FERREDAY & LAYH - [2018] FamCA 646

FAMILY COURT OF AUSTRALIA

FERREDAY & LAYH

[2018] FamCA 646

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child – Parenting considerations – Meaningful relationship – Allegations of sexual abuse unable to be substantiated by evidence – Where each party seeks sole parental responsibility for the child – orders least likely to lead to further litigation.

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Whether it is just and equitable to make an order altering the interests of parties to property – factors to consider under section 75(2) of the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3)

Bevan & Bevan [2013] FamCAFC 116
Clauson & Clauson (1995) FLC 92-595
Hickey and Hickey & A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
M and M (1988) 166 CLR 69
Mezzacappa & Mezzacappa (1987) FLC 91-853
R v R (Children’s Wishes) (2002) FLC 93-108
Stanford & Stanford (2012) FLC 93-518
Vasser & Taylor-Black (2007) FLC 93-329
Weir & Weir (1993) FLC 92-338

APPLICANT:

Mr Ferreday

RESPONDENT:

Ms Layh

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

122

2015

DATE DELIVERED:

24 August 2018

PLACE DELIVERED:

Darwin

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

25, 26, 27, 28 and 29 June 2018 and 3, 19 and 20 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Mr Childs

SOLICITOR FOR THE RESPONDENT:

E Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

Parenting

That all previous parenting orders be discharged.
That the wife have sole parental responsibility for X born … 2008 (“the child”).
That the child live with the wife and spend time with the husband each week from 10 am Sunday until the commencement of school Wednesday (or 10 am if a non-school day).
That each year the child spends time with the wife on Mother’s Day from 9 am until 5 pm and with the husband on Father’s Day from 9 am until 5 pm.
That each year, if the child is not already in the wife’s care on Country B New Year’s Eve, the child is to spend time with the wife for a period of 48 hours commencing from 12 noon on Country B New Year’s Eve.
That each year, if the child is not already in the husband’s care on Christmas Eve, the child is to spend time with the husband for a period of 48 hours commencing from 12 noon on Christmas Eve.
Any handover not occurring at the child’s school is to occur at the Coles supermarket at C Town or such other place as the parties may agree.
Each party is restrained and an injunction granted restraining each of them:
(a)From participating in school activities or attending at the child’s school on those days that the child is in the other parent’s care save as to school concerts, parent/teacher interviews, graduation ceremonies or sports days;
(b)From discussing these proceedings or the contents of any documents filed in the proceedings with or in the presence or hearing of the child or permitting any other person to do so.
That the husband is restrained and an injunction is granted restraining him:-
(a)From arranging or facilitating the attendance of the child upon Dr D or any mental health care provider, psychologist, psychiatrist, social worker, counsellor, therapist or other similar health practitioner without the prior written consent of the wife;
(b)From arranging or facilitating the attendance of the child upon any general medical practitioner or general medical practice without the prior written consent of the wife.
That each party do inform the other forthwith of any medical emergency or medical event involving the child with full details provided as to the treating medical practitioner and treatment provided to the child.
The parties do:-
(a)facilitate the child communicating with the other parent by telephone at any time that the child reasonably requests to do so;
(b)keep the other party informed by email or text message as to all serious medical issues concerning the said child and any serious illnesses as may be suffered by the child;
(c)forthwith advise the other party by text message in the event of any illness or accident suffered by the said child that requires hospitalisation or other medical treatment and permit the other parent to attend at any hospital or other facility to which the child has been admitted or treated;
(d)be at liberty to obtain from any school at which the said child attends from time to time copies of all school newsletters, school reports, photographs and any other information, which parents are ordinarily entitled to obtain at each parents’ sole expense in all things.
That the child be permitted to travel overseas with each of the parents as follows:-
(a)In 2019 and each alternate year thereafter the child be permitted to travel overseas with her mother for one (1) period of four (4) weeks;
(b)In 2020 and each alternate year thereafter the child be permitted to travel overseas with her father for one (1) period of four (4) weeks.
It is a condition of each parties travel overseas with the child that:-
(a)The travelling party provide the other with no less than sixty (60) days prior notice of the intended departure date;
(b)That no less than thirty (30) days prior to his or her departure date the travelling party provide the other with a full itinerary;
(c)The non-travelling parent is restrained from accompanying the travelling parent and the child or from seeking to spend time with the child during the travel period without first obtaining the written consent of the travelling parent not less than thirty (30) days prior;
(d)That during any such travel the parties facilitate the child communicating with the other party by email, text message or telephone on at least one (1) occasion per week.
That the parties do all things necessary and execute all such documents as may be required to renew the child’s passport from time to time.
That until the child shall reach the age of fourteen (14) years whereupon the child’s passport will remain in the possession of the mother, the passport shall be deposited at the Adelaide Registry of the Family Court of Australia to be released to the travelling party at least seven (7) days prior to the proposed departure date and on the travelling party depositing at the Adelaide Registry of the Family Court of Australia a surety in the sum of FIVE THOUSAND DOLLARS ($5,000).
That the surety described shall be returned to the travelling party on return of the child’s passport to the Adelaide Registry of the Family Court of Australia and in any event, by no later than seven (7) days after the child’s return to the Commonwealth of Australia.
That the appointment of the Independent Children’s Lawyer be discharged.

Property

That in full and final settlement of all claims that either party may have against the other for property settlement pursuant to the provisions of the Family Law Act 1975 (Cth) (as amended) (“the Act”):-
(a)That on or before forty five (45) days from the date of this order the husband do pay to the E Centre on behalf of the wife the sum of TWO HUNDRED AND SEVENTY THREE THOUSAND TWO HUNDRED AND THIRTEEN DOLLARS ($273,213) (“the settlement sum”).
(b)That contemporaneously with the payment of the settlement sum the wife transfer her estate, interest and title situate at F Street, C Town described in Certificate of Title Volume … Folio … (“the F Street property”).
That within thirty (30) days of the date of this order the husband transfer to the wife at her expense the motor vehicle registration number.
Subject to the payment of the said settlement sum the husband shall retain free from any claim by the wife the following:-
(a)All money standing to his credit in any bank account, credit union or financial institution;
(b) Any personalty or realty in his possession and control;
(c) His superannuation entitlements;
(d)His interest in G Pty Ltd (ACN …), H Pty Ltd (ACN …) and J Pty Ltd.
(e)The husband’s interest in 1 and 2 K Street, L Town
That the wife retain free from any claim by the husband the following:-
(a)All money standing to her credit in any bank account, credit union or financial institution;
(b) Any personalty or realty in her possession and control;
(c) Her superannuation entitlements.
That pending payment of the settlement sum the husband is restrained and an injunction is granted restraining him in his personal capacity and his capacity as director, shareholder, trustee or appointor or such other capacity in which he may exercise control over assets the subject of these proceedings, in particular H Pty Ltd ACN …; G Pty Ltd ACN …; J Pty Ltd ACN …; H Trust; and G Trust, or from disposing, selling, transfer, encumbering or otherwise dealing with any of the following properties:-
(a)Real property at K Street, L Town, SA (Lot 1 - C/T …);
(b)Real property at K Street, L Town, SA (Lot 2 – C/T …);
(c)Real property at F Street, C Town (C/T …);
(d)Real property at M Street, C Town (C/T …).
That should the husband default on the payment of the settlement sum or any part thereof and should the period of default be longer than fourteen (14) days the husband and wife will do all things and sign all such necessary documents to effect the sale of the property situate at F Street, C Town by public auction or private treaty as follows:-
(a)With such real estate agent as is agreed between the parties and failing agreement as may be nominated by the wife;
(b)That the list price of the F Street property shall be such amount as agreed between the parties and failing agreement as may be nominated by the real estate agent appointed to effect the sale;
(c)That the parties are to cooperate in every way with the real estate agent in relation to the marketing of the F Street property for sale including making the key readily available, allowing inspection of the F Street property at all times reasonably requested by the agent and ensuring that the F Street property is clean, neat and in good order at the time of inspection by any prospective buyer.
(d)That the proceeds of sale of the F Street property shall be paid in the following manner and priority:-
(i)To discharge mortgage number … to the ANZ Bank;
(ii)Any outstanding rates, taxes, levies owing to the property;
(iii)Payment of the agent’s commission and other costs of sale;
(iv)Payment of any legal costs relating to the sale;
(v)The balance to the wife PROVIDED that if the sum is greater than the amount of the settlement sum due and owing to the wife including default for penalty interest pursuant to the Family Law Regulations 2004 (Cth) THEN those excess funds shall be paid to the husband.
In the event that following the sale of the F Street property the proceeds of sale (if any) payable to the wife is insufficient to discharge the settlement sum together with accrued default interest or such lesser amount as may be outstanding THEN the parties will do all such acts and things and sign all such documents as may be necessary to effect the sale of the properties at Lot 1 and 2, K Street and M Street, C Town with the net proceeds of sale after the payment out of the costs of sale and any mortgage liability remaining shall be distributed to the wife for such amount as remains outstanding pursuant to these orders and the balance to the husband.
The husband will indemnify the wife and keep her indemnified in respect of any liability arising from the continued operation of H Pty Ltd, G Pty Ltd, J, H Trust and G Trust.
Liberty to apply as to consequential orders.

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 Ferreday & Layh 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 ADELAIDE

FILE NUMBER: ADC 122 of 2015

Mr Ferreday

Applicant

And

Ms Layh

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings between Mr Ferreday (“the husband”) and Ms Layh (“the wife”) relate to property settlement and the future parenting arrangements for X born in 2008 (“the child”).
The proceedings were commenced by the husband’s Initiating Application filed 16 January 2015 seeking orders with respect to the future parenting arrangements for the child.
The wife’s Response filed 7 April 2015 sought orders with respect to the child and to settlement of the parties’ interests in property.
The husband’s unwavering position throughout the course of these proceedings is that the child has been subject to sexual abuse perpetrated by the wife’s son the child Mr Y (“Mr Y”). The husband asks the court to make a declaration that the child has been abused and characterises the orders he seeks as necessary to protect the child from risk.
The husband asserts that his primary concern is the protection of the child from abuse and that matters relating to settlement of property should not be before the court.
The wife maintains her position that the child has not been subject to any form of abuse. She has no concerns for the safety of the child in the company of Mr Y.
She seeks orders to vary the present handover and time-spending arrangements for the child. Pursuant to a consent order made by Judge Kelly on 14 April 2015 the child spends equal time with the parties, however there are 10 handovers each fortnight.
The current time spending schedule pursuant to the 14 April 2015 orders is as follows:
a)Week one – the child spends four days with the wife and three days with the husband:-

Monday

Husband

10 am Sunday until commencement of school Tuesday

Tuesday

Wife

End of school Tuesday until start of school Friday

Wednesday

Wife

Thursday

Wife

Friday

Husband

End of school Friday until 10 am Saturday

Saturday

Wife

10 am Saturday until 10 am Sunday

Sunday

Husband

10 am Sunday until start of school Monday

b)Week two – the child spends four days with the husband and three days with the wife:-

Monday

Wife

End of school Monday until start of school Tuesday

Tuesday

Husband

End of school Tuesday until start of school Thursday

Wednesday

Husband

Thursday

Wife

End of school Thursday until start of school Friday

Friday

Husband

End of school Friday until 10 am Saturday

Saturday

Wife

10 am Saturday until 10 am Sunday

Sunday

Husband

10 am Sunday until start of school Tuesday

The wife finds the handover routine to be “demanding, intensive and stressful.” She is concerned that the number of handovers will become difficult for the child as she grows older.
The wife proposes an alteration to the time spending routine where the number of handovers would be significantly reduced. It is her position that the child should spend four days per fortnight with her and three nights per fortnight with the husband.
The husband’s position is that the present time spending schedule is not too onerous for the child. He considers that the child suffers if she spends a period of longer than three consecutive days in the wife’s care. He says that the present arrangement allows him to monitor the child for signs of sexual abuse.

The husband’s proposed orders

By Further Amended Initiating Application filed 7 May 2018 the husband seeks orders with respect to the child. He does not seek or particularise any orders with respect to property settlement. On the final day of hearing he handed up an amended copy of the parenting orders he now seeks. Those orders can be broadly summarised as:-
a)Sole parental responsibility for the child in particular with “regard for personal and sexual PROTECTION and safety as well as life and developmental decisions relating to her personal development and dual Australian and Country B identity”, and in the event of his death, leave of the court to transfer sole parental responsibility for the “protection functions” to his brother.
b)That the husband may monitor, contact, collect or remove the child from situations with “indications of potential Abuse of [the child] with each such action subject to Judicial Review.”
c)That the husband may provide “caring support” to the child such as arranging therapy or other “direct actions to assist Mental Health CHILD PROTECTION”.
d)That the child does not spend more than three consecutive days away from the husband “until [the child’s] capability beyond this time is confirmed medically and psychologically to [the husband]” and that the existing pattern of time spending continue.
e)That the wife may not remove the child from the State of South Australia without “a monitored schedule of conditions signed off by [the husband].”
f)That the wife may not take the child overseas except “at the arrangement and security of [the husband] and available to [the wife] at reasobale [sic] notification to travel conjointly with [the child] and [the husband] with him providing airline tickets for this.”
g)The implementation of a “protective protocol” prohibiting the child from being alone with Mr Y and incorporating a regime of “personal respect” and appreciation of the child. In particular:-
i)All SEXUAL INTERFERENCE with [the child’s] development is to cease.
ii)PERSONAL RESPECT: Over intimate, over-controlling, grooming and invasive imposition to dominate [the child] and obtain inappropriate compliance is to cease.
h)A declaration that the child has been subjected to sexual abuse by both the wife and Mr Y.
The husband did not seek any orders with respect to property. The husband’s Financial Statement filed 23 April 2018 contains additional information at Part O wherein he asserts his position with respect to any proposed settlement or division of property:
… I regret that the financial requirements function as distractions and mis-direction from matters of Abuse yet I am complying to the absolute full extent possible considering the 6 year state of crisis with my Daughter, the degree of my own age and infirmity as well as disabilities in being a [recipient of a … pension] still working part time.
Thank you, [the husband] : ) ,’ ) ; ) ,’ )
p.s In addition to this … I am not seeking financial orders and none are in my initiiating application. Accordingly there ought be no financial issues before the Court for determination at this stage.

The wife’s proposed orders

By Amended Response filed 8 June 2018 the wife opposes the orders sought by the husband. In summary, she seeks:-
a)Sole parental responsibility for the child.
b)That the child live with her and spend time with the husband from 10 am Sunday to the commencement of school or 10 am Wednesday every week.
c)That the child spend special occasions such as Christmas and Father’s Day with the husband and occasions such as Mother’s Day and Country B New Year’s Eve with her.
d)That the parties each be permitted to take the child interstate on not more than two occasions each calendar year
e)That the parties each be permitted to take the child on an international holiday for up to four weeks provided:-
i)The husband may take the child during the 2018/2019 Christmas school holidays and each alternate year thereafter.
ii)The wife may take the child during the 2019/2020 Christmas school holidays and each alternate year thereafter.
iii)The wife retains the child’s passport at all other times.
f)Each of the parties be restrained from participating in school activities or attending at the child’s school on days that the child is in the other parent’s care save as to school concerts, parent/teacher interviews, graduation ceremonies or sports days.
g)That the husband be restrained from:
i)Arranging or facilitating the attendance of the child upon a psychiatrist, psychologist, social worker, counsellor, therapist or other similar health practitioner without the prior written consent of the wife or order of the court;
ii)Photographing or recording the wife with a camera or other recording device;
iii)Enrolling or committing the child to any activity which takes place during the wife’s time with the child without obtaining the wife’s’ consent.

The wife seeks division of the parties’ property such that she receives 30 per cent of the parties’ net property.

The proposed orders of the Independent Children’s Lawyer

The Independent Children’s Lawyer (“ICL”) proposes that the wife have sole parental responsibility and that the child live with each of the parties:-
a)Week one:
i)With the husband from 9 am Sunday to the commencement of school Wednesday or 9 am if a non-school day;
ii)With the wife from the commencement of school on Wednesday or 9 am if a non-school day to 9 am on Sunday;
b)Week two:
i)With the husband from 9 am Sunday to the commencement of school on Thursday or 9 am if a non-school day;
ii)With the wife from the commencement of school on Thursday or 9 am if a non-school day to 9 am on Sunday.
c)At other times as may be agreed between the parties.
The ICL supports the use of SMS text message or email for communication between the parties and that the parties be permitted to travel overseas with the child on a surety of $5,000 to be deposited into the Registry of the Family Court of Australia.
The ICL supports injunctions restraining the parties from:-
a)Discussing the proceedings with the child or allowing any other person to do so;
b)Discussing any allegation made in these proceedings with the child or allowing any other party to do so;
c)Denigrating the other party to or in the presence of the child or allowing any other party to do so;
d)Participating in school activities or attending at the child’s school on those days that the child is in the other parent’s care save as to events parents are normally invited including school concerts, school assemblies and sports days.
e)Taking the child to attend on Dr D, psychologist, unless otherwise agreed between the parties in writing.
The ICL further supports an injunction restraining the husband from taking the child to any medical practice save and except a practice which may be nominated by the wife.

Materials relied upon

The husband relies upon:-
a)Further Amended Initiating Application filed 7 May 2018;
b)Affidavit of the husband filed 20 April 2018;
c)Affidavit of Ms N Ferreday filed 20 April 2018;
d)Affidavit of Ms O filed 20 April 2018;
e)Affidavit of Mr P filed 20 April 2018;
f)Affidavit of Ms Q filed 20 April 2018;
g)Financial Statement filed 23 April 2018;
h)Affidavits of the husband filed:-
i)20 June 2018 ;
ii)20 June 2018 ;
iii)22 June 2018.
Three further affidavits the husband sought to rely upon were struck out in their entirety following objections to that evidence by the wife:-
a)Affidavit of Mr R filed 20 April 2018;
b)Affidavit of Mr S filed 20 April 2018;
c)Affidavit of Ms T filed 20 April 2018.
The wife relies upon:-
a)Outline of Case document;
b)Amended Response filed 8 June 2018;
c)Trial Affidavit of the wife filed 8 June 2018;
d)Financial Statement filed 8 June 2018;
e)Affidavit of Mr U filed 22 June 2018;
f)Affidavit of Mr V filed 22 June 2018;
g)Affidavit of Mr W filed 25 June 2018;
h)Affidavit of the child Mr Y filed 25 June 2018.
The ICL relies upon:-
a)Outline of Case document
b)Affidavit of the ICL filed 27 April 2018;
c)Affidavit of the ICL filed 18 May 2018 annexing the Family Assessment Report.

Background

The husband was born in Australia in 1946 and was 72 years old at the time of the trial. He has professional qualifications and works on a part time basis.
The wife was born in India in 1972 and was 45 years old at the time of the trial. She is employed three days per week.
The wife is of Country B heritage and held refugee status in India. She became an Australian Citizen in July 2012.
The parties first met in 2005 when the husband was visiting India as a tourist. The parties were introduced by mutual friends and began exchanging emails. They commenced a relationship in June 2006 when the husband returned to India for another visit.
The wife visited Australia in March 2007 on a one month tourist visa and stayed with the husband at a rural property located at K Street, L Town near C Town (“the matrimonial home”). The husband proposed marriage to her during that visit.
The wife recalls that the property was in a state of disrepair during her visit. She says there was refuse and rubbish inside and outside the home, the water was not connected and the husband was sleeping in a tent in the lounge room due to a hole in the roof from fire damage. She recalls that the husband arranged for them both to stay at a friend’s house and promised to improve the matrimonial home before the wife returned to Australia.
The wife moved to Australia in December 2007 on a prospective marriage visa and commenced cohabitation with the husband at the matrimonial home.
The husband was diagnosed with prostate cancer in early 2008 and told he may only have eight years to live.
The parties were married in 2008.
Mr Y is the wife’s child born of an earlier relationship. He was born in 1992 and was 26 years old at the time of the trial.
Mr Y moved to Australia in January 2010 and was adopted by the husband in that year. He lived in the matrimonial home with the parties until March 2014 when he moved to Sydney, New South Wales.
In June 2013 the parties purchased a property in their joint names at F Street, C Town (“the F Street property”). The property has been tenanted since purchase.
The parties separated on 20 June 2014.
The wife works three days a week in a set pattern. She does not anticipate any change to her working hours.
The husband works part time and receives a pension. He suffers post-traumatic stress disorder arising.
It is the wife’s position that throughout the marriage she was the primary carer for the child and had responsibility for her daily care. She asserts that the husband provide minimal assistance.

The evidence at trial

Ordinarily matters involving parenting considerations are dealt with pursuant to div 12A of the Family Law Act 1975 (Cth) (“the Act”). Pursuant to s 69ZT provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) do not apply unless the court decides that they apply. The matter before this court involves matters of property settlement and division in addition to parenting considerations, and unless there is agreement by the parties to “opt in” to div 12A of the Act, the rules of evidence pursuant to the Evidence Act therefore apply to this matter.

The husband’s evidence

Counsel for the wife and the ICL sought to strike out large portions of the husband’s affidavit material. So comprehensive were the objections taken by counsel for the ICL that it was an easier task to identify the paragraphs that were admissible.
The mechanics of considering objections to the husband’s affidavits occupied the first day and a half of the trial. I reserved the question of the wife’s costs.
The Court has previously expressed concern as to the construct of the husband’s affidavit material.
In my ex tempore reasons for judgment delivered 1 December 2017, I had cause to make specific mention of the affidavit material relied upon by the husband:-
12.The affidavit material is not responsive to the issues, either is again incomprehensible and unintelligible. Regard must be had to r 15.13 of the rules of this Court, where the Court may order material to be struck out of an affidavit if the material is inadmissible, unnecessary, irrelevant, unreasonably long, scandalous, argumentative or sets out the opinion of a person who is not qualified to give it.
13.I consider that the affidavit material is contrary to the purpose of the rules and whilst there has been no application to strike it out, I consider that the material presented is inadmissible either in whole or in part, is clearly unnecessary, the majority of it is irrelevant, is unreasonably long, mischievous in its content and scandalous in its focus. …
At the first day hearing on 23 February 2018, the husband was reminded of my earlier remarks in relation to the quality and quantity of the husband’s affidavit material and was urged to take whatever steps may be necessary to ensure the Court is able to better understand the orders that the husband intended to seek and that the affidavits upon which he intended to rely were responsive to the issues.
The husband called evidence from the paternal grandmother Ms N Ferreday and Ms O, a family friend.
Other affidavits of witnesses were read into evidence but were not required for cross examination. Their evidence is of little assistance to the Court.

The wife’s evidence

The husband took no objection to the wife’s evidence.
The wife called her adult son the child Mr Y.
The husband supplemented his affidavit evidence by emphasising his current position that both the wife and her son presented as a significant risk to the child.
The husband spoke of a “protocol” that he had put in place following his concern that Mr Y has sexually assaulted the child. The protocol allegedly set out the parameters by which Mr Y could come into contact with the child, but also that the wife’s behaviour should also be regulated by the protocol given the husband’s position that she had failed to protect the child.
The difficulty in understanding the husband’s contention is demonstrated by reference to the following extract from page 27 of his Trial Affidavit filed 20 June 2018:-
8.FACTS of OFFSETTING ABUSE. (Also assistance with this is a purpose.)
(a)For SIX YEARS I have been offsetting the effects of Abuse.
(i)I used a PROTOCOL that I formulated and presented to both [Mr Y] and [the wife] July 2012 immediately following the shocked witness of Abuse by my mother, ([Ms N FERREDAY] Aff op.cit) and Abuse which I also observed at that time. The affidavit of [Ms O] confirms this is serious.
(ii)PLEASE NOTE: [the wife] CANNOT DISCLAIM HEARING OF THE ABUSE …AS SHE HAS IN HER AFFIDAVIT. This denial is a fallacious culpable cover-up.
The denial … also recorded in the up-notes of the orders of 21/1/2016 is a Sexual Abuse by collusion. This denial has operated over years.
(iii)[the wife] WAS PRESENT FOR THE SETTING OUT OF THESE FACTS OF THE IMPORTANT PROTOCOL. (As she would be … and also the police interviewed [Mr Y] about it in any case … so this denial is extremely strange.)
(b) The Protocol started with a statement of three states
*1.Sexual interference,
*2. Dominating, grooming and bullying .. then
*3. Just the enjoyment of having a sister.
THE PROTOCOL confined ALL interaction to state *3.
(c)[Mr Y’s] behaviour has from that time been a continuing festering thorn. [Mr Y] has since echoed the words stated in (d) (ii) below. The event is etched in his mind.
Whilst the husband’s case is difficult to understand, the gravamen of his evidence is that Mr Y sexually assaulted the child and accordingly any involvement with her must be supervised and appropriately monitored.
Notwithstanding the husband’s allegation that the wife was unable to protect the child, provided the child’s time with the wife is subject of overview by the husband, he considers that the retention of the current interim arrangements represents the child’s best interests.
The husband seeks to prove on the balance of probabilities that Mr Y sexually assaulted the child.
He also considers that the wife has been emotionally abusive and both she and Mr Y bullied the child.
The husband was asked to consider the purpose of the orders sought in [9] of the Further Amended Initiating Application namely he seeks a declaration “that abuse of [the child] has occurred.”
The husband confirmed his belief that the child needed protection and did not resile from his allegation that Mr Y had sexually molested and groomed the child, or that the wife had sexually abused the child “in the form of colluding in, covering-up and denying the sexual molesting cited in item (a) immediately above and denial as evidenced in the preliminary up-notes…”.
The husband alleges that on 29 July 2012 Mr Y poked the child in her genitals with his finger as part of a game involving toy cars. The incident was raised by the husband in his first Affidavit filed 16 January 2015 as follows:-
52.There was an incident, witnessed by my mother and I in mid 2012, in which [Mr Y] was observed poking [the child] in the genitals through her panties with his finger. When I redressed him for doing this at the time, he did not deny the behaviour. He instead angrily declared his right to do these things as [from Country B]. I pointed out that such behaviour was not appropriate nor legal in Australia.
The principal evidence the husband presented is that of the paternal grandmother. Whilst I ultimately considered her evidence to be inherently unreliable, she asserted that the husband was not present at the time of her observations of the alleged sexual assault. The husband agreed that his initial summary in [52] was incorrect and he did not observe the alleged sexual assault.
It was further alleged that Mr Y was playing an aeroplane game with the child which involved him lifting her above his head. The husband alleges that Mr Y used the opportunity to place his hands near or on the child’s genitals.
The husband did not witness the alleged assault.
In 2013 the family travelled to India for a holiday. Whilst visiting a temple the husband alleges that Mr Y placed the child on his shoulders and carried her down a hill. The child was observed to bounce on her brother’s shoulders and the husband considers that the actions of Mr Y were deliberate in that he wanted to sexually assault and/or groom the child by causing her genitals to come into contact with his neck and shoulders.
The husband was asked to consider [82] of his trial affidavit as representing the extent of his observation of Mr Y placing the child on his shoulders:-
82.The incident in India late 2013 is of significance. [Mr Y] took [the child] off alone. Yet I was looking and monitoring constantly for [the child] to see him hundreds of metres below down the mountain carrying her the opposite direction to where our taxis waited. It was an hour and two kilometres before I caught him. I called him a ‘bone-head’ to minimise things for [the child] who was extremely pale faced and staring. As well as in breach off alone without saying anything, I said he knew exactly what his neck bone was doing to [the child’s] genitals! He then said, “She wanted it”. I saw ‘red’ at this! He was ‘grooming’ her in this! …
The child was three years of age in July 2012 and six years of age in 2014. The husband admitted that he had typed the affidavit of the paternal grandmother, but denied counsel’s proposition that by reference to the two statutory declarations annexed to her affidavit, the first was not written by his mother.
The husband agreed that without reference to the wife he took the child for a genital examination by a general practitioner in 2012 and then again in 2014.
The husband acknowledged that the paternal grandmother made her first statutory declaration on 20 August 2014. On the same day real properties held by the husband were transferred into corporate entities that had been recently created.
The husband also went to the police to allege that Mr Y had sexually assaulted the child.
The husband denied that there was any concerted plan by him to disadvantage the wife by the transfer of his interest in properties and that the statutory declaration made by his mother and the complaint to the police were coincidence.
The husband was unconvincing in his denial that his actions were part of an overall strategy. I find that the paternal grandmother made her statutory declaration at the request and instruction of the husband.
The family report published 16 May 2018 records that the husband referred to the wife as “a “shark” as opposed to a functional “dolphin”.” He was not able to explain the meaning of his expression but agreed that it generally reflected his view of the wife. He conceded that the language was emotive and that the wife may well have considered to be disparaging.
The husband’s denials were disingenuous. His evidence is strongly suggestive of his view of the wife which is that she is predatory and aggressive.
A significant concern of the husband is his continued opposition to the current order of injunction that only allows the parties to attend the child’s school when she is in their separate care.
The husband admitted that he had attended the child’s school contrary to the order and acknowledged that he had attended the school on the morning of his evidence. He would usually attend on a Thursday morning.
The husband spoke of a program that he had developed which had apparently been adopted to some extent by various primary schools called “Hug A Day Program”. The parameters of the program were uncertain, but a reasonable summary is the husband’s belief that children gain a benefit from being hugged by a safe adult. The husband acknowledged that the program was effective in healing children who had been the victims of sexual abuse.
He argued that if he was not able to attend the child’s school on periods when the child was not with him, the “Hug A Day Program” would not be as effective.
He also considered that the damage occasioned to the child by the sexual assault perpetrated by Mr Y, the wife’s failure to protect the child and the environment of aggression and bullying was such that unless he was able to closely monitor the child’s behaviour and presentation, without his input he feared the child may turn against her mother.
The wife seeks orders that would enable each of the parties to travel with the child out of the Commonwealth of Australia. In particular, the wife would wish to take the child to India and spend some time with her family. The husband is not concerned that the wife presents as a flight risk, but opposes overseas travel unless he is able to accompany the child.
His explanation is that unless he is at all times proximate to the child he would not be able to monitor behaviour and presentation and without the perceived benefit of his therapeutic intervention, the child may dysregulate and be at serious risk of emotional or psychological harm.
Much of the husband’s evidence was difficult to understand and his answers at times were contrived.
The husband was an unimpressive witness and where his evidence conflicts with the evidence of the wife and her son Mr Y, their evidence is to be preferred.

The paternal grandmother - Ms N Ferreday

The paternal grandmother provided evidence that the child had been sexually abused, molested and interfered with by Mr Y.
Her affidavit was difficult to understand and the focus of her evidence centres upon an earlier Affidavit of 1 September 2017 and her Statutory Declaration of 20 August 2014.
The motivation for her involvement in the proceedings is summarised in the following extract from her trial affidavit filed 20 April 2018:-
… I have concerns that [the child] receive needed and continuing protection by her father for care, safeguard and recovery concerning the molesting Abuse by [Mr Y] which I have witnessed and which from my own experience I know special care has been needed for the last 6 years. I know this care is still needed into the future both for recovery from the repercussions and protection from the continuing family member threat.
.(b). I am also witness to [the child’s] mother, [the wife] compounding this Abuse excusing her son because he is [from Country B] and imposing threats and secrecy on [the child].
The paternal grandmother was asked whether she had prepared the affidavit or whether there had been any involvement by the husband.
Her evidence is that the contents were her own words, but that it had been put together by the husband.

I do not accept her explanation and am satisfied that the affidavit was prepared by the husband and the statutory declarations were prepared on his instruction.
The following extract from the Statutory Declaration of 20 August 2014 appears to be the gravamen of the husband’s concerns:-
7. I know how it can start innocently and gradually increases.
8.On July 29^th 2012 from my Crow’s record [Mr Y] and ([the child]) were playing with matchbox cars on the carpet and [the child] had her legs apart to catch the cars as they sent them forth to each other.
9.As I came from the kitchen area I saw [Mr Y] poke her [the child] in the crutch (sic) with his fingers as part of the game. This was a big warning to me, so I told [the husband] and he talked to [Mr Y]. [The child’s] face showed a confused look.
Then as I turned back I was shocked to see [Mr Y] holding [the child] in the crutch (sic) up in the air with his hand in her crutch (sic) and she had the same puzzled look on her face. I also told [the husband] about this and he spoke to [Mr Y] about it.
In her Affidavit filed 1 September 2017 she describes the incident in the following manner:-
3.[The child] was 3 years old in … 2012. [The husband] and his children were at my house to watch the Crows on TV. While waiting for the match [the husband] was in the bathroom and I returned to the lounge area unexpectedly after half an hour in the kitchen. I saw [Mr Y] poking his finger to push on [the child’s] genitals that were covered only by a thin layer of her panties. [The child] was sitting on the floor legs apart in front of him. He was pretending that this was some sort of game and yet he was clearly stepping over the ‘mark.’ This was visible to me and also shown by the shocked and confused expression I saw clearly on [the child’s] face, facing towards me.
And at [5]:-
Shortly after this and on the same day I saw [Mr Y] holding [the child] above his head with his hands on her genitals enacting an inappropriate genital invasion during a pretence of an aeroplane game. …
There were significant inconsistencies between the evidence of the husband and his mother. At its highest the evidence of the paternal grandmother confirms that Mr Y and the child were engaged in innocent play.
The evidence of the paternal grandmother was inconsistent and unconvincing. The construct of her affidavit filed 1 September 2017 strongly suggests that it had been prepared by the husband. The language of the paternal grandmother in her evidence was not consistent with her trial affidavits.
Her evidence strongly suggested that she and the husband had spoken at great length about the litigation and in particular in anticipation of her evidence.
The evidence of the paternal grandmother is overtly unreliable and whilst likely to be inadmissible, attracts little or no weight in any event.

Ms O

Ms O is a friend and associate of the husband. The majority of her Affidavits filed 6 October 2017 and 20 April 2018 were struck out.
The husband relies upon the following statement in the earlier affidavit of Ms O:-
I provide this affidavit in order to verify the sexual and other abuses of [the child] who is the Daughter of my long time friend (30 years), [the husband] and also Daughter of [the wife]. This statement also concerns [Mr Y] who is [the wife’s] natural son now 25 years old and who in mid 2009 was adopted by [the husband] in India as part of getting him to Australia.
1.On 16^th September 2015 [the child] visited with [the husband] and due to the train not stopping until the station beyond mine, [the child] had a small accident before getting to the toilet at my house.
She had a shower at my place and afterwards when I handed to the towel I said “You had better dry yourself down ‘there’ because no-one else can touch you in that place. She said in a matter bursting out with surprise, “[Mr Y] does!” … I distracted her from further engaging with this awareness.
Ms O denied that the husband was either present or had any involvement in the preparation of her affidavits.
She relayed the alleged disclosure by the child to the husband and was told that both he and his family were aware of the need for the child to be protected from Mr Y and any risk to the child was being managed by reference to “the Protocol”.
Ms O was strongly supportive of the husband’s position and whilst her only involvement was the child’s alleged disclosure in 2015, her evidence was coloured by her obvious acceptance of the husband’s concern that the child was at risk in the presence of Mr Y and in circumstances where the wife was not able to protect the child.

The wife

The wife’s evidence was contained in her Trial Affidavit filed 8 June 2018. She denied that there had been any abuse of the child by Mr Y. She has not made any observations of abuse and considers that the husband was controlling and coercive during their relationship.
The husband’s cross examination of the wife was of little assistance. He was keen to elicit the wife’s acknowledgement that his conduct in the proceedings was not to attack her but rather, to assist the child.
The wife conceded that the communication between the parties is poor. It is unlikely to improve and the wife considered the husband’s entrenched view that Mr Y presents as a significant risk to the child is unhelpful.
She also confirmed that the child had repeated the husband’s remarks that she was a “shark” and he was a “dolphin”.
She was concerned that the husband had taken the child to the doctor without her knowledge or consent.
She remained angry that the husband had denied her time with the child on Mother’s Day in 2018 but rather, had taken the child to see the paternal grandmother.
The wife conceded that the child would wish to spend time with each of the parties, but the current order required multiple handovers in each fortnight.
At times the child experiences “meltdowns” and there are some emotional problems and distress, but not sufficient that would justify the child to continue to see a psychologist as currently promoted by the husband. The wife considered the child to be well-adjusted.
A further area of complaint is the uninvited and unexpected attendance by the husband at various cultural evenings. On the Saturday prior to the commencement of the proceedings, the wife attended a Country B dancing evening. The husband attended and observed that he discussed the litigation with other guests. The wife wanted to minimise the occasions that she and the husband come into contact.
She expressed concern that the husband appears unable to accept that she wants to minimise any future interaction with him.

Mr Y

Mr Y denied that there had been any discussion with the husband on or after 26 July 2012 concerning an allegation that he had sexually assaulted or abused the child.
He denied that he had ever assaulted the child and gave a different version of the incident in 2013 when the husband alleged that he had placed the child on his shoulders with the intent of either sexual stimulation or gratification. He describes a much more benign explanation. The family had visited a temple in India and he started to walk down the Temple steps towards the accommodation that they were occupying. The child was on his shoulders but at no stage was he more than 5 to 10 metres from the husband.
He could not understand why the husband continued to allege that he had sexually assaulted the child.
Mr Y was an impressive witness and his denials of any sexual assault or abuse of the child were entirely credible.
I prefer the evidence of this witness where it conflicts with the evidence of the husband or the paternal grandmother.

The family consultant

By letter of instruction dated 28 April 2018 the ICL instructed Ms Z (“the family consultant”) to undertake a family assessment and to produce a report in anticipation of the trial.
The ICL highlighted that the husband alleged that Mr Y had sexually interfered with the child and that the wife “belittles [the child’s] Australian heritage.”
The family consultant was presented with a raft of documents contained in four volumes, much of which was likely to be of little assistance to her.
The background to the dispute is adequately encapsulated in the following extracts:-
8.[The husband] claims that the child is at risk in [the wife’s] care. He claims that at the age of two and a half years [the wife] had failed to protect the child from sexual abuse by her older half-brother [Mr Y], and since such time refused to acknowledge the abuse and protect the child accordingly. He also expressed concern for the child travelling interstate with [the wife] to visit family given his belief that [the wife’s] brother refused to accept the risk to the child from [Mr Y].
And:-
11.[The wife] claimed that [the husband] had been controlling and coercive throughout their relationship. Including acts of sexual coercion, violent sexual advances, social and financial isolation, and verbal abuse. At times witnessed by the child. She alleged that the child was at risk in [the husband’s] care due to his violence and due to his unsafe home environment. She also alleged he had unstable mental health due to his PTSD and that his physical health limited his capacity to effectively care for the child.
The family consultant had the advantage of an earlier psychologist’s report dated 18 September 2015 and a recent report from the child’s school which confirmed that there were no major concerns.
The school’s observation was that the husband maintained an active involvement in the school and appeared to the school staff to be “devoted” to the child. The school reported that the child appeared “well-adjusted”.
Both parties presented as child-focussed, but consistent with the husband’s presentation he sought to maintain a significant level of control over the child. He believed that he should make all major decisions as being the only effective way to protect the child from the wife’s bullying and her failure to recognise that Mr Y presents as a significant risk to the child.
Each of the parties were critical of the other. The husband denied any allegation of family violence and considered that the wife’s presentation was designed to maximise her settlement of property by gaining control of the child. He summarised his opinion of the wife was that she had adopted a role as an “abused Asian bride”.
For her part, the wife complained that she was subjected to “unrelenting verbal and emotional manipulation”.
The husband repeated his concerns that Mr Y presented as a risk to the child and it was his contention that she continued to be at risk of sexual abuse in the wife’s care because “it was her “family culture” to condone sexual abuse of women and children. He stated, “it’s structural (in the family), to get girls to sell their body for money is just how it is”.
The wife denied that she had either failed to protect the child or that Mr Y had sexually assaulted the child. She denied that there was any “family culture” that considered or promoted child abuse as acceptable.
The husband confirmed that he had referred to the wife as a “shark” and then sought to discuss the topic with the child and would go through the story again with her as he felt it may be of some use. The family consultant was invited to participate in the discussion but she properly declined.
Both parties were complimentary of the child. The husband described her as “outgoing and adaptable” and the wife as “really funny, really strong”.
Neither party sought to restrict the time that each of them should spend with the child. The difference is that the wife finds the current arrangement onerous which requires 10 handovers in each fortnight. The husband’s concern is that the child could not manage any more than three days apart from him at any one time.
Given the entrenched position of the parties, the child presented as surprisingly well-adjusted. The observations of the family consultant are that the child was “an endearing, friendly, polite, mature and emotionally intelligent 9 year old girl”.
She was able to engage adequately with the family consultant and understood the purpose of the assessment. She reported that the current arrangements were fine and spoke positively of the time that she spends in her father and mother’s care. She reported that on occasion her father made inappropriate remarks about her mother and recognised that her mother remained concerned when she was with the husband.
It appears that the child is able to contact either parent without restriction.
When asked to consider her brother, the family consultant recorded at [66] that the child appeared:-
… genuinely happy and excited to talk about him and her comments, tone and body language suggested a strong positive connection”. She stated, “when I was younger he teased me, but it was fun, he’s really nice, he lives in Sydney now”.
Helpfully, the child had a good understanding of her Country B heritage. She reported as identifying as a Country B and received support for her continued involvement in her Country B culture from her mother and her father.
She was able to consider the current arrangements for her to spend time with each of the parties. The impression given to the family consultant was that she was open to a change, but that she wanted to retain the extent of time that she saw each of the parties.
The family consultant was not tasked to consider the likelihood that the child had been the subject of sexual abuse either by her mother or her brother. She did consider that the information gained for the assessment did not add weight to the husband’s allegations. She considered that there was no clear indication that the wife was unwilling or unable to protect the child.
The family consultant expressed concern that if the Court found that there was no substance to the allegation of sexual abuse the husband was unlikely to accept such an outcome.
Fortunately, the husband has been able to compartmentalise his belief in a way that has had little impact on the child. She was observed to hold a “positive and meaningful connection with her brother”.
The family consultant expressed some concern as to the extent of the child’s ongoing therapy with Dr D, psychologist. The husband did not call evidence from the psychologist and accordingly the Court does not know the focus of the ongoing therapeutic sessions. If the husband’s concern relates to his belief that the child has been the subject of sexual abuse, then the therapeutic intervention is both unnecessary and potentially harmful.
The wife does not support continued intervention and considers that the child is well-adjusted and high-functioning.
The observations of the family consultant would appear to corroborate the wife’s view.
The issue is not whether the child may benefit from a therapeutic environment, particularly as it may “play a complimentary role of mediating issues between the parties”, but if it is to occur, it should occur as may be agreed between the parties and not at the election of the husband.
The recommendations of the family consultant support that the parties should maintain equal shared parental responsibility, but if there is no consensus should the Court determine that there is no evidence to support a finding of abuse, then the wife should be granted sole parental responsibility.
The family consultant did not recommend there be any significant change to the current parenting arrangements.

Principles relevant to parenting considerations

The child currently spends equal time with each of the parties.
The husband seeks to retain the current parenting arrangements, whereas the wife seeks to reduce the frequency of handovers and fix the husband’s time with the child to 10 am Sunday to 10 am Wednesday.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am also mindful of the directions contained in s 60CC(2A) and in particular the husband’s trenchant belief that the child has been the subject of sexual abuse by the wife’s adult son in circumstances where she was aware of the abuse and either failed or took no steps to protect the child.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they are identified and presented to the Court.
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2).
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests.
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.
(5)Have regard to the additional considerations under s 60CC(3).
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Section 61DA requires the court to consider whether to apply the presumption of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
The parties are not agreed as to equal shared parental responsibility. The husband seeks sole parental responsibility for the child and “in particular including with regard for personal and sexual PROTECTION and safety as well as life and developmental decisions relating to her personal development and dual Australian and Country B identity”.
The wife seeks sole parental responsibility on the basis that there remains now limited trust between the parties as a result of the baseless allegations of the husband and his conduct in taking the child for genital examination and continued therapy with Dr D.

Parenting considerations

Meaningful relationship

Neither of the separate proposals of the parties in reality seeks to diminish the time that the child spends with each of them.
The family consultant notes that the parties acknowledge the close relationship that they each have with the child and there is no suggestion that each of them are other than devoted parents.
The conundrum for the parties is not their separate relationship with the child but their inability to reach any common agreement and their continued mistrust of each other presents as a potential risk to the child.

Child’s wishes

In R v R (Children’s Wishes) (2002) FLC 93-108 at [128] the Court concluded that the child’s wishes must be taken into account but that the Court is not bound by them.
The child seeks to maintain a strong relationship with each of the parties. She considers that this is best achieved by retaining the current parenting arrangements. She is not however opposed to a change and the evidence of the family consultant strongly supports orders that would enable the child to maintain a close attachment to each of the parties.
I am not obliged to make orders consistent with the child’s view but rather, I must give those views appropriate weight.
The family consultant was impressed with the child’s presentation and understanding of the current parenting arrangements.
The child does not understand the difficult dynamics that currently exist between her parents. She does not know that her father holds a genuine belief that her mother has failed to protect her and that her brother allegedly presents as a risk.
She is not aware of the distress caused to her mother by the husband’s refusal to stay away from the wife’s social gatherings, the child’s school and the husband’s acknowledgment that he had taken the child to a doctor for a genital examination.

Allegations of sexual abuse

The husband has filed hundreds of pages of affidavit material directed to his belief that the child had been the subject of sexual assault and grooming by her brother and either ignored or promoted by her mother.
In Vasser & Taylor-Black (2007) FLC 93-329 the Full Court considered the High Court decision in M and M (1988) 166 CLR 69 had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. at [51] their Honours quoted, with approval, the following passage from M and M (supra) at pages 75-76:-
…In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegations of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. …
In the present case, I am easily able to find that there is no substance to the evidence presented by the husband in support of his contention that the child had been the victim of sexual abuse.
The evidence of alleged assault on 26 July 2012 relies entirely on the purported observations of the paternal grandmother. Notwithstanding the husband’s earlier affidavit that states he observed inappropriate interaction between the child and her brother, that evidence is in conflict with the evidence of the paternal grandmother.
The paternal grandmother’s evidence was entirely unsatisfactory. It is likely that her evidence was either promoted by the husband or at the very least significantly coloured by his presentation to her.
The husband’s evidence of the child being placed on the shoulders of her brother with the intention that it would provide some sexual gratification for him or constitute a “grooming” of the child is entirely without foundation.
I do not consider that the husband has either established on the balance of probabilities that the child was the subject of assault as alleged, or that there is any evidence that would support a finding that the child is at risk, unacceptable or otherwise, from her brother or her mother.
The risk to the child arises from the husband’s apparent inability to accept that his belief, whilst perhaps genuinely held, is entirely without foundation.

Overseas travel

Neither party was opposed to the child travelling overseas.
The wife is keen for the child to be reacquainted with her extended family in India.
The husband has expressed an intention to foster and support the child’s cultural heritage and may well travel with the child to India or Country B.
The parties are not concerned that the other presents as a flight risk. The husband’s only issue is that if the child is overseas with the wife for an extended time he would not be able to provide the necessary therapeutic support. As discussed, there is no substance to the husband’s claim that without his support the child’s relationship with the wife is at risk of fracture.
Both parties were prepared to fall in with the ICL’s proposal save that the wife seeks an injunction restraining the non-travelling parent from accompanying the travelling parent and from seeking to spend time with the child without consent.
The wife relied upon her unchallenged evidence at [133]-[146] of her trial affidavit. The husband was relentless in his intention to accompany the wife and child whilst they were in Sydney. He seemed unable to accept the wife’s refusal to allow him to spend time with the child during their trip.
It is reasonable that, subject to any agreement reached, each of the parties are entitled to spend time with the child without interference from the other.

Parent’s ability to communicate with each other

The parents appear to now have limited ability to communicate successfully with each other.
The husband appears unable to respect the wife’s position that she does not want her time with the child interrupted by the presence of the husband. She does not seek to attend the child’s school when she is in his care and she seeks the same accommodation.
She remains concerned that without appropriate orders being put in place, the husband will continue to take the child to medical practitioners and other health professionals without any discussion with her.
The inability of the parties to interact effectively with each other and the mistrust now engendered by the husband’s false allegations of abuse and the years of litigation that have been the result has eroded the ability of the parties to reach effective consensus.

The relationship of the child with each of the parties

The family consultant was impressed with the strength of the relationship and attachment that the child had with each of the parties. She appeared happy in the current circumstances and did not want there to be any significant change.
The husband was noted to be “devoted” and the wife was considered to be strongly bonded to the child.
It is likely that the child sought emotional support from her mother, but that did not diminish the child’s desire to maintain a strong relationship with her father.
The separate proposals of the parties do not seek to fundamentally alter the current parenting arrangements and it is reasonable to find that the parties recognised the importance of the child maintaining a strong attachment with each of them.

Change in the child’s circumstances

The wife does not seek to fundamentally change the extent of time that the child spends with the husband but rather, seeks to reduce the number of handovers. She considered it to be onerous and impacts significantly on her ability to maintain her employment and provide financial assistance to the child. It is acknowledged by the husband that he does not provide financial support for the child when in the wife’s care.
The child was open to a change in the arrangements providing it did not affect her ability to maintain a relationship with her father.
I consider that there is merit in the wife’s proposal. The child is soon to be 10 years of age and there is no suggestion she would not be able to easily adapt to the wife’s proposal.
The wife’s proposal would see the child spending effectively equal time with each of the parties, although she would spend four nights with the wife. There is no suggestion that the child is not able to cope with reducing the frequency as opposed to the length of time that she spends with her father.

The capacity of the child’s parents and other relevant parties to provide for her needs

The parties each provide adequately for the needs of the child. The child has a close emotional attachment to her parents and the report from the child’s school strongly suggests that she is well adjusted and coping with the parties separation.
There were aspects of the husband’s evidence which were unimpressive. Notwithstanding his skillset as a clinical psychologist, he lacked insight as to the damaging consequences of his false allegations of sexual abuse.
The wife needs to maintain her employment, whereas the husband relies principally on a military pension. The husband’s personal circumstances are significantly more flexible than the wife who is required to maintain her employment.
Whilst the ICL seeks orders different to each of the parties, I do not consider that they would provide any significant advantage to the child.
The wife’s proposal represents an arrangement that will reinforce her relationship with the child and would enable a greater level of stability into the future.

Cultural considerations

The child considers her Country B culture to be important. It is strongly promoted by her mother and supported by her father.
I reject the husband’s assertion that there are aspects of the Country B culture which would promote, foster or permit child abuse, sexual assault or family violence.
If they are matters that the husband generally considers are the prevailing features of the Country B culture as practised in the wife’s home, then his ability to support the child’s cultural heritage may well be in question.
It seems however that the husband has been able to shield the child from his negative view of the wife and as such there is the certainty that the wife will continue to promote the child’s integration into Country B culture with some measure of support from the husband.

Orders least likely to lead to further litigation

The orders as sought by each of the parties are inherently respectful of the relationship that each of them have with the child.
It is difficult to understand how the litigation has not been capable of earlier resolution.
A resolution to the litigation will promote an acceptance by the parties that further litigation will inevitably impact upon the child and put at risk her current positive presentation and development.

Parental responsibility

The ICL considers that the wife should have sole parental responsibility. This is in response to the evidence of the husband taking unilateral action in taking the child to a medical practitioner without the wife’s knowledge and consent and the continued attendance of the child upon Dr D.
The determination of parental responsibility is to be considered by reference to the factors in s 60CC in determining what is in the child’s best interests.
The inevitable conclusion from the evidence as presented is that the husband cannot be trusted to respect the entitlement of the wife to be consulted before the husband engages the child with any health professional.
The real mischief however is that the attendance by the child on health professionals is promoted not as a reaction to the child’s adverse presentation but rather, because the husband remains fixated on his belief that the child has been sexually abused and the wife has either promoted the abuse or has taken no steps to stop it.
In circumstances where a child is being presented for unnecessary medical or other examination and assessment and there remains a risk that unless appropriate orders are put in place the conduct will continue, it seems to me that the wife’s application as supported by the ICL has merit.
I propose to order that the wife have sole parental responsibility for the child.
It is a necessary consequence of an order for sole parental responsibility in favour of the wife that the husband should be restrained from taking the child to any psychologist or other health professional unless agreed by the parties. I propose to make orders accordingly.

The husband’s attendance at school

I do not propose to discharge the current order that restrains each of the parties from attending at the child’s school when the child is not in their care. The wife seeks to limit the occasions that the parties may attend at the child’s school to school concerts, parent/teacher interviews, graduation ceremonies or sports days.
It is difficult to understand the husband’s reluctance to accept that the wife may wish to attend the child’s school but does not want to be confronted by him.
The wife is prepared to extend the same courtesy to the husband.
I reject absolutely that the husband should be permitted to attend the child’s school in order to promote and/or facilitate the “Hug A Day Program”. If the program is perceived by the child’s school to have merit, then the husband is able to deal with them when the child is notionally with him.
I do not consider that I could attach significant weight to the “Hug A Day Program” or any other behavioural program sought to be promoted by the husband.

Property settlement

The wife seeks orders that she receive 30 percent of the parties net property and that she be paid from the splittable interest of the husband in his BB Superannuation Fund, 30 percent of the fund’s value by way of splittable payment.
The husband has not filed any application in relation to orders for settlement of property and he presents no evidence either in opposition or otherwise to the wife’s orders.
There is limited assistance by reference to his Financial Statement filed 23 April 2018.
The husband acknowledged that he has been given significant opportunity to file an amended application and an affidavit of evidence but he has chosen not to do so.
The only evidence available to the Court is contained in the wife’s trial affidavit.

Background

At the commencement of cohabitation the wife did not have any assets of significant value. She had not accumulated any superannuation interest.
She did not know the extent of the property interests held by the husband nor the extent of his other assets.
She accepts that the husband had a superannuation entitlement but did not know the extent of the husband’s various interests.
At the commencement of cohabitation the wife obtained employment and in June 2011 commenced work. Monies she earned from employment were contributed to the running of the household including the parties’ liabilities, household and other expenses including the child’s requirements.
The husband was employed in the public service and stopped working in 2009 following a diagnosis of cancer. He undertook part-time work which supplemented his pension entitlement in the payment phase.
The wife contends that from 2009 until 2014 both she and Mr Y worked hard to improve and repair the K Street property. The wife contends that she made a valuable contribution as a homemaker. She says that the husband did little to support the child’s day to day care and she was responsible for the majority of the household duties.
From February to December 2013 the child was cared for initially by the wife’s sister and then by some friends.
Following separation the wife retained her car and some modest personal effects. The husband retained the jointly owned F Street property, his interest in other properties and continued to receive the defined benefit pension.
The husband remains in the former matrimonial home, whereas the wife resides in rental accommodation.

Non-disclosure by the husband

The wife’s evidence is that she has sought financial information from the husband in relation to his personal taxation returns, but in particular the financial records, financial statements, income tax returns and other relevant information for the following entities:-
(1)H Pty Ltd ACN …;
(2)J Pty Ltd ACN …;
(3)G Pty Ltd ACN …;
(4)H Trust;
(5)G Trust; and
(6)Other companies or trusts in which the husband has an interest.
The wife has also sought discovery of bank statements in relation to any accounts held by the husband or related entities and information concerning his superannuation interest.
The husband’s evidence is that some of the documents are able to be provided but other documents, in particular the financial statements and tax returns for the various corporate entities, have not been prepared and do not exist.
In Weir & Weir (1993) FLC 92-338 at page 79,593 the Full Court held that the Court “should not be unduly cautious about making findings in favour of the innocent party” (see also Mezzacappa & Mezzacappa (1987) FLC 91-853).

Schedule of assets and liabilities

The wife considers that the assets and liabilities of the parties are as follows:-
Assets

Lot 1, K Street, L Town

G Pty Ltd

$330,000

Lot 2, K Street, L Town

H Pty Ltd

$375,000

M Street, C Town (half share with Mr CC)

J Pty Ltd

$230,000

F Street, C Town (jointly held)

Joint

$395,000

Telstra Shares

Husband

$ 500

Motor vehicle

Wife

$ 5,000

4WD

Husband

$ 2,000

Van

Husband

$ 2,300

Total

$1,339,800

Liabilities

F Street mortgage

Joint

$ 290,016

H home loan

Husband

$ 297,934

F Street loan

Husband

$ 68,817

Total

$ 656,767

Net Balance

$ 683,033

Concession by husband

The husband concedes that the real properties held by G, H and J should properly be considered as property of the husband for the purposes of the proceedings.

Is it just and equitable to alter the property interests of the parties?

The wife argues that it is just and equitable for the Court to make an order pursuant to s 79 of the Act.
In Stanford & Stanford (2012) FLC 93-518 the majority held:-
[35]It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
[36]The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. …
In Bevan & Bevan [2013] FamCAFC 116 the Full Court considered at [73] that the decision of Stanford could be reduced to three fundamental propositions:-
(1)The Court needs to consider the existing property interests of the parties and to identify those interests (by reference to common law and equity); and
(2)The discretion must be exercised in accordance with legal principles and not in respect of any assumption that the parties interests should be different from those determined by common law equity; and
(3)Section 79(2) cannot be conflated by reference to matters in section 79(4).
I consider that it is just and equitable for a s 79 order to be made.
The parties obviously hold separate interests in the F Street property and orders of the Court are required to separate the financial interests of the parties.

Issues in dispute

The wife highlights that in the husband’s financial statement filed 23 April 2018 the husband refers to significant liabilities including outstanding income tax for the 2017 financial year, the sum of $377,000 for private debts to a group of people set out in Item 53 of the Financial Statement and a possible overdraft facility by reference to a DD Bank business loan.
I am satisfied that the wife has given the husband ample opportunity to provide documents that may assist in better understanding the extent of the purported liabilities. For reasons best known him, the husband has either refused or neglected to provide documents which may substantiate aspects of his financial circumstances.
The evidence of the husband, when questioned in respect of these matters, is unconvincing. He was not able to provide any documents which would establish the terms and conditions of any monies apparently borrowed from other people. The complete absence of any financial statements or taxation returns in relation to either the husband or the various entities was unhelpful.
The husband was questioned as to the circumstances of the joint venture business enterprise between J Pty Ltd and Mr CC.
The business apparently had traded under the name of “EE”. Rent was meant to be paid and the husband’s evidence is that for reasons not obviously evident, Mr CC had determined that he would not pay rent. The husband was not able to provide any evidence as to the extent of outstanding rental liability but he thought that the figure may well be as high as $100,000.

The implication arising from the husband’s evidence is that he received no money from his involvement with Mr CC.
It was not possible for the Court to gain any clear understanding of the husband’s financial affairs. I consider that there is no basis to bring to account any purported liabilities of the husband in circumstances where he has steadfastly refused to disclose documents relevant to the Court’s necessary considerations.

Husband’s superannuation

The wife instructed Mr V, actuary, to value the husband’s interest in his BB defined benefit pension scheme superannuation interest.
Mr V’s report is an annexure to his Affidavit filed 22 June 2016.
The information forwarded to Mr V was that the husband became a member of the scheme on 29 October 1975. The husband currently receives an annual pension benefit of $63,383.58 per annum. The pension is in the payment or retirement phase. The pension is paid fortnightly and is the subject of indexation twice yearly in April and October in line with the consumer price index (“CPI”). The pension is a lifetime pension and if a reversionary beneficiary exists at the time of the husband’s death the interest received would be equal to two thirds.
The husband’s interest is a splittable interest and the wife has three possible options:-
(1)Commutation;
(2)Associate pension;
(3)Share of member’s pension entitlement.
Mr V has calculated the value of the husband’s pension at $646,808.
The wife seeks a 30 percent split of the husband’s superannuation interest which would result in an annual pension of $9,191.25 leaving the husband with a residual pension of $44,368. The value of the associate pension would produce a lump sum of $105,699.

Methodology to be adopted

It is immediately apparent that the value of the non-superannuation interests of the parties is modest. The value of the husband’s superannuation interest is $646,808.
The wife seeks an order that she be entitled to 30 percent of the total property of the parties and also that she receive a 30 percent interest in the husband’s superannuation entitlement.
It is conceded by the wife’s counsel that a two pool approach should be adopted.
There are differing considerations that are likely to apply both as to contribution and also factors relevant to s 75(2).
In Hickey and Hickey & A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 the Full Court said the following at 78,392-393:-
[75]Although, for obvious reasons, the definition of property in s. 4 was not amended to include a superannuation interest or deem such an interest to be property, the effect of s. 90MC is that in proceedings in relation to property under s. 79 a superannuation interest is to be treated as property irrespective of whether or not a splitting or flagging order is sought or proposed to be made. As was submitted on behalf of the husband, the expression “treated as property” should be understood as meaning “treated as if it were property even though it is not” and that it should be so treated for the purposes of s. 79. …
I propose to give separate consideration to the property interests of the parties and their separate superannuation entitlements.

Husband’s superannuation interest

The husband became a member in 1975. As at 20 June 2018 he receives a pension entitlement of $63,383 gross per annum which is the subject of twice yearly CPI indexation.
The pension is a lifetime pension with a reversionary benefit equivalent to two thirds.
The husband ceased fulltime employment in 2009. I assume that given his age and retirement from the workforce, he satisfied a condition of release. His superannuation entitlement then transitioned to the payment phase and he commenced to receive his pension.
The wife does not argue that she has made any contribution to the husband’s superannuation entitlement. The benefit currently enjoyed by the husband had effectively accrued at the time that the parties commenced cohabitation and certainly at the time of their marriage in 2008.
The wife’s order seeking a superannuation split of 30 percent of the husband’s splittable interest has not been explained. In the absence of any evidence as to contribution the remaining focus must be whether there are s 75(2) factors that would support the orders sought.
The wife is currently employed and receives a modest income. The husband receives income of $2,147 per week which is comprised of rental income for F Street, C Town, business income of $345 per week for FF Pty Ltd, $700 per week for a pension, a small mobility allowance and a pension benefit identified as $1,000 per week in the husband’s financial statement but in reality $1,218.
The wife’s income is comprised of $430 per week from her employment, a Newstart Allowance of $154 a week and a Family Allowance of $74 a week. There is some rental received for F Street, however, it is paid into a mortgage account in respect of the property.
By reference to the valuation report of the husband’s superannuation entitlement, the lump sum value of the superannuation split as sought by the wife is as follows:-
(1)At 20 percent the value is $70,466
(2)At 25 percent the value is $88,082
(3)At 30 percent the value of $105,699
I am conscious that this is a short relationship. I am obliged to consider the contributions of the parties, however, in relation to the husband’s superannuation interest, it is difficult to identify either a financial or non-financial contribution made by the wife.
The pension entitlement has not been supplemented by the income of the husband for the period 2009 to the date of separation.
In the circumstances of this case I consider that the husband’s superannuation is better treated as a relevant factor pursuant to s 75(2) of the Act.

Contributions

It is not argued by the wife that at the commencement of the relationship the husband had interests in real property. She acknowledges that she did not bring any property of value into the relationship.
She contends that she commenced employment as quickly as possible and whilst her income was at all times significantly less than the husband’s income from all sources, nonetheless she contributed whatever she could.
She did fulfil the role of homemaker and she relies substantially on her contributions “to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent” (s 79(4)(c)).
The husband also contributed to the family by his continued receipt of income and given that after his retirement from fulltime employment he engaged in part-time work, he had the opportunity to assist the wife in the running of the household and also in the care of the child.
I find however that the wife provided the primary care to the child and the husband assisted when he reasonably could.
The net property of the parties is modest at $683,033.
When considering the weight to be given to the separate contributions of the parties, it is necessary to consider any proposed adjustment in terms of the dollar value that it represents.
30 percent of the current net pool is a sum of $204,909. I consider this to be a relatively modest adjustment to the wife, but adequately recognises the contributions made by each of the parties.
It must be remembered that the husband’s invitation to the wife to leave her home in India and take up a life with the husband in Australia is a relevant factor. Each of the parties contributed such that they expected the relationship would be ongoing. The contributions of the parties were not made in contemplation of the separation.
An adjustment of 70 percent in favour of the husband recognises that the differential in his favour is $273,215. I consider this to be appropriate recognition in respect of the superior financial contribution of the husband at the commencement of cohabitation and perhaps during the course of the marriage arising from the husband’s income derived from his superannuation pension and his war service compensation.
In Clauson & Clauson (1995) FLC 92-595 the Full Court was faced with the fact of the husband’s substantial initial financial contribution followed by a 10 year period of cohabitation where the parties made direct and indirect contributions over what was described as “10 busy years”. at 81,910 the Full Court considered the husband’s initial financial contribution as follows:-
The circumstances that the significance of the initial contributions may be eroded over the passage of time because of the other contributions which the parties make over the duration of the marriage is, we think, not a matter of controversy: see discussion in Money and Money (1994) FLC 92-485 at 81,054 and 81,063 per Fogarty and Holden JJ; contrast the approach adopted by Lindenmayer J at 81,060; see also the discussion in the earlier cases of White and White (1982) FLC 91-246 and Crawford & Crawford (1979) FLC 90-647 and the more recent judgment of the Full Court in Bremner and Bremner (1995) FLC 92-560.

Section 75(2) factors

Age and state of health of each of the parties

The husband is 72 years of age and the wife is 45 years of age.
The husband continues to work part-time. The wife is employed.
There has been some uncertainty in respect of the husband’s health and in particular the extent to which his longevity may be adversely impacted by the diagnosis of prostate cancer. No evidence has been presented and it appears whilst the prognosis had at one time been poor, the husband’s health is now such that it did not feature significantly in the proceedings.
I do not consider that I am able to bring to account any aspect pertaining to the husband’s health, but I am mindful of the ages of the parties.
The husband has the advantage of a lifetime pension indexed twice yearly. He also receives a war service benefit. They will continue up to his death, whereupon if the husband has a spouse or de facto partner, that person may be entitled to be a residual beneficiary.

Income, property and financial resources of the parties

The significant issue between the parties is the certainty of the husband’s pension continuing.
Given the wife’s circumstances, it is unlikely that her income will significantly improve.
The child’s care is effectively shared. However, it is likely that any expenses will fall to the wife. The evidence does not suggest that the husband is likely to readily provide money to the wife for her care of the child.

Whether either party has the care and control of the child of the marriage who has not attained the age of 18 years

The child will spend six nights a fortnight in the care of the husband and the balance of her time with the wife.

Commitments of each of the parties that are necessary to enable the parties to support him or herself, a child or another person that the party has a duty to maintain

The parties have not re-partnered. Their only obligation is in respect of the ongoing financial needs of the child.
It is likely that as a result of the orders made the current level of child support being paid by the husband at $31 per week will increase. No evidence has been presented that will enable the Court to assess what the increase is likely to be.

Conclusion of s 75(2) factors

The financial resources of the husband are significantly superior to that of the wife. The wife could not hope to have the advantage and security of the husband’s superannuation pension and war service payments.
It is not the Court’s job to “socially engineer” the circumstances that affect the parties. It is not a matter of attempting to balance the differences between the parties, but rather, to apply the provisions of s 75(2) and to consider the competing claims of the parties.
I consider that there should be a 10 percent adjustment in favour of the wife. That represents a sum of $68,303.
Whilst not the basis for the calculation, it would represent the value of an associate pension if the Court had considered a superannuation split of 20 percent in favour of the wife.

Conclusion as to alteration of property interests

I find that the net pool of assets should be divided as to 40 percent to the wife and 60 percent to the husband. Rounded up, that equates to the wife receiving $273,213 and the husband $409,820.
Other than her interest in the F Street property, the wife holds no other property. However, she seeks that the husband transfer his interest in the motor vehicle valued at $5,000 to her. On that basis she would retain the motor vehicle and would be entitled to a settlement sum from the husband of $268,213.
I consider that this will achieve a just and equitable outcome.
I make orders as at the commencement of these reasons.

I certify that the preceding two hundred and ninety- eight (298) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 24 August 2018.

Associate:

Date: 24 August 2018

Monday	Husband	10 am Sunday until commencement of school Tuesday
Tuesday	Wife	End of school Tuesday until start of school Friday
Wednesday	Wife
Thursday	Wife
Friday	Husband	End of school Friday until 10 am Saturday
Saturday	Wife	10 am Saturday until 10 am Sunday
Sunday	Husband	10 am Sunday until start of school Monday

Monday	Wife	End of school Monday until start of school Tuesday
Tuesday	Husband	End of school Tuesday until start of school Thursday
Wednesday	Husband
Thursday	Wife	End of school Thursday until start of school Friday
Friday	Husband	End of school Friday until 10 am Saturday
Saturday	Wife	10 am Saturday until 10 am Sunday
Sunday	Husband	10 am Sunday until start of school Tuesday

Lot 1, K Street, L Town	G Pty Ltd	$330,000
Lot 2, K Street, L Town	H Pty Ltd	$375,000
M Street, C Town (half share with Mr CC)	J Pty Ltd	$230,000
F Street, C Town (jointly held)	Joint	$395,000
Telstra Shares	Husband	$ 500
Motor vehicle	Wife	$ 5,000
4WD	Husband	$ 2,000
Van	Husband	$ 2,300
Total	$1,339,800

F Street mortgage	Joint	$ 290,016
H home loan	Husband	$ 297,934
F Street loan	Husband	$ 68,817
Total	$ 656,767
Net Balance	$ 683,033