CAVOUR & CAVOUR

FAMILY COURT OF AUSTRALIA

CAVOUR & CAVOUR

[2019] FamCA 478

FAMILY LAW – CHILDREN – best interests – where the wife is seeking a change of residence – where the husband is seeking the wife spend time with the children subject to their wishes – where the wife alleges the husband has alienated the children – where the wife has not spent time with the children for over 16 months – where there are competing allegations of family violence – where the children do not wish to spend any time with the wife – where the children have consistently absconded when in the wife’s care – where the expert evidence is that to leave the wife’s relationship with the children as is may have severe psychological effects on the children – order for equal shared parental responsibility – order that the children remain living with the husband – order that the children spend time with the wife as they wish.

FAMILY LAW – PROPERTY – just and equitable – equal contributions – consideration of s 75(2) factors – where the husband has the primary care of the children of the relationship – monies added back to the pool of assets – adjustment of 54 per cent of the property pool to the husband and 46 per cent to the wife.

Family Law Act 1975 (Cth) ss 60CA, 60B, 60CC, 61DA, 65DAA, 75, 79

Evidence Act 1995 (Cth) s 140

Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545
Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
Stanford v Stanford (2012) 247 CLR 108
Vass v Vass [2015] FamCAFC 51
Watson & Ling [2013] FamCA 57; (2013) FLC 93-527

APPLICANT:

Ms Cavour

RESPONDENT:

Mr Cavour

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

BRC

9228

2010

DATE DELIVERED:

19 July 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

27, 28 & 29 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Ingleby

SOLICITOR FOR THE APPLICANT:

Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Werner

SOLICITOR FOR THE RESPONDENT:

Webb Korfiatis Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ambrose

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

Parenting
(1)That all previous parenting orders be discharged.
(2)That the father and the mother have equal shared parental responsibility for making decisions regarding the long-term care, welfare and development of the children, B (born … 2003) and C (born … 2005) (“the children”).
(3)That for the purposes of making decisions pursuant to order 2 hereof, save in the event of a medical emergency with respect to the children or one of them, the father and the mother communicate in writing with respect to any decisions regarding the children’s long-term care, welfare and development.
(4)That the children live with the father.
(5)That the mother spend time and communicate with the children in accordance with the children’s wishes.
(6)That the mother be permitted to forward to the children letters, cards and gifts as follows:-
(a)On the children’s birthdays;
(b)At Christmas; and
(c)Easter.

(7)That the father do all such things as may be required to:-
(a)Notify the mother of any serious illness or injury affecting the children;
(b)Authorise the children’s schools to provide the mother with school photographs and reports.

(8)That the mother and the father each notify the other in writing within 48 hours of any change to their residence or contact telephone numbers.
(9)That the father and the mother be and are hereby restrained by themselves, their servants or agents from:-
(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other; and
(b) Discussing these proceedings with or in the presence or hearing of the children and from permitting any other person to do so.
(10)That within 14 days the Independent Children’s Lawyer meet with the children to explain these orders.
(11)That within 30 days the appointment of the Independent Children’s Lawyer be discharged.
(12)That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property
(13)That within 30 days the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at her expense, all of his right, title and interest in the property situate at and known as Q Street, Suburb M (“Q Street”) in the State of Victoria free from encumbrance.
(14)That the husband retain, to the exclusion of the wife, all of his right, title and interest in the property situate at and known as L Street, Suburb M (“L Street”) in the State of Victoria.
(15)That the wife retain for her own use and benefit absolutely:-
(a)Q Street;
(b)The interim property payments received by her in the sum of $110,000; and
(c)Her accumulated superannuation entitlements in Super Fund 1 valued at $98,374.

(16)The husband retain for his own use and benefit:-
(a)L Street;
(b)The interim property payments in the sum of $90,000; and
(c)His accumulated superannuation entitlements in Super Fund 2 valued at $120,833.

(17)That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)That each party forego any claims that they may have to any superannuation or employment benefits belonging to or earned by the other;
(c)Insurance policies remain the sole property of the beneficiary named therein;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)Any joint tenancy of the parties in any real or personal property is hereby expressly severed.

(18)That all extant applications be otherwise dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: BRC 9228 of 2010

Ms Cavour

Applicant

And

Mr Cavour

Respondent

REASONS FOR JUDGMENT

Introduction

This matter comes before the Court in relation to both property and parenting proceedings. The parenting proceedings concern the parties’ two children, B aged 16 and C aged 14.
The parties separated on 3 June 2016 following the granting of an interim intervention order in the Magistrates’ Court of Victoria against the wife; the husband and the children were named as the affected family members. That day, the wife was required to vacate the former matrimonial home at L Street, Suburb M. The children have lived there with the husband since that time.
The wife commenced parenting and property proceedings in the Federal Circuit Court at Melbourne in August, 2016. Interim orders made by consent in the Federal Circuit Court at Melbourne on 15 May 2017 provide for the wife to spend time with the children on an increasing basis, culminating in them spending 5 nights per fortnight with her. Notwithstanding those orders, the children have spent no time with the wife since 31 March 2018.
That the wife’s relationship with the children has fractured over the course of these proceedings is not in doubt; the reason for the breakdown of that relationship is hotly disputed between the parties.
The wife’s case is that:-
·     She was the primary caregiver for the children and had a healthy relationship with them prior to separation;
·    The children are not fearful of the wife and she does not pose an unacceptable risk of harm to them;
·    The husband is delusional and has created a fiction that the wife poses a threat to the children;
·    The girls have been woven into the husband’s delusions and as a consequence have been alienated from the wife.
As a result of the husband’s alleged failure to support or facilitate the children’s relationship with the wife, she seeks an order that the children live with her. Further, the wife seeks that for the first 3 months following those orders they spend no time with the husband, it being her submission that such arrangement will enable the children to “recalibrate”.
The husband alleges that the children have been physically and verbally abused by the wife and it is as a consequence of her behaviour towards them that the children do not wish to spend time with her. Notwithstanding the allegations as to the wife’s behaviour, it was not contended on behalf of the husband at trial that the wife poses an unacceptable risk of harm to the children.
The husband proposes that the children spend time with the wife in accordance with their wishes.
The issue for the Court is whether orders can be framed to facilitate the re-establishment of the children’s relationship with the wife. The parenting issues dominated the trial.
The issue for determination with respect to property centred on who would retain certain identified assets.
These are my Reasons for Judgment with respect to the parties’ competing applications.

Background

The wife was born in 1969 and is aged 50 years. She is employed as a temporary administrative assistant.
The husband was born in 1972 and is aged 47 years. The husband migrated to Australia in 1996. The husband is self-employed as a tradesman, although at the time of the hearing he was not working.
The parties were married in August 1997. They divorced in January 2011, although continued to live together until final separation in June 2016.
As noted earlier, the parties have two children, B aged 16 and C aged 14.
In mid-2006 the parties and the children moved to Brisbane. The wife deposes that the move was motivated by the parties’ desire to work on their then deteriorating relationship.
The wife and the children returned to live in Melbourne in September 2010. Approximately 10 months later, in or around July 2011, the husband returned to Melbourne to live with the wife and the children. There is no dispute that following the husband’s return to Melbourne the parties remained living together until 3 June 2016.
The husband makes a series of allegations against the wife in relation to the physical and verbal abuse she allegedly perpetrated against the children and him during the relationship. Those allegations include that:-
·    On 10 January 2009 the wife cut the husband with a steak knife and B witnessed the incident. The husband deposed that the police were called and a Protection Order was made in the Queensland Magistrates’ Court;
·    In or around 2013 the wife violently forced vegetables down C’s throat;
·    In 2015, approximately two weeks before the wife and the children were to go to Japan, the “children wrote some notes to the Wife and I expressing their ill feelings about the upcoming trip alone with the Wife and imploring me to accompany them”. Those letters are contained in the husband’s Court Book (Exhibit R-2);
·    In April 2016 C informed the husband via a handwritten note that the wife had strangled C and that he confirmed what had happened with C. He deposed the wife attempted to justify her behaviour and slapped him;
·    In May 2016 the wife held C over the bathroom sink whilst forcing soap into her mouth. The husband intervened to stop the wife and contacted the police; and
·    The wife denigrated the children, on occasions saying that they were “fucking idiots”, “dumb” or “stupid”.
Notwithstanding the gravity of the wife’s alleged conduct, the husband did not press most of those allegations at the hearing. Indeed, many of the allegations made in the husband’s trial affidavit were not put to the wife during cross-examination.

INTERVENTION ORDERS

On 3 June 2016 an interim intervention order was granted against the wife with the husband and children named as affected family members. The circumstances which led to the making of that interim intervention order is in dispute between the parties. The husband asserts that the wife physically abused the children and as a result the police applied for the intervention order.
A catalyst for the parties’ separation was the allegation that the wife washed C’s mouth with soap. The husband deposed at paragraph 70 of his trial affidavit that in May 2016 the wife held C over the bathroom sink whilst forcing soap into her mouth. He further alleges that he intervened to stop the wife and then contacted the police. Following that incident the police applied for and obtained a family violence intervention order on behalf of the husband and the children.
The wife denies the allegation that she put soap in C’s mouth. She admits that in March 2016 she threatened C that “she should wash her mouth out with soap because she had been swearing”.[1] The wife asserts that a few days after she told C to wash her mouth out with soap the husband smacked C as she had been swearing.
[1] Affidavit of the wife filed 28 May 2018, paragraph 40.
During her oral evidence, the wife confirmed that she had a discussion with C regarding her swearing and admits that she told C she could wash her mouth with soap. The wife agreed that C was crying during that exchange and that both the husband and B entered the room during the discussion. Further, the wife stated that following that exchange she and the children researched the punishment online, as until that time, it was an expression with which the children were unfamiliar. The wife was not challenged with respect to that evidence.
During cross-examination the husband confirmed that the wife has always denied that she placed soap in C’s mouth.
C’s account of this incident to the family report writer, Dr G is set out at paragraph 125 of his first report annexed to his affidavit filed 12 May 2017. He notes C’s account that she had “answered back” to the wife, that the wife had pulled C into the bathroom and pushed a bar of soap into her mouth. Dr G also notes C’s report that she and B researched the punishment on Google whilst the wife was present.
The wife’s account of that event appeared genuine and plausible. C’s account of that event to Dr G is largely consistent with that of the wife, save as to whether the wife forced soap into her mouth. In my view, it seems unlikely that the children would have undertaken research of the punishment in the wife’s presence had C actually suffered that fate. In circumstances where there was no challenge to the wife’s evidence, and the evidence of Dr G is that the children may have exaggerated or embellished their accounts of events, I accept the wife’s evidence with respect to that incident.
The husband also alleges that the wife physically disciplined the children. The wife conceded that she smacked B on one occasion. She also alleged that during the relationship the husband also smacked the children when they misbehaved. Otherwise, the wife denied physically abusing the children and stated that she has only used physical discipline on the children on a “few occasions”.
The wife denies that she has ever attempted to choke C and deposed that she recalled an occasion where she held C across the chest.
As a result of the husband’s allegations of family violence, the police applied for and obtained a family violence intervention order. Following the making of that order the wife was removed from the L Street property.[2] The wife consented to a final intervention order without admitting the allegations on 18 October 2016. That intervention order expired on 17 October 2017.
[2] Affidavit of the husband filed 15 August 2018, paragraph 71.
The wife also made allegations that she had been a victim of family violence at the hands of the husband during the relationship.
Ultimately, most of these matters were not pressed during the hearing. Neither party sought to cross-examine the other with respect to the allegations levelled by them against the other. What is clear from both their sworn documents and oral evidence was that the parties had a highly conflictual relationship and that the children were exposed to that conflict for many years. The evidence of both the family report writer, Dr G and Mr J, who provided family integration therapy, which I accept, confirms that the children have been exposed to and are deeply affected by their parents’ conflict.
On 5 October 2017 the husband applied for an extension of the intervention order and an interim intervention order was made that day. On 24 July 2018 the application to extend the intervention order was struck out. At the time of the trial before me there was no intervention order in place between the parties.

CRIMINAL PROCEEDINGS AGAINST THE WIFE

In February 2017 the wife was charged by the police with six counts of assault against the children and the husband, in relation to events alleged to have occurred in the lead up to the parties’ final separation between March and June 2016. She was also charged with breaching the intervention order.
The hearing of those charges was listed in the Magistrates’ Court of Victoria in September 2017. The assault charges were withdrawn and the wife was offered a diversion in relation to the breaches of the intervention order on the condition that she continue to participate in counselling. No conviction was recorded with respect to the breach of the intervention order.
In November 2017 the wife was again charged with breaching the intervention order, the alleged breaches relating to her driving past the husband’s residence and approaching within 5 metres of the husband at changeover. Those matters were listed for a contested hearing in the Magistrates’ Court in April 2018. The wife was acquitted of all charges and was awarded costs in respect of those proceedings.

FAMILY LAW PROCEEDINGS

The wife filed her Initiating Application in the Federal Circuit Court on 8 August 2016.
The husband filed his Response to that application on 26 August 2016.
On 15 August 2016 Judge Riley made orders by consent, which included orders for the children to spend supervised time with the wife each fortnight for up to two and a half hours. An order was also made for the appointment of an Independent Children’s Lawyer (“ICL”).
In addition, orders were made for the proceeds of sale of the parties’ two properties located in Queensland (“the Queensland properties”) to be held on trust by the husband’s then solicitors. The proceedings were otherwise adjourned for a further interim hearing on 9 September 2016.
On 9 September 2016 (“September 2016 Orders”) Judge Riley made further interim orders that the children live with the husband and spend time with the wife under supervision of the V Group for not less than five hours per week. The orders also provided for the parties to attend Dr G in February 2017 for the purposes of the preparation of a family report and a separate counsellor for reportable family therapy.

The matter returned to Court for another interim hearing on 14 December 2016. That day orders were made for the wife to spend time with the children supervised by another contact service and that the parties be at liberty to enrol the children at Y School to commence from the start of 2017. Orders were also made for an interim property distribution to each party in the sum of $50,000.
The proceedings were listed for final hearing in the Federal Circuit Court on 15 May 2017 (“the May 2017 orders”). That day, Judge Riley transferred the matter to this Court and made interim orders in relation to the time the children were to spend with the wife. Those orders provided the children spend time with the wife as follows:-
5. For one month (5 weeks) in a two week cycle:-
a.week one from after school Thursday until the commencement of school on Friday, starting Thursday 1 June 2017; and
b.week two from after school Thursday until before school on Friday and from 4:00pm Saturday until 10:00am Sunday starting on Thursday 8 June 2017.
6.Until the conclusion of term 3, 2017, 20 July and commencing Thursday 2017
a.week one from after school Thursday to before school Friday; and
b.week two from after school Thursday until before school on Friday and from 9:00am Saturday until 7:00pm Sunday.
7.In the event the matter has not by then been finally determined then from the commencement of term 4, 2017 in two week cycle
a.week one from Thursday after school until Friday before school;
b.week two; from the conclusion of school Thursday until the commencement of school on Monday.
The May 2017 orders also provided for the children to spend time with the wife on special days and during school holidays. In addition orders were made for the release of $40,000 to the wife and the husband from the funds held upon trust for them by the husband’s lawyer.
The wife commenced spending time with the children pursuant to the May 2017 orders on 20 May 2017.

Time spent with the wife pursuant to May 2017 orders

The children were to spend time with the wife on 10 June 2017 pursuant to the May 2017 orders. That day the children were delivered to the wife’s residence but remained there for a period of less than 1 hour. The children allege that B was concussed during that visit following a blow to her forehead when the wife forced her bedroom door open. Following that incident both children ran away from the wife’s home and returned to the husband’s care. The wife denies the allegation that she injured B.
The wife describes the events of 10 June 2017 in detail at paragraphs 72 to 80 of her affidavit. The wife deposed that the husband delivered the children to her house at 4.00pm on 10 June 2017 and that the children ignored her, went into a bedroom and shut the door. The wife described offering activities for her to participate in with the children but that B declined her proposals as the wife had “abused her and C for 13 years”.[3]
[3] Affidavit of the wife filed 28 May 2018, paragraph 72.
The wife deposed that she attempted to open the bedroom door and that B complained that she bumped her. The wife apologised but B did not reply. The wife alleges that B neither cried nor complained following the bump from the door.
Later that day the children ran out of the bedroom and left the wife’s home. The wife deposed that:-
As it was getting late in the afternoon, I was worried and anxious about where the children might be heading, so I followed them and tried to encourage them to return to the house. The children went towards the park across from the former matrimonial home where they live with the [husband]. The [Husband’s] vehicle was parked outside the home. As I followed the children to the park I could hear B make a phone call to the police on her mobile phone.[4]
[4] Affidavit of the wife filed 28 May 2018, paragraph 74.
The wife deposed that she sent a text message to the husband informing him that the children had run away and seeking his assistance. The husband did not respond to that message. The wife deposed that the children waited in the park for the police to arrive and two police officers arrived at the park at about 4:30pm. The wife was requested to return home.
Later, the police officers attended the wife’s home and informed her that they were not pressing charges in relation to the incident. The wife’s evidence is that she received a phone call from the police that evening advising her that the husband and the children were at the police station.
The husband’s evidence is that the police “insisted” that the children remain with him and advised him to take B to a doctor for medical assessment. The husband deposed that he took B to X Hospital for assessment and that she was treated for concussion.[5]
[5] Affidavit of the husband filed 15 August 2018, paragraph 90.
The wife denies the allegation that she forced the door open with such force that it would cause an injury to B’s forehead. The wife maintains that the police did not inform her that B had sustained an injury.
Although each party provided detailed evidence of that incident in their trial affidavit material, the allegations and counter allegations were not pressed before me and I was not asked to make findings with respect to the allegations raised against the wife.
What is clear from both parties’ accounts is that the children were highly resistant to spending time with the wife and prepared to abscond from her care in order to avoid spending time with her. Further, if the wife’s account is correct, it would appear that the children are prepared to mislead police and medical practitioners in order to thwart the wife’s efforts to spend time with them.
As a result of that incident, the Department of Health and Human Services (“the Department”) commenced proceedings in the Children’s Court on 29 June 2017; as a consequence, s 69ZK of the Family Law Act 1975 (Cth) (“the Act”) was invoked and the wife spent no time with the children between 10 June 2017 and 28 September 2017.
The Children’s Court proceedings were concluded on 18 September 2017 on the basis that the Department’s application was withdrawn and each of the parties provided undertakings to the Court. The husband’s undertaking was in the following terms:-
I will encourage the children to have a positive relationship with the wife.
The wife’s undertaking was that she:-
…will not enforce the existing Family Law Act Orders for time with the children until further parenting orders are made in the Family Court of Australia.
The matter was listed for interim hearing in the Family Court on 21 September 2017. That day orders were made by Senior Registrar FitzGibbon confirming that the operation of the May 2017 Orders, which provide that the wife spend time with the children on a weekly basis, resume forthwith, save that there was some modification of the time to be spent during the September term holiday period.
On 22 December 2017 the children again ran away from the wife during a period in which they were to spend time with her. The wife deposed that that morning the children demanded that they be returned to the husband and that she drove the children to the Suburb Z police station to effect changeover. The wife deposed that when she arrived at the police station the children refused to leave her vehicle. The wife entered the police station to enlist the assistance of a police officer. Upon her return to her vehicle the children were not present, having absconded to their school.
Further orders were made by consent on 14 March 2018. Those orders confirmed that the operation of the May 2017 orders that provided for the children to spend time with the wife for 5 nights per fortnight continue. Further, orders were made that the parents and the children attend upon Mr J for reportable family integration therapy.
The children next spent time with the wife on Saturday 31 March 2018 from 5.00pm until 6:30pm at a restaurant in Suburb AA. The wife deposed that the children “continued to be reluctant to engage in any conversation” with her on that occasion but that otherwise the time proceeded without incident.
The husband’s evidence as to that occasion, as contained in his trial affidavit is as follows:-
I accompanied the children and my sister to the carpark of [a restaurant] in Suburb AA. The children were visibly upset and anxious about the impending time with the [Wife]. C [sic] stated repeatedly on route that she was not going to go. I reassured the children that they would be safe, that they would be spending time with the [Wife] in a public place with plenty of other people around and that it was only for a short time.[6]
[6] Affidavit of the husband filed 15 August 2018, paragraph 104.
The husband deposed that after he collected the children they refused to talk to him and continued their “disengagement” from him and did not talk to him until the following Monday. Save for appointments with Mr J, the wife has spent no time with the children since 31 March 2018.

The alleged assaults on the husband

In the period leading up to the final hearing the husband alleges that he was the victim of two assaults; the first on 23 April 2018 and the second on 3 June 2018. The husband asserts he was assaulted by unknown persons.
In relation to the first occasion, the husband deposed that on 23 April 2018 at approximately 8:30pm he went for a walk. When he was about 400 metres from his home at approximately 9:20pm two men approached him, called his name and one of the men said “when are going [sic] to learn to shut your fucking mouth?”. The husband deposed that the man punched him on his forehead and the other man punched him on his cheek. He deposed that he attempted to block the punches but the men continued to “land punches” on his face and arms. He further deposed that the men warned him not to go to the police, and said to him if he did they would “come back and bash me in front of the children “so that they would learn to shut their fucking mouthers as well””.
The husband was taken to X Hospital by ambulance and the police attended upon him at hospital to take a statement. The husband was discharged from hospital the following day. The husband alleges that following that assault he and the children did not feel safe in the home and moved temporarily to live with his sister in Suburb BB.[7]
[7] Affidavit of the husband filed 15 August 2018, paragraph 117.
The children were not made available for therapy with Mr J on 2 May 2018.
At the mention hearing on 7 May 2018 directions were made listing the matter for final hearing. The husband did not attend that hearing as a result of his injuries from the alleged assault.
The second alleged assault occurred on 3 June 2018. As to that incident, the husband deposed that he was working in his sister’s garage and that:-
A man unknown to me approach me and asked me if the white van parked outside the house belonged to me. As I approached the man, he punched me in the face. The man said to me “how long will it take you to keep your mouth shut? And “this will keep happening until you learn to keep your mouth shut”.[8]
[8] Affidavit of the husband filed 15 August 2018, paragraph 119.
The husband deposed that the man continued to assault him until he lost consciousness. He deposed that he regained consciousness while being treated by paramedics.
Exhibit A-6 was a Multi-trauma Admission form from CC Hospital in relation to the husband’s hospital attendance on 3 June 2018. That document records the husband’s presenting history as follows:-
Unwitnessed fall in garage at home.
? facial injurie
…?AA – Pt claims he was punched…Has court date tomo. Very distressed ? Self harm. [Sic]
The husband was cross-examined in relation to the alleged assaults. He confirmed during his oral evidence that it was his view that the wife had engaged someone to assault him. He also confirmed that it is B’s belief that the wife organised the assault on him. The wife denies all allegations that she was responsible for the alleged assaults on the husband.
The matter was listed for mention before me on 8 June 2018 as a result of the alleged incident on 3 June 2018. That day I made orders that the husband provide the wife’s solicitors with the CCTV recordings of the alleged assaults. No documents were produced by the husband pursuant to that order.
The husband was cross-examined as to his failure to produce the CCTV records of the incident. The husband’s explanation for his failure to produce those records was that the CCTV footage erases after seven days. Given the seriousness of the allegations and the fact that the assaults were reported to police, I found the husband’s evidence in relation to his failure to produce the video records of the assaults to be implausible. In my view it is unlikely that if the assaults occurred within view of security cameras, every effort would have been made to ensure that such video footage was retained to enable police to identify and prosecute the perpetrators of such assaults. The husband’s evidence that he did not retain the security footage was unconvincing.
There is no evidence before me that satisfies me that the wife had any role in the alleged assaults on 23 April 2018 or 3 June 2018. Indeed, having regard to the hospital records of 3 June 2018 (Exhibit A-6) which raise questions as to whether the husband’s injuries were a result of a fall or self-harm, it is unclear whether the husband was assaulted on that occasion.
I am satisfied, having regard to the husband’s own admission and the evidence of Mr J, that the children were informed of the alleged assaults on the husband. I am also satisfied, having regard to the evidence of Mr J that the children believe that the wife orchestrated the alleged assaults on the husband.

The husband’s adjournment application

On 20 June 2018 the husband’s lawyers filed a Notice of Ceasing to Act.
The final hearing was listed to commence before me on 6 August 2018. That day, the husband appeared in person and made an oral application for an adjournment of the proceedings. The wife made an application for the matter to proceed undefended on the basis that the husband had not filed any trial material in compliance with my earlier orders. Upon hearing submissions I adjourned the hearing to 27 August, 2018. The husband was ordered to the pay the wife’s costs of that day fixed in the sum of $5,890.
Following that hearing the husband engaged lawyers to represent him. The hearing commenced on 27 August 2018 and proceeded over three days, concluding on 29 August 2018.

Material Relied Upon

The wife relied upon the following documents:-
·    Case Outline dated 2 August 2018;
·    Further Amended Initiating Application filed 28 May 2018;
·    Financial Statement filed 28 May 2018;
·    Affidavit of the wife filed 28 May 2018;
·    Affidavit of Ms DD filed 28 May 2018;
·    Affidavit of Ms EE filed 28 May 2018;
·    Affidavit of Ms FF filed 28 May 2018.
The husband relied upon the following documents:-
·    Case Outline dated 26 August 2018;
·    Amended Response to Initiating Application filed 15 August 2018;
·    Financial Statement filed 15 August 2018;
·    Affidavit of the husband filed 15 August 2018;
·    Affidavit of Ms P filed 14 August 2018;
·    Affidavit of Dr HH filed 15 August 2018;
·    Family Report prepared by Dr G dated 1 March 2017;
·    Updated Family Report prepared by Dr G dated 31 January 2018; and
·    Counselling report of Mr J dated 10 July 2018.
The ICL did not file a case outline. She relied upon the evidence of the family report writer, Dr G and Mr J, as contained in the reports referred to above.

Orders Sought – Parenting

The wife seeks orders in the terms set out in her Case Outline dated 2 August 2018. Those orders include that:-
·    The children live with the wife from the date of the orders for a period of 90 days and that the husband be restrained from communicating with the children for that period;
·    The wife have sole parental responsibility for the children during the above period and otherwise the wife and the husband have equal shared parental responsibility;
·    At the conclusion of the period of 90 days or such longer period as recommended by Mr J, the children live with the wife and spend time with the husband as follows:
a)During school terms in week one and each alternate week thereafter, from the conclusion of school (or 3.30pm if a non-school day) on Thursday until the commencement of school on Monday (or 9:00am if a non-school day);
b)During school terms in week two and each alternate week thereafter from after school on Wednesday (or 3.30pm if a non-school day) until the commencement of school on Thursday (or 9:00am if non-school day);
c)For one half of all school term holiday periods by agreement and in default of agreement, the first half to commence at the conclusion of school on the last day of the school term and conclude at the mid-point of the holiday period;
d)For one half of the summer long holiday period by agreement and in default of agreement, on a week-about basis with changeovers to occur each Friday at 5:00pm with the children's time with the Husband to commence in the first week in odd numbered years and the children's time with the Wife to commence in the first week in even numbered years;
e)For specified periods on Husband's day, on each of the children's and the husband’s birthday, at Christmas and Easter.
·The Husband's time with the children be suspended for specified periods on Mother’s Day, the wife’s and the children’s birthdays;
·The parties notify each other within 48 hours of any proposed permanent change of residence;
·Each parent notify the other of any serious illness or injury affecting the children;
·Each parent keep the other advised of all sporting or extra-curricular activities in which the children are involved and permit the other to attend such activities; and
·The parties be at liberty to provide a copy of the orders to one or more of the following:
a)The Principal or delegate of the Principal of the school attended from time to time by the children and;
b)Any Medical Practitioner and/or allied health professional including a school counsellor or other counsellor or psychologist attending upon the children.
The husband seeks parenting orders in the terms of his Case Outline dated 26 August, 2018, namely that:-
·The parties have equal shared parental responsibility for the children;
·The children live with the husband;
·The children spend time and communicate with the wife in accordance with their wishes; and
·The husband shall facilitate the children or either of them spending time with the wife in accordance with any request made by them.
At the commencement of the hearing the ICL sought orders in the terms of Exhibit ICL-1, which was tendered on the second day of the hearing. The orders sought by the ICL, as set out in that document, largely mirrored the husband’s proposals.
However, by the time of closing submissions the ICL’s position had altered and interim orders were sought on her behalf in the following terms:-
·The children live with the husband and spend time with the wife each alternate week from Thursday after school until 6.00 p.m. Saturday, such arrangement to continue for a period of 3 to 9 months;
·The changeovers be facilitated at Mr J’s office;
·The children be brought to Court and informed of the orders by the trial judge; and
·The ICL have liberty to apply.

Evidence

Findings are made on the balance of probabilities having regard to the evidence. In applying that standard the Court must have regard to the nature and subject matter of the case and the gravity of the matters that are alleged (s 140 Evidence Act 1995 (Cth)).

I have read all documents upon which the parties have relied and the exhibits tendered during the hearing. I have also had the benefit of observing the appearance and demeanour of the parties when giving their evidence in Court.
In making my findings, I have given careful consideration to all of the evidence, the nature of the proceedings, the seriousness of the allegations made and the consequences that flow from those findings.

Evidence of the wife

The wife gave evidence and was cross-examined by both counsel for the husband and the ICL. Throughout her oral evidence, the wife impressed as a forthright and truthful witness. I am satisfied that her commitment to restore her relationship with the children was genuine and that she was sincere in her belief that the relationship was capable of repair.
The wife made a number of concessions during her oral evidence which were adverse to her interests. The wife acknowledged that she had on occasion smacked the children. The wife also readily acknowledged that the children’s behaviour towards her was hostile and aggressive and that they blamed her for their difficulties. Indeed, the wife conceded that the children blame her for “everything and anything”. The wife also conceded that the children’s behaviour towards her continued to worsen.
The wife demonstrated considerable naivety as to her prospects of successfully altering the children’s negative views of her. Notwithstanding her concession that the children’s behaviour was worsening, the wife expressed the view that as she and the children had previously enjoyed a “great relationship” she was confident she could restore that relationship.
The wife conceded that the basis for that belief was founded on the husband supporting the children spending time with her and telling the children that they must spend time away with the wife. Having regard to the history of the matter and the wife’s contention that the husband, by his actions, has alienated the children from her, in my view, there is little prospect of the husband providing such support to the restoration of the children’s relationship with the wife; that fact appeared lost on the wife.
The wife acknowledged that there was a possibility that the children would simply refuse to go with her and indeed that such outcome was probable. Nonetheless, the wife expressed the view that even though there was little prospect of successfully implementing her proposals, there should be some attempt to shift the children.
The wife also conceded that the children are fully aligned with the husband, that their alignment to the husband was as strong as their rejection of the wife and that they have a deep loyalty to him. Indeed, the wife conceded that the children are engaged in a war against her and that their loyalty to the husband has strengthened since the parties’ separation in June 2016.
The wife also agreed that if there were a change of residence in accordance with her proposals the children would be extremely angry. She acknowledged that in order for her proposal to be successfully implemented the husband and members of his extended family, particularly his sister, would have to support and assist in encouraging the children to remain with her.
The wife also acknowledged that if the children did run away from her following a change of residence that she would have concerns for their safety. She conceded that in that event she would need to involve the police to secure their return. She expressed a hope that she would not have to resort to those measures.
Whilst the wife is to be commended for the concessions made, her evidence in relation to the children’s response to her and their likely response if orders were made in the terms sought by her, serve only to highlight the improbability of being able to successfully implement a change of residence as sought by her.
Both parties were psychiatrically assessed by Dr H, psychiatrist. His reports in relation to the parties are annexed to his affidavit filed 3 April 2017. Dr H concluded that the wife does not present with a psychiatric condition. At page 8 of his report he observed the wife to be forthcoming with respect to the level of conflict between the parties prior to their separation and was observed to have experienced sadness and grief as a result of the loss of her relationship with the children. I accept that evidence, which accords with my own observations of the wife when giving her oral evidence.

Evidence of the husband

Counsel for the husband conceded that his client’s presentation was odd. It was his submission that the husband presented as being genuine but naïve, that is, the husband is genuine in his belief that the children have been mistreated by the wife and he is sympathetic to their pain. Counsel for the husband submitted that whilst the husband places some weight on the importance of the children having a relationship with the wife, it is not his highest priority.
Dr H’s assessment of the husband was that he has an adjustment disorder with anxious mood and a possible delusional disorder. At page 15 of his assessment, Dr H describes the husband’s presentation as follows:-
…[the husband] impressed as steely in his resolve to protect the children, could find nothing positive to say about [the wife], obviated any responsibility in regard to his part in the conflict between them and impressed as having gained complete control over the children whose views of [the wife] have become highly entrenched.
Further, at page 16, Dr H observes of the husband:-
At interview his account was forcefully provided and I felt I was in the company of someone who had convinced himself of all that he told me, and his views in regard to [the wife], if provided in the same manner as to me, would I believe be highly convincing to [the children] [sic]. At all times [the husband] saw himself as being conspired against by [the wife] and her cronies and to the extent that she may well have had a good relationship with the mothers at the school, those relationships were dismissed by [the husband] as a group of mothers who not only were attacking of him, but had also attacked the school and its good name.
Dr H observes that the husband’s thinking was conspiratorial in flavour and appeared immutable and not amenable to reason or change. There was no challenge to Dr H’s evidence, which I accept.
The husband’s evidence before me was consistent with the observations of Dr H. During cross-examination the husband confirmed that he required a formal admission from the wife as to the abuse she had perpetrated against the children. He also gave evidence as to the conspiracy he believed had been perpetrated to cover up the wife’s abuse of the children. During cross-examination he confirmed that his former lawyers had been part of that conspiracy. That conspiracy included the refusal of his former lawyers to present police records to the Court.
The husband confirmed during his oral evidence his fixed view that all responsibility for the breakdown in the children’s relationship with the wife rests at the wife’s feet.
Further, he confirmed during his oral evidence that it was his belief that there had been collusion between the ICL and Ms E, who had provided therapeutic counselling for the family.
The husband also confirmed during his evidence that it was his belief that the wife had hired a hit-man to kill him. There is no evidence before the Court that would support those allegations.
The husband’s evidence was troubling in many aspects. I accept the submission of his counsel that the husband was genuine in his beliefs. However, many of the beliefs espoused by him are not supported by evidence, lending weight to the observations of Dr H that the husband has a possible delusional disorder.
Although counsel for the husband conceded at the outset that his client had abandoned his contention that the wife presented as an unacceptable risk of harm to the children, the husband’s oral evidence confirmed that he continued to maintain a belief that the wife had subjected the children to physical and verbal abuse. The husband’s evidence was inconsistent with the case put on his behalf.
Further, the husband was unwilling to make concessions where they could fairly be made. Much of the husband’s evidence in relation to the conduct of the wife, his former solicitors and the ICL was unconvincing.
The husband was unwilling to make any concessions as to the wife’s parenting capacity. The husband did not recognise the inconsistencies within his own case. For example, whilst maintaining that he was the children’s primary carer during the relationship and that the wife posed a risk to the children, it is common ground between the parties that the children lived in the wife’s sole care for a period of approximately 10 months upon their return to Melbourne from Brisbane. Further, it was conceded by the husband that it was intended that the children travel with the wife to Japan for a vacation without the husband. The husband was unwilling to make any concessions as to the wife’s role in the children’s lives notwithstanding her role as primary carer, at least for that 10 month period when the husband continued to live in Brisbane.
The obvious inconsistencies in the husband’s evidence, his unwillingness to make appropriate concessions, coupled with the fanciful quality of much of his evidence with respect to the conspiracies engaged in by his former lawyers, counsellors and the ICL, support my view that his evidence must be treated with caution.

Evidence of Ms DD

Ms DD is the maternal aunt of the children. She swore an affidavit filed on 28 May 2018 in support of the wife’s application.
In that affidavit Ms DD deposes as to her observations of the wife’s care of the children. She deposes that she has been a part of the children’s lives since their birth, that her son and B had their baptism, communion and confirmation together and attended school together. She deposes that the maternal family were very close, that she would see the wife two to three times per week and that prior to the parties’ separation, she would regularly collect the children from school.
Ms DD deposed that she observed the children’s “loving and affectionate relationship” with the wife, that they would hug and kiss the wife and that “they had a close mother and daughter bond”.
Ms DD also deposed that the wife was “very involved” in the children’s lives, attending school activities, sports days and reading clinics.
Ms DD deposed that her relationship with the children changed upon the parties’ separation. At paragraph 15 of her affidavit she deposes:-
In June 2016 this immediately changed. The children’s maternal family were cut off from them and [the husband] no longer allowed our family to spend time with or communicate with B and C. On 2 November 2016 [the husband] made an Application for an Intervention Order against me. An Interim Intervention Order was made on 2 November 2016 which included B and C. Prior to the Contested Hearing the Application was withdrawn. I have not attempted to make further contact with B and C as I am concerned [the husband] will make further false allegations against me.[9]
[9] Affidavit of Ms DD filed 28 May 2018, paragraph 15.
Ms DD was not required for cross-examination and there was no challenge to her evidence. Accordingly, I accept her unchallenged evidence.

Evidence of Ms EE

Ms EE is a friend of the wife. She swore an affidavit filed on 28 May 2018 in support of the wife’s application. Ms EE deposes that she has shared a friendship with the wife for approximately eight years, her children attending the same primary school as the parties’ children. She deposed that B and C also played netball with her daughter and that she was the team coach and the wife was the team manager. In later years, she deposes that the parties’ children and her daughter played soccer together.
In addition to their children’s shared sporting interests Ms EE deposed that her family went camping and snow skiing with the wife and the children. Ms EE deposed that she witnessed “a lot of laughter, encouragement and positivity between [the wife], B and C”. Ms EE deposed that she observed the wife and the children to have a very close and loving bond but noted that she had not seen the children for approximately two years.
Ms EE was not required for cross-examination and I accept her unchallenged evidence as to the children’s relationship with the wife prior to the parties’ separation.

Evidence of Ms FF

Ms FF is a friend of the wife who has known her and the children for seven years. Ms FF’s daughter attended primary school with C. Ms FF swore an affidavit in support of the wife’s application which was filed on 28 May 2018.
In her affidavit Ms FF deposes that she spent time with the wife and the children on a weekly basis, that her daughter played netball with the children, that she would take it in turns with the wife to take the children to training and tutoring. She also deposes that the children regularly enjoyed sleepovers at each other’s homes.
Ms FF deposes that during that period she observed the children to present as happy and well-adjusted and that they displayed affection towards the wife. At the time of swearing her affidavit Ms FF had not seen the children for two years.
I accept Ms FF’s evidence, which was not challenged.
Having regard to the unchallenged evidence of Ms DD, Ms EE and Ms FF I am satisfied that prior to the parties’ separation the wife was actively involved in all aspects of the children’s school life and extra-curricular pursuits and that she shared a warm and loving relationship with the children.

THE EXPERT EVIDENCE

Evidence of Ms P

Ms P is a counsellor and psychologist practising at a community counselling support service. Ms P has provided the children with counselling since June 2016. She has prepared two reports in relation to her treatment of the children dated 1 March 2018 and 7 August 2018, both of which are annexed to her affidavit filed on behalf of the husband on 14 August 2018.
In her first report dated 1 March 2018, Ms P confirmed that she has provided counselling to C primarily, as well as B since June 2016 and that those sessions have included individual, conjoint sibling sessions and family sessions with the husband. At no time has Ms P engaged with the wife.
Ms P reports that from the outset the children have expressed a desire to live with the husband whom the children describe as “nurturing, caring and safe”. Ms P reports that the children have “remained resolute in their rejection of [the wife]”.
Ms P reports that attempts to require the children to live with the wife have resulted in a heightening of the children’s anxiety and fear of the wife, that their concern for their safety whilst in the wife’s care was extreme and that the children were angry at being compelled to stay with the wife against their wishes.
At page 3 of that report, Ms P reports that the outcome of those arrangements was that:-
·The girls’ contempt and anger towards the wife worsened as she continued to attempt to convince them to come out of their room to participate and engage with her.
·Their beliefs about the wife as abusive, forceful and hostile were reinforced due to the level of conflict the situation engendered.
·Police were called following extreme conflict on several occasions.
·Safety concerns following the girls running away from conflicts and struggles with wife and their need to escape out of fear.
At page 4, Ms P summarises the children’s psychological state as follows:-
The children have a fearful and negative view of [the wife] as a result of the history of family violence and the abuse perpetrated towards them. They have emotionally detached from [the wife] and remain rejecting of her advances.
In her second report dated 7 August 2018, Ms P notes that the children’s view of the wife remains unchanged from her previous report and that they continue to harbour resentment and anger at the wife’s continued attempts to win them back.
Ms P was cross-examined by counsel for the wife as to her observations of the children. During her oral evidence, Ms P confirmed that the children were referred to her by a victims of crime organisation. She confirmed her view that it was her role to support the children and the husband following the parties’ separation. The wife was not included in the family counselling sessions.
Ms P confirmed that when the wife emailed her requesting a meeting, she declined that request stating that to do so would give rise to a conflict of interest in terms of her professional duties to the children. Further, Ms P confirmed that in assessing the matter she was relying on the history provided to her by the husband and the children as well as statements from the Department of Health and Human Services.
Ms P confirmed that she had not read the psychiatric assessment of the husband prepared by Dr H. She indicated that she was aware of Dr H’s assessment that the husband has a possible delusional disorder but did not agree that that assessment was cause for concern.
Ms P attached to her first report a letter written by B to the wife in 2016. That letter is a nine-page diatribe as to B’s view of the wife’s failings. It commences as follows:-
To Ms Cavour,
You have never been a good mother and I hated you every day because of it.
The letter continues to list the wife’s many faults, as assessed by B. It describes B’s experience accompanying the husband to Court, her complaints about the behaviour of friends of the wife, the wife’s sister and her friends from the school she previously attended. It urges the wife to change, including that the wife discard her friends. At page 7 B describes her thoughts of suicide.
At page 8, the letter concludes as follows:-
If you loved either of us you would be loved back but I can truly see that there is no love inside of you. Let me know what you want to do because right now the last thing I wanna do is spend the rest of my life with you! If you are taking us to court remember you will have to look at me right in the face and I will hate you for as long as I live. You always told us to tell the truth. Yet you lie all the time. Show us the meaning of telling the truth. We are going to wait for your answer.
In addition to that letter, Ms P also attached a consent for release of information signed by B and dated 26 February 2018. That consent form stated:-
I hereby give permission for information to be exchanged between the following people: The Solicitors + Court – Mr LL, MM Lawyers.
For the purpose of conveying information regarding my thoughts and views in my letter from July 2016.
At the time B signed the consent form she was aged 14 years. During her oral evidence, Ms P confirmed that she had requested B to execute the consent to produce B’s handwritten letter. Ms P confirmed that it was her view that at age 14, B had the capacity to provide such consent. In seeking B’s consent, Ms P stated that she asked B whether it was important for her to tell the Court how she felt. For this reason she considered that it was appropriate to seek B’s consent to its release.
Ms P’s evidence indicates that she has little awareness or understanding as to the issues before the Court. She was accepting of all that she was told by the husband and the children as to the wife and her conduct without question.
In light of Ms P’s evidence, counsel for the wife submitted that Ms P enabled the over-empowerment of the children and that requesting B to execute the consent form was an example of her role in emboldening the children. It was submitted that her action in seeking B’s consent to release the letter was unprofessional. I accept that submission.
Counsel for the husband conceded that Ms P did not engage in any objective testing of the children’s views. He confirmed that Ms P did nothing to disabuse the children of their adverse views of the wife. I agree with that assessment of Ms P’s conduct.

During closing submissions, counsel for the husband did not take issue as to the quantum of the moneys received by him for which the husband has failed to account. Rather, he urged the Court to exercise its discretion in favour of the husband in circumstances where he has had the sole care for the children of the marriage since separation, with little financial support from the wife.
Counsel for the wife urged the Court to add back the unaccounted for $88,766 to the pool available for distribution. He highlighted the absence of any explanation from the husband as to how those funds have been applied. Absent such evidence it was submitted that the funds retained are a substantial amount, represent property of the parties and should be included in the pool available for division.
The husband’s evidence is that part of the proceeds of sale from the Queensland properties have been applied to the payment of the children’s school fees, their orthodontic treatment and general living expenses for the children. To that extent, the wife has contributed to the financial support of the children. Therefore, having regard to that evidence, I do not accept the husband’s submission that the wife has not made financial contribution to the children’s support in the post-separation period.
The Full Court considered the question of add-backs in the decision of Vass v Vass [2015] FamCAFC 51. At paragraph 138, the Full Court considered the question of a notional add-back of property which is no longer in existence but which one party has had the use of. It held:-
There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 - is authority for any necessary contrary solution.
…
(Emphasis omitted)
The husband has adduced no evidence as to how he has applied the balance or proceeds of sale of the Queensland properties. Those funds were monies acquired during the marriage as a result of the parties joint efforts. Having regard to those matters, I am satisfied that justice and equity requires that that sum be included in the pool of assets available for division.

Section 75(2) factors

The husband is aged 47 years. He is self-employed as a tradesman although at the time of the hearing maintained that he was unable to work due to ill-health. He discloses no income in his Financial Statement.
The wife is aged 50 years. She is employed on a part-time basis in administration and discloses an income of $790 per week in her Financial Statement.
Neither the husband nor the wife have re-partnered.
The husband maintains that he suffers ill-health. He relied upon the evidence of his general medical practitioner, Dr HH in support of that contention. In his report dated 13 August 2018 annexed to his affidavit filed 15 August 2018, Dr HH deposes that:-
[The husband’s] main previous medical condition is a degenerative lumbar and cervical spines [sic] which causes headaches, arm pain and weakness and leg weakness. These spinal conditions have resulted in [the husband] being unable to work for the past 2 years.
Further, Dr HH deposed that:-
Given the extent of [the husband’s] physical and mental health conditions, the prognosis is poor. He has not improved and remains very unwell. His neck and back pain and resultant arm and leg weakness significantly impact his prognosis.
Dr HH was cross-examined in relation to his assessment of the husband. Much of the cross-examination focussed upon Dr HH assessment that the husband suffers from post-traumatic stress disorder.
Dr HH confirmed that he had referred the husband to a psychiatrist for care. At the time of trial, the husband had not attended upon a psychiatrist. Further, Dr HH confirmed that he was unaware of Dr H’s assessment of the husband.
Dr HH confirmed he had not communicated with the husband’s treating orthopaedic specialist since November 2016. Dr HH had little current information in relation to the husband’s condition. Dr HH’s assessment of the husband was heavily reliant upon the information provided to him by the husband. It was clear from Dr HH’s oral evidence, that the husband has not actively sought treatment in relation to his spinal condition since November 2016.
The wife’s case is that the husband continues to work. In support of that contention she relies upon the fact that the husband’s business website continues to operate, and that he continues to maintain the mobile telephone number advertised on that site. The husband’s evidence is that he maintains a second phone number purely to enable direct communication between he and his lawyers and the police for the purposes of these proceedings. During his oral evidence, the husband maintained that he was concerned that telephone calls from his lawyers and the police were intercepted and he maintained a separate phone in order to maintain his privacy around those communications. When asked who was intercepting his phone calls, the husband asserted that it may be a person associated with the wife. The husband adduced no evidence to support that allegation.
The husband’s evidence in relation to those matters was unconvincing. In circumstances where the husband continues to maintain a business website and an active telephone number associated with that website, I do not accept the husband’s contention that he will not work following the conclusion of these proceedings.
As a result of the parenting orders I will make, the husband will continue to be responsible for the care of the children. The wife will pay child support in accordance with any assessment of the Child Support (Assessment) Act 1989 (Cth).
The husband seeks a modest adjustment to take into account s 75(2) factors. Based on his proposal he seeks approximately 54 per cent of the pool, including the moneys retained by him.
I am satisfied that a modest adjustment in favour of the husband is appropriate taking into account his ongoing responsibilities for the care of the parties’ children.
The pool of assets, including the monies retained by the husband to be added-back and the parties’ superannuation, totals $2,227,973.
The husband seeks to retain the property at L Street in which he resides with the children. The wife also seeks that property. The wife’s application is made on the assumption that the children will be living with her.
In circumstances where I have determined that it is in the children’s best interests that they remain in the husband’s care, in my view the L Street property should be retained by the husband. This will ensure that the children can remain living in their settled environment.
In addition to that property, the husband will retain his interim property distribution of $90,000 and the moneys retained by him, which totals $88,766. Although the wife initially sought a superannuation splitting order, that matter was not pressed. Accordingly, each party will retain their accumulated superannuation entitlements. The husband’s entitlements are valued at $120,833.
Hence, the husband will retain assets valued at approximately $1,199,599. An adjustment in those terms represents approximately 54 per centum of the parties’ net asset pool.
For her part, the wife will retain the property at Q Street and the interim property distribution paid to her totalling $110,000. She will also retain her accumulated superannuation entitlements valued at $98,374. The total amount of assets retained by her is approximately $1,028,374. That sum represents an adjustment of approximately 46 per centum of the pool of assets.
Taking into account the matters pursuant to s 79(4) of the Act, I am satisfied that an adjustment on the basis that the husband receives 54 per cent and the wife receives 46 per cent of the pool is just and equitable. An adjustment in those terms appropriately reflects the parties’ contributions during the relationship. It also takes into account the husband’s future responsibilities for the care of the two children of the marriage.
Accordingly, the orders I make appear at the commencement of these reasons.

I certify that the preceding three-hundred and sixty-three (363) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 19 July 2019.

Associate:

Date: 19 July 2019

[2019] FamCA 478

19 July 2019

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Family Law

Equity & Trusts

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