Goldman and Goldman (No 2)

[2017] FamCA 531

FAMILY COURT OF AUSTRALIA

GOLDMAN & GOLDMAN (NO 2) [2017] FamCA 531

FAMILY LAW – CHILDREN – With whom a child lives – Where the children have an attenuated relationship with their father and a close dependent relationship with their mother – Where there is a need to protect the children from psychological harm arising from exposure to emotional abuse – Where the youngest child has been manipulated into coming to the conclusion that a complaint of sexual abuse should be made against the father – Concluded no weight can be given to the wishes of the children – Where the mother has a limited capacity to meet the children’s needs and to understand the impact of her conduct on their wellbeing – Where the evidence strongly supports the children will continue to refuse any supervised contact arrangements with their father – Concluded the father is a good enough parent to meet the children’s educational, financial, intellectual and emotional needs – Ordered the children live with the father  and initially spend no time with the mother for a period of four weeks.

FAMILY LAW – PROPERTY SETTLEMENT – Where both parties worked to capacity during the relationship – Where the father through his paid employment and the wife by the care of the children have contributed equally to their assets – Where the wife has had primary care of the children post-separation – Concluded contributions after separation warrant a five per cent adjustment in favour of the wife – Where the children will be in the primary care of the husband upon making of orders and the wife will not be in a position to pay child support – Where the wife borrowed from her parents to meet legal fees and the husband met costs from his late mother’s estate – Ordered distribution of 57.5/42.5 per cent in favour of the husband

Family Law Act 1975 (Cth), ss 60CC, 64B, 75, 79

Bevan & Bevan [2013] FamCAFC 116
Bondelmonte v Bondelmonte (2017) HCA 8
Stanford & Stanford (2012) 247 CLR 108

APPLICANT: Mr Goldman

RESPONDENT: Ms Goldman

INDEPENDENT CHILDREN’S LAWYER: Tiyce & Lawyers

FILE NUMBER: SYC 3001 of 2015

DATE DELIVERED: 23 June 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 27 February – 3 March 2017 and 10 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Humphreys Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Wearne, Advocate

SOLICITOR FOR THE RESPONDENT: Reid Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Guterres

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Tiyce & Lawyers

Orders

Parenting

1. That all prior parenting orders in relation to B born … 2005 and C born … 2007 (“the children”) are discharged.

Parental responsibility

1. That the father shall have sole parental responsibility in relation to the care, welfare and development of the children.

2. The father shall keep the mother advised in writing (which includes email and SMS texts) of decisions taken by him in relation to the long term welfare of the children including but not limited to change of enrolment at school, referral for specialist medical advice, therapists engaged for the children and religious instruction.

3. That the father shall provide to the mother; copies of all school reports, and application forms to purchase school photographs within 14 days of them being made available to the father.

4. That the father be restrained from doing anything before 2018 to change the enrolment of the children at the D School (other than for progression to high school) without prior consultation with the children’s therapist and the principal of the school.

5. That from the commencement of unsupervised time pursuant to Order 12(c) herein, the mother may, subject to any direction otherwise by the principal of the children’s school, attend those events at school to which parents are invited.

Therapy for the children

1. That upon the making of these orders, the father shall make an appointment at the earliest available time for the children to attend upon a clinical psychologist (“the therapist”) for the purpose of therapeutic counselling and the children shall continue to attend on such therapist for such period of time as recommended by that therapist NOTING that the Single Expert child and family psychiatrist has recommended Dr E clinical psychologist of F Group as a suitable therapist.

2. Each of the parents shall co-operate with all reasonable requests made by the therapist, (if any are made), for the involvement of that party, by provision of information and in any other way.

3. The father shall provide the following documents to the therapist:

   (a)These orders and reasons for judgment;

   (b)Reports of Dr G dated 20 September 2016 and 8 February 2017; and

   (c)Child Dispute Conference Memorandum dated 2 November 2015.

Residence

1. That the children shall live with the father commencing forthwith NOTING that the father may choose to have the children live at first with Ms H (“the paternal aunt”) for a period determined by the father in consultation with the paternal aunt.

2. That the father is restrained from establishing a permanent residence for the children outside the Commonwealth of Australia.

Time with mother

1. That the mother spend time with the children, commencing not before four weeks have elapsed after the date of these orders, as follows:

   (a)      At a supervised contact centre:

   (i)For up to two (2) hours on the third Sunday of each month for three (3) months; and thereafter

   (ii)For up to two (2) hours on the first and third Sunday of each month for a period of three (3) months; and thereafter

   (b)With a supervisor, either agreed to, or appointed by, the father from 10.00 am to 4.00 pm on the first and third Sundays of each month for a period of six months; and thereafter

   (c)Unsupervised from 9.00 am to 5.00 pm on the first and third Sundays of each month; with changeovers to be at a supervised contact centre unless otherwise agreed; and

   (d)At such other and or additional times, if any, agreed between the parties.

2. Orders for time spent with the mother shall be suspended for four weeks during the Christmas school holiday period each alternate year (commencing 2018/2019 holiday period) with the father to advise the mother in writing of the proposed suspended period, three months in advance.

Overseas travel

1. That for a period of twelve months from the date of these orders the father shall be restrained from removing the children from the Commonwealth of Australia.

2. Subject to Order 14 the father may travel overseas with the children provided that he advises the mother in writing of:

   (a)       The date of departure and return;

   (b)       The countries to be visited;

   (c)       Contact details for the father during the period of travel.

Restraints

1. That the mother is restrained from contacting the children and spending time with them, at home, at school and in any other place and by any other method other than in accordance with these orders.

2. That each of the parties shall refrain from making critical or derogatory remarks about the other or members of their family in the presence or within the hearing of the children, or either of them, and that the parties shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other or members of their family in the presence or within the hearing of the children, or either of them.

3. That each of the parties be restrained by injunction from discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings, with or in the presence or hearing of the children, or either of them, and from permitting any other person to do so.

4. That the parties be restrained from having the children attend upon Ms J for counselling other than for one formal farewell session at the sole discretion of the father.

Independent Children’s Lawyer

1. The appointment of the Independent Children’s Lawyer (“ICL”) is extended for a period of three (3) months from the date of these orders.

2. The ICL shall provide to the principal of the school/s which the children attend (presently D School) a copy of these orders.

3. The ICL shall provide to JIRT a copy these orders and reasons for judgment.

Property

1. That within 42 days of the date of these orders the father transfer to the mother all his right, title and interest in the property situate at K Street, Suburb L (“the Suburb L property”).

2. Simultaneously with transfer pursuant to Order 23 the mother pay to the father the sum of $275,230.

3. That the mother must refinance the debt secured on the Suburb L property and must indemnify the father against any liability for outgoings in respect of the property referred to in Order 23 above and any liability in respect of any mortgage or charge thereon.

4. In the event that the mother has not complied with Order 24 above within the stated time then the parties must do all acts and execute all documents necessary to sell the Suburb L property by public auction, to be held on or before 120 days from the date of these orders.

5. The reserve price is $900,000 or such other price as the parties agree.

6. The parties must do all acts and execute all documents to cause the proceeds of sale of the property be used as follows:

   (a)To pay the reasonable expenses of the sale including agent’s commission, legal costs and disbursements;

   (b)To discharge the mortgages secured on the property to FF Bank home loans …00 and …01;

   (c)To pay rate adjustments other than those amounts otherwise payable by one of the parties pursuant to these orders;

   (d)To pay 45.75 per cent of the balance to the father and 54.25 per cent to the mother.

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 Goldman & Goldman (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC3001/2015

Mr Goldman

Applicant

And

Ms Goldman

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications in respect of:

   a)Parenting arrangements for two children, girls aged twelve and nine years respectively; and

   b)Adjustment of interests in matrimonial property.

2. The parties began living together late in 1999 and married at the end of that year.

3. They differ on the date of separation. The husband asserts that there was separation under the one roof from at least August 2013, but perhaps some years before. The wife denies that proposition and asserts separation took place when the husband left the family home in July 2014.

4. After a defended divorce application the parties were ultimately divorced in April 2016 on the application of the father.

The Parties

1. The applicant is the husband and father, aged 44. He works in the financial sector and has recently returned to that occupation after a period of casual employment unrelated to his qualifications.

2. The father lives on the northern beaches of Sydney. The suburb in which he lives, but not his address, was disclosed. His household consists of himself and at times, when she is in Australia, his fiancée Ms M, who otherwise lives in her country of origin, the United States of America.

3. The respondent is the wife and mother, aged 45 years. She is not in paid employment and has not been since before the birth of the first child in 2005. The mother receives some financial support from her parents but otherwise relies on Centrelink benefits.

4. At the commencement of the relationship the mother worked on a casual contract basis. Her household consists of herself and the subject children. They live in the apartment in Suburb L which was the former matrimonial home.

Applications of the Parties

Parenting

1. The application of the father is for the children to come to live with him and for sole parental responsibility. The father’s proposal is that he return to live in the former matrimonial home with the children to the exclusion of the mother. He proposes that there be a period of 36 months from date of orders that the children spend no time with their mother or in the alternative, whatever period of time might be recommended by the Single Expert who prepared the report in this case. There are other orders sought relating to specific issues and restraints.[1]

   [1] Third Amended Initiating Application of the father filed 7/02/2017

2. The application of the mother is that the children continue to live with her in the family home and for sole parental responsibility. She proposes that the children see their father on four occasions each year or in the alternative, if no contact service is willing or able to provide such a service, that there be no time at all. There are other orders proposed relating to specific issues and restraints.

3. Evidently the one point of agreement between the parties is that the children should be raised by one of them to the exclusion of the other. It is a grim prospect for two young girls who at least until the physical separation of their parents, two and a half years ago, loved each of them in a fairly uncomplicated way.

Issues

1. Whether the statutory presumption in relation to equal shared parental responsibility applies, or does not apply because of abuse of a child or family member, or family violence.

2. Whether the presumption is rebutted by other evidence that satisfies the Court that it would not be in the best interests for the children for their parents to share equally parental responsibility for them.

3. The capacity of each parent to provide for the children’s needs; physical, emotional, psychological, financial and educational needs.

4. Whether there is an unacceptable risk of sexual harm if the children were to spend unsupervised time with the father and within that issue, whether disclosures of sexual abuse made by one of the children have been made independently and spontaneously or under pressure from another person and whether the Joint Investigation Response Team (“JIRT”) investigation into the disclosures made by one of the children has been corrupted by the actions of the children’s counsellor.

5. Whether there should be a change of residence for the children from the mother to the father and in the event of a change of residence, how that transition should take place.

6. Whoever the children live with, the time and communication, if any, should be with the other parent and under what circumstances, including but not limited to, supervision.

7. Whether the trauma counselling which the children have been receiving since December 2015 should continue with their present counsellor or at all.

Property

1. There is an issue over the treatment of an inheritance received by the husband post-separation.

2. The parties each wish to exclusively retain and live with the children in the former matrimonial home.

3. The husband contends for a division of assets of 70/30 per cent in his favour assuming residence of the children with him.

4. The wife contends for a division of assets of 75/25 per cent in her favour assuming residence of the children with her.

History of Relevant Events

1. In 1999 the parties met and commenced living together shortly thereafter.

2. The father had, late in the previous year, experienced an episode of drug induced psychosis and was hospitalised in the psychiatric wing of N Hospital. The drug use related to marijuana and ecstasy.

3. There is no dispute that the father was candid with the mother about that experience. The evidence is that the father had a preliminary or differential diagnosis of Bi-Polar Disorder but that diagnosis was abandoned after the father responded well to three months of anti-psychotic treatment, supervised by a psychiatrist Dr O.[2]

   [2] Single Expert Report dated 20 September 2016, par 37

4. It was a serious episode. The father was sedated over resistance by him; he remained in a locked ward for two weeks prior to discharge and remained in the Mental Health Unit for a total of six weeks as he lacked appropriate accommodation, his family being unwilling to support him on discharge.

5. The father remained estranged thereafter from his family of origin for many years.

6. When the parties married in 1999 there were no family members of either of them present.

7. There is some evidence about the relationship between the mother and her extended family.

8. It is an agreed fact that the maternal grandfather saw the youngest subject child for the first time when she was seven. There was also distance, if not estrangement, between the mother and most of her extended maternal family who live on the border of New South Wales and Victoria.

9. The parties were supportive of each other and it appears there were few other people involved in their early married life.

10. The parties lived in Suburb L, a suburb in northern Sydney, in rented accommodation and saved for a deposit on a house.

11. The maternal grandmother apparently gave the mother a gift of $20,000. It may or may not have been this source of funds that enabled the mother to pay off the father’s HECS debt, if she did. The father denies that she did. It may or may not have been in response to the news that the mother was expecting the parties’ first child the year following the gift.

12. In 2005 the first subject child B was born and is now 12 years old in Year 6 at primary school.

13. In 2006 the paternal grandfather died. The father attended his funeral but there was no reconciliation with his family. It is uncontroversial that the paternal grandfather was an alcoholic and the father had a conflicted relationship, both with him and the paternal grandmother.

14. The mother alleges that in October 2006 she was pregnant with the parties’ second child and that as a result of the father punching her in the stomach without warning, that pregnancy was lost. There is no evidence which corroborates that claim, which the father denies. I will consider that allegation in the context of allegations of family violence.

15. In 2007 the second subject child was born. She is now aged nine and is in Year 4 at primary school.

16. By November 2007 the parties were in a position to borrow to purchase a property in the same suburb in which they had been renting. I will refer to that matter further in the reasons for property orders.

17. There followed six or seven years of raising the children; the father working full time to support the family; and the mother at home with the children. Nevertheless, the father was involved in the day to day care of the children. Once they were at school there was a pattern of the parents together dropping the children at school and the mother delivering the father to work. The same in the afternoon, with the mother collecting the father from work and together the children from school. The father then returning to work after the children were in bed.

18. The relationship appears to have had some oddities.

19. One example of that is that the mother chose for the older child to do karate from aged three for about two years before she changed to gymnastics. The father says this:

    Although I did not mind [B] learning karate, I did not agree with [Ms Goldman] insisting that [B] take part in competitions (actual fighting). [Ms Goldman] made [B] fight when she was four and [B] was terribly afraid to do so and would cry in fear. [Ms Goldman] insisted [B] participate, [Ms Goldman] laughed at [B] trying to defend herself and punch and kick the opponent.

20. The father asserts that the mother became easily engaged in conflict with people who lived in their block of units and in one case, a parent at school whom the mother accused of bullying the older child when she was in kindergarten.

1. Further, the mother was inclined to visit the father at the workplace alone or with the children, interrupting client meetings or other work based activities. This is supported by the evidence of a former client of the father’s Ms P.[3]

   [3] Affidavit of Ms P filed 30/01/2017, par 4

2. The sexual relationship between the parties ended either after the second child was conceived at the end of 2006 [father] or in mid-2014 [mother].

3. From the time they moved into the matrimonial home, the parties did not sleep together in the same room. The younger child, then a young baby, slept with her mother, and the father slept either on the couch or in the second bedroom.

4. By 2010 the marital relationship was clearly under strain. The father says he began to leave the home for periods of two to three days at a time, staying with a work colleague but returning home because “he missed his children.”

5. The father was not challenged on his evidence that each year after 2009 when he asked the mother what she wanted for her birthday, she said “You know what I want, I want a divorce”.[4]

   [4] Affidavit of the father filed 30/01/2017, par 60

6. In around 2012 the parties installed double decker bunkbeds in the second bedroom which ran the full length of one wall. Thereafter, the father slept on the top bunk bed and the older child, B, slept in the bottom bunk bed. The younger child C remained sleeping with the mother.

7. In mid-2012 the father spent a short amount of time living with his own mother at her home close by. After that break, the father thereafter attended to all his own domestic needs whilst continuing to sleep in the second bedroom.

8. In mid-2013 the mother took the older child, B, to cognitive behaviour therapy at a University centre. The father understood and, the mother agrees, that the primary reason of the child’s attendance was her fear of dogs relating to an incident when she was a very young child.

9. After the first intake session the mother told the father the following:

   I’ve told them about all the times you’ve yelled at me with the children around. They are so concerned with your behaviour [Mr Goldman] that they considered reporting you to the police on my behalf. I told them not to, however. You are lucky I’m on your side.[5]

   [5] Affidavit of the father filed 30/01/2017, par 63

10. The father dismissed the mother’s comments as unlikely. After separation he spoke to the University centre, before their records had been subpoenaed, and asked about the claim reported above. He was told and the subpoenaed material confirmed that no such conversation had taken place.

11. By mid-2013 the father was under pressure at work, unhappy at home and he again moved out to stay with a friend and fellow surfer. However he made the decision to return to live in the property for the sake of the children. Thereafter he considered himself to be officially separated from the mother under the one roof.

12. In November 2013 the paternal grandmother died.

13. In April 2014 the mother required surgery to remove her gall bladder and the father cared for the children.

14. Again there is a strange episode where the father asserts that on 6 April 2014 the mother told him that she had spoken to a manager where he worked and obtained a written statement from that manager detailing the father’s depression “… to have on file to support my case of you not being able to see the children due to psychological reasons.”[6]  When the father asked this colleague whether there had been such a conversation she denied it.

    [6] Affidavit of the father filed 30/01/2017, par 68

15. The father also alleges and was not challenged on his statement that the mother told him that she had taken statements from his brothers and sisters to say that “You’ve got emotional problems, mental issues, they are only too happy to ruin your life.”

16. On her own evidence the mother did not make any contact with the father’s family until July 2014 after physical separation took place.

17. For her part, the mother said that in those years she attended all of the significant events at the children’s schools and although she encouraged the father he refused, saying “It’s not my job, it’s your role as a wife”. She refers to him in a bad mood and grumpy with the children, working long hours and reluctant to be involved in the family.

18. In May 2014 the father received the first part of an inheritance from his late mother. Deciding that he was in a position to afford to establish a second household he had a conversation with the mother and told her that he wished to be divorced and was leaving the home.

19. The mother, in her trial affidavit, complained about the father’s deteriorating mental health and abusive conduct during the marriage.[7] Despite these concerns and complaints the mother reacted negatively to the possibility of permanent separation and divorce.

    [7] Affidavit of the mother filed 7/02/2017, pars 40-45 and 52-84

20. I note that in response to the father’s application for a divorce, the mother filed a Defence and an affidavit by her which included this statement:[8]

    I was shocked by this [request for divorce] because [Mr Goldman] had never said anything like this to me before or let me know he wasn’t happy in our marriage.

    [8] Affidavit of the mother filed 23/06/2015, par 36

21. The mother made strenuous efforts to keep the relationship on foot; she initiated counselling which the parties attended, however, the father was adamant about separation.

22. The mother took the children and stayed with her parents in their home in R Town on the border of New South Wales and Victoria. Tendered into evidence were transcripts of recorded telephone calls between the parties, first on 17 July 2014 and then 8 August 2014.[9]  It is apparent from those conversations that the parties were at that time able to speak to each other civilly and as parents.

    [9] Exhibit 13 – transcript and USB

23. On 17 July 2014 the mother advised the father:

    Mother[C] wants to come back to Sydney straight away.

    FatherI know she does, I know.

    MotherI think that would be best for her. I can send her up on a plane and you can look after her up there or something.

    FatherI don’t think it’s wise sending a seven year old on a plane on her own [Ms Goldman], especially with [C’s] previous year history.

24. The conversations focused on the children’s distress about the possibility of their parents separating. The mother was strongly advocating on behalf of the children that the father should try to remain in the marriage. I conclude that the mother was struggling to care for the children. She repeatedly told the father to try:

    MotherDo try and do what they ask [Mr Goldman], just try for something, for something not to get us back together but trying something for them.

    Father           But what does that mean [Ms Goldman] for you?

    MotherI don’t know, it’s not for me, is because there is no relationship [Mr Goldman], ok there is any relationship. The marriage is over, I’m not asking you to try and go and get a relationship together, they’re asking you to try and be a family.

    FatherYep, that’s right, they are and we are maybe going to have to talk to them and help them [Ms Goldman], cope with the fact.

    MotherDo you know what?

    FatherI haven’t finished what I’m saying, we’re going to have to try and help them cope with the fact that I’m still going to be their father and I’m still going to love them and they can still have their life and live with their mother but we’re just going to be living in separate houses.

25. The conversations are entirely inconsistent with the evidence given by the mother in these proceedings that the father was mentally ill and abusive prior to separation. For instance, the mother had said that just prior to separation the older child had complained to her that the father had thrown her against the wall on the bed where she had hit her head, the child saying “… I hate him, he’s a terrible father”.[10]

    [10] Affidavit of the mother filed 7/02/2017, par 45

26. Also, in July 2014, at or around the time of separation, the father first made contact with Ms M, who is now his fiancée and whom he intends to marry. He was referred by a homeopath friend to Ms M as somebody who might share his views and philosophy on emotional healing. Ms M gave evidence in these proceedings.

27. I am unclear as to when the mother became aware of the friendship which quickly developed into a relationship between the father and Ms M. The shock felt by the mother over the new relationship has reverberated through these proceedings.

28. Soon after separation the mother made contact with the father’s sister by telephone. She telephoned regularly and had many long conversations about the breakdown of the relationship. The paternal aunt said that in those conversations the mother had alleged the following matters:

    ·That the father had engaged in unethical work practices;

    ·That he had been to the United States of America and joined a cult; and

    ·That he had unstable mental health.

29. I conclude that the mother was motivated by hurt and vengeful feelings and hoped by making the contact with the father’s family she would garner support for herself, which she did.

30. The paternal aunt was clear to say that the mother never mentioned any abuse of the children at that point in mid-2014.

31. The paternal aunt was surprised to be contacted after 15 years of silence from her brother and his wife but was clearly pleased at the opportunity to build family relationships with her sister-in-law and nieces.

32. On 26 July 2014 the father alleges that the mother said to him in anger “I think I will have to tell them you have interfered with [B]”. The mother denied that she said any such thing. However it is clear that the mother was in an uncontained emotional state and distressed about the breakdown of the marriage. It is also clear that she was unable to protect the children from her hurt feelings.

33. In a conversation on 8 August 2014 between the parties there is this exchange between the father and the younger child C who interrupted the conversation on her mother’s end of the telephone call, to ask her father whether he had taken a picture off the wall in the apartment and then this:

    [C]Dad, please tell me, who are you sleeping with?

    FatherWho is saying that [C]? What are you talking about?  Who is telling you that information [C]?

    Mother I’m definitely not.

    FatherWell, where does she come up with things like that?

    MotherI don’t know [Mr Goldman].

34. The child pressed the subject and the father deftly explained to the child what his sleeping arrangements were in the place where he was staying and reassured her that he loved her. At the time of that conversation the child had just turned seven.

35. On 8 August 2014 there had been no difficulties in arranging for the father to see the children. He suggested meeting at the beach and the mother readily and easily agreed.[11]

    [11] Exhibit 13 – conversation of 8/8/2014, page 1

36. Later in August 2014 the mother began taking the children to art therapy counselling at the S Centre. She became reluctant to arrange for the father to see the children.

37. I note that the mother resisted the tendering into evidence of the two telephone calls on the basis that she had never consented to any calls being recorded. This was untrue.

38. During the course of the second conversation there is this exchange:

    FatherOh [Ms Goldman] well I’ve got a record of everything. I’m recording conversations with you [Ms Goldman] so you know what?

    MotherThat’s fine. It doesn’t mean anything at the end of the day.

    FatherNot really [Ms Goldman].

    MotherI don’t know why you do it, it’s ridiculous.

    FatherIt’s not ridiculous when you get lied to like I do from you.

39. In September 2014 the father began visiting the children at school. The principal arranged to be present while the children saw their father. They were at first only too happy to do so. Photographs were tendered into evidence of the children with their father, happy, smiling and physically affectionate.[12]

    [12] Exhibit 6

40. The mother and children were invited to, and attended, the 2014 family Christmas with the extended paternal family. The father was not invited.

41. In February 2015 the father resigned from work.

42. In March 2015 the father saw the children on two occasions at school and the mother was swift to complain to the principal about that having happened.

43. On 12 May 2015 the father filed his Application for Divorce. He then spent two or three months in the United States of America visiting Ms M. The father concedes that the children may well have felt abandoned during that period.

Property proceedings commence in the Federal Circuit Court

1. On 16 June 2015, the father filed in the Federal Circuit Court his Initiating Application in respect of property proceedings.

2. Unsurprisingly he was asked by counsel for the Independent Children’s Lawyer (“ICL”) why he had not included an application for parenting orders given the difficulties he was by then experiencing in having any contact with the children at all. There was no child focused response.

3. I conclude that at that stage the father held a belief that emotions would settle down and in due course he would see the children again. I am also comfortably satisfied that the father was relishing his independence and new relationship and that whilst he very much loves his children, he was focused on his own needs at that time and not on theirs.

4. On his return from the United States of America in July 2015 the father again visited the children at school, the older child refused to acknowledge him.

5. Three days later the father saw the younger child at school and delivered a birthday gift for her.

6. In the face of the mother’s opposition to divorce, the father filed a Notice of Discontinuance in relation to the divorce proceedings. He then proceeded to travel to the United States of America for another extended visit. It was certainly not what his children needed at that time and I conclude that the father misread the situation entirely in terms of the children’s emotional needs.

Parenting proceedings commence in the Federal Circuit Court

1. In October 2015 the father returned to Australia.

2. On 22 October 2015 he filed in the Federal Circuit Court an Amended Initiating Application introducing parenting orders.

3. At that time he proposed that the children live with the mother and spend time with him each Sunday from 2.00 pm to 4.00 pm supervised and as otherwise agreed.

4. That order was sought as a final order and it is apparent that even at that stage the father was not giving full attention by any means to the needs of the children. This is despite the fact that at the same time the father filed a Notice of Risk alleging that the mother was emotionally abusing the children and denying them a relationship with him.

First interim parenting orders - October 2015

1. On 23 October 2015 interim orders were made in the Federal Circuit Court for the children to live with the mother and spend time with the father by arrangement between the parties.

2. On 29 October 2015 the father attended the children’s school as a result of a report that the older child had hit her friend.

Child Dispute Conference

1. On 2 November 2015 the parties attended a Child Dispute Conference and were interviewed separately.

2. At that time the father indicated that he was seeking equal shared parental responsibility and that he would like to spend unsupervised time with the children for half a day each week.

3. The mother’s proposal at that time was for sole parental responsibility and that the children spend supervised time with the father for one hour each week for a period of approximately six to nine weeks and then for that time to be increased depending on the safety of the children and the father’s mental health.

4. The Family Consultant noted that there were at that time disputed allegations of family violence made by each parent against the other. The mother stating that she had been to the police on a number of occasions due to the father’s alleged aggressive and threatening behaviour but that she had not pursued an Apprehended Violence Order for her protection as feared this might inflame the situation.[13] 

   [13] Child Dispute Conference Memorandum dated 2/11/2015,  page 1

5. The mother alleged that the father had punched her and raised his hand to strike her in the presence of the children and that she had had to physically defend herself against the father.

6. The father denied that he had been abusive towards the mother in any way. He alleged that the mother had been verbally and psychologically abusive towards him and that he had suffered from a syndrome as a result. He claimed that the mother had always been critical of his parenting capacity and undermined his relationship with the children.

7. There is a heading “Child Protection Issues” in the memorandum to the Court which notes the following:

   That the mother asserted that the father had been physically abusive towards the children at times throughout their relationship by kicking and punching them. This is not something that has been alleged in her trial affidavit. She also asserted that he had turned up at the children’s school unannounced which had resulted in them feeling worried and distressed and that he might attempt to remove the children from the school.

8. The evidence suggests that the father had attended at the children’s school, as his only means of seeing them and that initially at least they had been pleased to see him and happy in his company, although the mother herself became worried and distressed that he had done so.

9. The father told the Family Consultant that the mother had threatened to fabricate allegations that he had sexually abused the children.

10. He also alleged that the mother was emotionally and psychologically abusive towards the children and he believed that the children feared reprisal from the mother if they tell her that they wanted to spend time with the father or that they had enjoyed time with him.

11. The mother advised the Family Consultant that her counsellor and the children’s counsellor had made reports to the Department of Family and Community Services (“the Department”). The evidence supports a finding that the mother’s counsellor became the children’s counsellor and did indeed make a notification to the Department.

12. Under the heading “Parental Mental Health” the Family Consultant notes that the mother quite accurately reported to him that just prior to their relationship the father had had a drug induced psychotic episode and was hospitalised for a considerable period of time. Also that she believed that at the time he was hospitalised the father was diagnosed with Bi-Polar Disorder.

13. The mother did not say that that diagnosis had not been substantiated. However she went on to say that the father was psychiatrically unwell at the time of the Child Dispute Conference and had been “for a number of years”.[14]  She made some “startling reports” that the father had:

    … thought that he is Jesus; has been paranoid; prepared for the end of the world by buying bulk food, water, gas bottles and petrol; wanted to purchase gas masks from NASA; placed “truth rocks” around the house; rubbed star dust on the children’s forehead each morning to protect them.

    [14] Child Dispute Conference Memorandum dated 2/11/2015, page 2 point 7

14. The mother also asserted that she on reflection she believed she had minimised the father’s ill mental health due to her having a health care background. She said that she had asked the father to seek psychiatric help but he had declined believing that hospitals and the health system are “against us”.

15. Other than the father’s reference to having used glitter in a game with the children none of that material appears in the mother’s trial affidavit.

16. The father, when asked by the Family Consultant, denied suffering from any current mental health problem and confirmed that he had a drug induced psychosis in 1998 which was a one off event and had had no subsequent mental health issues. That assertion accords with the evidence and also the fact that the father consistently had full time employment at an increasingly senior level throughout the relationship.

1. The Family Consultant noted that by that time, November 2015, almost 18 months after separation the co-parenting relationship appeared to have completely broken down.

2. The issues for the children, apart from not seeing their father, were that B, the older child, had had behavioural issues at school and had slapped another student in the face.

3. The father described the child as being a bully at school.

4. The mother asserted that other children at the children’s school sometimes approached them and told them that “Their father is a nice man and that their mother is mean”. She asserted that the father was speaking to other children’s parents and staff at the school, telling them that the mother would not allow the children to spend time with him. This accords with the evidence and the supporting affidavits in the father’s case. It also accords with the fact that the mother was not allowing the children to spend time with the father by that time.

5. The father told the Family Consultant that he believed that the mother had convinced the children that he was a danger to them, he also believed that she was coaching the children. His underlying belief was that the children missed him and would like to spend more time with him. That is certainly consistent with the evidence of the telephone calls post-separation, the children’s begging and pleading with the father to come home and their pleasure at seeing him at school at least initially.

6. Unsurprisingly the Family Consultant concluded that both children were probably stressed and anxious about the troubling adult dynamics as alleged by both parents.

7. The Family Consultant recommended the appointment of an ICL and a Chapter 15 Single Expert Report given the counter allegations of mental illness and safety concerns.

8. On 9 November 2015 the husband filed a Further Amended Initiating Application. The parenting orders sought then were equal shared parental responsibility, residence with the mother, time with the father each Sunday for four hours and after four weeks, each alternate Sunday 10.00 am to 6.00 pm unsupervised. He sought other orders in relation to non-denigration and provision for communication and also overseas travel.

9. On 14 November 2015 the father made contact with his sister Ms H (“the paternal aunt”) which was the beginning of a reconciliation between the two siblings. Given the mother’s negative attitude to the paternal aunt when the aunt subsequently began supervising time between the father and the children, it is likely that the reconciliation of the father and his sister was a turning point for the mother. I consider that the mother either lost confidence in the paternal aunt or, more likely saw her as no longer useful. Certainly the mother no longer wished to maintain an independent relationship with her.

10. On 30 November 2015 the wife filed a further Response. At that time her application for parenting orders was that she have sole parental responsibility for the children, that they live with her and spend time with the father each alternate Sunday from 3.00 pm to 7.00 pm with the father under supervision of a person either known to the children or at a contact centre. The same order was proposed on an interim basis.

11. On that same day the mother filed a Notice of Risk alleging that the father had physically struck B, the older child, that he denigrated the children and that the mother was concerned about his mental health.

12. On 2 December 2015 a report was prepared by the S Centre which the children had been attending since August 2014. There had been “17 sessions of child centred non-directive play and creative arts therapy.”[15]

    [15] Exhibit 20

13. The recommendations of that report were that the children continue with activities that increased their confidence and pro-social skills such as gymnastics and music; that they needed outlets for the appropriate expression of any anger, frustration and confusion and anxiety. Both children needed to feel safe in their home and school environment. I note that the ultimate recommendation was this:

    Ideally [B] and [C] need to spend time with both parents in a predictable and safe arrangement. Also recommended to both parents is either a ‘Keeping Kids in Mind’ course or ‘Tuning into Kids’.

Orders for supervised time - 4 December 2015

1. On 4 December 2015 what is described as Interim Interim Consent Orders were made providing for the children to live with the mother and spend time with the father supervised by the husband’s sister Ms H to occur at the home of Ms H.

2. There followed a series of supervised visits, increasingly unsuccessful which ultimately failed with the children refusing to get out of the car on arrival at the paternal aunt’s home and the mother being either unwilling or unable or both, to direct them to do so.

3. The first visit took place on 12 December 2015. It was the best of the visits that followed, but clearly unsatisfactory.

4. The mother’s account is as follows: That she delivered the children to the aunt’s home, arriving 20 minutes early. Rather than go in, she parked in a street parallel to the aunt’s street. She and the children remained in the car until the scheduled commencement time. This is despite the fact that both the mother and the children were very familiar with the aunt’s home from having visited there and spent the previous Christmas with the family there and that the subject children were well known to their older cousins whom they very much liked. The mother says that whilst she was waiting in the car with the children she noticed the father drive past where they were parked.

5. At the appointed time the mother walked with the children to the aunt’s front door. She described the children as appearing nervous and staying close to her despite having been to the house at least four times in the past year. Each of them is reported to have said to her “I don’t want to go in, I don’t want to see him, I don’t want to be in the same room as him”. The mother reports herself as responding “Don’t worry, nothing is going to happen, [Ms H] will look after you”. The aunt and her daughters came to the front door and the children went inside, the door was closed. The mother did not see the father. The mother returned to the home of the aunt at 7.00 pm with a friend. The children came out and the mother reports as soon as they came out, both children said to her “I don’t want to go back, please don’t make us go back”. In the car on the way home the mother reports herself as saying to the children “How was that? Did you have a nice time seeing [Mr Goldman], [Ms H] and your cousins?” and the children responded,

   It was terrible, we went straight in and locked ourselves in the bathroom. We didn’t want to see him. [Ms H] was knocking on the door to get us out. [T] [a cousin] came to see if we were ok and after a while we went out to play with her. We made a cake and then we sat down to have dinner. We didn’t want to eat anything but we sat at the table anyway.

6. The paternal aunt also provided an account of that first visit.[16] 

   [16] Affidavit of Ms H filed 30/01/2017, par 10

7. She said at the beginning of the visit she opened the front door and found the mother standing several metres away so it was “a bit difficult to talk to her.”  The mother was standing with her arms around the two children and was holding on to B, the older child. The aunt reports that the mother did not look happy and did not greet her.

8. The aunt spoke to the girls and invited them to come in. She said she told them that they were preparing a birthday cake for C and making roast chicken for dinner. The girls appeared distressed, particularly B, and did not make a move to come. B was saying “I don’t want to see him, I don’t want him to touch me”. The aunt said she continued to encourage them to come inside the house. The aunt noted that the mother did not say anything to help them come in and also that the older child continued to hold on to her mother but that the younger child C seemed unsure what to do.

9. The aunt had the family dog with her at the door on a lead and the mother is reported to have said to the aunt “Put that dog outside as the girls are terrified of her today”. It was said in such a way as to be received as a command by the aunt rather than a request and she found it rude.

10. Altogether the aunt was surprised by the mother’s attitude because she had previously enjoyed hospitality in her home many times, yet on this occasion the mother did not even say “hello”.

11. I accept the aunt’s evidence in that regard, especially as the mother and children had been invited to attend the Goldman family Christmas in two weeks’ time (which they ultimately did). Again, the father was not invited and was not present for the Christmas Day.

12. One of the children’s cousins came to the door to greet the children but B is reported to have continued to say “I don’t want to see him”. The aunt formed the impression that once the children saw their teenage cousins they became more comfortable about coming in. The aunt reports the mother making this comment, “He will be on his best behaviour today”. Before leaving them the mother is reported to have said to the children “I will be just around the corner at a friend’s house”. Once the children were in the house, the aunt took the children to the father who had been sitting in the back room. They resisted approaching or sitting next to their father and when he greeted them they ran into the bathroom and locked the door.

13. The aunt went to the bathroom and told B to unlock the door and come out which she did. The aunt heard B ask her father “Why did you take our car?” The aunt felt quite upset to see the children so reluctant to be with their father. They would not allow him to give them a hug and continually said “don’t touch me”. They also repeatedly mentioned the father having “taken their car.”

14. An older cousin then spent time with the children and allowed them to play with the family pets. Later they decorated a birthday cake and C in particular appeared to be enjoying herself.

15. At 7.00 pm when the mother arrived to collect the children together with her friend Ms U, the aunt reports that the mother was standing at some distance from the door and she said to the mother “It must be a difficult time for all of you” and also “You are always welcome at my home”. The aunt reports that the mother was obviously not happy with her and said in a strong voice “It is a difficult time for them, you need to know that you have broken their trust”. She repeated this several times.

16. I infer that the mother was referring to the fact that the aunt was assisting her brother with the supervision of visits and that the mother was angry about this. The aunt withdrew from the conversation having identified that the mother was angry with her. The children then came with some left over cake and farewells were said.

17. Later the aunt reports that her older daughter, who would then have been about 15, told her mother that she had said “hello” to the mother who had not replied but given her a “half-hearted wave”. That cousin also told her mother that B had said to her “[Mr Goldman] used to hit us and one time had thrown me against the wall”.

18. The father’s version of this event is that his visits, only one or two hours in duration, were reduced on each occasion as they were on the first occasion by delay in the children coming in. The father reports that when the children came into the house and saw him, B just “stared at me in an angry manner, full of emotions.”[17] This had been his first interaction with the child in seven months. He asked “Are you ok?” But B ran to the bathroom and locked herself and her sister inside.

    [17] Affidavit of the father filed 30/01/2017, par 132

19. The father observed that the children looked nervous and did not seem to want to be in the same room with him or interact with him. He said he had never experienced his children behaving this way towards him before and that he tried his best to put them at ease. The father reports that the first thing B said to him was “Why did you take our car?” and later “Why did you leave Mummy, she is the nicest person in the world?”  C asked “Why did you take the car from us?  Are you going to sell the home on us?  Why won’t you come back and live with us?”  C apparently also blurted out “If you have any presents for us we don’t want any”. The father did not interpret these statements as spontaneous by the children and chose not to react or respond.

20. The older child was adamant about not having any photographs taken. The father noticed that when they sat down for dinner both children appeared to have difficulty using their knife and fork and that at one point C simply ate her dinner, roast chicken and vegetables, with her hands. He thought their manners had deteriorated since he had left the home.

21. The next visit was similar, slightly worse, with both children reporting to their mother on the car trip home that their father had told them that the mother was going to die and that he had said it three times in a row. They also reported that they had been left alone with their father so their aunt had not heard what was being said.

22. B reported that “[Mr Goldman] brought us Christmas presents but we didn’t want to open them”. The children brought the gifts home; C opened hers but B is reported as refusing to do so.

Trauma therapy for children

1. On 24 December 2015 the children had their first consultation with the counsellor Ms J. Ms J had been their mother’s counsellor for many months. She had advised the mother that it was inappropriate for her to counsel both the mother and the children but rather than recommending a different counsellor for the children, she ceased seeing the mother and took up with the children. This has had significant adverse consequences for the children which I will detail in the analysis of Ms J’s evidence.

2. On 25 December 2015 the mother and the children attended the home of the father’s brother Mr V together with other paternal family members, including the aunt and the children’s two cousins, W and T.

3. The aunt reports that C seemed quite happy to be there, played with all the other cousins and spoke easily with the adults. B was more withdrawn and did not participate in the way she had done the previous Christmas however they both really enjoyed receiving the gifts that all the aunts and uncles brought for them. B would not participate in the family photograph of all the cousins together although the aunt reports that prior to this they had been happy to do so, presumably at the previous Christmas celebration.

Further interim orders – 28 January 2016

1. On 28 January 2016 the earlier interim orders were suspended and fresh interim orders were made. The parties were restrained from changing the children’s school because the mother had intended to do so. The father was restrained from attending at school to spend time with the children. Provision was made for the children to spend time with their father on alternate Sundays for four hours, supervised by the paternal aunt. The mother was to deliver and collect the children. The parties were enjoined not to question the children.

2. These orders played out in an even more emotionally destructive way than the earlier ones.

3. The first visit of this series from the father’s perspective was reasonably good despite the way it started.

4. The mother arrived with the children but sat in the car. The father and aunt approached the car indicating for the children to come in. The mother was about 50 to 75 metres away from the aunt’s home. The mother rolled down her window and addressing the aunt said “The girls don’t want to come”. The father observed B in the backseat hiding behind a book and C crouched all the way down to the floor mat behind the driver’s seat. B began screaming “I hate you, I hate you, I’m not getting out of the car”. The mother is reported to have sat passively.

5. The father asked the child why and she replied “Because you were rude to us. You never spent time with us and you were never there. You left us. Why did you leave us?”  At this point the mother turned to the child and said “I still don’t know why he left us” in a raised voice. Neither the mother nor her friend Ms X are reported to have calmed the child who went on to say “Why did you leave Mummy?”  The father explained that that was something for “Mummy and Daddy to discuss [B]. We can have a counselling session together with someone who would help us ask and answer these questions to help you.”  The mother then directed the father to stop talking to the child.

6. There was an hour and a half before the children got out of the car and came into the house.

7. Unfortunately the father took a one minute video of the mother who was standing by the car, speaking to the girls through a crack in the driver’s side front window. It was a very hot day and the aunt went into the house and brought a drink out for the older child. Both cousins made repeated attempts to encourage the children out of the car. C did get out of the car and the mother then got out of the car and held the child, she says in her oral evidence “to give her a hug”, the father and the aunt say that she held the child for between seven and 10 minutes.

8. However when the mother let C go she headed to the house and entered. The father describes C as appearing relieved and starting to relax. She sat with her cousins, had lunch. Her father asked her was she alright staying in the house if her sister chose to stay out in the car with her mother and the child replied “Yes” without hesitation.

9. There was then an approach by Ms X, the mother’s friend who asked for C to be brought out so her sister could speak to her. The aunt refused and said “[C] is here in the back room eating lunch, she is happy, she’ll continue with the visit if [B] doesn’t come. [B] is still welcome to join us”.[18]

   [18] Affidavit of the father filed 30/01/2017, par 148

10. The father asked C if he could take a photograph of her with her cousin T to which she replied “Yes, but don’t show it to anyone or tell anyone you took it”.

11. Ultimately after two hours there was another knock on the door and the mother appeared with B and reported that the child needed to use the toilet. The child then came back downstairs and decided to join her sister and the others at the lunch table. The father reports that the child’s attitude shifted immediately and there was ordinary relaxed conversation between all parties around the table. There was then a trip to play putt putt golf. The children are reported to have been relaxed and having fun.

12. The father says he had the opportunity in that visit to say to C “I love you” and the child replied “I know”. The father also asked B whether she had had a good time and she replied “Yes”. The father explained that they could have more time together if she did not take so long to get out of the car and he suggested that she simply ask her mother whether she could get out when they arrived so that they could spend more time perhaps at the beach or catching up on school work. He reports that the child smiled and agreed that she had had fun on that day and had felt safe and happy.

13. The mother’s version of that first visit of the new orders was[19] that the children had made it clear to her in the car trip over to the aunt’s home that they did not want to see their father; that they had not wanted to get out of the car; and that they had cried in the car when there had been an angry and abusive exchange between their parents.

    [19] Affidavit of the mother filed 7/02/2017, pars 140  and following

14. The father denied saying, as the mother alleged he did, “You are so fucking done over in Court, you are now in breach of the Court orders” when the children did not get out of the car. The aunt confirmed that he had said that and I accept her evidence corroborating that of the mother. However I do not accept the mother’s statement that the father said to C “If you do not get out of the car your mother is going to jail”.

1. Again unfortunately the father sent a text to his solicitor during the time the children were in the car. The sending is understandable enough, but he told the mother he was doing so which probably heightened the strain.

2. The mother reports that B told her that at putt putt golf she had put a golf ball in her top pocket and when her father saw her had said “Look you’re going through puberty” and laughed and that the older cousins had also laughed at her and that the child had reported “[Mr Goldman’s] comment made me very upset and embarrassed”. The father and the paternal aunt denied that any such exchange had happened. I consider it likely that given the pressure the children were under, particularly B, that such a story may have been fabricated by her or was a highly exaggerated account of a much simpler incident.

3. The following visits were much worse; the children hiding in the mother’s car and refusing to go into the house at all.

4. C rang the Children’s Helpline stating she was scared to see the father and that no one believed her. The oral evidence of Ms J, the counsellor, was that she had provided the telephone number of the Children’s Helpline to the child so I accept that C did make such a call. It is hard to understand why the children were encouraged to do that in the circumstances of Court ordered supervised contact visits.

More interim orders – 30 March 2016

1. On 30 March 2016 further interim orders were made by consent in the Federal Circuit Court, restraining the father recording or photographing the children, restraining the parties from filing affidavits unless associated with a particular application and directing that neither parent be present at changeovers at the aunt’s home.

2. The visits that followed those orders being made all failed. They must have been dreadful experiences for the children sitting in the car with their mother, refusing to get out and their mother not directing them to do so in any way.

Time with father ceases - May 2016

1. On 12 May 2016 unsurprisingly the father called any further visits off.

2. Between the time of the series of visits from 1 January 2016 onwards, the children were seen by Ms J on five occasions.

3. I am comfortably certain that Ms J did nothing to assist the children to manage their emotions and spend time with their father as orders required. I accept the evidence of Dr G that the children’s anxieties have been amplified by Ms J. She has been treating them for symptoms only, without reference to any diagnosis. The basis for her belief that they are traumatised children, victims of domestic violence, comes exclusively from her 10 or 12 sessions with the mother prior to taking on the counselling of the children. It is a most regrettable situation.

Interim Application - Property

1. The father filed an Application in a Case proposing the sale of the Suburb L property with a supporting affidavit attesting to the fact that the mortgage on the property was in default and that there could be mortgagee possession.

Second Further Initiating Application by father (Residence) - May 2016

1. On 31 May 2016 the husband filed a second Further Initiating Application this time proposing that he have sole parental responsibility for the children, that they live with him and that they spend time with their mother each alternate Sunday for two hours supervised.

2. Such an application is an obvious reaction to the breakdown of the relationship between the father and the children and the failure of the supervised visits.

3. On 19 June 2016 the mother with the children in the car drove past the father’s partner seated in the father’s car which had previously been a car used by both parties during the marriage.

4. Ms M alleges and the mother denies that the mother screamed at her “You bitch” so that the children would hear. I will consider that matter further in relation to the evidence given by Ms M.

5. Ms J continued to counsel the children through this period of time when the children were not seeing their father and had what she described as “regular catch-ups” with the mother when the progress or otherwise of the children was discussed.

6. During one of these sessions in June 2016 the mother related that B had asked about penises when she was aged nine or 10.

Yet more interim orders – August 2016

1. On 1 August 2016 another set of interim orders, by consent, was made in the Federal Circuit Court.

2. By this time it is most likely that the mother had decided that the children should not spend any time with the father so her consent to orders was not given with the intention to make every effort to comply.

3. Responsibility for the mortgage repayments was assigned to the mother and the children were ordered to spend supervised time with the father each alternate Sunday for two hours at Y Centre in Suburb Z.

4. On 3 August 2016 the mother told her current counsellor Dr AA that she was 90 per cent sure that there had been abuse of the children by their father.

5. On 21 August 2016 the visit at Y Centre failed. The mother again sat in the car with the children and they did not get out of the car. Every effort was made by the workers at Y Centre to encourage the children out of the car and to direct the mother to comply with the orders by delivering the children into the library which was the arrangement. All to no avail.

Interviews for Report of Single Expert

1. On 5 and 6 September 2016 the initial interviews with the Single Expert Dr G, child and family psychiatrist, took place. The interviews took place in the morning between 9.00 am and 11.00 am and at 1.00 pm respectively .On the afternoon of the second day the children were taken to see Ms J.

2. The girls were interviewed by the Single Expert together and separately. Both children regaled the Single Expert with complaints about their father, similar complaints being made by both girls.

3. B told Dr G:

   He’s done some pretty bad things to me in the past, some of the reasons are he’s gone red in the face at me, he’s hit me, hurt me, thrown me against the wall and I don’t like that. He meant it because he was angry that I did something wrong. I don’t remember but I definitely remember him throwing me against the wall. I think I was about maybe eight or nine.

4. She told the Single Expert that she was at home in her bedroom and her mother had been at the clothesline. She then continued “I think I got into trouble or by accident, that’s when he went red in the face and he hurt me. He shook my arms back and forth. He pointed me in the chest with a really red face. He threw me into the wall”. She explained that he had thrown her on to the low bunkbed which was where the wall was. She stated that her back, legs, neck and head had all hit the wall and that Mr Goldman had then stormed off.

5. She complained that the father had cleaned her teeth too hard, that he had put pink salt around the bed and made them say prayers for their mother when she was in hospital and had put stardust on their heads, “Yeah it was really ridiculous.”

6. Her three wishes were:

   i)        Not to see [Mr Goldman] anymore;

   ii)       To win Lotto; and

   iii)To take Mum, [C] and me away to outer space so we never have to see him again.

7. C identified that there was nothing she did not like about her sister; she had a few close friends at school and felt happy there other than when her teacher was angry.

8. She raised complaints about her father, for instance when she was playing with her sister in the bath, they were having a breath holding competition and when their father came in “I came up and he pushed my head under the water”, that he had scared her in the water by saying “Boo” and she also repeated the incident when her mother was in hospital and the father had put crystals around the bed and used stardust to make them feel safe.

9. C denied that she missed her father but remembered when he left, “… and he said he would stay at his friend’s house. And the first time, he was going to stay at other friend’s. And the second time, he was going to stay at - he didn’t come for a very long period of time.”[20]

   [20] Single Expert Report dated 20/09/2016, par 62

10. I conclude that C was complaining about a period of time after separation when she was waiting for her father to come home and felt the length of the time that he had been absent.

11. C’s three wishes were:

    i)To live with her mother;

    ii)To go far away so she didn’t have to see her father; and

    iii)To be able to have a happy time.

12. The girls were then observed with their father and their paternal aunt. Although they both said they did not want to see their father or their paternal aunt they preferred her to be present with their father if they had to see him.

13. The Single Expert reports that when the father and the paternal aunt entered the room, B started screaming at him “Go now”. B continued with an extreme reaction, continued to scream and cry and yell “Go, just go”. When the paternal aunt asked B why she was so upset the child responded “[Mr Goldman] could just punch her now”. C kept her hands over her ears so as not to hear discussion.

14. The father and aunt are reported to have responded in a reassuring and gentle manner and the father continuing to express his love and concern for the two children.

15. After 20 minutes B stood up and left the room and her sister followed.

16. The Single Expert notes the mother immediately provided the girls with breathing strategies and orientating mindfulness questions. They settled with what he describes as “her expert use of these skills”. The children quickly returned to their previous state.

17. The Single Expert then reinterviewed the girls and identified that they had benefitted from their mother’s use of mindfulness strategies and that B had been assisted by the intervention at the University centre with her fear of dogs and could use some of those strategies. The girls agreed to be seen again with their father.

18. The report of what happened is this:

    [Mr Goldman] addressed the girls in a calm and respectful manner. They listened as he spoke of his love and connection with them. He told them how he cared for them and thought about them every day. He thought about the many good times they had together and wanted them to feel safe and comfortable. He spoke of his delight in his role as their father and desire to spend time with them given his care for them. He was wanting to help them learn many things, help them with their school work and provide guidance. He repeatedly referred to his love for them. He recalled their good times and experiences together.

19. The Single Expert observed that although B was flicking through the pages of a book and C looking away, it was evident that they were attentive to his communication. The father apologised for having left them. He recalled swimming with C on his back and how they would hold their breath. He spoke of B’s poetry. The Single Expert considered the father had maintained an empathic stance throughout this communication.[21]

    [21] Single Expert Report dated 20/09/2016, pars 82 and 83

20. Following this interaction the girls were reinterviewed by the Single Expert. B denied that she had been listening to her father.

21. When asked about their contact with Ms J the Single Expert was informed by the girls that Ms J was “really nice” and that they would prepare diaries at home so they would not forget what they needed to talk about [my emphasis]. They had benefitted from relaxation strategies. They would talk to their mother about not wanting to see their father. They did not know that she would get angry or upset.

22. The girls were then seen with their mother and their mother recalled that “she would say that they could see their Dad whenever they wanted”. When this was put to the girls, both children are reported to have appeared confused,

    Mother         Remember? I said that before. You can see your Dad.

23. At the Single Expert’s request the mother stated to the girls that she was happy for them to see their father and that she would like them to do that. The Single Expert reported that “Both girls remained bewildered by this communication”.[22]

    [22] Single Expert Report dated 20/09/2016, pars 86-88

24. I accept the report and conclude that the mother was lying when she said to the Single Expert she had told the children about freedom to see their father.

25. The mother and children left the premises but then returned with the mother advising the Single Expert that B had wanted to come back because she had misheard him. B then explained that she had rethought what she was thinking before and that she “… did still feel scared about [Mr Goldman] and I don’t want to do the step-ladder” [a reference to a relaxation strategy that B had learned in the past].

26. The opinion expressed by the Single Expert at the conclusion of assessments and consideration of the documents was as follows:

    ·That the children had been exposed to psychological harm in the context of the parents’ competing allegations; and

    ·That the documentation perused by the Single Expert including school and therapy records identified that the girls had enjoyed a close relationship with their father prior to the separation despite the fact that this was disputed by the mother and disavowed by the girls when interviewed. The girls had repeatedly spoken of missing their father post-separation. They had not disclosed exposure to family violence or trauma as was now alleged.

27. The Single Expert considered it was probable that the mother had filled their minds with concerns which had led them to feel unsafe and distressed in contact with their father. This was particularly the case for B given her pre-existing anxiety disorder.

28. The Single Expert observed a close bond between the children and an enmeshed relationship between the mother and the children. The Single Expert considered that the mother had consistently obstructed the children’s relationship with the father despite her expressed support for the relationship.[23] 

    [23] Single Expert Report dated 20/09/2016, par 122

29. The children’s bewilderment about the mother stating that she was happy for them to see their father is clearly one of the factors which informed the Single Expert’s conclusion.

30. In relation to capacity the Single Expert said this:[24]

    The mother had played the role of primary carer throughout the children’s lives. It was possible that her parenting capacity had been adequate prior to the parental separation but not subsequent to this significant event. Initially she had sought reconciliation and had utilised the children to pursue this goal. When unsuccessful she had utilised the children to pursue her vengeance against the father. This had impacted on her care of the children. They carried the burden of her hostility which had been damaging to their development. This included inconsistent attendance at school, undermining of their relationship with their father and their social network. It was of concern that their interactions with peers had been damaged in this context. The children had become more stressed by the mother’s pursuit of the father. She had assertively taken on the staff at [D School], making repeated complaints to the Director of Education and the Minister for Education which was regarded to be vexatious. This undermined the children’s security in the school environment. Her pursuit of an out of area school placement was regarded to be excessive despite this being ultimately sanctioned by the Department of Education. The children’s attendance at school had suffered. [B] had become more distressed; [C’s] physical health had suffered. All the while the mother’s primary focus remained her pursuit of the children’s father.

    [24] Single Expert Report dated 20/09/2016, par 125

31. In the Single Expert’s opinion the mother had been perpetuating emotional abuse of the children losing sight of their true welfare.[25] I accept and concur with these conclusions. The mother had fought hard to keep the father within the family. When she realised he was lost to her through a new relationship she mobilised all resources to punish him, particularly through the children.

    [25] Single Expert Report dated 20/09/2016, par 125

32. Prior to the parental separation the father had been primarily focused on his occupation. He had however played a loving and caring role with the children at home and in outdoor activities, surfing and swimming. Subsequent to separation he had pursued his own interests spending significant periods of time in the United States of America and prioritising his new relationship. Belatedly he has expressed his concern about the children’s experience and was now motivated to play a more significant role in their care.

33. This analysis of the parents accords with the evidence and my own observation of each of the parents.

34. It is clear that the mother initially after separation was intensely focused on keeping the father within the family unit even if the marital relationship could not be restored. She allowed, if not encouraged, the children to press their father to come home. She did not reassure them that they would be safe and that they could see him in a new context.

35. The father certainly did not help the situation. He went away overseas for long periods of weeks and did not make contact. His own reluctance to engage with the mother in her emotional state of wanting reconciliation apparently caused him to overlook the fact that the children were desperately missing him and were beginning to sink under the weight of the mother’s distress.

36. I do accept however that the father became genuinely motivated to take on the care of the children and to give them priority even over his new relationship which clearly means a great deal to him.

37. The observation of the Single Expert about the mother’s attitude to the children is of equal concern. The Single Expert has concluded that the mother has simultaneously created the circumstances of anxiety and insecurity for the children whilst exhibiting highly developed skills to assist in their emotional regulation when they are distressed. This means that the children are dependent on their mother in the sense that only she can calm them down. It is however the mother, together with Ms J who have amplified their fears about the father.

38. The Single Expert doubted the mother’s complaints about the father.

39. The mother had denied making any contact with the CC Group organisation prior to any disclosure of sexual abuse being made by her children. The mother was taken to the telephone records establishing that she had indeed made contact on more than one occasion and on one occasion for 42 minutes. This is one example of many where the mother casually misrepresented a situation when it suited her to do so.

Allegation of sexual abuse - 13 September 2016

1. On 13 September 2016 Ms J, the children’s counsellor, made a notification to the Department about a disclosure by C of her father inappropriately touching her genital area.

Release of Single Expert Report

1. On 20 September 2016 the Single Expert report was released.

2. On 23 September 2016 the mother filed a Notice of Risk alleging abuse as follows:[26]

   In September 2016 the child [C] has alleged that she remembers being asleep in bed and waking up and her father was touching her genital region. [C] said to the mother words to the effect of ‘I remember being asleep in bed and waking up and [Mr Goldman] [the father] was touching me here’. [C] reportedly gestured towards her crotch region.

   And further:

   Particulars of alleged risk of abuse to a child – the mother alleged “The father had previously struck the children. The mother is concerned about the father’s mental health.”

   [26] Notice of Risk file 23/09/2016, Page 2

3. In her oral evidence the mother asserted that C had told her something in the back of the car about her father touching her genitals in the context of asking the mother what Interrelate was, a program by Interrelate having been delivered at school.

4. On 27 September 2016 the children had their next regular session with Ms J.

JIRT interviews

1. On 29 September 2016 the first JIRT interviews were conducted with C.

1. The children have a close dependent relationship with their mother, described by the Single Expert as enmeshed which is not conducive to good future mental health.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. There is a need to protect these children from psychological harm from being exposed to emotional abuse.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The children were both very unhappy over the fact of separation and repeatedly begged their father to come home.

2. Both children are expressing negative views about their father and that they do not want to see him. They objected to being observed with their father in the supplementary Single Expert Report and their wishes were respected.

3. The conclusion of the Single Expert was that the children would likely continue to refuse any arrangement for supervised contact with their father and the evidence strongly supports that conclusion.

4. The children have been subjected to enormous emotional pressure. They have been inappropriately treated by Ms J and in the case of C, manipulated effectively into coming to the conclusion that she should make a complaint of sexual abuse against her father.

5. The interwoven therapy sessions between Ms J and the children during an ongoing JIRT investigation corrupted that process and reflect the strong wish of the mother to ensure that the children remained with her and saw little or nothing of the father.

6. In those circumstances despite the fact that they are now 12 and almost 10, I can give no weight to the expressed views of the children. This is more particularly so when in the absence of the mother the children in the supervised setting provided by the home of their paternal aunt were able to enjoy affectionate moments with their father and to relax in his company.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The children have their most significant relationship with their mother who has provided their care all their life.

2. They have had a most important relationship with their father who was a   loving, affectionate and playful presence until separation. The children felt justifiably let down when their father was absent from their lives for periods post-separation.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The post-separation relationship between the children and their father has deteriorated to the point where there is no contact and has not been for almost a year.

2. The father has wished to spend time with the children, to have them live with him, to communicate with them and to restore previously existent relationships.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The mother has remained out of the workforce and has manipulated a situation where she receives Centrelink benefits on the basis of mental health concerns, namely depression, although she has chosen not to take the prescribed medication.

2. The father has been in employment and maintained the children in the family home for a period. There is an unresolved issue of financial support of the children depending on the financial settlement between the parents.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. This is a most significant issue.

2. The children will be impacted by removal from the care of their mother. They will miss her and are likely to be anxious and panicky. The mother was identified by the Single Expert as having skills to calm them down. They are dependent on her at this time because they are unable to regulate their own emotions.

3. The children will need the assistance of expert therapeutic intervention to help them to understand the upheavals in their lives over the past three years in particular and to teach them to do themselves what their mother has done for them in relation to their feelings.

4. They will have the benefit of restoring their relationship with their father, especially in the company of the paternal aunt and cousins whom they came to love and trust. This is despite their overt rejection of all these members of their paternal family during supervised visits.

5. The father proposed that if the children were ordered to live with him he would return to the former family home, with the mother to be excluded. This was likely with a view to providing continuity. I do not consider that outcome beneficial for the children. They would likely continually expect their mother to return to the home upset which would increase already high levels of anxiety. They are also likely to feel guilty about the mother and very worried about her welfare if she is apparently “turned out” of her home.

6. The father proposed to the Single Expert that either the mother be removed from the property or alternatively he would rent new premises with a room for each of the children.[46] The latter course is the beneficial one with a fresh start in new accommodation arranged by their father or his present home if suitable.

   [46] Single Expert Report dated 20/09/2016, par 32

7. The father may decide to have the children live initially with the paternal aunt and her children. There is sufficient information before the Court of the capacity of the paternal aunt to understand and sensitively meet the needs of these children to endorse such an arrangement.[47] The children have not spent time with their father for over one year. They were hostile and rejecting of him when they did. Time living with their aunt may ease the transition or may not be necessary at all. That will be a matter for the father in consultation with the children’s therapist and, of course his sister, the paternal aunt.

   [47]Bondelmonte v Bondelmonte (2017) HCA 8 at 12, at [51]

8. There is also a benefit in my view, subject to the advice of the school and the children’s therapist if the children stay at their current school at least until the end of this school year. B will probably start at high school next year.

9. They are likely to gain a benefit from restoring their relationship with their father whilst also spending limited supervised time with their mother. This should be re-assuring that the mother is alright and pleased to see them.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. This is a most significant issue.

2. The Single Expert has identified limits on the capacity of the mother to meet the children’s needs and to understand the impact of her conduct on their wellbeing.

3. I have accepted those findings and independently have assessed the mother as someone who has been driven by both emotional pain and feelings of revenge since July 2014.

4. The children have been caught up in the mother’s actions and hurt by them.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The children are girls aged 12 and almost 10. The older child has been anxious most of her life and both children require a stable, supportive routine and reassurance as well as expert intervention.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The mother has provided physical care and has attended to the children’s health needs at an apparently very high level. However there is some reason to be cautious about the mother’s dramatic response to health issues which when examined prove not to be as worrying as she might assert.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. The mother has alleged that the father was consistently violent, both physically and verbally towards her and both of the children (on occasions) throughout the marriage. The father has denied any abusive behaviour with the mother or the children. He conceded occasionally using smacking a child as discipline during the course of the marriage.

2. There is no corroborative evidence and it is inconsistent with her own heartfelt opposition to physical separation of the parties in July 2014. The mother begged the father to come back to live in the home and strongly encouraged the children to do the same.

3. The mother alleged that the father caused her to miscarry in October 2006 by punching her in the stomach. I cannot accept that evidence. There is no medical, hospital or police record supporting such a significant event. Further the parties’ second child was born in the following year. That child must have been conceived within a few weeks of the alleged attack.

4. I am satisfied that the mother spent time deliberately informing Ms J of a history of domestic violence and then allowing Ms J to provide trauma therapy for the children on the basis of their exposure to domestic violence and of their own experience of violence at their father’s hand. This was with a long view by the mother about obtaining evidence which might assist her case.

5. I am satisfied that the children, whilst they have been exposed to family violence of the emotional kind, have not been victims of violent or abusive conduct by their father.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. I was urged by the advocate for the mother to consider leaving the children with the mother given that she has been their primary carer and given some deficiencies both of parenting experience and complacency of attitude in the father.

2. I accept there is some force in those submissions. However during the mother’s care of the children as a single parent since mid-2014 their emotional state has severely deteriorated. They have missed school. They have become hysterically anxious about seeing their father at all and even on her own evidence the trauma therapist Ms J considered that they had both become worse emotionally over the months of her therapy in 2015/2016.

3. Whether or not the mother understands what she has done, the impact would be the same on the children. They need relief.

4. I am satisfied, based on his parenting during the marriage, that the father is a good enough parent to meet their needs; educational, financial, intellectual and emotional. That he will support time for them with their mother and will be able to assist them to understand what has happened to them. I consider that he will be cooperative with a clinical psychologist over what may be a long period of time in helping the children to understand all that has happened to them over the last three years and perhaps much longer.

5. In those circumstances I have concluded that there should be a change of residence which will be a momentous change for the children.

Conclusion - Parenting

1. The children should live with their father and in circumstances where there is no prospect of sensible conversation, real communication or compromise, that he should have sole parental responsibility for the children.

2. In accordance with the recommendations of the Single Expert there will be a period of no time between the children and their mother which will include the third term holiday period, enabling the father to take them away on an enjoyable holiday if he is in a position to do so. He has “family commitment flexibility”[48] in his current role. They will certainly need a great deal of his undivided attention in the coming weeks and months.

   [48] Affidavit of the father filed 30/01/2017, par 217

3. The orders provide for the children to remain living in Australia. This is an order of some significance. The father himself would probably be equally happy living in the United States of America with his new partner but in circumstances of such major disruption for the children they should not regain their relationship with their father only to lose their relationship with their mother by living in a different country.

4. Although the provision for time between the children and their mother is fairly limited it is likely when the children are in the teens that there will be some loosening of arrangements by agreement with the father and they will benefit from having access to their mother as they grow older.

5. After a period of 18 months the children will be able to travel overseas with their father during the Christmas school holidays.

6. There is likely to a benefit to them from association with the father’s partner but even in the event that that relationship did not endure I am satisfied given his past history with the children that their needs can be met in his care, including the important need to maintain the relationship with their mother.

Property

Approach to alteration of interests in property

1. In considering applications for alteration of property interests and transfer of property the Court must:

   (i)Identify the existing legal and equitable interests of the parties in property;[49]

   (ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;

   (iii)

   If an alteration should be made, to consider the matters contained in

   
   

   ss 79(4) and 75(2) of the Act in coming to an adjustment; and

   (iv)Analyse and consider whether the adjustment under consideration would be just and equitable.

   [49] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116

2. The parties’ assets are set out in the joint Balance Sheet:[50]

   [50] Exhibit 4

O’ship		Description		Wife’s value $	Husband’s value $
ASSETS
1	J	K Street, Suburb L (W holds 25 per cent share and H holds 75 per cent share)		900,000	900,000
2	H	ANZ Sydney …28		2,087	2,087
3	H	Westpac Bank …88		1,913	1,913
4	H	GG Bank …82		24,136	24,136
5	H	GG Bank …78		2,477	2,477
6	H	European motor vehicle		E 25,000	E 25,000
7	H	House contents		2,000	2,000
8	H	Surfboards and clothing		3,000	3,000
9	W	Bendigo Bank …21		2,080	2,080
10	W	House contents		E 2,000	E 2,000
11	W	Jewellery		E500	E 500
Total		965,193	965,193
ADDBACKS
12
13
Total
LIABILITIES
14	H	FF Bank Home Loan …00		148,779	148,779
15	H	FF Bank Home Loan …01		149,771	149,771
16	H	Westpac Platinum Rewards Visa …13		16,590	16,590
17	H	FF Bank Amplify Signature Visa  …22		Nil	Nil
18	H	FF Bank Visa …98		17	Nil
19	H	ANZ Access Advantage Visa		Nil	Nil
Total		315,157	315,140
SUPERANNUATION
Member		Name of Fund	Type of Interest
20	H	BT Super of Life	Accumulation	113,169	113,169
21	H	Australian Super	Accumulation	1,397	1,397
22	W	Hesta	Accumulation	39,067	39,067
23
24
Total		153,633	153,633
RESOURCES
O’ship		Description		Wife’s value $	Husband’s value $
25	H	Funds in Humphreys Family Law Trust Account		50,000
26	W	Funds in Reid Family Lawyers Trust Account		127,152
Total		127,152	50,000

1. Adjustment of the Balance Sheet is as follows:

   a)Item 16 is omitted as a post-separation debt of the father.

   b)Items 17, 18 and 19 are omitted on the basis that they represent a nil or nominal value.

   c)Item 26 is omitted on the basis that the funds referred to in that item were borrowed by the wife from her parents.

2. When the parties began living together in October 1999 the father had personal savings of approximately $1,000, personal belongings including surf boards and clothing, superannuation of $10,000 and a HECS debt of $10,328. The wife had personal items, savings of approximately $20,000 including shares, a small superannuation fund and a car worth about $12,000 encumbered to an amount of $10,000.

3. At that time the husband was working in hospitality. The wife worked in caring roles and also on a casual basis, as a contract carer.

4. The wife asserts she was earning around $50,000 per year although there is no evidence that she did.

5. In 2000 the husband commenced employment with FF Bank. Over the 15 years of employment his income rose steadily although fluctuating.[51] Between 2006 and 2015 the husband earned between $96,000 - $140,000 per annum.

   [51] Affidavit of the father filed 30/01/2017, par 17

6. The parties worked hard and saved with a view to buying a property of their own.

7. For eight years they lived cheaply, renting an apartment owned by an undistributed deceased estate. The husband saved his bonuses, other than to repay his HECS debt and shares were traded in the name of the wife which were profitable.

8. In 2004 the wife’s parents gave a gift of $20,000.

9. The wife ceased paid employment towards the end of her first pregnancy and has not been in paid work since.

10. By November 2007 the parties were in a position to buy a property, an apartment close to where they had been living. The purchase price was $520,000 plus costs of purchase.

11. The title to the property was held as tenants in common, 75 per cent to the husband and 25 per cent to the wife.

12. The husband obtained a loan secured by way of mortgage on the property with the wife as guarantee. The loan was for $390,000. The balance of purchase price was savings and about $7,000 from the First Homeowner’s Scheme.

13. The parties and both children lived in that property and the wife continues to live there with the children.

14. The husband’s salary was deposited into the FF Bank offset account. Mortgage repayments, living expenses and the costs of the children’s education were paid out of that account.

15. In 2010 the parties spent approximately $127,000 on renovations to the family home. These costs were paid from savings in the offset account, together with the proceeds of sale of some of the husband’s employee shares in FF Bank.

16. In February 2012 the monies remaining in the joint offset account were transferred into a new offset account in the name of the husband only, with the wife as a signatory.

17. In November 2014 the husband removed the wife as signatory to that account.

18. During the course of the marriage the parties lived frugally, upgrading cars from time to time.

19. In November 2013 the husband’s mother died and he learned he was a beneficiary in a one sixth share with his brothers and sisters in her estate.

20. In May 2014 the husband receive a preliminary distribution of $50,000 from his mother’s estate which he deposited into the offset account.

21. In June 2014 the mother inherited $10,000 from a former client which she also paid into the offset account.

22. Soon after in July 2014 when the husband declared his intention to apply for a divorce the mother moved to her parents’ property in R Town and subsequently returned to the family home on the basis that the children were missing their father and re-enrolling them in D School.

23. At that point the husband moved out of the family home. There was $127,000 including the $50,000 beneficial gift in that account.

24. It was after about five months of the wife drawing down, excessively in the father’s view, expenses from the offset account that the wife was removed by the husband as a signatory to the account.

25. In December 2014 the husband received the final distribution from his mother’s estate of $302,303.

26. During the course of the marriage the wife’s parents gave a second gift of $20,000 to the parties.

1. It is apparent that during the period between 2005 and 2014 the mother had the majority of care of the children, certainly during the time when the husband was at work. However it is clear that the husband was also very much engaged in the lives of the children, meals, baths, entertainment and weekend activities.

2. It is apparent that the parties each worked to capacity.

3. The mother, at times when she was upset with the father, withdrew funds from the offset account but soon after repaid them. There was no significant detriment to this pattern of conduct by the wife.

4. Since separation the husband continued to meet the mortgage payments until December 2015. The mortgage was split into an approximate equal sum of two amounts of about $150,000.

5. In August 2016 the mortgage repayments were assigned by order to the mother.

6. The father has lived in rented premises and has expended funds supporting his new partner Ms M.

7. Both parties have paid legal costs although the wife has borrowed from her parents and the husband has drawn on the inheritance from his late mother.

8. The husband returned to full time employment after a break of about 18 months to reconsider his position and to contend with the parenting proceedings.

9. For her part, the mother has remained living in the apartment post-physical separation. When the father ceased meeting the mortgage payments at the end of 2015 the wife wishing to remain in the property asked her parents to assist which they have done by making monthly mortgage repayments of $1,160.

10. By the date of physical separation in mid-2014 it is apparent that the parties through their efforts, the husband by his paid employment and the wife by the care of the children and the efforts of both parties to save, that they contributed equally to their assets.

11. Post-separation the husband made the contribution of continuing to meet the mortgage payments for 18 months. The wife or her parents on her behalf have made payments to preserve the position for a further 18 month period. The wife has had the majority care of the children and although the wife’s conduct with the children has in many respects been adverse to their best interests, nevertheless, she has been responsible for their physical care.

12. At date of hearing, two and a half years after physical separation, the position favoured the wife 55/45 per cent.

13. The parties are both in reasonably good health.

14. The father is again in full time employment.

15. The mother is not in paid employment and has not been since 2005, a period of 12 years.

16. Accepting the evidence of the wife, corroborated by her mother, that the wife is a trained health professional and it would be possible for her to update her qualifications and return to work.

17. For reasons set out in this judgment I have concluded that the children should be in the primary care of their father and in accordance with the orders he will have the complete responsibility for the children.

18. It is unlikely that the mother will be in a position to make very much of a financial contribution for some time.

19. The father will be required to call on family, the friendly aspect of his employment to work less, for at least for a period of time, and to confine himself to ordinary office hours, 9.00 am – 5.00 pm which he is in a position to do.

20. There should accordingly be a substantial adjustment in his favour despite the fact that he has a higher earning capacity than the wife at this time in the order of 15 per cent.

21. The wife is unlikely to be able to take on the debt which would be required to meet a buy-out of the husband’s interest in the property. If that proves to be the case and the property is sold, she will have a cash sum to invest either in alternate property or as a contingency fund for the future. She may have an obligation to pay child support but that is not likely to be the case until she has completed retraining.

22. The wife has borrowed money from her parents. The evidence suggests that her parents have lent her money and whilst hoping to be repaid will not insist on repayment, however there should be an adjustment back for the fact that the wife has borrowed to meet her legal costs and the husband has been in a superior position through inheritance from his mother which has allowed him to meet his costs from that fund.

23. Accordingly the ultimate distribution between the parties should be 57.5/42.5 per cent in favour of the father.

24. The father will retain the following items:

$
2	ANZ Sydney …28			2,087
3	Westpac Bank …88			1,913
4	GG Bank …82			24,136
5	GG Bank …78			2,477
6	European motor vehicle			E 25,000
7	House contents			2,000
8	Surfboards and clothing			3,000
20	BT Super of Life			113,169
21	Australian Super			1,397
25	Funds in Humphreys Family Law Trust Account			50,000
Total			225,179
Plus:
Cash payment from the wife				275,230
Total		500,409

1. The wife will retain the following items:

$
1	K Street, Suburb L (W holds 25 per cent share and H holds 75 per cent share)		900,000
9	Bendigo Bank …21		2,080
10	House contents		E 2,000
11	Jewellery		E 500
22	Hesta		39,067
Total		943,647
Less:
14	FF Bank Home Loan …00		148,779
15	FF Bank Home Loan …01		149,771
Total		645,097
Less:
Cash payment to the father			275,230
Total		369,867

Conclusion - Property

1. The value of the possible net assets is $870,276.00. The division between the parties on the basis of 57.5 per cent to the father and 42.5 per cent to mother is a division which amounts to $500,409.00 to the father and $369,867.00 to the mother. A payment of $275,230.00 by the mother to the father achieves that outcome in the event that the mother is able to refinance the property and pay out the father’s interest.

2. In order to achieve this outcome the mother will need to refinance the property at an approximate overall cost of $600,000 to her including taking over existing mortgages, the payment to the husband and refinancing costs.

3. At this time given her employment history and currently not being in paid employment, the outcome seems unlikely. It is more likely that the property will need to be sold. However the mother should have the opportunity to keep the home.

4. In the event that the property is sold with the possibility that the sale price will be greater or less than the value ascribed in these proceedings then the percentage division of the nett proceeds of 45.75 per cent to the father and 54.25 per cent to the mother reflects the ratio of the required payment to the father against the net equity in the family home.

5. Orders are made accordingly.

I certify that the preceding four hundred and eighty (480) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 23 June 2017.

Associate:

Date:  22 June 2017