HANSFORD & PHILLIPS

[2015] FCCA 117

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANSFORD & PHILLIPS [2015] FCCA 117

Catchwords:
FAMILY LAW – Parenting – relocation – mental health issues – allegations of family violence.

FAMILY LAW – Property settlement.

Legislation:

Family Law Act 1975, ss.4AB(1), 55DAA, 60CC, 60CA, 61DA, 65DAC, 75, 79

Briginshaw v Briginshaw (1938) 60 CLR 336

Applicant: MS HANSFORD

Respondent: MR PHILLIPS

File Number: ADC 4008 of 2013

Judgment of: Judge Hughes

Hearing dates: 25 & 26 June 2014, 1, 2 & 3 October 2014 and 21 October 2014

Date of Last Submission: 21 October 2014

Delivered at: Canberra

Delivered on: 21 January 2015

REPRESENTATION

Counsel for the Applicant: Mr Gill

Solicitors for the Applicant: Dobinson Davey Clifford Simpson

Counsel for the Respondent: Mr Hodgson

Solicitors for the Respondent: Nicholl & Co Lawyers

Counsel for the Independent Children's Lawyer: Mr Haddock

Solicitors for the Independent Children's Lawyer: Legal Aid ACT

ORDERS

1. The parents shall have equal shared parental responsibility for the children [X] born … 2004 and [Y] born … 2007.

2. The wife has liberty to relocate the children’s residence to a place within 50 km of the Adelaide CBD at the end of the first school term in 2015 or such other date as agreed between the parties in writing.

3. Until the relocation of the children, the existing arrangements for their care as provided in the orders of 19 November 2013 shall remain in place.

4. From the commencement of the second school term in 2015, provided the husband has also relocated to South Australia, the children shall live on an equal time basis with each parent with handover to occur each Friday afternoon at the children’s schools during school term and, during school holidays, at a place to be agreed between the parties.

5. In the event the husband does not relocate to South Australia by the commencement of the second school term in 2015, the children shall live with the wife and spend time with the husband during school terms as follows:

   (a)every second weekend from Friday evening until Sunday evening (or Monday evening on long weekends) in either Canberra or Adelaide at the husband’s election;

   (b)additional time whenever the husband is in Adelaide; and

   (c)such additional or alternative times as agreed between the parties.

6. For the purpose of order 5 above the husband shall pay the costs of any flights for the children between Adelaide and Canberra and the wife shall deliver the children to and collect them from the Adelaide airport.

7. In the event the wife relocates to South Australia without the children prior to the end of the first school term in 2015, the children shall, until the end of that term, live with the husband in Canberra and spend time with the wife as follows:

   (a)every second weekend from Friday evening until Sunday evening (or Monday evening on long weekends) in either Canberra or Adelaide at the wife’s election;

   (b)additional time whenever the wife is in Canberra; and

   (c)such additional or alternative times as agreed between the parties.

8. For the purpose of order 7 above the wife shall pay the costs of any flights for the children between Adelaide and Canberra and the husband shall deliver the children to and collect them from the Canberra airport.

9. The children shall spend half of all school holiday periods with each parent as agreed or, failing agreement, with their father for the first half of holidays occurring or commencing in odd numbered years and the second half in even numbered years.

10. During the Christmas period, unless otherwise agreed, the children will spend time with each parent as follows, regardless of where they would otherwise be in accordance with these orders:

    (a)in 2015 and every second year thereafter from 9 am Christmas Eve until 3 pm Christmas Day with their mother and from 3 pm Christmas Day until 5 pm Boxing Day with their father; and

    (b)in 2016 and every second year thereafter from 9 am Christmas Eve until 3 pm Christmas Day with their father and from 3 pm Christmas Day until 5 pm Boxing Day with their mother.

11. The children shall spend from 10 am until 5 pm with their mother on Mother’s Day and with their father on Father’s Day regardless of where they would otherwise be in accordance with these orders.

12. The children shall spend time with each parent on the parent’s birthday and on each of the children’s birthdays at times to be agreed or, failing agreement, from 3 pm until 6 pm with the parent they would not otherwise see on the relevant day.

13. Each parent may telephone the children in the other parent’s care at all reasonable times and the other parent shall take all reasonable steps to facilitate the call.

14. Each party has liberty to be fully involved in the school life of the children, to receive copies of school reports, newsletters and the like and to attend all events and functions to which parents are invited.

15. Each party shall take all steps necessary to ensure that the names of both parents and their contact details are recorded in the records of any school the children attend.

16. Each party shall advise the other of any serious illness or injury suffered by the children or either of them in their care as soon as practicable following the event and shall provide sufficiently detailed information and any authorisations necessary to enable the other parent to speak directly with any treating medical practitioners.

17. Each party is restrained from denigrating the other parent or the other parent’s family to the children or in their presence and from allowing anyone else to do so.

18. The wife shall forthwith take all reasonable steps to implement the recommendations of Mr A, psychologist, as set out at page 5 of his report dated 17 June 2014.

19. For the first two years following these orders the wife shall provide to the husband at six monthly intervals written confirmation from her psychiatrist, psychologist or other mental health practitioner that she is actively engaged in mental health treatment at least broadly in accordance with the recommendations of Mr A.

20. The wife shall provide to her treating psychiatrist, psychologist or mental health practitioner a copy of the following:

    (a)the report of Dr B dated 8 April 2014;

    (b)the report of Mr A dated 17 June 2014;

    (c)a copy of the these orders; and

    (d)a copy of the reasons for decision dated 21 January 2015.

21. The parties shall take all steps necessary to engage in an appropriate parenting orders program or similar to be completed within 12 months of these orders with a view to improving their communication and co-parenting relationship.

22. The parties have liberty to apply in relation to the implementation of these orders and in relation to which school the children shall attend in South Australia if the parties are unable to reach agreement about that issue.

Property orders

1. The parties shall forthwith take all steps necessary to sell the property situated at and known as Property C, South Australia (“the property”) on terms to be agreed between the parties with the proceeds of sale to be distributed as follows:

   (a)first to pay any commission and all costs of sale;

   (b)secondly to discharge the mortgage secured by the property; and

   (c)thirdly, 65 per cent of the balance to the wife, less the following amounts:

   (i)$10,300 paid to the wife by way of interim property settlement in accordance with the orders of 13 August 2014; and

   (ii)any amount paid to the wife by way of interim property settlement in accordance with the orders of 21 October 2014; and

   (d)fourthly, the balance to the husband.

2. The wife shall forthwith do all things necessary to withdraw the caveat secured over the title to the property.

3. Within 30 days of the date of these orders the wife shall do all things necessary to transfer to the husband at the husband’s expense any interest she has in the … Discretionary Trust and the husband shall indemnify the wife in respect to all claims against her by reason of her interest in the Trust.

4. Pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest of the husband, Mr Phillips, in the Public Sector Superannuation Scheme, the wife, Ms Hansford, is entitled to be paid an amount calculated in accordance with the Family Law Regulations using a base amount of $126,530 and there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.

5. The operative time is four business days after service of these orders upon the Trustees of the Public Sector Superannuation Scheme.

6. Except as otherwise ordered, each party is hereby declared to be the sole legal and beneficial owner of all items of property in their name or position at the date of these orders.

7. Otherwise, all extant applications are hereby dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hansford & Phillips is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

ADC 4008 of 2013

MS HANSFORD

Applicant

And

MR PHILLIPS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting and property proceedings after a relationship of more than 10 years.  The wife wishes to relocate with the two children of the parties from Canberra to Adelaide.  The husband wishes to remain living with the children in Canberra.  The wife will remain in Canberra if the children do not relocate and the husband will relocate if the children do. 

Background

1. The applicant wife is aged 34 years and the respondent husband 38. They began living together in mid-2003, married on … 2004 and separated in October 2013. 

2. They have two children: [X] (“[X]”), born … 2004, who is aged 10 and [Y] (“[Y]”), born … 2007, who is aged seven.

3. Both parties grew up in South Australia, the husband in Adelaide and the wife in a small town in the Region D region, approximately 40 km from Adelaide.  When the parties commenced their relationship in 2001, the wife was aged 19 and was in her second year of year 12 at school, which she was undertaking part-time.  The husband was aged 25.  The parties began living together in … 2003 in a house purchased by the husband in Adelaide about seven months earlier.  The wife was studying part-time towards a qualifications at University and was in her second year.  The wife became pregnant shortly after cohabitation.  Her parents were unhappy about the pregnancy given her young age and the potential implications for her education.

4. At the commencement of cohabitation the husband was working full-time for the Employer and was studying part-time towards a qualifications.  He had already completed undergraduate degrees in ….

5. The wife deferred her study for one semester in 2006 so the husband could complete his Master’s degree.  She completed her course in 2007 and her … qualifications in 2009.  In … 2012 the husband began studying to become a professional.

6. In addition to his full-time work, between 2005 and 2007 the husband worked as a clerk for the Employer for four days a month.  Between 2004 and 2006 he was also employed on a casual basis to do clerical work for which he took leave from his job with the Employer.  The husband said he engaged in the extra work in order to pay for childcare to enable the wife to complete her studies.  The children were also cared for on a regular basis by the extended families of both parties.

7. Except for a period between … 2006 and … 2009, the wife was a director of a company operated by her family and was paid director’s fees of approximately $5,000 per annum and received fringe benefits including motor vehicle insurance and a mobile phone.  She also worked on a casual basis as a clerk in the husband’s father’s Business between 2005 and 2012 for a small wage.

8. In late 2010 the husband was seconded to the Employer in Canberra.  The parties and the children moved to Canberra in … 2011.  The wife commenced a degree at the University that year but discontinued the course in … 2011.  The husband was employed before the secondment as a public servant.  The wife said the husband assured her that the secondment was for a limited period of time during which he would hopefully be promoted to a senior position.  That did not occur except for a short period when the husband acted in that capacity.

9. The parties returned frequently to Adelaide to visit family and friends and maintained continuity of some health services for the family in Adelaide.

10. In late 2011 or early 2012 the husband’s secondment to Employer expired and he returned to a position with the Employer in Canberra.  He said that, had the family wanted to move back to Adelaide at the end of the secondment, they could have done so at his employer’s expense as that was part of the terms and conditions of the secondment.  However, he said that both parties and the children were enjoying living in Canberra and agreed as a family to stay.  He said he told them at the time they needed to be very sure because if they decided to return to Adelaide in the future they would have to pay for the move themselves which would be very expensive.

11. The Employer had paid the parties’ rent for the 12 month secondment period.  The wife said the husband put some pressure on her to earn an income when the secondment ended.  She said she discussed the issue with her parents and they arranged for a family company to pay her to do some casual work.  She was paid a wage of just under $2,000 a month after tax from … 2012 except for a period between … 2014 when the wife was certified to be unfit for work.  The payment was continuing at the time of the hearing.

12. The parties separated in October 2013 when they were in Adelaide during a school holiday period.  The husband believes the wife planned the separation to occur while they were there in order to increase her chances of being able to stay there with the children.  I will return to that issue later in these reasons.

13. The wife filed an urgent application in the Adelaide Registry of this Court on 25 October 2013.  It was listed on 19 November 2013.  Interim orders were made requiring the wife to return the children to the husband in Canberra by 23 November 2013.  The orders provided for the children to live with the wife if she also returned to Canberra but otherwise to live with the husband.  The wife returned to Canberra a week after the children.  Since then the children have lived with the wife in the former matrimonial home and spent time with the husband from after school on Thursday until the commencement of school on Monday every second week and overnight on Wednesdays in the alternate week.  The children spend half of all school holidays with each parent.

14. The husband moved initially to an apartment and then to a house.  Both parties are currently living in private rental accommodation in Canberra.

The wife’s physical and mental health issues

1. At the age of about 14 years the wife was diagnosed with a congenital brain abnormality, Agenesis of the Corpus Callosum (ACC) which involves the partial or complete absence of the corpus callosum which transmits information between the two hemispheres of the brain.  The wife said it results in her processing information slowly and that she can get overwhelmed if required to process a volume of information quickly.  She said that once she has learned a skill, it does not inhibit her carrying out that function well.  She said, for instance, that she was unable to read until the age of 10 years.  She said it was initially thought that she had a learning disability but, once the issue was identified and appropriate learning strategies put in place, she learned to read and write fluently.  She said the condition made it difficult for her to participate equally in arguments with the husband as, when he kept talking, she became confused and usually gave up the argument.  During parts of her cross-examination in these proceedings the wife asked for a pen and paper so she could write down the question she was being asked.  She was then able to read and consider it before answering.

2. The wife has also suffered hypothyroidism for which she is medicated.

3. It is common ground the wife suffers from some mental health difficulties for which a clear diagnosis has never been made.  On several occasions a diagnosis of bipolar disorder has been suggested but the wife believes her major symptoms are a result of post-traumatic stress disorder arising from her childhood experience of sexual abuse.  She has received some support for that idea from psychiatrist, Dr E.  She said there is a history of bipolar disorder in her family.

4. During her adolescence the wife was sexually assaulted over several years by a tutor engaged by her parents to assist with her school work.  The tutor was a family friend, married to a paternal aunt and was the father of two of her friends.  She said that, prior to 2010, she only recalled a single incident of abuse and had told the husband and her parents about it.

5. In July 2010 the wife consulted a psychiatrist in Adelaide because she was suffering from mood swings.  The psychiatrist referred her to Dr F for a process called Eye Movement and Desensitisation Reprocessing (EMDR) which occurred on 4 October 2010.

6. On 9 October 2010 the wife saw the man who had abused her and began having flashbacks of other incidents in which he had abused her.

7. On 13 October 2010 the husband told the wife he had been successful in his application for a secondment to Canberra.  The wife said she was still dealing with the stress and distress of flashbacks concerning the abuse when the parties moved to Canberra.  The husband said he thought the timing of the move was good because it would put some distance between the wife and her abuser and avoid the risk of her running into him again.

8. When the wife was studying at the University in 2011, she saw a doctor at the … Health Service and undertook some counselling at the … counselling service.

9. Following the move to Canberra the wife had three acute mental health episodes. The first occurred in about September 2011.  The wife said she was due to give a presentation in her course at a time when the husband was about to travel to Sydney for work.  She said she became very anxious and asked him to stay but he did not.  She then rang her mother who flew to Canberra to stay with her and the children.  The wife attended at the emergency Department of Hospital and told the psychiatric registrar that she thought she might have Bipolar Affective Disorder.  The registrar referred her to a psychiatrist, who prescribed Lithium and Epilum.  The wife said neither drug agreed with her but she took them for a short period.

10. The second occurrence of acute mental illness occurred in February and March 2012.  A series of incidents occurred at that time which occupied a lot of the trial and about which the parties gave vastly different evidence.  I will return to those matters in detail shortly.

11. The third episode of acute mental illness of the wife occurred in July 2012.  The wife said she was told at that time that the man who had sexually abused her when she was a teenager was seriously ill with prostate cancer.  She said she began to experience an escalation in flashbacks about the abuse.  She said the husband then began following her around and peppering her with questions about where she had been each day and with whom she had spoken.  She said she admitted herself to Hospital in order to get away from him and “to calm him down”.  She was discharged from hospital after a week. She was prescribed medication, Zyprexa and Epilum, and psychotherapy was recommended.  

12. Later in July 2012 the wife began seeing a counsellor to help deal with the issues arising from her experience of sexual abuse as a child. She also began attending group counselling with a private mental health facility.  One lot of group sessions focused on mood disorders and another on anxiety.  The wife continued individual and group counselling for a year until July 2013.

1. In the meantime, in January 2013 the wife again saw Dr E.  She said Dr E told her she no longer to needed to see him unless she felt was necessary.  She said Dr E wrote to her general practitioner supporting her view that her major mental health issue was Post-Traumatic Stress Disorder rather than Bipolar Affective Disorder.

2. The wife had ceased taking medication in late 2012.

3. The wife said she became very distressed when the orders were made in November 2013 requiring the children to return to Canberra.  She said she found it difficult to eat and had trouble sleeping. While still in Adelaide she engaged the services of a hypnotherapist and attended upon a psychiatrist, Dr G, as her previous psychiatrist was not available.  When the wife returned to Canberra she saw her general practitioner who prescribed antidepressant medication, Zoloft, and referred her to a mental health nurse.  She said the Zoloft was unhelpful and under her GP’s supervision she stopped using it.  She returned to the group therapy in about January 2014 and was continuing to attend when the trial began in June 2014.

4. The wife was asked why she did not receive any counselling or therapy between July 2013 and January 2014.  She said she did not have access to either and, in any event, did not have the time because she was looking after her children.

5. The wife said that in the lead up to these proceedings, she again had difficulty sleeping but had not been prescribed any psychoactive medication.  At the time she swore her affidavit in May 2014 she had seen the mental health nurse on three occasions and had developed a range of coping strategies including meditation, walking and mindfulness activities.  She had also returned to the group counselling to help manage stress.  She stopped attending the group therapy in mid-2014.  She said she did so because she was feeling better and found that attending a group session with a lot of depressed people made her feel miserable.

6. Since separation the wife has completed a course at Counselling called “Strong Emotions and Stress Management” and another, “Talking With Your Kids”.

7. Counsel for the husband submitted the wife’s parents do not acknowledge their daughter has significant mental health problems and that it would not be helpful for the wife and children living with them as the wife already denies to some extent the need for ongoing therapy.  I have checked the transcript generally.  The wife’s mother was asked whether she had any concerns about her daughter’s state of mental health and she responded “currently, no”.  She was asked whether she had had any concerns in the past and she responded that she had, intermittently.  On further questioning she could not identify specific dates of acute episodes of mental ill health but did volunteer that her daughter was anxious in mid-2010 and saw a psychiatrist at that time.  She said she knew her daughter struggled to some extent the first year the family were in Canberra, and again in September 2011 when she flew to Canberra to assist her daughter.  The wife’s father gave similar evidence.

The incidents in March 2012

1. The wife said that while she was on Epilum in early 2012 she suffered extreme anxiety and was desperate to do something to make herself feel better.  She said she told the husband she was thinking of having sex with someone else. She said he did not discourage her but, rather, assisted her to set up a profile on an internet site called “Fling Finder”.  She said that a man she only knew as a man named Mr H made contact with her and came to the home on 1 March 2012 when the husband was at work and the children at school.  She let him in and had sexual intercourse with him.  She said it occurred at the home because the husband insisted they could not afford for her to use a motel room.  The wife said the incident made her feel worse rather than better.  She said she rang the husband at work and told him what happened.

2. The wife said that when the husband came home from work that day, he insisted on having sex with her which she did not want.  She said she told him she had to finish dinner but he held her by both hands and took her into the bedroom and shut the door.  She said she did not fight or yell out as the children were still up and in the next room and she felt she had no choice but to endure it.  The wife said at paragraph 77 of her affidavit filed on 29 May 2014 “I do not know whether or not Mr Phillips knew that I was not consenting to have sex on this occasion”.  The wife said in cross-examination that this was the first time the husband had ever been physically violent to her.  She said she did not characterise it in her own mind as a sexual assault at the time but in a conversation with her mother at the time of separation more than 18 months later she came to realise that that was what had occurred.

3. The wife said that in the early hours of the following morning the husband came into the bedroom, tore the bedclothes off her and shouted incoherently at her about her infidelity and lack of respect for him.  She said he punched the wall causing a small dent.

4. The next day Mr H came to the house again uninvited.  He demanded to have sex and the wife acquiesced and let him into the house.  She later told the husband what had happened.  Again, the wife said the incident was not pleasurable for her.  She said the behaviour was out of character for her and was the only time she had engaged in extramarital sex.

5. The wife said that on a Saturday morning shortly after these events, the husband went for a run and did not come home for several hours.  He later told her that he felt very depressed and felt like killing himself.  She said that, after a further few weeks, the husband again went for a run and did not come home for hours, later telling her he had considered jumping off a bridge.

6. The husband’s version of all of these events is very different.  He said he was very unhappy that the wife wanted to have sex with somebody else.  He said that before the parties married the wife told him she thought it was unfair that he had had the opportunity to have sexual relations with other people and she had not.  He said she told him that if he wanted her to marry him he would have to agree to let her have the same opportunity with someone other than him in the future if she ever wanted.  He said he agreed at the time partly because he felt he had no choice if he wanted to marry her but also because he thought the situation would never arise.  He said when the wife was so insistent on pursuing that idea in 2012 he felt obliged to honour his rash promise.  He said the wife told him that she had serious doubts about continuing in the marriage if he did not honour his commitment.  He denied assisting the wife to set up a profile on the Fling Finder website.  He said he told the wife that if she went ahead with it she could be opening a “Pandora’s Box” with unforeseen consequences for their relationship.

7. The husband categorically denied raping the wife.  He said that one of the side-effects of her illness at the time was that the wife had a very strong sex drive and wanted to have sex often.  He said on the day before she first had sex with Mr H, she told him that she was seriously thinking about seeing the man she had met online and that she needed a basis of comparison for the experience.  He said she challenged him to prove how good a lover he was and he took the challenge.  He said they engaged in sex which was vigorous but not rough and which was entirely consensual.

8. The husband said that when the wife rang him at work the next day to say she had had sex with Mr H, he felt devastated but told her he hoped she had now got the issue out of her system and the family could get back to normal.  The wife later told him about the second occasion of sex with Mr H.

9. The husband spoke to the wife’s mother after the incidents.  He said he did so because he was very distressed and wanted some advice.  He said the wife’s mother told him that the wife’s behaviour was likely to be a symptom of her mental illness and he accepted that.  He said he nevertheless felt depressed about it.

10. The husband said that a short time later he was up late one night when the wife was asleep in bed.  He said he heard a message being received on the wife’s phone.  He checked it and discovered that the wife had been exchanging sexually explicit text messages with two other men.  He said he went into the bedroom, woke the wife up and shouted at her.  He hit the wall in frustration before breaking down and crying.

11. Although the wife initially said the incident in which husband had woken her up and yelled at her occurred between the two visits by Mr H, during cross-examination she conceded that it was possible it occurred as the husband said, namely, on a date after the second episode with Mr H.  She also conceded that it occurred after the husband discovered sexually explicit messages on her phone from other men and confronted her about it.

12. The husband was asked whether, after those events, he told the wife he had contemplated suicide by jumping off a bridge.  He said he had not.  He said that, in the weeks following the incidents, there was an occasion when he went for a long run and was gone for about two and a half hours.  He said the wife asked where he had been and he told her that he had stopped on the bike path near the ….  He told her he was staring at the bitumen on …  Road and imagined himself diving into the blackness in a foetal position and staying there away from everyone else.  He said it was just a fantasy of escape because he wanted to be by himself.  He said that although he was distressed, he did not want to die and was not feeling suicidal.  He said he could understand that someone might interpret what he said as indicating he was suicidal but he did not mean to give that impression and did not know the wife had interpreted it that way at the time.

13. Counsel for the wife submitted that it was utterly implausible that the husband would agree to his wife having sex with a stranger on the basis that he had given some sort of undertaking many years earlier.  However, I found the husband’s version of events compelling and much more persuasive than the wife’s.

14. The evidence is clear that the wife was insistent upon having sex with a stranger yet, in her oral evidence she seemed to blame the husband for it occurring on the basis that she was unwell and “he didn’t protect me”.

15. The wife wrote what appears to be an account of the incident and which the husband said he later found on the wife’s computer.  It is consistent with the husband’s version of events and not the wife’s.  It is annexed to the husband’s affidavit filed on 12 June 2014.  During cross-examination the wife said it was a piece of fiction she wrote with a view to having it published on the blog site of a magazine in order to earn some money because the husband insisted that she was not pulling her weight financially.  She said she wrote it about two months after the incident but later conceded that it was possibly written on … 2012, within two weeks of the incidents with Mr H, as the husband asserted.  The wife said that some of the elements in the piece reflect what had happened to her but she also looked at a book about bipolar disorder and picked out “some of the more interesting aspects of it and wrote them up”.  There was no evidence of her ever submitting the piece for publication.

16. The wife was asked in cross-examination why she made no complaint about the husband’s alleged rape until October 2013.  She said it would not have been safe for her to do so at any other time.  That is inconsistent with her evidence that it had not occurred to her that the husband’s actions comprised sexual assault until she discussed the issue with her mother at the time of separation.

17. The wife was asked in cross-examination whether the sex she had with Mr H was consensual.  She replied “I don’t think I was in a fit state to consent”.  She was asked whether she was perhaps confusing the behaviour of Mr H with that of the husband.  She denied that was the case.

18. The wife agreed she met another man through the same internet site but insisted that, even though she went to Melbourne and stayed with him, she was only friends with him.  She said she maintained her profile on the website for some time because she was tested for sexually transmitted diseases and felt she should be responsible and pass on the information in the event she had contracted anything.  That does not make sense because she said she only ever had sex with Mr H so, presumably, any infection she picked up would have come from him.  Her sense of obligation to advise him in those circumstances seems misplaced.  During her treatment at the Hospital in … 2012 the wife reported to a nurse that she had “a lovely husband and good children”.  She also told staff at the hospital that her husband was supportive and forgiving of her indiscretions.  When that was put to the wife she agreed but said “I couldn’t say anything else”.  When asked why, she said “because admitting everything was horrible and that I felt like he hated me and that he was just going to hound me with it forever was not an option at that time because he was “it”.”

19. The wife agreed that over the years up until separation she made various Facebook posts in which she spoke about how lovely the husband was and how much she loved him.  She said that public displays of niceness from her caused him to leave her alone for a while.

20. The civil standard of proof is the balance of probabilities but the more serious the matter to be determined, the greater the degree of certainty the Court must have in making its finding.[1]  I am well satisfied to the requisite standard and find on the balance of probabilities that the husband did not rape the wife.  The wife’s version of events simply lacked credibility.

    [1] Briginshaw v Briginshaw (1938) 60 CLR 336

Events leading to separation

1. The wife said that in July 2013 she told the husband she was unhappy and wanted to separate.  She said he told her that in that event she would have to find somewhere to live that was free, and a job that paid at least $60,000 a year because he would not allow her to have the children and she would have to pay him child support.  The husband denied saying those things.  However he said he knew from about that time that the marriage was in trouble but hoped that if he gave the wife enough space, support and encouragement, it might survive.

2. On the weekend of 29 July 2013 the wife went to Melbourne for the weekend and stayed with Mr J, a man she had met through the “Fling Finder” website. She said they were just friends and she slept on the couch.

3. It is common ground that when the wife returned from the weekend in Melbourne she told the husband she was unhappy in the relationship and wanted to have some time apart.  The wife said they discussed the idea of her taking up an option to house-sit a property in Melbourne for three weeks which would give her some time away and the opportunity to carry out some research for a book she wanted to write.  The husband said that the wife told him that she wanted to be more independent and to move to Melbourne, leaving the children with him, for at least 12 months.  He said she began looking for jobs in Melbourne.

4. In … 2013 both parties and the children went to Melbourne as a family to celebrate the birthdays of the child [Y] and the maternal grandmother.  During that weekend the wife had an interview for a job in Melbourne and an interview in relation to house-sitting.  She secured a property to house-sit for three weeks from early September 2013.  The husband said she applied for up to 40 jobs before she left and was hopeful of obtaining employment that would enable her to stay in Melbourne beyond the three weeks.  The wife said she was only ever going for three weeks and that the husband compelled her to apply for so many jobs because he told her she had to pay him child support.  However, that makes no sense if she was only going for a short period.

5. It is consistent with the husband’s evidence about the length of time she anticipated being away.  It was put to the husband that he knew the wife was only going to Melbourne for three weeks but he required her to get a job in Melbourne.  He denied that.  He said that the wife was keen to try living independently and being financially independent.  He said she had already had an interview for a job as a professional before she left and was hopeful of obtaining it.  If she got the job it would start within her first week of being in Melbourne and she applied for numerous other jobs with a view to being able to support herself.  He said the wife told him that it was important for her self-esteem to be financially independent and he was willing to support her in that aim. I found his evidence about that compelling.

6. The wife agreed she used a series of Facebook posts in an effort to try to obtain a job in Melbourne.  A print out of some of them came into evidence in the proceedings.  The impression I obtained from them was that she was very determined to get a job.  There is nothing that suggests she is under pressure from the husband to do so.

7. The husband said that, on the suggestion of a counsellor and before the wife left, the parties created a document evidencing a plan to manage the wife’s desire to live separately for a while.  The document is annexed to the husband’s affidavit of 7 November 2013 and also became exhibit H1 in the proceedings.  It is in the form of a handwritten table which has four main headings as follows:

   Reasons To Stay

   Compromises

   Rules/Boundaries

   Needs

8. Under each heading both parties have made entries in their own handwriting.  The husband said he gave the template to the wife who made her entries first and in private and then he added his, also in private.  On the exhibit, the wife’s handwriting is highlighted in pink and the balance of the handwriting is that of the husband.  The wife was asked why, if it was clear she was only going to Melbourne for three weeks, there was any need for such a document at all.  She said the husband insisted on it and she now thinks he did it to set himself up for the litigation.  I do not accept that.  The document seems to evidence an open and practical consideration of how to manage the wife’s desire to spend time in Melbourne and away from the marriage.

9. Under the heading of “Rules/Boundaries” the wife wrote “No more than 12 months”.  She was asked why she wrote that if she was only going for three weeks.  She responded that the husband told her that it would be a year so she wrote that even though she knew she was only going to be gone for three weeks.

10. Under the heading “Needs” in the third column of the document, the wife wrote the following:

    - this time apart

    - phone calls Tues, Thurs, Sat, Sun @least/ish

    - visits about every 4 weeks

    - flexible money back and forth if needed

11. The wife was asked why she noted visits were to be every four weeks if she was only going to be gone for three weeks.  Again, she said she wrote what the husband told her to.  I found that utterly unconvincing.

12. The husband made entries which were very supportive of the wife including the following under the heading “Compromises”:

    Giving you this time apart

    Explaining to the girls that it’s Mummy’s business/work/important

    If you need ‘radio silence’ just text me/let me know and for how long

13. The husband said during cross-examination that the purpose of the document was for each party to understand what the other needed in the relationship if it was to survive.  I accept his evidence.

14. It appeared to me that the wife was rewriting history in relation to the document and it undermined her credibility.

15. The wife was in Melbourne from … 2013 until … 2013.  They facilitated the children telephoning their mother almost daily and they had several Skype sessions.  The wife complained that the husband involved himself in those discussions against her wishes.

1. On 3 October 2013, the husband and children flew from Canberra to Melbourne, met up with the wife and they all flew to Adelaide.  Return flights to Canberra for all of them were booked for 13 October 2013.  The husband said they had agreed to go to Adelaide for the school holidays.  The wife said they went to Adelaide to undertake marriage counselling because it was more readily available in Adelaide and both had support there.  It was agreed the family would all stay at the home of the maternal grandparents but that, if the parties needed space from each other, the husband would spend time at his parents’ home.  A counselling appointment was booked for the day they arrived, 3 October 2013.

2. During or shortly after the counselling session on 3 October 2013, the wife told the husband to take his things from her parents’ home and to go and stay with his parents.  He did so.  The next day the wife told him she had decided to separate from him on a permanent basis and that she wanted to return to live in Adelaide with the children.  The husband told her he was not agreeable to the children living in Adelaide.  He said he offered to completely restructure his life, to work part-time and to do anything else the wife wanted to help her to develop her own career and to make her happy.

3. Between 4 October and 20 October 2013 the wife refused to allow the husband any unsupervised time with the children.  Most of the time he spent with the children was supervised by the wife or her family but on three occasions she permitted him to spend time with the children overnight at his parents’ home.  The husband returned the children on each of those occasions.  The parties continued to attend counselling sessions.

4. On 18 October 2013 the counsellor came to the home of the maternal grandparents and was present when the parties told the children their parents were separating.

5. The wife proposed to enrol the children at a local school.  The husband said he agreed under protest because, otherwise, the children would not be attending any school.  He made a note on the enrolment documents that it was occurring under protest by him and that it was his intention that the children return to Canberra with him to at least complete the 2013 school year.

6. The wife refused to allow the husband to spend any time with the children between 22 October and 2 November 2013 because she said the husband had threatened to return to Canberra with the children.  She did, however, allow telephone communication and occasional Skype sessions.  In her affidavit filed on 25 October 2013 she said that the husband had bullied her in a counselling session to agreeing to the children spending every weekend with him except for one Sunday per month.  The wife said she was unhappy about that because the children also needed to spend weekend time with her.  She seemed to justify withholding the children from their father on the basis that his solicitors had indicated the father intended to return to Canberra on 2 November 2013 with the children.  However, the letter from his solicitors, which is dated 24 October 2013 and annexed to the wife’s affidavit filed the following day only says the husband “proposes” to return to the ACT with the children on 2 November 2013.  It was a proposal by the husband, not a threat.

7. The wife filed her urgent parenting application on 25 October 2013.

8. Interim Orders were made by Judge Brown on 23 November 2013 requiring the return of the children’s residence to the ACT, pending a hearing of the wife’s application to relocate.  The husband was given a week to vacate the former matrimonial home after which the wife had the option of living there with the children.  She took that option. 

9. During cross-examination it was put to the wife that she made a unilateral decision to remain in Adelaide with the children and planned to do so before the family travelled to Adelaide.  She denied that.  It was put to her that she must then have intended to return to Canberra at the end of the visit.  She did not agree. She said “it was my intention to see what would happen”.[2]

   [2] Transcript 26 June 2014 at pages 106 to 107

10. During cross-examination of the husband it was put to him that it must have occurred to him particularly while the wife was in Melbourne that the wife would want to return to Adelaide if the marriage ended.  The husband said it did not occur to him that she would want to do so.  He agreed that the parties knew virtually no one in Canberra when they arrived, that he was the wife’s closest support and her confidant and that, once the marriage was over, she had virtually no support in Canberra.  The husband said the wife was still able to obtain support from her family through telephone calls and regular visits.  He agreed she had maintained contact with her childhood friends in Adelaide but said she had also developed some friendships in Canberra.

11. The husband denied the wife’s assertion that the primary reason the parties went to Adelaide in October 2013 was to get counselling.  He said they went for a holiday and organised to have some counselling while there as they desperately needed it.  He said there were also some podiatry appointments for the children during that period.

12. The husband denied agreeing in the counselling session that the wife and children should stay in Adelaide.  He said the wife told him that if he wanted any chance of saving the relationship he should agree to deferring the return to Canberra and he agreed to extend the visit by a week.  He said he decided to stay in Adelaide once the family law process began and did so until the interim proceedings were resolved.  He said the girls were distressed and wanted to return to Canberra and their normal routine.  He said the girls told both parents in the presence of the paternal grandfather and the maternal grandmother during the counselling session on 18 October 2013 that they wanted to return to Canberra.

13. The husband submitted that the wife’s unilateral actions were disruptive.  It was put to him that he had previously decided it was good for the children to relocate from Adelaide to Canberra, notwithstanding the disruption.  He replied there were numerous discussions about that move before it occurred and a number of pre-visits to prepare the children.

Family violence issues

1. Family violence is defined in the Family Law Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”.[3]

   [3] Section 4AB(1) Family Law Act 1975

2. The only allegations of physical violence are those made by the wife in relation to the events of March 2012 when she said the husband violently raped her and, the following day, verbally abused her and punched the wall.  For the reasons set out earlier, I reject the wife’s evidence about the alleged rape.  The verbal abuse may have occurred but it was situation specific and, in the context, was not coercive and controlling behaviour.

3. The wife alleged that throughout the relationship the husband was very controlling in relation to the parties’ finances.  The husband agreed that he managed the finances but said that from the first year of their relationship he always left financial documents including bank statements and credit card statements on the kitchen bench or the dining room table for the wife to review if she wanted.  He then kept them in clearly marked files which she could access at any time.  He said he encouraged her to keep herself informed about their financial circumstances but she never displayed any interest in doing so and he never saw her looking at any of the statements.  He said that in pre-marriage counselling the wife stated explicitly that she wanted him to manage the finances and she would manage the social aspects of their relationship.

4. The husband said almost all of the parties’ expenses were paid for on credit cards and the credit card account was usually paid in full each month.  He said the only things not paid by credit card were mortgage payments, the credit card payments and occasional other bills from entities that did not accept credit cards.  He said each party had a credit card and they both used it. Each party also had a key card to withdraw cash for personal expenditure but the wife did not activate her card until shortly before she went to Melbourne in 2013.  He said that when the account was opened he gave the wife all of the information necessary to enable her to activate her card.  He said the process was not difficult but it had to done by speaking to a customer service officer from the bank on the telephone while logged into internet banking.  He said the wife tried to activate her card once in 2009 and once in 2011 but apparently found it too difficult.  He said because her card was not operational, if the wife wanted cash she asked him to withdraw it for her which he did.  He was asked whether it ever occurred to him that the arrangement meant that he was in control of the wife’s access to cash.  He said he did not think of it that way because he always provided whatever cash she asked for.  He said the wife appeared to lack confidence about activating her own card and seemed comfortable with him giving her cash directly.

5. Before she went to Melbourne the wife made a concerted effort to activate her key card and was successful.  She withdrew funds throughout the time she was away.  She said she still felt controlled by the husband and restricted herself to withdrawing small amounts.  That evidence was not persuasive.

6. I reject the wife’s evidence that the husband used the parties’ finances as a means of control of the wife.

7. It was put to the husband that he deliberately made life difficult for the wife following separation by retaining the only car the parties had and by taking the lawnmower.  The husband did retain the car when he returned to Canberra from Adelaide following the orders of 19 November 2013.  The wife returned from Adelaide on 30 November 2013.  Less than three weeks later, on 18 December 2013 the parties agreed to consent orders, which required husband to pay the wife $10,000 cash within 48 hours.  Those orders also required the wife to transfer her interest in the car to the husband.  The husband sold the car to a finance company and leased it back in order to generate the funds to pay the wife.  His parents initially provided him with the funds to pay the wife and he used the proceeds of sale of the vehicle to repay part of that amount to his parents.  At the time of trial there was still an amount of about $4,000 owing to them.  It is not reasonable in my view to accuse the husband of controlling behaviour by withholding the car in circumstances in which the wife agreed to the transfer vehicle to the husband so soon after her return to Canberra in order to generate the funds to pay her cash.

8. The wife’s parents provided funds for the wife to hire a car when she first returned to Canberra and they later provided another vehicle for her use for as long she needed.

9. The husband agreed he had no need of a lawnmower when he moved into his apartment whereas the wife stayed in the former matrimonial home and needed to continue to maintain the garden and lawns at that property. He said the lawnmower had some sentimental value to him because his parents gave it to him 15 years ago, well before the parties commenced cohabiting. He said that he moved to an apartment because he only had one week to be out of the former matrimonial home following the orders of 19 November 2013 but always intended that accommodation to be short-term. On 26 August 2014 he moved into a house with a lawn. He said he offered to lend the lawnmower to the wife or to go around and mow the lawns for her. He said he was worried that if he had simply left the lawnmower at the former matrimonial home the wife may have sold it. There were other ways the husband could have ensured the lawnmower was not sold. It would have been better for him to have made it available to the wife but his actions in retaining it do not in my view amount to controlling behaviour within the definition of family violence in the Family Law Act.

10. The wife said handovers of the children when she returned to Canberra were problematic because she was scared of the husband.  She was asked what the husband had done at handovers to frighten her.  She said he yelled at her on a number of occasions and he tried to grab her on one occasion when they first returned from Adelaide in late 2013.  Although the handovers occurred at that time outside a police station, the wife made no complaint to the police about the husband’s behaviour.

11. In the evidence there were a range of examples of behaviour by the husband which are the opposite of coercive or controlling behaviour.  One example is that the wife wanted the children to have her surname rather than the husband’s because there are no male children of her generation in the family and it would otherwise mean the end of the Hansford name.  The husband agreed to that and the children had the surname Hansford for much of their childhood.  Although there is no compelling reason for children of a marriage to be known by their father’s surname rather than their mother’s, in Australian society that is still unusual.  It shows a degree of flexibility and accommodation by the husband of the wife’s wishes.  At a date which is not clear on the evidence the children’s surname was changed to a hyphenated composite of both parents’ names.  The husband said that occurred in response to a request by the children.  The wife said the husband agitated for it.  Whichever is true, the point still stands.

12. The fact that the husband acquiesced, albeit reluctantly, to the wife’s demand that she be permitted to have sex with someone other than him indicates that, at times, the husband acceded to unreasonable demands by the wife.  That behaviour is not consistent with coercive and controlling behaviour by him throughout the marriage.

13. The maternal grandmother described two incidents in which she said the husband behaved in an aggressive fashion towards her.  One was on Mother’s Day in May 2012 when, after a misunderstanding on the husband’s part, she tried to explain something to him.  She said he shouted at her to leave him alone and tried to push her away with his hand as he walked off.  She said his hand did not actually connect with her.  The second incident was on 9 November 2013, not long after separation, when she said the husband stood over her pointing his finger at her in a threatening manner and shouted at her that anything she wanted to say to him had to go through his lawyer.  The husband denied these incidents but, even if I accepted them as true, they do not support a finding that the husband has engaged in family violence.

14. There is no competing evidence that the husband has engaged in family violence.  The first complaint in relation to violence occurred in the wife’s affidavit filed in support of her initiating application on 25 October 2013 when the parties were still in Adelaide following the marriage breakdown.  The husband argued that the wife alleged family violence as a means of increasing her chances of being able to stay in Adelaide with the children.  I agree that inference is reasonably open on the evidence.

The extended maternal and paternal families

1. Both parties come from loving, close-knit families.  Both derive a lot of support from those families and, in particular from their parents.

2. Both of the wife’s parents and her sister, Ms K, swore affidavits in support of her.  They all gave oral evidence and were cross-examined. All were credible witnesses.

3. The wife’s parents are both health care professionals.  Her mother is a health care professional of 35 years’ experience and has a special interest in ….  Her father specialises in …,.

4. The wife’s parents work together in a business they established approximately 35 years ago and which operates in three separate sites.  They own and operate a number of family companies and a family trust of which the wife is a beneficiary.  One of the companies or the trust has an arm which is set up to support ….  The maternal grandfather said that the trust pays his daughter, the wife in these proceedings, $1,914 per month after tax for work she does managing projects for the company and for some casual work.  He said he and his wife support all three of their daughters in similar ways.  Both of the maternal grandparents said the wife could take a more active role in the family businesses if she is permitted to return to Adelaide with the children and, for example, could manage a business they run at the ….

5. The maternal grandparents have provided other substantial financial support to the wife.  During his oral evidence on 1 October 2014 the maternal grandfather said he and his wife had paid to date approximately $150,000 to $180,000 for his daughter’s legal expenses and between $5,000 and $10,000 in living expenses for her since January 2014.  He said the amounts were advanced as a loan but he and his wife would allow their daughter plenty of time for repayment.  On 1 October 2014 the wife said her borrowings from her parents had increased to close to $200,000.

6. Both of the maternal grandparents gave compelling evidence about their extensive involvement with the parties and the children when they lived in Adelaide and subsequent to their move to Canberra.  Both said that, on the basis of their observations, the wife was the primary caregiver to the children and the husband was the primary income earner.

7. Both of the maternal grandparents said they initially had misgivings about the relationship between the parties but, over time, decided to make the best of it and attempted to support the husband as well as their daughter.  The maternal grandmother said that she and the husband developed quite a good relationship and, after the family moved to Canberra, he would sometimes ring her to talk things over.

8. Both of the maternal grandparents gave evidence about their knowledge of the incidents in March 2012 involving the wife having sex with a stranger and her allegation that the husband had raped her.  The maternal grandmother said the husband rang her in March 2012 and told her that the wife had been unfaithful to him, that he couldn’t find her and that he was frantic.  She said she tried to calm him down.  The wife at the time was undergoing treatment for what was thought to be bipolar disorder.  The maternal grandmother said she suggested to the husband that the wife’s behaviour could be a symptom of her illness and, if so, it means she is quite unwell.  She encouraged him to not see the behaviour as a personal affront but rather as part of her illness.  She said she suggested the husband look after his wife, talk to her psychiatrist and get some counselling for himself.  She said she was appalled to find out that what the husband did instead was take his wife and children to Town L to see his brother who is a health care worker and sister-in-law who is a health care worker.  She said that, rather than obtaining appropriate support for his wife, the husband appeared to be exposing her to shame and humiliation.  She said she did not tell her husband about the incident in order to keep her daughter’s confidentiality.

9. The maternal grandmother said that in October 2013, at the time of the separation, her daughter told her a different version of the events in March 2012.  She said her daughter told her that the husband had demanded sex and, when she initially said no, he forced himself on her. She said her daughter told her that the sex was rough but she did not cry out because she did not want to upset the children. She said she told her daughter that “what you are describing is rape”.

10. During cross-examination the maternal grandmother was asked whether she knew that her daughter had let the stranger back into the house and had had sex with him a second time. She said she knew that.  She was asked whether she thought the description of the husband’s behaviour was incongruous with his supportive behaviour at the time and with being so upset.  She said she thought the whole incident was bizarre rather than incongruous.  She was asked whether she had any doubts about what her daughter told her about the incident, given she was potentially quite unwell and being treated for bipolar disorder at the time.  She said she did not doubt her daughter’s veracity.  She said she did not speak to the husband about the allegation after she heard her daughter’s version of events.

1. The maternal grandfather said he visited his daughter when she was living temporarily in Melbourne in September 2013.  He said his daughter was upset, distressed, withdrawn and sad.  He said she told him about various problems she was having including in the marriage.  She told him about having had sex at her home with a man she met on the internet and said that the husband had encouraged her to do so.  She also told him that the husband had forced himself on her sexually despite her asking him not to.  The maternal grandfather said in his affidavit sworn on 28 May 2014 that he was appalled by these revelations but did not tell his wife about them in order to protect his daughter’s confidentiality.  During his oral evidence however he said he did not tell his wife because it was not something he wanted to discuss with her at that stage and denied it was because he wanted to protect his daughter’s confidentiality.  He said he and his wife talked about the issue at some point but he could not now remember when that was.

2. It was submitted by counsel for the husband that it would not be helpful for the children to live in a house with the maternal grandparents because they do not have a positive view of the husband and believe, for instance, that he raped their daughter.  However, neither of the maternal grandparents were vehement in their criticism of the husband, notwithstanding the rape allegation.  The maternal grandmother in particular was quite moderate and balanced in her comments.  She said that as a health care professional she often deals with people involved in situations of domestic violence and can see it in a different context to how other people might.  She said she was sure that the husband would not consider that he raped his wife and she understood why he would think that way. She said she saw the incident within the bigger context of the failure of the marriage and in the knowledge that awful things sometimes happen at that time.  The maternal grandfather also said that the relationship between him and the husband improved over the period of the marriage and, regardless of what happened in the marriage, the parties are still the parents of the children and they both need to have a relationship with them.  He said he would not do anything to jeopardise that.

3. In cross examination by the independent children’s lawyer the maternal grandfather said that, at the time he was giving evidence, he did not really have a relationship the husband.  He said they were not on speaking terms with each other but he was involved in facilitating discussion between the parties about arrangements for the children via text messages and there were no problems in that regard.

4. It is not surprising that the maternal grandparents are supportive of their daughter.  In my view the risk of any negative attitude on their part being transmitted to the children can be countered to some extent by restraining orders and by the children spending significant time with their father in order to ensure they have their own experience of him away from the influence of the extended maternal family.

5. The husband argued that it would not be helpful for the wife and the children to live with the maternal grandparents because each of them had expressed a view that their daughter was not suffering any mental health difficulties.  However, a review of the evidence indicates that each of them said they were aware of the mental health difficulties suffered by their daughter from time to time including that she has suffered from anxiety and depression and was at one point diagnosed with bipolar disorder.  Each of them expressed the view that their daughter was not currently suffering mental ill health.

6. The husband’s father gave evidence in support of his son and the husband’s mother was present throughout the proceedings to support him.

7. The paternal grandfather is a consultant psychiatrist.  He was an impressive witness.  He spoke very positively about the early years of the relationship between the parties.  He said the wife’s parents were very upset that their daughter was pregnant at such a young age and concerned about the impact it might have on her education, but the parties worked hard to ensure she completed her degree.  He said he and his wife spent quite a lot of time with the parties early in the relationship because they lived only five minutes away.  He said there was also quite a bit of interaction with the wife’s extended family.  He said he thought the parties were pretty good for each other in those years.  When asked to expand on that he said:

   Well, when things were going well and – they were happy. They were open. There would be quite a bit of laughter. They would be active with the kids. They were good for the kids. They were good for each other. And it was an open – seemed to be frank sort of relationship.

8. The paternal grandfather said that in his observation both parents were very involved in the practical care of the children and he frequently observed his son doing things such as changing babies’ nappies.

9. The paternal grandfather gave evidence of conversations with his son in which his son told him he had given the wife an undertaking before they married that she could have extramarital sex in the future if she requested.  He said that his son first told him about that in October 2013 during the period the parties were undertaking counselling in Adelaide but before the children were told their parents were separating.  He said he had a more detailed conversation with his son about the issue at a later date.  He said his son told him on the later date that, because he had made the promise, he honoured it.  The paternal grandfather said in answer to a question that he accepted unreservedly what his son said about the issue.  He was asked whether it struck him as bizarre.  He said it did and that he thought it was even more bizarre that his son would honour the agreement.  He said it caused him to be very angry with his son.

10. The paternal grandfather also clearly believed that his son had never raped his wife.  He was asked whether the allegation made by the wife caused him to think poorly of her.  He replied convincingly that he did not think poorly of the wife but rather thought of the whole episode as a tragedy.  He said that he was confident both he and his wife could rise above the experience of the various allegations made in the proceedings. He said:

    We’ve had a lot of time to talk over the last 12 months. There’s a lot of grief. There’s a lot of very, very sad things that have happened. There’s a great deal of anger that we’ve experienced; a great deal of sadness. And it’s awful to watch the suffering, both of Ms Hansford and of Mr Phillips, but particularly of the girls. And I think this is a bad situation, and I think we have to try and do whatever we can to make it as good as we can, particularly for the girls.

11. The paternal grandfather was asked about the impact of events on his and his wife’s relationship with the extended maternal family.  He said that they had always been on good terms but, although there would be no difficulty in the two families being civil with each other, given what has occurred, it was not realistic to think they would ever be good friends.

12. The paternal grandfather said that he and his wife had visited his son seven times between the end of the relationship in October 2013 and when he swore his affidavit on 12 June 2014 and a couple of times after that.  He said he thought it was an important part of adding to the children’s sense of normality as they have always had a close relationship with their grandparents.

13. The paternal grandfather was asked about his assessment of the parties’ capacity to co-parent in the future.  He said he did not feel optimistic, given what had occurred between them.

Mr M

1. In … 2014 the wife began communicating with a man known as Mr M whom she met on an internet dating site.  She met him for the first time on … 2014 before she and the children went to Adelaide for a fortnight, returning on … 2014.  The wife continued to see Mr M on her return and introduced the children to him a month later, on … 2014.  She then took him to Adelaide for the weekend of … 2014 to meet her family and attend a family function.  The following week, Mr M moved into the wife’s home with her and the children.  

2. Mr M swore an affidavit on 19 June 2014 in which he said that he started moving his belongings into the wife’s home on … 2014 and has been living with them since that date.  The wife said it was some time during the week beginning … 2014.  There is no material difference in the dates.

3. At the time the wife and Mr M met, Mr M was working as a professional for a national organisation.  He had resigned from the position to take effect at the end of … 2014 when he planned to travel overseas.  After meeting the wife he cancelled his travel plans.  He and the wife both said that Mr M moved in to the house so quickly in order to provide support to the wife through the Court process.

4. When the wife swore her trial affidavit on 28 May 2014, she did not mention Mr M.  The only thing she said that related to him was at paragraph 160 where she said “I have recently met a man and we have started dating”.

5. On 12 June 2014 the wife had an assessment with a psychologist, Mr A.  Mr M collected the girls from school that day and drove them into town to meet her following the appointment.  During the assessment the wife did not mention to Mr A that she had commenced a de facto relationship.

6. Both the wife and Mr M gave evidence that the children had quickly developed a comfortable and close relationship with Mr M and enjoyed his company.  They both also said that Mr M intended to move to Adelaide with her and the children if the relocation was permitted.  The wife’s parents said they were very happy to have Mr M move into their home with the wife and children.

7. On … 2014, less than four months after he moved in with the wife, a serious incident occurred.  The wife and Mr M had an argument after which Mr M told the wife he intended to get some rope and hang himself.  In response to the wife’s query he confirmed that that was his intention.  He then walked outside.  The wife rang the police.  Four police officers attended the home.  Mr M, who had already packed some of his belongings, left with the police that evening.  The children were still awake when the incident occurred and saw the police come to the home.  The wife said they were confused about events that night but she was able to reassure them.

8. The incident occurred during a period in which the trial was adjourned part-heard.  The trial resumed about one week after the incident.  The wife said she was uncertain about whether or not there was any prospect of her and Mr M reconciling their relationship.

9. The wife said that Mr M disclosed to her before they moved in together that he had suffered from depression during his teenage years and in his 20s.  He was aged 38 when they began their relationship.  The wife said he told her that his mental health issues were well under control.  She said she was completely taken by surprise by the events of ….

10. The wife agreed that her relationship with Mr M involved two major changes to the children’s lives; the first being Mr M moving into their home less than two weeks after meeting him and the second being Mr M abruptly leaving their home in dramatic circumstances four months later, after they had grown fond of him.

11. The wife had stopped attending the group counselling in July 2014.  She said she stopped because she was feeling better and “attending Group with a lot of depressed people made me feel miserable and low.”  The wife began attending group therapy again on … 2014, the day after the incident with Mr M because, she said, she had no other support.

12. The wife agreed that Mr M was earning $10,000 per month while he lived with her and, although her expenses were $800 per week more than her income, she did not make any request of Mr M to contribute to household expenses.

13. The proceedings were adjourned part heard from 26 June 2014 until 1 October 2014.  During the adjournment, on 26 September 2014, the wife filed a further affidavit dealing with her relationship with Mr M.  At paragraph 4 of that affidavit she said that Mr M stopped living with her and the children on … 2014.  She said that while he was there he paid the rent and utilities and she paid the grocery bills.  In her oral evidence on 1 October 2014 she said that the affidavit was slightly incorrect.  She said she and Mr M shared the rent, they both paid grocery bills and Mr M paid the last lot of utility bills.  She said they had a flexible arrangement.

14. The wife said on 1 October 2014 that while she was in a relationship with Mr M, she began to be more open to the possibility of staying in Canberra, depending on whether she could afford it and what sort of support she would have.  She and Mr M took the children to an open day at the … School on 2 September 2014.

Dr B

1. An expert report was prepared on 8 April 2014 by Dr B, a consultant child and adolescent psychiatrist and Adjunct Associate Professor of Psychiatry and Psychology at the University of New South Wales.

2. At the time of preparation of the report, there was a real possibility of the parents living in separate cities.  Since that time each party has made it clear that they will be living in the one city although each urges the Court to order that the children live in the city of their choice.

3. Dr B had access to the affidavit material filed by the parties up to December 2013 and a range of subpoenaed material including medical records in relation to the wife’s health.  Dr B interviewed each party, spoke with the children and observed the children with each parent.  His report is comprehensive.  Although the wife took issue with some aspects of the report, the disputed areas are not significant.

4. Dr B formed the view that both children have a close, loving, affectionate and emotionally secure relationship with each parent and each other.  He said they spoke positively of each parent and of the care they receive in each household and clearly see both parents as reliable and available caregivers.  Both children expressed a desire to have their parents live together again. In the absence of that occurring, they each expressed a desire to spend a lot of time with each parent.  [Y] specifically stated a desire to spend equal time with each parent.

5. Dr B described the wife as being very distressed and tearful throughout the interview but said she did not present as being clinically depressed or hypomanic.  He said the anxiety and distress displayed were congruent with the difficult issues being discussed but her emotions were quite labile.  By contrast the husband was described as being reasonably self-contained except when speaking about recent events and the allegations against him during which he showed a level of distress.

6. Dr B identified the main risk to the children posed by them living with their mother concerned the wife’s mental health and psychological well-being.  He identified the main risk to the children posed by them living with their father concerned his work life and the demands placed on his time.  He said the parties had worked very much as a team in the past to complement and supplement each other’s skills and availability in caring for the children.  He said that in his view the most desirable outcome would be for both parents to reside in Adelaide with the children living for equal time with each of them.  In the event that did not occur he suggested that the children live with their father for the next two years which would allow their mother to complete her study and to seek further psychological therapy after which the children could move to Adelaide to live with her.  Neither parent thought that proposal was viable and nor did the independent children’s lawyer.

7. Dr B described the wife’s medical and psychiatric history as one of the most complex of any parent he has had to assess.  He said she suffered trauma as a child because of her learning difficulties associated with the Agenesis of the Corpus Callosum (ACC) which caused her to feel inadequate despite her above-average intelligence.  He said her early traumas were compounded by the sexual abuse when she was an adolescent and the emotional complications of it being perpetrated by a person who was a family friend and relative, and the father of two of her friends.  He said sexual abuse during adolescence can have a significant impact on self-esteem, interpersonal relationships, sexual behaviour, mood regulation and social functioning in general.  He said the impact on the wife can be seen in the symptoms of Post-Traumatic Stress Disorder she displays, her difficulties with mood regulation and control of impulsivity, overlaid with symptoms of anxiety and depression.  He believed the abuse had also had a profound impact on extended family relationships.

8. Dr B expressed the view that the wife’s ACC may also have contributed to the mental health difficulties suffered by her and referred to some of the medical research in that regard.  He said it may cause the wife to misunderstand or misinterpret interpersonal dynamics.  He said it may also have some bearing on why the wife has apparently not benefited from some of the psychotherapeutic intervention available to her.  He noted the wife told him she was benefiting from more recent psychological assistance she had obtained from a clinical psychologist in Canberra.  He expressed the view that she would continue to need significant emotional and mental health support in the future.

9. Dr B gave oral evidence during the proceedings by way of telephone link and was cross-examined by counsel for each party and the independent children’s lawyer.  

10. During cross-examination by the wife’s counsel, Dr B agreed that the isolation the wife feels in Canberra would exacerbate her particular vulnerabilities.  He expressed the view that, if the wife remained in Canberra, the risk of further episodes of anxiety and depression would increase, along with further loss of self-confidence and self-esteem.

11. At page 42 of his report, Dr B had said the children would experience distress if their relationship with their mother was attenuated.  That statement was made in contemplation of a situation in which the children and the mother lived in different cities.  Dr B was told during his oral evidence that each party had indicated they would live in the same city as the children.  Counsel for the wife put to Dr B that the children’s relationship with their mother would also be attenuated in the event the children spent only limited with their mother.  Dr B agreed with that proposition.  He said the children may find such an arrangement distressing but said it would be ameliorated by the children and the wife living in the one city as the children’s access to her would be much easier and they would feel that she was closer than if she was living in a different city.

12. Dr B was asked why he concluded that the most desirable outcome would be for both parents to reside in Adelaide and for the children to spend equal time with them.  He said he thought both parties would benefit from the social support provided by their extended families in Adelaide but the wife in particular would benefit from having a high level of security and stability provided by her family as well as a range of other social supports.

13. Dr B agreed with the proposition put by counsel for the wife that the risks he spoke about in relation to each parent were significantly abated by both parents having the support of extended family networks.

14. Dr B said that in early adolescence girls tend to be drawn to their mothers because of issues associated with puberty and with negotiating more complicated relationships with peers.  He said they tend to rely on their mothers to talk through those issues. He said fathers are also important for adolescent girls as they tend to be more dispassionate and objective about issues and, as children move through adolescence, they are more likely to rely on both parents.

1. Despite the volume of evidence about poor communication, I am of the view that the prospect of the parties being able to manage equal shared parental responsibility is reasonable.  I accept the evidence of the husband that, notwithstanding some very difficult issues during the marriage, the parties were able to communicate well with each other and did their best to work through issues together.  Understandably, things were tense after separation and particularly after the early litigation which resulted in the children being returned to Canberra.  During the approximately 3 month adjournment of the proceedings between 26 June 2014 and 1 October 2014, the communication between the parties improved significantly and, in my view, bode well for the future.  This seemed to be partly due to the parties undertaking the ARCK program and partly because Mr M was a conduit for better communication between them.

2. Although there was a reversion to poor communication from 26 September 2014 when the parties had to communicate without the assistance of Mr M, that was only one week before the trial resumed and the tension and stress arising from the adjustment to new circumstances was evident.  I view that period as a backward step in a longer term positive trajectory.  I am confident on the evidence as a whole that the parties will be able to resume a much better quality of communication once these proceedings and the power struggle associated with them are over.  The therapy the wife has agreed to undertake should also significantly assist in that regard.

3. Both parties are devoted parents and know their children well.  They both have a lot to offer in terms of decision-making concerning the children’s welfare but bring different perspectives to that process.  Allowing one or other party to have sole parental responsibility is not likely to cure the communication difficulties but is likely to foster feelings of resentment in the parent shut out of the process.  I am satisfied it is in the best interests of the children for both parents to have responsibility for making decisions about their long-term care welfare and development.

4. Having decided to order equal shared parental responsibility, I am required by the Family Law Act to consider whether the children spending equal time with each parent is in the best interest of the children and reasonably practicable and, if so, consider making such an order. If not, I am required to consider whether the children spending substantial and significant time with each parent is in the children’s best interest and reasonably practicable and, if so, consider making such an order.[23]  Significant and substantial time is defined as time which includes weekdays, weekends and holidays and time which allows the parent to be involved in the child’s daily routine and events of particular significance to the child and the parent.[24]

   [23] Section 55DAA (1) and (2)

   [24] Section 55DAA (3)

5. Because the parents have agreed to live in the same city, there is no practical impediment to the children spending either equal time or substantial and significant time with each parent.  I am satisfied on the evidence that it is in the children’s best interest for them to spend equal time with each parent.  Such an arrangement will allow the children to enjoy the benefits of each parent being fully involved in their lives and the different aspects they each bring to their parenting.  It will allow the children to develop their own experience of each parent which will help protect them from any negative sentiments about them they encounter in the other parent’s care.  It will also provide regular respite to each parent from their parenting responsibilities and allow them to focus on other important tasks such as employment, study and, in the case of the wife, mental health treatment. Such an arrangement also accords with the children’s views.

6. The husband sought an order that the children live primarily with him until the wife had undertaken a certain amount of treatment for her mental health issues.  Although I understand the arguments in support of that proposal I am not persuaded by them.  In my view it is likely to be very distressing for the wife and confusing for the children.  It may well cause resentment and a deterioration in the wife’s mental health which would be counter-productive.

7. I note the independent children’s lawyer supported orders for the parents to have equal shared parental responsibility and for the children to live for equal time with each of them, on a week-about basis.

Relocation

1. The only issue left to decide is in which city the family will live. Each party has a perfectly valid position and good arguments for the children living in the city of their choice.  The parties lived for all of their lives in South Australia until they moved together to Canberra in … 2011.  They separated in September 2013, less than three years later. It is understandable and reasonable for the wife to want to return to the familiar environment of Adelaide and to enjoy the support and comfort of being near to her family and long-term friends.  She is not required to establish good reasons for wanting to relocate but she has good reasons in any event.

2. The husband also presented a compelling case for the children remaining in Canberra and it is reasonable that he would want them to do so.  The children are settled, happy and flourishing in Canberra.  They have good friends, are happy at school and have a range of satisfying extra-curricular activities.  The husband has a good job and is likely to be better able to support the children financially if he continues in his current employment.  His employment in South Australia is uncertain although he is well qualified and unlikely to have difficulty finding a new job even if it is at a lower income.

3. Having heard the evidence of each party and their witnesses, I am persuaded that it is in the best interests of the children to relocate to South Australia.  The deciding factor is the level of emotional and practical support available to the wife in South Australia.  She clearly has a number of significant vulnerabilities and I am satisfied on the evidence that she is likely to function better as a parent and generally with that support and the children are likely to benefit as a result of their mother being a better emotional and psychological state.

4. Although both children expressed a desire to stay in Canberra, the likely improvement in the well-being of their mother and the benefits which will flow to the children from that are more important considerations.  I note that, notwithstanding her preference to stay in Canberra, [X] said she would prefer to relocate with her mother to Adelaide in the event her parents lived in separate cities.  The children are likely to miss their lives in Canberra and their close friends but the evidence of Dr B is they are both sociable, competent and resilient children and are likely to form new friendships reasonably easily.

5. The independent children’s lawyer supported the relocation.

6. It may take some time for the husband to find a new job in Adelaide and, as foreshadowed during submissions, to avoid either a period of unemployment or the children being separated from him for a lengthy period, I intend to give him some time to find alternative employment before the children are able to relocate.  Also, both parties will need time to end their rental leases and make arrangements to relocate to South Australia.  Accordingly, I intend to order that the relocation not occur until the school holiday period at the end of term one in 2015 unless the parties agree to the move occurring earlier.

7. If the husband is not in a position to relocate by the end of the first school term, the wife will be permitted to relocate with the children who will live with her and spend time with their father until he relocates.  Upon his relocation the children will live on an equal time basis with both parents.

8. By the same token, the wife may wish to relocate earlier than the first term school holidays in order to commence her course.  If she does so, the children will live with their father in Canberra and spend time with their mother.

9. There would be obvious advantages for the children to relocate now, before the commencement of the 2015 school year but delaying the move by one term will give them time to adjust to the idea and to say goodbye to their friends at school, …  hobbies and other extracurricular activities.  However, as mentioned, there is nothing to stop the parties reaching an agreement to relocate the children earlier if they wish.

10. The parties will need to agree on which school the children attend, bearing in mind that [X] will start high school in 2016.  The wife intends to live with her parents for 12 months but, if she moves into independent accommodation as planned in 12 months, a school close to her parents’ home may not be the most appropriate.  I do not intend to make orders about which school the children attend as there is insufficient evidence for me to do so and, in any event, both parents are committed to the children’s well-being, including their education, and are likely to be able to reach an agreement about the issue.  They also have several months to work out that issue. I will grant liberty to apply in the event that no agreement is reached.

11. I intend to order that the wife implement the recommendations of Mr A and Dr B in relation to her mental health treatment.

Property issues

1. The property issues received much less attention during the proceedings than the parenting issues.  There is a very small amount of property to be divided, comprising primarily the house at Property C in South Australia and the husband’s superannuation entitlements.

2. At the time the parties’ relationship commenced in 2001 the husband already had qualifications.  He was studying for a Masters at the University part-time and working full-time in the Employer. He was earning a little over $36,000 per annum.

3. At the commencement of their relationship the wife was studying a course part-time over two years and was in her second year.  She was working part-time in her parents’ family company and earning a small income.

4. In 2002 the wife commenced studying part-time for a qualification at University.  In October of that year the husband bought a property at Property C.  Settlement of the sale occurred on … 2002. He paid $193,000 for the property.  He used savings of almost $12,000 and a $7,000 first home owner’s grant.  He borrowed $182,610 from the ME bank to cover the balance of the purchase price and to pay for stamp duty, rates adjustments and conveyancing.  The equity in the property therefore was approximately $10,390 at the date of settlement in … 2002.

5. The parties began living together in … 2003.  Shortly after that the wife became pregnant with their first child.  At the time the wife was aged 21 and the husband 27.

6. At the commencement of cohabitation the husband had owned the Property C property for approximate be seven months.  There is no evidence that the equity in the property had increased.  He had a car, some furniture and personal items, a little over $6,000 in savings and almost $12,000 in superannuation.  He also had a personal loan of $14,000.

7. The wife had a less valuable car than the husband, some jewellery, personal possessions and approximately $15,000 worth of antiques.  She had almost no superannuation.

8. During the relationship the husband was the primary income earner and the wife was the primary homemaker and parent.  Both parties continued university studies during their relationship.  The wife completed her course in 2007 and a course in 2009.  In 2010 the wife began studying for qualifications which would enable her to work.  She did not complete the course because of difficulties she experienced with distance education.  In 2011 she commenced studying for a qualifications at the University but withdrew from the course in October of that year.

9. The husband completed his qualifications in 2006.  In about … 2012 he commenced studies to become a professional. The husband’s employer paid the course fees for his course and for his studies.  The wife’s parents contributed to the costs of her tertiary studies but she also accumulated a HELP debt of $1,500. Both parties supported the other in their studies during their relationship.

10. During the marriage the wife earned a small income.  Until their first child was born in … 2004, she was paid fees for her directorship of the family businesses.  She resigned her directorship in … 2006 but was reappointed in … 2009.  The wife worked part-time as clerk in the business of the husband’s father between mid-2005 and 2012.  Her gross earnings from this activity varied between about $4,000 and $5,600 per annum.  In 2012 the wife began casual employment for seven weeks in each term. She did so for two terms in 2012 and one in 2013.  She was paid about $500 for each term. She also occasionally worked as a casual for which she was paid cash in hand.

11. Over the course of the relationship the husband’s parents gifted him funds totalling $35,437. $22,000 was spent on improvements to the home at Property C.  $5,000 was used to pay out a loan in … 2008 and $8,437 was used to buy the parties’ current car.

12. During the relationship the wife inherited a total of $12,000.

13. In … 2008 the parties set up the … Discretionary Trust using $9,000 acquired through an investment loan.  The purpose of the Trust was to operate as a tax effective vehicle for investment purposes. It was primarily used by the parties to purchase shares.  According to the husband the Trust traded profitably and distributions were made to the beneficiaries each year.  The trust was also used as a vehicle through which the wife was engaged to do some casual work for an employer.  The latter produced no income.  By agreement the shares owned by the Trust were sold in … 2014 and the wife was paid $4,000 from the proceeds of sale.

14. Throughout the relationship the parties had the benefit of practical and financial support from their families.  Both families assisted with childcare when the children were young and the parties were studying. The wife’s parents bought the parties a washing machine and dryer when they moved into the Property C property and provided funds to allow them to have holidays, eat out and buy tickets to musicals and other events.

15. Both parties have obtained significant financial support from their respective families post-separation including loans for the payment of legal fees.

The law in relation to property

1. Section 79(1) of the Family Law Act 1975 empowers the Court to make orders altering the property interests of the parties to a marriage.  However, the Court must not make such an order unless it is satisfied that, in the circumstances of the case, it is just and equitable to do so.[25]

   [25] S79(2)

2. In this case the parties no longer enjoy the common use of the property and each asks the Court to make adjustments to the property. I am satisfied that it is just and equitable to do so.

3. Once the just and equitable requirement is met, in determining what specific orders should be made, the Court must have regard to the following:

   a)Firstly, to the contributions of the parties to the acquisition, conservation or improvement of the property and to the welfare of the family as provided in subsections 79(4)(a),(b) and (c) of the Family Law Act; and

   b)Secondly, to the matters set out in the remaining subsections of 79(4) which incorporate section 75(2) of the Act. Those matters broadly require a consideration of the financial position and resources of the parties; their age and state of health; their necessary commitments in supporting themselves or any other person; the effect of the marriage on the earning capacity of either party; and the effect of any proposed order on the earning capacity of either party.

The property interests of the parties

1. The parties largely agree on the value of the property to be divided between them.  They agree the Property C property in the husband’s name has a value of $380,000 and a mortgage to the ME Bank of $194,320, leaving net equity of $185,680.

2. The parties have a motor vehicle agreed to be worth $9,300 which they shared during the relationship.  After separation the wife transferred her interest in the vehicle to the husband in accordance with orders made by consent on 18 December 2013.  The same orders required the husband to pay to the wife the sum of $10,000, with that sum to be characterised at trial.  The funds were achieved by the husband selling the vehicle to a finance company and leasing it back with payments made under a salary sacrificing arrangement.  At the time of the hearing in October 2014 the amount outstanding on the lease was $12,242.  Given the wife had no meaningful income at the time and was in urgent need of financial support, the amount is more appropriately characterised as spouse maintenance rather than an interim property distribution.

3. Given the parties’ strained circumstances at the time, it was reasonable for the husband to enter into the lease arrangement to generate the funds.  Accordingly, both the vehicle and the amount owing on its lease should in my view be taken into account in assessing the value of the property available for division between the parties.

4. The wife has received other lump sum cash payments from joint funds since separation.  A payment of $4,362 was paid to her from the sale of shares previously held by the … Discretionary Trust. Sufficient funds were generated at the time of the sale to also pay out the loan used to buy the shares.  There was no suggestion that that sum ought to be characterised as a partial property settlement and I do not intend to do so.

5. A third payment of $10,300 was made to the wife in accordance with consent orders of 13 August 2014 which was in the period the trial was adjourned part heard.  The order specified that the payment was to be by way of partial property settlement.  The funds were obtained through the redraw facility attached to the home loan.  Counsel for the wife argued that, for calculating the property available to be distributed, the payment to the wife ought to be notionally added back and the increase in the home loan ignored to avoid the wife sharing the financial burden of providing the funds to her. I agree.  The parties agreed the home loan at the end of the proceedings had a balance of approximately $195,000.  I will reduce that sum by $10,300 and notionally add back the same amount representing the distribution to the wife.

6. At the close of proceedings on 21 October 2014 the parties agreed to further interim orders for the payment of the sum of $15,000 to the wife by way of interim property settlement funded through accessing the home loan redraw facility.  No adjustment to the figures is required as the redraw had not occurred by the time the trial ended.  Any payment to the wife, however, will need to be reduced by any amount already paid to her in accordance with the orders of 21 October 2014.

7. Since separation, both parties have borrowed significant sums from their parents for their day to day living expenses and for legal fees.  Those loans were acquired post separation and neither party asks the Court to take them into account in assessing the value of the property available to be divided.

8. The … Discretionary Trust had no meaningful value as an asset at the time of hearing.

9. Each party has household contents of a low value which I do not intend to take into account.  They agree on the value of items of jewellery in their possession.  They also have small amounts in bank accounts but, given the time that has elapsed since separation, none of those funds can be said to be attributable to the period of the relationship.  There is no evidence of the funds in bank accounts at the time of separation but I am satisfied in any event that whatever funds existed would have been consumed in the expensive exercise of establishing two separate households immediately post separation.

1. The property available to be divided therefore is as follows:

Asset	$	$
Property at Property C	380,000
Less mortgage	184,700
Net equity	195,300
Motor vehicle	9,300
Jewellery in wife’s possession	5,000
Jewellery in husband’s possession	800
Add back of interim property distribution to wife	10,300
Total non-super assets	220,700
Superannuation
Husband	197,643
Wife	5,538
Total superannuation	203,181
Total property including super	423,881

Contributions

1. Although the husband owned the property at Property C and had some superannuation at the commencement of cohabitation, the value of each of those items at the commencement of cohabitation was very low.  The wife had antique furniture which was of at least equal value.

2. Throughout the relationship the husband was the primary income earner.  The wife earned an income for most of the relationship but at a much lower level than the husband.  The wife was the primary parent and homemaker throughout the relationship.  The husband contributed in a parenting and homemaking role but at a lower level than the wife.  Both parties studied during the marriage and assisted the other to carry out their studies.

3. Counsel for the wife submitted that the wife’s contributions should be accorded greater weight as they were carried out in very difficult circumstances because of her physiological and mental health challenges.  However in my view those same issues and their sequelae meant that the husband’s contributions were also made in very difficult circumstances.

4. Since separation the husband has continued to make greater financial contributions.  In particular, he has made mortgage repayments on the Property C property which, at the time of trial amounted to approximately $100 per week more than the rental income produced by it. Since separation the wife has continued to make greater contributions by way of parenting.

5. During the relationship the husband made greater indirect financial contributions through monies provided from his parents, being a total of $35,437, compared to the $12,000 inherited by the wife.

6. The value of any extra financial contributions made by the husband at the commencement of the relationship is negligible and the weight of the additional indirect financial contributions made on his behalf during the marriage has been offset to some extent by the contributions made by the wife over the 10 years covering the de facto relationship and marriage.  In my view the contributions made by the parties should be regarded as equal and there should, therefore, be no adjustment on the basis of contributions.

The section 75(2) factors

1. The husband is aged 37 and apparently in good health.

2. In his financial statement filed on 12 June 2014 the husband swore that his income from salary and wages is $1,595 per week or just under $83,000 per annum.  He also derived rental income from the Property C property but that will cease once the property is sold. He receives $54 per week by way of Family Tax Benefit.  He has significant outgoings which he declared in his financial statement to be $,2605 per week or about $673 per week more than his total income.  His income included $50 per week by way of repayment to his parents in addition to payment of various other loans. I am satisfied his current expenditure exceeds his income and has been met from borrowings.

3. The husband’s income from salary is lower than it might otherwise be because, about 12 months prior to separation, the husband began purchasing four extra weeks of leave each year.  Following separation he purchased an additional four weeks of leave so that he now has a total of 12 weeks of paid leave. Purchasing the leave lowers his annual gross income by about 15 or 16 per cent.  He said he has flexible arrangements which enable him to take leave every second Friday when he has the children during which he works in the canteen at the children’s school. It also means that he is able to care for the children when they are with him during school holidays.

4. The husband also has a salary sacrifice arrangement for various expenses including payment of the car lease which allows those expenses to be paid from his gross income and lowers the amount of tax he would otherwise pay.

5. According to his payslips, the husband’s gross salary before any purchased leave or salary sacrifice is $4,171.10 per fortnight or $108,450 in round terms per year.  That amount would still be less than his current outgoings.

6. The husband said that immediately after superannuation he “cashed in” one week of annual leave to generate some funds given the difficult financial circumstances the parties were in.  For the first year after separation, therefore, he had 11 weeks leave rather than 12.  He has also used some of the leave to attend workshops related to his study.

7. The wife is aged 32. She has long-term mental health issues which, at times, impact on her capacity to function generally and to earn an income.  In her financial statement sworn on 20 May 2014 she declared a gross income from her parents’ Trust of $500 per week or $26,000 per annum.  She said she had applied for Centrelink benefits but because she is a beneficiary of various family trusts, she needed to provide further documentation after which she said it would take a minimum of six months for them to assess her application.  In the three month adjournment between June and October 2014 the wife had not progressed that at all.  She said she believed it was unlikely she would receive any Centrelink benefits.

8. In her financial statement filed on 29 May 2014 the wife declared total weekly expenditure of $1,454, a deficit of $776 per week.  The wife said the shortfall was met by her parents who provided ongoing financial support to her.  By the end of the trial they had loaned her close to $200,000, the majority of which was used for legal fees but which also included loans for general living expenses.

9. At the time the wife gave evidence in June 2014 she had not made any job applications since before July 2013.  She said she was deemed medically unfit to work for three months after the interim orders were made in November 2013 requiring the children to be returned to Canberra.  She said that since then the children have been her primary focus, apart from her casual work for which she is paid by the Trust operated by her parents.  The wife said on 1 October 2014 that once the decision is made in these proceedings and she knows where she is living she will start looking for a job.

10. The husband conceded that, given the wife’s work history she is likely to struggle to find employment.  However he said she is a good professional and may find work in that field.

11. The husband clearly has a superior income earning capacity to the wife and his professional qualifications mean that that is likely to continue well into the future.  He also has the capacity to contribute to his superannuation interests at a higher rate than does the wife.

12. The husband has significant debts to his parents.  He has entered a formal loan agreement for the funds lent by them to him which, by the end of the trial, totalled approximately $150,000.  Most of the funds were spent on legal fees.  The husband was repaying his parents at a rate of $100 per fortnight plus some occasional one-off payments including a $5,000 payment in January 2014 and two $500 payments in July 2014.

13. The husband may not have secured a new job by the time the children relocate to South Australia at the end of term one in 2015.  If he chooses to relocate with the children he may have a period of unemployment but, in my view, he is unlikely to be unemployed for any lengthy period.  Any employment he does secure in South Australia may be at a lower income that he currently enjoys. Notwithstanding that, his income earning capacity will remain greater than the wife’s for the foreseeable future.  The wife’s primary qualifications are in … but she has never earned an income from that source, apart from what she is paid by her parents. She has earned a small amount from casual work. Now that these proceedings are over and she will be able to move to South Australia, it is reasonable to expect that she will be able to obtain more adequately paid employment.

14. The parties will have equal responsibility for the care of the children.  The wife, at least until she becomes more established financially, will have free board and rent with her family.

15. At the time of the hearing the husband was paying child support of $765 per month.  That may fall with changes to the income of both parties and the equal care of the children.

16. Both parties have been under significant financial strain since separation.  That is due partly to the cost of running two households but significantly exacerbated by the legal fees incurred by both parties.

17. I am satisfied that, at the time of the hearing, each party had expenditure greater than their income with the shortfall met by borrowings.  The husband has the capacity to increase his income by ending his purchased leave arrangements but it is also reasonable for him to continue to purchase some leave given his increased parenting responsibilities since separation.  Some financial relief will be available when the Property C property is sold as all of the debts currently accruing interest can be discharged with the proceeds.  However, both parties will have ongoing debts to their families for some time.

18. The wife’s income earning capacity is no doubt affected by her mental illness but I am satisfied that it has also been affected by the marriage and her role as primary parent and homemaker throughout the relationship and post-separation.  Treatment for the wife’s mental health issues in the form of therapy and, from time to time, medication is likely to be an ongoing expense for the wife.

19. To some extent the wife’s parents can be seen as a financial resource given their long-term financial support of her.

20. Given the very small property pool, in my view there ought to be an adjustment of 15 per cent in favour of the wife on account of the section 75(2) factors, primarily the income earning differential of the parties and the wife’s mental health issues. Such a division would mean the wife would take non-superannuation assets to the value of $143,455 and the husband $77,245, a difference of $66,210.

21. There is no principled reason to treat the superannuation interests differently to the non-superannuation property as the factors which impact on the wife’s income earning capacity will also affect her capacity to contribute to superannuation in the future.  The wife will, therefore, take superannuation interests to a value of $132,068 in round terms.  Given she already has superannuation of $5,538, that will require a split from the husband’s superannuation interests of $126,530. Procedural fairness has been accorded to the Trustees of the husband’s superannuation fund.

Justice and equity considerations

1. To achieve the 65/35 per cent division of the non-superannuation assets would, on the current figures, require a cash payment to the wife of $116,757.  That can be seen from the following table:

Wife	$	Husband	$
Jewellery	5,000	Equity in Property C	195,300
Interim property distribution	10,300	Motor vehicle	9,300
Jewellery	800
Sub-total	15,300	Sub-total	205,400
Plus cash	128,155	Less cash	128,155
Total	143,455	Total	77,245

1. The Property C property is the major asset and the parties have agreed for it to be sold.  Because it is the major asset, any variation between the sale price and the agreed value could have a distorting effect on the overall property division.  For that reason I have decided it would be better to order the sale of the property and that the net proceeds of sale be distributed on a 65/35 per cent basis in favour of the wife.

2. The remaining non-superannuation assets have a value of $15,100. The wife’s 65 per cent share would amount to $9,815 and the husband’s 35 per cent share would have a value of $5,285.  The distribution of the minor items above varies from those figures by less than $5,000. Given the imprecise nature of the property division generally, I do not intend to make any further adjustment.

3. The amount to be paid to the wife from the net proceeds of sale, however, needs to be reduced by the sum of $10,300 which the wife has already received by way of interim property settlement in accordance with the orders of 13 August 2014 and by the amount paid by way of interim property settlement in accordance with the orders of 21 October 2014.

I certify that the preceding three hundred and twenty-two (322) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date:  21 January 2015