Cornett and Hext (No. 4)

FAMILY COURT OF AUSTRALIA
Cornett & Hext (No. 4) [2021] FamCA 289

File number(s): MLC 5714 of 2018

Judgment of: WILLIAMS J

Date of judgment: 13 May 2021

Catchwords:
FAMILY LAW – PARENTING – Both parties initially sought that the three children of the marriage live with them until the tenth day of the trial, when the wife conceded that the children should live with their father, he should have sole parental responsibility for the children and she should spend supervised time on one occasion each month – Consideration of whether the wife should spend supervised time with the children in the context of her conduct posing an unacceptable risk to the children, or whether she should spend no time with the children, as sought by the husband – Wife’s evidence contrary to diary notes and a draft affidavit in her former solicitor’s file, which was disclosed after a successful application of waiver of legal professional privilege – Findings sought as to the children’s sexualised behaviour – Compelling evidence from the family report writer about the risk which the wife posed to the children – Consideration of whether the wife’s conduct and relentless campaign of notifications to regulatory authorities and her behaviour in general significantly impacted on the husband’s capacity to parent the children – Expert evidence adduced on behalf of the husband from his treating psychologist as to the impact on the husband being required to facilitate time between the children and the wife, in circumstances where the treating psychologist considered the husband’s fears and apprehensions entirely rational – Held the wife should spend no time with the children.

FAMILY LAW – PROPERTY – Consideration of the respective contributions of the parties in circumstances where the wife’s care of the children was compromised significantly by her mental health problems and substance abuse particularly, after the birth of the third child – Weight to be accorded to an inheritance received by the husband during the relationship – Extent of husband’s post separation contributions when the wife’s time was limited to supervised time with the children – Whether or not there should be an adjustment for the wife pursuant to s 75(2) factors – Held the non-superannuation assets should be divided 70% to the husband and 30% to the wife and the superannuation entitlements should be equalised, in accordance with the proposal of both parties – Limited spousal maintenance for a period of three months ordered.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 68B, 75(2), 79, 102NA

Cases cited:
Bevan & Bevan [2013] FamCAFC 116

Chancellor & McCoy [2016] FamCAFC 256

Cornett & Hext (No. 3) [2020] FamCA 1069

Cornett & Hext (No.2) [2020] FamCA 586

Cornett & Hext [2019] FamCA 235

Dickons & Dickons [2012] FamCAFC 154

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

In the Marriage of Hickey [2003] FamCA 395

Keane & Keane [2021] FamCAFC 1

M v M (1988) 166 CLR 69

Murphy v Murphy [2007] FamCA 795

Stanford v Stanford [2012] HCA 52

Stott & Holgar and Anor [2017] FamCAFC 152

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Number of paragraphs: 488

Date of hearing: 20-24 January 2020, 8-12 February 2021

Place: Melbourne

Counsel for the Applicant: Ms McCreadie with Ms Taylor (8-12 February 2021)
Ms Smallwood SC with Ms Fisken (20-24 January 2020)

Solicitor for the Applicant: McGowan Family Law (8-12 February 2021)
Marshalls+Dent+Wilmoth Lawyers (20-24 January 2020)

Counsel for the Respondent: Mr North S.C. with Ms Dellidis

Solicitor for the Respondent: Kenna Teasdale Lawyers

Counsel for the Independent Children's Lawyer: Mr Eidelson

Solicitor for the Independent Children's Lawyer: Victoria Legal Aid
ORDERS

MLC 5714 of 2018

BETWEEN:
MS CORNETT

Applicant

AND:
MR HEXT

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

13 MAY 2021

THE COURT ORDERS THAT:
Parenting
1.All previous parenting Orders concerning the children B, born … 2011, C, born … 2013 and D, born … 2015, be discharged.
2.The husband have sole parental responsibility for the long term care, welfare and development of the children, including determining:
(a)any medical, health, or allied health matter concerning the children, including psychological treatment; and
(b)matters relating to the education of the children, including but not limited to the choice of the children's school.

3.The husband inform the wife via email of any decision he has made regarding the long term care, welfare and development of the children as soon as practicable upon making it.
4.The children live with the husband.
5.The children spend no time with the wife.
6.The wife be at liberty to send to the children, by registered post, at Christmas and on the children's birthdays, a card, letter or gift for the children, and for this purpose the husband shall:
(a)maintain a postal address;
(b)facilitate the children receiving from the wife such cards, gifts or letters as she may send in accordance with this Order; and
(c)forward to the wife any letter, card or gift the children may express a wish to be conveyed to the mother.

7.Pursuant to s 68B of the Family Law Act 1975 (Cth) the wife, her servants and agents are hereby restrained by injunction from:
(a)approaching or attending any premises at which the children live;
(b)approaching or attending at any school or extracurricular activity at which the children are enrolled;
(c)communicating with the husband, other than for the purposes of advising him of her postal and email address and any change thereto in accordance with paragraph 9 herein;
(d)communicating with the children, including by the use of digital or social media, other than to send letters, cards or gifts in accordance with paragraph 6 herein;
(e)communicating with any school at which the children are enrolled;
(f)communicating with any extracurricular organisation at which the children are enrolled;
(g)communicating with any health professional upon whom the children or any of them may attend from time to time; and
(h)directing, authorising or permitting another person doing the things prohibited in the aforementioned sub-paragraphs on her behalf, or for her benefit.

8.Any communication between the parents shall be by email.
9.Each of the wife and husband keep the other advised of their postal and email address and any change thereto.
10.The husband advise the wife in writing of:
(a)any change to the children's school; and
(b)any serious illness or serious injury suffered by any of the children requiring medical treatment and any diagnosis.

11.The husband shall send to the wife's email address, a copy of the children's school reports when they are made available by the children's school.
12.The husband shall send to the wife's email address, a copy of any report from a psychologist regarding any diagnosis affecting the children including any report regarding B's assessment for Autism Spectrum Disorder.
13.The husband be at liberty to provide a sealed copy of these Orders and the Reasons for Judgment to the principal of any school attended by the children and any medical, health or allied health practitioner upon whom the children may attend.
14.The Registrar of the Family Court of Australia in Melbourne registry shall send a sealed copy of these Orders to:
(a)the Registrar of the Magistrates’ Court of Victoria at Melbourne;
(b)the Registrar of the County Court of Victoria;
(c)the Commissioner of Victoria Police; and
(d)the Department of Families, Fairness and Housing, Child Protection Service.

15.Pursuant to ss 68Q and 68P of the Family Law Act 1975 (Cth) the Court declares that, to the extent that any of these orders conflict with the extant Family Violence Intervention Order against the mother in favour of the father and the children No. …, then the Family Violence Intervention Order is invalid but only to the extent of the conflict.
16.The order appointing the Independent Children's Lawyer be discharged upon the later of the expiration of the appeal period in respect of these Orders, or the determination of any appeal that may be brought therefrom.
17.Any application to enforce, implement, suspend, set aside or vary these Orders should be listed in the first instance before the Honourable Justice Williams, if she is reasonably available and subject to any application that a parent may make.
18.All extant Applications for parenting orders be otherwise dismissed

Property
19.The husband and the wife forthwith do all acts and things to distribute the funds held in the trust account of Kenna Teasdale, solicitors as follows:
(a)the sum of $2,394 to Y School for outstanding school fees, if the fees remain outstanding as at the date of these Orders, and if not, to the party who paid the fees to Y School;
(b)the sum of $20 to be transferred to ANZ account #...21, if the account has a debit balance as at the date of these orders, and if not, to the party who made payment to the ANZ account;
(c)the balance, $1,337,669.17 to be paid as follows:
(i)the sum of $89,136.05 to be paid to the wife’s solicitors on behalf of the wife;
(ii)the sum of $1,248,533.12 to be paid to the husband’s solicitors on behalf of the husband.

20.Contemporaneously with the payment to the wife referred to in order 19(c)(i), the wife pay to the husband the sum of $16,450 for reimbursement of costs incurred in the proceeding.
21.In respect of superannuation:
(a)a base amount of $150,696 be allocated by the Court as required by section 90XT(4) of the Family Law Act 1975, to the Wife out of the Husband's interest ("the member spouse") in the Hext Cornett Superannuation Fund of which the Trustee is Z Pty Ltd ("the Trustee").
(b)pursuant to section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable from the Husband's interest in the superannuation Fund, the Trustee shall pay to the Wife an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using the base amount of $150,696 and there be a corresponding reduction in the entitlement that the Husband would have had in the superannuation Fund but for these Orders.
(c)if, before a splittable payment becomes payable in respect of the Husband's superannuation interest, the Trustee is permitted (be legislation and the Trust Deed of the Superannuation Fund) to make a payment to the Wife (and accordingly reduce the Husband's benefit) then the Trustee may make that payment (and reduce the Husband's benefit by the amount calculated by the Trustee) in full satisfaction of its obligations under these Orders.
(d)the Trustee shall do all such acts and things and sign all such documents as may be necessary to:
(i)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement for the Wife created by Order 21 of these Orders.
(ii)pay the entitlement whenever the Trustee makes a splittable payment out of the Husband's interest in the superannuation Fund; and
(iii)the Husband shall do all acts and things and sign all such documents as may be required so that in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the Trustee of the Superannuation Fund can calculate the entitlement of, and make payment to, the Wife in accordance with these Orders.

(e)this Order binds the Trustee of the Hext Cornett Superannuation Fund.

22.This Order have effect from the operative time and the operative time is four (4) clear business days after the service of a sealed copy of these Orders on the Trustee.
23.Within 14 days of the superannuation split pursuant to Order 21 becoming effective, the parties, in their capacities as Trustees of the Hext Cornett Superannuation Fund ("the Fund"), do all necessary acts and things and sign all such documents as may be required to transfer and roll-out the whole of the Wife's member account and/or entitlement in the Fund to such other Superannuation Fund as she shall nominate at the equal shared expense of the parties.
24.Subject to compliance with Orders 21, 22 and 23 hereof, the wife forthwith:
(a)relinquish any interest she may have in the Hext Cornett Superannuation Fund;
(b)resign as a director of Z Pty Ltd, the trustee of the Hext Cornett Superannuation Fund;
(c)transfer to the husband her shareholding in Z Pty Ltd.

25.Subject to compliance with Orders 21, 22 and 23 hereof, the husband be at liberty to do all things necessary to remove the wife as a member of the Hext Cornett Superannuation Fund.
26.Unless otherwise specified in these Orders except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
(a)each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders including any jewellery, furniture, furnishings, shares and motor vehicles;
(b)monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;
(c)subject to paragraphs 21, 22 and 23 of these orders, each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order; and
(e)if either the husband or wife defaults in compliance with their obligations in these Orders, then the party who is not in default shall be entitled to immediately thereafter commence proceedings against the other and shall rely on these Orders for an application for costs of the proceedings.

Spousal Maintenance
27.All previous orders for spousal maintenance are discharged.
28.The husband pay to the wife the sum of $800 per week ($3,466 per calendar month) for a period of three months from the date of these orders, with such payment to be made into a bank account nominated by the wife.
29.In the event the wife refuses or fails to comply with orders above, the Registrar of the Family Court of Australia at Melbourne is appointed pursuant to section 106A of the Family Law Act1975 to sign any deed or instrument in the name of the wife and to do all acts and things necessary to give validity and operation to the deed or instrument.
30.All extant applications for final property orders are otherwise dismissed.

AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act, 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.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cornett & Hext has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION

The parties are the parents of the three young children B born in 2011 (aged 9), C born in 2013 (aged 8) and D born in 2015 (aged 6) ("the children ").
The parties are in dispute about the parenting arrangements for the children and the division of their property.
Issues in Dispute
The following issues were initially in dispute in the parenting proceedings:
(a)the allocation of parental responsibility for the children;
(b)whether either parent poses an unacceptable risk to the children;
(c)parenting capacity;
(d)which parent the children should live with;
(e)if the children live with the husband, should they spend time with the wife; and if so, the length and frequency of such time, and should time be supervised;
(f)if the children live with the wife, the length and frequency of the time they spend with the husband.
On the final day of the trial, the wife proposed a minute of order conceding that the children live with the husband and that he have sole parental responsibility for them. The issue in dispute was whether the wife should have monthly supervised time with the children on the last Saturday of each calendar month, in accordance with her final proposal, or whether the children should spend no time with their mother, in accordance with the husband's proposal and the proposal of the Independent Children's Lawyer.
The following issues were in dispute in the property proceedings:
(a)the composition of the asset pool;
(b)the weight to be accorded to the husband's direct financial contributions of his inheritance during the marriage;
(c)the s75(2) factors applicable to both parties.
Synopsis
I have determined in relation to the parenting proceedings, it is in the children's best interests that:
(a)the husband have sole parental responsibility for children;
(b)the children live with the husband;
(c)the mother spend no time with the children;
(d)the mother be at liberty to send cards and gifts of a reasonable nature to the children on their respective birthdays and Christmas, subject to the father satisfying himself that the gifts are suitable and appropriate;
(e)the father forward a copy of the children's school reports to the mother, including a copy of any school photo.
I have determined in relation to the property proceedings that:
(a)the defined asset pool should be divided as follows:
(i)the non-superannuation assets, as to 70% to the husband and 30% as to the wife;
(ii)the combined superannuation assets be divided equally between the parties, in accordance with the proposal of both parties.
The reasons for my determination follow.
BACKGROUND
The husband is aged 50 and is employed in the finance industry. The wife is aged 46 and does not work.
The parties commenced their relationship in August 2002, cohabited in 2004 and married in 2008.
On 5 April 2005, the parties purchased a property in AA Street, Suburb BB for $535,000. The husband paid a 5% deposit of $26,750 from his savings and applied a further $30,000 from his savings at settlement. The balance of the purchase price was funded by a joint mortgage from CBA of $500,000.
In 2005, the husband asserts that he discovered the wife developed a cocaine addiction while she was off work recovering from an ankle injury. The wife had withdrawn $10,000 from the mortgage offset account.

In 2005, the wife claims that the husband struck her face with an open backhand blow.
Between September 2011 to February 2012, the husband received an inheritance of $799,836 which was applied as follows:
(a)$5000 gifted to CC Company;
(b)$92,000 applied to reduce the AA Street mortgage;
(c)$700,000 placed in a DD Bank online account in the wife's name.
B was born in 2011, C was born in 2013 and D was born in 2015.
In 2012, the parties purchased the former family home, EE Street, Suburb FF for $2.5 million. A 10% deposit of $250,000 was paid from the husband's inheritance in the wife's bank account. At settlement, a further $270,000 was applied from the husband's inheritance, as was $100,000, which the husband received from Company AE as a bonus. The balance was funded by a joint mortgage.
In May 2012, the wife alleged that the husband raped her and she subsequently told the DHHS that C was conceived as a result of a rape.
On 6 June 2012, the settlement of the sale of AA Street, Suburb BB took place. The property was sold for $807,000 with net proceeds of sale of $653,796. $650,000 was applied to reduce the mortgage over the EE Street property to $1,036,000.
In August 2012, the parties commenced hiring nannies to assist the wife with the children, which continued until separation.
In 2013, the wife was referred by her GP, to a psychiatrist, Dr GG, whom she consulted until 2017.
In late 2013, the wife alleged that the husband raped her.
In early 2015, the wife suffered a postpartum haemorrhage and underwent an emergency hysterectomy. On 1 April 2019, the wife told the DHHS that the haemorrhage was the result of a sexual assault by the husband.
During 2015, the husband asserts that the wife continued drinking to excess and taking Endone to excess following the haemorrhage. The wife was diagnosed with Post-Traumatic Stress Disorder.
In November 2015, the wife had six sessions of electroconvulsive therapy (ECT) at the HH Clinic for her significant depression and PTSD following an emergency hysterectomy after D's birth.
The husband asserts that the wife resumed drinking excess quantities of alcohol subsequent to the ECT.
The wife asserts that in February 2016 the husband punched her left cheekbone. The wife sent her friend, Ms JJ, via SMS, a photo of her bruised cheek and initially stated that C had head-butted her, then telling her, she fell off a box. The wife told her GP that she fell whilst exercising.
During 2016, the wife asserts that she was reliant on Endone to manage the pain from the injuries inflicted on her by the husband.
On 20 January 2017, the wife called the husband at work and requested him to go home. The husband arrived home and found the wife passed out, with a nanny caring for C.
On 21 January 2017, the husband found a box of OxyContin which had been dispensed on 17 January 2017.
On 22 January 2017, the husband found a further box of OxyContin dispensed on 28 December 2016.
On 23 January 2017, the husband made an appointment to consult with their GP, however the wife refused to attend. On the same day, the husband asserts that the wife ran away from home, when he told her about and the possibility of involuntary admission. The wife was missing for two days.
On 24 January 2017, when the husband delivered D to KK Centre, a childcare centre, he asserts that that the director, Ms LL, told him she had concerns that the wife was under the influence of drugs and/or alcohol on 20 January 2017.
On 11 May 2017, the wife asserts that the husband punched her to her left eye socket. The wife took photographs of her eye and sent a photograph to a nanny, stating that the bruise was caused by a cupboard. The wife subsequently told her GP she hit her face on an open cupboard.
On 27 August 2017, the wife alleged that the husband had punched her in the face and took photographs.
In November 2017, the wife obtained a job in marketing for three days a week with a pro rata salary equivalent to $150,000 per annum.
In November 2017, the husband asserts that the wife's alcohol and drug use escalated and that he found her drinking half a litre of vodka each day. She had also hidden Endone around the house.
On 25 January 2018, the husband received a phone call from the wife's GP advising that the wife had been prescribed two scripts of Endone by other doctors at her practice, and that the wife was seeking more.
On 17 February 2018, the husband found two boxes of Endone hidden at opposite ends of the top shelf of the wardrobe.
On 18 February 2018, the wife and her mother, Ms M had an argument, during which the husband asserts that the wife screamed at her mother in front of C and then told D her grandmother was dead.
The husband asserts that the parties are separated under the one roof on that day.
On 28 February 2018, the wife flew to Sydney until 2 March 2018 for a work presentation.
On 10 March 2018, the wife attempted suicide in the family home by overdosing on Panadol. She left a suicide note on the back door of the family home. The husband called an ambulance and the wife was taken to the O Hospital where she remained until 19 March 2018, prior to living in serviced apartments until 1 May 2018.
On 16 March 2018, the husband told the wife that he did not want her to return to the family home.
On 21 March 2018, the wife attended a joint appointment with a psychiatrist, Dr MM, for advice about how to tell the children of the separation. She also withdrew $8,000 from the joint account on that day.
On 22 March 2018, the wife attended the family home without notice. She told the nanny to pack and leave prior to travelling to KK Centre to collect D. The wife then returned to the family home and locked herself inside with D. She eventually let D outside with herself remaining inside, prior to the police attending and taking her to the O Hospital. The police issued a Safety Notice naming the husband and children as protected persons.
On 24 March 2018, the wife attended the family home at 3:30AM in the morning, when the husband woke to find her tugging on his fingers. The wife collected some possessions and left 45 minutes later in an Uber. She was later charged with breaching the Safety Notice.
On 26 March 2018, the wife attended the family home again and claimed she was there to collect medication. The wife was arrested, removed from the backyard and taken to the police station for an interview. She was later charged with breaching the Safety Notice.
On 27 March 2018, an interim Intervention Order was made by consent without admission. The husband and the children were named as protected family members. On that day, the parties entered into a parenting plan.
On 28 April 2018, the wife was arrested and bailed in relation to breaches of the Intervention Order.
On 1 May 2018, the wife admitted herself as an inpatient at the P Clinic under the care of psychiatrist, Dr F, she remained for six weeks.
On 18 May 2018, the wife insisted that her time with the children be professionally supervised.
On 14 June 2018, the wife discharged herself from the P Clinic.
On 16 February 2019, the children arrived at the wife's home with partially shaved heads.
On 8 March 2019, the R Contact Service made a notification to DHHS about the children's inappropriate sexualised behaviour.
On 11 March 2019, the children arrived at the wife's home with their hair having been cut off down to their scalp.
On 12 March 2019, the R Contact Service made a further notification to DHHS in relation to bruising on D's bottom and further sexualised behaviour of the children.
On the evening of 14 March 2019, the husband was contacted by DHHS at around 10PM and advised they had received a notification that D had blood in her underwear.
On 15 March 2019, the husband took D to the doctor who undertook a vaginal and perineum examination which did not reveal any signs of trauma, injury or bleeding. The explanation offered for alleged blood in D's underwear was that she may have had an internal tumour.
On 20 March 2019, D stated to her teacher that she kisses B's penis. The Director of KK Centre notified DHHS.
On 7 April 2019, the children disclosed to the husband that sexual incidents had occurred between D and B.
On 20 September 2019, the wife removed B's EpiPen from his bag.
On 16 February 2020, the wife observed that B had a black eye.
On 21 May 2020, B ran away from the father’s house to the mother’s house.
On 8 June 2020, the wife reported to the police that B had disclosed sexual abuse by his stepmother the previous day, however that report resulted in B and C being interviewed by SOCIT at their new school.
Further complaints by the wife between 8 June 2020 and 29 January 2021, when she alleged Dr NN had described D as engaging in “highly sexualised behaviour”, which was denied by Dr NN are referred to under the heading Wife’s campaign of conduct and reports and notifications.
PROCEDURAL HISTORY
On 24 May 2018, whilst an inpatient at the P Clinic, the wife filed proceedings in this Court, pertaining to parenting, property and spousal maintenance.
On 28 June 2018, at a Case Assessment Conference, Orders were made by consent as follows:
(a)the wife have supervised time with the children on Mondays and Thursdays from the conclusion of school until 6 PM (supervised by an au pair engaged by the husband) and for four hours (12 PM to 4 PM) on Saturday (supervised by a professional supervisor at R Contact Service);
(b)the husband pay to the wife $100,000 as a partial property settlement;
(c)the husband pay the wife periodic spousal maintenance of:
(i)$800 per week into a nominated account;
(ii)the cost of the wife's rental premises up to $700 per week plus bond and first month's rent;
(iii)$500 per week on account of the wife's medical expenses;
(iv)wife's mobile telephone expenses and private health insurer premiums at the current level.
On 25 October 2018, the parties attended a Conciliation Conference, however no agreement was reached. On that day, Orders were made as follows:
(a)adjourning all extant parenting applications to the Senior Registrar's duty list on 24 January 2019 for a defended interim hearing; and
(b)the husband's costs in the sum of $5,350 were reserved to the final hearing.
On 27 November 2018, the wife filed an affidavit stating:
(a)that B's behaviour was increasingly sexualised;
(b)B had seen the father and his partner kissing and wanted to kill his father for doing so (at paragraph 120).
On 3 December 2018, the parents and the children attended Dr G for the family report interviews. The report was released on 21 December 2018.
On 18 January 2019, Orders were made in relation to the wife's objections to subpoenas issued by the husband.
On 23 January 2019, the wife filed an Application in a Case together with an affidavit. The parenting orders sought by her included:
(a)an increase in time and that such time be unsupervised;
(b)in the event supervision was necessary, her friends and family members, or other persons as agreed supervise.
On 29 January 2019, the husband filed a Response to the Application in a Case seeking the following parenting orders:
(a)a variation of the wife's time with the children, so that during the term the children spend time with the wife on Monday and Thursday from 4:30 PM until 7 PM, and during school holidays on Monday and Thursday from 3 PM until 6 PM, and each Saturday from 2 PM to 6 PM;
(b)specific time on special occasions;
(c)suspension of his time to enable him to travel interstate for up to 4 weeks per annum;
(d)time be supervised by R Contact Service.
On 18 February 2019, a report from the R Contact Service was released, which referred to the sexualised behaviour of the children.
On 15 March 2019, the wife filed an Application in a Case with a supporting affidavit. The orders sought by her included that the children live with her in the former family home. The application was issued the day after the wife asserted that she had observed blood in D's underwear.
On 19 March 2019, orders were made in the Judicial Duty List for:
(a)D's bloodied underwear to be handed to the Independent Children's Lawyer for DNA testing;
(b)D to have a blood test for DNA matching;
(c)a supervisor known to D accompany the husband when D's blood test is to be undertaken, to ensure the husband does not take another four year old in D's stead;
(d)parenting matters otherwise adjourned to 21 March 2019.
On 21 March 2019, the husband asserts that the wife admitted to putting a blood like substance in D's underwear and subsequent to 19 March 2019 orders, having destroyed that underwear. The wife denies that assertion. The matter was adjourned to 1 April 2019 for determination of the respective interim applications.
On 1 and 2 April 2019, the defended hearing for interim parenting proceedings were heard by the trial judge. The following orders were made:
(a)trial directions were made listing the matter for a five day Final Hearing commencing on 28 October 2019;
(b)a further assessment and report by Dr OO and Addendum Family Report with Dr G; and
(c)the parties to engage Dr PP for the purposes of reportable therapeutic counselling with the children, with specific direction that Dr PP addresses the issues of the children's sexualised behaviours.
On 17 April 2019, an interim judgement was delivered, Cornett & Hext [2019] FamCA 235. The following orders were made:
(a)discharging the wife's time under the orders made on 28 June 2018 and 29 January 2019; and
(b)the wife to spend time with the children for four hours every Saturday supervised by the R Contact Service under the direction of Ms E.
On 26 July 2019, the DHHS Interim Report was released to the parties.
On 26 August 2019, the psychiatric report by Dr OO was released to the parties.
On 5 September 2019, the wife filed an Application in a Case seeking inter alia that the trial date of 28 October 2019 be adjourned and that time arrangements with the children be altered.
On 10 September 2019, DHHS released the Final Report.
On 16 September 2019, the matter was listed for mention. The following orders were made:
(a)the 28 October 2019 trial date was vacated and adjourned with an estimated hearing time of 10 days, with the first five days commencing on 20 January 2020;
(b)the parties entered into interim parenting and property orders by consent providing for an updated Family Report; and
(c)each party received a $300,000 partial property settlement from the proceeds of the former matrimonial home.
On 13 November 2019, the matter was listed in the Judicial Duty List. The following orders were made:
(a)the wife provided an undertaking she will attend upon a psychiatrist and will provide to the husband within 48 hours of making any appointment the dates of all appointments booked until the final hearing;
(b)the parties enter into consent orders dismissing the wife's contravention application and varying her time with the children.
On 14 January 2020, Orders were made in chambers by consent varying quantum to provide for payment of $500,000 to each parent by way of partial property settlement.
On 20 January 2020, the trial commenced and was heard for five days duration with the remainder of the trial listed for five days commencing on 24 February 2020.
On 23 January 2020, a subpoena was issued by the solicitors for the husband, seeking production of parts of the wife's first solicitor's file, on the basis that she had waived legal privilege primarily because of her answers to questions under cross-examination and the statements of her Counsel.
In early February 2020, the wife's legal representatives ceased to act and the matter was listed for mention on 24 February 2020.
On 24 February 2020, the wife appeared in person, having ceased to retain her lawyers and Counsel. Senior Counsel appeared on behalf of the wife's former Senior Counsel, Ms Stoikovska, who appeared on her behalf in interim proceedings in April 2019. Senior Counsel also appeared on behalf of her former solicitors, Q Lawyers. Submissions in relation to legal professional privilege, and waiver thereof, were made by both Senior Counsel and their further attendance was excused.
Orders were made adjourning the application in relation to privilege to 20 April 2020 and for the trial to recommence for five days on 20 July 2020. An order was also made pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”), for the wife to receive legal assistance for cross-examination for the continuation of the trial.
On 18 May 2020, a firm of solicitors, appointed by Victoria Legal Aid pursuant to section 102NA of the Act, commenced to act on behalf of the wife. The wife terminated the services of that firm on 21 May 2020 and again commenced acting on her own behalf.
The legal professional privilege argument eventually took place on 18 June 2020 when the wife engaged a new firm solicitors, the fourth firm to act on her behalf. My decision and reasons are published as Cornett & Hext (No. 2) [2020] FamCA 586.
Subsequent to the privilege argument, the wife's fourth firm of solicitors sought leave to withdraw from acting on her behalf. That issue was determined on 23 September 2020, after a report was obtained from Dr UU, psychiatrist, about the wife's capacity to continue to instruct in the preceding. Dr UU determined that she did have the requisite capacity and his report is dated 23 September 2020.
On 2 October 2020, the wife instructed her fifth firm of solicitors, who filed an application for a further partial property settlement. The husband sought orders varying the wife's spousal maintenance. That application was heard on 17 November 2020. My decision and reasons are published as Cornett & Hext (No. 3) [2020] FamCA 1069.
The trial did not resume electronically during the COVID-19 pandemic, due to the wife's opposition to an electronic resumption of the trial, the wife's difficulties in securing legal representation and the plethora of interim applications. All interim applications and mentions subsequent to 24 February 2020 were heard electronically via Microsoft teams, due to the COVID-19 pandemic.
The substantive trial recommenced on 8 February 2021 and was heard over a further five days as a face to face trial.
THE PROPOSALS OF THE PARTIES
The wife’s proposals
Parenting
The orders which the wife sought from the court are set out in her Amended Initiating Application filed 16 December 2019 and are summarised as follows:
1.        The parties have equal shared parental responsibility for the children;
2.That the parents do all things necessary to ensure the children continue to attend reportable therapeutic counselling with Dr NN or other psychologist as agreed between the parents;
3.        That the children live with the wife;
4.That the wife is prohibited from consuming alcohol to excess (being in excess of BAC 0.05), illicit substances or non-prescription drugs while the children are in her care;
5.That the wife shall continue to attend upon a psychologist as recommended by that psychologist and shall provide the husband with evidence of this attendance for the previous six months on 30 June 2020 and 31 December 2020;
6.That the wife shall continue to attend upon a psychiatrist as recommended by that psychiatrist and undertake such treatment including any medication regime as recommended by her treating psychiatrist and shall provide the husband with evidence of this attendance for the previous six months on 30 June 2020 and 31 December 2020.
Arrangements for the Children with the Husband
7.        Unless otherwise agreed, the children spend time with the husband as follows:
(a)During school term, each alternate weekend from the conclusion of school Friday until the commencement of school Monday (or until 9:00am Tuesday if Monday is a public holiday); and
(b)During school holidays for the first half of all school holiday periods commencing in years ending in an odd number, and the second half of all school holidays periods commencing in years ending in an even number.
8.That for the purposes of order 7 above, in the absence of any written agreement between the parties to the contrary, the following orders apply:
(a)The first half of school holidays is deemed to commence at the end of classes on the last day of school;
(b)The second half of the December/January school holidays is deemed to commence at 5:00pm on the Friday in January that falls approximately three weeks after the last day of the fourth school term of the previous year; and
(c)The second half of all other school holidays is deemed to commence at 5:00pm on the middle Saturday of the school holidays or at 5:00pm on the middle Wednesday of the school holidays if the relevant school holiday period is for an odd number of weeks.
9.That the husband is prohibited from consuming alcohol to excess (being in excess of BAC 0.05), illicit substances or non-prescription drugs while the children are in his care.
10.That the husband shall continue to attend upon a psychologist at least once per month and shall provide the wife with evidence of this attendance for the previous six months on 30 June 2020 and 31 December 2020.
11.      That the husband:
(a)Ensure that he is the only person to bath the children when they are in his care, and that no other adult shall be naked in the presence of the children;
(b)Ensure that he and any other person, including Ms J, do not engage in sexual behaviour in the presence or hearing of the children;
(c)Ensure that any devices that may have age-inappropriate sexual material are not accessible by the children; and
(d)Provide the Wife forthwith with full details (including full names, working with children qualifications and police checks) of any person whom he proposes to care for the children when they are not in his presence.
Special Occasions
12.That the children spend alternative time with each parent on special occasions including Mother's Day, Father's Day, birthdays, Christmas Day and Boxing Day.
13.That for the purposes of changeover, changeover shall occur at the children's school and, on non-school days, the changeover shall occur at the wife's residential address with the husband to collect the children at the commencement of time and deliver the children at the conclusion of time.
14.That FaceTime contact occur.
Schooling
15.That the children remain at their respective schools and the husband to solely pay the tuition fees and associated costs.
Medical
16.That each parent shall advise the other of the name and contact details of the children's medical practitioners.
17.That the children's medical practitioners have authority to consult with each parent and provide to each parent information about the children's medical condition, treatment and copies of medical records and reports.
18.That arrangements are in place in the event any of the children fall sick or become injured.
19.That the parents ensure B has access to his medications at all times.
Parents' Conduct
20.That the parents be restrained and injunction be granted restraining them from denigrating, harassing, assaulting, abusing, physically disciplining or discussing these proceedings in the presence of the children.
21.That the parents will communicate with each other via "Our Family Wizard" concerning issues relating to the children.
Property
22.That the proceeds of sale held in the Trust Account of Q Lawyers be divided as follows:
(a)       70% to the Wife; and
(b)       30% to the Husband
23.That there be an adjustment to the Husband prior to the distribution of funds pursuant to the order above for the wife's 50% share of the costs of:
(a)       Dr OO's report;
(b)       Dr G's updated Family Report; and
(c)       Ms QQ's report.
24.That upon the trustee being provided with procedural fairness, there be a superannuation splitting order to equalise the parties' respective superannuation entitlements.
25.That for a period of two years from the date of these orders, the Husband pay the following sums nett of taxation by way of spousal maintenance:
(a)       The sum of $800 per week;
(b)       The sum of $500 per week on account of the Wife's medical expenses;
(c)The wife's mobile telephone expenses and private health insurance at the current level.

During opening submissions, the wife indicated she sought spousal maintenance for a period of two years.
On the ninth day of the trial, the wife dramatically changed the orders which she sought from the court. Her proposal was in summary:
(a)the parties have equal shared parental responsibility for the children;
(b)the children live with her husband;
(c)the wife spend supervised time with the children supervised by the R Contact Service:
(i)for six hours every Saturday except the last Saturday of the month;
(ii)every intervening Wednesday for 2 ½ hours;
(iii)such other times as agreed between the parties and the supervisor.
(d)As from 1 November 2021, the wife spend unsupervised time with the children, subject to the wife providing the husband with reports from her treating psychologist and psychiatrist, as follows:
(i)every Saturday from 10 AM to 4 PM;
(ii)every intervening Wednesday from 3:30 PM to 6:30 PM;
(iii)such other times as agreed between the parties and the supervisor.
On the morning of the 10th day of the trial, the wife's counsel provided a further minute of proposed orders, which may be summarised as follows:
(a)the husband have sole parental responsibility for the children and that he inform the wife via email of any decision he has made regarding their long-term care, welfare and development, as soon practicable upon making it;
(b)the children live with the husband;
(c)the wife spend supervised time with the children as follows:
(i)on the last Saturday of each calendar month for six hours at times to be agreed with the supervisor;
(ii)the husband to pay for the cost of the wife supervised time.
The proposed orders also included the mother being at liberty to forward to the children cards letters and gifts on their birthdays and Christmas, various injunctions, pursuant to s 68B of the Act restraining her from approaching or communicating with the children or the father, the father to keep the mother advised of any change to the children's school and any serious illness or serious injury suffered by the children, the husband to provide the mother with a copy of the children's school reports and for a copy of the orders to be provided to various courts and authorities.
The wife's proposed property orders remained as initially proposed.
The husband's proposal
Parenting
At the commencement of the trial, the husband's proposal was, as set out in his Amended Response to Final Orders filed 27 November 2019, as follows:
(a)the husband have sole parental responsibility for the children;
(b)the children live with the husband;
(c)the children spend no time with the wife;
(d)that in the alternative to paragraph (c) above, the children spend such supervised time and communicate with the wife on such terms and on conditions as deemed appropriate;
(e)that in the event the wife spends supervised time with the children, such time be supervised by professional supervisors at the wife's sole expense;
(f)that the children B and C attend RR Primary School from the commencement of Term 1 in 2020 or the earliest possible date thereafter and D attend from the commencement of Term 1 in 2021;
Financial
(g)that the parties total net assets, excluding their superannuation entitlements, be divided in the proportions:
(i)75% to the Husband, plus the sum of $5,350 (being costs reserved pursuant to the Orders dated 25 October 2018), plus the sum of $3,950 being the wife's half share of the cost of Dr OO's report, plus the wife's half share of the updated Dr G's family report, plus the sum of $3,300 being the costs of Ms QQ’s report; and
(ii)25% to the wife, less the sum of $5,350 being costs reserved pursuant to the Orders dated 25 October 2018, less the sum of $3,950 being the costs of reimbursing the husband her half share of Dr OO's report, less her half share of the costs of Dr G preparing his updated family report, less the sum of $3,300 being the sum paid by the husband for the preparation of Ms QQ's report;
(h)that upon the Trustee being afforded procedural fairness, there be a superannuation split equalising the parties' respective superannuation entitlements.
At the conclusion of evidence, the Orders sought by the husband were in accordance with the orders he sought at the commencement of the trial.
The Independent Children's Lawyer's Proposal
The Independent Children's Lawyer's Preliminary Proposal was as follows:
(a)that the husband have sole parental responsibility for the children;
(b)the children live with the husband;
(c)the question of the wife's time with the children, and the nature of such time, to be determined by this Honourable Court.
Part of the Independent Children's Lawyers preliminary proposal mirrored the orders initially proposed by the husband, specifically that the husband have sole parental responsibility for the children and the children live with the husband.
At the conclusion of evidence, the orders sought by the Independent Children's Lawyer were as follows:
(a)the children live with the husband;
(b)the husband have sole parental responsibility for the children;
(c)the wife spend no time with the children;
(d)the wife be at liberty to send cards and gifts to the children on their birthdays and Christmas, with the husband to be at liberty to read the cards and examine the gifts to ensure they are suitable and appropriate for the children;
(e)the husband forward a copy of the children's education reports from their respective schools to the wife, including a copy of any school photo taken of the children.
Documents relied upon by the husband
The husband relied upon the following documents:
(a)Amended Response to Initiating Application filed 27 November 2019;
(b)Affidavits of Mr Hext filed 27 November 2019, 26 August 2020 and 1 February 2021;
(c)Amended Financial Statements filed 19 December 2019 and 11 November 2020;
(d)Affidavit of Mr AR filed 27 November 2019;
(e)Affidavit of Ms AS filed 27 November 2019;
(f)Affidavit of Ms J filed 27 November 2019, 26 August 2020 and 2 February 2021;
(g)Affidavit of Dr MM filed 27 November 2019;
(h)Affidavit of Dr F filed 27 November 2019;
(i)Affidavit of Ms LL filed 28 November 2019;
(j)Affidavit of Dr SS filed 5 December 2019;
(k)Report of Dr TT dated 15 March 2019;
(l)Final report of Department of Health and Human Services dated 10 September 2019;
(m)AT Service Reports regarding children dated 16 and 22 October 2019;
(n)Affidavit of Dr OO filed 30 August 2019;
(o)Reports of Dr G dated 21 December 2018 and 9 January 2020;
(p)Affidavit of Dr UU filed 1 October 2020; and
(q)Q Lawyers file notes in Notice to Admit and Authenticity of Documents filed 27 August 2020.
Documents relied upon by the wife
The wife relied upon the following documents:
(a)Amended Initiating Application filed 16 December 2019;
(b)Amended Financial Statements filed 16 December 2019 and 14 October 2020;
(c)Affidavits of Ms Cornett filed 29 October 2019 and 20 January 2021;
(d)Affidavits of Ms M filed 29 October 2019 and 18 January 2021;
(e)Affidavit of Dr WW filed 13 January 2020;
(f)Affidavit of Ms VV filed 14 January 2020; and
(g)Affidavit of Ms X filed 16 January 2020.
Documents relied upon by the Independent Children's Lawyer:
The Independent Children's Lawyer relied upon the following documents:
(a)Updated Family Report of Dr G dated 9 January 2020;
(b)Affidavit of Dr OO filed 30 August 2019;
(c)Affidavits of Ms E filed 12 November 2019 and 27 August 2020; and
(d)Report of Dr NN dated 8 February 2021.
THE APPLICABLE LAW
Evidence
The standard of proof in this case is the balance of probabilities (Evidence Act 1995 (Cth), s 140).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The husband and wife relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties' relationship. I have examined that evidence and do not propose to repeat it in these reasons. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
[62]…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
Credibility of Witnesses
Wife’s witnesses
The wife and her mother gave evidence and were cross-examined by both Senior Counsel for the husband and Counsel for the Independent Children's Lawyer. They were both cross-examined during the first part of the trial which occurred in January 2020, and the concluding week of the trial in February 2021.
The wife as a witness was unbelievable and unreliable. She gave evidence in a manner which was unusual and not forthright. After the production of her former solicitor's file about the events of 19 March 2019 and following she still, unbelievably, maintained her denials about her involvement in the contamination and partial destruction of D's underwear. She offered a plethora of explanations and stories and wove a web of deceit around her answers to significant issues of the trial. At times she did not seem to appreciate the trouble she found herself in, the implausible nature of her evidence and the consequence of her actions. She completely lacked insight into her mental health and the impact it had on the dispute and sad and tragic events which had transpired. I do not accept her evidence as truthful and where her evidence differs I prefer that of the husband and other witnesses who contradict her version of events.
The wife's mother, Ms M, gave evidence in a manner which she perceived would be of greatest assistance to her daughter. She did not seem to be particularly forthright in many of her answers and attempted to minimise any evidence which she thought would be adverse to her daughter's case. She is obviously a loving grandmother and is greatly distressed by the restriction on her time with her three grandchildren.
During the second week of the trial when she became aware that the wife had sworn her affidavit of 25 March 2019 and made admissions about her conduct with the contamination and destruction of D's underwear, she was visibly distressed. To her credit, she continued to support her daughter during the court process. Where her evidence differs from that of the husband, I prefer the evidence of the husband.
Additionally, the wife called two professional witnesses on her behalf, her psychiatrist, Dr WW and her treating psychologist Ms VV.
Dr WW swore an affidavit on 13 January 2020 which annexed a report, updated report and further updated report about the wife. She was cross-examined by telephone by both Senior Counsel for the husband and Counsel for the Independent Children's Lawyer. She was not an impressive witness. She went out of her way to justify her reports and in her opinion the wife did not have any ongoing psychiatric condition which would preclude her from assuming primary care of the children. The Court did not have the benefit of the documents obtained from the wife's previous solicitors, at the time Dr WW was cross-examined. She was unable to review her opinion of the wife's psychiatric health, in the context of those documents and the wife's evidence of denial during both sets of proceedings. I do not accept Dr WW's evidence about the wife's mental health and prefer the evidence of the single expert witnesses, Dr G and Dr OO.
Ms VV swore an affidavit on 14 January 2020 which annexed a report about the wife's psychological treatment. She was cross-examined by both Senior Counsel for the husband and Counsel for the Independent Children's Lawyer. She presented as a highly defensive witness who was trying to justify her opinion that the wife's psychological problems did not impair her capacity to care for the children. She went to considerable lengths to carefully phrase her answers in cross-examination so as not to adversely impact the wife's case. Such an example was her answer to a question by Counsel for the Independent Children's Lawyer, whether she thought subjecting a child to an invasive medical examination, as had happened to D as a result of the wife's conduct, was abusive, by answering she would need further information before she could comment. Regrettably, the documentation from the wife's former solicitor's file was not available at the time she was cross-examined, as it may have been she would have been prepared to make appropriate concessions about the wife, if she had been presented with the wife's affidavit of 25 March 2019.
At paragraph 38 of the second family report, Dr G refers to Ms VV's opinion as fundamentally contrary to his own. He states that he would review the submissions of Ms Cornett’s treating psychologist as entirely inconsistent with the established fact pattern of this case. Not only is it forensically unsound to refer to risk as a dichotomy (i.e. there is/is not a risk), but Ms Cornett is a woman who has already placed her children at direct likelihood of harm, as outlined above.
I do not accept her evidence about the wife's lack of psychological problems and prefer the evidence of the single expert witnesses, Dr G and Dr OO.
The balance of the witnesses who had sworn affidavits in support of the wife's case were not required for cross-examination.
Husband’s witnesses
The husband and his partner, Ms J gave evidence and were cross-examined by Counsel for the Independent Children's Lawyer and by Counsel for the wife.
Both witnesses were highly impressive, considered and thoughtful in their responses to questions. Neither sought to answer questions in a manner which they thought would assist their case, rather they gave candid, direct and responsive evidence. The distress, anxiety and genuine concern each of them had for the children was palpable and obvious. I accept the veracity of the evidence and where their evidence differs from other witnesses, I prefer the evidence of the husband and Ms J.
Additionally, the husband called Dr MM, his treating psychologist, whom he had attended since March 2018. Dr MM's evidence was primary directed towards the psychological health of the husband and the impact on him, if orders were made requiring the husband to facilitate time between the wife and the children. Dr MM impressed as a highly professional and experienced witness who had treated the husband over a three-year period and had a profound insight into the psychological health of the husband. I accept his evidence as to the highly detrimental impact on the husband, if orders were made for the children to spend time with their mother. I refer to Dr MM's evidence in greater detail later in these reasons.
The balance of the witnesses who had sworn affidavits in support of the husband's case were not required for cross-examination.
Single Expert witnesses
Dr G, Psychologist, who conducted the two assessments and wrote the two family reports, a year apart, gave evidence and was cross-examined by all three Counsel.
Dr G is a highly qualified, regarded and experienced psychologist who is well known to the court as an expert witness. He had conducted two assessments of the family and was in a unique position to assess the deterioration of the family dynamic between each of the assessments and family reports.
His evidence about the family dynamic in general, and in particular the risk posed to the children, both physically and psychologically, from any contact with their mother was compelling. As was his evidence about the impact on the husband of being required to facilitate time between the wife and the children.
Dr G was unequivocal and forthright that the mother posed a serious risk to the children and that there should not be any time between the children and their mother, even if such time was supervised. He balanced the counterargument of the effect on the children of the loss of relationship with their mother, and ultimately concluded that the risk for the children, both physically and psychologically, if they were to spend supervised time with their mother would be unacceptable and too great. I accept Dr G's expertise and his professional opinions unequivocally.
Dr OO is a forensic psychiatrist who conducted a psychiatric assessment of both the husband and the wife. He is a respected professional witness who is well known to the court.
Dr OO concluded that having assessed the parties in respect of the allegations and counter allegations, that Ms Cornett's behaviour in regard to D’s nappy which she explained on the basis of shock, was unconvincing and lacked remorse, raising serious questions as to her motivation and ability to both care for the children and support their relationship with their father, a set of dynamics and concerns which he did not believe applied to Mr Hext. Dr OO was not required for cross-examination and I accept his evidence.
Dr UU, psychiatrist examined the wife on 14 September 2020, pursuant to orders which were made by me on 28 August 2020. Dr UU is an experienced psychiatrist and has frequently given evidence in this court.
The purpose of the assessment was to ascertain whether the wife understood the nature or possible consequences of the case or whether she was not capable of adequately conducting or giving adequate instructions for the conduct of the case. The orders were made following concerns expressed to the court by the wife’s then lawyer, as to her capacity.
Dr UU concluded that the wife did have capacity. He did not find any evidence that her judgement was currently impaired and there was no indication that she was unable to understand the nature or possible consequences of the case, nor any indication that she was not capable of adequately conducting or giving adequate instructions for the conduct of her case.
During the assessment, Dr UU reported that the wife admitted that she used to pick her fingernails and skin and it is possible that blood on D's underwear came from her fingers. Dr UU was not required for cross-examination and I accept his evidence.
Dr NN is a clinical psychologist who has treated all three children. Her report is dated 8 February 2021 and is exhibit ICL-1. Dr NN was not required for cross-examination by any of the parties and I accept her evidence.
Allegations of Risk
The wife’s allegations against the husband

It is inconceivable that the wife, after her change of position on day 9 and 10 of the trial, could possibly allege that either the husband or Ms J posed an unacceptable risk, or indeed any risk at all to the children.
Notwithstanding the wife's change of position, that she no longer sought the children live with her, and that her time with them should be supervised, I will address her allegations against the husband and his partner, Ms J pertaining to the children's sexualised behaviour. I intend to do so primarily because it was apparent from her evidence, that the wife still fervently believed that the children had been sexually abused in the husband's household, and that the perpetrator was his partner. Consequential findings in this regard will hopefully avoid future proceedings between the parties.
In her Outline of Case, which was filed for the trial commencing 20 January 2020, and was not subsequently amended, the wife made the following allegations against the husband:
(a)the latter part of the marriage was characterised by family violence perpetrated by the husband against the wife, both physical emotional;
(b)the husband engages in physical chastisement of the children;
(c)the husband engages in psychologically damaging behaviour by denigrating the wife to the children;
(d)the husband is unable to foster a relationship between the children and the wife because of his extreme antipathy towards her and his utter contempt for her;
(e)since separation whilst the children have been in the husband's care they have engaged in highly aberrant behaviour, including performing sexual acts upon each other, which the husband did not reveal until some months after he became directly aware of it;
(f)the husband has failed to take any steps to address the children's sexualised behaviour, which significantly indicates the welfare of the children has been markedly compromised;
(g)the children have been the subject of neglect in the husband's household.
The children’s sexualised behaviour
The wife refers to the children's sexualised behaviour at paragraphs 81 to 90 of her trial affidavit. She deposes that in late 2018, the husband started to see his partner, Ms J and around that time B and D started exhibiting unusually sexualised behaviours. She refers to the observation reports of Ms L which record the children's behaviour in her care. The report of 19 November 2018 refers to B asking the wife to see her vagina and boobies, and C stating that he wanted to kill his father for kissing a lot in front of the children.
The wife deposes that the children's sexualised behaviour between November 2018 and March 2019 escalated to such an extent that her Application in a Case filed 15 March 2019 sought that the children live with her.
The observation report of 2 February 2019 states that B said to the supervisor that D "always touches my penis", which occurs when the husband is upstairs, D was talking about nipples and said "[Ms J] lets us touch hers", that afternoon B swam up to the wife and tried to grab her vagina, prior to saying words to the effect that "[Ms J] plays with my penis".
The wife deposes that in early 2019 at C's birthday party at her home, she observed B to take the clothes off one of D's Barbie dolls, spread its legs and lick the place where her vagina would be.
On 25 February 2019 during a supervised visit the observation report records that B and D were naked in the lounge room and B laydown with his hands behind his bed and called to D to come over. D approached B and crouched between his legs and cupped his genitalia with both hands. B then brought his arm down and placed his hand on top of D's head and pushed her head towards his penis. D was bending her head down to place her mouth on B's penis when the mother ran out from the kitchen and intervened. B said to his mother "I told you she always touches my penis" and D skipped over to the singing "I love penis".
On 2 March 2019, D was observed to scream "I want penis", and on 11 March 2019 C was observed trying to put his finger in B's bottom and C trying to put his hand on D's vagina.
The husband deposes in his trial affidavit that on Sunday, 7 April 2019, C disclosed to the husband that D had been sucking B's penis and B had been licking D’s vagina and that C said the behaviour had been going on since January 2018. C reported that B and D had been engaging in sexualised behaviour when spending time with their mother, unseen by either their mother or a supervisor although C had seen it C and B said that it happened in the mother's apartment in both the spare room and her bedroom during supervised periods. B also said that they behaved in that manner in the father's home out of sight of any adults and C agreed. The husband deposes it was the first time he became aware that the children had behaved in that manner in his care.
After the children's disclosures the husband and his partner implemented arrangements to make sure that the children were safe in their households.
Prior to the disclosure, Orders had been made on 2 April 2019 for the children to engage with Dr PP for counselling. There were significant delays with arrangements for the children to attend on a psychologist, however eventually they attended on Dr NN of YY Clinic. Dr NN prepared a report which is exhibit ICL-1 and dated 8 February 2021.
On 1 April 2019, the husband received a letter from DHHS asking him to contact them. Subsequent to that letter the husband and Ms J eventually met with DHHS and a report of their investigation was produced on 26 July 2019. The husband asserts that there are many inaccuracies in the report, which are referred to in his affidavit. A further final report dated 10 September 2019, was released by DHHS on 10 September 2019.
The children attended AT Service for counselling at the instigation of DHHS.
On 12 September 2019, the wife filed an Application in the Melbourne Children's Court seeking an Intervention Order against Ms J on behalf of the children. During the course of those proceedings, on 25 September 2019 at a mention hearing of the wife's application in the Melbourne Children's Court, she alleged that Ms J had got the children to pose naked so that she could sell photographs of them on the Internet.
The Children's Court declined to make an Intervention Order as sought by the wife.
The AT Service reports of the children's counselling did not attribute any blame or culpability to the husband for the children's sexualised behaviour. The reports are Annexures F-38, 39 and 40 to the affidavit of the husband sworn 27 November 2019.
The AT Service specialist assessment report pertaining to D is dated 16 October 2019 (F-38) and was prepared by a counsellor/advocate, after D had attended three sessions with her. In her conclusion, the author notes:
It is quite likely that the sexualised behaviours have developed as a response to the psychological stress that she experienced and continues to experience during her parent’s ongoing dispute. It is anticipated the behaviours may diminish once D has consistent boundary setting, a stable home environment and less exposure to parental conflict and the family court system.
The AT Service specialist assessment report pertaining to C is dated 22 October 2019 (F-39) and was prepared by a counsellor/advocate, after C had attended five sessions. In her conclusion, the author notes:
C can state what makes him angry and happy and he understands the concept and consequences of rules. C is also aware of body safety that his private parts belong to him and if someone were to touch them, he would tell a trusted adult.
There were no disclosures of any material that was of a sexual nature by C.
The AT Service specialist assessment report pertaining to B is dated 22 October 2019 (F-40) and was prepared by a counsellor/advocate after B had attended five sessions. In her conclusion, the author notes:
Ongoing consistent supervision between B and his siblings be provided to ensure their safety is not breached. Line of site supervision between B and D should remain in place as per DHHS recommendations.
A nightlight be placed in B’s bedroom to help with night terrors. B would benefit from having a regular bedtime with clear bedtime routines in place involving adequate wind down time.
The report of Dr NN confirms that the children are safe in their father's care and are not demonstrating signs of any serious mental health diagnosis at this stage in relation to what has taken place between them.
In regard to D, Dr NN opines that her presentation suggests she has a number of overwhelming themes in her mind and that she can use therapy to explore them. She appears confused and ambivalent about her relationship with her biological mother. She does not present as "traumatised" by what took place between her and her older brother. In fact, the interactions may have served to comfort or soothe her despite the inappropriate nature. Her thoughts and feelings regarding this are likely to change as she matures.
Dr NN opines, in relation to the wife, that a personality disturbance may explain her presentation and behaviour towards her since 2019. She states that "she remains fixed in her belief that the children are not safe in their father's care despite my attempts to reassure her otherwise. She has been quick to anger when I have attempted to reassure her… It is understandable that she is distressed and wants her children to receive therapy however she maintains that Mr Hext has obstructed the therapeutic process and that the incest between B and D has not ceased, despite evidence to the contrary".
On page 17 of his report, Dr OO opined that his assessment of the parents was one of the more complex and conflicted assessments that he has undertaken, and one in which the children appear to have been significantly disadvantaged and distressed by, as a result of which they exhibit disturbing (sexualised) behaviours necessitating the involvement of DHHS.
In his second report at paragraph 40, Dr G states that “I would not hold him (the father) completely accountable for the intra-familial sexual abuse perpetrated by B against his sister. While it is concerning that this behaviour was able to persist for such a protracted period unnoticed, sexual abuse by its very nature tends to be concealed and hidden from parental view. I would also note that is generally accepted that molestation events have occurred both in the paternal and maternal environment”.
In the context of the above evidence and in particular the AT Service reports, the report of the children's psychologist Dr NN, and the wife's presentation and conduct, I find that neither of the husband nor his partner Ms J, have sexually abused or groomed the children.
The husband’s allegations against the wife
The factors which the husband asserts warrant the wife spending no time with the children are as follows:
(a)the wife's parenting capacity;
(b)her unfounded allegations of family violence against the husband;
(c)her relentless campaign of notifications, complaints and reports to authorities, impacted adversely on the husband's and his partners psychological health, and their capacity to effectively parent the children as sole carers.
I will address each of the factors.
Wife’s parenting capacity
Firstly, the wife's parenting capacity. The husband submits that the wife has a significant, complex psychiatric history which has attracted multiple diagnoses. Her history includes:
(a)a diagnosis of postnatal depression for which she has been treated with psychotherapy, antidepressant medication and ECT;
(b)Post-Traumatic Stress Disorder after her emergency hysterectomy due to a near fatal postpartum haemorrhage;
(c)her suicide attempt by overdose whilst the children were present in the family home;
(d)her hospitalisation on two occasions in a psychiatric facility since separation, including as an involuntary patient;
(e)Dr OO's diagnosis of her suffering from a major depressive illness.
The husband submits that the wife has a history of problems with cocaine, alcohol and prescription medication, including:
(a)she is noted by her former psychiatrist, Dr F to have been intoxicated whilst an impatient of a psychiatric facility and returning from daily leave having consumed alcohol;
(b)there is ancillary information from people supervising her time with the children that she has consumed alcohol;
(c)Ms LL, the director of D’s kindergarten identified concerns to DHHS about the wife's drug use;
(d)she was suspected of smelling of alcohol when she attended for the family report interviews with Dr G;
(e)both Dr F and Dr OO (the single expert witness) have diagnosed her with alcohol use disorder and opioid use disorder.
The husband further submits that the wife's claims of having being rehabilitated are premature, overstated and cannot be sustained for the following reasons:
(a)she refuses to take responsibility for her addictive behaviours, blaming her various physical ailments or the husband;
(b)she has been resistant to receiving psychiatric treatment including suspending or cancelling appointments and changing psychiatrist frequently during the proceedings;
(c)Dr OO assessed her as lacking insight and minimising her addictive behaviours;
(d)Dr G noted that the wife remains lacking insight into the significant and complexity of her psychopathology and personality function.
The wife denies the allegations levelled against her by the husband, however in light of the wife's concessions, the children should live with the husband, he should have sole parental responsibility and that her time should be limited to once a month supervised, it is difficult to reach any conclusion other than the husband's allegations are truthful and well-founded.
This is particularly so in the context of the wife's denials about the events subsequent to 14 March 2019 and the wife's evidence which clearly and cogently contradicted documents which had been subpoenaed from her former solicitors.
I find that the allegations of the husband are well-founded.
Wife’s allegations of family violence during the marriage
Secondly, the wife's allegations of family violence during the marriage. These allegations include a rape resulting in the conception of C, a further rape resulting in her near fatal postpartum haemorrhage and assaults resulting in physical injuries which she asserts are corroborated by photographs annexed to her affidavits.
The husband asserts that her allegations should be rejected when viewed in the context of:
(a)her previous reports to friends and her GP that she sustained the injuries accidentally and sometimes whilst exercising;
(b)the belated escalating and uncorroborated nature of her accusations;
(c)Dr G's assessment of the husband is not presenting with a psychological profile which is commonly associated with men who perpetrate coercive and controlling behaviours within the home;
(d)Dr G’s assessment of the wife's affect during interview is entirely incongruent with a person recounting years of traumatic physical, emotional and sexual abuse;
(e)Dr OO's concerns in regard to the veracity of the wife's allegations of abuse by the husband.
Having regard to my findings about the wife's veracity as a witness and the concessions made by her as to the appropriate parenting arrangements for the children, I reiterate my comments at paragraph 118, and reject the wife's evidence in this regard. I accept the husband's evidence that he did not perpetrate family violence on the wife during the relationship and I find accordingly.
Children at risk whilst in the wife’s care
Thirdly, the husband asserts that the children are at risk in the wife's care. Those risks include:
(a)the wife abusing alcohol and prescription drugs;
(b)her ongoing denigration of the husband and his partner to the children;
(c)her relentless unfounded and dangerous allegations against the husband;
(d)she cannot be trusted with the children, even when supervised.
I have addressed the issue of the wife's use of alcohol and prescription drugs in the preceding paragraphs.
I will discuss the ongoing denigration of the husband and his partner to the children and her unfounded and dangerous allegations against the husband, under the heading "Wife's campaign of conduct and relentless reports of notifications".
The husband asserts that the children are at risk in the wife's care, even whilst subject to supervision. His assertions arise from two significant events, which I will address, namely:
(a)the events of 14 March 2019 and following, which pertain to the contamination and attempted destruction of D's underwear;
(b)the wife's removal of B's EpiPen from his backpack during a supervised contact visit on 20 September 2019 and on two further occasions.
The husband's concerns are how the wife managed to engage in such conduct notwithstanding that she was supposedly supervised, by two different supervisors during each of the contact visits of 14 March 2019 and 15 March 2020. Her actions are demonstrative of the lengths she is prepared to take to undermine the husband's relationship with the children and misrepresent his care of them.
Her actions of 14 March 2019 resulted in D undergoing a highly invasive and intimate forensic medical examination, in circumstances when she obviously knew that it was not necessary and B being at risk by not having an EpiPen in his backpack, whilst in the husband's care, for nearly a week.
Events of 14 March 2019 and following (Contamination and attempted destruction of D’s underwear)
Subsequent to my determination that the wife had waived legal professional privilege, the husband's solicitors inspected the relevant parts of the file of her first solicitors, Q Lawyers. Many of the emails and diary notes referred to in subsequent paragraphs are contained in the file of those solicitors.
According to Ms H, contact supervisor, in her affidavit filed 18 March 2019, the following occurred:
At approximately 6:30 PM, the mother started cleaning up and collecting dirty clothes. The mother picked up D’s clothes to put in a bag to be washed. The mother looked at D’s underpants and asked D, "Did you hurt your private parts? - D ignored her and did not reply. The mother passed the underwear to the worker, who also looked at them and put them out of sight of the children. The worker observed that the underwear seemed to be stained with blood in the crotch area.
The mother asked D if she had a fall at kinder and what she did that day, but D did not answer her. After several questions, D said, "I did all my stuff" and the mother joked with her and tried to get her to answer, however D did not respond to any further questions.
Later that evening at 6:37 PM, the mother forwarded an email to her solicitor, Ms AB and to her mother, Ms M, which said "D has blood in her underwear". At 7:10 PM that night the mother forwarded a further email to Ms AB Ms AC (the two solicitors) and Ms M "I feel sick there is blood in her underwear".
At 11:22 AM on 15 March 2019, Ms AB forwarded an email to Senior Counsel, Ms Stoikovska:
The client instructs that last night whilst she was changing D into some fresh clothes she observed blood on her undies… The professional supervisor also observed this and notified the police and child protection. We are still awaiting an update... Our client has also made a report to DHHS and Victoria police.
On 15 March 2019, the wife filed an Application in a Case seeking an immediate change of residence, on the basis of the events of 14 March 2019. The Application was first listed for mention before Macmillan J on 19 March 2019.
On 15 March 2019, the wife swore an affidavit which said at paragraph 16:
When I was changing her into some fresh clothes, I and the supervisor observed the inside of D’s underwear which were quite bloodied… The supervisor took the underwear into another room.

It is quite clear that paragraph 5 of the Orders of 28 June 2018 enabled the husband to access the Company AL Managed Fund and the share portfolio to comply with the orders. The exception to the restraint does not state that he can only access those assets to pay the capital sums referred to in paragraph 1 of the Orders. There is no distinction in the obligations under the orders which are the subject of the exemption in the restraint.
The husband’s Financial Statements have consistently demonstrated a deficit in his income compared to his outgoings, including the obligations to the wife. The interpretation of the orders has been a source of constant correspondence between the various solicitors acting on behalf of the wife and the husband’s solicitors.
I am of the view that the husband was within the terms of the orders of 28 June 2018, which were made by consent when both parties were represented by experienced Counsel, when he utilised the sale of the managed fund and share portfolio to provide significant financial assistance to the wife to support her subsequent to the separation. I do not intend to add back into the asset pool the proceeds of sale of the managed fund or the share portfolio. I also note that the wife’s estimate of the amount realised by the husband is significantly greater than that sworn to by the husband, and I prefer the husband’s evidence to that of the wife.
I accordingly find that the existing legal and equitable interests of the parties in property is as set out in the asset and liability pool at paragraph 406 hereof.
CONTRIBUTIONS
Section 79(4)(a) financial contributions
Assets at the commencement of the relationship
At the commencement of the relationship, the wife asserts that neither party owned any assets of significant value, save for modest amounts of superannuation and a motor vehicle.
At the commencement of the relationship, the husband asserts that he had assets comprising cash, shares, the motor vehicle, chattels, art and $85,000 in superannuation. At paragraph 347 of his trial affidavit, he deposes his assets were worth approximately $185,224 plus superannuation, and were as follows:
(a)savings of $82,224;
(b)shares worth $23,000;
(c)a motor vehicle 2 worth $20,000;
(d)jewellery and art worth $20,000
(e)home contents of $40,000
(f)superannuation of $85,000.
Annexure F-43 of that affidavit is a copy of a loan application made by the husband to the Commonwealth Bank dated 9 May 2005.
The husband asserts that the wife was in a net debt position with nominal superannuation, at the commencement of the relationship. He deposes that she had a motor vehicle 3 subject to a car loan of $12,252 and a credit card debt of $10,000, which he also paid out. He is unaware of how much superannuation she had
The husband was not cross-examined about either issue. Having regard to my findings about the veracity of each of the party's evidence, I accept the husband's evidence in this regard and find accordingly.
Contributions during the relationship
The wife's evidence is:
(a)from the commencement of the relationship until shortly prior to the birth of B, both the husband and the wife were engaged in full-time employment and applied their respective incomes primarily to the benefit of the family;
(b)she ceased work in late 2011 shortly prior to the birth of B;
(c)apart from a period of four months from November 2017 she was not employed outside the home since ceasing work in late July 2011.
The husband's evidence is:
(a)both parties worked full-time until the wife ceased work in September 2010;
(b)both applied their income towards the families expenses and towards the acquisition and maintenance and improvement of assets;
(c)the wife spent significant funds on cocaine, at least $10,000 in 2005 from savings in the offset account and purchasing designer clothes and shoes.
Both agree that on 5 April 2005 they purchased a property in Suburb BB for the sum of $535,000. The wife claims that the deposit was paid from a joint savings, whereas the husband's evidence is that he paid a deposit of 5%, $26,750 from his savings and at settlement applied his savings of approximately $30,000.
The balance was funded by way of a mortgage from the CBA.
Annexure F-44 to the husband's trial affidavit is a copy of the sales trust account receipt dated 7 April 2005, confirming he paid the deposit of $26,750.
The husband was family's the sole income earner since July 2011 according to the wife and since September 2010, according to the husband.
Between September 2011 and February 2012, the husband received a significant inheritance from his father's estate. He received the sum of $799,836.20 which was applied as follows:
(a)$5,000 was gifted to the CC Company, in accordance with his father's wishes;
(b)$92,000 was paid to reduce the mortgage secured against the Suburb BB property, which reduced the loan to $130,000;
(c)the balance of approximately $700,000 was deposited into a AM Bank online savings account in the wife's name.
Annexure F-45 is a copy of the trust transaction report dated 24 February 2012 which confirms that the husband received from his late father's estate $704,274.82 on 5 September 2011 and $85,000 on 18 January 2012.
Both parties agree that the Suburb BB property was sold for $807,000 in 2012. The husband deposes to receiving $593,796.03 from the sale proceeds of the property together with a further $60,000 from the deposit. Annexure F-46 is a copy of the statement of adjustments from the conveyancers which accords with the husband's evidence.
Prior to the settlement of Suburb BB, the parties purchased a property situated at EE Street, Suburb FF for $2.5 million. The husband paid the deposit of $250,000 from the balance of the inheritance, leaving a balance of $460,000 in the AM Bank account in the wife's name. At settlement, the husband applied cash of $379,659, being $270,000 from his inheritance and a further $100,000 from a bonus received from his employer, and the balance was funded by way of a mortgage.
During the relationship, significant payments were made between 18 April and 7 June 2012 which reduce the mortgage from $2,010,150 to $1,036,076. The husband deposes that on 19 April 2012, he paid $230,000 from his inheritance towards the mortgage, on 21 May 2012, $60,000, being the Suburb BB deposit funds were applied towards the mortgage and on 6 June 2012, $590,000 was paid from the proceeds of sale of Suburb BB. At that time, there was approximately $1,463,929 equity in the home, which included $800,000 from the husband's inheritance.
The husband asserts that the wife had unfettered access to all bank accounts and utilised significant amounts of money, between $1000 and $2000 each alternative day for online shopping. Funds were also used to pay for nannies and au pairs to enable the husband to work full-time.
The husband asserts that between November 2017 and March 2018, when the wife was employed, approximately $20,855 was deposited into her personal account and applied by her for her own expenses rather than those of the family.
Having regard to my findings about the wife as a witness, and the contemporaneous documentation supporting the husband's evidence, I prefer the evidence of the husband in relation to contributions during the relationship and find accordingly.
Post separation contributions
Following separation, the husband has been solely responsible for meeting all of the family's expenses without any contribution by the wife. Additionally, he has paid significant financial support to the wife including rent, spousal maintenance, medical costs and her mobile telephone and private health insurance payments. He has also paid for supervision costs for the wife to spend time with the children.
Section 79(4)(b): non-financial contributions and section 79(4)(c) contribution of homemaker and parent
The wife asserts:
(a)she assumed the role of primary caregiver to B and after each of their births, C and D. She acknowledges that she was assisted from time to time by paid nannies, particularly following D's birth due to the life-threatening medical issues she suffered shortly thereafter;
(b)in addition to providing primary care of the children she was responsible for managing the running of the family household;
(c)because the husband was engaged in full-time and demanding employment which involve long hours and interstate travel, she was not assisted by him to any great degree.
The husband asserts he was the primary parent of the parties' three children when he was not working as the wife was incapacitated by her numerous physical and mental health problems, and substance abuse, including alcohol and cocaine.
At paragraphs 46 - 79 of his trial affidavit, the husband deposes in great detail to the wife's care of the children during the marriage. At paragraphs 77 - 91, the husband deposes to his care of the children during the marriage.
The husband deposes that the wife's capacity to care for the children during the marriage was significantly compromised by her mental health and addiction to prescription drugs and alcohol. He also asserts that in 2004 she developed a cocaine problem.
The husband's evidence is as follows:
(a)following B's birth until he was eight months old, Ms AW, the wife's stepmother would look after B from 9 AM until after lunch each day and the wife would go out without telling her or Ms AW where she was going and when she intended to return;
(b)from August 2012 until October 2018, the husband employed nannies and au pairs for significant periods, which are particularised at paragraph 52 of his trial affidavit;
(c)following C's birth in 2013, the wife appeared to be suffering from postnatal depression and the husband arranged for her to obtain treatment from a local practitioner, who referred her to a psychiatrist, Dr GG;
(d)following D's birth in 2015, the wife suffered from postpartum haemorrhage and was hospitalised for a number of weeks;
(e)following her return home, she was prescribed bedrest for three months and during that time the husband deposes that she withdrew from the family and commenced drinking alcohol and consuming Endone;
(f)in November 2015, the wife underwent ECT therapy at the HH Clinic to treat her depression and Post-Traumatic Stress Disorder;
(g)she began drinking alcohol, predominantly vodka after that;
(h)from January 2017, the husband discovered boxes of OxyContin;
(i)both C and D attended a crèche five days a week throughout 2017 while B was at school, despite the wife not obtaining employment until November 2017;
(j)when the wife resumed employment, a new au pair was engaged and the children continued to be cared for by au pairs until separation.
It is common ground that post separation the children have remained living with the husband and the wife's time with the children has been limited and supervised.
Having regard to my findings as to the wife as a witness and the veracity of her evidence, I prefer the husband's evidence as to the non-financial contributions during the relationship and post separation. I accept the husband's evidence as to the care of the children during the marriage, both in respect to the wife's compromised capacity to care for the children and the husband's involvement and care of the children and I find accordingly. I also accept his evidence about the care of the children post separation and the wife's limited involvement with them.
Section 79 (4)(d),(e),(f) and (g) and the Section 75(2) factors
Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage.
The orders which I propose to make will not have any effect on the earning capacity of either party.
Section 79(4)(e): the matters referred to in section 75(2) so far as they are relevant
The husband is aged 50 and enjoys reasonable physical health, although recently he has experienced physical health problems which may be attributable to the stress of the proceedings. His psychological health is fragile as a result of the proceedings and what he rightly perceives as the wife's unpredictable behaviour and continuing attempts to compromise his care of the children and the children's safety during supervised visits. The evidence of his psychologist, Dr MM in relation to the fragility of his mental health, was compelling as was his presentation whilst giving evidence.
The husband works full-time and according to his Second Further Amended Financial Statement filed 11 November 2020, his annual salary is $325,454 per annum, together with superannuation calculated at 10% of his salary. Additionally, he receives a cash payment of $10,437 rather than that amount being contributed towards his superannuation, so as not to breach the concessional tax limits for superannuation contributions.
In addition to his salary, the husband is also eligible to receive discretionary bonus payments which are categorised into two parts, "Bonus A" and "Bonus B".
The "Bonus A" bonus pool is linked to Company AE’s Asset Management business performance against objectives. Any allocation of bonuses to the husband are based on his KPI scores which are calculated as at 30 June each year. Any such bonuses are paid as to 75% in cash and 25% in deferred Company AE shares payable within 12 months.
The "Bonus B" pool is the profit pool available for distribution after meeting set targets. The payments are discretionary and are paid as to 50% in cash following the financial year in which they are learned and the remaining 50% vests in cash two years later, subject to employment and behaviours and are at Company AE 's discretion.
Over the last four financial years the husband has earned taxable income as follows:
(a)FY 2018 - $697,655 comprising a bonus of approximately $283,000, cashed in annual leave and a $13,000 settlement without admission, in respect to an earlier unpaid Bonus B;
(b)FY 2017 - $530,000 including a bonus of $208,000;
(c)FY 2016 - $605,000 including a bonus of $280,000;
(d)FY 2015 - $535,000 including a bonus of $210,000.
According to his Financial Statement, the husband estimates that his taxable income for FY 2019 will be approximately $620,000 and that his taxable income for FY 20 was $447,633.
The husband will be financially responsible for the three children of the relationship as orders will be made for them to live with him and spend no time with the wife. It is unlikely that he will receive any significant contribution from the wife towards the financial requirements of the children.
The husband has re-partnered with Ms J and they have a new daughter. He is also responsible for the financial support of his partner and their child.
Pursuant to orders made 28 June 2018 the husband pays to the wife of her maintenance the following:
(a)$800 per week into her nominated bank account;
(b)$700 per week for her rental expenses;
(c)$500 per week for her medical expenses;
(d)her mobile telephone, private health insurance and life insurance premiums.
He has also paid for the supervision costs for the wife to spend time with the children.
The wife is aged 46 and suffers from mental health issues. She has not been in paid employment since February 2018.
The wife will not be spending any time with the children, pursuant to the orders I intend to make, and subject to her mental health issues, should be able to find employment to support herself, although that may take some time either to retrain or find employment in her former field.
In relation to her mental health issues, neither her psychiatrist Dr WW nor her treating psychologist, Ms VV, were of the view that she had significant mental health issues.
Section 79 (4)(f) and (g)
The parenting orders in relation to the children and child support issues are referred to earlier in these reasons.
Section 75(2)(o): any fact or circumstance which in the opinion of the Court, the justice of the case requires to be taken into account
In his Second Further Amended Financial Statement, the husband refers to his financial resources of $102,602 at part L as follows:
(a)$7,500, being Bonus B payment of Company AE shares from 2018 due November 2020;
(b)$48,197, being 50% of AD Equities due January 2021; and
(c)$46,905, being 50% of Bonus B due March/April 2022.
Discussion and Conclusion as to Contributions
Conclusion as to Contributions
Neither Counsel made submissions about the respective percentage contributions of the parties.
In her Amended Initiating Application filed 16 December 2019, the wife seeks a division of overall assets as to 70% in her favour and 30% to the husband, together with an order to equalise the party's respective superannuation entitlements.
In his amended Response filed 27 November 2019, the husband seeks a division of overall assets as to 75% in his favour and 25% to the wife, together with an order to equalise the party's respective superannuation entitlements.
I do not intend to attach percentages to the parties' initial contributions; those made during the marriage and post-separation.
As the Full Court said in Dickons & Dickons [2012] FamCAFC 154:
[23] We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
[24] There can be little doubt that the classification of contributions by reference to terms such as "initial contributions", "contributions during the relationship", and "post-separation contributions", can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties' respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
The initial contributions of the husband of approximately $185,000 at the commencement of the relationship and the $800,000 inheritance received by the husband in late 2011 and 2012, and his contribution to the welfare of the family, compared to the wife's limited and compromised capacity to care for the children during the relationship, leads me to the irresistible conclusion that the contributions of the husband must be accorded significant weight. The husband's initial attribution enabled the parties to purchase the Suburb BB property, which increased in value significantly during the period of ownership. His inheritance enabled the parties to purchase Suburb FF property. Those "lump sum" or "discrete" contributions carry significantly greater weight than the other financial and non-financial, both direct and indirect, contributions of the parties.
Having regard to my findings as to contribution and weighing up and assessing the myriad of contributions of the parties, both financial and non-financial, direct and indirect, at the commencement of the relationship, during the relationship and post-separation, and their contributions as homemaker and parents, and taking into consideration pursuant to s 75(2)(o), the husband's financial resources, I assess those contributions as 75% to the husband and 25% to the wife.
Discussion and conclusion as to Future Needs

Senior Counsel for the husband submitted that there should not be any adjustment under s 75(2). The husband carries the burden of supporting the children of the marriage, his new partner Ms J, Ms J’s son N, and the new daughter, U. That is a household of five children under the age of 11.
It was submitted that the wife entered the relationship working in marketing and then re-entered the workforce after eight years absence finding herself a job equivalent to $150,000 per annum, in marketing. She told Dr OO that it is her intention to return to employment upon the conclusion of the proceedings and her former psychologist, had no reason to believe the wife could not integrate back into the workforce to enable her to adequately support herself.
Counsel for the wife did not make any specific submissions about the applicable percentage adjustment to the wife of future needs, other than it was apparent from her presentation and conduct that she may well encounter difficulty in securing employment in the near future and that an adjustment was appropriate.
I consider an adjustment of 5% is appropriate for the wife of future needs, having regard to the length of time she has been out of the workforce and her obvious and florid psychiatric problems.
Adjustment of Interests
On the asset pool as determined by me a division of assets of 70% in favour of the husband and 30% in favour of the wife of the non-superannuation pool will result in the husband receiving $2,296,434.12 and the wife receiving $960,686.05. I intend to equalise the superannuation interests of the parties. That will result in an overall distribution of the asset pool of 32.5% to the wife and 67.5% to the husband.
The assets which the wife will retain are as follows:

WIFE’S PROPERTY – Non superannuation

Part property distribution 100,000

Part property distribution 500,000

Litigation funding 150,000

Part property distribution 150,000

NAB account #...64 NK

Westpac credit card debt #...80 (12,000)

Sub Total $ 888,000

Payment from funds in trust $89,136.05

Total assets $977,136.05

Less amount to be paid to husband to reimburse costs $16,450

TOTAL $960,686.05

Superannuation Value

Payment from Z PL atf Hext Cornett Superannuation $150,696

Wife’s Super Fund 2 at Oct. 2019 $130,000

Total Superannuation $280,696

The assets which the husband will retain are as follows:

HUSBAND’S PROPERTY – Non superannuation

Part property distribution 500,000

Litigation funding payment 150,000

Legal fees paid by husband 208,316

Drawdown of Line of Credit on 27.9.19 100,000

Drawdown of Line of Credit in 11.2019 37,845

Drawdown of Line of Credit 1,250

Drawdown of Line of Credit 6,319

ANZ account #...73 15,067

ANZ account #...75 213

ANZ account #...15 0

CBA account #...08 50

CBA/ Commsec 150

Company AE Shares x 421 (306 available, 115 escrowed) 9,910

Motor vehicle 1 20,000

AM Bank Visa credit card debt (14,419)

ANZ Visa credit card debt (1,595)

AP Bank Visa credit card debt 0

AQ Bank Mastercard (1,655)

Reimbursement payment from wife $16,450

Sub Total $1,047,901

Payment from funds in trust $1,248,533.12

TOTAL $2,296,434.12

Superannuation Value

Retention of Z PL atf Hext Cornett Superannuation $204,679

Super Fund 1 Fund A $76,017

Total Superannuation $280,696

The financial resources the husband will retain are as follows :

FINANCIAL RESOURCES OF HUSBAND Value

50% of AD Equities $48,197

50% of Bonus B payment $46,905

TOTAL $95,102

The division of assets will result in both parties receiving a distribution from the funds held in trust, albeit the husband will receive significantly more than the wife. The husband will receive $1,248,533.12 and the wife will receive $89,136.05. Apart from the add backs of the previous distributions, the parties will retain modest assets in addition to the distribution of funds from trust. The wife will also be required to pay to the husband $16,450 being her share of the various expert reports.
Regrettably, this is a case where the parties have expended astronomical legal fees and have now been left with a very modest asset pool, compared to the asset pool at the date of separation.
I am satisfied the proposed division of assets is just and equitable and I intend to make orders accordingly.
Wife’s application for spousal maintenance
In her Amended Initiating Application, the wife seeks spousal maintenance from the husband for a period of two years as follows:
(i)$800 per week paid into an account nominated by the wife;
(ii)$500 per week on account of the wife's medical expenses;
(iii)payment of her mobile telephone expenses and private health insurance at the current level.
In his Amended Response, the husband did not specifically seek orders to discharge the current spousal maintenance orders, nor respond to the wife's continuing spousal maintenance order as referred to in the previous paragraph. He did not respond to the wife's orders sought for ongoing spousal maintenance, as at the time he filed his Response the wife had failed to file her amended initiating application.
In any event, I understand the husband's case that the wife should receive 25% of the asset pool and thereafter there should not be any further payments of spousal maintenance to her.
In relation to the wife's claim for spousal maintenance, Senior Counsel correctly submitted that the wife is required to establish that she is unable to support herself adequately from her own resources, prior to the court entertaining such an application. It would have been expected that a person seriously pursuing an application for spousal maintenance would provide some evidence of her educational standard, what occupations she has had, past earnings, efforts to obtain employments and the reasons for success or otherwise and the likely income she may be able to achieve. In this case, there is no such evidence adduced on behalf of the wife, other than the income which the wife was able to secure in November 2017.
Counsel for the wife submitted that it was common ground the wife had not been in employment since March 2018 and given her presentation and psychological/psychiatric history, it would be difficult to imagine that she would be able to be engaged in any form of full-time employment. That submission was made without her Counsel having been present when both her treating psychologist and psychiatrist seem to think there was very little wrong with her.
However, the reality of the wife's situation is that it may take some time for her to retrain or secure employment and that until she does so she would have no means of supporting herself, other than the distribution of the funds from those held in trust.
Because the wife has expended such a significant amount on legal costs, the funds she will be left with at the end of the day are not significant, when compared to the asset pool which existed as at the date of separation. The funds she will be receiving will be relatively modest.
I am cognisant of the fact that the husband has paid spousal maintenance to the wife since 2018 and that the proceedings have been delayed due to the COVID-19 pandemic. That has resulted in the husband being obliged to pay spousal maintenance to the wife for almost 3 years in circumstances where he deposes to having a deficiency in income over expenditure.
The husband will receive a more significant amount from the distribution of the proceeds in trust than the wife and will also have the benefit of his substantial salary, bonuses and financial resources. He has been relieved of his obligations to pay supervision costs of the wife's spending time with the children.
In the circumstances, I consider it appropriate that the husband continue to pay some form of spousal maintenance to the wife for a period of three months in order to enable her to retrain or find some form of employment. That spousal maintenance should be limited to the amount claimed by her of $800 per week and she should be responsible for her own medical expenses, telephone and private health insurance. I will make orders accordingly.

I certify that the preceding four hundred and eighty-eight (488) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 13 May 2021

[2021] FamCA 289

13 May 2021

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Expert Evidence

File number(s):	MLC 5714 of 2018
Judgment of:	WILLIAMS J
Date of judgment:	13 May 2021
Catchwords:	FAMILY LAW – PARENTING – Both parties initially sought that the three children of the marriage live with them until the tenth day of the trial, when the wife conceded that the children should live with their father, he should have sole parental responsibility for the children and she should spend supervised time on one occasion each month – Consideration of whether the wife should spend supervised time with the children in the context of her conduct posing an unacceptable risk to the children, or whether she should spend no time with the children, as sought by the husband – Wife’s evidence contrary to diary notes and a draft affidavit in her former solicitor’s file, which was disclosed after a successful application of waiver of legal professional privilege – Findings sought as to the children’s sexualised behaviour – Compelling evidence from the family report writer about the risk which the wife posed to the children – Consideration of whether the wife’s conduct and relentless campaign of notifications to regulatory authorities and her behaviour in general significantly impacted on the husband’s capacity to parent the children – Expert evidence adduced on behalf of the husband from his treating psychologist as to the impact on the husband being required to facilitate time between the children and the wife, in circumstances where the treating psychologist considered the husband’s fears and apprehensions entirely rational – Held the wife should spend no time with the children. FAMILY LAW – PROPERTY – Consideration of the respective contributions of the parties in circumstances where the wife’s care of the children was compromised significantly by her mental health problems and substance abuse particularly, after the birth of the third child – Weight to be accorded to an inheritance received by the husband during the relationship – Extent of husband’s post separation contributions when the wife’s time was limited to supervised time with the children – Whether or not there should be an adjustment for the wife pursuant to s 75(2) factors – Held the non-superannuation assets should be divided 70% to the husband and 30% to the wife and the superannuation entitlements should be equalised, in accordance with the proposal of both parties – Limited spousal maintenance for a period of three months ordered.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 68B, 75(2), 79, 102NA
Cases cited:	Bevan & Bevan [2013] FamCAFC 116 Chancellor & McCoy [2016] FamCAFC 256 Cornett & Hext (No. 3) [2020] FamCA 1069 Cornett & Hext (No.2) [2020] FamCA 586 Cornett & Hext [2019] FamCA 235 Dickons & Dickons [2012] FamCAFC 154 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 In the Marriage of Hickey [2003] FamCA 395 Keane & Keane [2021] FamCAFC 1 M v M (1988) 166 CLR 69 Murphy v Murphy [2007] FamCA 795 Stanford v Stanford [2012] HCA 52 Stott & Holgar and Anor [2017] FamCAFC 152 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Number of paragraphs:	488
Date of hearing:	20-24 January 2020, 8-12 February 2021
Place:	Melbourne
Counsel for the Applicant:	Ms McCreadie with Ms Taylor (8-12 February 2021) Ms Smallwood SC with Ms Fisken (20-24 January 2020)
Solicitor for the Applicant:	McGowan Family Law (8-12 February 2021) Marshalls+Dent+Wilmoth Lawyers (20-24 January 2020)
Counsel for the Respondent:	Mr North S.C. with Ms Dellidis
Solicitor for the Respondent:	Kenna Teasdale Lawyers
Counsel for the Independent Children's Lawyer:	Mr Eidelson
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	13 MAY 2021

WIFE’S PROPERTY – Non superannuation
Part property distribution	100,000
Part property distribution	500,000
Litigation funding	150,000
Part property distribution	150,000
NAB account #...64	NK
Westpac credit card debt #...80	(12,000)
Sub Total	$ 888,000
Payment from funds in trust	$89,136.05
Total assets	$977,136.05
Less amount to be paid to husband to reimburse costs	$16,450
TOTAL	$960,686.05
Superannuation	Value
Payment from Z PL atf Hext Cornett Superannuation	$150,696
Wife’s Super Fund 2 at Oct. 2019	$130,000
Total Superannuation	$280,696

HUSBAND’S PROPERTY – Non superannuation
Part property distribution	500,000
Litigation funding payment	150,000
Legal fees paid by husband	208,316
Drawdown of Line of Credit on 27.9.19	100,000
Drawdown of Line of Credit in 11.2019	37,845
Drawdown of Line of Credit	1,250
Drawdown of Line of Credit	6,319
ANZ account #...73	15,067
ANZ account #...75	213
ANZ account #...15	0
CBA account #...08	50
CBA/ Commsec	150
Company AE Shares x 421 (306 available, 115 escrowed)	9,910
Motor vehicle 1	20,000
AM Bank Visa credit card debt	(14,419)
ANZ Visa credit card debt	(1,595)
AP Bank Visa credit card debt	0
AQ Bank Mastercard	(1,655)
Reimbursement payment from wife	$16,450
Sub Total	$1,047,901
Payment from funds in trust	$1,248,533.12
TOTAL	$2,296,434.12
Superannuation	Value
Retention of Z PL atf Hext Cornett Superannuation	$204,679
Super Fund 1 Fund A	$76,017
Total Superannuation	$280,696

FINANCIAL RESOURCES OF HUSBAND	Value
50% of AD Equities	$48,197
50% of Bonus B payment	$46,905
TOTAL	$95,102