and contact details of all medical practitioners that the children attend from time to time and when in their care.
24.Each party shall provide the other with no less than 7 days written notice of their intention to live with any third party/ies including details with respect to the other person including children (if any) that will be living in the same household when the children are in his/her care.
The respondent’s treatment
25.For a period of no less than 12 months the respondent attend upon a treating psychiatrist (“the treating psychiatrist”), the frequency of his attendance to be determined by the treating psychiatrist.
26.Either party is at liberty to provide the respondent’s treating psychiatrist, treating psychologist, and his GP Dr P with a copy of the Reports of Dr Q dated 22 September 2020 and 10 April 2024, a copy of the Judgment for final orders, and a copy of these Orders.
27.The Independent Children’s Lawyer is authorised to provide a copy of the Judgment for final orders to Dr Q.
Overseas travel
28.Pursuant to section 65Y of the Family Law Act 1975 (Cth) the applicant shall be permitted to take the children on holidays to a place outside of the Commonwealth of Australia for one (1) period of up to fourteen (14) consecutive days in each calendar year when the children are in her care during the school holiday periods pursuant to these orders or at other times as agreed in writing, provided that the applicant provide to the respondent:
(a)No less than 90 days written notice of her intention to travel overseas with the children;
(b)A detailed itinerary in relation to the proposed travel no later than 28 days before the proposed departure date for travel, which will include details of the airline, flight, cruise ship and dates of travel;
(c)The address(es) of the accommodation where the children will be staying while overseas;
And at the conclusion of the travel overseas that the applicant shall return to Australia with the children
29.If the applicant travels overseas with the children pursuant to order 28 herein during times the children are otherwise in the care of the respondent, that the children spend make up time with the respondent for a period equivalent to the number of nights the children are otherwise in the respondent’s care in accordance with these orders but for the proposed travel, with such make up time to be supervised by the paternal grandmother and as agreed between the parties in writing, and failing agreement the make-up time take place during the next school holiday period.
Passports
30.The applicant is permitted to apply for an Australian Passport for each of the children X born 2014 and Y born 2016, and the respondent’s consent is not required.
31.The applicant shall retain the children’s passports at all times.
COSTS
32.Within 28 days of the date of these orders, the parties shall file and serve any application for costs along with written submissions in relation to the quantum and type of costs order that is appropriate.
33.Each party shall pay to NSW Legal Aid the sum of $8,511.25 less any amount already paid, in respect of the ICL’s costs within 28 days of the date of these orders or such other time as arranged with NSW Legal Aid.
THE COURT NOTES THAT:
A.The terms of the undertaking for Ms N’s supervision of the children is as follows:
I, Ms N, of R Street, Suburb S NSW, hereby undertake to the Court and to the parties:
i.on all occasions the children and X and/or Y are spending time with Mr Jankowska, I will supervise that time;
ii.In undertaking this supervision, I confirm I will:
1.Be in the same residence as the children whilst they are spending time with Mr Jankowska; and
2.In the event the children and Mr Jankowska attend any other location other than their residence, I will be present with them at those locations.
iii.For the purpose of Clause 2 above, the "residence" shall include any garden attached to the property.
iv.In the event I observe any conduct on Mr Jankowska’s part or hear anything said by Mr Jankowska that I believe puts the children at any risk physically, emotionally or psychologically, I will immediately make arrangements with Ms Bretz to return the children to her care.
B.It is understood that Dr T and Dr Q will confer in relation to the respondent's treatment.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Bretz & Jankowska has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
INTRODUCTION
These are competing property and parenting proceedings between the wife, Ms Bretz, and the husband, Mr Jankowska. There are two children subject of these proceedings, being X born 2014 aged 10 (“X”), and Y born 2016 aged 8 (“Y”) collectively referred to as “the children.”
The parties had competing property applications where the husband sought 70 per cent of the pool and the wife sought 60 per cent. For the reasons set out herein, significantly arising due to the husband’s dishonest conduct and substantial non-disclosure which has caused an inability to be satisfied as to the actual assets and liabilities of the parties, I have made orders largely as sought by the wife. The reasons are set out in the judgement.
In respect of the competing parenting orders, I have made orders for the husband to have ongoing supervised time with the children. The reasons are set out in the judgement.
ORDERS SOUGHT
Interim parenting orders were made by the Court on 24 June 2019 following interim hearing, for the children to spend five nights per fortnight with the husband, being each alternate weekend from after school Friday until before school on Monday and each Wednesday overnight.
The day prior to the final hearing, the wife filed an amended minute seeking orders that the time the children spend with the husband was reduced and supervised. She said this was after reading the material produced by Dr T, the husband’s psychiatrist and U Hospital, causing her to contend that the husband’s mental health was unstable and this posed a risk to the children in his care unless that time was reduced and supervised.
The amendments sought were that the husband have supervised time (supervised by his mother) until 12 months of treatment with his psychiatrist before moving to an alternate weekend and school holiday regime, provided the treating psychiatrist has provided a report confirming the husband’s compliance with treatment recommendations.
At the conclusion of the trial the orders sought by the wife were that the husband’s time be reduced such that he spend supervised time with the children each alternate Friday from after school until the commencement of sport or other extracurricular activity on Saturday morning, supervised by his mother. Her amended minute also provided for the children to have communication with the husband each Wednesday between 6.00pm and 6.30pm.
Initially the husband sought that he and the wife have equal shared parental responsibility for the children, and that the children spend time with each parent on a week about basis. However, by the conclusion of the trial the husband sought orders seeking that the children live with the wife, that she have sole decision-making responsibility, that he spend supervised time with them each Friday afternoon until the commencement of the children’s activities the following day for a period of three months. Following that three month period, and contingent on the husband’s compliance and engagement with mental health practitioners, he sought that his time increases to alternate weekends from Friday until Monday and in the alternate week from after school until 8.00pm on Wednesday. He sought orders to spend time with the children for half the school holidays, after the initial 3 month period of supervision.
In relation to the property proceedings the wife initially sought orders that would result in a property division of 40 per cent to the husband and 60 per cent to the wife, that there be a superannuation splitting order in favour of the husband, Motor Vehicle 1 be transferred to her, that she transfer her shares in G Pty Ltd and F Pty Ltd to the husband, that the wife be transferred 60 per cent of shares in L Pty Ltd, that the husband indemnify the wife from any liabilities of the J Family Trust and H Pty Ltd, and that the husband be restrained from making any claim against the M Trust and the Bretz Family Trust. The wife also sought orders that allow her to collect specific chattels from the former matrimonial home.
By the conclusion of the hearing and after hearing all of the evidence, the wife’s amended minute sought orders in relation to property that; the sale proceeds of the Suburb E property be distributed after the payment of associated costs, 35 per cent to the husband and 65 per cent to the wife; that she wife be transferred 100 per cent of shares in L Pty Ltd free from encumbrances, that she assign any loans in her name in J Family Trust, G Pty Ltd and F Pty Ltd to the husband, that she resign from H Pty Ltd, that the husband be restrained from taking possession of any property and assets of H Pty Ltd and J Family Trust, and that the wife be entitled to all monies held in the controlled monies account of Gayle Meredith & Associates. The wife no longer sought a superannuation splitting order. She sought that the husband pay her costs.
In relation to the property proceedings the husband sought orders for the Suburb E property to be sold and the proceeds distributed 70 per cent to him and 30 per cent to the wife, a superannuation splitting order in his favour in the amount of 70 per cent, that all the assets of the parties various trusts and companies be distributed to the parties 70 per cent to the husband and 30 per cent to the wife and that they are both to share equally in the costs of winding up the entities the J Family Trust and G Pty Ltd. The husband sought costs.
At the conclusion of the hearing and after hearing all of the evidence the husband sought that the Suburb E property be sold and that the proceeds of sale be distributed 55 per cent to him and 45 per cent to the wife, that the Westpac account and controlled monies account be closed and distributed in the same proportions, a superannuation splitting order in his favour in the amount of 55 per cent, that the parties wind up G Pty Ltd and the J Family Trust, sharing in the costs of doing so and distributing the property 55 per cent to the husband and 45 per cent to the wife, as well as various indemnities.
Orders were made on 15 May 2024 for the sale of the Suburb E property, and for the husband’s time with the children to be varied such that he spends supervised time with the children each Friday from after school until the commencement of extracurricular activities the following day, supervised by the paternal grandmother.
MATERIAL RELIED UPON
The wife relied upon:
(a)Her Amended Initiating Application filed 7 February 2024;
(b)Her trial affidavit and exhibits filed 2 April 2024;
(c)Her financial statement filed 2 April 2024;
(d)Affidavit of Ms V filed 2 April 2024; and
(e)Report of Dr Q filed 10 April 2024.
The husband relied upon:
(a)His Further Amended Response filed 2 April 2024;
(b)His financial statement filed 2 April 2024;
(c)His trial affidavit filed 2 April 2024;
(d)Affidavit of Ms N filed 2 April 2024;
(e)Affidavit of Dr T filed 19 April 2024;
(f)Report of Dr Q filed 28 September 2020; and
(g)Updated Report of Dr Q filed 10 April 2024.
The Independent Children’s Lawyer (“ICL”) relied upon:
(a)Report of Dr Q filed 28 September 2020; and
(b)Updated Report of Dr Q filed 10 April 2024.
THE LAW
Property adjustment
The parties’ competing property applications are to be determined in accordance with the provisions of Part VIII of the Family Law Act 1975 (Cth) (“the Act”). The High Court considered the approach to be adopted in the determination of proceedings pursuant to s 79 of the Act in the decision of Stanford v Stanford (2012) 247 CLR 108 (“Stanford”). Section 79(2) of the Act provides that a court should not make an order for property settlement unless it is satisfied that it is just and equitable to do so.
No submission was made in relation to the ratio arising from the decision of Stanford, and both parties contended it was just and equitable to alter their financial interests. Orders altering the property interests of the parties may only be made if the court is satisfied it is just and equitable to make such orders pursuant to s 79(2). The parties’ financial interests remain entangled and the most significant asset of the parties that was able to be identified was the former matrimonial home. Making an order altering their interests is a necessity.
The approach to be adopted in a financial adjustment case pursuant to s 79 of the Act is to follow the four-step process.
It is necessary to first identify the legal and equitable interests of the husband and the wife, consider what (if any) liabilities each of them has, and consider any superannuation and financial resources in the names of the husband, the wife, or either of them, at the date of the hearing.
It is necessary to then assess the contributions of the parties and determine a contributions‑based entitlement having regard to the matters set out in s 79(4) of the Act insofar as they are relevant to the facts in this case. The assessment of contributions is usually approached in a holistic fashion.
The third step is to identify and consider relevant matters under s 75(2) of the Act to determine such adjustment as is necessary to the contributions-based entitlement.
The final step requires the Court to consider the effect of the findings and determine whether the orders are just and equitable in all of the circumstances.
The treatment of notional property
In this case it is necessary to have regard to the guiding principles which emerge from the decisions in NHC & RCH (2004) FLC 93-204 (“NHC & RCH”), AJO & GRO (2005) FLC 93‑218 (“AJO & GRO”), Vass v Vass (2015) 53 Fam LR 373 (“Vass”), Trevi & Trevi (2018) FLC 93-858 (“Trevi”), and Candle & Falkner (2021) FLC 94-069 (“Candle & Falkner”) about the treatment of notional property including whether to exercise my discretion to “add back” notional assets.
The Full Court in Trevi has set out the guidelines for addbacks in relation to property and expenditure other than on legal fees as follows at [27]–[30]:
The Full Court held in [AJO & GRO] that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.
However, the Full Court also made it clear that an addback does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”. An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule”.
The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it" at trial. An important parallel proposition is that the parties do not "go into a state of suspended economic animation" after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
Two fundamental premises emerge from [AJO & GRO] and the authorities preceding it. First, "adding back" is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not "exceptional" justice and equity can be achieved, not by adding back, but by the exercise of a different discretion - usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is "a course which is, perhaps, technically more correct" than adding back to the list of existing interests in property.
Their Honours in Trevi at [29] also quoted the decision of M & M [1998] FamCA 42 (“M & M”) at [2.11] that parties are not required to go into a state of suspended economic animation:
There seems to be no appropriate basis for notionally adding back moneys that existed at separation, but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge.
In this case it is necessary to have regard to the guiding principles which emerge from the decisions of AJO & GRO, Kowaliw and Kowaliw (1981) FLC 91-092 (“Kowaliw”), and Townsend and Townsend (1995) FLC 92-569 about the three “clear” categories of addbacks where, exceptionally, the justice and equity of the case requires it. Namely, these are: where the parties have expended money on legal fees, where there has been a premature distribution of matrimonial assets, and where there has been “waste”. It is appropriate in cases that fall outside the exceptional that justice and equity is achieved in relation to notional assets by taking them into consideration under s 75(2), as opined by the Full Court in Trevi at [30].
The Full Court in Vass at [138] makes it clear that "there is no error committed per se in adjusting the parties' actual property interests by a calculation involving notionally adding back in the pool sums which have been dissipated by the parties.” Further, that however the exercise of discretion might seek to deal with property that is said to be subject of "add back", proper consideration must be given to the existing interests in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property.
Duty to make full and frank disclosure
The failure of the husband to make full and frank disclosure is of real significance in this case.
Parties have a duty to make full and frank disclosure of their financial circumstances pursuant to r 6.06 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”), which is, per the decision of Briese and Briese (1986) FLC 91-713 at 75,180, “at the very heart of cases concerning property and maintenance”. The consequences of failing to make full and frank disclosure are significant, on account of the significant disadvantage that it places upon both the innocent party and the Court by hindering the achievement of a just and equitable property settlement.
It is well established under the principles that arise from Black and Kellner (1992) FLC 92-287 and Weir and Weir (1993) FLC 92-338 (“Weir”) that in circumstances where there has been non-disclosure “the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature” (Weir at 79,593). This statement has long been cited as the salient principle on what follows from the failure of a party to make full and frank disclosure and was applied by the Full Court in Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94‑006 at [87]–[88].
Upon the establishment that there has been non-disclosure, the Court is empowered to make adverse findings against the party who failed to make adequate disclosure, and such findings include that an asset pool is greater than demonstrated, as set out in Weir at 79,593:
The court’s jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.
Further, in Kannis & Kannis [2002] FamCA 1150, the Full Court said at [51]:
Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.
Two pools approach
It is open in the exercise of the discretion conferred by the Act, to divide the assets of the parties into two pools for the purposes of an assessment, otherwise referred to as an “asset by asset basis” as opposed to the “global approach” using one pool of property. This approach has been validated by the High Court in the decision of Norbis & Norbis (1986) 161 CLR 513 at 524, as summarised by the Full Court in the decision of Y & Y [2004] FamCA 799 at [43]: “both approaches are legitimate and choosing one over the other can never in itself amount to an error of law” unless the result is manifestly unjust.
The impact of family violence on contributions
The principle as adumbrated by the Full Court in the decision of Kennon v Kennon (1997) FLC 92 -757 at 905:
…where there is a course of violent conduct by one party towards another during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contribution to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
The historical adoption of the Kennon principle was summarised most recently by the Full Court in Benson & Drury [2020] FamCAFC 303. In that matter, the court emphasised two things to be kept in mind in assessing a Kennon argument. Firstly, the requirement is not just more arduous or more onerous, the operating test requires there to be a “significant” impact. Secondly, the Full Court reiterated that the assessment of contributions must be holistic, and any contributions made significantly more arduous on account of family violence must be weighed along with all of the other contributions made by the parties.
As opined by McClelland DCJ in the decision of Sweet & Sweet [2022] FedCFamC2F 676 at [233], in modern society there should not be reluctance to consider each Kennon case on its own merits for “fear of opening the floodgates.” His Honour at also cited the Full Court decision of S & S, noting at [234] that:
it may be possible for the Court to draw an inference that family violence perpetrated by one party to a marriage may impact upon the contributions that the other party was able to make to the property of the marriage. At [45], the Full Court, quoting Kennon, said that inference must be “obvious” or “very likely”.
THE CONDUCT OF THE HUSBAND
The conduct of the husband in this case is most extraordinary. As set out below the lengths and attempts the husband went to in his efforts to conceal property and hide his true financial circumstances and his income has, as he accepted, left the court in a situation where the only available finding is that the court cannot know and cannot make findings as to his financial circumstances due to his own deliberate and dishonest conduct. The husband demonstrated during the final hearing his propensity to lie under oath, on numerous occasions about many matters. On that basis, as set out in the following paragraphs, I cannot accept the evidence of the husband unless it is adopted by the wife or otherwise supported by corroborative evidence.
It is necessary to detail both the litigation history and the conduct of the husband and to set out the extent of his deception to understand the basis of the findings and the reasons that I was unable due to his conduct, to make findings as to the assets of the parties. Due to the unreliability of his evidence and flagrant dishonest conduct of the husband, I cannot be satisfied as to the assets of the parties.
Extensive non-disclosure of financial matters
In the second half of 2020 and into 2021, after these proceedings had commenced, the husband transferred a total amount of $103,500 from the F Pty Ltd superannuation fund to conduct share trading and did not disclose that he had done so. It was also revealed during the evidence that there were two additional share trading accounts that the husband operated. He did not disclose these accounts until he was being cross examined in the witness box despite him knowing of his duty to make full and frank disclosure.
The husband failed to disclose at any time interest that he held in the companies K Ltd, W Company and Z Company.
It was only when confronted with evidence while in cross-examination that the husband made admissions as to his non-disclosure. His answers, once his non-disclosure was exposed, were often in a defeated and quiet voice, stating “I don’t know” or “I don’t remember.” The extent of his deception and non-disclosure was flabbergasting. The efforts that he had engaged in to hide his true assets and income were elaborate and deliberate.
Not only did he fail to disclose assets, but he took active steps to set up and transfer assets to companies and trusts in Country AA, Country BB and New Zealand. He undertook these activities while the proceedings were underway. I find his conduct was all designed to hide the assets from the wife and from the jurisdiction of the Court as set out below. It was a deliberate ruse.
Transfer of CC Ltd Shares to DD Trust
On a date in 2021 the husband transferred 28,911 VV Shares to F Pty Ltd. The records of the husband’s share trading account did not contain any transaction on this specific date in 2021. The husband conceded in cross-examination that the shares were transferred off-market.
The share trading records demonstrate that the husband was selling certain shares to buy another share called CC Ltd. This was conducted through the share trading account of F Pty Ltd, which sourced the funds from the husband’s superannuation entitlements, which he had withdrawn.
In 2021, the husband said he sold 1,614,895 CC Ltd shares. There was no corresponding record that showed the sale of these shares. The husband conceded in cross-examination that he did not sell them through the market and that he sold them to “an overseas trust.” The husband had not previously disclosed that fact. At the time of the transfer the shares were worth 10 cents each, as such the corresponding value was $161,489.50.
There were further exchanges which revealed that the husband had not in fact sold the shares as he deposed on oath, but that he transferred the shares to an overseas trust.
The husband revealed in cross-examination that the shares were transferred to a DD Trust managed by trustees FF Ltd and EE Business. When confronted with the fact that he had lied on oath his response was “I was mistaken, I’m sorry. Yes.” I do not accept he was “mistaken.” This was but one of a series of attempts to hide assets from the wife and the reach of the court.
It was put to the husband that he had deliberately concealed his ownership of the shares from the Court and his evidence was “I — I — I did deliberately. I was confused about how to process everything.” I do not accept his excuse as to being confused. He knew what he was attempting to do. It was deliberate.
K Ltd, W Company, and Z Company
The husband created a corporate structure designed to hold and disguise assets from both the wife and from the court.
In 2021, K Ltd was incorporated by “Mr GG” as instructed by the husband. Mr GG, is, according to the husband, “a person who has a business assisting people establishing companies offshore.” The company was incorporated in Country HH. In 2021, the husband was the director and shareholder of K Ltd.
In 2021, W Company was incorporated in Australia. The husband is the director and secretary. K Ltd owns all 100 shares in W Company. The husband operates a share trading account and a transaction account in the name of the Company. His evidence was that he is merely a nominee director.
The husband’s evidence in his trial affidavit was that he did not have “a current legal or equitable interest in [K Ltd]”. The husband’s statement about not having any current interest in K Ltd was revealed to be demonstrably false. The husband gave evidence that he had an indirect interest in the share portfolio owned by W Company, which is owned by K Ltd. Only during cross examination did he accept the proposition that he did have an interest in K Ltd.
There were many questions that remained unanswered as a result of the husband’s lack of disclosure and unbelievable evidence. The gist of his evidence is made clear in the below extract of cross-examination:
What is your explanation for failing to make a disclosure of this wealth of [W Company] in these proceedings?---I — I — I didn’t feel that it was my responsibility, because I only act as a nominee director and I thought it was just titular, and just responsible for governance related things over here.
So who do you think is the owner of [K Ltd]?---I don’t know.
Right. You held shares in [K Ltd]?---Yes.
You don’t hold shares in [K Ltd], now, you claim?---Yes.
You don’t know who owns the shares now?---No.
So are you saying you’ve just given away your property to someone you don’t even know?---Yes.
And you’re just happily buying and selling shares for them, as their nominee?---Yes.
Even though you don’t know who they are?---Yes.
Do you seriously expect any of us in this room to believe a word you’re saying, sir?---Probably not.
The husband was asked in cross-examination to tell the court about Z Company, a company incorporated in Country AA. His evidence was that it is a company which is a “protector” of the overseas trust. The husband’s evidence was that he did not think he was a director of Z Company anymore. The company search dated 2024 for Z Company revealed that the husband was appointed director in 2022. The search does not contain any history of changes to the company’s shareholdings.
The bank statements for the account operated by the husband for the W Company contain transactions to and from Z Company. The husband’s evidence was that his relationship with Z Company is that he gives advice to “[Ms JJ]”, a director, who pays him regularly into the W Company bank account, although there is no contract or agreement between them.
The husband agreed with the proposition “that the court and [the wife] are left with absolutely no understanding of how wealthy you are, because of your actions.” There was no disclosure of the above activity forthcoming from the husband. It was only discovered by the wife having to incur the cost of tracing the connection. These costs were unnecessarily incurred as a consequence of the non-disclosure.
Secret share trading
The husband used his personal ANZ share trading account to transfer funds into his NAB account #26, however even after the share trading ceased from his personal ANZ account #31 in 2021, money from share trading continued to go into the NAB #26 account.
Counsel for the wife tendered an aide memoire which detailed the deposits from the husband’s share trading account into his NAB account #26, adding up to a total of $277,900.57. The husband acknowledged that he received “a bit” of money, which could be well over $250,000.
The husband also operated a share trading account on behalf of F Pty Ltd with ANZ #09.
The husband gave evidence on oath that he only had two share trading accounts. This was later proven to be false in cross-examination. The husband admitted to having a “really old [trading] account”, which may have last been operated in 2021. The other share trading account that had not been disclosed by the husband was an account of W Company with ANZ bank which was operated by the husband.
Loan with L Ltd shares
In 2016, the parties established the J Family Trust, for the purpose of being the vehicle for investment in L Ltd. H Pty Ltd was established on the same day for the purpose of being appointed the trustee of the trust. Each party held 10 shares in H Pty Ltd, being a total of 20 shares. The parties owned 337,500 shares in L Ltd.
In 2020, without the consent or knowledge of the wife the husband issued 10 shares to G Company. In 2021, the husband informed ASIC that the wife’s 10 shares had been transferred to him and that the wife was no longer a director, which he acknowledged in cross‑examination was a lie. According to the ASIC Historical Company Extract the wife ceased as a director in 2021.
In 2021, in breach of court orders, the husband issued 30 new shares in H Pty Ltd to K Ltd.
The husband’s evidence is that a loan was assigned from G Company to the wife following from the use of the husband’s tax losses, which was referred to as the Bretz debt. In 2021, G Company, controlled by the husband, assigned $135,000 of the Bretz debt to F Pty Ltd, without the knowledge of the wife. The husband’s evidence is that H Pty Ltd entered into a loan agreement with F Pty Ltd, though no funds were transferred.
That loan agreement recorded that the borrower, H Pty Ltd, will repay the amount borrowed in 24 monthly instalments starting on the date of the IPO for L Ltd to the lender, F Pty Ltd. The loan agreement also purported to give F Pty Ltd security over all of the shares in L Ltd owned by J Trust, the trustee of which was H Pty Ltd.
The husband gave evidence in his affidavit that in 2021 F Pty Ltd assigned its interest in the Bretz debt to K Ltd which then became a party to the loan agreement. This was proven to be false in cross-examination when the following exchange occurred:
…So you accept, don’t you, that you couldn’t possibly have signed any property, or any interest in a debt, to [K Ltd] because [K Ltd] didn’t exist [at that time in] 2021?---Yes.
…
…And so, what you’ve said in your affidavit, at paragraph 534, about assigning an interest to [K Ltd], that’s just not true, is it?---Yes.
Thank you. And, in fact, all you’ve done there, is provide a pretext for your decision to issue new shares in [H Pty Ltd] to [K Ltd]?---Yes.
It’s just – it’s just a bit of fiction that you’ve invented?---Sorry, yes.
It’s just fiction that you’ve invented?---Yes.
It was submitted by counsel for the wife that the evidence supports the finding that the husband intended to secretly acquire rights for himself over the shares in L Ltd by creating these faux security arrangements which purport to create obligations for him to release the shares to companies that he controlled. The husband admitted as much. I accept the submission of counsel for the wife and find that the husband intended to secretly acquire rights for himself over the shares in L Ltd.
The husband created another “faux security arrangement” during the course of these proceedings. Exhibit 35 is an “indemnity and nominee director agreement” between K Ltd and the husband as nominee director of W Company dated 2021. The agreement purports to be K Ltd indemnifying W Company from any claims, actions, costs and the like that arise from the husband’s nominee directorship of W Company. The document contains four signatures, two of which are the signature of the husband on behalf of W Company and himself as nominee director. The other signatures are assigned to “Client”, being K Ltd. The husband admitted in cross-examination that he signed on behalf of all parties using different signatures, though when challenged he was unable to admit that it was intentional so as to hide his ownership of K Ltd:
Right. So why did you attempt to disguise the signatures on behalf of [K Ltd], so that they don’t look like your normal signature?---I don’t know.
It’s because you wanted to keep your ownership of [K Ltd] secret, didn’t you, from [Ms Bretz] in the court?---It wasn’t intentional.
So you’ve signed your own name in the normal way on that document, haven’t you?---I sign my name in a few different ways.
The husband’s responses above, that it was not intentional or that he did not know why he did a certain action, was his default response when challenged with his own deceitful conduct during cross-examination. I find that his conduct in creating the loan agreement and signing on behalf of all parties was an ongoing part of his efforts to hide assets from the wife.
Spending of KK Company
In 2017, the parties established an investment portfolio with KK Company in the name of the husband with the intention to invest money for the children’s secondary education. An initial contribution of $25,000 was made from the joint offset account for the Suburb E home loan, and monthly contributions of $1,562.50 were deposited into the account.
In 2019 the husband sold the investments held in that portfolio without the wife’s knowledge or consent. He transferred the proceeds of sale of $57,723.35 into his NAB #26 account and spent it indiscriminately thereafter until the funds had fully depleted by 2020.
The husband’s explanation was that he was “desperate” as he could not access funds from the offset account which is where his savings and income had been.
I do not accept his evidence because during the same period, he was receiving a wage of $2,314 per fortnight into the same NAB account #26. It was contended by counsel for the wife that the expenditure of the KK Company funds was a retaliatory action by the husband as a result of being prevented from accessing the offset account. I am unable to find that this was a retaliatory action however do not accept the husband’s evidence of and reject the husband’s claimed desperation and financial hardship as founding the necessity for the expenditure. I find this was the premature distribution to himself of an asset of the parties.
MM Company
The husband was asked in cross-examination about work he has done for “[MM Company]”, a business. He had not disclosed any such employment prior to the trial. Yet again it was revealed he had failed to disclose pertinent financial information. The husband agreed that he had undertaken some work for that firm and had been paid.
The income received from his work was directed into the bank account that the husband had for W Company. It was suggested he did so “deliberately to hide it from [the wife] and the Court”. His answer was “Yes.” The husband was asked how much he was paid and he said $30,000 or $40,000. The husband agreed in cross-examination that he has gone to elaborate efforts to disguise his income and assets from the court and that he has lied to people about his true financial position. I accept that evidence and find that the husband has gone to elaborate lengths to disguise his income and assets from the court. I have no basis upon which to make a finding as to the whether he has earned $30,000 or $40,000 or some greater sum. I have no confidence in the evidence of the husband. He made concessions when caught out and not otherwise.
Nothing regarding MM Company or the bank account the husband operated for W Company was disclosed nor was it contained in the husband’s affidavit or sworn financial statements. I find that the husband did go to elaborate efforts to disguise his true income and assets from the wife and from the court.
Opposition to the wife’s applications
Throughout 2021 the wife made several applications to the court to restrain the husband from dealing with the entities and assets of the parties. On 6 April 2021, orders were made by consent restraining the husband from dealing with property located at the Suburb E property, assets of the J Trust, H Pty Ltd, and G Company, amongst other orders. Whilst the orders were eventually made by consent, the husband in his responding material deposed that the orders sought by the wife were “oppressive and unnecessary”.
One of those orders made on 6 April 2021, was that the husband reinstate the wife’s access to the Westpac bank account held in the name of H Pty Ltd. This order was not complied with. The husband said in cross-examination “I misunderstood what was required.” The same order was again made by the Court on 1 March 2023.
Further orders were made restraining the husband from dealing with property on 29 October 2021, 17 November 2021 and 21 December 2021.
In his trial affidavit, the husband still maintained “Whilst I considered many of the injunctive and interim property orders to be oppressive, unnecessary and/or petty, I agreed to many of the orders to simply placate [the wife], and to reduce the amount of conflict between us.” The husband maintained that this was his belief in cross-examination, but eventually acknowledged that the orders the wife had sought were necessary to control what he was doing with the property of the parties.
All of the examples above were conceded and admitted by the husband in cross-examination.
The husband’s dishonesty
There were many examples of the dishonesty of the husband that extended beyond the financial deception. It is not necessary to detail all of the examples. I refer to just three examples, relevant especially to the parenting proceedings, which also support the finding I make that the husband gave deliberately false evidence in these proceedings.
Living with Ms LL
The husband in his trial affidavit said that he and his partner, Ms LL “never lived together although we spend a lot of time together”. In cross-examination this evidence was tested, and the husband said that Ms LL spent time at his home about half of the week and that he stayed at her home during the other times when she was not at his home. He acknowledged that they were living together albeit across two homes, every night of the week. He did not disclose to the wife that he was living with Ms LL.
Assaulting the children
The husband denied in his trial affidavit ever assaulting the children. In cross-examination, he at first continued to deny same. Eventually, when the below specific incidents were put to him, he agreed in cross examination that he had, despite his denials, assaulted the children.
He agreed that he became very angry with X, so he put her in the shower with her clothes on and turned on the cold water, because she had been naughty. He agreed that in 2023, X gave him the finger and he hit her. He also agreed that he threw a cup of water at X, around the same time, because she was playing up in some way.
He agreed that it made him angry when Y spilt water on the dining room table over some letters during dinner and that he hit Y.
Baby NN
It was put to the husband that he surprised the children with a new sister, NN, days after her birth. His response was that he told them “at the last minute” but that he didn’t “think it was that late”. The wife’s evidence was that the husband did not tell her anything about expecting a new child or that NN had been born. She said that when she collected the children from changeover at McDonalds in 2023 X said:
We have a baby sister called [NN], we went to the hospital and I gave her a bottle.
When we got in the car on Friday Dad said he has two little surprises and one big one. The little surprises were getting McDonalds for dinner and seeing [a] movie. The big one was the baby.
The husband agreed that the children’s account of what happened was true.
A note from X’s treating psychologist Ms OO dated 2023 was marked as Exhibit 10 and records:
[X] reestablished rapport immediately, reported she’s very angry at dad, feels she can’t trust dad anymore as she had specifically asked him if he was having a baby and he dismissed her questions, saying he was storing baby things for a friend, reported feeling dad had betrayed her…
The note was read to the husband in cross-examination and he agreed that he had lied and told the children he was storing baby things for a friend. The husband lied to X when she asked him directly if he was having a baby.
Allegations of family violence
Family violence
The wife made specific allegations of family violence which were all denied by the husband, both in his trial affidavit and in his interview with the single expert psychiatrist Dr Q. When the husband was asked in cross-examination whether from 2016 he was angry, moody and showed erratic behaviour, he denied each contention.
A letter from the husband’s former treating psychiatrist Dr PP dated 2016, a letter from Dr PP to the husband’s general practitioner Dr P dated 2017, and a fax from Dr PP to Dr P dated 2017, all report ongoing angry outbursts and irritation, including reports made by the wife to his treaters of his angry outbursts. It was only when the contents of each of those records were put to him as an accurate record of what he had told Dr PP at the time did that husband acknowledged that the allegations of his moods and outbursts were accurate. Until that time, he maintained his false evidence in accordance with his reports to Dr Q, that he was not angry and moody.
2018 – BBQ incident
The wife gave evidence of an incident that occurred in 2018 during a celebration for Y’s second birthday. The family and the wife’s parents were at the Suburb E property having a barbecue lunch. Some skewers of food that she had prepared fell apart when the husband put them on the barbecue. Her evidence is that the husband stood over her and shouted “This is hopeless. Don’t you ever make that again!” The maternal grandmother gave evidence which supported the wife’s version of events.
The husband accepted that he was frustrated but denied that the event occurred as the wife described it as aggressive.
I accept the wife’s version of events, particular in light of contemporaneous records of her making complaints to the husband’s treaters concerning his angry outbursts and the corroborative evidence from her mother.
Wife smashed objects
The husband alleged that the wife had perpetrated family violence against him by belittling him, assaulting him, and throwing items. The wife accepted that on an occasion she smashed objects but denied the balance of the husband’s allegations. Her evidence was that the husband would not respond to her during conversations and that on this occasion she was trying to get his attention. I accept her evidence.
Town QQ 2018
There was an incident that occurred during a trip to Town QQ in 2018. The wife’s evidence is that she spoke to the owner of the restaurant where the parties had dined, following which she said the husband became “sulky.” She says an argument ensued and the husband insisted that they leave. Once they were outside he began to yell at her about the parties not having sex and that the wife paid too much attention to other people. The wife says the husband grabbed her and would not let her walk away.
The husband reluctantly acknowledged in cross-examination that there was an argument, during which he raised his voice.
An email from the husband to the wife dated 2018 was tendered and marked as Exhibit 47. It reads:
I was completely out of order in my screaming fit after dinner in [Town QQ]. I am ashamed at what I did, and should have never ever reacted in that way. It is an appalling and disgusting behaviour. I definitely would not expect [X] to stay with someone who behaved like that, and it is not an example I would ever wish to model for [Y].
When that email was read to the husband during cross-examination, he minimised the behaviour by emphasising that it was the intensity of the parties’ argument that he was ashamed of, noting they both were yelling. I place weight on the evidence of the wife, and on the more contemporaneous email written by the husband some months later which recounts his “screaming fit” and accept the wife’s evidence in respect of the event as described.
Late 2018
The wife’s evidence is in late 2018, there was an escalation of tension that ultimately led to the wife leaving the home and the parties’ separation on 10 September 2018.
The wife says that in late 2018 the husband said to her, during the course of an argument, “Let me do what I want to do or I will hurt the kids.” This was denied by the husband.
The wife says that also in late 2018, the husband screamed at and berated her for 90 minutes, during the course of which he said, “Take a bottle of pills, jump off a bridge, just go and kill yourself.” She said this occurred in the presence of X.
The wife says that again in late 2018, the husband was sick and as such he called out to the wife words to the effect of “can’t you hear that I’m sick? You need to come out here and look after me, put him down and get out here to look after me”. She says that he screamed at her several times during the night. She says that he tried to drag her out of the house, whilst telling her to get out of the house. She says that she began to record the incident on her phone, and seeing the phone the husband charged his body at the wife and pinned her to the floor to grab the phone.
This incident in 2018 gave rise to an ADVO which was made by consent on a without admissions basis, following the recording being played in court and the magistrate remarking that the “recordings speak for themselves”.
There were text messages exchanged between the parties the next morning in 2018:
The husband: I’m really sorry for hurting you last night. Despite being really sick, this is not an excuse. I hope your appt […] goes well & that you can find some stillness somewhere. Thank you for bringing me the bucket, washcloth & [medication]. (smiley face)
The wife:You assaulted me. Twice. You seem to have no perspective on your actions. You expect me to trust you with the kids when you have shown what happens when you totally lose control. At least I stick to [objects] and food.
This is a contemporaneous admission by the husband for his actions, and a contemporaneous recount by the wife. Though when put to the husband his explanation for the apology is that he said that because the wife was upset and because he “felt bad” about the “level of disagreement”.
The email written by the husband in 2018 at Exhibit 47 also contained an admission by the husband, “I was completely out of line hurting you that [day].”
The husband acknowledged in cross-examination that the evidence justified the ADVO being made. However, when asked to reflect on his behaviour, the highest he could put it was that he took responsibility for “trying to stop being video recorded”, rather than assaulting the wife. I accept the wife’s version of events on account of her credibility and the contemporaneous corroborative evidence available from both parties.
Each of the incidents referred to meet the definition of Family violence from section 4AB. I find there were incidents of family violence as described.
Gaslighting
To gaslight, is defined by the Macquarie Dictionary as “to manipulate the experiences of (another) to the point where they no longer trust their perceptions or their memory or sanity and are filled with self-doubt.” The term was put to Dr T who accepted familiarity with it in a psychiatric context.
The wife gave evidence that, as the relationship deteriorated, she would confront the husband about the things that he said to her, including that she was a “shit mum and a shit wife” and that he would say “Control Z” (referencing a function for deleting information on a computer) and at other times he would deny that he said that. The wife resorted on an occasion to writing “shit wife shit mum” on the wall in the dining room above where she sat at dinner. She said she did so to ensure the husband could not deny what he said to her.
X reported to Dr Q during her interview with him that the husband often yells and punishes the children out of anger. Dr Q records at paragraph 77 of his 11 April 2024 report:
When asked how frequently this occurred, [X] was again clear: “It happens quite often. And when I go to tell him, he says, “No. I didn’t do that.” He just lies and tells people he doesn’t. And people believe that.
This paragraph was read to the husband in cross-examination and when asked if it was true, that he denied his behaviours to X, he said “I don’t know. That could be true.”
Counsel for the wife asked the husband’s treating psychiatrist Dr T about what therapy would be recommended for a person with a history of gaslighting intimate partners or children. Dr T said that such people are “extremely difficult” or “maybe even impossible” to treat, because of their “entrenched patterns of obfuscation and…reluctance to face up to the truth of circumstance.”
When asked how long it would likely take in a psychotherapeutic context to unpack the husband’s untruthfulness, Dr T opined that it would be in the order of years, rather than months.
I accept that the husband has engaged in “gaslighting” both the wife and X. The husband’s “lack of truth telling” infects each aspect of these proceedings and each instance of lying must be viewed in the context of the whole history of the proceedings to understand its impact.
Vindictive and retaliatory conduct
It was contended by counsel for the wife that the husband had a tendency to engage in vindictive and retaliatory conduct.
In 2018 the husband was served with a provisional ADVO relating to the events in late 2018. The COPS narrative records that a report was made by the husband in 2018 at Suburb RR police station of the wife smashing an object and throwing another object at the bedroom wall. It records the husband made the report as it may aid him in changing the ADVO so he could see the children.
Again in 2018, the husband attended Suburb RR Police Station and asked the police to apply for an ADVO for him. He reported to police that he felt scared of the wife, but when asked why he “would only state that she is restricting him from seeing his kids.”
In 2019 the ADVO applied for by the wife was made on a final basis by consent at hearing.
In 2019, the husband attended Suburb SS Police station at 1.00pm, and Suburb TT at 3.32pm. Exhibit 49 details his report made at Suburb TT:
The [husband] was fearful the [wife] would attend his house, change the locks and enter his premises. She has done this in the past and this was investigated by police minimally as she is on the deed of the house and was entitled to be in the house.
…
He states he is also fearful as on one occasion her car was parked near his bus stop near the day care.
…
The [husband] states he has left a leaf near the front door to see if it has moved when he returns and on occasion it has moved. He also stated a window was left open when he returned and it was shut when he left home. He informed police that no one could have done this except for the cat.
…
The [husband] also asked for assistance from the police to retrieve his car. The car is in his name but is currently in the custody of the [wife]. The [husband] stated his solicitor advised him the police could assist him to retrieve the car. Considering the car is in all likelihood a combined asset of the marriage police declined to assist the [husband] in the retrieval of his car.
No action was taken by the police as a result of the husband’s complaints.
The husband accepted that he sought to have the police retrieve Motor Vehicle 1 which the wife was driving, in circumstances where he had bought, and at that time he had access to, Motor Vehicle 2. I accept that this was a vindictive thing to do as submitted by counsel on behalf of the wife.
The husband’s explanation of why he went to the police after the final consent ADVO was made despite pressing the narrative that he did not wish to be embroiled in litigation is not credible. He says he was “terrified of what the wife could do.” He denied that his actions were retaliatory and said he “wanted the narrative to be balanced.” His explanation is entirely fictional. Given the timing of his complaints and what he was seeking, I find that his conduct was retaliatory.
The husband made a complaint to a professional standards body. The professional standards body letter in reply dated 2021 records that the husband made several serious and false allegations about the wife. He made that complaint knowing that this could damage the wife professionally. I do not accept his evidence his motivation was to seek assistance to have the matter resolved.
The complaint to the professional standards body occurred at the time the wife took action in this Court to limit the husband’s financial dealings. The wife’s counsel contended that the complaint should be characterised as retaliatory action when he felt provoked by the wife. I accept that submission. The husband’s explanation of fear being the underpinning motivation for preparing an “extensive” complaint to the regulator of the wife’s profession is entirely fictional.
The conduct of the proceedings
Having regard to all of the above, particularly the deceptive conduct engaged in by the husband, I consider that the manner in which the husband has conducted these proceedings amounts to family violence against the wife.
In the decision of Bennett J in Garrod & Davenport [2018] FamCA 825, Her Honour found that the father had perpetrated family violence against the mother by his approach to the proceedings. There are many criticisms Her Honour made of the father in that case which apply to the husband in this case, such as:
[426] …in cross-examination the father had a propensity to deny a specific allegation but, when backed into a corner, to concede the alleged incident…This manner of giving evidence prolonged the hearing…
[427] The father’s case was run with the effect of maximising the financial and emotional cost of the proceedings to mother. Had the father made his admissions about the serious family violence (which the mother has been alleging over the last six years) sooner, the three week trial may well have been avoided…The mother was continually painted as a liar by the father and forced to expend time, money and energy to prove otherwise. Instead, the father repeatedly lied in sworn affidavits about the violence.
…
[429] I conclude that the father’s tactics in these proceedings amount to family violence in accordance with s 4AB of the Act. It was behaviour that controlled the mother, or caused the mother to be fearful. The mother had presented her case as best she could at enormous financial expense and considerable emotional cost.
I have made adverse findings that the husband lied both under cross-examination and in his sworn affidavit evidence. He was cross-examined by counsel for the wife over the course of three days and on multiple occasions after lengthy exploration of the evidence finally conceded his dishonesty when backed into a corner. He lied about both financial and parenting matters.
The husband’s conduct has caused the wife to incurred additional legal costs, particularly his non-compliance with restraints, his failure to disclose and his generally dishonest approach to the proceedings. Her evidence is that she and the children have had to seek out psychological support throughout the proceedings. She described feeling “stuck”, hearing the allegations made by the children and wanting to pursue them but being asked not to by the children. I find that the actions taken by the husband throughout the course of these proceedings, namely in his physical and psychological abuse of the children and steadfast denial of such conduct and in his financial deception, constitutes family violence pursuant to s 4AB. The behaviour controlled the wife by causing many unnecessary interlocutory applications to be pursued, by failing to disclose which caused the wife to issue subpoena to uncover the deception and therefore incur financial consequences, and by threatening the wife’s profession and earnings by the complaint made to the professional standards body.
I find that the husband did perpetrate family violence against the wife and the children, both physically and psychologically, during the relationship and post-separation. I also find that the manner in which he conducted these proceedings and the complaint raised by him to the professional standards body also amounts to conduct that meets the definition of family violence.
The husband showed a significant lack of insight in respect of the impact of his behaviour on others and was unable to take responsibility for his actions in the witness box, often falling back to the narrative that he is the victim of the wife in these proceedings and was “terrified.” I do not accept he was terrified of the wife as he asserted. He was likely only terrified of being exposed for his dishonesty, which he ultimately was.
THE PROPERTY POOL
The agreed assets and liabilities of the parties were captured in a document which became Exhibit 62 as set out below.
Item Owner Description Wife’s Value Husband’s Value ASSETS 1 H & W D Street, Suburb E (to be sold) 3,650,000 3,650,000 2 W Net sale proceeds of B Street, Suburb C previously owned by wife held in controlled money account 346,981 346,981 3 H & W Westpac account #20 re Suburb E 398,500 398,500 4 W Westpac account #27 8,349 8,349 5 W Westpac account #43 7,513 7,513 6 W UU Company – 1,066 shares 3,902 3,902 7 H Westpac account #47 0 0 8 H NAB account #26 0 0 9 H NAB account #21 Nil Nil 10 H ANZ account ending #31 0 0 11 H ANZ account ending #68 Nil Nil 12 H 4,670 VV Shares – price $1.275/share Nil Nil 13 H WW Company account ending #64 - $109,321 N/A N/A 14 H YY Bank account ending #81 Nil Nil 15 H XX Company account ending #39 - $23,693 Nil Nil 16 H YY Bank account ending #18 Nil Nil 17 H & W G Pty Ltd Nil Nil 18 H & W Loan account G Pty Ltd (husband has not prepared financial accounts since) Exclude N/A 19 H & W Shares in F Pty Ltd (trustee only) Nil Nil 20 H Shares H Pty Ltd (trustee only of J Family Trust) Nil Nil 21 H & W J Family Trust (owns 337,500 shares in L Pty Ltd) NK NK 22 H & W Loan account J Family Trust Exclude NK 23 W M Trust Negligible Negligible 24 W ZZ Pty Ltd 53,127 53,127 25 W AC Pty Ltd (trustee only) Nil Nil 26 W Bretz Family Trust (owns 117,647 shares in AB Company - @ $0.005) 588 588 27 W Interest in AD Business including taking into account loan from Commonwealth Bank ending #50 of $255,000 nil NK 28 H Shares in W Company and K Ltd NK NIL 29 H Motor Vehicle 1 (in wife’s possession) Exclude Exclude 30 H Motor Vehicle 2 Exclude Exclude 31 H Motor Vehicle 3 Exclude Exclude 32 H & W Suburb E contents (in husband’s possession) including paintings sought by wife 10,000 10,000 33 W Contents with wife 5,000 5,000 34 W Jewellery with wife (husband says includes engagement ring) Exclude Exclude 35 H Jewellery with husband (wife says includes engagement ring) Exclude Exclude Total EARLY DISTRIBUTION OF PROPERTY 36 H Proceeds of sale of shares sold and noted on Exhibit 50 277,900 Nil 37 H Funds the husband withdrew from sale of KK Company account without the wife’s consent 57,723 Nil 38 H CC Ltd shares transferred to DD Trust 161,000 Nil 39 H Proceeds of sale of Motor Vehicle 4 2,500 Nil 40 H Proceeds of sale of Motor Vehicle 5 retained by husband $7,500 7,500 Nil 41 H Contents of Suburb E sold after separation 10,000 Nil 42 H Legal Fees to Pearson Emerson (Total Paid) to 30.04.24 288,035 288,035 43 H Legal Fees to AE Legal (Total Paid) 38,326 38,326 44 W Legal Fees (Total Paid) 198,167 361,162 Total LIABILITIES 45 H & W Westpac mortgage on Suburb E (912,795) (912,795) 46 H Westpac credit card #66 N/A – post separation 47 W Westpac Mastercard #68 N/A - post separation 48 W Balance of tax liability for FY23 and FY24 to date (less instalments already paid) E (85,334) Nil 49 H & W Anticipated cost of sale of Suburb E (agents commission 1.5% - $47,250 + solicitors fees and other disbursements E $3,500) E (50,750) NK 50 H & W Estimated costs of repairs required to be undertaken to Suburb E TBC Nil 51 W Loan from Ms V for legal fees (198,167) (198,167) 52 W Overdrawing AD Business (84,581) NK 53 H AF Finance (143,399) (143,399) 54 H Estimate tax liability for the financial years FY2021, FY2022 and FY2023 0 NK Total NET TOTAL SUPERANNUATION Member Name of Fund Type of Interest Wife’s value Husband’s value 55 W Super Fund 1 Accumulation 272,007 272,007 56 W Super Fund 2 Accumulation 10,319 10,319 57 H Super Fund 3 Self-managed 10,280 8,722 58 H Super Fund 4 Accumulation NK Nil Total FINANCIAL RESOURCES Ownership Description Wife’s value Husband’s value 59 H & W G Investments Pty Ltd tax losses carried forward to later financial years NK Total NK NK
The matters for determination were the treatment of certain items and whether they should be included in the pool of assets. There were a number of assets where no determination could be made as to the value and they remained not known even at the conclusion of the evidence. The agreed joint balance sheet extracted above sets out that the value of many of the husband’s assets are 0 or Nil. An example is his NAB #26 account, which it was agreed is his everyday account into which his salary is deposited. The value is agreed as 0, however I am not satisfied that there is no money in that account. I am not satisfied that there is evidence before the Court to demonstrates that the value of the assets held by the husband is nil rather that the value is not known and I proceed on that basis.
Treatment of assets and liabilities in dispute
It was submitted by counsel for the husband that the husband has never had the benefit of psychotherapy or the like where his beliefs have been challenged or judged, and that these reasons and the challenging of his beliefs at trial will allow him to “step it up” to receive the treatment that he needs. It would certainly be in the best interests of the children for the husband to take that approach and gain some insight into his behaviour. However, given the evidence of the experts regarding the uncertainty of whether the husband has capacity to change his behaviours, I have no basis to find that he will indeed “step it up” as suggested.
The Act also requires me to have consideration to what arrangements would also best promote the safety of the person who has care for the children, in this case being the wife. I infer, from the wife’s evidence about her reported concerns about the husband’s time with the children including dread, that to order the husband to spend supervised time only with the children would provide her with peace of mind and promote her emotional stability.
Proposals
The husband’s final proposal was that his time be supervised by his mother each Friday overnight for a three month period before graduating to unsupervised time on alternate weekends and Wednesday afternoons, with such graduation also contingent on the husband engaging in and complying with psychiatric treatment.
The wife proposed that the children spend supervised time with the husband on each alternate Friday from after school until the commencement of sport or other extracurricular activities the following day.
The ICL sought that the children spend time with the husband each alternate weekend from Friday until Monday supervised by the paternal grandmother for not less than three months and until there is a report provided by his treater.
The proposed supervisor, the paternal grandmother, had been estranged from the husband for around 10 years as reported by the husband to Dr Q, and confirmed by her own evidence. Curiously, the file note from Dr PP dated 2018 recorded that “[the husband] has always had a good relationship with his mother, [an education professional] whom he describes as supportive, caring, loving, understanding, available, genuine and reliable.” This report made in 2018 was then demonstrably not true. Why the husband would be dishonest about such a matter was not explained.
The paternal grandmother was a supportive witness for the husband but was clear that if she were supervisor she would abide by the requirements of the proposed undertaking, which were:
I, [Ms N], of [R Street], [Suburb S] NSW […] hereby undertake to the Court and to the parties:
1.on all occasions the children [X] and/or [Y] are spending time with [Mr Jankowska], I will supervise that time in that I will be present in the same residence at all times the children or either of them is with [Mr Jankowska]; and
2.In the event I observe any conduct on [Mr Jankowska’s] part or hear anything said by [Mr Jankowska] that I believe puts the children at any risk physically, emotionally or psychologically, I will immediately make arrangements with [Ms Bretz] to return the children to her care.
The paternal grandmother had been unaware of the husband’s attempted self-harm until a week prior to signing her affidavit. She gave evidence that he said he would tell her if he ever felt like self-harming again. Indeed, she gave evidence that he had not felt that way before or after the attempt he made. The independent evidence does not support the narrative that he gave to his mother because he had indeed experienced suicidal thoughts on occasions other than at the time of the attempt.
The paternal grandmother is an education professional. I accept her as a witness of truth. She said she saw the children for an hour or an hour and a half sometimes weekly and sometimes fortnightly. She has never witnessed the husband being inappropriate or abusive toward the children. Her evidence, which showed her insight, was “perhaps that is because of my presence.” I am satisfied as to her suitability to undertake supervision in this case. She expressed a willingness to do so and to be bound by the terms of the undertaking. The fact of her willingness to be present supports the orders being made, as the children can continue to spend time with the husband in a safe and familiar environment, being the husband’s home, whilst being supervised. I find that this is an arrangement which would promote the safety of the children, and also of the wife.
Dr Q’s evidence was that he was not convinced the husband would always need to be supervised with the children, and he opined that with transparent communication with treaters and perhaps a change in medication, the issues could be addressed by the husband within a matter of months.
It was submitted that to make orders for the husband to spend supervised time with the children on a final basis until the children reach the age of 18 years old, is not an order that is proportionate to the risk. Whilst there is some sway to that submission, in the event that the husband’s mental health does improve, there is no alternative order that has been proposed or that is available to me which is an appropriate alternative that is in the best interests of the children.
The husband and the ICL’s proposal that the husband’s time graduate to being unsupervised following his compliance with psychiatric treatment is not an order that is in the children’s best interest. The vexed issues with this approach has been canvassed by the Full Court in Lainhart & Ellinson [2023] FedCFamC1A 200, where it was found to be an error for the first instance Judge to make orders for the father to spend time with the child in a graduating fashion upon compliance with mental health treatment and the provision of a report from that treater. At [24]-[27] the Full Court stated:
24.The orders presume that the psychologist's opinion will be dispositive of the issue and, hence, govern the expansion of the time the child spends with the father and the dispensation of their professional supervision. But why should a psychologist, chosen by the father, be vested with power to determine when it is safe for the child to spend more unsupervised time with the father? Will not more litigation ensue if the mother doubts the reliability of the psychologist's opinion and refuses to act upon it - in which event the orders will have encouraged, rather than deterred, further proceedings? In that event, the orders would have caused exactly the mischief the primary judge said they were designed to avoid.
25. All of these questions, which are incapable of being satisfactorily answered, are the manifestation of legal error.
Legal error
26. Order 4(b) is a parenting order within the meaning of s 64B(2) of the Act because the conditions it imposes are tethered to and qualify the time which the child will spend with the father under the subsequent orders (Oberlin & Infeld (2021) FLC 94-017 at [51]-[52] and [59]), which necessary nexus the primary judge explicitly addressed (at [210]-[212]). Hence, the legal error imposing anterior conditions upon the expansion of the child's interaction with the father is not the absence of power to impose them.
27. Rather, the orders are beset by two other defects: first, their operation is tantamount to the divestiture of judicial power and the unlawful conferral of such power upon a third party to determine the proper future parenting arrangements for the child; and secondly, the orders are aspirational and unenforceable, not prescriptive and enforceable.
(emphasis added)
As such, I cannot make any orders as sought by the ICL and husband which divest the Court’s power to a third party to determine the future parenting arrangements for the children.
The full extent of the husband’s mental health or personality deficits is not known on account of his failure to be transparent with his treating team or the Court. The evidence of the husband’s treater was that therapy to assist the husband in this respect may take years rather than a matter of months. It was submitted by counsel for the wife that either I trust the husband to get treatment and gain insight, or I do not. On the evidence before me, there is no basis for me to place such trust in the husband to make self-executing orders for the progression of his time with the children. To do so would not make orders that promote the safety of the children.
Any views expressed by the child
The views of the children have been helpfully obtained, explored, and explained in the report of Dr Q.
Y has a preference to spend more time with the husband. He said that he misses his mum when he is with dad and that he misses dad when he is with mum. He was unable to choose between his parents if he were to take one of them on a long journey. He expressed that he liked spending Wednesday night with the husband, and that there were no problems with the current arrangements of time with the husband, save for the surprise of his baby sister. When asked how it would be to spend more time with the husband during the week, Y said “I’m not really sure but I think it would be good if we had a tiny bit more time with Dad.” A particularly close rapport was observed between the husband and Y, and Dr Q noted that Y was “overtly more responsive” to the husband than X.
X has a clear preference to spend less time with the husband. She reported being yelled at and assaulted by the husband and reported her concerns about his lies to Dr Q. She expressed that she would feel okay spending the same amount of time as she does at present, however her preference would be to spend less time with the husband and more with the wife. X expressed to Dr Q that she does not feel good when she is with the husband.
I place some weight on the views of the children, noting their ages and the observations of Dr Q that their responses were thoughtful.
The developmental, psychological, emotional and cultural needs of the child
These are young children who have individualised needs. The children attend Suburb AK School. Both children are engaged in musical and athletic extracurricular activities.
The evidence of the wife is that X is currently doing well in some academic areas and doing well socially at school, although she has an anxious disposition. Her psychologist Ms OO has flagged that X should be assessed for ADHD and learning difficulties. She is receiving assistance from the school and the evidence is that she is engaging well.
The evidence of the wife is that Y does well academically and socially at school. He is being monitored by a paediatrician and has been referred to an medical specialist to monitor his weight gain and growth.
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
The wife reports both the children report anxiety in relation to the husband’s behaviour and interactions with other parents. The wife gave examples that the children complain about the husband buying gifts when the children are invited to birthday parties on his weekends. They both express that he buys “the worst presents” and that they have made suggestions to him about presents to buy. The wife asserts that she has attempted to communicate with the husband about appropriate gifts for children’s birthday parties and that she is aware that there was an occasion where Y attended a birthday party with the husband and he attended without a gift.
The wife has demonstrated a close attunement to the developmental, psychological, emotional and cultural needs of the children. She has promoted a relationship between the children and the husband consistently throughout the proceedings. She has attended to their developmental, psychological and emotional needs by procuring professional assistance for both children when she feels it is appropriate, including not just psychological assistance but also academic assistance.
The evidence supports that the wife, along with the maternal grandmother have provided a strong, loving, stable and secure home and role modelling for the children. Indeed, Dr Q identified that the very active support provided by the wife and the maternal grandmother in some respect mitigates the negative impact of the husband’s identified conduct.
The husband’s deficits have been extensively outlined in these reasons and I agree with the opinion of Dr Q that the husband’s mental state has impacted his capacity to behave in a consistent manner, which limits his capacity to meet the needs of the children. The risk to their developmental and psychological needs was outlined by Dr Q and extracted earlier in these reasons. The impression given by the husband’s evidence is that his cross-examination was the first instance where he has been confronted with the emotional and psychological impacts of his behaviour on the children.
The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
It is not in contention that the children benefit from having a relationship with the wife. She is their primary caregiver and has been so since separation. Both children have a loving relationship with the wife and they were observed by Dr Q as being highly engaged and interacting enthusiastically with the wife during play.
The maternal grandmother has been a significant support to the wife and in the lives of the children. The children express fondness towards her, particularly X, as she bonds with her about art. The children benefit from having a relationship with the maternal grandmother, particularly as the evidence makes out that her presence in their lives is a supportive and protective factor.
The children have a loving relationship with the husband. Y in particular is likes spending time with the husband and that they have a particularly close rapport, as recorded by Dr Q. Dr Q in his first report opined that the children would benefit from a meaningful relationship with both parents. He stood by this opinion in cross-examination. There is evidence that there are particular interests of the husband that would be of benefit to the children to experience with him, such as music and sport. He provides evidence in his affidavit of the activities he undertakes with the children which they enjoy. There is also evidence that the husband and Y share a bond over sport.
Through the husband, the children have a half-sister, NN. The evidence is that both children were surprised at the arrival of their sister and that has, unsurprisingly, caused varying emotions. X expresses her displeasure at having a sister to Dr Q and Y reported that she was cute and that he liked having a baby sister. The relationship between the children and their sister is an important one, and it would be beneficial for them to maintain a relationship with her. Where it would be safe to do so, the children would benefit from maintaining a relationship with the husband.
The paternal grandmother gave evidence that she spends time with the children most weeks. Her evidence was that she has an affectionate relationship full of laughs and fun. I accept her evidence. I find that she has provided the husband with support, including driving the children to birthday parties and attending changeover. The children would benefit from having a relationship with the paternal grandmother to extend their relationship with her and understanding of their paternal family. Her willingness to be a supervisor provides further evidence of her support of the husband.
Anything else that is relevant to the particular circumstances of the child
It was submitted by counsel for the wife that, if the Court does not make orders removing supervision, but if the husband does engage in psychiatric treatment and makes the gains hoped, the evidence supports a finding that, having demonstrated an impressive capacity to promote and respect the relationship between the children and the husband, the wife would continue to do so. I agree with that submission, and I expect that the wife would continue to support the relationship. As such, the door may open in the future, if it is considered safe, for the parties to reach agreement in relation to a change to the children’s time with the husband. Further if the husband does have evidence of successfully addressing the identified risk factors such that there exists a sufficient change in the circumstances, in the absence of agreement, he could return to the Court.
CONCLUSION ON PARENTING
Orders for the children to spend supervised time only with the husband is in their best interests on the evidence before the Court. There are established, and admitted, risks posed to their safety from the husband. There is no evidence that the husband could ameliorate the risks posed by his mental health, and his personality, within any specified timeframe. There is no basis to make the order sought for supervision to be lifted in three months. The evidence supports a finding that such treatment may require many months or even years to be effective.
Long term supervision
Caution must be applied in making long term supervision orders for the reasons set out in Bielen & Kozma (2022) FLC94-123 and as observed in Norton v Landell [2015] FamCA 125 each case must be decided on its own facts. Considerations including the cost, the artificiality of the arrangement and the impact on the meaningful relationship between the children and the parent subject to supervision are relevant considerations. Whilst it is undesirable, it is not an unorthodox approach at law to make orders for supervision to continue in the long-term where the Court is satisfied that the time will be in the best interests of the children. This proposition was recently affirmed by the Full Court in the decision of Keighley & Keighley [2023] FedCFamC1A 146 at [130].
I have carefully considered the evidence and the safety issues in this matter and am satisfied that the ongoing supervision is necessary and in the best interests of the children for the reasons set out above. I note the effect is that in the absence of a change of circumstances these orders will continue until Y reaches the age of 18.
Orders for who the children should live with
It is agreed between the parties that the children should live with the wife. They have primarily lived with her since separation, and she is their primary caregiver. I make that order by consent.
Orders for time
The orders, as proposed by the wife, balance the competing interests of promoting the safety of the children, with the children’s needs, views, and benefit to them of spending time with the husband. As such, the orders which are in the best interests of the children are that the children spend supervised time with the husband on each alternate Friday from after school until the commencement of the first of the extracurricular activities of the children the following day, and if there is no extracurricular activity scheduled, until 10am. Such time is to be supervised by the paternal grandmother, after the provision of the agreed undertaking.
Y expressed wanting to spend more time with the husband. X expressed wanting to see him, but not as often. The children derive benefit from their time with the husband and share common interests of sport and, in particular, music. The children were familiar with seeing the husband on Wednesday nights pursuant to the previous arrangements. In order to maintain some more regular time with the husband and in accordance with the routine they previously spent with him, provided the paternal grandmother has capacity to supervise at that time, I order that the children will also spend time with the husband each alternate Wednesday night from after school and until the commencement of school on Thursday morning. This provides opportunity for the husband to engage with the children weekly and gives the children the opportunity to engage with the husband in normal school activities where he can collect and return to and from school with his mother present. It also provides that contact occur every week and that the husband can continue to be involved with the children’s other interests such as sport and music as well as their schooling.
The undertaking made on 15 May 2024 is an undertaking the terms of which were agreed between the parties. I consider that the form of the agreed undertaking is appropriate to ensure the adequacy of supervision performed by the paternal grandmother. Accordingly, the same terms will be made on a final basis.
It is proposed by the wife that in the event the paternal grandmother is unable to supervise, the parties will agree upon a supervised contact centre within 7 days of being notified that she is unable to supervise, and that the children will spend two hours each alternate Friday with the husband at that contact centre.
It was submitted by counsel for the husband, although in relation to the interim orders, that to employ a supervision agency, where the children are able to go places and do activities whilst being supervised, would be more child-focussed than in a supervised contact centre. The ICL proposed an order to this effect including that the professional supervision be at the husband’s cost.
The evidence of Dr Q was that professional supervision “often results in a loss of substantive contact”, is expensive and has limited capacity.
I accept the submission of counsel for the husband. I am also mindful that to have capacity to attend to different locations and undertake different activities may reduce some of the artificiality and limitations of supervision. In the event that the paternal grandmother is unable to supervise, the children should spend time with the husband supervised by a professional supervision agency, each alternate Friday from after school until 7.00pm and each alternate Wednesday from after school until 7.00pm, at the cost of the respondent. This will ensure he can spend time with the children in their usual routine either at his home or at their usual activities. The parties should agree on a professional supervision service and in the absence of agreement the husband should nominate three services and the wife will select the service to be used. The parties should ensure that they then forthwith register with that agency to ensure continuity of the children’s time with the husband.
No submissions were made about the time the children should spend during school holidays with the husband in circumstances where his time is to be supervised. Given the expressed wishes of the children and the benefits of spending time when children are more relaxed and not under the usual pressure of being at school, I accept it would be in the best interests of the children to have holiday time, provided that it is safe. During the holidays the children should spend time with the husband from Friday at 3pm until Monday at 3pm of the middle weekend of the first three school holidays of the year, and each alternate weekend from 3.00pm on Friday until 3.00pm on Monday during the long Christmas holiday supervised by the paternal grandmother. This gives the children regular time with the husband when they are not in school and ensure that they are able to spend what is typically the more relaxed holiday time away from the usual pressures of the school term routine. The parties are at liberty to agree to more or different times as may suit them. I note that the paternal grandmother is employed as an education professional and as such I infer that she would have more availability to supervise during the school holiday periods.
The husband sought orders that the parties spend time with the children on Mother’s day and Father’s day respectively from 5.30pm on the Saturday prior until the commencement of school immediately after. I find that this is an appropriate order to make and note that there is nothing prohibiting the parties from reaching agreement about this issue in any event. I will order that the husband shall spend time with the children over the weekend of Father’s day as sought, supervised by the paternal grandmother. I also order that the wife shall spend time with the children on the weekend of Mother’s day and to the extent the husband’s time with the children overlaps, the husband’s time with the children shall be suspended.
Orders for the husband’s attendance upon psychiatrist
All parties proposed orders for the husband to continue to engage with a treating psychiatrist.
The Court has power to make orders pursuant to s 67ZC relating to the welfare of children having regard to their best interest. There is no doubt that the husband’s engagement with a psychiatrist on a transparent basis would be in the best interests of the children.
Having consideration to the decision of the Full Court in Jacks & Samson (2008) FLC 93-387 an order compelling a parent to attend upon a therapist can be made pursuant s 67ZC absent an attached parenting order, but only if it is necessary for the welfare of the children.
The evidence of the experts was to the effect that there is no perfect formula for the number or frequency of attendances, or timeframe of treatment which the husband can comply with in order to remedy the mental health and personality issues identified.
I do find, however, that in circumstances where the husband consents to an order compelling his engagement with mental health treaters, it will be necessary for the welfare of the children for him to attend upon a treating psychiatrist for a period of no less than 12 months as directed by the treating clinicians. I find that it will be necessary for the welfare of the children during the first 12 months of the orders’ operation as: it will be a significant change of circumstances for the husband and the children; the husband would benefit from support to reckon with the findings and orders made; and I infer that the husband being supported through that process is likely to improve his parenting capacity.
In circumstances where these orders are final and they will be in place until Y turns 18 in 2034, and there is no evidentiary basis for the most effective timeframe or frequency of attendance for the husband’s treatment, it is not appropriate to make orders compelling the husband’s attendance for a period longer than 12 months. This is particularly so where the parenting orders made are not conditional upon the husband’s attendance upon his treaters. Noting the husband’s consent however, it is hoped that he will comply with the recommendations of his treating mental health professionals beyond any Court ordered period.
Orders and reasons for judgment to be provided to the husband’s treaters and Dr Q
The ICL proposed an order that either party be at liberty to provide to the husband’s treating psychiatrist, psychologist, and GP, with a copy of the reports of Dr Q, these reasons for judgment, and the final orders. This was consented to by both parties.
In circumstances where I have found it would be appropriate for the husband to attend upon his treaters for a period of 12 months, and in circumstances where I have made adverse findings against him and note that his truth-telling is in issue, it is appropriate for his treaters to receive the reasons as proposed and I make that order.
It was proposed by the ICL that he be permitted to provide a copy of the reasons for judgment and the final orders to Dr Q. This was consented to by the parties. Dr Q indicated a willingness to confer with the husband’s treaters to assist his treatment, and a notation to that effect is sought with the consent of all parties. In those circumstances, it is an appropriate order and notation to make.
Changeover
Both the wife and the husband seek orders that changeover occur either at school, at the first extra-curricular activity on a Saturday, or if those locations do not apply at McDonalds Suburb O.
I make orders for those changeovers to occur as set out by the wife, as I prefer her terms for their specificity.
Communication
The wife proposed an order that the children be available to communicate with the husband by electronic means each Wednesday between the hours of 6.00pm and 6.30pm.
In circumstances where the orders for the children to spend time with the husband are a significant reduction from their previous routine and relationship, it is in their best interest that there are orders for them to communicate with him regularly and at reasonable times that they request.
Given they will spend time each alternate Wednesday overnight if the paternal grandmother is able to supervise, I will order that if the children are not otherwise spending time with the husband, the children communicate by electronic means with the husband each Wednesday night between the hours of 6.00pm and 6.30pm, and at all other times they reasonably request.
The wife proposed that the parents continue to communicate using the 2houses application. The husband made no proposal in his minute as to how the parties should communicate in relation to the children in future. An interim order was made by consent at the conclusion of the trial that the parties will communicate using the 2houses application. There were no submissions as to why this would not be an appropriate order. In those circumstances, and where the parties have been using 2houses to communicate since 2020, I consider it appropriate to make the order as sought by the wife.
Information sharing
The parties and the ICL all sought orders that both parties be authorised to obtain information, reports and documentation from the children’s schools. I make the order by consent as I consider it in the best interests of the children that the husband be able to obtain and request information in relation to their schooling.
The wife and the ICL sought orders that the wife authorise the children’s medical practitioners to provide information about the children to the husband upon his request. This order is proposed by the wife and the ICL and as such I infer that they hold no concern about the husband misusing this right to harass the wife or the children. Being a parent who the children will spend time with, it is in their best interest that he has capacity to be informed as to their medical needs. Within this order the wife proposed that each parent shall notify the other of the names of any medical practitioner who treats the children whilst they are in their care. The husband proposed an order to the same effect. As such, I make the order in the form proposed by the wife.
The parties and the ICL sought, and I make orders by consent, to the effect that:
(a)Each parent shall keep the other informed of their residential address and telephone numbers at all times and notify the other in the event of any changes; and
(b)Each parent shall notify the other as soon as practical of any serious injury, illness, or emergency suffered by either of the children whilst they are in the care of that parent.
The wife sought an order that the parties give the other notice of their intention to live with any third parties, including any other children that will be living in the same household when the children are in their care. Having regard to the lack of transparency of the husband when living with Ms LL, and the arrival of NN, it is in the best interests of the children for the parties to keep the other updated of any changes to their household so that they might support the children through the associated changes in their lives. As such, I make the order sought by the wife.
The ICL sought that a copy of these orders be provided to the children’s medical practitioners and their schools. In circumstances where I have made orders that the husband is to spend supervised time only with the children, and particularly where changeover will primarily take place at school, it is appropriate that the orders are provided to the school and medical practice where the children may attend with the husband.
Restraints
The husband sought no restraints on the parties in his proposed parenting orders.
The wife sought orders that the husband be restrained from physically disciplining the children, the ICL sought that the same restraint mutually apply to both parties. There is, as set out above, evidence that the husband has used physical force upon the children and physically disciplined them which has caused them harm. It is an order that is in the best interests of the children that neither parent physically disciplines them. I find it is appropriate and in the best interests of the children to make the order as proposed by the ICL.
The wife and the ICL sought orders in the standard form that neither party denigrates the other party or their family members. The wife sought that the restraint extend to any form of communication whether written or verbally exchanged between the parties and/or other people, including to or in the presence or hearing of the children. The breadth of this order is extensive, and in my view would unnecessarily police the parties’ liberties. I prefer this aspect of the order proposed by the ICL. As such, I will make the restraint which is limited to the denigration being prohibited to the children or either of them or in their presence or hearing.
The wife sought an order that the parties be restrained from discussing the proceedings or any documents relating to the proceedings with or in the presence or hearing of the children and from permitting any other person to do so. To protect the children from the conflict between the parties would be in their best interests and I consider it an appropriate order to make.
The wife sought an order that the parties be restrained from video recording the other party and their family members during parenting changeovers. The husband has engaged in this behaviour during the course of the proceedings, despite the imposition of an ADVO with conditions that he does not harass the wife, and despite orders being made that he not do so. The husband in cross-examination admitted that this behaviour would be confusing for the children. I find that this behaviour was intimidatory and harassing of the wife, it was also a behaviour that the children were aware of and reported back to the wife. It is contrary to the children’s best interests for this behaviour to occur and as such I make the restraint as proposed by the wife.
The husband seeks an order that the parties be permitted to attend all extra-curricular activities, school and childcare events and activities or any other event relating to the children that allows for parental involvement or attendance. Having made findings that the husband should not spend unsupervised time with the children, that form of order is not appropriate.
It was put to the wife that the husband be allowed to attend the children’s extracurricular activities, and she indicated that would be fine if both parents were in attendance. In light of the orders, I have made in relation to the husband’s supervision, I will make an order that the husband be permitted to attend the children’s ancillary activities provided that the wife is also in attendance.
Overseas Travel
The wife sought orders that she be permitted to apply for passports for the children and to travel overseas with the children for up to 14 consecutive days during a period when the children are in her care, provided she gives notice and an itinerary to the husband. She also proposed that the husband have makeup time for any time missed, to be agreed between the parties. No submissions were made against those orders by the husband.
In circumstances where the children will live primarily with the wife and she will hold sole responsibility for decision-making in relation to major long term issues, it is appropriate and in the best interests of the children that they have the opportunity to travel internationally from time to time during holiday periods and it is appropriate that the children have a current passport. I make the orders as sought by the wife for the children to obtain and hold their passports, for them to travel overseas with the wife having provided notice to the husband, and that the husband will have makeup time upon the children’s return to Australia.
Costs
The parties consented to an order that they each pay the costs of the ICL in the amount of $8,511.25. I make the order by consent as set out in the minute of the ICL.
I certify that the preceding three hundred and eighty-four (384) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 3 September 2024
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