Everett and Ors and Upton

FAMILY COURT OF AUSTRALIA

EVERETT AND ORS & UPTON

[2015] FamCA 704

FAMILY LAW – CHILDREN – Final orders – Where the father seeks equal shared parental responsibility and the paternal grandparents seek orders to spend time with the children – Where the mother seeks sole parental responsibility and for the children to spend no time with the father – Where the father was convicted of aggravated indecent assault of a child of the mother from a previous marriage – Where the conviction was overturned on appeal – Where the Health Care Complaints Commission made findings that the father had engaged in professional misconduct in his medical practice – Where the father was subsequently disqualified for three years – Where the father is in a relationship with a former patient – Assessment of unacceptable risk – Best interests of the children – Views of the children – Effect of their time spent with the father on the sibling who accused him of indecent assault – Suitability of proposed supervisors – Length of supervision – Mother to have sole parental responsibility of the children – Father to spend time with the children once a month under supervision until one of the children commences secondary education – Paternal grandparents to spend time with the children when the father does – Children to attend protective behaviours counselling.

FAMILY LAW – PROPERTY – Final orders – Where the competing applications were subsumed by the parenting issues – No submissions received as to assets, superannuation or liabilities – Items excluded where little or no evidence has been provided – Where both parties engaged in paid employment during the marriage – Where the wife, with the assistance of her father, has made substantial post-separation contributions – Where the husband has not had any role in the parties’ medical practice for over six years – Consideration of section 75(2) factors – Orders made for distribution in favour of the wife.

Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 69ZT, 75(2), 79
Family Law Rules 2004 (Cth) r 15.52

MRR v GRR (2010) FLC 93-424
Stanford v Stanford (2012) FLC 93-518

1^STAPPLICANT:

Mr Everett

2^ND APPLICANTS:

Ms B and Mr C Everett

RESPONDENT:

Ms Upton

INDEPENDENT CHILDREN’S LAWYERS:

Legal Aid NSW

FILE NUMBER:

PAC

2364

2011

DATE DELIVERED:

26 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

13, 14, 16, 17, 20, 21, 22, 23, 24 and 30 April 2015 and 21 May 2015

REPRESENTATION

COUNSEL FOR THE 1^ST AND 2^ND APPLICANTS:

Mr Ahmad

SOLICITOR FOR THE 1^ST AND 2^ND

APPLICANTS:

Not applicable as direct brief

THE RESPONDENT:

Mother in person

INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

Orders

Parenting

All existing parenting orders in relation to the children:
·D born on … 2000;
·E born on … 2003;
·F born on … 2006;
(“D, E and F”) are discharged.
The mother has sole parental responsibility for D, E and F.
D, E and F will live with the mother.
E and F will spend time with the father from 10.00 am until 4.00 pm on the last Sunday of each calendar month, under the supervision of a professional person appointed to that role in accordance with Order 5.
The father will nominate one of the following professional supervision agencies:
·Connecting Families (ph: …);
·Phoenix Rising (ph: …); or
·Wallis Family Services (ph: …)
and advise the mother of his choice by email.
The father will bear the costs of supervision for the purposes of implementation of these orders.
E and F’s time with the father will be supervised in accordance with Orders 4, 5 and 6 until F commences her secondary education, at which point the paternal grandfather Mr C Everett will assume the role of supervisor.
The paternal grandparents are at liberty to attend any periods of the children’s time with the father pursuant to these orders.
Within fourteen days of the date of these orders, the mother will arrange for E and F to attend upon a protective behaviours counsellor, as recommended by the Independent Children’s Lawyer, for such period as is deemed appropriate by that practitioner.
The mother will bear the cost of E and F’s appointments with the protective behaviours counsellor.
The mother is granted leave to provide to the professional contact supervisor and the protective behaviours counsellor a copy of these orders and the reasons for judgment of Stevenson J.
Each of the parties is restrained from denigrating the other, or any member of his and her family, in the presence of the children or permitting any other person to do so.
The mother will forthwith do all things and execute all documents required to authorise staff at the schools attended by E and F to provide to the father, at his request, copies of reports, newsletters and order forms for photographs.
The mother and the father will advise the other as soon as is practicable of any serious illness or injury suffered by E or F while in the care of that parent.

Property

The wife will pay to the husband, within three calendar months of the date of these orders, the sum of $42,700.
Each of the parties will do all things and execute all documents required to effect the transfer to the wife of the whole of the husband’s right title to and interest in the property situate at and known as G Street, Suburb H in the State of New South Wales.
Each of the parties is otherwise deemed and declared to be solely entitled to all items of property and superannuation currently in his and her possession or control.
The husband will pay to the Legal Aid Commission of New South Wales a sum of $2,750 from the funds which he receives from the wife pursuant to Order 15.
The wife will pay to the Legal Aid Commission of New South Wales the sum of $2,750 within three months of the date of these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2364 of 2011

Mr Everett

1^st Applicant

And

Ms B and Mr C Everett

2^nd Applicants

And

Ms Upton

Respondent

And

Independent Children’s Lawyer

Legal Aid NSW

REASONS FOR JUDGMENT

The proceedings

Mr Everett (“the father”) and Ms Upton (“the mother) are the parents of three children:
·D born in 2000 (15);
·E born in 2003 (12); and
·F born in 2006 (9).
These proceedings concern parenting orders and property settlement. The paternal grandparents, Mr C Everett and Ms B Everett, are the second applicants and seek orders which would enable them to spend time with the children.
The applicant father sought orders which may be summarised as follows:
1.The father and mother will have equal shared parental responsibility for the children in relation to education and schooling but that the mother otherwise have sole parental responsibility.
2.The children will live or spend time with each parent as agreed or in accordance with orders of the court.
3.E and F (“the children”) will spend time with the father and paternal grandparents each alternate Sunday from 12 noon until 3.00 pm for a period of six months from the date of orders.
3.1.Thereafter, that the children spend time with the father:
3.1.1.each alternate Sunday 12.00 noon until 3.00 pm for six months
3.1.2.thereafter each alternate Sunday from 9.00 am until 5.00 pm for six months
3.1.3.thereafter from 6.00 pm on Friday until 6.00 pm on Sunday
on each alternate weekend during school term time and for the first week of each school holiday period.
4.F’s time with the father will be supervised by the paternal grandparents or his partner Ms I for twelve months from the date of these orders.
5.“D’s ‘live with’ time with the father is permissive and at D’s sole and absolute discretion.”
The father was prepared to consent, without admissions, to an order to restrain him from being in a state of undress in the presence of the children, bathing with them or viewing pornography in their presence. He sought mutual

non-denigration orders and restraints upon involvement of the children in discussions concerning these proceedings. The father’s proposal contained provision for communication with the children and provision of information about educational and medical issues.
The paternal grandparents sought orders which may be summarised as follows:
1.The children will spend time with the paternal grandparents as agreed with the mother or in accordance with orders of the court.
2.The children will spend time with the paternal grandparents from 10.00 am until 3.00 pm on the first Sunday of each month.
3.The paternal grandparents “spend time in respect of D is permissive and not an order in relation to D”.
4.The paternal grandparents are at liberty to communicate with the children by telephone or internet at all reasonable times.
5.The mother will pass on to the children birthday cards and gifts from the paternal grandparents.
6.The mother will keep the paternal grandparents advised of her address and contact details and of the children’s school, sporting and

extra-curricular events.
7.The paternal grandparents and the mother are restrained from discussing these proceedings with the children or denigrating each other or family members.
The paternal grandparents sought those orders only in the event that the father is permitted no time with the children or that visits are confined to a contact centre.
The respondent mother sought orders to the following effect:
1.        The mother will have sole parental responsibility for the children.
2.        The children will live with the mother.
3.        The children will spend no time with the father.
4.In the event that the Court orders that the children spend time with the father, there will be professional supervisors present on each such occasion.
5.The paternal grandparents are at liberty to attend the children’s school concerts and weekend sporting events.

Background

The father was born in 1971 and is currently forty-four years of age. The mother was born in 1973 and is presently aged forty-one years of age. The parties began a relationship in approximately May 1997 and married in 1999. At the time of commencement of the relationship both parties were undertaking a Masters course at Macquarie University.
The mother was married previously to Mr J, from whom she separated on about 25 April 1997. The mother and Mr J have two children:
·Mr K born in 1993 (22); and
·Ms L born in 1996 (19).
Mr K and Ms L lived in the parties’ household from a time when they were aged approximately four years and one years respectively.
At the date of the marriage neither party possessed significant assets. They each owned a motor vehicle and had a bank liability of about $15,000. The mother also owned furniture and household effects. The parties commenced cohabitation in the mother’s rented home at Suburb M with Mr K and Ms L.
In February 1998 the father commenced a business in a rented room, within a medical centre, at N Street, Suburb O. The mother continued her studies and was registered as a medical professional in July 1999. She then began to work in the father’s business on a part-time basis. In July 2000 the parties moved the business to P Business Park. They relocated the business to premises at Q Street, Suburb O in April 2004.
In January 2003 the parties purchased a residential property at R Street, Suburb S for $330,000. They received a first homeowners grant of $7,000, a sum of $20,000 from the husband’s grandmother and borrowed $313,000 from Macquarie Bank. They also contributed joint savings to the purchase money.
The mother took maternity leave for approximately nine months between March and December 2000, owing to the birth of D in 2000. During this period she worked casually as a cleaner and courier in a business owned by her father, Mr T Upton (“Mr Upton”). The father maintained that he assisted the mother with this work.
In April 2004 the parties purchased the goodwill and equipment of an existing business located at Q Street, Suburb O for $150,000. They borrowed the purchase money from Medfin, apparently on the security of the Suburb S property. In September 2006 the mother received a gift of $8,000 from her grandfather, which she used to purchase a sewing machine and to discharge joint credit card debts.
The mother contended that Mr Upton loaned a sum of $20,000 to the parties in June 2007. Her evidence was corroborated by Mr Upton and he was not challenged on that contention in cross-examination.
In December 2007 the parties sold the Suburb S property for $370,000. The net sale proceeds amounted to $39,878, from which a sum of $20,000 was repaid to Mr Upton. Following the sale of the Suburb S property, the family lived in rented accommodation at U Town.
The mother and Mr Upton deposed that he loaned to the parties sums of $20,000 and $13,000 in September 2008. She maintained that these sums were used to pay arrears of rental in respect of the Suburb O premises and to discharge credit card debts.
In February 2009 the parties made arrangements to purchase a property at G Street, Suburb H, in which they would locate their practice. The mother maintained that, in order to obtain finance, they were required to discharge their credit card debts. She and Mr Upton deposed that he paid a total of approximately $40,773 to discharge these liabilities. The father claimed that he was unaware that Mr Upton had provided these funds but I accept that he did so. A copy of a bank statement annexed to Mr Upton’s affidavit showed withdrawals of two amounts approximately equal to $40,773 in February 2009.
The mother and Mr Upton deposed that he paid the deposit of $53,000 for the purchase of the Suburb O property in March 2009. A copy of a bank statement annexed to Mr Upton’s affidavit showed a withdrawal of $53,000 on 19 March 2009.
The purchase price of the Suburb O property was $583,000, of which a sum of $477,000 was borrowed from Investec. In his affidavit sworn 18 June 2012 the father deposed that Mr Upton advanced the sum of $53,000 by way of a gift. In his oral evidence, however, the father said in response to a question from the mother: “Your father lent us the money for the deposit and stamp duty when we bought the house where we practised.” Mr Upton deposed further that he provided a sum of approximately $20,000 to pay the stamp duty on this purchase.
On 15 June 2009 the parties separated and the father moved out of the former matrimonial home at U Town. They both continued to work in the practice at Suburb O.
The mother maintained that Ms L began to object to being left alone with the father in August 2009. She deposed that Ms L said to her: “You can’t leave me here with him. I want to come to work with you.”
The father began to live with his present partner, Ms I, in November 2009. She had become his patient in 2007. The father’s relationship with Ms I was the subject of one of several complaints in relation to his professional conduct which was investigated by the Health Care Complaints Commission (“the HCCC”). Ms I asserted that “there was no sexual relationship prior to my last appointment on 24 August 2009.”
In August 2009 the mother contacted Ms I’s estranged husband, Mr V. They began a relationship in October 2009 and separated after Christmas 2009. The mother became pregnant to Mr V but miscarried in December 2009.
On 11 September 2009 investigators from the HCCC entered the Suburb O practice with a search warrant. A patient of the father had lodged a letter of complaint concerning his alleged conduct toward her in July 2009. In September 2009 Mr V lodged a complaint with the HCCC in relation to the father’s alleged conduct toward Ms I while she was his patient.
In October 2009 the mother was contacted by staff at Blue Mountains Grammar School in relation to sexualised behaviour and “uncontrolled crying” on the part of Ms L. On 19 October 2009 the mother attended W Town Police Station with Ms L and reported that she may have been the victim of abuse. The mother made a number of complaints to the police about past behaviour on the part of the father. Inter alia, the police report indicated “she has always believed that [the father] has had boundary issues.”
In November 2009 the father commenced practice from a new location in Suburb O. On 21 November 2009 he moved with Ms I and her three children to a rented home at Suburb X. Ms I’s children are:
·Y born in 2002 (15)
·Z born in 2004 (10)
·AA born in 2009 (6).
Ms L alleged that on 20 November 2009, she was pushed to the ground in a bush area by a 14 year old boy of her acquaintance and forced to perform oral sex. She was interviewed by JIRT on 21 December 2009 and said that, additionally, this boy first tried to put his fingers into her vagina. The perpetrator admitted to his actions when interviewed on 12 January 2010.
Ms L had been the subject of inappropriate sexual attention on a prior occasion in 2007. When she was ten years old, a neighbour offered her $20 to have sex with him. It appeared that this neighbour had developed a form of infatuation with Ms L.
Prior to November 2010 the children spent overnight time with the father. At that point the mother decided to reduce this time to day periods only on Sundays. The children last saw the father at their end-of-year school concert on 26 November 2010.
On 30 December 2009 the mother and the children moved from U Town to Sydney. Currently they live in a five-bedroom rented house at Suburb BB. This home is located approximately fifteen minutes’ walk from the children’s school and is close to the mother’s business premises.
The father and Ms I maintained that D and E expressed a wish to live with them in October and November 2010. On 22 November 2010 the mother emailed the father with a suggestion that the children spend time with him from 10.00 am until 4.00 pm each Sunday. The father filed an application for residence on 3 August 2011.
In December 2010 the paternal grandparents requested that the children spend time with them during the upcoming Christmas period. The mother agreed to this request, subject to the grandparents providing a written undertaking that they would not show correspondence to the children or involve them in the adult dispute. The grandparents declined to sign the undertaking and the children did not see them at this time.
On 10 December 2010 the HCCC lodged a formal complaint with the relevant health professionals’ tribunal, which alleged both unsatisfactory professional conduct and professional misconduct on the part of the father. On 1 August 2011 the tribunal commenced an inquiry into these allegations. The father was legally represented during the course of this inquiry but elected not to participate in the hearing.
On 12 March 2011 the mother and Ms L attended Suburb O police station. A report was made to the police that Ms L had been sexually assaulted by the father. Ms L was interviewed by JIRT on 15 March 2011 and, on 5 April 2011, the father was charged with an aggravated indecent assault.
On 4 August 2011 the father relinquished his registration as a health professional and on 5 August 2011 the Tribunal made findings of unsatisfactory professional conduct and professional misconduct. The father blamed his former lawyers for his non-participation in the hearing.
On 12 August 2011 the Tribunal ordered that the father be disqualified from registration as a health professional for three years. Further orders were made which prohibited the father from providing any health and/or counselling service for three years.

On 6 March 2012 the father was convicted of aggravated indecent assault in the Local Court of New South Wales. The father caused subpoenas to be issued to compel D and E to give evidence at his trial. Fortunately, the children were not required to give evidence but they were removed from school and kept in the precincts of the court for a lengthy period. The father lodged an appeal, which was upheld by Craigie DCJ on 25 May 2013.
Sadly, Ms L has made several attempts at self-harm. In February 2011 she was taken to Suburb CC Hospital after having swallowed tablets which may have been cocaine and/or ecstasy. The hospital notes (Exhibit 24) recorded that Ms L took these pills after a breakup with her boyfriend during the previous week. The notes also recorded “… hates her step-father and hates her three half-siblings because they remind her of him”.
The mother deposed, and also told Dr DD, that Ms L spent two weeks as an inpatient in a psychiatric unit at EE Hospital in October 2011. It appears that Ms L, who was only fifteen years old, was an involuntary patient on this occasion.
On 9 September 2013 Ms L was taken to Suburb CC Hospital, after she put an electrical cord around her neck and stood on a bin in the garage of the family home. She telephoned a friend, who contacted ambulance and police officers. Ms L told hospital staff that she felt upset because her thoughts were of a friend who had suicided two years earlier.
On 5 December 2011 Ms I lodged a complaint with the HCCC in relation to the professional conduct of the mother, apparently on the basis of her relationship with Mr V. The HCCC dismissed Ms I’s complaint and she then on embarked on some form of appellate process. No action was ever taken against the mother in relation to this complaint.
Ms I’s complaint was supported by statements from the father’s brother and sister-in-law, Mr FF Everett and Ms GG Everett. For reasons which appear below, I place little or no weight on the evidence of these two witnesses.
In April 2011 the mother commenced a relationship with Mr HH. He is 49 years old and works as a senior manager for II Corp. He has two children of a previous relationship, JJ and KK, who are aged fifteen and twelve respectively. Mr HH met the children of the parties for the first time in September 2011.
The mother and Mr HH do not live together and have no plans to cohabit in the near future. His children spend five nights per fortnight with him and have stayed in his home with the mother, D, E and Ms L. The children of the parties and JJ and KK have spent time together regularly since May 2012.
On 26 April 2012 the paternal grandparents filed an Application in a Case, whereby they sought orders that the children spend time with them. On 21 May 2012 the Federal Circuit Court ordered that the paternal grandparents be joined as parties to these proceedings.
On 1 May 2012 the parties received a demand from Investec for the immediate repayment of a sum of $453,000. This demand indicated that the company was not prepared to extend the finance facility due to the findings of the Tribunal; the father’s voluntary deregistration and disqualification for three years and “the recent criminal conviction”.
By letter dated 14 May 2012 Investec made a demand for repayment of a sum of $452,995 within seven days. On 7 June 2012 a firm of solicitors served a Notice of Default pursuant to the mortgage to Investec.
Mr Upton assisted the wife to borrow sufficient funds to refinance the debt to Investec. On 9 October 2012 Investec confirmed that a fresh debt of $460,000 was secured on the title to the Suburb O property. During the course of these refinancing arrangements, the mother became the sole registered proprietor of the Suburb O property. She has continued to conduct her business from those premises.
On 2 July 2012 the Federal Circuit Court made interim orders which included provision for the mother to have sole parental responsibility; that the children live with her and spend time and communicate with the paternal grandparents. The children have since spent limited time with the paternal grandparents at various sporting fixtures.
On 7 November 2014 the mother’s then solicitors wrote to the father and requested his consent to her taking the children on a twelve-day South Pacific cruise between 17 January 2015 and 28 January 2015. The mother’s uncontradicted evidence was that she booked and paid for this cruise in January 2014, at a time when she fully expected that the proceedings would be finalised by January 2015. The ICL consented by letter of 20 November 2014 but the father refused to execute the proposed orders.
By letter to the mother’s solicitors dated 24 November 2014 the father wrote inter alia:
At no stage have I stated the proposed holiday was not in the best interests of the children. That was not the reason for my concerns at signing off on the proposed consent orders. In my email dated 13 November, I provided your client an opportunity to act in the best interests of the children by requesting confirmation of dates for contact.
If a response occurred within reasonable time, I, after receiving the letter from Ms Power, would not have had a further opportunity to review the proposed consent orders and this matter would likely have been concluded to the satisfaction of all parties. The failure of the proposed consent orders to date rests solely with your client.
The father thus blamed the mother for his own refusal to execute the proposed consent orders.
The father consented to the proposed orders, which would permit the children to accompany the mother on the cruise, only after she filed an application. Orders were ultimately made by consent on 7 January 2015.

Approach to these proceedings

In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1)). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in s 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (201) FLC 93-424, the High Court of Australia said:
8. Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
9. Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”
…
13. Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.…

The Evidence and Witnesses

The applicant father relied on the following affidavits:
1.        Mr Everett (the father) sworn on 5 March 2015
2.        Mr Everett (the father) sworn on 18 June 2012
3.        Mr Everett (the father) sworn on 2 August 2011
4.        Mr FF Everett (the father’s brother) sworn on 19 October 2014
5.        Ms GG Everett (the father’s sister-in-law) sworn on 19 October 2014
6.        Ms LL (the father’s friend) sworn on 19 October 2014
7.        Ms I (the father’s partner) sworn on 20 October 2014
8.Mr V (the former husband of Ms I) sworn on 20 October 2014
9.Ms MM (the father’s friend) sworn on 6 June 2015
10.Financial Statement of Mr Everett sworn on 16 April 2015
11.Financial Statement of Ms I sworn on 21 April 2015.
All of these witnesses were required for cross-examination by either or both of the ICL and the mother.
I refused to admit an affidavit and report of a psychologist, Mr NN. Without the leave of the Court the father provided copies of the two reports of the single expert, Dr BB, to Mr NN. There was no evidence of any written instructions to Mr NN, merely his summary in the introductory paragraphs of his report. It would appear that Mr NN was invited, at least, to provide a critique of the reports of Dr DD.
No application pursuant to Family Law Rules Rule 15.52 was made by the father until, perhaps, the first day of the trial and certainly there was no compliance with Rules 15.52(2) and 15.52(3). Mr NN referred in his report to “review of [Dr DD’s] unacceptable risk assessment”. Dr DD’s task, of course, was far more broadly based and included the issue of unacceptable risk as but one of his considerations.
Without interviewing Ms L or the mother, Mr NN purported to conclude that “the allegations of sexual assault by [Ms L] against [Mr Everett] relied upon by [Dr DD] in his risk assessment are inconsistent, improbable, unreliable and unreasonable. In my opinion they are of insufficient weight to be reasonably relied upon with regard to a risk assessment pertaining to [Mr Everett’s] future contact with his children”. In my view, Mr NN acted bravely in reaching this conclusion and expressing these opinions.
Without interviewing or assessing the mother, D, E, F or Ms L, Mr NN recommended that “it is in the best interests of the children that contact with their father recommence”. He went so far as to make specific recommendations for a graduated regime of time for the children with the father, which would increase to alternate weekends and half school holidays.
It was for these reasons, inter alia, that I rejected the evidence of Mr NN. There was no attempt by the father to comply with the Family Law Rules, nor to obtain the leave of the Court for provision of the reports of Dr DD to Mr NN. It was of concern that Mr NN expressed such firm views as to the proper outcome to these proceedings, in circumstances where he lacked any input from the mother and made no assessment of the children or Ms L.
I have referred above to the unreliability of the evidence of Mr FF Everett and Ms GG Everett. As noted, they each provided statements to the HCCC in support of Ms I’s complaint concerning the professional conduct of the mother. In cross-examination by the mother, they each agreed: “Yes, I did it to support [Mr Everett]”.
Disturbingly, Ms GG Everett initially denied that she had made a statement to the HCCC. She admitted that she did so only when confronted with a copy of her statement during cross-examination by the mother. In my view, it might reasonably be expected that a person who takes the serious step of impugning the professional conduct of another might recall having done so.
The affidavits of Mr FF Everett and Ms GG Everett contain several identical paragraphs. They both referred to the children asking the mother, in their presence, if they could see the father. They both deposed that the following conversation took place, in the children’s presence:
21.On one occasion, in response to these repeated questions, [Ms Upton] stated; “Never, if I can arrange it!”
22.[D] and [F] quickly asked [Ms Upton] “Why not?”
23.[Ms Upton] replied to this question by stating in front of all the children “Because your father couldn’t keep his cock in his pants and fucked that slut, that’s why!”
The mother challenged the veracity of this evidence during her cross-examination of Mr FF Everett, when she suggested that no such conversation took place. The mother was upset and crying at this point in the proceedings. Mr FF Everett said: “You did say [the comment set out above] … I’m sorry [Ms Upton], there was [this conversation] in front of the children.”
The mother similarly challenged the veracity of this evidence during her cross-examination of Ms GG Everett. In contrast to her husband, Ms GG Everett said: “I certainly do not recall you saying this”.
Similarly, both Mr FF Everett and Ms GG Everett deposed that the mother said to them, in the presence of the children: “While [Mr Everett] has been sleeping with [Ms I] I’ve been fucking her husband”. Mr FF Everett was not asked about this allegation in his affidavit by the mother. When questions were put by the mother to Ms GG Everett she said: “I don’t recall ‘whilst [Mr Everett] has been sleeping with [Ms I] I’ve been fucking her husband’”. In her affidavit, however, Ms GG Everett claimed that she was “shocked and concerned that not only would [Ms Upton] say something like this in the first place but say it right in front of the children”.
Although counsel for the ICL had finished her cross-examination of Ms GG Everett by the time the above evidence was given, I granted leave for her to put further questions. I was concerned, by this stage, as to the unsatisfactory evidence given by Mr and Ms Everett.
Ms GG Everett said to the ICL: “I did not write the whole of my affidavit. I don’t know who wrote this. Mr FF typed it and I signed it.” Mr FF Everett had earlier said in relation to the affidavit of his wife: “I have not read her affidavit. I have not made anything up. I think [Mr Everett] should see his children, he has been cleared of all charges”.
Obviously, it is a matter of concern that Mr and Ms Everett gave this unreliable, but potentially damaging, evidence in relation to the mother and that the father elected to rely on such material. They were prepared to level these cruel allegations at the mother, which would indicate a lack of child-focus on her part.
Ms LL, a former patient of the father, swore an affidavit in which she was critical of the mother and gave accounts of purported conversations in which she threatened, inter alia, “I am going to make sure he never sees his children again after what he has done to me”. In cross-examination by the mother Ms LL said that the father asked her “if I had anything to add to the case, what conversations I had with you [the mother]”. Ms LL’s lack of objectivity was clearly demonstrated by her agreement with the mother that “I think you put [Ms L] up to it” and “I think you dobbed [Mr Everett] into the HCCC.” I gained no assistance from the evidence of this witness.
Ms MM is a former neighbour of the parties. She swore an affidavit in which she described the father in glowing terms as a parent. In cross-examination by the mother, she said “[Mr Everett] asked me for a character reference”. There was nothing in her affidavit to indicate what knowledge, if any, she had of the various serious allegations and issues in these proceedings. Her evidence was of little assistance.
Mr V was an unimpressive witness. Throughout his evidence, he blamed the mother for his own actions and declined to accept responsibility for his behaviour. In cross-examination by the ICL, he admitted that certain material in his statement to the HCCC was “a lie”. In response to questions from the mother, Mr V said: “Yes, I am admitting that I lied to the HCCC”.
Mr V made these serious allegations as to the father’s professional conduct in his complaint to the HCCC:
41.…
I witnessed [Mr Everett] touching [Ms I] in a manner that I felt, from my own experience of [health professional] consultations, was not the normal manner in which someone would be adjusted. For example [Mr Everett] did not just touch the outside of [Ms I]’s breasts but he touched them all over. [Mr Everett] also put his hand low in her groin area, under her jeans, and adjusted [Ms I] from there. Before this session [Ms I] had not mentioned any particular physical problem that she had that I can imagine would require such touching. However, as [Ms I] seemed comfortable and appeared to trust [Mr Everett] I did not react.

In cross-examination by the ICL, Mr V conceded: “He did not touch her breasts all over – yes, that was a lie, no I did not see him touch her breasts at all. I wrote that he touched her low down in the groin area, under her jeans. I saw his hand on her upper hip area, it looked like under her belt – yes, “low in her groin area” was a lie.”
In his affidavit, Mr V sought to blame the mother for the fact that he provided false information to the HCCC. He deposed:
42.My actual recollection of events that were taken down by the investigation office was not in fact completely representative of what I actually now believe took place on the date of the appointment. Although I was witnessing normal …care, when I explained this to [Ms Upton], she said “He was probably getting off, feeling your wife up in front of you, he is sick make sure you put it in your complaint”. For this reason, some areas noted were exaggerated in context to reflect that something non-professional was happening when in fact it was not something now I would say was of any concern to me at the time. I now recall that I had actually seen all adjustments done in the past and I was not really concerned that these adjustments I witnessed were unprofessional. I had been told so much information by [Ms Upton] that [Mr Everett] was a sexual predator and I believe she had an agenda around my believing that to support her own case. This continual reinforcement from [Ms Upton] led me to use this as an opportunity to outline what I had been led to believe was happening with my wife.
In the course of cross-examination by the ICL, however, Mr V had to concede that he did not rely entirely upon information provided to him by the mother as the basis of his statement to the HCCC. He referred to Ms I’s purchase of an air ticket to Perth in August 2009 for the purpose of accompanying the father on a business trip. In cross-examination by the ICL, he said that he believed that he provided a copy of the tax invoice for this air ticket to the HCCC. He had to concede to the ICL that he, not the mother, made these observations.
Mr V saw fit to take out an Apprehended Violence Order against the father for the protection of his then infant daughter AA. Further, he sought a court order to prevent AA from being brought into contact with the father. He and Ms I consented to the discharge of that order on 12 August 2013.
In cross-examination by the ICL, Mr V said that Ms I “stopped my contact with [AA] and made allegations of a sexual nature”. In answer to a question from the mother, he said that he was obliged to commence litigation in order to see his daughter [AA]. He maintained that “my decision to give evidence in favour of [Mr Everett] has nothing to do with me seeing [AA].” Clearly Mr V has a vested interest in maintaining positive relations with Ms I and the father, in terms of his ongoing relationship with his daughter AA.
It is a matter of concern to me that the father elected to rely on the evidence of a witness who admitted to “lying to the HCCC”. As noted, I was unimpressed also with Mr V’s shifting of blame for his own actions to the mother and refusal to accept responsibility for his own behaviour.
Ms I presented as a devoted partner to the father and strongly aligned with his cause. She maintained “I prepared my affidavit myself and [Mr Everett] would help me with formatting”. I doubt the veracity of that statement, as passages in the affidavits of herself and the father were in exactly the same terms. For example, they both deposed that “it is essential for [the children’s] emotional and psychological wellbeing and growth and development that they have an opportunity to renew and develop their relationship” with the father. They both deposed that the father “would be happy to renew the closer relationship he once had with [Ms L and Mr K] but will leave it to them to initiate any contact in the future". I am of the view that Ms I did not prepare her affidavit independently of the father and that she chose to inform the Court otherwise.
The father presented as a self-justifying, self-focussed person who seized upon opportunities to blame others for his own actions. As noted, he blamed the mother and his previous lawyer when confronted with some uncomfortable realities of his own behaviour. There were several further examples of the father’s propensity to blame others for his own actions in the evidence.
One example was the father’s conduct when F was admitted to hospital in July 2010. The mother kept the father informed by text message (Exhibit 12) of F’s progress while she was in hospital. She expected the father to visit F at the hospital on the afternoon of 31 July 2010.
The mother deposed as follows concerning this incident:
198.On 31 July 2010, at about 3:14 pm, I received a text message from [Mr Everett] that stated “Due to a change in circumstances, I will not be attending the hospital this afternoon. I have also spoken to the hospital and have made separate arrangements to receive instructions from them.”
199.Despite our previous agreement for [Mr Everett] to care for [D] and [E] until the Wednesday (due to me being busy attending the hospital with [F]), [Mr Everett] returned [D] and [E] to me on Sunday, with minimal notice to me.
200.On 31 July 2010, at about 4:15 pm, I received a text message from [Mr Everett] “as per our previous agreement, contact will cease at 6 pm on Sunday 1 August at the agreed drop-off point”. The changeover location that [Mr Everett] was referring to was McDonalds at [Suburb OO]. Due to me being at the hospital in [Suburb PP], I organised a friend to be at hospital with [F] while I went to collect the boys (that was about a twenty-minute drive away). Then, I took the boys to a friend’s place. Arrangements were made for [D] and [E] to stay overnight at my friend’s home and they would be taken to school the next day. When I returned to the hospital, [Mr Everett], [Ms I] and the paternal grandparents were in [F’s] hospital room …”
In cross-examination, the father said that he did not visit the hospital that afternoon because he “had a migraine”. He conceded that there was no mention of a migraine in either his affidavit or the parties’ text messages (Exhibit 12). He said further: “I was being advised by a third party about what to say and not to say – it turns out that party had some pretty wacky ideas”. It would seem that the “third party” was one of the father’s previous legal advisors.
The father conceded that he told hospital staff that he “had grave concerns for [F’s] welfare”. He attempted to justify this statement in cross-examination by saying “as I was instructed to”. There were further examples of the father’s propensity to blame others for his own conduct, to which reference is made below in these reasons.
The mother gave her evidence in a measured and balanced manner. At times she became emotional, which is understandable as she was self-represented during a lengthy and difficult trial.
The mother’s father, Mr Upton, deposed inter alia that he advanced various sums to the parties during their marriage. He conceded that he “estimated” the figure of approximately $400,000, which he contended was the total amount advanced by him as at the date of separation.
Mr Upton further deposed that he attended Suburb QQ police station with Ms L in approximately January 2015, after she said to him “I need to go back and see the Police again”. The relevant COPS entry (Exhibit 9) indicated that Mr Upton and Ms L attended a police station on 27 August 2014. The notes read inter alia:
Victim … stated that she wanted to disclose that step father not only rubbed her vagina with his fingers but he had sex with her on each of those occasions by putting his penis in her vagina … The victim stated that incidents occurred from when she was 6 years old till about 12 years old.
The significance of Ms L’s most recent complaints to police is considered below in these reasons. As there indicated it seems to me that Ms L’s embellishment of her complaints of sexual abuse, after the father’s successful appeal to the District Court, adds to the unreliability of these allegations. It seems to me that, sadly, Ms L’s embellished complaints also indicate the seriousness of her emotional problems.
The ICL tendered six documents, four of which were objected to by the father and paternal grandparents. The judgment of Craigie DCJ and the transcript of the JIRT interview of Ms L were admitted by consent. The two judgments of the HCCC and the transcript of the father’s trial in the Local Court were admitted over the objection of the father and the paternal grandparents. I rejected the statements to police of the mother and her brother Mr FF Upton.
I admitted the HCCC judgments and the Local Court transcript because, at that stage of the trial, no order had been made pursuant to section 69ZT and the proceedings were governed by Division 12A of the Act. The father and the paternal grandparents made such an application only after these documents were admitted into evidence. At that point I made the following order by consent:
1.Pursuant to s69ZT(3) of the Family Law Act 1975 (Cth) the Court directs that the excluded parts of the Evidence Act 1995 (Cth) set out in ss69ZT(1) and (2) apply in respect of materials to be relied on to invite the Court to make a finding of unacceptable risk of harm to the children if they were to spend time with the father.
I rejected the mother’s statement to police because I already had a large volume of evidence from her, in the form of her affidavit of 497 paragraphs and 545 pages of annexures. I took the view that the mother accordingly had adequate opportunity to place before the Court any evidence which she considered relevant to the proceedings. I rejected the police statement of Mr FF Upton because he could have been called as a witness in the mother’s case and his evidence subject to proper testing by cross-examination.
Counsel for the father and the paternal grandparents objected to the admission into evidence of two reports prepared by the single expert, Dr DD. I admitted these reports, which I considered to be unexceptional in terms of the nature of evidence generally provided by single experts in proceedings of this kind.
I reject the submission that the first report of Dr DD is “predicated on a false factual assumption, namely the conviction…” In his first report Dr DD specifically contemplated a scenario in which the father appealed successfully against his conviction for sexual assault of Ms L. He wrote:
In the event that [Mr Everett’s] appeal is successful and the ultimate result is either that the charges are dropped or he is not convicted of the charges, it will be necessary for me to review these conclusions if the matter has not yet been heard in the Family Court. Clearly if that were to be the case, I would need to conduct a thorough review of the relevant material sufficient for me to address issues relevant to the allegations would amount at that point to an unacceptable risk.
I also note that I have not interviewed [Ms L], as she did not attend with her mother. I would probably need to interview her in order to form a view as to the impact upon her of a Not Guilty finding and in turn any impact on the children should orders be made that the father see them.”
Following the father’s successful appeal, Dr DD prepared his second report. He viewed the DVDs of Ms L’s two JIRT interviews and read a number of subpoenaed documents. He interviewed Ms L, the mother and the paternal grandparents.
In his second report Dr DD wrote:
Having been notified that the appeal had been upheld in the judgment of His Honour Judge Craigie on May 20 2013, I advised that I would need to conduct a thorough review of the material sufficient for me to address issues relevant to the allegations as to whether they amounted to an unacceptable risk. I also advised that in order to update the report in this manner, I would need to interview [Ms L], whom I had not interviewed before, as well as the mother and the paternal grandparents.
I reject the submission that the two reports of Dr DD “do not comply with Family Court Rules r15.63”. I assume that this submission was intended to refer to Family Law Rules Rule 15.63. In my assessment, there was clear compliance with the requirements of this Rule in respect of both of the reports. I was not entirely clear as to the nature of this complaint.
I reject the submission that the two reports of Dr DD “are non-compliant with section 79 of the Evidence Act”. I am comfortably satisfied that Dr DD “has specialised knowledge based on [his] training study or experience” and, accordingly, that he was properly able to express the opinions contained in his reports.
I reject the submission that “the second report is infected by apprehended bias”. Dr DD expressed certain opinions which could be construed as criticisms of the father, but unfavourable views do not equate to “apprehended bias”. Likewise, I reject the submission that the two reports should be excluded pursuant to section 135 of the Evidence Act 1995 (Cth). I assume that this submission infers that the reports were “unfairly prejudicial” to the father. “Unfair prejudice” is not generated necessarily by unfavourable assessments, opinions and recommendations.
I reject the submission that the reports “offend against the ultimate issue rule”. There was an enormous volume of evidence before me, in addition to the two reports of Dr DD. Counsel for the father and the paternal grandparents cross-examined Dr DD at considerable length and had the opportunity to make submissions in relation to the weight which should properly be attached to his evidence.

The Primary Considerations

At the commencement of the trial, both the mother and the ICL indicated that they did not seek a positive finding that the father sexually abused Ms L. I regard these concessions as proper and appropriate in light of the inconsistencies in Ms L’s various statements, the circumstances in which she made her complaints and the compelling material contained in the judgment of Craigie DCJ.
Craigie DCJ observed as follows, inter alia:
●…the questioning of [Ms L] by [Mr FF Upton] was “sympathetic” but “also to a rather unfortunate degree leading …”
●…related perceptions may have arisen later in the ripples spreading out from the impact of the marriage breakup that went beyond the appellant and his former wife in its impacts
●I am mindful of what on [Ms Upton’s] evidence was the not infrequent and quite open appearance of [Mr Everett] in the bathtub with the children, including [Ms L]. This was a phenomenon that not only went uncomplained of by his then wife but occasionally was something of which she took photographs.
●…the Court is simply unable to tell whether the signs of disturbance exhibited by [Ms L] were essentially brought about by the appellant’s perceived destruction of the marriage and the security that it gave his wife and children or whether there were other explanations …
Dr DD was asked to comment upon the significance of the serious allegations made by Ms L in August 2014 (Exhibit 9) to which reference has been made above in these Reasons. He said:
[Ms L] adds to the ambiguity in relation to her allegations. The problem is figuring out if there is a grain of truth in it and if there is, where fabrication starts. I thought the appeal judge was quite wise. I am inclined to the view that there is a nub of truth, I think probably being in the spa bath together at an inappropriate age, I think he probably exceeded the age-appropriate boundary but it is very difficult to know whether anything happened beyond mutual nudity.
In the JIRT interview of 15 March 2011 Ms L responded to certain questions in the following terms:
Q235Yeah. O.K. Do you remember meeting me last week?
A. At mum’s work?
Q236Yep.
A. Yeah.
Q237So do you remember when that was?
A. Tuesday. I don’t know.
Q238I’m not sure either. So when I spoke to you last week ---
A. Ah hmmm.
Q239---you didn’t tell me this this stuff. So what, what’s changed for you to talk to me today?
A. Um, I don’t know, for years everyone’s been trying to drag it out of me and I just got sick of it and I said, “Fine”’.
For all of these reasons I am satisfied, and I find, that there is no unacceptable risk that the children would be subjected to sexual abuse in the unsupervised care of the father. The issue of unacceptable risk thus arises in relation to the second of two “domains” which Dr DD identified in his first report.
Dr DD opined in the 2012 report:
The materials available to me indicate that [Mr Everett] presents an unacceptable risk to children and young people in two separate but overlapping domains. The first is that there is a risk of sexual misconduct with females of an age ending from early to middle primary school age group and beyond. The second is that he has little or no notion of conventionally accepted personal boundaries, and in my view it is likely that this traverses both genders, although the behaviours themselves may not be intrinsically sexual.
In his oral evidence, Dr DD said: “Probably the clearest risk is boundary problems, I am most concerned about this. I would not put the risk of sexual misconduct particularly high.” Dr DD described the likely evolution of difficulties for the children arising from the “boundaries issue”. He said:
The way it often happens with older children is that they start to talk about children having intimate relationships in an intrusive way and talk about their own experience. They make inappropriate comments about friends. It is as if the parent and children are sharing these activities, a false equalisation and normalisation of it to some extent.
Dr DD continued: “The children have already engaged in inappropriate sexual behaviour with other children, so it falls on fertile ground and they have an older sister who has engaged in precocious sexual behaviour. So there is a risk.” Dr DD was referring to conduct on the part of the children of Ms I and E and F. Ms I said in her oral evidence that she “observed concerning sexualised behaviour by [Y]” in 2010. She said also that she observed that “[E] had his penis out trying to get [F] to do oral sex, [Y] was standing next to him.”
I do not consider it necessary, for present purposes, to delve any further into the sexualised behaviour which occurred in the household of the father and Ms I. There could be any number of reasons for this behaviour which have no relevance to the issues before me.
In her written submissions the ICL pointed to the following four matters which were said to demonstrate that the father lacks appropriate personal boundaries:
●the father’s alleged conduct towards patients at his business
●the father’s relationship with Ms I
●the father’s alleged frequent nudity and bathing practices with the children
●the father’s alleged conduct toward his cousin Ms RR.
I do not adopt the findings of the HCCC, as I was urged to do by the ICL. I decline to do so in circumstances where the Tribunal replied in part upon material submitted by Mr V, who conceded during these proceedings that he “lied” in his statement. Further, I am conscious that none of the material placed before the Tribunal was tested by cross-examination. I appreciate that the non-testing of material before the Tribunal was as a result of a choice made by the father, but the fact remains that its reliability must be open to some question.
The father blamed the mother for the instigation of those disciplinary proceedings. He said: “From my perspective it was definitely a witch-hunt”. He conceded, however, that he knew of no direct connection between “Patient A” and the mother. The complaints of “Patient A” were that:
1.On or about August 2007, during a treatment session the practitioner engaged in inappropriate sexual conduct with Patient A in that he:
a.kissed Patient A;
b.rubbed his body against Patient A;
c.put his hands on Patient A’s breasts;
d.exposed his penis to Patient A; and
e.caused Patient A to touch his penis.

Ownership		Description	Wife value ($)	Husband value ($)
ASSETS
1.	J	G Street, Suburb H	890,000	890,000
2.	W	ANZ Bank Account (Account Number …)	2,904
3.	W	ANZ Bank Account (Account Number)	102
4.	H	Commonwealth Bank Joint Savings Account …	13	2.12
5.	W	Minivan motor vehicle (registration number …)	11,500	15,750
6.	H	Japanese motor vehicle (registration number …)	8,200	0
7.	H/D F	4WD motor vehicle (registration number…)	30,000	21,000
8.	H/D F	Motorcycle (Registration …)	8,000	5,500
9.	H/D F	Box Trailer (Registration …)	Not known	400
10.	W	VV Family Health Professionals	15,000	120,000
11.	J	Everett Family Enterprises	Not known	0
12	H	Household contents	3,000
13.	W	Household contents	5,000	3,000
14.	H + DF	Personal property	2,500	2,500
Total	$976,219.00	$1,058,152.10

Ownership		Description	Wife value ($)	Husband value ($)
LIABILITIES
15.	W	Investec Professional Finance Pty Ltd (Adelaide Bank) …	456,943	Not known
16.	W	Investec Professional Finance Pty Ltd …	36,096
17.	J	Loan to Esanda	Nil
18.	W	Money owed to Mr T Upton	E140,000
19.	W	Money owed to Mr T Upton for legal fees and ongoing living expenses	E152,400
20.	W	Money owed to Mr HH	E4,000
21.	W	Money owed to Australian Taxation Office	E$8,219
22.	W	ANZ Credit Card	14,363
23.	H	Westpac Ignite Credit Card	Nil	0
24.	H	Westpac Car Finance	Nil	0
25	J	Mobile phone liability	Nil	0
26	J	Personal/business liabilities – clinic phones, workers compensation, Medfin equipment	Not known	26,168
27.	H	Everett Family Enterprises	Not known	0
28.	H	Go Master Card	Not known	2,546.37
29.	H	Money owed to Mr C and Ms B Everett	Not known	98,436.70
30.	H	Money owed for Family Court Legal fees	Not known	32,873.50
31.	H	HCCC – Costs Order	Not known	34,008.91
32.	H/ DF	Personal Loan Commonwealth Bank	7,240	6,682,42
33.	H/ DF	MasterCard Commonwealth Bank	3,911	3,495.49
34.	H/ DF	Overdraft Commonwealth Bank	Unknown	493.04
Total		$823,172.00	$204,704.43

SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife / value	Husband value
35.	W	MLC MasterKey Personal super	7,203
36.	H	MLC MasterKey Personal super	8,285	8,285.38
37.	H/DF	MLC Superannuation	8,290	8,290.94
Total		$23,778.00	$16,576.32

I will exclude items 3 and 4 for convenience, as these bank accounts have minimal credit balances. I will exclude items 7 and 8, which are motor vehicles owned by Ms I according to her Financial Statement sworn on 21 April 2015. I will exclude item 9, as there was no evidence as to the existence or value of any box trailer. I will exclude items 10 and 11, being “VV Family Health Professionals” and “Everett Family Enterprises”. There was no evidence as to the value of either of these entities.
I will exclude the Japanese motor vehicle (item 6), which appears to have been sold by the husband since separation. There was no evidence as to the sale price, nor the fate of this money other than the husband’s uncorroborated statement that he discharged a joint credit card debt from this source.
The only evidence as to the value of the wife’s minivan motor vehicle was her Admission against Interest in her Financial Statement where she ascribed a value of $11,500. I will include the minivan at that value in the list of assets. On the same basis, I will include the wife’s household contents and the husband’s personal property at values of $5,000 and $2,500 respectively.
According to her Financial Statement, Ms I is the owner of the household contents in the premises which she occupies with the husband. I cannot include these items as an asset of the husband but I am conscious that he removed various chattels from the former matrimonial home after the separation. I will take that matter into account pursuant to section 75(2)(o).

Superannuation

There seemed to be no dispute that the wife has an MLC Superannuation benefit with a value of $7,217, as she deposed in her Financial Statement. There was no information in the husband’s Financial Statement as to his superannuation but the Joint Balance Sheet included two MLC funds of $8,285 and $8,290. Ms I’s Financial Statement disclosed a “One Path” fund in the sum of $8,431.92. Accordingly I will include the two MLC funds of $8,285 and $8,290 as superannuation benefits of the husband.

Liabilities

As noted, I had no assistance with the identification and quantification of the parties’ liabilities by way of submission. Clearly, however, the property G Street, Suburb H is encumbered by a mortgage and I will accept the wife’s pay-out figure of $456,943.
It seems to me to be highly likely that several of the purported liabilities are post-separation debts, which should be excluded from the balance sheet. I will exclude the following purported liabilities:

Assets	Ownership	Description	($)
16	W	Investec Professional Finance	36,096
21	W	Money owed to Australian Taxation Office	8,219
22	W	ANZ credit card	14,363
31	H	HCCC – Costs Order	34,008
32	H	Personal Loan Commonwealth Bank	6,682
34	H	Overdraft Commonwealth Bank	493

I will exclude also the husband’s Mastercard, which has a nil balance.

There was no evidence that the wife owes $4,000 to Mr HH, nor of the terms and conditions of any such loan. Similarly, there was no such evidence in relation to the alleged loan to the husband by the paternal grandparents of $98,436.70. I know nothing of a purported loan of $32,873.50 to the husband, from an unknown person or entity, for “Family Court legal fees”. I will not include these alleged liabilities in the balance sheet.
I did not understand the meaning of item 26, being a purported joint debt of $26,168 for “personal/business liabilities – clinic phones, workers compensation, Medfin equipment”. I will not include this item in the list of liabilities.
The evidence of Mr Upton, in my view, fell short of establishing that the parties owe him a sum of $400,000. In cross-examination he conceded that this figure in his affidavit was “an estimate”. It is clear that he provided considerable financial assistance to the parties during the marriage but that matter is relevant to the assessment of the parties’ respective contributions.
Mr Upton obviously has provided substantial financial assistance to the wife after the separation. I do not accept that there is any legal requirement upon the wife to repay Mr Upton at the present time. I doubt that he would force her to sell the Suburb O property to discharge this alleged debt. I am more inclined to take the view that the wife and Mr Upton will negotiate their ongoing financial arrangements with the passage of time.
Accordingly, the only purported liability which I will include in the balance sheet is the mortgage to Investec Professional Finance Pty Ltd of $456,943. There was no suggestion that either party holds any financial resource.
I thus find the assets, superannuation and liabilities of the parties to be as follows:

Assets	Ownership	Description	($)
1	W	G Street, Suburb H	890,000
2	W	Minivan motor vehicle	11,500
3	W	Household contents	5,000
4	H	Personal property	2,500
$909,000
Superannuation
5	H	MLC Super	8,290
6	H	MLC MasterKey	8,285
7	W	MLC MasterKey	7,203
$23,778
Liabilities
8	W	Investec Professional Finance Pty Ltd	$456,943

The designations “H” and “W” in the above table represent findings that assets and superannuation are held by the husband and wife respectively. Similarly, the Investec Professional Finance Pty Ltd debt is a liability held by the wife.

Contributions

Neither party owned assets of any significant value at the date of the marriage. During their cohabitation they both engaged in paid employment. The wife worked part-time outside the home on account of her role of primary carer and homemaker.
It may be that the husband devoted excessive time to his sporting pursuits during the marriage. The evidence does not enable me to make any reliable finding on that issue. If he did do so, however, a countervailing consideration is that the wife’s two children from her first marriage lived in the parties’ household from a very young age. It is inevitable, in those circumstances that, that the husband made contributions to their financial support.
In my view, the wife made substantial post-separation contributions. For some six years she has met all outgoings in respect of the Suburb O property, with no assistance from the husband. She has been solely responsible for the financial support of the children, with the husband currently paying child support equivalent to $1 per week. The wife has been solely responsible for the care of the parties’ three children since late 2010, that being the point when they ceased spending time with the husband.
After the separation the wife’s father made substantial financial contributions. He assisted with the arrangements which enabled the wife to retain the Suburb O property. If he had not done so, it is unlikely that this property would presently exist as a matrimonial asset. Mr Upton’s post-separation financial contributions have no doubt been of considerable assistance to the wife in terms of the day-to-day support of the children.
On behalf of the husband it was contended that it was the partnership Upton and Everett, and not the wife, which serviced the debt to Investec. It was suggested further that the wife “has had the exclusive use of a partnership asset for her own benefit since the separation.” The husband also maintained that, from 2009 until 2011, he “was locked out of the business premises and was prevented, through unilateral and unlawful action, from accessing the business premises.” On behalf of the husband it was submitted that he should be given credit for “refraining from pursuing any remedy through the Supreme Court in respect of the joint assets of the parties.”
The written submissions on behalf of the husband went into considerable detail concerning the law of partnership in New South Wales. I will determine the issue of alteration of property interests pursuant to Part VIII of the Family Law Act. I am not dealing with a partnership dispute.
I reject the suggestion that the wife “locked the husband out of the business premises.” I accept her evidence that “he started a clinic around the corner” in competition with the practice at the Suburb O premises. In any event, the husband relocated to Suburb X in November 2009 and showed no interest in the business premises.
In my view, it is an artifice to suggest that the partnership serviced the mortgage to Investec until 2012. The reality is that the husband played no role whatsoever in the generation of the fees at the Suburb O business. He injected no funds into the cashflow of that business. I am satisfied that the wife has met all outgoings in respect of the Suburb O property for almost the entirety of the period of separation.
I do not accept the submission that a factor to be taken into account in favour of the husband is that he refrained from commencing proceedings against the wife in the Supreme Court of New South Wales. It should be borne in mind that he was making no contribution to the outgoings on the Suburb O property, nor to the financial support of the children for most of the separation period.
In my view, an inference can be drawn that the husband accrued the whole of his superannuation benefits during the marriage. For practical purposes he did not engage in paid employment after the separation. The wife on the other hand, has practised and generated income continuously since the breakdown of the relationship.
I am satisfied, and I find, that the contribution of the parties were approximately equal as at the date of separation. They adopted complementary roles and raised their three children together. The wife’s two children of her first marriage lived in the parties’ household and must have derived financial support from the husband.
I am satisfied that the wife, and Mr Upton on her behalf, made substantial contributions from the date of separation until the time of trial. As noted, it is likely that the Suburb O property would have ceased to be a matrimonial asset without the intervention of Mr Upton. It appears that the husband accrued the whole of his superannuation benefits during the marriage, whereas it is highly likely that the wife continued to make contributions to her fund after separation. I assess, and I find, that contributions should be 72 per cent to the wife and 28 per cent to the husband as at the date of trial.

Section 75(2) factors

The husband and the wife are aged respectively forty-four and forty-one years and they are each in good health. They both have the capacity to engage in gainful employment, with the husband expressing confidence that he will soon re-enter the workforce.
The wife has the full-time care of the parties’ three children, who are aged fifteen, twelve and nine years. They will spend very limited time in the care of the husband pursuant to the parenting orders which I will make to finalise these proceedings. I cannot predict what future assistance the wife will receive by way of child support from the husband.
The wife is in a relationship with Mr HH but I accept that they do not intend to live together in the near future. It seems to be case that he provides financial assistance to the wife and the children from time to time.
The husband cohabits with Ms I, who is in receipt of a pension from the Country WW arising from the death of the father of her three children. According to her Financial Statement, she receives US$2,002 per month from this source.
As noted, the husband took various chattels from the former matrimonial home after the separation and he also sold the Japanese motor vehicle. I will take these matters into account pursuant to section 75(2)(o).
Neither party has a substantial superannuation benefit. These funds will be inaccessible to them for a very considerable period in any event.
The section 75(2) factors obviously favour the wife, due principally to her ongoing responsibility to care for the three children of the parties. I am satisfied, and I find, that there should be an adjustment of 15 per cent of the value of the net pool of assets and superannuation in favour of the wife.

Conclusion as to alteration of property interests

I thus find that the net pool of assets and superannuation should be divided in the ratio of 87 per cent to the wife and 13 per cent to the husband. The net pool has a value of $475,835, of which 87 per cent and 13 per cent equate to $413,976 and $61,859 respectively.
The wife will retain the following assets and superannuation:

Assets	Description	($)
1	G Street, Suburb H	890,000
2	Minivan motor vehicle	11,500
3	MLC Masterkey Superannuation	7,203
4	Household contents	5,000
$913,703

and she will continue to be responsible for the Investec mortgage debt of $456,943. She will thus hold net assets and superannuation to the value of $456,760, which exceeds her entitlement by $42,784.

The husband will retain the following assets and superannuation:

Assets	Description	($)
1	MLC Super	8,290
2	MLC Masterkey	8,285
3	Personal property	2,500
$19,075

He thus requires payment of $42,784 from the wife to constitute his entitlement which I will round off to $42,700.

I will allow a period of three months for the wife to pay that amount to the husband. She will thus have an opportunity to explore a mortgage refinance and other commercial and non-commercial options to obtain the necessary funds.
This outcome extends to the wife an opportunity to retain the business premises and continue in her practice without interruption. The husband is currently paying a minimal amount of child support and that responsibility falls almost entirely to the wife. I am satisfied that this outcome is just and equitable in all of the circumstances.
The ICL sought a payment of $2,750 from each of the parties on account of her costs. I see no reason why the husband should not pay this amount from the funds which he will receive from the wife pursuant to my orders. I will allow the wife a period of three months to pay her contribution to the costs of the ICL.

I certify that the preceding two hundred and thirty-four (234) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 26 August 2015.

Associate:

Date: 26 August 2015

[2015] FamCA 704

26 August 2015

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Equity & Trusts

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