ESSA & SALTER

FAMILY COURT OF AUSTRALIA

ESSA & SALTER

[2021] FamCA 22

FAMILY LAW – CHILDREN – where there exists a high degree of parental conflict – where the child has been exposed to this conflict – where the child has a strong and attached relationship to each parent – where the father has exerted his power over the mother – where the mother has been inflexible with the father’s time with the child –where a finding is made contrary to the opinion of the Expert that the mother has the capacity to support a relationship with the child and the father if the child remains in her primary care – where the mother is the child’s primary attachment figure – where an equal time arrangement is not practical due to the distance between the parties’ homes – order for equal shared parental responsibility – order for the child to live with the mother and spend significant and substantial time with the father.

FAMILY LAW – PROPERTY – where the value of the father’s business has been diminished due to COVID-19 – where the mother made a negligible contribution to the father’s assets and income earning capacity – where the father supported the mother’s daughter from a previous relationship during cohabitation – where the mother is currently undertaking university study and has limited earning capacity – where the mother will continue to be the primary carer for the child – where it is appropriate to determine the mother’s entitlement by arriving at a monetary amount – order for father to pay the mother $350,000 by way of property adjustment – order for the father to pay the mother $400 per week by way of spousal maintenance for two and a half years or a lump sum amount of $48,000 at his discretion.

Family Law Act 1975 (Cth) s 60CC, s90SE, s 90SF, s 90SM

Bevan & Bevan (2013) FLC 93-545
Goode & Goode (2006) FLC 93-286
Nada & Nettle (Costs) (2014) FLC 93-612.
Stanford v Stanford (2012) 87 ALJR 74
MacGregor v MacGregor (1996) FLC 92-710

APPLICANT:

Mr Essa

RESPONDENT:

Ms Salter

INDEPENDENT CHILDREN’S LAWYER:

Acorn Lawyers

FILE NUMBER:

SYC

1025

2017

DATE DELIVERED:

29 January 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

24, 25, 26, 27 February 2020, 7, 8, 9, 10 September 2020.

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Coleman SC

SOLICITOR FOR THE APPLICANT:

Somerville Legal

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

SOLICITOR FOR THE RESPONDENT:

David H Cohen & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Alexander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Acorn Lawyers

Orders

Parenting

That all previous parenting Orders be discharged.
That the parents have equal shared parental responsibility for the child B born … 2015 (“the child”) for all decisions related to long term issues involving the child including, but not limited to:
(a)The schooling and education of the child, noting that the parents have agreed, subject to the payment of tuition fees by the Father, that the child be educated in the Catholic Education system;
(b)Medical and health issues having long term effect, noting that the parents have agreed to make informed decisions based on medical and health professional advice;
(c)Religion, noting that the parents have agreed that the child is to be brought up in the Catholic faith;
(d)Any relocation which would have a significant impact on the implementation of these Orders; and
(e) Change of name.
That the child live with the mother.
That the child spend time with the father as follows:
(a)From when the child commences school in 2021 until the commencement of Term 2 2021 for two (2) weekends each three (3) weekends commencing the 2^nd weekend after school commences from after school Friday to 6.00pm Sunday.
(b)From the commencement of Term 2 2021 for two (2) weekends each three (3) weekends commencing the first weekend after Term 2 2021 commences from after school Friday until the commencement of school Monday (or before school on Tuesday if Monday is a Public Holiday) in the event that father can accommodate this time, otherwise until 6.00pm Sunday.
(c)The father may by giving the mother 14 days’ notice spend two (2) afternoons in each calendar month with the child in the F Region area being a Wednesday unless otherwise agreed from after school to 6.00pm in 2021 and from 2022 to 7.00pm with the father to ensure the child has been fed his evening meal. The father is to return the child to the mother at J City McDonalds on these occasions.
(d) At other times as agreed between the parents.
(e)In the event the father is unable to spend time with the child two (2) weekends out of three (3) weekends his time is to be each alternate weekend.
(f)During NSW gazetted school holidays after Term 1 each year and commencing in 2021:
(i)If Easter Sunday falls in the first week of the holiday period, from after school at the end of Term 1 until 5.00pm on the second Saturday of the holiday period; and
(ii)If Easter Sunday falls in the second week of the holiday period, from 5.00pm on the second Saturday of the holiday period until before school on the first day pupils must attend school in Term 2.
(g)During the NSW gazetted school holidays after Terms 2 and 3 each year and commencing in 2021:
(i)From after school on the last day of Term 2 until 5.00pm on the second Saturday of the holidays; and
(ii)From 5.00pm on the second Saturday of the holidays after Term 3 until before school on the first day pupils must attend school in Term 4.
(h)In 2021 the child is to spend time with his father from the cessation of Term 4 in December until 12 noon Boxing day and for a further period of seven (7) nights returning to his mother at 2.00pm on the 8^th day in the third week of the January school holidays.
(i)In 2022 the child is to spend time with his father from 12 noon Boxing Day for a period of 13 nights returning to his mother’s care at 2.00pm on the 14^th day.
(j)In 2023 and each odd numbered year thereafter the child is to spend time with his father from the cessation of school in Term 4 for a period of 21 nights returning to his mother’s care at 2.00pm on the 22^nd day.
(k)Commencing 2024 and each even numbered year thereafter the child is to spend time with his father from 12 noon Boxing day for a period of 20 nights returning to his mother at 2.00pm on the 21^st day.
Special Occasion time:
(a)On the following days the mother’s time will be suspended and the child will spend time with his father as follows:
(i)On C’s birthday each year , at a time agreed by the parties and failing agreement, from 9.00am to 5.00pm on a weekend in the F Region or 3.00pm to 6.00pm on a school day in the F Region;
(ii)On Father’s Day, from 10.00am on Father’s Day until before school or 9.00am on the following day;
(iii)On the child’s birthday, from 10.00am until 2.00pm if a non-school day and from 3.00pm until 6.30pm if a school day and in the F Region.
(b)On the following days if the child is living with the father his time will be suspended, and the child will spend time with his Mother as follows:
(i)On Mother’s Day from 10.00am until before school 9.00am on the following day;
(ii)On the child’s birthday, from 10.00am until 2.00pm if a non-school day and from 3.00pm until 6.30pm if a school day.
(iii)The father’s time will be varied on D’s birthday each year and his weekend time will commence at 2.00pm on Saturday if D’s birthday is a Saturday and will cease at 2.00pm on Sunday if D’s birthday is a Sunday.
Parental attendance at events:
(a)That each parent be entitled to attend all events involving the child including, but not limited to:
(i)Sporting fixtures;
(ii)Extracurricular activities that allow for parental attendance or participation;
(iii)School functions and events that allow for parental attendance or participation AND the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless otherwise agreed upon between the parents.
Changeover:
(a) For the purpose of changeover:
(i)Where changeover is to occur before or after pre-school or school, at the child’s school or pre-school.
(ii)Where changeover is not at preschool or school and time is to be spent in the F Region area, at J City McDonalds;
(iii)Otherwise, and unless otherwise agreed, it will be effected by the mother delivering the child to the father at Suburb K Railway Station and the father returning the child to the mother at Suburb K Railway station at the cessation of his time.
Communication:
(a) That the parents communicate as follows:
(i)Other than in cases of emergency, by text message or email; and
(ii)In cases of emergency, by telephone, ensuring that the communication is respectful and limited to the circumstances of the emergency.
(b)That the parties give such authorisation and sign all necessary documents to permit the child’s school and/or any treating medical practitioners of the child to provide copies to both parents of all reports, notices or other information usually available to parents.
(c)That the father shall ensure the mother is kept informed as soon as is reasonably practicable of:
(i)Any medical problems or illness suffered by the child, whilst in the care of the father;
(ii)Any medication that has been prescribed for the child;
(iii)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(iv)Any social, school or religious functions which the child is to attend;
(v)The residential address of the father;
(vi)The telephone contact number and email address of the father;
(vii)Any other matter relevant to the welfare of the child.
(d)That the mother shall ensure the father is kept informed as soon as is reasonably practicable of:
(i)Any medical problems or illness suffered by the child, whilst in the care of the mother;
(ii)Any medication that has been prescribed for the child;
(iii)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(iv)Any social, school or religious functions which the child is to attend;
(v)The residential address of the mother;
(vi)The telephone contact number and email address of the mother;
(vii)Any other matter relevant to the welfare of the child.
Name Change:
(a)That the parents apply to the Registrar of Births, Deaths and Marriages (NSW) that the child registered as B Essa born … 2015 be now registered as B Salter Essa.
(b)Pursuant to Section 28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the child’s name in the form specific in Order 9(a) herein.
(c)The Family Court forward a sealed copy of these Orders to the Registrar of Births, Deaths and Marriages, NSW.
Restraints:
(a)That the father shall refrain from making critical or derogatory remarks about the mother or members of her family in the presence or within the hearing of the child and that the father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the mother or members of her family in the presence or within the hearing of the child.
(b)That the mother shall refrain from making critical or derogatory remarks about the father or members of his family in the presence or within the hearing of the child and that the mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the father or members of his family in the presence or within the hearing of the child.
(c)That the parties be restrained from discussing the proceedings or any other adult issues with the child or D or C or in the presence or hearing of the child.
(d)That the father be restrained from bringing the child into contact with the maternal grandmother unless such contact is agreed to in writing by the mother.
(e)That the parents are restrained from filming or recording the child or each other during any changeover or time when the child is in the presence of both parents.
(f)That the parents are to ensure that at any event detailed in Order 6 where they may both be in attendance that any communication between them is polite and respectful to the other parent.
(g)That the parents make arrangements to engage with VV Services within three (3) months in a suitable Family Counselling course to improve their communication, with such course to be attended separately unless the parents otherwise agree.
(h)That pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
(i)That pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property

That the father pay to the mother the sum of $250,000 by way of property adjustment pursuant to section 90SM of the Family Law Act1975 (Cth) (“the Act”) within 90 days of the date of delivery of this judgment less:
(a)The sum of $17,000 being one half of the Independent Children’s’ Lawyers costs;
(b)One half of the expert fees of Dr G which fees have been paid in full by the father;
(c)One half of the expert fees of Mr L which fees have been paid in full by the father; and
(d)The father is to provide the mother with the receipts for payment of the fees referred to in Orders 11(b) and 11(c) within 14 days of delivery of this judgment.
That the father pay the costs of the Independent Children’s Lawyers in the sum of $34,000 within 90 days of the date of delivery of this judgment.
That the father pay to the mother by way of maintenance pursuant to section 90SF of the Act the sum of $400 per week with first such payment to commence the first Friday following delivery of this judgment and to continue for 130 weeks thereafter provided that the mother continues with her current course of study at M University.
In the event the mother does not continue with this course of study the father’s obligation to comply with Order 13 herein is discharged.
The mother is to provide a document in writing to the father at the beginning and end of each semester confirming that she has:
(a) Enrolled in the next semester;
(b) Completed the semester.
In the event the father chooses to pay the mother a lump sum in compliance with Order 13 herein he is to notify the mother of this intention within 7 days of delivery of this judgment and is to pay her the sum of $48,000 in full satisfaction of his obligation under Order 13 within a further 7 days.
All outstanding applications are dismissed.

IT IS NOTED THAT

A. The parents intend to enrol the child at KK School, AC Street, J City if B is living with the Mother.

B. The mother has received an interim property distribution of $100,000.

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 Essa & Salter 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 SYDNEY

FILE NUMBER: SYC 1025 of 2017

Mr Essa

Applicant

And

Ms Salter

Respondent

REASONS FOR JUDGMENT

This is an application concerning the parenting arrangements for the parties’ son B born in 2015. B lives with his mother and older sister D in the greater AD City area and the mother contends this arrangement should continue and that he spend significant and substantial time with his father.
The father’s primary application is that B live with him in Sydney and he spend significant and substantial time with his mother.
Alternatively, he sought that the mother and D relocate and move to Sydney and live in a property he owns rent free or rent another property and he will assist with rent, and that he and the mother have equal time with their son. Although this application was not ultimately pressed by the father, he would still provide this assistance if the mother chose this option.
B is due to commence formal education this year and thus it is important that his living arrangements are settled before February 2021.
There is also a property application brought by the mother in respect of the period of time the parties were in a de facto relationship together with a maintenance claim.
Mr Livingstone of counsel appeared for the mother, Mr Coleman of senior counsel for the father and B was represented by Mr Alexander of counsel.

Background

The father, Mr Essa, was born in 1972 and is 48 years old.
The mother, Ms Salter, was born in 1978 and is 42 years old.
The mother’s child from her previous relationship, D, was born in 2003 and is currently aged 17.
The father’s son from a previous relationship, C, was born in 2004 and is currently aged 16.
B was born in 2015 and is five.
The parties met in 2007 to 2008.
At the time they met, the mother was living in Suburb NN with her daughter, had been since 2006, and had well-established connections and supports in that area.
The father has always lived in Sydney.
The mother moved to Sydney in 2013 at the request of the father and their relationship commenced.
The parties and their children D and C spent regular time together however the parties did not commence to live together at the father’s recently completed Suburb E property until September 2015, just prior to the birth of B.
In 2016 the parties attended upon Sister P for marital advice and pastoral support.
The mother asserts the parties separated under the one roof on 5 July 2016. The father asserts the parties separated on a final basis on 5 January 2017.
On 5 January 2017, the mother left the Suburb E property with the child and received a message from the father stating that if she attends the property she will be trespassing.
The father commenced proceedings in the Family Court of Australia on 20 February 2017.
On 30 March 2017 orders were made pending further order for the child to live with the mother and spend time with the father.
On 7 April 2017 the father found a video of the mother and D burning a photograph of him.
Dr G’s first Expert Report was released on 14 August 2017.
On 10 January 2018, orders were made for the father to spend time with the child leading to overnight time. The parties were also restrained from recording changeover.
In May or June 2019, the father unilaterally engaged Q Services for assistance during changeover.
Dr G’s second Expert Report was released on 13 February 2020.
The final hearing commenced on 24, 25, 26 and 27 February 2020 and was adjourned part-heard to 7, 8, 9, and 10 September 2020.
From March 2020 and during the adjourned period, the father took B to see the maternal grandmother on more than one occasion without the knowledge or consent of the mother. The mother and her mother are estranged and this was well known to the father.

Interim orders were made by consent at the conclusion of the final hearing on 10 September 2020 providing for the child to live with the mother and spend time with the father, for the parties to engage with VV Services for family counselling and restraining the father from bringing the child into contact with the maternal grandmother unless agreed to by the mother.

Documents Read

The documents read are as follows:
a)For the father:
i)Amended Initiating Application of the father filed 29 November 2019;
ii)Amended Reply of the father filed 21 January 2020;
iii)Financial statement of the father filed 15 June 2019;
iv)Affidavit of the father with annexures filed 18 December 2019;
v)Affidavit of the father filed 10 August 2020;
vi)Affidavit of Mr R filed 16 November 2017;
vii)Affidavits of Ms AF filed 18 June 2019 and 29 March 2017;
viii)Affidavit of Mr AG filed 18 December 2019;
ix)Affidavit of Ms AA filed 18 December 2019;
x)Affidavit of Ms T filed 18 December 2019
xi)Affidavit of Mr V filed 18 December 2019;
xii)Affidavit of Mr U filed 20 January 2020;
xiii)Transcript of proceedings dated 30 March 2017;
xiv)Transcript of proceedings dated 10 January 2018;
xv)Transcript of proceedings dated 30 April 2019.
b)For the mother:
i)Notice of Risk of Abuse filed 16 March 2017;
ii)Affidavit of the mother filed 18 December 2019;
iii)Affidavit of the mother filed 10 August 2020;
iv)Affidavit of Mr Z filed 18 December 2019;
v)Affidavit of Ms W filed 18 December 2019;
vi)Financial Statement of the mother filed 18 December 2019;
vii)Report of Dr X.
The exhibits were as follows:
a)For the Court:
i)Court exhibit 1: The first report of the Single Expert, Dr G;
ii)Court exhibit 2: The second report of Dr G;
iii)Court exhibit 3: The report of Mr L;
iv)Court exhibit 4: Interim orders.
b)For the Independent Children’s Lawyer (“ICL”):
i)ICL exhibit 1: the ICL’s case outline;
ii)ICL exhibit 2: Documents produced under subpoena by the NSW Police;
iii)ICL exhibit 3: Subpoena produced by PP Psychology with all files, documents, notes, and reports relating to Ms Salter and D;
iv)ICL exhibit 4: Police documents in relation to Mr Essa and Ms Salter;
v)ICL exhibit 5: ICL’s Minute of Order; and
vi)ICL exhibit 6: ICL’s Cost’s Notice.
c)For the father:
i)Father’s exhibit 1: Minute of order sought by the father;
ii)Father’s exhibit 2: Father’s case outline document;
iii)Father’s exhibit 3: Father’s source documents regarding the financial matter;
iv)Father’s exhibit 4: Copies of the father’s Business account from HH Bank;
v)Father’s exhibit 5: Father’s notice for costs;
vi)Father’s exhibit 6: Ms W's Case Outline dated 12 September 2008;
vii)Father’s exhibit 7: Photographs of the family;
viii)Father’s exhibit 8: All visit contact reports and application forms from Q Services relating to Mr Essa, Ms Salter and B;
ix)Father’s exhibit 9: All documents, enrolment records relating to D at QQ School;
x)Father’s exhibit 10: RR Lawyers Financial Statements for the year ended 30 June 2020;
xi)Father’s exhibit 11: Tax return for RR Lawyers; and
xii)Father’s exhibit 12: Photo with an elected official.
d)For the mother:
i)Mother’s exhibit 1: Mother’s case outline document;
ii)Mother’s exhibit 2: Application for mortgage lending with JJ Bank;
iii)Mother’s exhibit 3: Father’s Financial Statement filed 15 June 2019;
iv)Mother’s exhibit 4: Email from David Cohen to Ms SS dated 3 March 2017;
v)Mother’s exhibit 5: Reasons for judgment of Justice Moore dated 29 September 2008;
vi)Mother’s exhibit 6: Child Support Assessment of the father;
vii)Mother’s exhibit 7: Email from Mr Essa to Ms TT dated 18 January 2018;
viii)Mother’s exhibit 8: Finance application of the father to HH Bank;
ix)Mother’s exhibit 9: One page account statement for account …05;
x)Mother’s exhibit 10: Information from the father’s business website regarding Contested Wills and Probate;
xi)Mother’s exhibit 11: Wife’s notice for costs;
xii)Mother’s exhibit 12: Brochure from Essa Lawyers;
xiii)Mother’s exhibit 13: Paragraph 10 and 11 of the Affidavit of Mr Essa dated 25 October 2012;
xiv)Mother’s exhibit 14: Affidavit of Ms W sworn and filed 26 March 2008;
xv)Mother’s exhibit 15: Financial statement of Mr Essa dated 26 October 2008;
xvi)Mother’s exhibit 16: Registrar’s Balance Sheet of Mr Essa and Ms W dated 15 October 2008;
xvii)Mother’s exhibit 17: Copies of all documents from BB School in relation to D;
xviii)Mother’s exhibit 18: Copies of all documents from N School in relation to D;
xix)Mother’s exhibit 19: Transcript of proceedings before Senior Registrar Campbell dated 30 March 2017;
xx)Mother’s exhibit 20: Mother’s Application in a Case filed 9 June 2017 along with the Response filed by the father;
xxi)Mother’s exhibit 21: Response of the mother dated 16 March 2017, particularly orders 6, 7 and 8 along with a Reply to Response for Final Orders filed by the father on 1 May 2017;
xxii)Mother’s exhibit 22: Correspondence between the father and Ms TT dated 18 January 2018;
xxiii)Mother’s exhibit 23: Correspondence between the father and GG Services.
The following witnesses were cross-examined:
a)For the father:
i)The father;
ii)Mr R;
iii)Ms T;
iv)Mr U;
v)Mr V;
vi)Ms AA, the maternal grandmother;
vii)Ms AF.
b)For the mother:
i)The mother.
c)Dr G, the Single Expert Witness.

Short synopsis overview

The father is a legal practitioner with his own practice and is a talented and successful criminal lawyer. It is clear he has a high standing in the community and has represented many high-profile people charged with criminal offences. The extraordinary list of witnesses attesting to his capacity as a lawyer and a man was impressive. However, family law proceedings are not about how impressive and successful an adult is in their professional life but are about the needs of the child. Importantly, the nature of the child’s relationship with that adult, that adult’s capacity to put the needs of the child first and to foster a relationship with the other parent.
It was apparent to me that the father ran his family law proceedings as he would run a criminal trial, leaving no stone unturned, proving his innocence at every point and the mother’s culpability, gathering evidence to prove his point being video recordings, verbal recordings, and witnesses from every walk of life and social situation who may have seen him with the child or he, the mother and the child. B’s needs were somewhat lost at times in this evidence.
The parties commenced living together in late September 2015 in a property owned by the father and nearly built by him at LL Street, Suburb E.
The parties have not married and B was born shortly after the parties commenced to live together in 2015.
Both parents have children from prior relationships. C’s mother and the father have an amicable relationship including C’s mother providing an affidavit in support of the father’s application in these proceedings.
D does not see and has no relationship with her father Mr R and has not had so for some 8 years.
C and D had a close relationship whilst their parents were involved in their own relationship and this has been but one of the losses experienced since the parties’ acrimonious separation.
When the father and the mother met, the mother was living in Suburb NN, where she had lived since 2006 with her daughter.
In about April 2013 the mother says, at the father’s request, she moved with D to the Suburb E area to live at a rental property that the father had arranged for her near his home. The father was living with his mother at Suburb E as he was in the process of rebuilding his home at Suburb E.
When the Suburb E home was completed in September 2015 the mother and D moved in to live with the father. Unfortunately this was a very short lived arrangement and it is clear that by the end of December 2016 or early January 2017, their relationship had broken down.
Although the mother asserts the parties separated under one roof on 5 July 2016, very little turns on that date as they remained living in the property together until January 2017.
The mother says the father evicted herself, D and their son, B, from the home on 5 January 2017, and the mother moved to her brother’s home. The mother says the father evicted her by text as annexed to the mother’s exhibits to her affidavit filed 18 December 2020, marked “A” and commencing at page 1 of the exhibit.
The father writes:
You failed to notify me about not returning by 3pm. You take him daily early and don’t come back till late thereby denying me time with him whilst I’m on holidays. These typical games that vindictive women play won’t work with me. I want you out of the house permanently. You can stay with your brother.
Go away. There are units to rent at the convent in Suburb MM I suggest you consider urgently.
The mother says:
Your threats to have me out HAVE NO GROUNDS.
(As per the original)
His response:
I own the land and the house. You have no proprietary interest.
The mother:
I SUGGEST YOU STOP HARASSING ME and INTIMIDATING ME WITH THREATS.
(As per the original)
The father:
That is not harassment or intimidation. You can call it what you want. I’ll keep telling you to leave peacefully otherwise I will get a court order.
The mother:
There is nothing PEACEFUL ABOUT YOU CONSTANTLY TELLING ME TO LEAVE.
You are HARASSING and trying to intimidate ME MR ESSA. LEAVE ME ALONE. I will not be returning home until I feel safe to do so.
(As per the original)
Answer:
I will change the locks. If you come on the land without my permission you are trespassing.
Mother:
Your [sic] harassing and intimidating, that’s all you’ve got. Right. So your [sic] saying that I can NOT ENTER THE PROPERTY to gain access to the kids’ clothing, toys, essentials or belongings; is that correct MR ESSA?
Father:
Happy to chat with you and Sr. I will never deny any person as to what is fair.
Mother:
That dose [sic] not answer my questions, is that a yes I can pick up my belongings or not Mr Essa?
Father:
You falsely allege I’m harassing and intimidating you
The rest of the message is not readable. The mother replies:
Besides I wasn’t returning at 3 pm you placed YOUR EXPECTATIONS ON ME that, that’s what you wanted. Your constant harassing, demands, make up stuff and game playing MR ESSA is INAPPROPRIATE.
(As per the original)
The father says:
Go away. There are units to rent at the convent in Suburb MM I suggest you consider urgently.
I note that uppercase in a text message is considered as shouting.
Throughout the trial, recordings taken by the father of he and the mother arguing at the time of separation are most concerning. The mother is shown to be screaming at the top of her lungs and yelling at the father, swearing at him, whilst holding B on her hip. The father’s comments, “Just leave peacefully, just leave peacefully”, did not satisfy me that that is what his intention was and, as the evidence unfolded, throughout this relationship and post-separation the father has intimidated and harassed the mother. He has done that subtly and by various means. The first is he has voice recorded her and video recorded her on either a camcorder in his car or via some other device. He did this at the time of separation as the mother was unaware that a camcorder was placed in a shelf recording this very troubling event and showing her losing control at times.
His calm words, “Leave in peace, leave in peace, Ms Salter”, during this troubling event did not work and she became more agitated. The mother was asking him repeatedly for the child’s birth certificate and he kept repeating he did not know where it was. I do not accept that evidence. This is a careful, ordered, neat man who would know precisely where all important documents such as his son’s birth certificate were located. Further, on 18 January 2018 he sent a letter to the Director of the J City Medical Centre, where B attended, providing them with a copy of the child’s birth certificate. It is apparent to me he had that document all the time and for his own reasons would not provide it to the mother when she and he physically separated and she left the home.
The father knew he had the power in this relationship. It was his home, and he exercised that power to its fullest at separation. The mother’s evidence of this behaviour is consistent with D’s evidence and with the affidavit of C’s mother Ms W in she and the father’s own family law proceedings, which affidavit was relied upon by the mother at this hearing and read by the Expert.
The mother’s taunts and rants to him at that time, “You are perfect; you are meticulous; you know you keep everything, meticulous records; you would have his birth certificate”, are correct. His clear option as a protective father would have been to provide to the mother the documents and items she wanted, allowing the mother to take her possessions from his home peacefully. He chose not to do that and remained in the study filming her. The father portrayed himself as the calm, more reasonable, stable parent, showing the mother as experiencing uncontrolled rages and fits of temper and instability. Unfortunately the father, by exacerbating the mother’s fragility which I accept she has and inflaming her temper, is the parent who has exposed his son to risk as he continued to film her and expose his son to this unacceptable behaviour when he could have defused the situation by giving her the document she wanted. It could well be that he knew the mother would react in this way, hence his filming of her, and his son was but collateral damage.
On the other hand it is clear the mother has a temper. When she feels her back is against the wall and is being unfairly treated she will fight, and she does fight. This has resulted in her having rages in the child’s presence and losing control. Her behaviour almost bordered on hysterical in this video.
The mother’s responses were unacceptable. At one point she was screaming hysterically over a birth certificate, which document can be obtained from the authorities if it is missing. Both her son and daughter heard her as B was on her hip and I could see D moving in and out of the room and up and down the corridor while the screaming was going on.
At this particular time the mother appears to be at her wits end and the father, rather than deescalating the situation by providing her with the document or leaving the home, continues to speak in a calm, modulated voice and this inflamed the situation.
I find it mattered not to the father that his son or D were involved in this unacceptable behaviour by the mother and neither was the mother cognisant of the impact of her behaviour on her children .However this and other incidents demonstrate some justification for the mother’s opinion that the father has played mind games with her and this recording was testament to that possibility. It is also support for the father’s position that the mother can be unstable at times and has exposed the child to poor behaviour.
Ms W’s affidavit filed in support of the father’s application in these proceedings on 18 December 2019 described what a wonderful father Mr Essa was and how well he and C got on and how good the relationship between he and she was. The father ultimately did not rely on this affidavit at trial, Ms W did not give evidence and the reasons became clear: he had not told the truth about he and Ms W’s relationship early in their marriage, nor their state of relationship at the time of the Family Court hearing before Justice Moore in 2008.

Father’s evidence

The father was cross-examined on his relationship with C’s mother, Ms W, and what occurred in their family law proceedings in this Court in 2008.
Police records were tendered showing that in 2007 his wife Ms W, C’s mother, made a very serious complaint against him to the police. That complaint is contained in the police records at COPS entry …, ICL exhibit 2. The person of interest was the father, the victim Ms W, they were married and C was four.
The entry reads as follows. The parties had a meal. The mother was sitting with the child watching Spiderman in the lounge room. The father was on the phone. The mother said to her child, “Daddy’s loud on the phone.” The father is alleged to have then said, “There is a cunt of a woman in this house who doesn’t want me to talk on the telephone.” Nothing occurred from that comment. When the mother and the child finished their dinner she took the child upstairs to bathe him. The father asked his son in first language whether he wanted his dad to bathe him. The mother said, “It’s all right, I will fix it.”
The father said, “I was talking to him you fucking bitch.” The mother showered the child, put him in bed in the main bedroom, and went back to the bathroom to dry her hair. The father entered the bathroom, and the mother asked him whether they wanted to go and see their friend to help them fix their relationship. The father said, “You’re a fucking slut. You’re a cheat.” Both continued the conversation. The child woke up later and the mother took him downstairs to give him some Nurofen for a sore foot. The father came downstairs and called the mother a “fucking bitch”, and left the kitchen.
The child woke up again at about 10.15am with a sore foot. The mother gave him more Nurofen. The father asked the child if he wanted to sleep with him. The child told the father he wanted to sleep with “mummy” and the father said to the mother, “You’re a fucking cheat. I hate you, you fucking slut.” He then left the kitchen. The mother was speaking to someone on the phone, and the father calling out, “You fucking slut, I’ll show you what I think of the telephone”, the mother had concerns for her safety.
The father bent the phone she had been using so hard that it snapped in half. The child saw these events. The mother grabbed the child and went to the garage. The father was screaming at her, saying, “Where the fuck do you think you’re going?” She told him she was going to her mum and dad’s place because she was frightened of him. The mother was holding the child. The father was following her around the house. The mother got her mobile phone and went to the garage to leave, and the father pressed the door so she could not get out of the house. He then hit her, it is alleged, on the left side of her head, and finally the mother was able to drive away.
Ms W attended Suburb FF Police Station and made her statement, and the police sighted a slight redness to her left ear which faded away during the evening. The father was arrested and ultimately cautioned. He denied assaulting her and denied verbally abusing her.
Ms W and the father were involved in Family Court proceedings and Justice Moore delivered a judgment dated 29 September 2008. At the hearing before her Honour Ms W withdrew the allegations in the police report as she did in her affidavit filed in these proceedings in support of the father.
However, her Honour says at paragraph 37 of the judgment:
Nonetheless, the observations made earlier about their attitudes and mutual lingering hostility remain valid. Their differences in approach and the unresolved acrimony is wholly apparent from their presentation at the hearing and it was certainly apparent to the Family Consultant, causing her to remark upon their different personalities and different approach to parenting “which along with the general mistrust that exists between them is exacerbating the difficult parental relationship, thereby making it harder to co-operatively parent.”

At paragraph 30:
Violence is raised in an issue in the Affidavits and an AVO was operative for the six months preceding February this year in circumstances already noted. The events that precipitated police involvement on the occasion leading to that order is not the only allegation the mother makes of violence during the relationship.
Further:
What is well-known and firmly established by research hardly needs to be repeated. It is entirely contrary to a child’s wellbeing and best interests to be exposed to violent behaviour and the abuse and disrespect inherent in such conduct.
The Family Consultant identified it as an issue in April of this year, but it was not presented as an issue related to the decisions now required and therefore there is no call to elaborate on the considerations further.
The behaviour stated by Ms W to police in 2007 is echoed by the mother in these proceedings, being the coercive, controlling nature of the father’s behaviour and attitude at times, and each having very different parenting styles. I am concerned as to the father’s lack of transparency and having C’s mother provide an affidavit denying these matters when he was well aware what had occurred in 2007 between he and Ms W and what Justice Moore’s judgment reflected upon.
The father did disclose to the Report writer the Apprehended Domestic Violence Order (“ADVO”) with his first wife, but he denied the allegations of poor behaviour. Further, he sought to suppress inspection of subpoenaed material to New South Wales Police Service.
He argued the subpoena was drawn too wide, and that it was not relevant to these proceedings because C’s mother had withdrawn the police statement at the hearing before Justice Moore. These are not criminal proceedings, I am not finding anyone guilty or innocent of a criminal charge. Rather, I am assessing with which parent B’s needs will be best served, for there is no doubt he will have a strong relationship with both his parents as neither parent says he should spend anything less than significant and substantial time in the other parent’s care.
He said that Justice Moore’s reaction when the allegations of his poor behaviour were withdrawn by his former wife were to slam her hands down and say, “What are we here for? Is there nothing left between the parties?” to support the subpoena’s irrelevance to these proceedings.
It was put to him there were striking similarities between the allegations made by Ms W and the mother in that, “There was, by you, intimidatory and coercive behaviour”. The father said he has said swear words in text messages, but does not use this language in front of the children.
There is no doubt, the father and Ms W now have an excellent relationship. He has an excellent relationship with C. Ms W has been instrumental in allowing her home to be a place of safety for changeover for B.
The father continually recorded changeovers at Ms W’s home with he and the mother. At one of the changeovers, he said that the mother’s lawyer was both dishonest and incompetent. The mother found this intimidating. The father says it was inappropriate and he should never have said it, but he did say it. The fact that the father may now regret conduct and actions does not take away from the fact he said them. Changeovers have been fraught, and the father would not accept that he had played a significant part in making them fraught, yet he has.
On the other hand I accept the mother is very difficult to deal with. Her one area of control in this relationship is B and the time the father spends with him, and she exerts that control to the fullest.
Unfortunately, the father’s conduct in videoing the mother on a camcorder, voice recording the mother by another device, bringing a plethora of different people to contact changeovers to, to use his expression, protect him, did nothing to allay the mother’s fears of his continued harassment and intimidation of her, and he could not see that at all.
I accept that the mother has created problems when there were none. For example, telling the father repeatedly to be gentle and not rough when she passes B to him is unnecessary and unwarranted. Alleging the father was hurting the child when he was not, that he was being rough with the child when he was not. That his time with the child needed to be supervised as he was a risk of harm to the child. The father’s answer to these unwarranted allegations was to bring a plethora of different people to changeover to, as he said, protect himself. Both the mother and father focused on their needs and not B’s needs, trying to score points off each other and better the other when it is evident that neither parent would harm this child intentionally.
The father produced these various videos to prove to the Court he had not harmed the child and was not behaving in an angry or aggressive fashion as the mother did at times allege, and to prove it was the mother causing problems. What he did not realise in so presenting his matter in this very black and white manner was that at times it supported the mother’s case.
I find from viewing these various videos that the mother was justified in feeling intimidated and on trial at changeover and she reacted as she did. The mother was intimidated at changeovers by the father’s actions and that he always had another person with him, including C, whereas the mother turned up on her own and occasionally with her daughter who was aged variously from 12 to 14 years.
Even after it was pointed out to the father that the mother may well have felt intimidated with him turning up supported by adults on every occasion and in videoing her, he could not see the matter from her point of view and was unable to concede he has acted poorly and made poor choices and may have been the catalyst for her poor behaviour on these occasions.
There is no doubt that the father brought into the relationship almost one hundred per cent of its current value. The mother’s direct financial contribution to this relationship is nil. The reason I raise this issue at this point is that the father’s one hundred per cent control and contribution to the assets is integral to understanding how vulnerable the mother felt living with the father in his beautiful new home, built with his money and over which she had no input. This is no criticism of the father, it is merely a fact. This vulnerability continued post separation.
The mother was entirely dependent upon the father for her support and to enable her to care for the child and this included providing a home for her daughter. The consequences for the mother living in this home with the father, who is a perfectionist, highly skilled at his job, an excellent criminal lawyer who likes things to be neat, well-ordered and properly done was, for her, an extremely difficult task as it was for her daughter and it is not surprising that shortly after moving into the home the relationship broke down.
If the father had the child’s full time care as he seeks he simply would not be able to work as he currently does for his evidence was that he would take at least two days off per week, collect and deliver his child to and from pre-school and school. This would represent a significant change for the father in what has been his life’s work of running a busy criminal law practice.
I accept that the father would always provide well for his child whether he was working or not. There are many parents who work full-time, as does Mr Essa currently, who provide excellent care for their children thus that factor did not weigh heavily on my mind however it is in contrast to the mother’s availability to her child and that given the work she proposes for her future, to be a counsellor, she may have more flexibility in her work than the father. Further, such a scenario has never been tested.
The father filed affidavits of ten (10) witnesses, all of whom described what an excellent lawyer he was, a caring and devoted parent to B and that when they had observed changeovers between he and the mother, the mother’s behaviour was aggressive and difficult.
The father portrayed himself as a victim to his friends, Ms AF and Ms T. He had not told them of the text messages he sent to the mother when he virtually kicked their son and her daughter out of his house and told her if she returned she would be trespassing. Many of his witnesses were of the view that when the mother left, the father did not know where she or their son was and understandably they were concerned for the father and his son. Yet, he had told the mother to go to her brother’s home and that is where she went. He knew exactly where his son was. His son was 12 months old at this stage. The father’s conduct is inconsistent with the story he told his friends who did not know the truth.
The father’s response to the damning police reports in ICL exhibit 4 of both parties unacceptable behaviour at changeovers, and COPS entries and allegations made by the mother about his behaviour was that she had made this evidence up. I do not accept the father’s response. There is a consistency with the mother’s evidence and Ms W’s evidence of the father’s behaviour at a stressful time in both relationships. People do not behave well under stress and this relationship was in serious trouble from almost the get go.
It was difficult for the father living with B’s mother, her daughter and a newborn with all the difficulties that creates for any adult in his brand-new home. The father has standards and I accept his standards were not met, he made this known to the mother and her daughter, and this would have caused significant friction between everyone living at the home. This finding is consistent with D saying she felt everything was about him, and he made her feel and let her know she was living in his house.
The father called D’s room “stinky”. I accept he may not have called her “stinky”, but he indicated her room was smelly. He wanted the door left open and the window open to freshen it up. He did not give her privacy. He would come into her room. He would knock and open the door, not knock and wait to be invited in, because this was his house, and D and her mother were there under his roof. Neither D nor her mother could have felt comfortable and welcomed at all times in those circumstances. I do not criticise the father necessarily, but it is clear that his actions and conduct would have engendered these feelings in the mother and her daughter and they perhaps did not react well to the father either. This was a fraught relationship with some significant difficulties that, as is usually the case, become apparent after parties commence living together.
The parties’ conduct of arguing with the children present, as happened with Ms W and the father, is regrettable. The mother’s uncontrolled anger, yelling and screaming is entirely unacceptable and was not warranted. However I accept she was in a somewhat fragile and emotional state at this time and this fragile state may have continued given the father has wanted her to return to Sydney and latterly, the child to primarily live with him matters which would further stress the mother . B was just over 12 months old and her relationship with the father was quickly deteriorating. This left her vulnerable, having given up her own independent accommodation to live with the father 15 months earlier and she also had her daughter to consider in this fraught emotional mix.
I accept the father’s behaviour is a part of the cause of the mother’s lack of emotional control, being overwhelmed and coming out of her corner fighting. However this does not justify her behaviour at separation and I note that this behaviour, although not repeated in its intensity at changeovers, was still apparent from her demeanour. However the mother was justified in feeling overwhelmed by the father’s conduct and she did overreact and behave poorly as did the father at times.
The father has been very critical of the mother in relation to toilet-training. This was noted in the Expert Report, when the child turned up without a nappy he patted him and said, “No nappy; first time ever”. They have argued about vaccinations, the day care he attended, that the mother had failed to turn up for contact. The father can be combative, a meritorious trait in a lawyer, but not necessarily in a partner.
The father would not accept the mother’s word that B had been vaccinated, and sought an order from a court that she not only provide details of him being vaccinated, but who prescribed the vaccination or administered it. These are not appropriate orders. Justice Moore said, at paragraph 31 of her judgment, that C had been surrounded by a combative atmosphere, and this is unfortunately the case for B and the only common denominator in both households is the father.
The father said in cross examination he was completely unaware the mother wanted to leave him. I struggle to accept that evidence given the parlous state of their relationship and the text messages between them that if she did not return home at 3 pm as he had believed or requested she do, she was not to return and if she did he would claim she was trespassing. That response is inconsistent with evidence of not knowing your relationship is in a parlous state and leaving is often a consequence of such a state.
Further, the father said he had no idea that he had such a poor relationship with D. It was put to him in cross examination:
D’s complaint…is that you used to say to her that she stinks…that her room smells…and that she was told by you to have showers twice a day…and she reported feeling unsafe with you.
The father said he was shocked she felt like that, and he only found out these things when he read what she said to Dr G in the Expert Report. D said that Mr Essa played mind games with her. For example, he would buy her a gift, and then ask for it back. He would ignore her, then he would be friendly. If, in light of this evidence, the father says he did not know how poor his relationship was with D, this only confirms the position I have reached that he struggles to understand the impact of his behaviour on others, struggles to see any other position than his own and demonstrates difficulty in showing insight with others.
D said to Dr G she felt under surveillance, unable to close her bedroom door; that the father’s eyes lingered on her body. I reject any assertion that the father in any way has behaved inappropriately sexually, or engaged in inappropriate male behaviour towards this young girl, but it is clear he made her uncomfortable. He complained, for example, about D being outside with no shoes on then coming inside and walking on the carpet which he said would make it dirty. He objected to her doing her homework at the kitchen bench. These are but some examples of the tensions in this household at this time.
The father said he now understood D’s complaint of him knocking on her door and entering simultaneously, asking for the door to be open, and he agreed it would have been an invasion of her privacy. He accepted and said he understood that D bore him quite a degree of ill-will by July 2017. There is no doubt that a dog was purchased for the family at around the time of B’s birth, and that the father took the dog away, he says, because the mother could not care for it and the child. D says it was because the dog was dirtying the house. Whatever the reason, this was further grist to the mill of D’s mistrust of the father and complaints of giving gifts and then taking them away.
The father said that D had left a phone of hers at the home at separation and the father found that phone, and retrieved from it SMS messages between D and her friends saying terrible things about him, rude disgraceful things, and swearing. That was most unfortunate, for despite the difficulties in their relationship, the father had provided a home for the child and was supporting her and her mother. However D was only 14 at this time.
The father said to D via a telephone message at separation, “You always have a home with me”, whilst excluding the mother from the home. He struggled to see his inconsistent position would cause the child to lose trust and faith in him.
Mr Livingstone asked the father, “Did D give you permission to intercept her messages on her phone?” His prompt and quick answer was, “I bought the phone.” This only supported D’s view of the father and his trustworthiness and playing mind games.
In explanation of his effectively throwing the mother out of the home with his son and her daughter the father said when the mother said to him “she did not feel safe”, that “changed everything”. He became very concerned, and that is why he asked her to leave the home. I have no doubt he felt concerned and he did not want a repetition of what had occurred to him in 2007 with Ms W when he had an ADVO taken out against him due to her allegations of not feeling safe with him either. This merely reaffirms to me that the allegations raised by Ms W in 2007 with police were accurate and is again the nature of his relationship with Ms W and this mother echoing.
After excluding the mother, his son and her daughter from his home he asked for a reconciliation.
When he was asked why he would want to reconcile with a woman who he asserts, like Ms W, has made false and scandalous allegations against him concerning his behaviour, his answer was, “To find out why… for closure.” That makes no sense as a reason for a reconciliation, but I do understand the father wanting an answer as this is also consistent with the view I have formed that he struggles to understand other peoples’ take, views or responses to a set of circumstances when his is different.
The father had a Mr P accompany him to changeover. The mother had met him in 2016, however none of the other nine or so people that the father brought to changeover were introduced to the mother and they were strangers to her.
The father’s paralegal Mr V, came to changeover and gave evidence. At no time did the father introduce the young paralegal to the mother or tell her why he was with him on the weekend. This behaviour heightened the mother’s emotional fragility and feelings of being controlled and watched. The mother already felt under threat, living in Warilla and supporting herself and her child, knowing the father wanted her to return to Sydney and/or the child live with him.
There were certainly times at changeover where the mother took a lot of time to get the child out of the car. C, his son, is clearly involved in this dispute. He asks his father, “How do we get video evidence into court? How did changeover go?”
D was involved in some changeovers. She calls out when Ms AF is doing a changeover, “At least there has to be one observer who is not biased.” Both parents have involved their older children in their nasty, acrimonious, unseemly dispute. On one occasion the video shows the father having given the child a toy and the mother throwing it out of the car. The mother’s evidence is it was a pig that made the sound “oink oink”, and the father said to her, “It suits you”, and you can hear, clearly, on the audio recording, the “oink oink” sound as the father presses it.
The father said she threw it at him when the video shows she did not. The father knows how to press her buttons and he certainly tried to do this at changeovers when he called out, “We can’t wait to go to court. We’re going to win.” He called Mr Cohen, the mother’s solicitor, “dishonest” and “incompetent”, clearly combative behaviour at changeover. He approached the mother on one occasion in November 2017 and asked about Christmas at changeover. This was all inappropriate behaviour and yet he criticises the mother, and she is criticised by all his witnesses.
Ms AF was at changeover and heard the mother allege the father hurt the child and could see no reason for the mother having said this. I agree with this observation. The father would never hurt B. The mother held on to the child and would not hand the child over at times and Mr V saw this behaviour. It was not appropriate behaviour by the mother

Ms T was the last person to accompany the father at changeover, after which he complied with orders he cease this practice.
The evidence of these good people did not assist me one iota in the determination of with which parent B should live primarily.
On the other hand, the mother has made some extremely poor choices for her daughter and B. The first is not supporting a relationship of D with her father, a man who I accept did not pursue the relationship particularly avidly.
Secondly, Dr G and I viewed an image from a phone of the mother’s showing herself and D burning a photograph of Mr Essa. This was sending her daughter an appalling message of how to deal with people you do not like and, in particular, men. It is the mother’s responsibility to assist her daughter to have relationships into the future and given that she has no relationship with her own father this was very poor parenting by the mother indeed, and her needs overwhelmed the needs of her daughter on this occasion.
The father accessed this image by using what he said was the discarded mobile phone at his home, as he had accessed and intercepted messages and photographs that D had taken.
Under cross examination Dr G’s extreme concern about this behaviour and its negative impact upon D was overwhelming and I will refer to this later.
Thirdly, in insisting B was at risk of harm in his father’s care and his time with him should be supervised when nothing could be further from the truth .
As with the mother burning the image of the father with her daughter, so to has the father has made some significant errors of judgment as a parent vis-à-vis the mother as follows
The father has endeavoured to maintain or create some sort of relationship with B and his maternal grandmother without even considering the mother’s reaction to this or the impact on her parenting of his son, or the impact upon his son, when his mother found out that he had introduced B to his maternal grandmother without consulting her.
The father called the maternal grandmother to give evidence. Ms AA, the maternal grandmother, happily came to Court to give evidence on behalf of the father and against her daughter. This was a particularly traumatic time for the mother who became very emotional and upset hearing her cruel mother run her down and not give her one iota of credit for anything she has achieved in her life. Rarely have I observed a parent who had no care for their child, even an adult child. Her daughter cried uncontrollably at times when her evidence was given and proceedings had to be adjourned. This lady had no feelings for her daughter at all, and her sole focus was herself.
One of her complaints was that her daughter had not contacted her when she recently had cancer. Ms AA had abandoned her daughter at age three. She had lived with various people: her own father in South Australia, Ms AA’s second husband, Mr OO, in Sydney and in Suburb NN. At best, Ms AA is careless of her daughter, her emotions, and has no feelings for her. Her evidence was extremely confronting to hear, and B should not be brought into contact with her. Her final words in her affidavit blamed her daughter for all the issues she had had in her life. At paragraph 47 of the maternal grandmother’s affidavit filed 18 December 2019 she says:
Ms Salter can make a person’s life miserable if she is that way inclined. I know this from how she treated me and how she treated Mr R after her separation from him.
It was extraordinary that the father thought his son would obtain benefit from spending time with this woman particularly when he knew, as he represented the mother at the time the grandmother brought and lost an assault charge against her daughter. The father knew then Ms AA disliked B’s mother so profoundly. The maternal grandmother’s evidence was chilling, and it is clear from cross-examination that whilst these parties were together the father and mother never had her mother over for any special occasions or meetings.
The father contacting the maternal grandmother after separation and prior to the trial , introducing his son to her is an example of controlling and vindictive behaviour as he knew what that would do to the mother. This is an example of the father’s attempt to paint himself in a positive light in contrast to the mother. The result is he has unnecessarily further isolated the mother from him. This is a tragedy for B as he is entitled to have both parents in his life however the parents need to trust each other in order to achieve this. To have introduced B to his maternal grandmother without the mother’s consent, at a time when the father was only seeing him one day a week, is incomprehensible and did not assist me to form the view that he is the parent best placed to care for this child.
When pressed on his reasons for this decision the father said, “I did this this hoping it would build a bridge for Ms Salter and her mother.” As Mr Livingstone, counsel appearing for the mother, said, “That was her bridge to build”. Having heard Ms Salter’s mother give evidence, there is no possibility, utility or benefit to the mother attempting to build a bridge with her mother given her mother’s opinion of her.
The father had not thought about the consequences for the mother of involving her mother in these proceedings and her evidence did not assist his case.
The father called the wife’s first husband, Mr R. Mr R’s evidence was clear and the mother’s text messages to him, annexed to his Affidavit of 16 November 2017, were truly disgraceful. He gave up in the face of the mother’s negative attitude to him spending time with their child and he did not pursue time with his daughter. It was also clear from the evidence that when the mother and Mr R were married she was living with his family at Suburb CC, and seven other adults and a young child. It is hardly surprising their relationship did not work out and she moved out.
Dr G had formed a view that the mother would not support an ongoing and beneficial relationship for B with his father. Her view was soundly based given the mother’s interviews with her, her opinion of the mother’s psychological functioning and the mother’s belief that the father had harmed B and his time should be supervised.
Secondly, her attitude to D’s relationship with her father Mr R. Mr R attached the SMS messages the mother had written to him in 2006 concerning their daughter to his Affidavit filed 16 November 2017 and they are at times distressing to read, and are as follows.
Mr R asked a question, at page 16 of the annexures:
Can you resend points 1 to 4, please? I seem not to have received them.
She responds:
Don’t treat me like a fool. Don’t create differences and/or difficulties.
This was unnecessary, aggressive and unwarranted. Mr R had wanted to have his daughter for Eid and the mother showed no understanding of the importance of this event and it did not happen.
The mother changed arrangements on 27 December 2006, writing to Mr R:
My family has plans for tomorrow. I’ve asked D and she wants to stay with them.
D was then aged three, four perhaps, and this was not her decision to make. All this father wanted was time with his daughter which had been agreed to at mediation.
The mother becomes quite aggressive towards him, starting at page 18 of the annexures:
Your problem you figure it out, asshole.
Your [sic] just a cocky fucking asshole.
Well…brainless idiot! If you have a problem with that, you’re [sic] problem, your call!
Stuff your thanks up your ass, and keep them for some other poor idiot!
Well… brainless idiot, if you have a problem with that, your problem, your call.
The mother complains about shoes the father bought for D. The mother made it very difficult for D and her father to have a relationship and I was unsure why this was so. On the other hand, D’s father did not take action in the Court, said he could not afford it, and his evidence is that it got too hard and he just let the relationship slide, particularly as D became older, and particularly as the relationship between the mother and the father flourished. There does seem to be a connection between those events for D called Mr Essa “dad” at one point in time.
D has missed out on a relationship with her father and I could see no reason not to let D have this relationship, and this was a poor decision by the mother.
In his affidavit of 16 November 2017 Mr R said at paragraph 30:
Ms Salter never put D’s best interests first. It was always about her and what she wanted.
I have a printout of numerous texts between them and that statement is not true. What the mother did was not put the child’s interests first insofar as it was her right to have a relationship with Mr R and this blanket statement is incorrect. Further, Mr Essa agreed that Ms Salter was a good mother to her daughter and B and this is correct.
In relation to the orders they father seeks, the reality is the father has never had B in his sole care for any significant period of time, yet the father asks me to remove the child from his mother and place him primarily in his care.
The father was asked what he thought that would mean for the child and whether he thought the child would be upset.
The father could not answer. He was unable to see it. He said, “I don’t know. He’s quite a well-adjusted kid…all I can tell you is, based on my assessment of him, in terms of how it is with me, he is quite a well-adjusted kid.”
I agree with the father’s assessment of his son and that he is a well-adjusted child due to the mother’s excellent parenting of him. The father was unable or chose not to tell the Court what it would mean for B to be living with him and not his mother and sister.
Although I share the concerns of Dr G that the mother’s attitude to D’s relationship with her father is of concern, it is clear the mother has been able to promote a positive, happy, connected relationship for B with his father in the most difficult of circumstances. Dr G did not recommend that the child live with the father; she recommended the mother return to Sydney so there could be significant and substantial time with the father. The mother is not returning to Sydney and there is now no application on foot for her to do so.
The father took Dr G’s recommendation in her Report to mean the child should be living with him, however that was not her recommendation.
When asked by Mr Livingstone, “Your orders for the child will be a seismic shift?” he said, “Maybe.” He was asked whether he had thought through the impact for his child of separation from his mother and he responded “I’ve reflected on the practical consequence of that occurring and I have reflected on how I am able to look after him”, yet he did not expand for the benefit of the Court what his reflection for B had led him to. His answer reflects the thrust of the father’s position which was what it would mean for him and in that answer he demonstrated to me a minimal capacity to understand what it would mean for the child although what it would mean for him is important.
There was additional evidence which causes me concern as to the father’s capacity to promote a positive relationship with his mother if B was to live with him. The father provided in evidence a video of he and B where he is questioning his son concerning whether his “mummy had told him to say something bad.” The father produced this video to prove that the mother had been coaching the child. Dr G had referred to the possibility of this occurring in her second Report because of unsolicited comments the child had made to her that were critical of the father at paragraph 59 that “ my daddy does not very nice behaviour”.
The father said “The forensic purpose of producing that material is to directly address the issues that I had been concerned about for a very long time,” however what the video also demonstrates is the father pressing and pushing his young son to make a negative comment about his mother to prove his case. This was unnecessary pressure on his young son as all the father needed to do was rely upon Dr G’s report and her observations in reporting the child’s comments to her.
Counsel for the Independent Children’s Lawyer asked the father whether he accepted that B’s primary attachment was to his mother. The father said:
My own experience with B…he is attached to me…he’s attached to both [mother and father] very closely.
The father could not concede that B’s primary attachment would be his mother and that the orders he proposed for the child to live with him full-time will be traumatising.
The father said B would have a better relationship with both his parents if he lived with him. The father was firm, “In his best interests, on the advice of Dr G's Report and the evidence, it’s best he primarily lives with me
He agreed that initially he had thought a gradual increase in time into his home to equal time would be best for B, but he had subsequently changed his mind. When pressed on what had made him change his mind by the representative for the Independent Children’s Lawyer he said, “Sole parental responsibility was something that I truly believed that [I] should consider… what’s changed is the outcome of the assessment…of Dr G, which has raised these very concerning issues.” He said that the mother has “no capacity” to promote B’s relationship with the father, that the mother’s attitude towards him will “relevantly” affect his development and she cannot foster a good relationship between his mother and his father, but that he can. He said that the child would have a much better relationship with his father and his family if he lived in Sydney.
When asked what he could have done to make changeover easy, he said he could have walked away, spoken more compassionately, more conciliatory. He said “I feel I tried my best.” It was put to him, “Maybe you shouldn’t have recorded the conversations and not reacted”. If the parents do not change their attitude to each other they are never going to be able to be together in their child’s presence and litigation will not improve matters.
When asked about the deterioration in his relationship with D he said that their relationship deteriorated “as a result of a plan by Ms Salter to exit the home.” I did not understand that comment as the mother could have left the home at any time she wanted, and for any reason, and her daughter’s deteriorating relationship with the father was but one factor that caused her to leave.
He was asked, “Do you think that your conduct brought about D’s attitude towards you?” He said, “I go back to a time where I came back from UU City, where I was just shocked to see – shocked to see the house virtually packed…I had no idea what was happening.” It is a sadness for the father that he did not realise how poor his relationship with B’s mother was at this time and is evidence that he had little, if any, emotional connection to the mother and similarly the mother had little, if any, emotional connection to him. I have no doubt he was focused on running his busy, successful practice and perhaps missed the signs.
The father was asked if he could move from Sydney to AD City to be closer to his son. He said:
I have considered whether it’s feasible…I don’t believe at all that I’m able to do it. It would be extremely expensive. I’m bound to a lease [with my current work premises]. My clients are Sydney-based. I’ve built a new home… all my family are in Sydney.
It was put to him:
Well, you’re asking B to leave the home he has known for the majority of his life, his pre-school, and he is going to start big school next year. This is an upheaval for him. Is this not too much for this young child?
The father said:
Well, yes, but it will be better in Sydney. I will be able to help her out if she is in Sydney. If she is in AD City it’s much harder.
I accept it is untenable for the father to move closer to where the mother lives. He is firmly established in Sydney with his criminal law practice and his supportive family.
From all the evidence I have read, including the two reports of Dr G’s, it is clear this child has an excellent relationship with his father. They are closely emotionally linked. Such a strong relationship does not happen in a vacuum and if the mother did not support this it would not exist. I accept I am tasked in this judgment to determine whether this relationship will be fostered and continued into the future for it is essential that B have the best relationship he can with each of his parents.
He agreed that his decision to effectively throw the mother out of the house was, in hindsight, poor judgment. Although the father endeavoured to paint himself as blameless and a victim, he is far from this. He is a perpetrator as is the mother at times also.
The father’s penchant for pursuing matters to prove his case was explored by Mr Alexander, counsel for the Independent Children’s Lawyer.
The mother told the father on 14 June 2019 the child was sick and couldn’t spend time with him. On a hunch, he drove past her brother’s home and saw the child and the mother packing things into their car, and he knew then that she had lied to him.
As Mr Alexander said, “Would it have been better if you didn’t see that?” His reply was “Maybe”. This is a further example of support for the mother’s case of the control of the father. He went to her brother’s home, on a hunch, and he pursued something that he had to find the answer to, no matter the consequence. That is controlling behaviour, and it can be coercive and intimidating for those it is directed to.
The father was controlling. He did not like the way the washing was done. He did it. He cooked, he cleaned, he washed, he ironed, he did it all because he liked to do it his way. The mother found that invasive. It was his way and it was his house. The power imbalance in the parties’ relationship was significant and it would do the father well to recognise this and that many of the mother’s behaviours and attitudes to him are as a direct consequence of this power imbalance. That is not a justification for the mother’s poor behaviour but perhaps a reason why.

Father’s evidence continued at the resumed hearing

Both parties filed an updated affidavit when the hearing re-commenced, which was most important as it had been over six months since the matter had been before the Court.
The hearing resumed on Monday, 7 September 2020. The parties filed updated affidavits and there was some additional cross-examination. The updated affidavits were a recitation of the same behaviours by each of them, complaints by each of them as I had previously read, and there was little positive progress with these parties’ attitude and conduct towards each other.
The father’s approach of telling the Court, blow by blow, what occurred at every change-over, every communication, every telephone call or attempted telephone call, every attempt by him to extend time, every argument they had about everything, including COVID 19, was distressing in the extreme and merely indicated that he had learnt absolutely nothing from his extensive cross-examination at the initial hearing. He has continued to use his significant power, expertise and position to harass the mother, to have her do what he wants and he believes his position is in the child’s best interest. The father’s position may be correct however he has not changed, ameliorated, or varied his approach to the mother and attempt to create a civilised, respectful, business-like relationship with her.
Similarly, I am most critical of the mother and her behaviour – which was extreme at the time of separation – including screaming at the father with the child on her hip, losing control entirely, burning a picture of the father with her daughter, complaining that the father was hurting the child at change over and taking significant, unnecessarily lengthy time to transition the child into the father’s care. The mother has not attempted to create a civilised, respectful relationship with the father either and her insistence that the child was at risk in his fathers’ care was disingenuous at best and vindictive at worse.

It is an imperative that I provide the father with the maximum time possible consistent with the B’s best interests and capacity as I accept the mother is inflexible with the father in providing additional time with his son.
Further, I accept that the mother does not have a positive view of the father as a man and was, until recently, peddling a story the child was at risk in his father’s care when nothing could be further from the truth. Thus there were sound reasons for Dr G’s pessimistic opinion of the mother’s capacity in this regard and her late change of heart does cast a lingering doubt in my mind as well. The mother must take this deficit on board and do all she can to foster her son’s relationship with his father who, like her, is in many respects an exemplary parent.
This is a finely balanced matter however for all those reasons I have determined that the child should continue to reside primarily with his mother.
Going now to the father’s time. I find time with his father two weekends out of three will provide B with access to a range of adults who love him, a strong sense of identity and belonging to his paternal family and good quality time with his father, whilst continuing his residence with his primary carer, his mother, with whom he is closely attached, his sister and maintaining his usual environment.
Such orders will allow B to have weekend time with his mother and sister, engage in activities in his area and spend time with his friends from school.
I propose that the father collect his son at the cessation of school Fridays and return him to the mother at a midway meeting point at 6 pm on Sunday until such time as the second term of his first year of school starts and then the father will deliver the child to school Monday morning if he is able so to do.
If the father cannot manage this frequency of time, then his time will be alternate weekend time
In 2021 the child to spend time with his father from the cessation of school in December until 12 noon Boxing day and for a further period of 7 nights returning to his mother at 2 pm on the 8^th day being the third week of the January 2022 school holidays .
In 2022 the child will spend time with his father from 12 noon Boxing Day for a period of 13 nights returning to his mother’s care at 2 pm on the 14th day in 2022.
In 2023 and each odd numbered year thereafter the child is to spend time with his father from the cessation of school in Term 4 for a period of 21 nights returning to his mother’s care at 2.00pm on the 22^nd day.
Commencing 2024 and each even numbered year thereafter the child is to spend time with his father from 12 noon Boxing day for a period of 20 nights returning to his mother at 2.00pm on the 21^st day.
The parents will meet at a midway point at the commencement and cessation of his time, unless he is being returned to school, as agreed and failing agreement at Suburb K Railway Station.

Property

Going now to the property issues.
It was the father’s position that due to the impact of COVID-19 on his business and income the valuation prepared by Mr L, based only on the past three years business activity and income, was no longer soundly based.
Mr L prepared a report in relation to the valuation of the father’s legal firm, an entity corporation known as RR Lawyers. That report is dated 10 February 2020 and is based upon the last three years’ financials, tax returns, turnover, expenses and the like of 2017, 2018 and 2019 which were the only available documents to Mr L at that time.
By the time of the resumed hearing in August the father had prepared his 2020 returns for RR Lawyers Proprietary Limited including the financials and tax. The financial statements were marked father’s exhibit 10 and the income tax return for that entity marked father’s exhibit 11. This was not information available to Mr L when he prepared his report.
The second significant change has been the impact of the COVID-19 pandemic upon businesses generally and all businesses effectively.
Unsurprisingly, the gross turnover of RR Lawyers in 2019 set out at paragraph 69 of Mr L’s report of $589,229 was reduced in 2020 to $357,533, including the government cash boost for businesses, giving a total income of $401,351. The total income in the financials in 2019 including employee’s contribution on fringe benefits tax was $594,725. The business actually made a loss of $115,508 in 2020, having made a profit in 2019 of $159,182.
Thus, the financial position of the father’s business has significantly changed and Mr L correctly said no one knows what this pandemic will do to business into the future and no one knows when the effects of this pandemic will begin to ameliorate. I can take judicial notice of the fact we are still in a pandemic with some borders and states locked down and, without a vaccine, there can be no certainty when normal functioning in Australia and the world economically will return.
I accepted the submission of Mr Coleman SC on behalf of the father, which was also accepted by Mr Livingstone for the mother, of the significant impact of COVID-19 on the father’s business as the state courts Mr Essa practices in, namely the criminal courts, did shut down, effectively, for quite some time.
There were simply no trials or work going on unlike in the family law jurisdiction where although the Court door may have been shut, judges were still available to parties to hear and conduct hearings electronically. I accept also, having received various notifications of same from the New South Wales Bar Association as everyone at the bar table would and as Mr Essa conceded, jury trials are returning, hearings are returning and, therefore, his main area of work which is criminal law is beginning to return. However, that is a separate issue to the value of the business for it is clear from Mr L’s report and the father’s own material that Mr Essa’s business was on a pleasingly positive trajectory before this pandemic arrived.
In 2017 his fee revenue was $430,366. In 2018 it was $481,708 and in 2019 it was $589,229. Mr Essa has let go two other employees as they were not generating income and he needed to cut costs. Consequently the evidence he gave at the commencement of these proceedings in February 2020, before the effects of the pandemic were known, of his business progressing well and expanding, wanting to expand and putting on new employees to aid in that expansion has fundamentally changed and there has been a significant contraction. As Mr Coleman SC for the father submitted, that contraction must be factored into the valuation Mr L produced prior to these devastating events.
Mr L’s valuation report was marked Court exhibit 3 and he valued the business as follows. He found that there was approximately $40,000 work in progress. The father had $118,567 in the bank at the time he prepared this report as shown in the balance sheet at paragraph 77. That money has all but been expended to make up for the loss incurred by the father this year in the running of his business. Mr L was clear in cross-examination that he had looked but found no legal businesses for sale in the past year or at the time he prepared his report. None whatsoever, let alone what I regard as a boutique criminal law practice where Mr Essa is clearly a key man principal as he told Mr L he was.
The strength of the practice is Mr Essa and word of mouth. The weakness is that the source of work is only from Mr Essa. The other weakness is that the practice does not undertake a range of matters such as family law matters, conveyancing, personal injury or litigation other than general criminal defence matters, wills and probate. The scope of the practice is limited and all his professional staff were in 2019, in the first year of practice, heavily reliant upon the skill and expertise of Mr Essa and that business model had been profitable for him in the past. At paragraph 36 of his report Mr L says:
In the absence of an observable market for dealings in the asset being valued, [that is, any other business being for sale] viable businesses are normally valued either by the discounted cash flow (“DCF”) or the capitalisation of maintainable earnings (“CME”) methodology.
Mr L’s opinion was that it was appropriate to consider the application of the CME type approach and that he had some “rules of thumb” in valuing legal practices. The CME methodology involves five steps:
a)Estimating the level of the “maintainable earnings” which is done by reviewing past earnings and budgeted fixed future earnings and “normalising” the results by excluding items of income and expenditure not expected to recur.
b)Secondly, multiplying the figures selected by a multiple. Profit before interest and tax, the “EBIT”, is commonly adopted as a measure of earnings.
c)Thirdly, that calculation will provide to you the value of the business conducted by an entity including those assets and liabilities which is working capital plus fixed assets which are necessary.
d)Fourthly, that value must be added to the worth of any “surplus assets.” These are things not necessary to conduct the business, for example, surplus cash in the bank, a resource this company no longer has access to.
e)Lastly, you deduct that value from any debt funding and Mr Essa has no debt funding for his business. A part of this valuation is the goodwill in the business. Mr L had assessed the goodwill in his very extensive and learned report at a mid-point of $173,824 from a high point of $217,574 and a low point of $130,074.
f)I note, at paragraph 69 of the report, Mr Essa’s adjusted profit before interest and tax was $149,349 in 2017, $192,323 in 2018 and $175,189 in 2019 after he had paid himself a salary and paid his costs. This year it has been a loss of $115,000, a significant change.
Mr L noted at paragraph 71 that the 2019 turnover being less than $600,000 is a relatively low fee base for a partner of a small firm. He adopted a fair market remuneration package for the father of $200,000 for the year ending June 2019 inclusive of superannuation and this is about correct for what Mr Essa paid himself. He adopted as maintainable earnings for the practice an amount of $175,000 being the 2019 result. However the 2020 result is negative $115,000.
He noted at paragraph 80 that the prospects for the practice appear to be positive. That is not the case presently. The employment of additional staff that Mr Essa did put on in 2019 was suggestive of a foreseen increase in workflow which the father himself admitted. Those staff have now left. That foreseen increase is unlikely to eventuate.
It is a limited range practice. It is one-off work and there is heavy reliance on the father. There are no poor management issues but the business is small in terms of turnover. However the practice is within reach of a purchaser and Mr L believed an EBIT multiple of 2.0 to 2.5 the value of the selected maintainable earnings was appropriate. He determined that the business had a low implied value of goodwill of $130,074 and a high of $217,574. The maintainable earnings was $175,000 and the implied multiple of turnover he came to a midpoint of 0.30. The super profit multiple was 1.07. At paragraph 84 Mr L says:
A prospective buyer of the practice would be obtaining a return pre-tax of around 44 % [$175,000 / (2 +2.5) /2] plus a salary of $200,000 if he/ she acquired the Practice assuming continuity of revenue and profitability.
Those assumptions may no longer be correct due to the significant downturn in revenue and profitability in 2020 and that this may continue for some time. Nobody knows the answer to that. Thus, I cannot agree that the value ascribed by Mr L to the father’s practice being goodwill and its inherent value is now reasonable in all the circumstances. He assessed the value of the company between $419,386 and $506,886 and selected a midpoint $463,136.
The concessions that Mr L made under skilful cross-examination by Mr Coleman SC having regard to the significantly changed financial landscape for everyone were as follows.
Firstly, he conceded that a reasonable figure now for goodwill would now be $50,000, not the sum of 140-odd thousand dollars he previously assessed at. It was clear that this company is not going to be sold. Mr Essa intends to continue with his practice. And that if he did sell his practice for $460,000 he might net something like $267,000. But that is not a factor before me. There is no evidence he intends to sell his practice.
He has two less employees than he had when the valuation was done. He now only has one employed lawyer. His revenue has declined as at 30 June 2020 by 39.3 per cent, similarly his costs decreased as well. Mr L accepted all of these matters. Mr Essa’s evidence was clear and I accept that he had to let his two employees go as they were not bringing in any new business and he did not have the income to pay them their salary.
There was no depreciation for plant claimed in his 2020 tax return so that amount cannot be added back to revenue, and there was quite a deal of advertising to increase his business which was something Mr Essa was very keen to do in February 2020. In the 2019 financials there was depreciation claimed of $46,536 and in 2020 it was nil.
Mr Essa’s salary in 2020 was $154,616 and he obtains benefits of his car lease, telephone, and superannuation. He had a trading loss of $115,508 and Mr L agreed that if you deduct the 2019 depreciation claim of $46,536 from the trading loss of $115,000 in 2020 there is a shortfall of approximately $70,000. The bank account had $118,567 in it at the time of Mr L’s report. It now has $20,000. Adding together the $20,000 remaining in the bank account and the losses of the business made up from the surplus funds in the bank account of $70,000 is an amount of $90,000 meaning that there was an additional $28,000 spent of the original bank funds .
Mr L agreed that it is likely the source of the shortfall of funds by Mr Essa to continue his business came from this bank account and accepted Mr Essa paid a significant amount on his car noted as property and plant as set out in page 4 of the profit and loss statements and that explains where the $28,000 was spent and why it is no longer in his bank account.
Mr L agreed the only way Mr Essa was able to pay himself his salary was by drawing down on money he had in the bank, and if he had not drawn down the monies he had in cash reserves the highest salary he could have paid himself was $74,000.
Mr Coleman SC took Mr L to paragraph 55 of his report, which contained the source of the goodwill as assessed. He put to Mr L that no arms-length purchaser would pay goodwill for this business. Mr L would not concede this and said they will pay something and this is where he said, to his credit:
Obviously, a lot of things have happened since I did my report at 30 June 2019 and the figure that I said they would pay.
He agreed that no arms-length purchaser would pay $147,000 for goodwill today. He said he would be happy to re-do the valuation but that no one has asked him to do that. I accept this would be a far too expensive proposition. Mr Coleman SC asked:
You wouldn’t expect a purchaser to pay anything but nominal goodwill for this practice?
Answer:
Based on the 2020 accounts the position is what it is, but things moved on since then. [I was] told in correspondence that there’s not enough work for the people [employed]. The 2020 account gives certain resolve [that] things have moved on again and now there are less employees.
The valuation has to be based on prospects of practice unless the past reflects the prospects [for the future]… I would say based on that position of 30 March 2020 the goodwill figure would be something. Given what’s happened since that figure may be reduced further but I do not know what are the prospective circumstances going forward.
The last sentence is correct. No one does know. Mr L posited goodwill was somewhere in the vicinity of $50,000.
The work in progress he conceded might have been about $20,000 because of the nature of the practice.
Mr Essa was not over-remunerating himself and this was agreed. Mr L at paragraph 70 of his report did quite a deal of work about how much money a salaried partner in a law firm might expect to be paid and noted that the figure is between $158,000 to $230,000. Yet, here, Mr Essa, the owner and principal of the practice effectively earned in the 2019/2020 tax year $74,000 and was only able to pay himself the salary he needed to maintain his life commitments by drawing down on cash he had in reserve.
This would, as Mr Coleman SC suggested to Mr L, have a very serious impact on the arms-length purchaser. Mr L was clear – people do look at whether they will go into a salaried partner position or buy a practice which has an infrastructure set up as Mr Essa clearly has. He has a well-positioned, well-organised legal practice. Mr L said the $50,000 goodwill is effectively an opportunity cost because you have those things already as a prospective purchaser.
Mr L agreed that, similarly with his practice, people come because of him, Mr L, and they come to Mr Essa’s practice because he is Mr Essa.
Mr Coleman SC took Mr L to what he called his prospective positive prospects referred to in paragraph 80 of his report. His turnover has not increased in the last two years. This year it was a negative $115,000 or, after depreciation, $74,000.
With regard to the prognosis in Mr L’s report at paragraph 80(b) of the prospects for the practice appearing to be positive and that work was going to increase, Mr L agreed that 2020 was much worse than 2019:
Things are not looking good. But I’ve had no opportunity to make inquiries why the work has fallen off.
Mr L agreed from what he had read that there was a total reliance on Mr Essa to get clients through the door. 2020 was not profitable and his work is still based on him and not others. However with goodwill reduced to $50,000 the practice is well within somebody’s capacity to purchase. Mr L was clear that it was not just a lawyer buying a specialist practice that might be the arms-length’s purchaser’s, it could be any legal practice as they do not have to set up their own shop.
However, the fallacy of that was that there was simply no available data of a sale of a local criminal law firm the practice, size and scope of Mr Essa’s. There was not one even such practice for sale let alone a comparable sale. There were not even any advertisements of a practice for sale. Mr L agreed that he calculated future maintainable earnings on the last three years’ returns. He agreed that if the adjusted profits and tax were added up for those years you come to a figure of approximately $517,000. If 2020 is taken into account you end up with a real loss of about $130,000. Mr Coleman SC was content to leave the loss at $115,000 as set out in the profit and loss accounts.
Mr L said you would have to adjust the salaries because there were salaries in the prior figures that were not in the 2020 figures because he has laid people off. However, the fallacy of that argument was pointed out by Mr Coleman SC being if Mr Essa cannot pay himself $200,000 as Mr L asserted was one of the factors the arms-length purchaser would look at in purchasing this practice, you cannot then maintain the value you have reached if the prospective purchaser cannot pay themselves $200,000. Mr L made this concession. Mr Essa’s income from his practice was $74,000 and the remainder of his declared income for 2020 of $154,000 was made up from cash reserve .
Mr L agreed that the net profit for 2020 should be factored in as zero. Dividing the last four years profits of the business of $517,000 by four years is profit of $129,250 each year.
Mr Coleman SC put to Mr L that the last four year profit of $129,250 yearly would be the starting point for an at arms-length purchaser of the business and not the artificial future maintainable earnings of $200,000 given the 2020 earnings declared by the father were inflated due to money he had in the bank and not from the practice turnover.

Mr L agreed you could do a valuation that way.
Mr Coleman SC said:
Well, you did it that way before. Why not that way now?
Mr L responded:
The FME is what the practice can do going forward and I would not necessarily take an average of 4 years as to what would happen in the future.
The future is the problem and there is no doubt the 2020 figures and the COVID-19 pandemic have significantly affected Mr Essa’s business and must have a significant impact upon the valuation.
Mr L said he was not comfortable taking an average over four years to come to a FME. Mr Coleman SC asked, is it not desirable to average as many years as you could in a profit and loss sense to fundamentally understand and to be able to value an enterprise?
Mr L said:
You can’t always average. That may not be the best.
We are all in this pandemic. It has never happened before. As Mr Coleman SC put, 2020 is totally “off a cliff.” Mr L agreed. It is clear to me in these changed circumstances that the future maintainable earnings figure of $200,000 Mr L used is not achievable in this practice at this time and, at best, on the 2020 figures it was $74,000 to the principal, Mr Essa.
The reality is there is agreement that goodwill is $50,000, a third less than that in Mr L’s original report at $147,000.
Mr Coleman SC’s submission was that the best way to determine a value for his client’s business in these uncertain times was take the RR Lawyers amortised retained profits over four years at the end of the financial year of $108,281, add the agreed $50,000 goodwill to arrive at a figure of $158,281 for the value of this practice given what has happened in 2020.
Mr Livingstone conceded Mr L had made many concessions in his report and that it was pointless to talk about the tax implications of the sale because Mr Essa was not selling the practice. The revenue was increasing post-COVID-19 and certainly had increased post-separation.
Lawyers have left the business. Mr Essa has not replaced them and that must increase the profitability of the business into the long-term but it also decreases its capacity to grow. Why they left was not relevant to Mr L, just the fact they had left. That 2020 was an extraordinary year. Criminal courts were shut down. Jury trials and trials are now resuming at the district and local courts. Mr L said:
I would want to know why revenue declined and prospects of revenue going forward and therefore profit recovery.
He was asked if 2020 is not likely to be repeated then whether we can use it to assess the future maintainable earnings. Mr L said if 2020 is not likely to be repeated it would be inappropriate to take that as assessing future maintainable earnings. I accept what Mr L says.
The point is nobody knows and I am tasked to make this assessment currently and consistent with decisions such as MacGregor v MacGregor (1996) FLC 92-710, where the Court quoted from Commonwealth v Milledge (1953) 90 CLR 157 at 62, I have made a “common sense endeavour, after consideration of all the material before the court, to fix a sum satisfactory to the mind of the court” and that common sense endeavour favours the position submitted by Mr Coleman SC and I adopt it.
The method of Mr Coleman SC of arriving at a value for his client’s practice took into account the reality of the situation, that valuations are an artifice and, given the uncertainty surrounding the impact of COVID-19 around the world and therefore on Australia, a cautious approach should be taken . Mr L made many concessions due to these uncertainties as well.
Given the uncertainty with this pandemic I will adopt the value arrived at by Mr Coleman SC being goodwill at $50,000 and amortise retained profits over four years to arrive at a figure of $108,281 and when added together this is a value of a value of $158,281. It is simply too uncertain to rely upon the increasing in profits over the past three years when we have been in, and continue to be in, a pandemic. I find this approach is the most fair and equitable way of determining the current value of Mr Essa’s criminal practice.
The agreed list of assets and liabilities is as follows:

Ownership				Description		Wife/de facto partner’s value	Husband/de facto partner’s value
ASSETS
1	W			Commonwealth Bank, BSB: …, Account Number: …16		$175	$NK
2	W			Motor Vehicle 1, Registration Number: …		$E 4,500	$4,500
3	W			Household contents		$E 1,500	$1,500
4	H			Interest in RR Lawyers Pty Limited trading as Essa Lawyers		$506,886	$158,381
5	H			LL Street, Suburb E		$2,300,000	$2,300,000
6	H			WW Street, Suburb XX		$525,000	$525,000
7	Gus & Jus Pty Ltd			H Street, Suburb EE		$1,180,000	$1,180,000
8	W			CBA Account – BSB: …, A/C …46		$59	$ NK
9	H			HH Bank A/C No…52		$1,649	$1,649
10	H			Motor Vehicle 2		$E 10,000	$E 10,000
11	H			Household contents and furniture		$30,000	$30,000
Total				$4,559,769	$4,209,381
ADDBACKS
12
Total				$0	$0
LIABILITIES
13	W			Commonwealth Bank – Personal Loan		$2,776	$ NIL
14	W			HECS debt		$68,661	$ NIL
15	W			Commonwealth Bank – Visa Card		$1,856	$ NIL
16	W			Personal Loan from Mr Z		$25,000	$ NIL
17	W			Legal fees owed to David H Cohen & Co Solicitors		$ E 200,000	$ NIL
18	H			HH Bank Portfolio Loan (Suburb E property)		$552,178	$552,178
19	H			HH Bank FDA Bus Account (Suburb EE property)		$891,500	$891,500
20	H			JJ Bank Suburb XX mortgage		$388,000	$388,000
Total				$2,129,971	$1,831,678
SUPERANNUATION
Member			Name of Fund		Type of Interest	Wife/de facto partner’s value	Husband/de facto partner’s value
21		W	YY Super Fund		Retirement Saving Account	$11,167	$11,167
22		H	ZZ Super Fund		SMSF	$234,474	$234,474
23		H	AB Super Fund		Accumulation	$ 3, 454	$3,454
Total			$249,095	$249,095

I find the balance sheet for division of property relevant to this relationship property will be as follows.
I will not include the following assets as part of the divisible pool for the following reasons.
a)Monies in either party’s bank accounts. These monies are their property acquired post separation.
b)The parties’ cars or their home contents. The parties had these items at the time of co-habitation and are their items and not assets of the relationship or arising out of it.
The relationship assets are as follows:
a)The fathers’ legal practice is at $158,281;
b)The property at Suburb E is at $2,300,000;
c)The property at Suburb XX is at $525,000;
d)The property at HH Street, Suburb EE is at $1,180,000;
e)This is total assets of $4,163,281.
The debts are as follows.
The mother’s debts are her debts and I note they are extensive, approaching $300,000. She owes her lawyers $200,000 and has another $100,000 in personal debts attributed to a HECs debt, a personal loan from her brother as well as credit card debt.
The debts that are relevant to the divisible pool are:
a)The Suburb E property mortgage at $552,178;
b)The Suburb EE property mortgage at $891,500;
c)The Suburb XX’s property mortgage at $388,000.
d)This is total debts of $1,831,678.
Deducting those debts from the pool for division is a net asset pool of $2,331,603.
The father has $237,928 in superannuation and the wife $11,167. Neither seek a super splitting order.
As to the mother’s entitlement to this property.
In submissions, Mr Coleman SC on behalf of the father asserted that this was not a matter where percentages were applicable. That the principles in Stanford v Stanford (2012) 87 ALJR 74 (“Stanford”) set out in the Full Court decision in Bevan & Bevan (2013) FLC 93-545 (“Bevan”) were more appropriate and that I should merely determine the mother’s entitlement by arriving at a monetary amount after having had regard to the relevant 90SM and 90SF(3) factors.
Mr Livingstone in his submissions adopted Mr Coleman SC’s approach that the appropriate way to determine the mother’s entitlement was by way of a cash adjustment rather than a percentage adjustment, the usual course.
The parties’ period of cohabitation was 15-16 months.
Mr Coleman SC submitted the mother’s contribution based entitlement to assets of the father which he had acquired prior to their relationship, being his legal practice and the property at Suburb E and to the properties acquired post separation at Suburb EE and Suburb XX’s is almost negligible.
There is no doubt she has provided excellent care to their child and continues in that role and the law is clear that contributions of a parent to assets in the other parent’s name can continue post-separation having regard to their role as a parent and carer of parties’ children. The mother has made a significant contribution to the care of B, who has always been in her care, and will continue in that role into the future.
There is no doubt that her needs under section 90SM and 90SF(3) of the Act are significant. She is undertaking a course of study which will continue until the end of 2023, early 2024, and thus a diminished capacity to support herself by way of income earning even for that factor alone let alone her primary care of the child .
However, what also must be factored is that whilst the parents had a relationship where they cohabitated for under 16 months, Mr Essa also supported her daughter. There was child support paid but, as the mother says in her financial statement, it is $90 a week and D would have cost much more than $90 a week to support.
Mr Coleman SC submitted that mother has already received $100,000, with which she agrees, and an additional $150,000 would be about her entitlement by way of contributions during their relationship, post-separation to the child and having regard to her significant 90SF(3) factors and needs into the future.
Mr Livingstone for the mother, adopting the same approach as Mr Coleman SC, asserted the wife should receive a cash adjustment of between $500,000 to $600,000 of a net pool of $2,331,603 and conceded she had already received $100,000.
I will adopt the approach urged upon me by both counsel and, rather than exclusively determining the mother’s entitlement by way of percentage, will provide to her a cash adjustment that I have determined is appropriate in all the circumstances having regard to her contribution to the parties’ child during their short cohabitation, post separation and into the future. I agree the mother has made no contribution to the father’s current assets and that he did support her daughter whilst they lived together.
Having had regard to the matters under section 90SM and 90SF(3) of the Act I find an appropriate monetary amount for the wife to receive is $350,000 of which she has already received $100,000, resulting in a payment to her by the father of $250,000. This equates to some 15% of the net equity.
The wife has a claim for maintenance under section 90SE of the Act and there is no doubt that she fulfils the threshold test under section 90SF(1) of the Act as a partner in need of maintenance by reason of the care of a young child and that she is embarking upon a course of study at university.
The mother’s evidence was she has completed four units and at that slow pace, and this is no criticism of the mother, she will complete the course of study and will be looking at a job in her area of study at the earliest around the end of 2023. That is a period of three years from today. The mother seeks maintenance for two and a half years and this is reasonable given B will be seven and a half, approaching eight years of age by that time and once he is established at school the mother may be able to obtain work whilst she studies as well.
Going now to the mother’s needs.
I cannot have regard to the money the mother receives by way of government benefit being a single parent pension of $638 per week. Section 90SF(4) of the Act impels a Court to disregard a party’s entitlement to a means tested government benefit in a maintenance application.
The income she receives that I can have regard to is $90 a week maintenance for D, and $219 a week for B being a total of $309. However this is money which is used to pay for the children and is not for the mother’s support.
I note she will be receiving $250,000 from the father, a significant sum which will not quite extinguish her debts which total $300,000 including a HECS debt which is not payable in full as at today’s date.
Going to her financial statement filed 18 December 2020 and, in particular, part N and reviewing her discretionary needs.
I will allow her the following:
a)Food at $100;
b)Household supplies at $30;
c)Electricity at $17;
d)Telephone at $25;
e)Motor vehicle expenses of $52;
f)Her clothing at $11;
g)Medical costs to $8;
h)Education at $9;
i)Chemist and pharmaceutical at $5;
j)Repairs to furnishing at $10.
Totalling a modest $267 per week for her discretionary needs, and I accept they are her needs.
Going now to the mother’s weekly fixed expenses:
a)Rent at $370 a week for the property which houses herself and the children;
b)Insurance for her car is $5;
c)Roadside assist is $10;
d)Green slip is $7;
e)Registration at $10;
f)$5 a week on a visa card.
This totals $407 per week.
Adding this figure to the mother’s discretionary expenses is a total expenditure of $674 a week.
Some of the mother’s needs are paid from child support, for example the three-bedroom townhouse she rents would not be required if she was a woman alone and had no children, additional fuel for her car, additional electricity and the like. In a maintenance claim the mother’s needs and the children’s needs are to be separated and this is not always possible therefore I will assess what I regard as her reasonable needs taking into account that she does receive $309 per week by way of child support for her children and that some of her needs are covered by this payment.
I find the mother’s reasonable needs per week to be $500 per week and that she has no capacity to meet those needs at this time and will be unable to do so for a period of two and a half years.
Even though I find these are the mother’s reasonable needs there are other factors to consider before making an order for maintenance.
The other relevant matters are under section 90SF(3) of the Act and are as follows.
The mother has an obligation to support her daughter although I note she will be 18 in 12 months or so.
The payment of maintenance will enable the mother to complete her course of study and at which time she will be in a position to obtain employment.
The mother has made a negligible contribution to the father’s income, earning capacity or his wealth.
The de facto relationship was short and for 15 months duration.
The mother seeks to continue her role as a parent for the next 2.5 years and complete her studies or substantially complete them.
The mother receives child support.
Looking at subsection (r) of section 90SF(3) of the Act, the mother is receiving $350,000 from the father based upon her inability to provide for her future needs due to the care of their child, her more limited income earning capacity now and into the future and she has no available financial resources. I found her entitlement to be 15% of the value of the father’s assets being some $350,000.
Given the short duration of the relationship, that I found the mother made a negligible contribution to the father’s assets and income earning capacity and the verdict she has received was primarily as a result of her future needs and care of the child, I find the appropriate level of support to be paid by the father is $400 per week. Over the next two and a half years this equates to $52,000. If the father wishes to make a lump sum payment I will reduce his obligation to $48,000 as the mother will be receiving the benefit of a lump sum payment.
The final test is can the father meet the order I propose to make of maintenance at $400 per week for two and a half years.
On his financial statement and having regard to his financial resources I find he can meet that order and I will so order.
The continuation of the maintenance order is contingent upon the mother continuing with her course of study.
The father must elect within 14 days prior to paying the mother her cash adjustment whether he will be paying her a lump sum amount or a weekly amount of $400.
The Independent Children’s Lawyer also made an application for costs. The costs claimed are $34,000.
The mother submitted she ought not bear any of these costs due to her minimal financial position. However impecuniosity is no bar to the making of a costs order should the Court determine that a costs order is warranted, see Nada & Nettle (Costs) (2014) FLC 93-612.
Given his financial position the father did not, properly, raise any argument and contended the parties pay one half of those costs.
Going to the relevant facts in this matter which are as follows.
The mother is receiving a sum of money which, although it will not clear all her debts, will place her in a far superior financial position to that she is in currently.
Secondly I have ordered the father to pay her $400 a week by way of maintenance for two and a half years. That money, combined with Government benefits and child support she receives, will place her in a vastly superior financial position to her current position and I have formed the view it is proper on these facts that each party pay one half of the Independent Children’s Lawyer’s costs.
The father will pay the costs initially and deduct the mother’s share of the costs of $17,000 from the money he has been ordered to pay her.
Further, the father paid the totality of Dr G’s fees for her two reports and Mr L’s fees. It is appropriate the mother equally share these costs as well and the father may deduct 50% of the money he has paid for both Experts’ fees from the money I will order him to pay to the mother.

I certify that the preceding five hundred and sixty-six (566) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 29 January 2021.

Associate:

Date: 29 January 2021

[2021] FamCA 22

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