Dawar and Dawar (No. 2)
[2019] FamCA 923
•6 December 2019
FAMILY COURT OF AUSTRALIA
| DAWAR & DAWAR (NO. 2) | [2019] FamCA 923 |
| FAMILY LAW – CHILDREN – Parenting Orders - Allegations of serious domestic violence, controlling and coercive behaviour perpetrated by husband against wife during the marriage and post separation – Risk of harm to children from father’s behaviour - Wife’s allegations of husband’s serious domestic violence and coercive controlling behaviour during the marriage not accepted by the Court – Finding that mother is not a witness of truth – Parenting orders for equal time and equal shared parental responsibility. FAMILY LAW – PROPERTY – Property Settlement – Application by wife for property settlement – Father to indemnify the mother in relation to significant marital debts and to retain the modest matrimonial pool of $103,000 having regard to the mother having received $170,000 during the litigation and her significant wastage of matrimonial assets from gambling. |
| Evidence Act 1995 (Cth), s 138 Listening Devices Act 1992 (ACT) |
| Goode & Goode [2006] FamCA 1346 M v M (1988) 166 CLR 69 |
| APPLICANT: | Ms Dawar |
| RESPONDENT: | Mr Dawar |
| INDEPENDENT CHILDREN’S LAWYER: | Barker & Barker |
| FILE NUMBER: | CAC | 1974 | of | 2017 |
| DATE DELIVERED: | 6 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 1, 2, 3, 4, 5 April 2019, 23, 24, 25 September 2019, 29 October 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self - Represented Litigant |
| COUNSEL FOR THE RESPONDENT: | Mr Haddock |
| SOLICITOR FOR THE RESPONDENT: | Dobinson Davey Clifford |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Ridge |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barker & Barker |
Orders
All previous parenting and property orders, be they on an interim or final basis, are discharged and the children X born … 2011 and Y born … 2012 names are removed from the Airport Watch List.
The parties have equal shared parental responsibility for the children X born … 2011 and Y born … 2012.
The children live with both parents in a seven night per fortnight regime with the children to come in to their parent’s respective care at the commencement of school Monday morning.
The first such period that the children come into their father’s care is to be determined by him in accordance with his work schedule and as notified to the mother with no less than five days’ notice in writing.
Thereafter, the children will live in a cycle of seven days with each parent in a 14 day period.
The equal time arrangement will continue during term school holidays.
For the Christmas Holidays in odd-numbered years the children will live with their father, if not already living with him, from the cessation of school to 12 noon 11 January 2020 and, thereafter, with their mother to the commencement of the school term in 2020 and each alternate odd numbered year thereafter.
In even-numbered years the children live with their mother if not already living with her from the cessation of school to 12 noon 11 January 2021 and, thereafter, with their father from 12 noon 11 January 2021 to the commencement of school 2021 and each even numbered year thereafter.
On each child’s birthday the parent with whom they are not living on that day is to collect the children at 3 pm from either after-school, after-school care, vacation care or the other parent’s home returning the children to the other parent’s home at 8 pm.
The father to hold the children’s passports and each parent is to sign all documents necessary to ensure the children have a current valid Australian passport with the father to pay all costs associated with obtaining and renewing the children’s passports.
The parties may take the children out of the Commonwealth of Australia for a 21 day period or as agreed each year subject to the following:
(a) As far as practical the occasions on which the parent takes the children out of Australia coincides, for the state or territory in which the children resides, during gazetted school holiday periods;
(b) Each parent will provide the other parent as much notice as possible of their intention to take the children out of Australia and no less than 28 days’ written notice of such intention;
(c) Each parent intending to travel shall provide to the other parent an itinerary and certified copies of paid airline tickets to include departure and return dates, the country or countries to which that parent and the children will travel, the approximate dates on which the children will arrive and depart each country and a landline telephone number and address at which that parent and the children can be contacted in each country; and
(d) Each parent will sign all necessary authorities to authorise the Registrar of the Family Court to release the children’s passports to the travelling parent not more than 7 days in advance of the date of the proposed travel and the travelling parent will return the children’s passports to be lodged with the Family Court within 3 days of the children’s’ return from overseas.
The parent intending to travel will provide security for the return of the children to Australia by depositing into a joint bank account established in the names of both parties to sign with NAB in the sum of $20,000 pending further Order of the Court or the return of the children to Australia by the other parent pursuant to these Orders.
If the travelling parent fails to return the children to Australia pursuant to these Orders, the other parent may apply to the Court for the payment out of the joint bank account the sum of $20,000 to have the children returned to Australia pursuant to these Orders.
Forthwith upon the return of the children to Australia after each period of travel, the parents will sign all documents required to release the security bond in full to the parent who deposited the bond.
In the event either party fails to sign all documents necessary to carry out Order 10 and/or cause monies to be returned to the travelling parent in accordance with Order 14 herein, that parent may make an application to the Court pursuant to section 106A of the Family Law Act 1975 (Cth) for a Registrar to sign all necessary documents.
Unless agreed neither parent will cause the children to travel directly or indirectly to India via another country.
The monies currently held in trust in the parties’ names be paid in their entirety to the husband and thereafter he will indemnify the wife in respect of all tax and or other debts that are currently in the husband’s name.
The wife deliver up to Motor vehicle 1 Finance Company the Motor vehicle 1 in her possession and the husband will be responsible for any shortfall on the sale of the repossessed Motor vehicle 1.
Unless otherwise specified in these Orders, and save and except for the purpose of enforcing any monies due under these Orders:
(a) Each party be solely entitled, to the exclusion of the other, to all other property (choses-in-action) in the possession of such party as at the date of these Orders;
(b) Monies standing to the credit of each party in any account registered in that party’s name shall become the property of the party in whose name the account is registered;
(c) Each party forego all claims that such party may have to superannuation, long service leave, annual leave and/or any other employment related benefit, belonging to, or earned by the other;
(d) Insurance policies remain the sole property of the beneficiary named therein;
(e) Each party be solely liable for, and indemnify the other party, in respect of any liability encumbering any item of property to which that party is entitled pursuant to the terms of these Orders as well as card debts and/or liabilities registered in each party’s name (including HECS debt); and
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
The husband and wife forthwith do all things to facilitate the issue of a duplicate key for the safety deposit box containing jewellery held with the C Bank in City D, India with the following provisions to apply:
(a) The husband’s lawyers will submit to the wife or her lawyers any forms required for signature by the parties to authorise the issue of a replacement key for the safety deposit box within 7 days;
(b) The husband will within a further 7 days do all things required to complete the paperwork for the issue of a replacement key and forward it to the relevant bank for issue of a replacement key for the safety deposit box;
(c) The parties authorise the bank manager to hold the key on their behalf pending compliance with these Orders;
(d) The parties shall cause the duplicate key to be deposited pending further order of the Court in such secure location inaccessible to either party or their agents as may be determined by the Court; and
(e) After the replacement locker key is made available, the parties will arrange for the locker to be opened in India in the presence of a representative of each party and the bank manager. The representative for the wife is to receive all the contents of the locker.
The husband is to pay to the wife, or as she may direct, $450 per week by way of spousal maintenance for 12 weeks from the date of these Orders.
The father may provide a copy of the parenting orders which are to be taken out separately by the Court and provide them to any school the children attend from time to time any doctor they attend from time to time, the local Canberra police and his employer.
In the event the mother files any further parenting application raising allegations of poor behaviour or ill treatment by the father to her or the children any such application is to be made returnable before Justice Henderson.
The father is permitted, upon any complaint being made by the mother alleging poor treatment towards her or the children and /or upon an application being filed by the mother raising such allegations provide a copy of this judgment to the authority to which the mother has complained as to his treatment of her and or the children.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawar & Dawar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: CAC 1974 of 2017
| Ms Dawar |
Applicant
And
| Mr Dawar |
Respondent
REASONS FOR JUDGMENT
The matter of Dawar was a parenting and property application commenced by the mother.
Parenting proceedings concerned the parties’ much loved children, X, born in 2011, and Y, born in 2012 and whether, as the mother seeks they continue to live in the current parenting arrangement of four nights a fortnight in the father’s care, the mother to have sole parental responsibility, or live in an equal time arrangement as sought by the father, and parental responsibility be shared.
The property proceedings concerned whether the husband should retain the vestige of cash that remains from the parties’ assets amounting to just over $100,000 and take over the debts that currently stand in his name, being matrimonial and personal debts in the amount of $800,000, or as the wife asserts, she receive the entirety of monies that are left, the husband take over the debts, pay her spouse maintenance in the sum of $2,000 per week and maintain the boys at the E School.
Neither party sought a super splitting order and I accept that is proper outcome in this matter
The mother was self-represented which placed her at a significant disadvantage, Mr Haddock of Counsel represented the father and Mr Ridge of Counsel represented the children.
At the conclusion of the trial, Mr Ridge supported father’s position of an equal time arrangement and the sharing of parental responsibility.
Ultimately, the mother sought the following Orders:
a)That she have sole parental responsibility;
b)She hold the children’s passports and that only her signature be required to obtain a passport or renewal;
c)The children continue to attend the E School with fees paid by the father;
d)The children not be taken out of the country until Y is aged 13;
e)The father is restrained from prescribing medications for them;
f)A departure from child support, which application was incompetent;
g)Spousal maintenance in the sum of $2,000 per week until Y turns aged 18;
h)The father to pay the lease in respect of the Motor vehicle 1 in the mother’s possession;
i)That there be no superannuation split;
j)The father open up an account for X and Y to attend university; and
k)Orders in relation to the vexed issue of how to access the parties’ jewellery in India.
The matter was heard for nine days and involved voluminous documentation, extensive cross-examination, multiple interim hearings with multiple findings of fact required to be made.
Procedural history
The mother filed an Initiating Application, Financial Statement and Affidavit on 30 October 2017 in the Federal Circuit Court of Australia in Canberra seeking parenting orders, property orders and orders in relation to child support.
On 28 November 2017 the matter came before Judge Hughes and her Honour made interim orders by consent providing for, inter alia, the mother to receive $60,000 by way of interim property distribution, the father to pay spousal maintenance of $500 per week to the mother, the father to meet all mortgage payments and outgoings in relation to the Suburb F property and all payments in relation to the motor vehicle 1 together with a notation that the mother retain possession and sole use of the car pending further order.
The father filed his Response, Financial Statement and Affidavit on 14 December 2017.
The matter next came before Judge Hughes on 30 January 2018 and the parties again agreed to consent orders providing for, inter alia, the spousal maintenance order be vacated, the father pay for after school care provided by the children’s schools, the father no longer have to pay for before school care and that the father pay the sum of $40,000 into the trust account of G Firm by way of partial property settlement. The matter was then listed for mention or interim hearing on 2 March 2018.
On 2 March 2018 Judge Hughes made consent orders providing for, inter alia, the children to live with the mother and to spend time with the father as agreed between the parties. The matter was then listed for further interim hearing or mention on 4 May 2018.
On 27 April 2018 the mother files an amended Initiating Application seeking the children live with her and she be permitted to relocate the children’s place of permanent residence to Sydney or such other place as she determines.
On 27 April 2018 the father files an Application in a Case seeking a restraint on the mother removing the children’s place of residence from Canberra together with a restraint on her posting anything about the matter or the father on social media and from communicating with the father except in the event of a medical emergency relating to the children.
On 4 May 2018 Judge Hughes made orders, by consent, that the mother be restrained from relocating the children’s residence from the ACT and listed the matter for interim hearing on 11 May 2018.
On 11 May 2018 the parties agreed to consent orders in relation to parenting, the father to spend supervised time with the children at H Service for 3 hours on each of the following 6 Sundays. Thereafter, the children’s time with the father would increase to 9:30am to 5pm each Sunday with a view to overnight time occurring eventually. An Independent Children’s Lawyer was appointed. The matter was then adjourned to 3 August 2018.
On 25 June 2018 the mother filed an Application in a Case supported by an Affidavit and Notice of Risk of even date essentially seeking the children’s time with the father be reduced to each alternate Sunday for 3 hours, the child X to be permitted to receive treatment from an Occupational Therapist for his vocal tics, for both children to receive counselling around trauma and behaviour, and for the children’s names to be placed on the Airport Watch List. The mother raised allegations of the father being on self-prescribed medications and consuming alcohol to excess and, therefore, the children being at risk of “uncontrolled psychosis” of the father. The Application in a Case was listed on short notice on 26 June 2018.
On 26 June 2018 Judge Tonkin made orders placing the children’s names on the Airport Watch List and ordering the children’s passports be kept at the Court.
On 30 July 2018 the mother files a further Application in a Case and Affidavit, seeking orders similar to the Application in a Case filed on 25 June 2018, but including further orders sought of sole parental responsibility and permission to relocate out of the ACT with the children.
The father files a Response to the mother’s Application in a Case supported by an Affidavit on 2 August 2018.
On 3 August 2018 Judge Hughes makes orders following an Interim Hearing, providing, inter alia, for the children to spend time with the father from 9:30am Saturday until 5pm Sunday on the second and fourth weekend of the month on the condition the father obtains a digital device for alcohol breath testing and provide a breath sample to the digital device 4 times per day, between prescribed times on each day the children are in his care. This time was to increase to the commencement of school Monday from 1 October 2018. The father was also required to submit to random urinalysis. The parties also agreed to appoint Dr B as the single expert in the matter. The child X was permitted to be assessed in relation to a tic. The matter was adjourned to 6 December 2018.
On 12 October 2018 the mother files another Application in a Case seeking she have sole parental responsibility, that she be allowed to relocate, that time between the children and the father be as agreed, that the father attend a parenting course prior to any time occurring and an order restraining the father from taking the children overseas until they attain the age of 18 years.
On 30 October 2018 the father files an Application in a Case seeking an order that the Suburb F property be sold and machinery orders allowing for the sale to occur. Upon the completion of the sale of the Suburb F property, the father also proposed to pay the mother $450 per week.
On 6 December 2018 the matter is heard by Judge Hughes and her Honour makes orders providing for the children to spend time with the father during the following Christmas and New Year period. The order in relation to the father undertaking alcohol breath testing is varied to only providing samples three times daily on any day the children are in his care. Orders are also made in relation to a valuation of the Suburb F property and the mother’s Application in a Case filed 12 October 2018 and the father’s Application in a Case filed 30 October 2018 are dismissed. It was noted the proceedings are likely to involve evidence from a local practitioner and an interstate judge be arranged to hear the matter.
On 13 February 2019 Judge Hughes makes order in Chambers transferring the matter to the Family Court of Australia and listing the matter before Justice Henderson for four days commencing 1 April 2019 the issues for trial being parenting and property.
On 15 February 2019 the father files an Application in a Case seeking further interim parenting orders as does the mother.
On 27 February 2019 the mother files a further Application in a Case seeking an extension of time to file her trial Affidavit.
On 4 March 2019 Registrar Payget makes orders extending the time for both parties to file their trial material.
On 7 March 2019 the mother files a further amended Initiating Application seeking sole parental responsibility, that she be permitted to relocate anywhere and various spend-time-with orders depending on where the parties are each living, and a Financial Statement.
On 21 March 2019 the mother files another Application in a Case seeking certain third parties be available for cross-examination at the hearing.
On 25 March 2019 the father files an amended Response.
The final hearing commences on 1 April 2019 but does not conclude in the 5 days available.
Justice Henderson makes Orders on 5 April 2019, inter alia, discharging the urinalysis and alcohol testing orders made by Judge Hughes on 3 August 2018, allowing the father to provide a copy of Dr B’s Report to his place of employment and various other parenting and procedural orders and lists the matter for interim hearing on 30 April 2019 on the father’s application to sell real estate which has been on foot since mid-2018 and never dealt with and increase his time with the children.
On 29 April 2019 the mother files an Application in a Case seeking to discharge the Order made on 5 April 2019 allowing the father to provide a copy of Dr B’s report to his employer and is successful in this application.
On 30 April 2019 the mother files and Application in a Case seeking Justice Henderson be disqualified from hearing the matter.
On 30 April 2019 Justice Henderson conducts the interim hearing in relation to the sale of real estate and an increase in time with the boys and their father and judgment is reserved.
On 10 May 2019 Justice Henderson delivers judgment and makes Orders providing for, inter alia, all the remaining properties to be sold, the father to pay the mother $450 per week for rental expenses when she vacates the property and for the children to spend time with the father from after school Thursday until before school on Monday each alternate weekend. The matter is then listed, part heard, on 22 and 23 August 2019. These dates are subsequently adjourned in Chambers and the matter is listed on 23, 24 and 25 September 2019.
On 28 June 2019 the mother files an Application in a Case seeking the children’s time with the father be reduced and supervised by H Service together with a Contravention Application.
These applications are listed, heard and judgment is reserved on 10 July 2019.
Justice Henderson delivers judgment on 12 July 2019 and dismisses the mother’s Application the children’s time with their father be supervised.
The mother renews her disqualification application which is listed and heard on 7 August 2019. Justice Henderson reserves judgment and makes further procedural orders in relation to the filing of further material prior for the upcoming trial.
On 26 August 2019 the mother files and Application in a Case seeking leave to file further Affidavits from medical professionals prior to the hearing.
On 4 September 2019 Justice Henderson delivers judgment, dismissing the mother’s application for disqualification and making further orders in relation to the mother filing the Affidavits sought in her Application in a Case dated 26 August 2019.
On 12 September 2019 the mother files an Application in a Case seeking an adjournment of the final hearing on 23, 24 and 25 September 2019. That application is listed on the first morning of the trial and is ultimately not pressed by the mother.
The matter is not concluded on 25 September 2019 and the matter is listed on 29 October 2019 for finalisation and a timetable is established for that day.
On 29 October 2019 the matter ultimately concludes and judgment is reserved.
material read
The documents read are as follows:
a)For the mother:
i)Initiating application and 2 amended applications, the last being filed 7 March 2019;
ii)Financial Statement filed March 2019 and 2 September 2019;
iii)Affidavit of the mother filed 7 March 2019;
iv)Affidavit of Ms J filed 7 March 2019;
v)Affidavit of Mr K filed 7 March 2019;
vi)Affidavit of Mr L filed 7 March 2019;
vii)Affidavit of Mr M filed 8 March 2019;
viii)Affidavit of Dr N filed 26 August 2019;
ix)Affidavit of Dr O filed 26 August 2019; and
x)Affidavit of Dr P filed 12 September 2019
a)For the father:
i)Initial Response and amended Response, the last being filed on 25 March 2019;
ii)Financial Statement of the father filed 19 February 2019 and 26 August 2019;
iii)Affidavit of the father filed 25 March 2019;
iv)Affidavit of Mr Q filed 25 March 2019;
v)Affidavit of Mr R Dawar filed 27 July 2018; and
vi)Notice of Risk Reports dated 22 February 2018 and 4 July 2018.
The exhibits were as follows:
a)For the Court:
i)Court exhibit 1, joint balance sheet;
ii)Court exhibit 2, Dr B’s report; and
iii)Court exhibit 3, Dr B’s notes including angry facial expressions that had been drawn.
b)For the Independent Children’s Lawyer:
i)ICL1, the Independent Children’s Lawyer’s case outline; and
ii)ICL2, screenshot of the mother’s mobile telephone showing outgoing calls on 10 October 2019.
c)For the mother:
i)Mother’s exhibit 1, mother’s case outline;
ii)Mother’s exhibit 2, mother’s annexures to her Affidavit filed 7 March 2019 contained in 2 volumes ;
iii)Mother’s exhibit 3, notes prepared by the mother of a call from the Australian Tax Office dated 31 October 2018;
iv)Mother’s exhibit 4, email to the mother from forensicdocument.com.au dated 28 August 2018; where is this
v)Mother’s exhibit 5, email correspondence in relation to appointments with the Independent Children’s Lawyer and the mother asking the father for his permission to book the children into a movie night at the E School to which he agreed;
vi)Mother’s exhibit 6, photos of the father’s office, corridor leading to his office insight his office items on his desk. This is the office where the wife alleged the husband had assaulted her whilst at work
vii)Mother’s exhibit 7, photos and various names of a reflex tool photocopied from the Internet;
viii)Mother’s exhibit 8, dental records for the mother printed on 26 March 2016; the wife has had significant and necessary dental work carried out in Australia
ix)Mother’s exhibit 9, letter from the licensee of S Hotel dated 12 March 2019 attesting he has never encountered anybody with the name of Ms Dawar in the venue nor does that name appear on the multi-venue self-exclusion system ;
x)Mother’s exhibit 10, record from the T Club dated 4 March 2019 confirming the mother entered into a self-exclusion order from that club in December 2017. I accept the mother’s evidence she has not gambled since that time.
xi)Mother’s exhibit 11, email from the police dated 26 September 2018 concerning the allegation the husband was to be deported.
xii)Mother’s exhibit 12, email from mother to father concerning Y’s passport dated 23 September 2017;
xiii)Mother’s exhibit 13, a letter from U child care centre dated 1 May 2018 confirming X and Y attended the day care between August 2014 and January 2016 and at no stage was the centre concerned for the children’s welfare or had any concerns regarding eczema;
xiv)Mother’s exhibit 14, a letter from the mother to the husband’s lawyers dated 25 August 2017 and June 2018 seeking the private health card as the mother was having the children seen by a psychologist for emotional behavioural issues. This is not surprising given their parents had just separated.
xv)Mother’s exhibit 15, letter from the wife to the husband’s lawyers dated 29 October 2018 asserting that it is not her signature on attached tax returns. There are no attached returns in that exhibit. The wife has claimed that the husband forged her signature on tax returns and retained the money post separation
xvi)Documents from the Australian Tax Office dated 29 October 2018;
xvii)Mother’s exhibit 16, documents from Commonwealth Bank confirming no cards were linked to accounts ending -…48, -…64 and -…33;
xviii)Mother’s exhibit 17, report from the father’s psychologist dated 31 January 2018 in which he exhibits significant remorse and shows distress at his actions of pushing his wife at an incident at a car park in January 2018 concerning money. Unfortunately the children were present on that occasion
xix)Mother’s exhibit 18, email from the mother to the father dated 22 March 2017 tending to show the mother informs the father of the children’s activities which I accept she does;
xx)Mother’s exhibit 19, a diagram the father drew of the mother’s scar at the elbow area of her right arm;
xxi)Mother’s exhibit 20, an email from the father to the mother dated 11 June 2013 where he apologises for behaviour;
xxii)Mother’s exhibit 21, bundle of documents in relation to Y’s sleep issues as asserted by the mother including a report from Dr V from the W clinic and a report by Dr Z an anaesthetist who looked after a Y at a dental procedure in 2019 and was concerned that he had at least moderate sleep apnoea;
xxiii)Mother’s exhibit 22, mother’s updated minute of orders sought;
xxiv)Mother’s exhibit 23, bundle of requests from the mother for information as to her qualifications passport and diplomas from the husband together with difficulties about the Internet the former matrimonial home;
xxv)Mother’s exhibit 24, bundle of emails of father’s complaints about various people including a complaint to authorities concerning the treatment the wife received from police at a police station when she had a motor vehicle accident;
xxvi)Mother’s exhibit 25, bundle of documents the wife sent to the handwriting expert, Mr Q which he received and read;
xxvii)Mother’s exhibit 26, bundle of documents in relation to a trip booked by the father to the Queensland in September 2017;
xxviii)Mother’s exhibit 27, bank accounts in the name of the father in relation to the clinics he provides services to;
xxix)Mother’s exhibit 28, letter from the paediatrician, Dr V, to the parents, dated 29 May 2019;
xxx)Mother’s exhibit 29, documents from the Department concerning the mother’s current income dated 25 July 2019; and
xxxi)Mother’s exhibit 30, documents from the Department detailing money the mother was required to refund to her employer dated 27 August 2019.
d)For the father:
i)Father’s exhibit 1, father’s case outline and tender bundle to his affidavit;
ii)Father’s exhibit 2, police notes concerning an incident on 27 September 2018;
iii)Father’s exhibit 3, email correspondence dated 26 September 2018 between wife and husband’s lawyers seeking information from her regarding the name of a police officer who she asserts told her the husband was to be deported; the wife only revealed the police officers name, Constable AA during the trial despite repeated requests to do so;
iv)Father’s exhibit 4, email correspondence from the mother to unnamed sources at the police dated 2 March 2019 relating to her assertion of the father forging her signature on land title documents. The document is heavily redacted, has no names of sender or receiver and demonstrates the mother pressing the police to take action against the father;
v)Father’s exhibit 5, notes from the police regarding wife’s complaint that husband was using her as an alias to self-prescribe medication;
vi)Father’s exhibit 6, email correspondence from the mother to Constable BB dated 30 June 2018 concerning father’s alleged improper prescribing of drugs to her and for himself;
vii)Father’s exhibit 7, bank records from May 2017 to August 2017 in relation to Complete Freedom Account ending -…09 showing the wife was withdrawing money from places of gambling as late as 30 August 2017;
viii)Father’s exhibit 8, bank records of the wife in relation to account ending 0937 from 9 November 2016 to April 2018 showing the mother’s significant withdrawals from places of gambling in Canberra in January, February, March and April 2017. The mother admitted to gambling readily but did not admit to the significant in significant amounts of money the husband asserted she wasted on gambling;
ix)Father’s exhibit 9, correspondence from Westpac to the mother from various dates between 2007 to 2009 showing the mother had access to debit cards, credit cards, and other bank cards to access money in accounts at a time she asserted the father was exerting financial control over her;
x)Father’s exhibit 10, photos of the father’s office;
xi)Father’s exhibit 11, document produced by the mother of her Tinder profile picture in the name of Sarah in which she says “no pic so please do not ask for”;
xii)Father’s exhibit 12, email correspondence from the police to the mother dated 27 September 2018 in relation to her allegations that the police told her the husband was to be deported. I note this was at the time the parties were negotiating to settle the matter and the wife was seeking to withdraw all allegations she had made to all persons in authority about her husband’s poor behaviour. This was not the wife’s position at the trial;
xiii)Father’s exhibit 13, child support assessments from 2019;
xiv)Father’s exhibit 14, Facebook posts by the mother at a separation in March 2017. I note in passing the only criticism of the father is her allegation that he has been professionally diagnosed with Asperger’s syndrome, that he had daily meltdowns like a child for every little thing, and that he was her most caring, supportive, intelligent and kind husband of 12 years. There is no mention of violent or poor behaviour by him to her;
xv)Father’s exhibit 15, affidavit by the mother dated 4 June 2010 supporting the husband’s case that she owns land in India;
xvi)Father’s exhibit 16, father’s interim orders;
xvii)Father’s exhibit 17, document from the Australian Tax Office, being a notice of legal action in relation to the father’s tax debts which at 24 June to 2019 stood at $213,435;
xviii)Father’s exhibit 18, progress reports from the E School for 2018 and 2019 of the children X and Y; the boys are doing well and are intelligent boys much like their mother and father;
xix)Father’s exhibit 19, father’s updated minute of orders sought;
xx)Father’s exhibit 20, updated balance sheet after the sale of the property in Canberra and one of the South Australian properties. Parties still have a property at CC Street, Suburb DD;
xxi)Father’s exhibit 21, 2020 calendar prepared by the father of his work schedule in 2020 being clinics at EE Town and FF Town, times when the children will be with their mother when he can attend conferences and other attend to work-related matters and times when the children will be with him as he contends on a 7 out of 14 day regime of time; and
xxii)Father’s exhibit 22, further updated balance sheet.
The witnesses cross-examined were the mother, the father, Dr B, Mr Q, the handwriting expert, Dr P, the mother’s neurosurgeon, Dr O, the mother’s therapist and Ms N, a clinical psychologist the mother saw for the purposes of these proceedings.
Chronology
The husband is 39, the wife is 36.
The parties married in 2006 and went to live in the United Kingdom.
The wife asserts they initially separated in August 2006.
The wife went to India but returned to the husband and they moved to Adelaide on 31 August 2006.
At this time the husband was completing his medical degree and then commenced training for a specialty. I accept that party’s life in the United Kingdom was less than ideal with the husband studying so hard.
On October 2007, the husband purchased land at CC Street, Suburb DD, for $108,000 and borrowed $191,000 to build the first matrimonial home.
In April 2010, the husband called a mental health team to the home because he said the wife was threatening to harm herself. These events are denied by the wife.
X is born in 2011.
The parties purchased AE Street, Suburb DD in 2011.
Y is born in 2012.
The parties moved back to the United Kingdom in 2013 to enable the husband to complete his fellowship. This must have been a very trying time for the wife with two young children and the husband clearly focused on obtaining his specialist medical qualifications. The wife has significantly contributed to him achieving his specialist accreditation.
In February 2014, the parties return to FF Town and the husband is employed at FF Town Hospital.
The husband purchased vacant land at GG Street, FF Town in March 2014 and bought in HH Street, FF Town, in March 2015.
The wife has been to India on many occasions during the marriage whilst living in the United Kingdom and in Australia and with the children.
The wife’s family visited her in Australia, including her brother, and stayed with the parties. The husband said this was for months, whilst the wife says weeks. It is clear that the husband found those visits difficult and confronting and has raised this as one of the stresses in his marriage and spoke of the stress it caused him during cross-examination.
The husband says that in May 2015, the children said that their mother had a fist fight with her brother.
There is an altercation at the matrimonial home on 5 March 2016 between the parties. The wife says the husband assaulted her and the husband says she tried to physically remove him from the home. A Victorian intervention order is taken out by the wife against the husband in March 2016.
In March or April 2016, the wife determines to take the children and move to Canberra. The husband says the wife assaulted him and the wife alleges the husband assaulted her.
The husband moves to Canberra to join his family and then takes up employment in June 2016.
In August 2016 the wife makes a complaint to the children’s school, E School, that there was a paedophile at a school excursion. On 5 October 2017 mother claims that X was molested at school. In the school records it is noted that the school became very concerned about her presentation.
In August 2016 the former matrimonial home at JJ Street was purchased for $1 million. The wife lived in that home rent free, fully supported by the husband with spousal maintenance paid at times since separation until the husband sold the property in July 2019 by order.
The parties separated initially on 26 December 2016 under the one roof and living in these conditions would have been extremely stressful for the wife, the husband and the children.
The wife attends counselling in 2016 for her gambling and I accept since late 2017 the wife has not gambled.
The parties physically separate on 12 March 2017. The wife says the husband was removed by police. He was not and he voluntarily left the home.
The wife takes $60,000 from the joint NAB account in March 2017 and the husband sells GG Street and HH Street FF Town properties in July 2017.
The wife alleges the husband first withheld the children from her on the weekend of 22 July 2017.
The wife seeks domestic violence counselling on 21 July 2017 but gives no history of physical violence.
The parties attend counselling from March 2017 to December 2017.
On 21 September 2017 the husband wishes to take the children to the Queensland the wife does not agree and the wife takes the trip with the children which he intended to have with the children.
On 21 September 2017 the wife alleges the husband assaulted her at his place of work. The wife makes no complaint about this to his employer until February 2018 when she complains to his workplace and he is suspended from work for three months while an investigation ensues.
On 22 September 2017 the husband attended the former matrimonial home and was yelling at the wife in his native language, an incident he regretted in the witness box. He alleges he had received 84 telephone calls from her in three days prior to this event.
On 29 September 2017 the wife obtained an interim FVO against the husband due to emails he sent to her for example “just a reminder do not have sex with anyone” whilst she in the children holidayed on the Queensland. The husband admitted in cross-examination this was unacceptable behaviour by him.
On 13 December 2017 the parents were changing the boys at the E School car park and a verbal altercation ensued. He regretted his conduct in witness box. I accept the husband yelled at the wife. The wife immediately reported the matter to police and an interim AVO was granted and the husband.
A further incident occurs, a changeover on 7 January 2018 when the parents were changing the boys over at school. The wife recorded the incident.
The husband and children travel to the Queensland, 13 to 17 January 2018 by agreement. The wife alleges the husband wrongfully retained the children on their return.
The children did not see their father from January 2018 until May 2018 when time recommenced supervised at H Service.
On 26 February 2018 the husband is suspended from his place of employment for three months after the wife makes allegations of his alleged assault of her at his place of work in September 2017. The investigation does not find the allegations substantiated and the husband resumes work.
The husband consented to an AVO naming the wife and children as protected persons in March 2018.
The husband consents to a final AVO without admissions in April 2018.
The wife creates a fake Tinder account in the name of Sarah around mid-September 2018. The husband had commenced a Tinder account in on 14 September 2018 in the name of Ramon following the cessation of relationship with Ms KK.
The wife discloses to the husband she is Sarah on 2 October 2018 and she withdraws the interim AVO.
These proceedings are commenced by the wife on 30 October 2017.
Issues in the proceedings generally
After nine days of evidence the issues for determination by me in relation to property are whether the wife receives the entirety of what is left of the matrimonial property which is some $94,000 in a controlled monies account and perhaps $9,000 in a bank account, is paid $2,000 a week spouse maintenance for the next 12 years and the husband keep the debts which amount to in excess of $824,000 of which some $400,000 and is clearly referable to the marriage.
In relation to parenting it is whether the boys, X, aged eight and Y, aged seven, spend seven nights a fortnight in the father’s care or the current regime of time four nights a fortnight continues and whether parental responsibility is to be shared or reside in one parent.
The wife’s case is that the husband from almost the commencement of their marriage treated her in a violent and abusive manner, physically assaulting her by pulling her hair, slapping her, punching her, kicking her while she was on the floor, coerced her to have sex, isolated her from her family and friends during the marriage, forged her signature on various land title documents and tax documents, obtained prescription drugs in her name which he was addicted to and which were not for her, abused drugs and alcohol, is not really interested in the children and when he has them he leaves them alone.
The parenting issues and the father’s alleged appalling behaviour towards the mother in the presence of the children and towards the children consumed the majority of the hearing time. Yet the mother said in an exchange from the bar table on the second last day of the trial and confirmed in her minute of order that the current regime of time with the children is working well for them namely four nights a fortnight in their father’s care.
It is difficult for me to reconcile the mother’s most serious and concerning allegations of coercive, controlling, threatening, intimidating and serious physically violent behaviour towards her by the father during the trial, her histrionic and at times, uncontained behaviour urging that it I had to guarantee her children were safe with their father with the orders she now seeks, unless her aim in the court proceedings was, to use Dr B’s words, continue her relentless campaign to against the father.
At the outset and contained in the mother’s case outline was her application to relocate with the children to Adelaide. I was unable to deal with that application as the trial had not been prepared as a relocation matter and Dr B had not been requested to address any of the significant social science issues, relationship and consequence issues of the mother’s application in his most thorough and helpful report. The father has resisted the mother moving from Canberra and Judge Hughes had injuncted her from so doing shortly after the proceedings first commenced and from the chronology it is clear that this has been an issue that the mother sought be agitated.
It is a significant issue for the mother that although since filing her first amended application she sought to relocate from Canberra to Adelaide, this important issue for her was not listed for trial. I accept it was very difficult for the mother to understand why I could not embark upon such an application when from her point of view it had been agitated by her prior to the matter being listed for trial. Had I had the necessary evidence in the matter to hear a relocation matter I would have dealt with this important issue for the mother.
Despite my best efforts to inform the mother how this had come about and why I was unable to hear that application she continued to renew her application for relocation throughout the trial. In any event, both the father and Independent Children’s Lawyer’s objected to my conducting a relocation hearing on the evidence before me.
At first blush having regard to the serious allegations made by the wife of the father’s unacceptable physical abuse of her during the marriage, at times witnessed by the children and towards the children this would be a matter in which I was assessing risk of harm to the children in their father’s care consistent with the principles set out in M v M[1] and the plethora of cases that have followed to assist the Court in determining a risk of harm to children or unacceptable risk of harm to children in either one parent’s care. However, given the mother’s ultimate application that the children spend four nights in the father’s care each fortnight and that they are doing well and the view I have formed as to the wife’s credit it has not been necessary to embark upon such an investigation in relation to the children spending time with their father. As the evidence unfolded it became apparent the risk of harm to the children is in the mother’s care albeit it is, perhaps an unwitting risk of harm.
[1]M v M (1988) 166 CLR 69.
Evidence of Dr B
Dr B’s Report and oral evidence was most helpful. The mother, the father and the children were interviewed by Dr B and he prepared an extensive chronology which most helpful. Dr B says at paragraph 152 of his Report:
The mother’s psychological health was identified to directly affect her capacity to support the children’s relationship with their father. This was identified to be personality based and is likely to be resistant to treatment, given the strength of her underlying concerns. This was particularly evident at the conclusion of the assessment, when the mother was resistant to receiving feedback inconsistent with her views, despite her insistence it be provided. There is no indication her condition would respond to medication. At present she lacks the insight into the impact of her behaviour. Should she decide to address her problems of emotional dysregulation and relentless pursuit of the father, she may benefit from individual psychotherapy. There was no indication she was currently ready or motivated to address this.
Dr B described perfectly the woman who presented her case before me.
At paragraph 146 the father expressed his respect for the mother’s care of her children which continued at the trial and did not seek to have them removed from her care despite exceedingly concerning allegations from the mother, for example on the last day of the trial alleging the father had threatened to have her honour killed, was threatening her parents, her continued involvement of the children with police as to the father’s alleged mistreatment of them.
In cross-examination, the mother was asked how she now felt about the father and the children as Dr B had formed the view the children were safe in their father’s care, that he did not suffer from Asperger’s, abuse of alcohol or prescription drugs or constitute a flight risk. The mother said she was relieved, however, that is not how she behaved at the time Dr B gave her his oral assessment and it is not what she told Ms O in August 2019 when she was still expressing concerns about having to protect her children.
The children were spending very limited time with their father at the commencement of the hearing and he was under a most onerous drug and alcohol testing regime. The mother’s relief did not extend to lifting the testing or extending the children’s time despite them both reporting to Dr B they wanted to spend more time with their father.
Dr B opined that both children presented well during the assessment, each expressed a love for both parents and desire to have more contact with their father. He observed that the interaction of the children and their father was delightful. The children were observed to be much loved by their mother and father. This did not give the mother any comfort, however, and she pursued her argument that the father was a risk of harm throughout the trial right up to the last day.
Dr B noted the mother was highly emotive in her interactions with him as I observed her to be during the hearing. The children reported they had experienced her to have angry outbursts and to use physical discipline, pulling them by the ears as punishment.
Dr B noted the mother was identified to have a history of pathological gambling and this was of concern in that although she admitted she had gambled she failed to acknowledge her personal responsibility for such behaviour and viewed the father’s actions as causative of this. Throughout the trial the mother confirmed that she was of the view her gambling was brought about by the treatment she received at the hands of the father and that he gave her the money to gamble because she was being financially controlled at this time.
At paragraph 137 of his report Dr B says:
The mother presented in a highly inconsistent and emotive fashion. Her presentation during the assessment was concerning.
I found the mother presented in a highly inconsistent and emotive fashion throughout the trial and her presentation during the hearing was concerning although I accept conducting a final hearing in the Family Court as a self-represented litigant is most stressful. Cognisant of this and the serious allegations made by the mother of the father’s violence towards her during the marriage, coupled with the soon to be operation of the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 I offered on no less than three occasions to obtain legal representation for the mother pursuant to the provisions of that Act. Both the lawyers for the father and the Independent Children’s Lawyer supported this position.
On each occasion the mother rejected any such assistance forthrightly saying to me, “Only I can cross-examine the husband”. This, too, is behaviour I find inconsistent with a person who asserts they have been overborne and physically abused throughout a 12 year relationship as the mother asserts she was.
The mother’s inconsistency throughout the trial was problematic for me as it was for Dr B. He stated that the mother had difficulty in maintaining a consistent line with regard to her stated experience and concern for the children, and the inconsistency was repeatedly raised during the assessment. The mother identified concerns for the children’s welfare and her exposure to family violence, the father’s alcohol and substance abuse, yet acknowledged that the children have a loving relationship with their father and enjoyed their contact with them.
The mother stated she was concerned for their welfare in his care and emotively spoke of her concern about her children being taken away from her yet emphasised her support for the children’s relationship with her father. The mother stated she had always supported their relationship. At paragraph 139 Dr B’s states:
The mother demonstrated limited insight into her circumstances. Her mental state examination was consistent with a histrionic presentation indicative of personality disorder. Should the father’s allegations with regards to the mother’s behaviour be held to be factually accurate namely, that this was a pervasive and enduring characteristic, this would confirm such a diagnosis. This, of course, was disputed by her.
This highly histrionic presentation was further supported by the children’s description of the mother’s intense emotional and angry behaviour. She demonstrated limit insight into her contribution to the challenging family circumstances, as her focus has been on the father’s misdemeanours. The mother has received support from the police, community services, victim services and yet has failed to address any matters relating to her own emotional dysregulation. Should the letters she disputes were sent by her be found to be her letters, this would be consistent with a diagnosis of a personality disorder. Should her allegations not be held to be factual, she should be regarded as a vexatious litigant who has relentlessly pursued the father and damaged his reputation. That said, should her statements be held to be factual, such a diagnosis would not be warranted.
As the evidence progressed and the hearing continued I formed the view that the mother sent the letters the husband refers to in paragraphs 78, 79, 80 and 81 of his Affidavit, consistent with the expert evidence of Mr Q.
I have also formed the view that she has relentlessly pursued the father and damaged his reputation on the basis of evidence that will appear later and that this hearing was part of this relentless pursuit.
Dr B said in his report the father identified his emotional reaction to the extraordinary pressures he had experienced over the last 18 months post separation.
A simple repetition of that which the mother has laid against him and pursued against him is sufficient to support the father’s view that he has been under intense pressure and to use Dr B’s words, “she should be regarded as a vexatious litigant who has relentlessly pursued the father and damaged his reputation.”
Dr B says at paragraph 134:
During this period he has been charged with assault, resulting in a good behaviour bond without conviction but was imprisoned overnight. In response to the mother’s allegations in the workplace he was placed under investigation and suspended on full pay for a period of three months before being cleared of the alleged assault. He remained under investigation by the police for alleged assaults and forgeries. He experienced shame due to the mother’s Facebook notification and use of a fake Tinder profile. He had been exposed in the local FF Town paper with a large page 3 item including his photograph. His contact with his much loved sons had been suspended for five months due to the mother’s allegations. To enable re-establishment of contacted he agreed to supervision and monitoring of his drug and alcohol despite his denial of related problems. There had been ongoing stressful and expensive family law proceedings which continue to limit his contact with his children. Attempts to reach a reasonable mediated agreement had been unsuccessful. In response to the mother’s harassment his two relationships post separation had failed. He continued to be subject to allegations by the mother despite providing the children with a secure home environment in her care and financial support.
The husband has been under financial stress certainly post the separation, perhaps prior to separation, due in part to the wife’s serious gambling habits. Yet he has maintained the mortgages on the former properties the parties owned together with the home the wife lives in at Suburb F, paid her spouse maintenance as ordered by the Court and child support together with school fees, loan repayments in respect of the motor vehicle private health and other amounts as requested by the wife.
As Dr B says, given these highly stressful circumstances, it was unsurprising, he had experienced emotional distress.
Dr B did not identify that the husband had anger management problems. The wife did not accept this and persisted at the trial that he had been diagnosed with anger management problems and to that end she attended a report by Mr LL the husband psychologist dated 31 January 2018, which was marked mother’s Exhibit 17.
The mother had helpfully highlighted for me in orange the important parts of the report from her point of view, which was:
[Mr Dawar] has described that the marriage was not happy from the beginning. He described almost unrelenting hostility, sense of entitlement verbal abuse, “hope you are killed”, “don’t talk about your patients”, lack of a fair sharing of domestic duties by his wife.
Despite probable provocations by the wife he advised [Mr Dawar] must learn better ways to manage his interactions with his wife. To that end [Mr Dawar] willingly agreed to commence a brief anger management course.
There are two things at least to be said about this report and I accept Mr LL was not cross-examined. The first is Mr LL did not diagnose the husband with anger management issues and Dr B who is a psychiatrist and who interviewed the father did not do so either.
Secondly, the insight demonstrated by the father that he needed to do something to reduce conflict was evident in his agreement to attend a short anger management course. Consistent with the wife’s pattern of behaviour she saw the words, “anger management” and embellished and read into it what she wanted, and disregarded what the words said. This is a consistent theme throughout the trial and the manner in which the wife asked me to draw conclusions from documents she tendered. Rather than support her case Mr LL’s report supports the father’s position.
Mr LL went on to say, “I’m aware that I have only heard one side of the story but [Mr Dawar] impressed me as being sincere. The behaviour of his wife as he described it made me think his wife may be a very difficult and provocative person”.
This is how I found the wife at trial, a very difficult and provocative person which has led me to the opinion that her evidence is entirely unreliable unless conceded or supported by objective facts. Yet I am satisfied, because Mr Dawar was remorseful of his conduct to Mr LL and in cross-examination admitted he had behaved badly on at least three occasions, that he did act at times in an angry way towards his wife, said hurtful things to her whether the children were present or not and diminished her contribution to his and the children’s well-being.
I observed him being demeaning of the wife in relation to her inability to have her allied health qualifications from India recognised in Australia and other matters as to a parenting and at times he would not answer her questions directly. Thus, I too observed in the husband behaviour consistent with denigration and a demeaning attitude to the wife that she has described.
These admissions and acts of contrition were not enough for the wife and she continued, to use Dr B’s words, “relentlessly pursued the father and damaged his reputation.”
Dr B could find no evidence of autism or Asperger’s despite the mother raising this strenuously with him. Nor did he diagnose any psychiatric disorder which could diminish his capacity to appropriately parent the children. Relevantly, he found no history of drug and/or alcohol abuse and opined that to maintain his highly specialised medical practice it would be unlikely that he abused either substances.
I agree with Dr B. There is simply no evidence, other than what the mother says, of the father’s alcohol abuse, and the fact he has been blowing into a breathalyser daily while the children are in his care for over a year is to be regretted for this merely fuelled the mother’s need to be justified and believed in relation to her allegations of poor behaviour by the father. Given in interim hearings it is impossible for there to be any testing of the evidence to use the colloquial, “the mother simply got away with her lies” at the expense of the husband.
At one point during cross-examination the mother was asked did she still regard it as an issue, that the father had Asperger’s, when Dr B had so firmly ruled that out. “Yes I do.” She was then asked, “That means you don’t accept what Dr B says.” “No. I have my own view.” This is a consistent theme throughout the mother’s evidence: her view is the only view, her way is the only way, her needs will overwhelm anybody else’s needs and this must include the children’s needs.
Evidence of wife’s expert witnesses
The evidence of the wife’s neurosurgeon Dr P was most instructive. He said, “The interview was quite memorable as I and my secretary had to help her up the stairs as she was walking in a collapsing manner and appeared to be in considerable pain.” He further said, “The scans did not explain her physical pain”. The doctor although saying there may have been an amplification of pain confirmed she did have bulging discs and these could give her pain. However, the pain she was expressing was greater than the scan and injuries would account for. He agreed that being thrown down stairs and falling heavily could account for these injuries.
When asked about the history she gave him he confirmed that she told him her husband had kicked her in the spine. This allegation appears nowhere in the wife’s material. The wife told the doctor that her husband had kicked her in the spine, punched in her back in what appeared to be the thoracic region and kicked in her thoracic spine while on the ground. The wife told the doctor she had reported this to the police yet she has not. Nowhere in her material at the trial before me did the wife allege her husband kicked her in the spine. Her allegations were that he threw her to the floor, kicked her whilst on the floor, twisted her hair such that she fell to the floor, pushed her, kicked her between the legs, slapped her, swore at her and denigrated her.
There is no doubt from reading his report that the wife does suffer from injuries to her back which causes her difficulty as appeared to be the case in the last three days of trial, that cold weather worsens these difficulties and this has been a long-standing issue for the wife.
As Dr P said, he was in no position to say whether the husband caused injury to the wife. Interestingly, in cross-examination the wife sought to minimise the doctor’s evidence of her being in such a bad way that her entry to his office was memorable. The wife asked him to confirm that she was able to walk on a flat surface although slowly and only had difficulty walking up the stairs. Thus, the wife did not accept the evidence of her own expert witness when she thought it might be a difficulty for her case. The wife was caught out gilding the lily in terms of the observed level of pain and what the scans revealed.
The wife’s psychologists Ms O prepared a Report. As with Dr P, she only had one side of the story and as with Dr P was at pains to point this out in her Report. Ms O said the wife was referred to her for psychological counselling through the ACT victim support service she attended on 16 May 2018 and has been regularly attending since that time.
Ms O described the wife as presenting with symptoms of depression and low mood, difficulty sleeping, diminished ability to concentrate and feelings of hopelessness. She appeared as anxious, stressed and frustrated on some occasions, and was concerned about the court proceedings. Her gambling was in remission and that she expressed concerns to her regarding the diagnosis of histrionic personality disorder by Dr B.
Ms O set out eight criteria and individual displays of such a disorder with a minimum of five being required and they are as follows:
a)Discomfort in situations in which they are not the centre of attention;
b)Interaction with others that is often characterised by inappropriately sexually seductive or provocative behaviour;
c)Rapidly shifting and shallow expression of emotion;
d)Consistently using physical appearance to draw attention to self;
e)Style of speech that is excessively impressionistic and lacking in detail;
f)Shows self-dramatisation, theatricality, and exaggerated expression of emotion;
g)Is easily influenced by others or by circumstances; and
h)Considers relationships to be more intimate than they actually are.
Ms O concluded she did not see this behaviour in the wife.
It was surprising that after having read Dr B’s report Ms O is who is but a psychologist and not a psychiatrist could not see that the mother’s presentation before him was entirely consistent with his diagnosis.
The mother sought to blame others for her behaviour. In paragraph 8 of the report, Ms O said that she presented in a highly emotive way while attending court and this was out of character for her. Yet, this is precisely how she presented to Dr B, is described as behaving by the husband and her children and at the children’s school and during the proceedings. This behaviour is in character for the wife.
Ms O went on to say:
She has not felt heard or supported by authorities when faced with domestic violence situations and therefore feels a pressure to make sure she is listened to and understood, and can therefore come across as emotional and forceful when hyper vigilant to this. This pattern of reactions can be understood from the trauma perspective.
The wife may have come across as being traumatised with Ms O given that what was occurring was that the evidence she has put forward for the last two years was being tested in court and this is a stressful experience.
More importantly, however, the wife simply lied to Ms O. The wife has been listened to and has been heard by authorities, being the police in relation to assaults and the interim AVO’s taken out against her husband, the husband’s place of work when he was suspended work for three months on her allegations he assaulted her, investigation by the police in relation to the alleged forgeries of her signature on land title documents which she has pursued despite being told that the police’s forensic handwriting expert confirmed the signatures were not forgeries and on two of the documents they were her signatures.
Additionally, the wife’s allegations have been accepted by every Judge in the Federal Circuit Court as this is so often the only option available in an interim hearing and they have made every order she asked for including an order that the husband undergo totally unnecessary drug and urine analysis test daily when the children were in his care on not one shred of evidence.
What was happening at the time the wife saw Ms O was that her evidence/story was being tested and was found wanting. Authorities including this Court were not taking the steps the mother wanted them to take. For example, the police did not proceed with an AVO for the protection of Y from his father when the mother alleged he slapped him in 2019, the police did not make a finding that the husband had forged her signatures on land title documents and had determined to drop the investigation yet are reviewing it due to the mother’s insistence they so do, this Court had determined to cease the requirement of the father to undergo drug and alcohol testing and determined to increase the father’s time prior to the conclusion of the hearing over the mother’s histrionic please not to do so . This is the trauma she was suffering.
The wife produced a report from a Dr N and this lady gave evidence at the hearing. The evidence given by Dr N was so tainted and biased it cannot be relied upon by me, other than to tell me this is what the wife told Dr N. To rely upon it for any other purpose would be unsafe. Unlike Ms O and Dr P, Dr N did not accept that because she had only heard one side of the story and indeed at the time of writing the report had not even read Dr B’s report, yet had read it and by the time of cross-examination, she may not be able to proffer conclusions of fact such as:
There is clinical evidence of extreme controlling behaviours and dominance with severe lack of empathy and compassion perpetrated by her ex-husband who demonstrated controlling behaviours isolating her from the parents, not allowing her to work [allied health], holding a series of extramarital affairs in sexual activity outside the marriage, she suffered serious physical violence and financial abuse treated with the husband for forging her signature repeatedly to reclaim her tax and finally “her emotional responses have been appropriate.”
Dr N could not come to those conclusions having only heard the mother’s version of events yet in cross-examination and when challenged, held firm to her opinion. This may not be surprising when one reads her extensive research and background in dealing with the vexed and concerning issue of domestic violence and her extensive research and papers in relation to the abuse of women in Indian society, dowry abuse and the like.
Given that there was at least one lie by the mother in Dr N report, namely that the husband in some way prevented her from working in allied health when the reality is she failed on two occasions to have her Indian qualifications recognised in Australia, I will not read Dr N’s report as to do so may be more prejudicial to the wife than it is probative.
In her final submissions, the wife was insistent that Dr P’s report supported her allegations that her husband had physically abused her when it did not on any reading of the report. It was still for me to determine whether the husband has behaved as she alleged and given her lack of credit I cannot so find.
Wife’s allegations of serious and significant violence, coercive and controlling behaviour by the husband during the marriage
The wife alleges that the husband behaved in a most egregious manner towards her throughout the marriage, commencing immediately at marriage and continuing today.
The wife alleged that throughout the marriage in the United Kingdom and Australia and post separation the father would regularly:
a)Pull her by the hair and throw her to the ground or outside and lock her out of the home;
b)Kick her whilst she was on the ground, slap her repeatedly, push and shove her;
c)Yell loudly in her face;
d)Call her abusive and demeaning names;
e)Swear at her;
f)Scream and yell if she touched his things or went into his study;
g)Throw the food she prepared into the bin;
h)Yell at her to keep the children quiet;
i)Isolated her from her family by not giving her a phone and listening to her conversations;
j)Not allowing her to have friends or friends to the home;
k)Not allowing her to work; and
l)Controlled her financially by not allowing her to have a bank account in her name or a key card.
The wife said the husband’s behaviour became more violent if she challenged him, went into his study, touched his things or disagreed with him. The wife said he has continued to threaten and demean her, yell at her and control her post separation as well and that this poor behaviour continues today.
The wife alleges the husband has little interest in the children, does not want to see them in reality and she has a deep seated fear that if he spends time with them as he seeks for one week at a time and without continued drug and alcohol monitoring he will sprit them away overseas.
The wife alleges the husband’s behaviour worsened after X’s birth. The wife has maintained and continues to maintain, see paragraph 126 of her Affidavit that the husband suffers from Asperger’s syndrome. This view is not supported by Dr B nor any other objective evidence.
It is clear from Dr B’s report, Court Exhibit 1, at paragraph 135, that he found the husband, “Was not identified to have anger management problems.” Dr B opined that he may have reacted in an angry and violent manner as alleged by the mother during the acknowledged parental conflict.
Dr B also went on to say at paragraph 135 that the husband:
Demonstrated significant insight into his circumstances.
There was no evidence of an autistic spectrum disorder or Asperger’s.
No evidence of addiction to drugs or alcohol or abuse of these substances.
He posed no risk to the children.
I accept the father denigrated the mother during the marriage and I observed him do this when speaking of her being unable to obtain her allied health qualifications in Australia under cross-examination. He was demeaning of her at that time and at other times in cross-examination and on one occasion she became upset and was justified in being upset having regard to his comments. He rattled off a list of things he said she didn’t do well, cooking, cleaning et cetera.
I accept he was critical of her housekeeping and that is a theme throughout his material. He is a precise and careful man and the wife is somewhat different, as she is entitled to be. His preparation of the 2020 year calendar for the Court to show he can care for his boys seven days a fortnight and still undertake all that he must as a specialist medical practitioner is testament to his careful planning and thoroughness.
I accept he called her names, has sworn at her and treated her poorly by verbally abusing her at times and certainly when she goaded him he would react as his psychologist Mr LL noted. Goading by the wife is no excuse for poor behaviour by the husband towards her but it is perhaps an explanation, if that be relevant.
On at least three occasions the husband admitted he had behaved badly towards the wife and had reacted poorly to what he regarded as her taunting and pushing him to the limit. He wrote her a letter in 2012 talking about the difficulties for the wife with him when he was studying so hard to obtain his specialist qualifications, admitted that he had lied and cheated and perpetrated “harm” upon her. This, I accept, but this is not family violence at the level the wife would have me, her psychologist, Dr N, Dr P, Dr B, police or anyone else in authority accept it was at.
At the end of the day the wife putting forward a proposal that the children should spend four nights a fortnight in their father’s care is inconsistent with her allegations of his poor treatment of her and the children. It is a concern that the wife has used the Court proceedings as a means to further inflict harm and hurt upon the husband for the allegations she makes have little relevance to the orders she seeks in relation to the children other than perhaps to the issue of sole parental responsibility.
The husband told his psychologist Mr LL on 31 January 2018 mother’s Exhibit 17 that the incident in the car park in December 2017 was the last in a series of distressing marital disputes for him. His wife has taken out, and in some cases, rescinded, several AVOs against him. He holds the view that all were very minor issues and that they are part of a long-standing battle with his wife.
This is correct. The wife has engaged in a campaign against the husband to destroy him and it has failed. No one in authority such as police, the father’s employer, Dr B or this Court, has accepted her version of events of the father’s poor behaviour to her of assaults, threatening of her, controlling and coercing her or physical harm to the children and the only AVO’s in existence are those to which the husband has made a without prejudice admission.
I have accepted there was denigration, yelling and perhaps over criticism of the wife by the husband during the marriage as I observed this to occur during cross-examination and the husband.
Further, I accept that in matters of medical treatment for the children there is a power imbalance between the parents. Given that the father is a doctor the mother has difficulty in her position being accepted by him and this too was apparent in the witness box. I am inclined to the view that the father has resisted his son having a sleep test rather more because this is a medical issue and within his expertise rather than focusing on what is best for his son. The mother was correct when she submitted that because of his medical training, her holding a different view to him as to medical treatment for the children will always be a difficulty for her and ultimately the children.
Mother’s credit and misleading the Court
In relation to the plethora of complaints the mother has made and the very specific allegations of the most serious of violence against her by the father they are not accepted by me.
Unfortunately, I have found the wife is not a witness whose evidence can be accepted and she has little credit unless her evidence is supported objectively or admitted. At worst, she has lied and set out on a course of conduct to entrap the father such as the fake Tinder account and, at best, embellished any event to suit her purposes, such as the allegation of the kicking of her spine by the father to Dr P. This case is redolent with the mother attempting to mislead the Court and the following are but some of those examples.
The mother said in one exchange that X had been diagnosed with Autism. When the mother was questioned on this she took the Court to the report attached to wife’s Exhibit 13 when the child was about 18 months of age. The report says, “Previously noted Asperger’s traits has shown a marked improvement and behaving like a normal child.” The report did not support her position.
The Independent Children’s Lawyer did not support her position in August 2019 that the children’s time with their father should again be supervised because he had slapped Y. Her histrionic reply when given the opportunity to respond to this position was that Independent Children’s Lawyer was being paid by the father, therefore, he would simply say what the father wanted him to say.
The mother pursued her allegations that the father had slapped the child and did not accept the Independent Children’s Lawyer’s position that the children were not a risk of harm in their father’s care and that having regard to the high conflict between their parents the child’s alleged disclosure to the mother with a lack of any physical injury he did not support varying the current time arrangement as the mother sought.
The mother was clear at the interim hearing she would pursue the matter with police despite the father raising his real concerns that if he defended the matter his children would be subjected to cross-examination and this was not something he wanted for them. This did not deter the mother. Fortunately, the police took the matter no further the father’s concerns did not eventuate.
When Dr B told the mother that the children were at no risk of harm whatsoever from their father, be it by way of behaviour, alcohol or drug abuse she became histrionic, to use his words, followed him around the office and would not leave. This is precisely the same behaviour I observed from the mother when I indicated at the first adjourned final hearing that I intended to not only to increase the father’s time with the children but cease the requirement that the father undergo daily drug and alcohol tests. The mother cried, wrung her hands, spoke in a loud voice wandered around the court begging me to keep her children safe, that it was my job to keep the children safe.
In answer to the mother’s claims that one of the children suffered from ADHD, Dr B said that her pulling of the ears, yelling at them and getting angry was ineffective discipline and likely exacerbated any problem she may be experience because her behaviour was negative reinforcement and exacerbated their behaviour.
Dr B noted the circularity of the mother’s argument. That, although the mother says she wants the children have a close relationship with him, her actions are entirely to the contrary and his time has been restricted because of her allegations. Yet, in her mind she sees this as him being inconsistent in his desire to have more time with the children and, thus, she is justified in not supporting additional time. Dr B pointed out, because of her allegations she creates the problem, he suffers the consequences and then she blames him for those consequences. That this is the circular argument and how the mother’s mind works and why it is never her fault.
In contrast, the father was distressed that the mother had undermined his relationship with the children and his capacity to re-partner, yet he still respects her primary care of children.
Dr B has expertly explained the mother’s behaviour and way of looking at matters. Her behaviour is inconsistent with her words and she does not support a relationship of the children with their father if he does not fall into line with every demand she makes. The wife will continue to undermine the relationship if she can, thus, my orders must be carefully crafted to ensure authorities know the position I have taken in relation to the mother’s propensity and capacity to make false and spurious allegations against the husband.
In relation to overseas travel the mother alleged to father was a member of a cult in India. This is a fabrication.
The mother alleged the father had transferred $232,000 to Ms KK, his former lawyer and a person with whom he had a relationship post separation. There was not one jot evidence to support her scandalous assertions.
The mother’s reaction to Dr B asserting she may possibly have a personality disorder and was potentially a vexatious litigant was to raise this issue with her psychologist, Ms O, and to attach to her Affidavit text messages between the father and Ms KK and assert that these messages show that the father was the one with the personality disorder and that he was vexatious at paragraph 359 of her Affidavit.
Rather than the mother taking on board this sound advice from Dr B and looking at her own behaviour and assuming some responsibility for the difficulties she finds herself in, the mother fought back as she has throughout this litigation and no doubt the parties’ marriage.
The mother has limited capacity to self-reflect as is clear from her inability to accept any responsibility for gambling and wasting the parties’ matrimonial assets. The mother questioned Dr B concerning her allegations that the father abused prescription medication et cetera. Dr B said such matters would be investigated by the professional standards body and the wife smiled. I am concerned that the wife may continue to make false allegations against the husband professionally and personally, and will do my best by way of order to minimise harm to the husband and the boys if this occurs in the future.
Dr B confirmed that from his presentation and his examination of the husband he did not identify him as having any addictive issues, whatsoever. Dr B said that he could understand the husband was drinking alcohol perhaps more than he should have due to the stress of his marriage breakdown and conduct of the wife and that once that stress is taken away that risk is reduced. Dr B said this father is in a responsible senior medical specialist position, he has the care and control of patients which are very strong motivations to be abstinent or not abuse these substances, if he ever did. His assessment of his personality, compliance with all court orders, even those which were unfair on him and the challenges he faced dealing with his wife results in there is no risk in this regard.
Dr B said children who live with family violence and who have been impacted by it may be disorganised in their manner, their behaviours escalate, and they can appear distressed and or impulsive. None of these characteristics were observed by him in the children.
The wife questioned Dr B and asked that as she has protected her children from the worst violence up to the age of 4 or 5, this is why they were settled. Dr B agreed that this that might explain their behaviour. The difficulty for the mother is that this not her evidence, and her evidence is replete with examples of what she said is the father’s violent behaviour after the boys were aged 4 or 5.
Dr B agreed with the wife that a cycle of domestic violence is being hit, getting apology, getting a holiday, hitting, apology, crying, hitting, apology, gift and agreed that this was a common description of a domestic violence relationship and a reason why parties remain in such a relationship. I asked Dr B whether this type of cycle of violence is well known and easily available on domestic violence websites and the like and he agreed. Additionally, he confirmed that this cycle would have been explained to her by the wife’s domestic violence counsellor.
The mother put to Dr B that his assessment of her inconsistency in changing her position about the children’s time with their father could be consistent with the mother having being in a domestic violence relationship. Dr B agreed that was possible, however, confirmed that this was not his interpretation of the mother’s presentation.
The mother put to Dr B that it would not be good for her to undertake intensive courses in relation to her personality disorder if the father was still abusing her directly via email or on the telephone or indirectly. Dr B said on the contrary it would be very useful for you, or anyone in that situation, to arm themselves with the skills to manage these difficult circumstances and to take personal responsibility to deal with it and it is all the more important if in fact that be the case.
The mother’s attempt to “blame” the father for her failing to address her emotional dysregulation has failed. I have formed the view that the wife has immersed herself in the literature surrounding domestic violence and given her clear intellect has set about crafting her evidence to fit in with the indicia of a partner who is domestically violent, coercive and controlling including cherry picking business records, making false allegations against the husband and creating evidence.
The Law in relation to parenting
Following the pathway set out in the decision of Goode & Goode[2] I will not rebut the presumption of equal shared parental responsibility as sought by the mother. The poor behaviour which the husband has admitted and the incidences of poor behaviour by the parents are not at a level where this presumption should be rebutted due to family violence and each parent has engaged in poor behaviour at times.
[2]Goode & Goode [2006] FamCA 1346.
Secondly, to rebut the presumption would deprive the children of the equally important input into their upbringing by their father as is the input by their mother. It an imperative that the father be involved in decisions concerning the children at all levels. The children have a right for each parent to be involved in their life and despite the parents’ poor communication it is important that each retain this important responsibility. I request that the father be more considerate of the mother in her requests in relation to medical treatment for the boys particularly in relation to X’s alleged sleep apnoea.
Having so found, I must consider an order for equal time or significant and substantial time as an order in the children’s best interests and to do so must consider the matters set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”).
The equal time sought by the father is a change to the current regime of time of four nights a fortnight and is an additional three nights a week in their father’s care. They have adapted well to 4 nights a fortnight as their mother submits and given their strong attachment to their father, will adapt to this further increase in time. They have an excellent relationship with their father they are progressing well and their father is well able to provide for the needs on an equal time basis.
To leave the children in the primary care of their mother would be to perpetrate significant harm upon them and risk their emotional and psychological health into the future due to her significant emotional dysregulation and personality style together with Dr B’s concern her for inability support the children’s relationship with their father.
I have formed the view that although the boys benefit from a meaningful relationship currently with both their parents, they have been subjected to abuse and poor behaviour in their mother’s care and have witnessed their father behaving abusively and poorly towards their mother. Both parents have behaved poorly in front of the children.
Each parent takes the responsibilities of parenthood seriously, however, the father has the higher function to parent the children into the difficult teenage years when they will challenge the world view their parents hold. The mother’s track record when being challenged as to her world view caused Dr B and me significant concern as to her capacity to parent her children when they reach these difficult years. I endeavoured to point this out to her throughout the trial yet it fell on deaf ears. The father has no such difficulty.
Each parent can provide for the educational needs of the children and each parent is well able to provide for the children’s needs on a day-to-day basis. However, it is their father who has the capacity to provide for the higher and more deep-seated emotional needs as they grow and become their own independent people and, thus, it is imperative they spent maximum time with their father.
It is an imperative that the children spend the maximum time with their father, that he is able to achieve for them so that they have a balanced view of the world and are free from their mother’s clear difficulties and very difficult personality and functioning style.
The only way they can grow up with a balanced picture of life and relationships is if they spent maximum time in their father’s care. Thus, the father’s application for equal time is the bare minimum these boys require in order for them to reach their potential without being negatively impacted upon by their mother’s clear dysfunction and lack of emotional regulation.
The position I have reached as to the necessity of the boys to spend maximum time in their father’s care is supported by the oral evidence of Dr B and in the submission of the Independent Children’s Lawyer.
Initially, when the issue of the boys spending equal time with each parent was put to Dr B he was concerned and said that would be a significant change and there would need to be ramping up a slow gradual process. To be fair to Dr B I had not yet implemented the four nights a fortnight and they were only spending limited time with their father.
However, I asked Dr B that if I found that the mother had engaged in a course of conduct to destroy her husband socially, economically, professionally, psychologically and emotionally, had embarked upon a course of conduct which resulted him now having a criminal record and set out to destroy his reputation and any relationship he might have post separation would his view as to time the children spent with their father change.
Dr B said if those findings were made the change to equal time should be a quick experience and should happen quickly. He went on to say that one of the difficulties for children in a situation like this with a mother who has such a significant dysregulated emotional state and personality disorder is the children can begin to take on their parent’s concerns. Dr B said there had been some example of the boys taking on the mother’s concerns by them questioning their father about the money earned, relationship he had, where he lived et cetera and acting as her delegate. Thus, because of this he believed an equal time order was an appropriate order, that I should move towards that arrangement sooner rather than later and it did not need the gradual approach that otherwise might have been appropriate if the mother had some insight into her behaviour towards the father and impact on the children.
Upon hearing this evidence which occurred at day three of the first set of proceedings, the mother from the bar table said she is able to step back now and allow the father to do things that he wants. Reality is to the contrary. In the days post Dr B’s oral evidence the mother has continued to raise concerns about the father’s treatment of the children and towards her. She complained to police the father slapped Y and was insistent that they proceed with charges, which they did not.
On the last day of the hearing she attended in a most distressed state saying that the husband had threatened to honour kill her and was threatening her parents in India if she did not give him full custody of the children. The wife’s dysregulated emotional behaviour and propensity to simply make up evidence and lie to persons in authority continues.
Dr B said the mother’s significant lack of ability to support the relationship with the father and the children was of concern. He was most concerned when these boys grow up and challenge their mother, as they must, when forming their independent personalities, her capacity to regulate her emotions was seriously doubted. I echo these concerns.
On this evidence it is crucial the boys have an alternative home with their father which is something they may need as Dr B talked about the boys perhaps voting with their feet as they grow older as to which parent they choose to live with.
Dr B agreed that the repetition by the mother to psychologists who have been supportive of her and believe everything she has says, such as Ms O and, in particular, Dr N, and himself may have in resulted in the mother now believing what she has re-told over the years and that the mother may well have a strong belief system that these events have occurred.
I am unable to say whether the mother genuinely believes the father has behaved as she alleges given her cunning and concerning entrapment of him, redacting of business records and gross mistruths in her complaints to authorities. I cannot reconcile a genuine belief with this deliberate, calculated and destructive behaviour.
Dr B confirmed that with an equal time order there can only be parallel parenting which, although, not ideal is the least worst option. The children living primarily with their father would result in significant emotional harm to them and is not sought by the father and not recommended by Dr B despite him opining that at times the mother exhibits as her sole preoccupation her own grievances of the father’s alleged violent and controlling treatment which can be a narcissistic trait.
Dr B went to say that the mother exhibits many of the cluster B traits of a personality disorder and these traits overlap and that the primary trait was histrionic. I observed the same behaviour in the witness box. The mother presented as fixed in her position and the more she was challenged the more fixed she became and invested in her story. Dr B referred to this as overvalued ideas being held onto in the extreme which view then provides a bias to a particular belief system which becomes fixed.
The Independent Children’s Lawyer talked about the mother living in a world of concerns and I accept that this is correct. However, her concerns are without foundation when it comes to the father’s treatment of the children, abuse of drugs and alcohol, forging her signature and threats to honour kill her for example.
In relation to overseas travel, it is an imperative that these boys have the opportunity to travel overseas with their parents and enjoy their extensive and all important Indian cultural heritage and visit their extended family in their country of origin. I accept the position of the husband that prior to travelling overseas the parent wishing to travel puts $20,000 into an account to ensure their compliance with their obligation to return the children to Australia.
I will make orders 12 to 16 of the father’s final minute of order in relation to overseas travel. It is an imperative that the father have control of the passports and that I make orders for those passports to always be valid. To leave the passports in the mother’s control would result in the children never being able to travel with the father unless he brought the matter back to court.
In relation to school holidays the term equal time arrangement will continue during term school holidays.
In relation to the long school holidays I find that the parents should share that time equally.
In odd-numbered years the children will live with their father if not already living with him, from the cessation of school to 12 noon 11 January 2020 and thereafter with their mother to the commencement of the school term in 2020 and alternate each year thereafter.
In even-numbered years the children live with their mother if not already ready living with her from the cessation of school to 12 noon 11 January 2021 and thereafter with their father from 12 noon 11 January 2021 to the commencement of school 2021 and alternate each year thereafter.
This gives the parents the capacity to spend an overseas or a lengthier holiday in Australia during January Christmas period.
I will not make an order for the children to be with the parents on their birthday or for the weekends or day of mother and father’s day given my concern of the wife making allegations of poor behaviour by the father and the parents arguing in front of the children as they have clearly done in the past. However, this in no way prevents the parents from making those arrangements themselves.
I will make an order in respect of the children’s birthdays as follows. On each child’s birthday the parent with whom they are not living on that day is to collect the children at 3 pm from either after-school, after-school care, vacation care or the other parent’s home returning the children to the other parent’s home at 8 pm.
The father’s application for an equal time order has been clearly made out and it is imperative that they live in an equal time arrangement with their parents. I will so order, with the children to come in to their parent’s respective care at the commencement of school Monday morning.
The first such period that the children come into their father’s care is to be determined by him in accordance with his work schedule and as notified to the mother with no less than five days’ notice in writing.
Thereafter, the children will live in a cycle of seven days with each parent in a 14 day period.
I will not continue the order for the father to maintain the children at a private school as the mother seeks as his financial position does not permit him so to do.
I will give the father authority to provide a copy of the parenting orders only which I will separately prepare to any school the children attend from time to time any doctor they attend from time to time, the local Canberra police and his employer.
I will further provide that in the event the mother raises further allegations of poor behaviour or ill treatment by the father to her or the children any such application is to be made returnable before me and that the father is permitted, upon that complaint being made, to provide a copy of this judgment to the authority to which the mother has complained as to his treatment of her and or the children.
Property
The wife made much of her claim that the husband had failed to make full and frank disclosure of his property and financial dealings and assets in his name. To that end she produced documents in the husband’s name headed, FF Town clinic, claiming that the husband was under valuing or understating the monies he earned from his work at the FF Town clinic and that the money in the bank account she produced was his money in its entirety.
Under cross-examination and from reading of the documents it became clear that the wife’s argument that all money in the account in his name was his was at best mischievous, and at worst misleading for the following.
When a medical practitioner contracts their services to the FF Town clinic an account is opened in the name of the specific medical practitioner, all payments in relation to that medical practitioners work comes through the account in their name. The clinic reconciles, monthly, the income earned by a specific medical practitioner and pays the practitioner what they are entitled to pursuant to the agreement between them and the clinic. The money paid into that account during the month is not money owned by the specific medical practitioner. It is the FF Town clinic’s money. At an accounting level this arrangement makes sense and is an easy way for the clinic to be able to ascertain what they owe a medical practitioner in any given month.
The mother was informed of this accounting process on many occasions prior to and throughout the trial, but consistent with her conduct in this matter she refused to accept what was clearly obvious and ran her own mischievous arguments seeking to mislead the Court and persisted with the falsehood that the husband had not declared the full extent of the income he earned from this venture.
I accept the husband’s position and not the wife’s position and find he has made a full and frank disclosure of his financial position and has provided all documents he has been required to provide in this matter.
Balance Sheet
| ASSETS | |||||||||||||||||||||||||
| Ownership | Description | Wife value | Husband value | ||||||||||||||||||||||
| 1 | H and W | Controlled monies DDCS proceeds of sale of Suburb F and AE Street Suburb DD | 94,947.34 | ||||||||||||||||||||||
| 2 | H | Commsec shares | Disputed | $616 | |||||||||||||||||||||
| 3 | H | Funds standing to credit of AC Pty Ltd and AD Pty Ltd | Disputed | $9164 | |||||||||||||||||||||
| 4 | Leased | Motor vehicle 1 -finance agency trying to repossess | Agreed | E$40,000 | |||||||||||||||||||||
| 5 | Leased | Motor vehicle 2 | Agreed | E$40,000 | |||||||||||||||||||||
| 6 | Joint | Furniture and effects in Wife’s possession from Suburb F | Agreed | E$10,000 | |||||||||||||||||||||
| 7 | Joint | Gold jewellery in locker India | Agreed | E$10,000 | |||||||||||||||||||||
| 8 | W | Property in India | Disputed | $96600 | |||||||||||||||||||||
| Total | $ | $301,327.34 | |||||||||||||||||||||||
| ADDBACKS | |||||||||||||||||||||||||
| Ownership | Description | Wife value | Husband value | ||||||||||||||||||||||
| 9 | W | Lump sums paid to Wife pursuant to Court orders | Agreed | $100,000 | |||||||||||||||||||||
| 10 | W | Funds withdrawn by Wife on separation from bank account | Agreed | $70,000 | |||||||||||||||||||||
| Total | $ 0 | $ 170,000 | |||||||||||||||||||||||
| LIABILITIES | |||||||||||||||||||||||||
| Ownership | Description | Wife value | Husband value | ||||||||||||||||||||||
| 11 | NIL | ||||||||||||||||||||||||
| 12 | H | Balance owing on Motor vehicle 1 Lease | Agreed | $45,798 | |||||||||||||||||||||
| 13 | H | Balance owing on Motor vehicle 2 lease | Agreed | $50,404 | |||||||||||||||||||||
| 14 | H | Credit cards item 51 of Financial Statement 26/8/19 | E$73,640 | ||||||||||||||||||||||
| 15 | H | BOQ loan in relation to tax paid on income derived during relationship ($103K) and legal fees | $190154 | ||||||||||||||||||||||
| 16 | H | ATO super guarantee debt | Agreed | $3123 | |||||||||||||||||||||
| 17 | H | ATO accumulated tax debt | $200,693 | ||||||||||||||||||||||
| 18 | H | ATO debt re tax audit | Agreed | $27,907 | |||||||||||||||||||||
| 19 | H | BAS debt assessed 30/6/19 and | $29876 | ||||||||||||||||||||||
| 20 | H | BAS debt for period up to 30/9 /19 | $29876 | ||||||||||||||||||||||
| 21 | H | Higher education debt current studies | $12,625 | ||||||||||||||||||||||
| 22 | H | Estimated tax liabilities when H lodges 2018 and 2019 tax returns @$80K per year | $160,000 | ||||||||||||||||||||||
| Total | $ 0 | $824,096 | |||||||||||||||||||||||
| SUPERANNUATION | |||||||||||||||||||||||||
| Member | Name of Fund | Type of Interest | Wife value | Husband value | |||||||||||||||||||||
| 23 | H | MLC | Accumulation | $171,538 | |||||||||||||||||||||
| 24 | W | MLC | Accumulation | Agreed | $42699 | ||||||||||||||||||||
| 25 | W | State-wide Super | Accumulation | Agreed | $10863 | ||||||||||||||||||||
| 26 | W | Super SA | Accumulation | NIL | Nominal | ||||||||||||||||||||
| Total | $ 42,699 | $225, 100 | |||||||||||||||||||||||
| FINANCIAL RESOURCES | |||||||||||||||||||||||||
| Ownership | Description | Wife | Husband | ||||||||||||||||||||||
| 27 | Westpac | $ 6000 | Disputed | ||||||||||||||||||||||
| 28 | Commonwealth and Bank west | NIL | Disputed | ||||||||||||||||||||||
| 29 | ANZ | NIL | E300 | ||||||||||||||||||||||
| 30 | St George | $753 | Disputed | ||||||||||||||||||||||
| Total | $ 6,753 | $ 0 | |||||||||||||||||||||||
| NETT TOTAL ASSETS (including Superannuation) | $ | -$127,668.66 | |||||||||||||||||||||||
The balance sheet in this matter changed significantly throughout the trial given that the husband by court order, objected to by the wife, had sold the parties’ remaining properties, being the former matrimonial home at Suburb F, AE Street Suburb DD and CC Street Suburb DD.
The net proceeds of sale of these three properties is held in a controlled monies account and is at a balance of $95,000, rounded up. There is $616 in the husband’s Commsec share account and funds in the husband’s name in the FF Town clinic account of $9,164, if that be all his money, a total of $104,727.
The Motor vehicle 1 in the wife’s possession is to be repossessed and there is likely to be a negative balance of some $5,790 when that occurs. The wife has not cooperated with the husband at any time in relation to this repossession and submitted at the trial that she had made arrangements with the finance company to surrender the vehicle in November 2019, yet by order, sought to retain the vehicle. Whether she has or not the vehicle will be repossessed and the husband will be the only one able to make good the deficit on that repossession.
Similarly, with the husband’s Motor vehicle 2, it is valued at $40,000 and the balance owing on that lease is $50,000, again, a deficit.
The wife disputes she owns property in India which the husband has valued at $96,600. I find the wife owns the property as the husband asserts given the affidavit under the wife’s hand he exhibited a trial. Her argument that in some way it is family property is not accepted by me given her lack of credit at any level in this trial.
There is also jewellery in a lockbox in India valued at $10,000. The husband has made provision in his orders for that property to be accessed and the contents divided. I will make those orders as they provide for a realistic and sensible approach to this vexed issue.
Of significant concern is the debt level of the husband as follows:
a)$15,000 owing on the leases of the Motor vehicle 1 and Motor vehicle 2;
b)$73,640 in credit card expenses which I accept were incurred, in part in making payments for the family, rates, taxes, outgoings on the former matrimonial home together with children’s school fees and other necessary items;
c)A loan with BOQ of $190,000 of which $103,000 is referable to tax incurred but not paid by him during the marriage;
d)ATO super guarantee debt of $3,123 for superannuation accumulated during the marriage;
e)An ATO accumulated tax debt of $200,693; and
f)An ATO debt regarding a tax audit which came about due to the wife’s conduct of $27,907.
These debts alone total $400,000 and he has additional debts for future income tax, BAS tax, HECS and his total debts are in the vicinity of $824,096. The husband does not assert the wife has a liability for all these debts and this is correct as some of these debts were incurred post separation and are clearly the husband’s. However, I do not accept wife’s assertion that she has no liability for any of the debts and that she alone is entitled to the modest cash that is currently available the parties.
If I only allow the following as joint debts namely $15,000 owing on the cars, $103,000 referable to tax clearly incurred during the marriage but not paid by him due to the wife’s gambling and extraordinary level of support he was required to provide to his family by way of order of the Court including private school fees, ATO super guarantee debt of $3,123 and the tax audit debt of $27,907, this totals $149,000.
If I deduct that sum from with the cash monies now available of $104,727 there is a negative balance of $44,303 which only the husband can pay as the wife is currently without income.
Additionally, the mother should refund to the husband the sum of $16,500 being one half of Dr B’s fees and $2,500 for mediation costs. The husband paid these costs the wife asserting she had no money so to do. At that time the wife was living in the former matrimonial home fully supported by the husband and earning income.
On the evidence today I cannot see the mother has any money to refund to him her share of these accounts and thus, the husband will be left having paid these amounts alone with no capacity for the Court to make an adjustment to him.
The husband agrees for the wife to retain her property in India with a value of $96,600 and she has already had the benefit of $170,000 by way of interim property settlement giving her a total distribution of $256,000 and the husband negative $43,000 on the modest liabilities I have assessed are matrimonial debts, given the husband’s extraordinary total debt level.
I accept the husband earns a high income as a specialist medical practitioner approaching $400,000 gross per annum. However, when one has regard to his Financial Statement and the expenses he was paying when he was maintaining five properties solely and obtaining a modest rent only for the properties in South Australia, 100% supporting the wife and children in the former matrimonial home, including payment of Foxtel, Internet, car lease, rates, taxes, electricity, paying private school fees, funding legal representation for the multiple criminal charges brought against him resulting from the wife’s complaints to police, I accept that he expended all his income and has been required to use either credit cards and/or borrowings to pay off pressing debts. The reality is there is no property to divide up when one has regard to the matrimonial debts that I have set out at paragraph 358.
In relation to superannuation, the husband has $171,538 and the wife $42,699. Given that the husband will be carrying no less than $44,000 of matrimonial debt solely, has solely funded Dr B’s report of $31,000, the mediation costs of $2,500 and paid from his own funds, the sum of $1,800 being a rental bond when the wife vacated the premises at Suburb F, I will not make a super splitting order as to do so would not be just and equitable division of parties’ property, and to her credit the wife does not seek such an order.
Even if I be incorrect and the wife does not own the property in India worth $96,600, the wife has received $170,000 of the parties’ matrimonial property and the husband some $11,500 being half the proceeds of sale of the first two South Australia properties sold by the husband in 2018. Thus, my decision to give to the husband the modest cash available now on the basis he indemnify the wife for the debts existing is a just and equitable division of the parties’ property having regard to his income and capacity to work, the wife’s much less income when she does return to work as I accept she has at present difficulty in relation to working.
It has been the wife’s conduct in large part commencing with her significant gambling that has brought the parties to this very dire financial position. The wife’s inability to look at the property matter realistically and commercially, her inability to agree to the sale of investment properties when it was clear that they needed to be sold to reduce the extraordinary debt level the husband was carrying without any assistance from her, the prolonging of this trial from the necessity of the husband’s lawyers to cross-examine her on the serious and concerning allegations of violence and poor behaviour by the husband towards her and the children, in circumstances where her final submission was that the children should spend four nights a fortnight in the father’s care, her refusal to accept an offer of legal assistance in circumstances of the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 coming into force during this hearing is in part the list of reasons why this matter took nine days to be completed when it was listed five days.
The remaining issue is the wife’s claim for spousal maintenance. It would appear that the wife currently is not working due to a back injury. I accept the wife suffers from difficulties with her back at time and there was evidence that this has been a factor for her during the marriage and her neurologist Dr P supported that the wife does have physical injury supporting difficulties with her back at times particularly in cold weather. At the second resumed hearing the wife appeared to be in considerable pain this had lessened by the final day of the hearing. I do not accept wife’s back injury is as a result of the husband’s poor treatment of her and it is a long standing issue which the husband asserts was evident at marriage.
Going to the threshold issue under section 72 of the Act. I find at this time the wife is a spouse unable to support herself to any adequate level due to a back injury and inability to work. The issue is, does the husband have a capacity to pay towards her support the sum of $450 per week, as he has been paying or some other amount? He says he has no such capacity.
In the absence of any expert evidence from the wife in relation to the duration of the injury I will assess this duration to be 12 weeks given the significant improvement in the wife’s back injury from second adjourned hearing to the final day of hearing together with her oral evidence on the last day of trial that she did make an attempt to go back to work between second adjourned hearing and the final day of the hearing and that this was unsuccessful.
I find the husband has a capacity to pay the $450 per week has been paying for a further 12 weeks on the basis that the husband no longer has an obligation to pay the children’s private school fees as I will discharge all prior parenting and property orders in this matter. If school fees are continued to be paid I accept his outgoings significantly outweigh his income.
I certify that the preceding five hundred and three (503) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 6 December 2019.
Associate:
Date: 6 December 2019
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