Herbert and Herbert (No 2)

FAMILY COURT OF AUSTRALIA

HERBERT & HERBERT (NO. 2)

[2020] FamCA 217

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of a child – Where there are two subject children – Where an interim order that the older sibling shall live with whichever parent he personally determines from time to time, and that parent shall have sole parental responsibility for him, will remain in place as the final parenting order with respect to that child – Where parenting arrangements for the younger child must still be determined – Where the father seeks the child continue to live with him – Where the mother seeks that the child return to live with her – Where the Court finds that if the child was to return to living with his mother his relationship with his father would cease to exist in a meaningful way within a short space of time – Where the father is the parent more likely to promote the child having a relationship with both his parents – Where the child is not at an unacceptable risk of physical or emotional harm in the father’s household, as contended by the mother – Where the mother would not give the child the emotional permission to have a relationship with his father and would do nothing to facilitate it if the child lived with her – Where it is in the child’s best interests to spend time with his mother and where supervision will provide the child with protection from his mother’s influence – Where the parents cannot communicate civilly and it is not in the best interests of the child for the parents to have equal shared parental responsibility – Where the father will have sole parental responsibility – Where the child will live with the father and spend two to three hours on one day of each second weekend with his mother supervised at a contact centre.

FAMILY LAW – PROPERTY – Where the wife seeks a property adjustment such that she receive a 70% share of the total of the net property and 50% of the superannuation interests of both parties – Where the husband seeks a property adjustment such that he receive 60% of the net property pool and the wife receive 40% - Where contributions by the parties during the marriage and post-separation should be assessed as equal – Where an adjustment in the wife’s favour of 10% in consideration of s 79(4) and s 75(2) matters is just and equitable – Where the property will be divided as to 60% of the net total in favour of the wife and as to 40% in favour of the husband.

Family Law Act 1975 (Cth)

Kowaliw (1981) FLC 91-092
Stanford (2012) FLC 93-518

APPLICANT:

Mr Herbert

RESPONDENT:

Ms Herbert

INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid

FILE NUMBER:

BRC

4902

2017

DATE DELIVERED:

25 March 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

29, 30, 31 July and
1 & 2 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITOR FOR THE APPLICANT:

Rosen Lawyers

THE RESPONDENT:

Self-Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Slade Jones

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid Lawyer & Migration Agent

Orders

Parenting

That all previous parenting orders in respect of the children, X born … 2003 and Y born … 2009, (“the children”) are discharged.
That the child, X born … 2003 shall live with whichever parent he shall personally determine from time to time.
That the parent with whom X is living from time to time shall have sole parental responsibility for decisions to be made about major long-term issues in X’s life (as defined in section 4 of the Family Law Act 1975 (Cth)) save for decisions about X’s name for which parental responsibility shall be shared equally.
That the child, Y born … 2009 shall live with the father.
That the father shall have sole parental responsibility for decisions to be made about major long-term issues in Y’s life (as defined in section 4 of the Family Law Act 1975 (Cth)) save for decisions about Y’s name for which parental responsibility shall be shared equally.
That the father shall not move Y’s place of residence so as to make it significantly more difficult for him to spend time with the mother in the event that his time with her becomes unsupervised at some time in the future.
That commencing as soon as it is able to be put in place, Y shall spend two hours (or three if that can be accommodated by a provider) on one of the days of each second weekend in the independently supervised care of his mother.
That the supervised time provided for in paragraph (7) hereof shall take place at a not-for-profit, community based Children’s Contact Centre located within the Council 1, Council 2, or Council 3 boundaries or an independent private, commercial provider of supervised contact visits also located within the same boundaries.
That the particular Children’s Contact Centre or private, commercial provider that is to provide the supervision of Y’s time with the mother shall be chosen by the mother and she shall inform the father in writing of her choice or choices as soon as she has made them.
That the father shall do all things necessary to register with the Children’s Contact Centre or private, commercial provider chosen by the mother, so that Y’s supervised time with his mother may start as soon as it is able to be accommodated.

It is noted there are usually extensive waiting times involved between registration and the commencement of supervised visits at community based Children’s Contact Centres and that the mother may choose to use a private, commercial provider who may be able to commence supervision of visits immediately so that visits can commence whilst the family is waiting to be able to access a community based Children’s Contact Centre.

That any costs or fees charged by a not-for-profit, community based Children’s Contact Centre which supervises Y’s time with the mother shall be paid for in equal shares by the mother and the father.
That any costs or fees charged by an independent, private, commercial provider shall be paid for as to two thirds by the mother and as to one third by the father for the first three months of such supervision, and, if the mother chooses to use the services of an independent, private, commercial provider rather than a community based Children’s Contact Centre on an ongoing basis beyond three months from the date of these Orders, she shall pay the full costs of that private service as from a date three months from the commencement of such private supervision.
That the mother is hereby authorised to permit her own mother to accompany her to supervised contact with Y should the Contact Centre or commercial provider sanction that but X and Y’s young adult sister, Ms U, shall not be permitted to accompany the mother to such contact visits.
That Y shall spend such time with his brother, X, and his young adult sister, Ms U, as is arranged by agreement between the father and X and/or Ms U.
That the father shall ensure that he and Y continue to attend upon Ms R, psychologist, for family therapy as determined appropriate by Ms R, save that any cessation of such therapy that might take place within the first twelve months after the date of these Orders shall also have to be approved by the Independent Children’s Lawyer and the father shall be responsible for meeting any out of pocket expenses associated with such family therapy.
That the Independent Children’s Lawyer be discharged on the first anniversary of these Orders.
That the mother shall not attend at Y’s school or go within 500 metres of that school save to attend pre-arranged appointments with the school Principal and Y’s class teacher.
That the mother shall not make any attempt to contact Y by telephone, text message, email or any other internet based social media platform without the prior written consent of the father.
That the father shall not physically discipline Y or X.
That the father shall not denigrate the mother or discuss adult issues, such as these proceedings or the disputes between the father and the mother with Y or in his presence or hearing.
That the father shall keep the mother informed in writing of educational, health, social, sporting and cultural developments in Y’s life, but the mother is also authorised by these Orders to obtain, at her expense, if any, copies of school photographs of Y and any other records or documents from Y’s school that parents are usually permitted to have access to by that school.
That pursuant to section 68Q of the Family Law Act 1975 (Cth) (as amended), to the extent, if any, that these parenting Orders are inconsistent with Orders made pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) on 14 November 2018 and 27 March 2019, those family violence Orders are invalid.
That pursuant to s 68P(3) of the Family Law Act 1975 (Cth) (as amended), as soon as practicable, and no later than 14 days from the date hereof, copies of these Orders shall be given by the Registrar of the Brisbane Registry of this Court to:
(i)The Registrar of the Magistrates Court of Queensland, Brisbane;
(ii)The Commissioner of the Queensland Police Service; and
(iii)The Director-General of the Department of Child Safety, Youth and Women, Queensland.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (Cth) (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Property

That the Respondent wife shall retain as her own property absolutely the following:
(i)The motor vehicle 1 in her possession;
(ii)All furniture and other personal chattels, including jewellery, in her possession;
(iii)The balance of the money held in the Trust Account of S Lawyers after payment of the Herbert Family Trust’s liability and the wife’s liability to the Australian Taxation Office in respect of the 2017 financial year, including any liability either the Trust or the wife has for interest on the principal amount owing, with the husband and the wife by these Orders authorising S Lawyers to pay the Australian Taxation Office such amounts owing pursuant to those liabilities before paying the balance of the money currently held in Trust to the wife or at her direction.
That save as otherwise provided by these Orders, the Applicant husband shall retain as his own property absolutely the following:
(i)The motor vehicle 2 in his possession;
(ii)All furniture and other personal chattels, including an antique table setting, in his possession;
(iii)All shares in companies and loan account balances in trusts through which he operates the business, D Pty Ltd;
(iv)Any cash held by him in bank accounts in his name or in the joint names of him and his current partner;
(v)The time share interest held in respect of Q Town Resort, should he choose to retain the interest and not transfer it to the wife pursuant to other provisions of these Orders.
That the Respondent wife shall do all necessary things and execute all necessary documents to transfer to the Applicant husband all of her right, title and interest in the company, E Pty Ltd, the corporate trustee of the Herbert Family Trust and any liability owed by the Herbert Family Trust to the Respondent wife is hereby assigned to the Applicant husband with the Applicant husband indemnifying the Respondent wife and continuing to hold her indemnified against any liability she has to any of the corporate and/or trust entities the husband owns and/or controls.
That the Respondent wife shall retain as hers absolutely all of her right, title and interest in her member benefit account with the Herbert Group Superannuation Fund.
That pursuant to section 90 MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect to the Applicant husband, Mr Herbert’s interest in the Herbert Group Superannuation Fund the trustee shall pay to the Respondent wife the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $273,226 (TWO HUNDRED AND SEVENTY THREE THOUSAND TWO HUNDRED AND TWENTY SIX DOLLARS) and there should be a corresponding reduction to the entitlement of the person to whom a splittable payment would have been made but for these Orders.
That the Respondent wife will become entitled to the allocated base amount effective from the operative time and the operative time for this Order is four (4) business days from the date of these Orders.
That the Applicant husband and the Respondent wife shall do all necessary things and execute all necessary documents to facilitate the rolling out of the Herbert Group Superannuation Fund by the wife of all of her superannuation member entitlements in that Fund, including those split to her from the husbands’ member entitlements pursuant to these Orders.
That upon the roll out by the Respondent wife of all of her superannuation entitlements in the Herbert Group Superannuation Fund, including those split to her from the husbands’ member entitlements pursuant to these Orders, the Respondent wife shall do all things necessary and execute all necessary documents to transfer any interest she has in shares in the company that is the corporate trustee of that fund to the Applicant husband and shall resign as a director of that company.
That the Applicant husband shall retain as his absolutely all of his right, title and interest in the balance of his member benefit account with the Herbert Group Superannuation Fund after the split of part of that entitlement to the Respondent wife pursuant to these Orders.
Further, that within three (3) calendar months of the date of these Orders, the Applicant husband shall pay to the Respondent wife the sum of $263,630 (TWO HUNDRED AND SIXTY THREE THOUSAND SIX HUNDRED AND THIRTY DOLLARS) less the sum of $7,000 (SEVEN THOUSAND DOLLARS) if he elects to transfer within that same period of time all of his right, title and interest in a ‘time share’ interest at Q Town Resort in the State of Queensland to the wife for her to retain as her interest solely and also less the sum of $300 (THREE HUNDRED DOLLARS) being $300 the wife will owe the husband pursuant to costs orders included within these Orders.
That should the Applicant husband not comply with paragraph (34) of these Orders, then the business styled “[D Pty Ltd]” shall be sold with the net sale proceeds to be divided between the Applicant husband and the Respondent wife to give effect to a 60/40 division of the net property interests, the notional add backs and the superannuation interests as otherwise determined pursuant to these Orders and Reasons for Judgment with the total of the net sale proceeds of the business to be substituted for the sum of $612,335 being the value attributed by the Court to that business in the Reasons for Judgment that were published at the same time as these Orders were made.
That should the Applicant husband not comply with paragraph (34) of these Orders, thus enlivening the requirement for the business to be sold pursuant to paragraph (35) hereof, the matter shall be listed for mention before his Honour Justice Forrest again (with the Applicant husband’s solicitors to cause it to be brought to the Associate’s attention for listing) to hear submissions from both the Applicant husband and the Respondent wife as to the terms and conditions upon which the business shall be offered for sale and sold, including as to the prospect of an independent trustee for sale, such as an experienced solicitor such as Mr Peter Sheehy, being appointed to arrange and effect the sale and distribute the net sale proceeds within a reasonable period of time.
That the Respondent wife shall be solely responsible for any fees or costs rendered by the single expert accounting valuer, Mr T, for his personal attendance at Court during the trial and, to the extent, if any, that the Applicant husband has already paid those fees, the Respondent wife shall reimburse him that amount out of her entitlement to a cash payment pursuant to these Orders.
That the Contravention Applications filed by the wife on 24 January 2019 and 13 February 2019 are dismissed.
That the Respondent wife shall pay the Applicant husband the sum of $300 towards his costs of defending those dismissed Contravention applications.
That all outstanding Contravention Applications shall be listed for mention by way of telephone hearing before his Honour Justice Forrest at 9:30 am on Wednesday, 6 May 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4902 of 2017

Mr Herbert

Applicant

And

Ms Herbert

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

In late July and early August, last year, I presided over a five day long trial in this matter. At issue were contested parenting orders and property adjustment orders between the mother and the father. There were a couple of contravention applications filed by the mother against the father to be determined as well. The father was represented by solicitor and counsel. The mother, unfortunately, appeared without any legal representation. This placed her at a serious disadvantage as she was, I observe respectfully, not a very effective advocate for her own interests. Fortunately, the Court was assisted by an Independent Children’s Lawyer (“the ICL”) who also instructed counsel.
Sadly, the matter has been before this Court on a number of interim applications in both the parenting and the property proceedings, as well as on multiple contraventions applications brought by each parent against the other. It is, like so many other matters that are heard on a daily basis in this Court, reasonably described as a case in which there is high conflict between the former partners. That conflict has had serious impact upon their parenting and their relationships with the three children born of their marriage, as well as resulting in a significant depletion in the family wealth built up by them over the years of their former marriage.
The matter first came to my attention in late 2017. It had been commenced by the father in the Federal Circuit Court (“FCC”) here in Brisbane in May 2017. In July that year, the matter was transferred to this Court by a Judge of the FCC, on complexity grounds.
It came before me in the Judicial Duty List in late November 2017. At that point in time, the parties had $410,000 sitting in the trust account of a firm of solicitors, being the balance of the net sale proceeds of their former matrimonial home that had been sold earlier that year. On that occasion, I made Orders, amongst a suite of interim financial orders, that provided $50,000 of that to be paid to the mother by way of interim lump sum maintenance; for another $15,000 to be paid to her credit card to discharge liability she had incurred; for another $150,000 to be paid to some solicitors who the mother had previously retained and wished to retain again in the matter by way of interim litigation costs funding for her; and $86,500 to be paid to the father’s solicitor’s trust account by way of interim litigation costs funding for him. I published written reasons at the time.

The matter was back before me again on 28 and 30 August 2018 for the hearing of competing contravention applications and interim parenting orders. I found that both the mother and the father had each contravened interim parenting orders and, in the father’s case, disclosure orders as well. I also had the two boys, who are under 18 years of age and remain within the Court’s parenting orders jurisdiction, interviewed by a Senior Family Consultant who then reported to the Court and gave oral evidence. After that, I made orders that the two boys move to the father’s full-time care, that he have sole parental responsibility for them and that they not spend any time with the mother nor communicate with her without the father’s agreement. I also made orders for the father and the two boys to attend family therapy, for the mother to attend her own therapist and for a suite of other interim financial orders, including with respect to further disclosure. I published written reasons at the time as well.
On 4 December 2018, I again heard interim applications in respect of parenting matters. After those proceedings, I made orders that permitted the two boys to begin spending time each second weekend with the mother. That was over the opposition of the father, and, significantly, the ICL. That opposition was apparently not misguided. On 10 January 2019, the matter was back before me again on the hearing of the father’s application for a Recovery Order as the eldest of the two boys had left the father’s care without permission and had taken himself back into his mother’s care. I made that Recovery Order and again stopped the boys from spending time with the mother without the father’s consent. I gave extemporaneous oral reasons at the time.
Considering the matter to be in need of being heard on a final basis as quickly as possible, I made directions that fast-tracked the matter to be ready for trial and listed it for hearing in July/August 2019. At the end of that five days of trial, I had to adjourn the property adjustment part of the proceedings part-heard as there was an outstanding issue in respect of liabilities to the Australian Tax Office (“ATO”) that were being finalised in negotiations and representations between the father and the mother and the ATO. That arose out of a dispute the mother raised about the ATO’s assessment of her personal income tax liability for the 2016-2017 year based on a distribution of income by the discretionary family trust to the mother in that year that she argued she never received. The father, who is a finance professional, was asserting that he would most probably be left with a tax liability of close to $50,000 as a consequence and wanted that taken into account as a debt in the property proceedings. I determined to await the outcome of the ATO’s actual determination of the matter before finalising the property adjustment proceedings.
Some further affidavit evidence was then filed and the matter was listed before me for further submissions on 11 November 2019. The ATO had determined the matter from its standpoint, reassessed the tax assessments for the various parties for the relevant financial year and had sent notice to the parties. On 11 November, 2019, the Court was told there was now no dispute that the family trust, through its corporate trustee, owed the ATO $38,460.63 and the mother owed $1,107.39 in respect of the reassessment of her 2017 income. Disagreement remained between the mother and the father as to who should be responsible for the payment of those debts. The mother submitted that the father should be and for the father it was submitted that the debts, at least the family trust’s debt, should be paid out of the residual of the money that sits still in the trust account of the Brisbane law firm, being what is left of the proceeds of sale of the former matrimonial home.
Whilst still reserved, the matter came back before me again on 30 January, this year. The eldest boy, now aged 16, had recently left the father’s home in the middle of the night without the father’s knowledge and permission, with the encouragement and assistance of his young adult sister, and had gone to live at his maternal grandmother’s home. The father was again seeking a Recovery Order and a mandatory return of the boy to his home.
I ordered a re-opening of the trial, allowed the fresh affidavit evidence to be admitted into evidence in the re-opened hearing and made arrangements for the eldest boy to be seen again by the same Senior Family Consultant who had interviewed the boys in 2018. That happened and the Family Consultant provided a very brief written report answering some specific questions I had asked him to address. He also gave oral evidence and was cross-examined by the counsel for the father, counsel for the ICL and the mother herself. He told the Court what the boy had told him he wanted. It was that he wanted to live with his mother and, effectively, be left to determine for himself when and how he spent time with his father.
I made Orders that basically respected the 16 year old boy’s self-determination of where he wanted to live and gave written reasons for those Orders at the time. As for the 16 year old boy, I do not intend to change the current position in respect of the parenting orders that relate to him as part of the finalisation of these parenting proceedings. Orders that I made on 5 February 2020 in respect of X Herbert will effectively be the same Orders I make as final parenting Orders in respect of him. As such, the determination of the parenting dispute that remains between the mother and the father, and in which the ICL has an interest, will be about determining parenting Orders that regulate the parenting of the parents’ 10 year old, youngest son, Y.
Y has been living with his father since the Orders I made on 7 September 2018. Initially, I made Orders that Y, like his big brother, not spend any time with their mother nor communicate with her without the father’s agreement. A few months’ later, on the persistent application of the mother, I was persuaded by her to let the boys start commencing some time with her and made interim Orders that provided for that. Unfortunately, within just a few short weeks, the mother’s incapacity to respect, encourage and facilitate the boys’ need for a meaningful relationship with their father was clearly demonstrated again and I had to suspend the Orders that provided for the boys to be spending time with their mother.
The evidence established that the father consented to the boys going to spend a few hours with their mother at her home on each of Mother’s Day and Y’s birthday in the first part of 2019 before the trial. Otherwise, I am not aware of Y having spent any other time with his mother since I stopped alternate weekends with her at the beginning of 2019.
The parenting dispute between the mother and the father in respect of Y is now about determining whether Y returns to live with his mother and, if so, on what terms he should spend time with his father, if at all, or whether he continues to live with his father and, if so, on what terms he should spend time with his mother, if at all.
I observe at this point that submissions were made at the end of the trial by counsel on behalf of the ICL that Y (along with X, at that time) should continue to live with the father and not have any time or communication with his mother for a period of eighteen months.

Some Factual History

The mother and the father married in … 1999, after having lived together as a couple for about eight years beforehand. Their separation occurred in December 2016 after about 25 years of being together as a couple.
As should be clear by now, three children were born of that marriage. A female child was born in … 2000 and is now a 19 year old young adult university student, who I understand still lives in the same home as her mother. X was born in … 2003, is now 16 years of age and also now lives in the same home as his mother and sister. He is now in Year 11 at High School. Y was born in … 2009 and is now 10 years of age and lives with his father, his father’s new partner and her two children. He is still in Primary School.
The father is a finance professional. He is 47 years of age and is, effectively, the sole proprietor of a practice in the eastern suburbs of Brisbane. I use the term “effectively” as the evidence establishes that it is owned and operated through a discretionary family trust with a corporate trustee, both of which the father undisputedly effectively controls.
As I understand the evidence, the father was an employee of the practice before becoming a partner with the original owner before eventually, not too long before the separation of the mother and the father, buying out his partner and acquiring sole ownership and control of the practice.
During the years of the marriage, the mother, who is now 49 years of age, principally provided parenting for the former couple’s three children, though she did study part-time over many years and acquire qualifications in education and did also run a business out of the former family home for a time.
The evidence establishes that the former couple acquired and lived in a family home on a large block of land in an outer eastern suburb of Brisbane. That had been encumbered and then further encumbered as mortgage security for the applicant father’s buyout of his business partner’s interest in the year before their separation.
At around the time of their separation, the former family home was sold by the former couple for $1,760,000. After all of the mortgage secured debt to the bank was paid out, the net sale proceeds remaining were retained in the trust account of the solicitors who acted on the conveyance. I will return to discuss more in respect of this when I turn to consider the competing property adjustment applications.

Consideration and Determination of the Competing Parenting Applications

In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.[1] In determining what is in the best interests of a child, the Court must consider the matters set out in section 60CC(2) and (3).[2]
[1]Family Law Act 1975 (Cth) (“the Act”), s 60CA, s 65AA
[2]Ibid, s 60CC(1)
Section 60CC(2) sets out what it describes as “primary considerations”. They are:
(i)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(ii)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) makes it clear that the second of the two primary considerations is to be given “greater weight” than the first when applying the two considerations.
Section 60CC(3) sets out a long list of what it describes as “additional considerations”. The inclusion in s 60CC(3)(m) of “any other fact or circumstance that the court thinks is relevant” demonstrates that the list is neither exclusive nor limited in the scope of the matters that may be subject to the inquiry other than by relevance.
Section 60CG requires the court to, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the parenting orders it makes are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence.
Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child when making a parenting order in relation to that child. However, that presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child or another child, who, at the time, was a member of the parent’s family.[3]
[3]Ibid, s 61DA(2)
The presumption may also be rebutted by evidence that satisfies the court that it would not be in the best interests of the child

Parental Responsibility

If the Court makes an Order that provides for shared parental responsibility, the three mandatory requirements of s 65DAC are operative each time a decision about a “major long-term issue” in relation to the child is to be made. The term “major long-term issue” is defined in s 4 of the Act. It means “issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”
The three mandatory requirements are:
(i)Each of the parents is to consult the other parent in relation to the decision to be made; and
(ii)Each of the parents is to make a genuine effort to come to a joint decision about the issue; and
(iii)The decision must be made jointly by the persons who share parental responsibility.
The corollary to the last of these three requirements is that it cannot be made, if not jointly, by one of the parents unilaterally and could only then be made by a court exercising family law jurisdiction.
In any event, I am satisfied that the presumption that equal shared parental responsibility for a child is in the child’s best interests does not apply in this case as there are reasonable grounds to believe that the father engaged in “family violence” as that term is defined in s 4AB of the Act.
On 14 November 2018, the mother obtained a Protection Order against the father in the Brisbane Magistrates Court. The learned Magistrate who made the Order found that the father had perpetrated acts of “domestic violence”, as that term is defined in s 8 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the State Act”). Her Honour found that on 25 July 2017 an incident occurred at the father’s home during which the father acted in a way and did things that her Honour found to be acts of “aggression” constituting “domestic violence”.
On that day, the boys, then still living with the mother, were spending time with the father at his place. The father understood there to be an agreement that he would drop the boys home to their mother’s later in the afternoon. The mother arrived at the father’s home a little earlier and drove in to the drive way. She contacted the boys (who were inside) by phone and they came outside and got into her car. The father saw this and became upset about what he considered was a unilateral change of arrangements. He approached the mother’s car. He went to open the mother’s driver’s side door. She held fast on to the inside of the door to stop him opening it. They had a “tug of war” over the door which resulted in some part of the inside of the door cracking. The mother picked up her phone and was trying to film the father’s actions. The father got the door open and grabbed the mother’s phone from her hand and threw it inside the car away from her. The father had a bottle of liquid in one of his hands. He had been using that to spray weeds in the garden when the mother arrived. He gave a squirt of the trigger and sprayed some of the liquid on the outside of the closed window of the mother’s driver’s side door. The boys were in the car and witnessed all this.
The mother described the liquid, understandably, as “weed spray” or “weed killer”. The Magistrate called it “weed spray” in her reasons. The father told the police it was a mixture of vinegar, water and salt, apparently that he had made up himself for spraying and killing weeds. There was no actual evidence that it was not what the father said or that it was some far worse, toxic herbicide.
Nevertheless, as I have said, the learned Magistrate considered the father’s actions to constitute “domestic violence”. Having regard to the definition in s 8 of the State Act, I have no doubt that her Honour was right. “Domestic violence” includes behaviour by a person towards the person’s spouse that is emotionally or psychologically abusive or is threatening or is coercive or in any other way controls or dominates the other person and causes the other person to fear for their safety or wellbeing or that of someone else (such as a child or children of the relationship). In the Magistrate’s judgment, the father’s behaviour that day met that definition.
The definition of “family violence” in s 4AB of the Act, in my judgment, catches the same behaviour. It includes 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. Having regard to the Magistrate’s findings of fact, that I consider I cannot go behind, I am satisfied that the father has, relevantly, engaged in “family violence”. Accordingly, the presumption in respect of equal shared parental responsibility does not apply.
Having observed the parents in this case over two years and through a five day trial, having read all of their evidence, having read and listened to the expert evidence, I do not consider that it is in the best interests of Y for his parents to have shared parental responsibility for him having regard to the three mandatory requirements that would invoke. The two parents do not and cannot communicate civilly with each other. A shared parental responsibility order would simply not work in my judgment. I will not order it. I consider that the parent with whom Y lives should have sole parental responsibility for the major long-term decisions that may have to be made for Y from time to time. Since Y was put into the father’s care on an interim basis, his father has had sole parental responsibility for him. If Y is to stay with his father on a final basis, his father should continue to have sole parental responsibility for him. If I was to return Y to his mother’s care, I would give her sole parental responsibility for him.
Accordingly, I am not required by s 65DAA of the Act to mandatorily consider the issue of Y spending equal time with each parent. Similarly, I am not required to mandatorily consider whether Y spending “substantial and significant time”, as that term is defined in s 65DAA (3) of the Act, with each of his parents is in his best interests.
The determination as to the ongoing living and parenting arrangements that will apply to Y remain then to be determined with regard to his best interests as the paramount consideration and with reference to the considerations set out in s 60CC of the Act.

The Cases of each of the Parents

As I understood the mother’s case, the strongest points she put to the Court in favour of her argument that Y should be living with her were:
(i)That she had been his primary carer from birth to the time that he was moved to live with the father in September 2018;
(ii)That he should be living in the same home as his two older siblings not separated from them;
(iii)That she is the more capable parent, more attuned to Y’s day to day physical and emotional needs than is his father, who is more focused on his business;
(iv)That the father has, historically, engaged in acts of family violence, including against the children, and that he will be unlikely not to engage in those again in the future, thus exposing Y to an unacceptable risk that he will either suffer family violence or suffer being exposed to it in the father’s household;
(v)That the child’s views are that he wants to live with her rather than his father.
For the father, I understood the argument to be that Y should live with the father, who can adequately care for him financially, practicably and emotionally, because this living arrangement is the only way to ensure that Y has a genuine chance of having meaningful relationships with each of his parents as the mother has demonstrated that she will not support, permit or facilitate the relationship between Y and his father if Y is in her care.

The Mother and the Father and my Impressions of them

Whenever the mother appeared before me in Court she was excited and voluble. She was keen to impress upon me that the father was a psychopathic, abusive man who had subjected her to abuse and control for most of the years of their relationship. Most significantly, she wanted me to accept her assertions that the father had tried to poison her by putting poison in tea that she was drinking during their relationship, between 2010 and 2013, several years before their separation and that he had sexually abused their now adult daughter when she was only a baby.
There was no doubt that the mother was asserting that her belief that the father had perpetrated these acts against her and their daughter was not formed post-separation but rather was something she believed at the actual time she said he was perpetrating them. She confirmed that despite holding the beliefs at those relevant times, she did not ever report her concerns to the police or the Department of Child Safety, Youth and Women (“the Department”) during their relationship and only first made the complaint about the poisoning allegations to police in late 2018, well after separation and the commencement of these proceedings. There is no evidence that she has ever reported her concerns that the father sexually abused their daughter when she was a baby to any relevant authority.
There is absolutely no evidence that objectively supports the mother’s assertions about those things. She simply asks the Court to believe her when she said the father increased her life insurance cover at the time, and would always accompany her to hospital and talk for her to medical staff, telling them falsely that she had hepatitis. Indeed, there is evidence in the police records tendered by the ICL that reference hospital records from the time when she was admitted to hospital, (which she attributes to being ill from the alleged poisoning) that show she was diagnosed with acute viral hepatitis.
The police did undertake an investigation of her recent complaint. The father was interviewed by them about it and the police forensic medical office reviewed the medical records that were provided to police and, according to the police records in evidence, concluded that the mother’s recorded symptoms were consistent with having hepatitis. The police then closed the investigation.
The long-time family doctor, Dr J, gave evidence that she remembered the mother bringing her daughter in for an appointment when she was little and having observed the child with a swollen vulva. She said she had no memory of ever seeing blood on or around the child’s vagina as the mother asserted in her evidence she had observed. The doctor told the Court that she had never made a notification or a report to the Department in respect of suspected abuse of the child, and she gave no evidence of any actual complaint to her by the mother of concern or suspicion about sexual abuse.
In her oral evidence, the mother would not answer questions when she was asked about the content of her conversations with her daughter about her allegation that the father sexually abused her when she was a baby and she tried to blame the family report writer for the fact that her daughter was quoted in one of the family reports as saying that her father “is dead to me”.
At Court, the mother, in her oral evidence under cross-examination, also maintained that she believed the father would still try to murder her. She maintained that she truly holds the belief that the father has connections with the Queensland Police Service through a long-time close friend of his who has a son who is a police officer. She clearly expressed the view that the father uses these connections to have her complaints against him dismissed or not taken seriously and to have police records altered.
She also maintained in evidence the belief that she had found a small object in her home that had been determined to be a small remote listening device. She believes the father installed it. Without producing any admissible evidence to support the assertion, she made the claim that a private, commercial “spy shop” operator had confirmed to her verbally that it was a listening device. The Queensland Police Service were provided with the object and had it examined but did not confirm that it was a listening device.
Rather unfortunately, the mother even suggested that the father’s solicitor was somehow involved in improperly influencing this Court in the way that it handled this matter. The mother even raised suspicions that there was some improper connection between the father and me because he once participated in a sport that her internet searches revealed to her that I participate in. When I assured her I did not know her former husband, had never seen him before these proceedings and had never heard of him before and had not ever encountered him, to my knowledge, in my extra-judicial activities, the mother still looked at me very sceptically, as if she did not accept that.
In late 2018, I also ordered that the father and the boys commence some regular family therapy with an appropriate counsellor approved by the ICL. A counsellor was found, approved and therapy started. She is an experienced clinical psychologist. The mother maintained a view, all the way to trial, that the counsellor was inappropriate and had a conflict of interest. This was based on a belief expressed by the mother that the counsellor and the father had a pre-existing relationship of acquaintance, even perhaps friendship.
The mother asserted, and it was actually accepted, that the counsellor had, at some time in the past several years, practiced on a sessional basis out of rooms that adjoined the premises from which the father conducted his accounting practice. It was also accepted that the counsellor and the father and other staff of the accounting practice accessed and shared use of the same kitchen and toilet facilities and car park outside the premises.
The counsellor gave evidence that she had never met the father before the family therapy sessions were arranged at rooms out of which she now practices. She said she did not know him at all. I accept that, though the mother did not and could not be satisfied. She clearly considered the counsellor was not telling the truth about this. I considered she was.

What did the Experts say of relevance?

That family therapist told the Court in her June 2019 report that “it was evident that the boys through the years of [their] parents (sic) separation, were not encouraged or supported to nurture the value of having a separate, secure and safe relationship with both parents or in particular with their Father”. She also told the Court the following:
I believe that X’s emotional and identity development has been hindered through being highly exposed to the conflict between his parents and his mother not being able to implement herself as a parent. The result therefore has stunted X’s emotional development and so he is somewhat immature for his age and desperately requires security, stability and predictability in order to secure a healthy developmental adolescent process.
Overall however, adjusting to family life amongst step-family members that he finds difficult has been challenging for X but he is continually encouraged and taught coping strategies on how to deal with such challenges. It is my professional opinion that both [Mr Herbert] and [Ms L] [the father’s new partner] are very aware of the difficult family dynamics in the home and are working accordingly to support all the children in managing situations of conflict between each other in a healthy manner, as well as implement consequences that apply to all the children accordingly.
X had been also attending his own individual psychological counselling but it had been decided that should cease when he “started becoming resistant to therapy” and it was agreed that he could stop attending.
Particularly in respect of Y, the family therapist said in her report that he was continuing to attend Individual Counselling Support for Emotional Dysregulation and had had five sessions at the time of her report with another one booked in. Y was having that counselling with a different psychologist. The family therapist reported that Y’s separate psychologist reported that Y is a very bright boy and is very engaged throughout the sessions and was reported to be “making progress” with a total subsidence of any anxiety that had existed.
The family therapist also reported that she had communicated by telephone with Y’s 2019 Grade 3 teacher on 20 June and quoted her as saying “Y appears very happy in and out of the classroom” and reporting that he is doing “academically well, working at an academic level above his grade”. She reported his attendance levels of school were at a satisfactory level and that he has a good group of friends and likes to play soccer with the boys during recess breaks.
The family therapist reported her professional opinion that the father “wants the boys to have a relationship with their mother” and she pointed to the fact that he absolutely supported them seeing her on Mother’s Day 2019 (which they did). She went on to say that she was also of the opinion that the relationship between the father and the boys had improved dramatically since they first began family therapy.
She concluded her report by recommending that the family therapy continue but also with the father’s new partner and her children each two to three weeks. As for her view about the boys seeing their mother, she did say that “it is important the boys have contact with their mother to always know she loves them” but she had no basis for formulating an opinion that the mother had developed the skills to parent the boys as she should at that time. She set out a system of graduated contact for the reestablishment of time between the boys and their mother that she recommended. It began with fortnightly supervised time for periods of approximately 3 hours, and, if that was successful, then to move to unsupervised time on the same fortnightly basis for 3 to 4 hours for a further 6 months before moving to full days but not overnight on one day each fortnight.
In her oral evidence at the trial, the family therapist thought about that recommendation and said she changed it, after having read her report again, to one of only commencing supervised time after the mother has received psychological therapy herself in respect of all of her feelings about the father. The family therapist said that in her opinion the mother appears to have no real self-reflection or insight into her own responsibility for the situation she is currently in and that she needs to develop some of that before she started seeing the boys again.
A psychiatrist, Dr G, was retained by the ICL to see and assess both parents. He did and he provided a written report in July 2018 that was adduced into evidence for the trial and he gave oral evidence as well.
The doctor did observe that the mother and the father had given conflicting accounts of the history and that it would be necessary for the Court to make findings of fact in relation to some issues. He said clarification is needed in regards to what he described as “a remarkable account of allegations of emotional and psychological abuse [with some physical abuse] by the Mother about the Father over a 17 year period” and whether she was poisoned by the father over years as she claims or whether this belief is the result of “a primary psychotic state of a secondary complication of a depressive illness, a severe stress reaction or as a result of a combination of medical and psychiatric issues”.
Reporting on the mother, the psychiatrist opined that she has “developed a syndrome of chronic psychiatric dysfunction” and that she presents with a “chronic syndrome of anxiety which appears to have arisen in 2013 and which has fluctuated without management since that time.” He advanced the theory that this anxiety is linked to the mother’s perception about adversity in her relationship with the father. He said her anxiety totally impairs her capacity to work on a plan to develop some form of post-separation parenting plan with the father and that it means that her parenting approach will be marked by her fear of the father, which must have some form of adverse influence on the children.
The psychiatrist said he believes the mother needs urgent psychiatric assessment and management to reduce her levels of subjective distress and to stabilise her function. He opined that the mother needs counselling as part of this psychiatric treatment to review developmental issues in her life history, her core beliefs, her capacity to carefully consider questions and issues presented to her, her perceptions about the father, her 17 year relationship with the father, her capacity to work with the Court processes in developing a post-separation parenting plan and her plans to build a life for herself post-separation.
In his written report and in his oral evidence, the psychiatrist stressed that the success of such counselling is very dependent on the mother’s motivation to be involved in such a process and that such motivation is linked to “her capacity to embrace the concepts outlined in this report.” He said the mother’s prognosis is very dependent on the nature and effectiveness of psychiatric treatment that the mother may access.
As for the father, the psychiatrist expressed the opinion that he did not present with the symptoms of a diagnosable psychiatric illness or mental disorder and that the mental state findings on examination did not reveal signs or features of a mental disorder. The doctor dispelled the mother’s claim that the father is a psychopath.
Also in evidence, adduced by the mother, was a report of 9 October 2018 by a psychiatrist who the mother had been to see on 3 October 2018 on the urgent referral of her general medical practitioner of twenty years. The referral from the general practitioner said that the mother was needing an urgent medico legal assessment as well as help with dealing with the Court’s “recent transfer of custody of 2 youngest, temporarily to father for 1 month”. It also briefly referred to Dr G’s “reports”.
I consider that the report from the psychiatrist was being sought to try and dispel any notion that the mother suffered from any form of mental health disorder. The referral did not mention my order of 7 September 2018 that the mother:
[a]ttend upon a … family therapist, psychologist or psychiatrist (not one she has previously attended upon and not the same one the father and boys are attending) chosen by her, but approved in advance by the ICL, for therapy to address her attitudes to the children spending time in the care of their father. She shall commence that as soon as it can be put in place and she shall continue with that therapy for as long as it is considered necessary by her and the therapist. The family … psychiatrist the mother is to attend shall be provided by the ICL with the reports of [Ms H], [Dr G], and [Mr K] as well as these written reasons for judgement.
However, the report of the psychiatrist does observe that the doctor had access to my orders and reasons for judgment of 7 September 2018, the report of Dr G, the psychiatrist engaged by the ICL, the family report writer’s report of March 2018 and the brief report of the Family Consultant of 3 October 2018.
The first two pages of that report set out the history given by the mother to the psychiatrist, which is somewhat consistent with the history the mother has outlined to the Court and to Dr G, but the psychiatrist did point out that the mother did not mention any poisoning concerns to her. Nevertheless, as is normal, the doctor who has provided this medico-legal assessment appears to have accepted the truth of the mother’s reports to her of the history.
The psychiatrist said she was unable to make a diagnosis of any psychiatric illness or personality disorder and would not propose any medication or treatment plan for the mother. She went on to say:
I recommend that the court does not make a decision on psychiatric grounds, as there is no history of psychiatric illness.
The doctor gave evidence at the trial and said that she had seen the mother on a couple of extra occasions since 3 October 2018. Importantly, in my view, the doctor conceded that there was much she did not know about this matter, including in respect of some of the mother’s more serious claims about past actions of the father.
With all due respect to the psychiatrist who assessed the mother on the GP’s referral, the report and opinions of the psychiatrist retained by the ICL, who saw both the father and the mother and was able to consider and assess them both was of more assistance to the Court. He pointed out the fixated belief system of the mother and that the severity of the rigidity and fixation are matters of concern.
As I do not accept the accuracy of the mother’s assertions that the father tried to systematically poison her over a number of years, that he sexually abused their daughter as a baby, that he installed small listening devices in her home, that he caused the power to be shut off in her home without warning, that he has conspired with people within the police service to cause the mother’s complaints not to be properly investigated, that he has been able to manipulate the Court process in the way that he wants, that he or his partner somehow deliberately caused injury to Y and then caused ambulance para-medics not to act professionally and independently after the mother had called them to attend at his home to see to the boy, I do accept the views expressed by Dr G that there is reason to be concerned about the mother’s emotional and mental health. I also accept his views that the rigidity of her thinking will require “stronger counselling or medication” to assist her from being an aggrieved person to become “an effective, capable” person.
The family report writer, Ms H, had access to the reports of Dr G and the mother’s own psychiatrist, as well as the report of the family therapist, when she wrote her second report in February 2019. She saw and interviewed all the relevant family members and saw the boys with their father and also, separately, with their mother.
In her concluding remarks, the family report writer wrote:
It is beyond the scope of the report writer’s expertise to comment upon the underlying reasons for [the mother’s] behaviour, or why her attitude towards [the father] has become so deeply entrenched. It is possible that her negativity towards the father is related in part to her feeling of anger, abandonment and fear of the future, following his decision to leave the marriage. It is unclear whether [the mother’s] views and her expressed fears for the children are genuinely held, or whether they are a convenient construct to justify her objective, being to have the sole care of the children and for them to have no relationship with their father.
I have to say that it is equally unclear to me, save that, as I have observed, I am not satisfied of the truth of many of her assertions of historical fact about the father. If she genuinely believes those things are true, as she would have the Court accept, then I am, like Dr G was, very concerned for her emotional well-being. I also accept Dr G’s opinion that it will be very hard to shift her from those beliefs, particularly if she is not motivated to be so shifted, as it appears was the position at trial and at the January 2020 hearings.
As for other matters, such as the children’s views, the family report writer wrote that whilst the boys are of ages where their views need to be considered seriously, they should not be so considered without a full and balanced understanding of the context in which the views have developed.
She observed that during her first interviews with the boys for her second report, both boys spoke about the improvements in their relationship with their father (since they had been living with him and having family therapy) and indicated that they would like to continue seeing him. She quoted X saying “now I feel I’ve got more connection with Dad”, though still expressing the view that he wanted to spend each alternate weekend with him. She quoted Y saying during both of her interviews with him that he would like to have equal time with each parent. The family report writer pointed out that such views were at odds with the mother’s perception that the boys did not want to see their father and were scared of him.

Of course, X has since gone back to live with his mother of his own volition but the family report writer wrote that, in her opinion, the complaints X made to her about the father and his household at the time of the preparation of the report “lacked conviction and were at odds with his otherwise relaxed demeanour around his father”.
More particularly, in respect to Y, the family report writer reported that he had told her that living with his father had been “good” and that he had developed a different attitude towards his father. She quoted Y saying “I like them the same. Before, I used to like Mum more and now I know Dad more and I like him equally”. The report writer commented that this suggests that living with the father has not detracted from Y’s relationship with his mother, but instead, has allowed him to attain some balance in relation to both parents.
The family report writer also wrote that Y “acknowledged that it is likely to be very hard for him to spend time with his father, if he were to return to live with his mother”. He said he is “not quite sure” if he would go back to his father for visits if he did. The family report writer wrote:
[Y] identified that his mother does not want them to leave, and that although she does not say it directly, he said that he “can just tell”.
The family report writer noted that the mother had told her that she would abide by the Court’s Orders if the children were returned to her care and “ensure that the children spend time with their father as ordered”. But the family report writer expressed the view that she had “very little confidence that she will follow through on this promise, or that she has the capacity to do so.” The family report writer wrote:
Her past actions are contrary to this and there was nothing in her presentation or her comments on the day of the interviews to suggest that she has altered her position, or her view of [Mr Herbert], or that she has developed more insight into the children’s emotional needs. [Ms Herbert] appears to remain convinced that [Mr Herbert] is an abusive person, who is a threat to the children’s safety, and that if she were to agree to them living with him or spending time with him, this would amount to her being a negligent parent.
…
If the children were to return to their mother’s care, I consider it unlikely that they would be able to maintain their relationship with their father, even though there has been an improvement in their relationship since living with him in September 2018.
Given that [Ms Herbert] has not yet engaged in any therapeutic work to address her attitude towards the children having a relationship with their father, it is very likely that once they return to her care, they will again [be] exposed [to] her uncensored, negative attitude and her narrative about their father being an abusive and unsafe parent. I consider it extremely unlikely that [Ms Herbert] would allow the children to have their own view of their father, that is to be separate to, and different from her own view of him, and I also doubt that the children are currently strong enough to resist her influence.
Having experienced and observed the mother in my Court over five days of the trial and on several subsequent occasions on the return of the matter to my Court, I am completely satisfied that Ms H’s opinion about the mother not altering her position or developing more insight into the children’s emotional needs is correct. Additionally, there was no evidence when the matter came back before me in January this year, that the mother had made any effort to get X to return to his father’s care or to encourage X to spend any time with his father at all.
I do accept the expert opinion that if I made Orders putting Y back in his mother’s principal care that his mother would, realistically, not give him any emotional permission to carry on his relationship with his father and would do nothing to facilitate it.
Whilst the mother was very forceful in her efforts to get me to have Y interviewed again by Mr K at the same time as Mr K interviewed X, I did not consider that necessary as there was absolutely no evidence before the Court, even in the fresh evidence put before the Court by the mother at the time, that supported any sort of finding that Y’s relationship with his father was not going well, that Y was being harmed in any way or that Y’s views needed to be ascertained again. Nothing X was reported to have said to Mr K shed any different light on that.
I do not accept that Y is at an unacceptable risk of physical or emotional harm in the father’s household as the mother advances. Furthermore, I do not consider that the father is implacably opposed to Y maintaining a relationship with his mother or even with his siblings. He agreed to occasions last year when the boys went and spent time with their mother. He agreed to occasions when they spent time with their young adult sister.
On the contrary, I am quite satisfied that if Y was to go back to his mother’s care because of a perceived need to be living in the same household as his older siblings, his relationship, like theirs, with the father would most probably cease to exist in a meaningful way within a short space of time. That would, I am satisfied, not be due to his own consideration of his experiences with his father but because of his consciousness of the fact that is what his mother expected of him in order to receive her love and affection. That is most definitely not in Y’s best interests, in my judgment.
I will not be making an order that moves Y back to his mother’s care. Accordingly, my orders will provide for Y to continue to live with his father in the same household with the father’s partner, Ms L, and her children. My orders will continue to confer sole parental responsibility for Y on the father. That is in Y’s best interests whilst he continues to live with his father.

What time, if any, should Y spend with his mother?

As I have already said, in her written report, the family therapist suggested that the time the boys spend with their mother should initially be supervised. At the trial, she gave evidence that she had changed her view on that and that there should be no time at all until the mother experiences change through therapy. The family report writer, in her second report, expressed views supportive of the views of the family therapist expressed in her report. In the same way as the family therapist did, the family report writer also gave oral evidence at the trial that her opinion had changed and that she, too, was of the opinion that the children should not be having time with the mother, even supervised time, until there had been some change in the mother’s attitudes through therapy.
Interestingly, the mother told the Court later, after the family report writer, Ms H had given her evidence and been excused, in response to a question from the bench, that she did not even realize that Ms H had said that she now concluded that there should be no order providing for the children to spend time with the mother.
It is a very difficult matter to consider making no order for time between Y and his mother on an ongoing basis. Already, Y has been living with his father since September 2018 with fairly limited contact with his mother and his elder sister and now, since the end of January, probably very little time with his brother, X.
I am of the view that the time that Y spends with his brother and his sister should be a matter for his father to determine, in discussion and negotiation with Y’s sister and brother. I am satisfied that the father, as he has in the past, would agree to reasonable proposals put to him by his children that would enable them to spend time with Y in ways that would not bring Y into contact with the mother without the father’s permission. I expect that if X wants to spend time with his little brother that he would be happy enough to spend that time in the company of his father as well, and that they could work out such arrangements. So, I will not make any orders that specifically deal with Y spending time with his siblings.
After considering the evidence and the submissions of counsel for the ICL and counsel for the father, I have determined that I will not make orders that do not provide for any contact between Y and his mother, but rather that I will make Orders that provide for Y to spend time with his mother on a limited, supervised basis. Y is only 10 years old, turning 11 in June, this year. Until he was 9 years old, his mother had been his principal carer all of his life. He has had very little contact with her and not seen her much since September 2018. I do not consider that it is in his best interests to continue not seeing her for the indefinite future.
I am conscious of the expert opinion that there should be no contact with the mother until she demonstrates some attitudinal change that is only likely to be brought about with regular psychotherapy. The mother has to be committed to that change for the psychotherapy to work. I am quite satisfied that the mother is not committed to that change at this point in time. She is convinced in her beliefs about the father and does not consider that there is a need for change. She believes that the fact that the two elder children have aligned with her is evidence of the righteousness of her position. If I made an order that Y does not spend any time with the mother until she demonstrates change, I expect that would mean he does not get to spend time with her for a very long time, if ever. I consider that would be counter-productive for Y and the father’s relationship with him.
I am satisfied that supervision of Y’s time with the mother at a children’s contact centre will provide Y with the protection needed from inappropriate influence by his mother. I have every expectation that properly qualified and trained supervisors will not permit the mother to speak with Y during such visits in an inappropriate way about parenting matters and other adult issues. If the mother is unable to restrain herself from doing so, I would expect the supervised time to be suspended. The mother will need to be conscious of that during her visits.
I am satisfied that a two or three hour visit with Y at a children’s contact centre each second weekend is appropriate for the maintenance of Y’s relationship with his mother until such time as the mother is able to persuade the father or this Court that her attitudes to the father have changed to such an extent that Y’s time no longer needs to be independently supervised.
I will make orders that provide for the supervised time to take place at a community not-for-profit children’s contact centre to keep the cost down, but will also provide for it to be at a private, commercial provider such as W Service, at the mother’s sole option and mostly at her expense, if she chooses to go there (such as in the period of time between the orders and when entry to a community based children’s contact centre can be arranged). Any costs of the time at a community based, not-for-profit children’s contact centre will be shared equally between the parents pursuant to my orders. Only the mother and her mother will be authorised to attend supervised visits with Y (if the Contact Centre’s rules permit the maternal grandmother to attend) but not Y’s siblings. As I have said, any time they wish to spend with Y will need to be arranged directly by them with their father.
The order will provide for that supervised time to continue on an indefinite basis, leaving it for the mother to take the steps necessary to effect the change that will see it transition to unsupervised time at some point in the future. I will not make an order that the mother undergo psychotherapy as I accept the evidence of Dr G that the mother would need to be motivated to achieve change through such therapy for it to be of any benefit. I will authorise the mother to be able to show these Reasons for Judgment, Ms H’s reports, Dr G’s reports, Ms R’s report and even Dr AA’s report to any psychotherapist she attends upon for this purpose in the future.
I will not make any order for telephone communication between Y and the mother between supervised contact visits as the content of what the mother says to Y in such calls cannot be monitored without having the father listening in to those calls and I will not provide for him to do so because I consider that would be counterproductive and not in Y’s interests.

The Property Adjustment

Each of the husband and the wife seeks orders from the Court adjusting their property interests and the property interests of either of them. In all the circumstances, I am quite satisfied that adjustment orders are necessary to make in order to do justice and equity between them.
I will apply the well-known four step process to determining just and equitable property adjustment orders between the parties. That process begins with identification of the property and superannuation interests of the husband and the wife or either of them and the attribution of value to those interests. It then moves to a consideration and assessment of the respective contributions of the husband and the wife that are set out in s 79 of the Act to achieve a notional percentage division of the property and superannuation interests based on those contributions findings. The next step involves consideration of all of the rest of the non-contributions matters set out in s 79(4) of the Act including the matters set out in s 75(2) of the Act, where relevant, to determine if justice and equity requires any further adjustment before then finally determining the appropriate orders to make, satisfied that they are just and equitable.
Determining the property and superannuation interests of the parties and the value of those items is, in part, easy and in part difficult. The husband and wife agreed that at the time of the trial there remained $90,204.46 in the trust account of a firm of solicitors from the proceeds of sale of their former home. That amount would, I expect, be earning a small amount of interest, too.
There was asserted agreement that the wife had a motor vehicle 1 worth $20,000. The Balance Sheet handed up at the end of the trial by the husband’s counsel included a personal bank account of the husband with a balance of $3,909 and a joint bank account of the husband and his partner with a balance of $10,973.50. The wife did not challenge any of those figures nor try to assert that there was any different amount in either of those accounts. She had said in a table that she included in an affidavit filed in 2017 that the husband’s personal bank account had $20,000, but she produced no evidence that would support a finding about that different to the amount asserted by the husband at the end of the trial.
I am satisfied, on the evidence that each of the husband and wife has furniture and chattels that they value at $5,000 each, being a total of $10,000 between them. Furthermore, the husband concedes he has an antique table not included in that value to which he attributes a value of $5,000. In 2017, the wife had asserted that table was worth an estimated $10,000 but she adduced into evidence an aged insurance valuation that listed the table and chairs at a value of $4,500. Accordingly, I will include the table and chairs as assets of the husband now at $5,000.
The husband’s counsel’s Balance Sheet included property described as “Wife’s Jewellery” at a value of $10,000. The husband had also included that in his trial affidavit in his list of assets. However, he adduced no valuation of any jewellery said to be in the possession of the wife, nor any evidence of any attempts to have it valued. There was no cross-examination by counsel for the husband about jewellery in her possession or its alleged value. The wife does not include jewellery in her 2019 Financial Statement or in the table of assets in her 2017 affidavit. I will not include jewellery in the list of property of the parties or either of them as I am not truly satisfied that the wife has jewellery of that value in her possession. Just because the husband asserts it exists and is worth $10,000 does not persuade me of the correctness of those assertions.
As for the motor vehicle 2 in the husband’s possession, there was a dispute about its value. In 2017, the wife included it in her table of assets in her affidavit and estimated it to be worth $9,000. In his Financial Statement and trial affidavit, the husband accepted the wife’s estimate and listed it at a value of $9,000. The wife did not include it or a value for it in her Financial Statement filed for the trial but she did include in her exhibits attached to her trial affidavit a February 2018 dated Red Book valuation certificate she obtained on the internet. She maintained that the valuation it provided was for $17,000. However, the document had a couple of tables in it. One was for a private sale and ranged from $13,140 if in poor condition to $17,040 if “as new” and one was for a trade-in and ranged from $9,900 if in poor condition to $13,740 if “as new”. The wife also appeared to accept that the husband’s position that his car was a 6 cylinder model was correct and went on to assert that her Red Book valuation was for the 6 cylinder model. She appeared to base that on the description of the car on the document as a “WM Sedan 4 dr Spts Auto 6 Sp 6.Oi” and asserted when I asked her, that the “6.Oi” at the end meant “6 cylinder”. The husband asserted the document was for a V8 model and his was a 6 cylinder model.
I am satisfied that the “6.Oi” did not mean 6 cylinder, but rather meant 6 litres as the Engine Size in the specifications on the same document shows. It shows the engine capacity as 6.0 or 5967 cubic centimetres and that is the size of the V8 model of the motor vehicle 2. Accordingly, I find that the wife’s Red Book valuation does not even relate to the correct model.
Rather naively, the wife said that she would take the car as her property in the property adjustment at a value of $17,000. I consider that would be unjust, notwithstanding her willingness to take it at that value, as I do not accept that it is worth that much at all. In the circumstances, I will attribute a value of $9,000 to the car, the same value the wife attributed to it in her 2017 affidavit.
In her oral submissions at the end of the trial, the wife also said that there was an interest in a “time share” resort at Q Town that the husband retained. She simply asserted that it was worth $7,000. There was absolutely no reliable, expert evidence about its valuation. All the wife could say again was that she would happily take it and retain it as her property at the value of $7,000. However, that is the same sort of naïve assertion she made in respect of the husband’s motor car and I was satisfied she was quite wrong about that. The husband’s counsel confirmed after receiving instructions from his client that he did hold the time share interest. He told the Court his client instructed that his parents had gifted that interest to him during the marriage. He did not give a value.
I will include provision in the Orders that the husband retain that as his solely, but I simply cannot attribute a value to that interest without agreement or expert evidence. I will not do so simply because the wife said she would retain it at a value of $7,000. However, I as I will be making orders that include the husband having to make a relatively large cash payment to the wife as property adjustment, I will give him the option of transferring the time share interest to the wife in lieu of the sum of $7,000 if he wishes to exercise that option. The wife did appear very keen to retain that time share interest and genuinely appeared to consider it to be worth that sum, rightly or wrongly.
An independent accounting expert was tasked with the responsibility of providing a valuation of the accounting business owned through the family trust. His opinion was that it was worth $612,335 at 31 December 2017. The wife did not accept that and insisted on having the expert make himself available at the trial for cross-examination. Her cross-examination of him did nothing but permit him to explain, justify and reinforce his valuation opinion and I accept it as being the value to attribute to the business interests of the husband and the wife.

The wife nevertheless still submitted that I should attribute $1.2 million in value to the business and to consider the loss of the difference to be a loss that the husband should bear himself as he did not obtain an appropriate restraint of trade clause in respect of a former staff member who left the business after it was purchased by the husband and who took clients with him. She referred to the case of Kowaliw (1981) FLC 91-092 in support of her submission. I have no doubt she was relying on the often cited passage at 76,644 from the judgment of Justice Baker that is as follows:
As a statement of general principle. I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)Where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)Where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to applications for settlement of property instituted under the provisions of sec. 79.
I understood the wife’s submission to be that the husband’s failure to obtain a restraint of clause was negligent and that the effect of that negligent act has reduced the value of the business.
I know nothing of the circumstances surrounding the departure of the person from the firm who the wife is speaking of. There was no cross-examination of the husband around these allegations that are pivotal to any finding of negligence on the part of the husband that might have the consequence the wife seeks. I do not consider that it would be just and equitable to simply accept the wife’s submission without there having been a close scrutiny of all the relevant circumstances through evidence in chief and cross-examination. I make no findings about the issue that lead me to a finding that the husband was so negligent that the principle outlined in Kowaliw[4] has any application. I will include the business at a value of $612,335 in my consideration of this matter.
[4] (1981) FLC 91-092

Notional Add-Backs

I have since the High Court’s decision in Stanford (2012) FLC 93-518 still considered that the notional adding back to the pool of property against which just and equitable property adjustment orders are made in certain circumstances is a matter of judicial discretion in appropriate circumstances.
In this case, there are quite a number of amounts advanced by both parties as needing to be notionally added to the property pool. Some of those about which there is no controversy are amounts paid to the husband and the wife by way of interim litigation costs funding orders. Those orders provided for the wife to receive $150,000 and for the husband to receive $86,500 (though, for some reason not known to me, his counsel only included the sum of $85,000 in the Balance Sheet he handed up at trial) out of money that was held in the solicitors’ trust account from the proceeds of their former home. The amounts of $150,000 and $86,500 will be notionally added back.
The husband submits that $60,000 the wife unilaterally withdrew without his knowledge from their line of credit redraw loan facility just after their separation should be notionally added back, as well. However, the wife’s evidence about that is that she spent it as follows:
(i)     12 months’ rent in advance $31,640;
(ii)    Removalist’s fees - $1,848;
(iii)   Furniture and household contents (Bunnings) - $574;
(iv)   Solicitor’s fees - $4,483;
(v)    Payment of credit card, which she also used to pay for legal fees, school uniforms, school books, electricity account, linen and other household goods - $20,723;
(vi)   General day-to-day expenses including Optus, Transport and Main Roads, Telstra, Coles, Woolworths, Petrol and IGA - $10,732.
Curiously, those amounts all add up to $70,000 not $60,000, so either the wife has made a typographical error in drawing her affidavit or she has just added $10,000 from some other source in to her calculations. She was not cross-examined about this with any great determination and I am completely unable to say how much of the stated amount of $20,723 spent on the credit card was spent on legal fees. That is reasonably significant as, generally, capital spent on legal fees is notionally added back. As such, I cannot notionally add back any part of that sum of $20,723, but I will notionally add back the sum of $4,483 that the wife expressly said was spent on legal fees. I will not add any of the balance of that total amount of $70,000 as it appears to have been spent on living expenses and will be considered as part of the contributions considerations.
For the husband, it was also submitted that the amount of $50,000 that was drawn from the money held in the solicitor’s trust account and paid to the wife pursuant to an interim spousal maintenance order I made should actually be notionally added back to the property pool as the wife actually gave evidence that she had spent that money on legal fees as well. The wife argued against that and told the Court that she had used that to repay her mother who had loaned her money to pay legal fees. That is not consistent with the Costs notice she handed to the Court that became an exhibit and in any event if she repaid her mother with it for money that her mother had loaned to her to pay legal fees, it is still money that the wife used from family capital to pay legal fees, just not in a direct way. Accordingly, though I ordered it to be paid to her as spousal maintenance, I consider it appropriate to notionally add it back as paid legal fees.
For the husband, it was also submitted that amounts drawn by the wife from bank accounts that were held in the names of the two boys, a total of $6,037.34, be notionally added back. The wife’s evidence was that she had drawn that money and given it to their adult daughter so that she could buy a car with it. She said the daughter then repaid her that amount and that she had then used it for family living expenses. Not persuaded that was not true, I am not minded to notionally add that sum back to the property pool. People must get on with their lives and survive as best they can after separation and prior to a property adjustment matter being concluded. This amount was used to live and should not be notionally added back in my judgment.
For the husband, it was also submitted that the amount of $15,000 that was ordered on an interim basis in 2018 to be paid to the wife from the money that was held in trust and paid to her credit card should also be notionally added back to the property pool. I do not intend to do that. Again, that is because I am satisfied that the wife used her credit card for day to day living expenses of her and the family
The wife made submissions that the sum of $140,000 should be notionally added back and considered as already received by the husband. Her argument was that the husband had used this amount without her permission after separation. The best I could do to understand her argument about this was in listening to her cross-examination of the husband at the trial. It appears that the fact that a secured business overdraft debt of around $38,000 was paid out of the sale proceeds of their former home is part of her argument. The wife asked the husband some questions about it and he conceded that the overdraft debt had been discharged from those sale proceeds. The wife did not seek to explore any questions about what the funds from the overdraft account had been used for. She certainly did not suggest to the husband that he had used the money for any inappropriate purpose other than legitimate business and living expenses.
The wife’s evidence established that an additional amount of $104,000 had been withdrawn from the bank account that both the husband and the wife accessed in February 2017. The husband conceded he had withdrawn that money. He said that he had transferred it to another account that he had established in his own name that only he could draw on. He said he did that in response to the wife having already unilaterally withdrawn approximately $38,000 just before that which she then used to pay the expensive private school fees for the two eldest children for the whole of the 2017 school year. He said he took all of the remaining funds out to secure them for the use of the business, as they were needed for paying wages and other business expenses. The wife did not challenge any of that evidence in cross-examination. She did not suggest to the husband that he had not spent all of that money on business or reasonable living expenses. Accordingly, I will not notionally add any of the $140,000 back to the property pool.
Whilst the husband had also included the amount of $38,000 the wife withdrew for the school fees in his list of notional add backs and an amount of $33,000 that he had paid in tax for the 2017 financial year, his counsel did not vigorously press the argument that they be added back. In fact, he effectively conceded they should not be notionally added back. They will not be.
There was evidence that the wife had received $7,000 back from the Australian Taxation Office as tax paid in her name for the 2016 or 2017 financial years that she was refunded. For the husband, it was submitted that should be notionally added back to the property pool. I will not notionally add that back as there was no evidence that the wife used it for other than reasonable living expenses after she received it.
There was another dispute between the husband and the wife about the amount of $4,880 that the husband paid from his own funds to meet the costs of the family therapist after I ordered that he and the two boys attend regularly upon a family therapist after September 2018. My order, at the time, provided for him to pay the costs of that therapy with the issue of any sharing of the cost with the wife to be determined at trial.
For the husband, it is submitted that the cost of the family therapist borne by the husband alone should be shared equally by the wife. The wife disputes that. I am not minded to order the wife to pay half of those costs. The therapy was ordered to assist the boys (and their father) deal with what was always going to be a difficult transition into the father’s full-time care. It is properly considered when weighing and assessing the contributions of the husband and the wife. I will not order the wife to pay any amount towards that.
The costs notice that was adduced into evidence for the husband had the total of costs paid and estimated to be owing by the husband up to and including the trial at $177,756.41. It listed the source of those funds as being $85,000 from the interim litigation costs funding order made in 2017, $47,756.41 funded from earnings and $45,000 from a “bank account held by the husband”. That costs notice was dated 30 July 2019. The Balance Sheet handed to the Court by counsel for the husband on 2 August 2019 did not include the amount of $45,000 in a bank account held by the husband. The inconsistency was not explained in any way. In the husband’s trial affidavit, he deposed to the having paid $45,000 into his solicitor’s trust account. That must be that money referred to in the Costs Notice. It may have been sourced from earnings generated by the business that he continued to run post-separation, but he was able to save that much and it then formed capital generated by the business that was operating at the time of separation. Capital generated by a business asset of the parties post-separation should be included in the pool of property against which adjustment orders are made. If that capital is used by one party to pay his or legal costs I am of the view that it should be notionally added back. I consider it appropriate to notionally add back that sum of $45,000 to the property pool being funds held by the husband in a bank account that he had set aside to pay his legal costs and outlays.
There are some liabilities that must be dealt with in determining the property pool. After the ATO had considered and determined the dispute between the parties about the income declared by the wife in the 2017 tax year, their family trust was assessed as owing $38,460.63 and the wife’s liability reduced to $1,107.39. I will take those liabilities into account in determining the net value of the property, superannuation and amounts notionally added back against which property adjustment orders will be made. I consider it appropriate for both of those amounts to be paid directly out of the balance funds held in the solicitors’ trust account, along with any interest owed to the ATO on its assessments.
I reject the wife’s argument that the husband should pay the Trust’s tax liability and I reject the husband’s argument that the wife should pay her own tax liability. The year being dealt with is the 2016/2017 financial year. The parties were still together for half of that financial year. I consider both of those debts to be liabilities properly borne as a couple from their capital. The Trust’s extra tax liability principally came about as the wife rejected the legitimacy of a particular income distribution to her for that year by the trustee company and complained to the ATO about it, demanding a reassessment. Had she accepted the distribution, the tax bill for the trust would have been lower, though her own personal tax bill would have been higher, albeit not as high as the amended tax liability of the Trust. She rejected the distribution based on the fact that she was not present at the meeting of the directors of the trustee company when the distribution decision was made. It seems that absent her presence at the meeting, the distribution resolution could not be passed and that default distributions were required to occur. The wife’s actions, though apparently principled and well-motivated, have resulted in there being a little less money to be divided by order between her and the husband. But that does not mean that she should have to bear her own lower assessed tax liability. Neither do I find that she should wholly and solely bear the additional amount that was assessed to be owing to the ATO as a consequence of her pointing out to the ATO her absence from the relevant meeting, as counsel for the husband submitted should now happen. As the wife told the Court, she could not lie to the ATO about that issue just to get a reduced tax assessment for the parties collectively.
The re-assessed tax liabilities will be paid from the money still held in trust.
I calculate the assets of the parties or either of them to be worth $761,421.96, the amounts to be notionally added back and treated as property already received by the parties as $335,983 and the liabilities to be included as $39,568.02. The net total of these is $1,057,836.90.
There is no dispute about the value of their interests in their self-managed superannuation fund. The husband’s interest was valued at $388,305 and the wife’s interest was valued at $126,774. The total value is $515,079.
The wife, for reasons not clear to me, argued that I treat the superannuation and the non-superannuation separately, taking what has been called a “two pools’ approach”. She submitted that I should make orders that see her having half of the total of the superannuation and 70% of the total net value of the non-superannuation property. Though I gave her the opportunity to explain her reasons and tried to test her thought processes during her oral submissions, I could not get an understanding of her logic or reasoning in respect of that approach. With respect, I do consider that she had developed one.
The husband did not argue for a “two pools’ approach”. Counsel for the husband submitted that the matter should be approached by looking at net property and superannuation as one pool. I accept that is appropriate in this case, as the evidence is that the self-managed superannuation fund was established and built up during the subsistence of the marriage relationship between the husband and the wife.
Accordingly, the total net value of property, notional add backs and superannuation is $1,572,915.90. I will round that off to $1,572,916.
I totally reject the proposition advanced by the wife continually throughout the lead up to the trial and at the trial that the husband had failed to disclose property interests and had hidden funds. The mother’s completely misguided assertions that the husband had an undisclosed interest in a company in the building industry was a good example of the mother’s unfortunate approach to this issue. Despite the evidence to the contrary, she could just not accept that the husband had no interest in such a company. Sadly, the wife could not even accept that he did not secretly own a materials supply company, which is actually part of a multinational group of companies originating in Europe.

Contributions Assessment

There was no evidence that either party had property of any note apart from motor cars when they began their relationship, and the evidence was that at the time of their separation the property and superannuation interests they had accumulated were principally accumulated through their own efforts during their relationship, save for a gift of $80,000 from the husband’s parents to the husband at some unspecified point in the relationship. The husband said he “contributed” that to the relationship.
The husband’s counsel told the Court that the husband did not contend that the gift from the parents would shift the contributions based division away from one determined upon the acceptance of equality of contributions across all spheres of the marriage up to the point of separation. He conceded that the gift from the husband’s parents was early in the relationship.
Counsel for the husband went on to submit that post-separation contributions and consideration of the remaining s 79(4) matters, including the s 75(2) matters, as relevant, would see the husband’s share being adjusted to 60% with the wife’s share being adjusted to 40%.
On the other hand, as I have said already, the wife submitted that she should get a 70% share of the total of the net property and 50% of the superannuation interests of both parties.
I accept the force of the submission for the husband that up to the point of separation there should be an assessment of equality of contribution by the parties. The husband qualified and worked throughout the relationship as a finance professional, ultimately becoming a partner in a firm and then, near the end of the relationship, buying his partner’s interest out and taking over full ownership of the business. Throughout the same period, the wife studied and qualified as a teacher, ran a family day care business from the family home and provided the bulk of the parenting of the three children of the marriage. I see no reason not to assess their contributions as equal across all spheres of the marriage up until the point of their separation.
From separation at the end of 2016 until the time of the trial, the husband continued to work in the accounting practice whilst the wife principally cared for the children whilst doing some supply teaching, particularly after the boys went into the father’s care in September 2018. Post-separation, family capital provided the wife with $200,000 that she spent on legal fees, $60,000 that she used as I have set out above, $15,000 towards her credit card, approximately $6,000 towards her living expenses that she took from accounts in the boys’ names, $7,000 refunded to her from the ATO that she spent on living expenses. Family capital and saved business earnings also provided the husband with $130,000 that he used to pay his legal fees and family capital will pay the 2017 tax liabilities that were not already paid from business earnings. The husband was able to support himself and the children as required from income he was able to continue earning from running the accounting practice. Neither party has had the use of a family home retained after separation as their home was sold at around separation.

As observed, the mother cared for the children from separation until September 2018 when the two boys were moved to the father’s care. The father cared for the two boys from September 2018 until January 2020 and after that the eldest boy has gone back into the mother’s care and each parent is now caring for one child. The father paid child support as assessed and the mother has provided assistance to their daughter although she is no longer a child and the mother has no legal obligation to continue to do so.
Once again, all of this evidence satisfies me that the husband and the wife have continued to contribute in ways since separation that I consider attract equal weighting. I would not adjust the notional equal division that I arrived at after considering and weighing contributions to the point of separation having regard to their respective post-separation contributions.

Any Further Adjustment having regard to the Balance of s 79(4) and s 75(2)

The most relevant factors to consider in my judgment at this point in time is the income earning capacity of the husband as against the income earning capacity of the wife. Additionally, there is the fact that the husband will have the principal responsibility of providing financial and practical support for Y, who will be living with him for another seven and a half years, whilst the wife will have the principal responsibility of providing financial and practical support for X for less than two more years and will likely be receiving some child support from the husband to assist in that respect.
The husband’s counsel submitted that the husband is earning about $160,000 in taxable income each year from the practice. Having regard to the valuation report of the independent expert accountant that was adduced into evidence, I am satisfied that the husband has an earning capacity of at least $160,000 but that it could be higher than that in the future, with the potential to be as high as $200,000 or more. I consider that the evidence supports a finding that he will be able to have the advantage of being able to reduce his own taxation burden through the ongoing use of the family trust and distributions of income to his parents in the same way as he has in the past.
On the other hand, the wife, a qualified teacher, has far less of an earning capacity. Counsel for the husband submitted that the wife could be found to have an earning capacity of $60,000 - $70,000 taxable per annum. I am not convinced the evidence supports such a finding. The wife does not yet have a history of stable employment and had only been receiving supply teaching contracts for a few months prior to the trial. She is a long way off having security of tenure with a contract as a full-time teacher at a school and I have serious concerns about her actual employability in all the circumstances.
Ten percent of the total value of the net property, notional add backs and superannuation interests is worth $157,000. The husband would, I am satisfied, earn that much more than the wife within a relatively short number of years. The difference in their earning capacities is principally directly attributable to decisions made by them as a couple during their marriage and the impact those decisions had on the wife’s earning capacity in particular.
Additionally, the husband has already re-partnered and cohabits with his partner who is an allied health professional and who contributes to their household expenditure requirements. The wife has not re-partnered and does not yet have any such financial advantage. However, the husband will bear a greater financial burden in respect of parenting in the future than will the wife.
Accordingly, I am of the view that an adjustment in the wife’s favour of 10% having regard to these additional s 79(4) and s 75(2) matters is just and equitable, thus taking proposed property adjustment to a division as to 60% of the net total in favour of the wife and as to 40% in favour of the husband.

How is the 60/40 Division to be effected?

60% of $1,572,916 equals $943,749.60. I regard the wife as already having received amounts of $150,000, $50,000 and $4,483 being the amounts she spent from family capital on legal fees. She retains her car worth $20,000, furniture worth $5,000 and her superannuation interest valued at $126,774. Those items add up to a total of $356,257. That entitles her to property, superannuation and/or a cash payment of another $587,492.60.
As I have observed, the wife submitted that she should get 50% of the superannuation interests of the parties. That would give her an additional $130,765.50 by way of a split from the husband’s superannuation interest. That would leave the husband to transfer property and/or cash to the wife of a further $456,727.10 if he is to retain the business. After the tax liabilities of $39,568 are paid from the money still retained in the solicitors’ trust account, there will be $50,636 left (approximately – as there will be interest to pay the ATO but also interest earned on the money that has been held in trust). That could be paid to the wife as part of her entitlement and that would leave $406,091 to be paid to her.
I do not expect he will have the capacity to pay the wife that amount without any real property asset or assets to provide mortgage security for a loan. He would still have $257,539 in his superannuation interest in the self-managed superannuation fund. If the wife was to receive $400,000 from the total of the superannuation, instead of 50% of it, that would see her receiving a further $142,461 in superannuation, leaving her still to receive $263,630. I consider that there would be a far greater prospect of the husband being able to achieve that, through borrowing, even perhaps from his parents or his partner if not from a bank or other financial institution.
I am satisfied, in all the circumstances, for the wife to receive a total of $400,000 in superannuation, approximately $50,636 from the cash that is in the solicitors’ trust account and a further $263,630 when the husband will receive no cash but will be given the chance of retaining the business, can be considered just and equitable. That is what I will order.
I will give the husband a reasonable three month period within which to be able to make arrangements to borrow that amount. However, if the husband is unable to do so within that period of time, my orders will provide for the accounting business to be sold with the amount to be then paid to the wife to be determined according to the net sale price received for that business. That, I am satisfied, is the only just and equitable way to deal with this matter if the husband is unable to fund the cash payout that I otherwise determine is just and equitable, if he is to retain the business.

The Contraventions

As part of the trial of this matter, I also heard two Contravention applications filed by the mother. She filed one on 24 January 2019 and the second one on 13 February 2019. In the first one, the mother included two counts of alleged contraventions of Orders previously made by me in this matter. At the trial, after considering the evidence adduced by the mother in support of the first alleged contravention and hearing submissions, I determined that the father had no case to answer on that first alleged contravention and dismissed that count.
The subject of the second alleged contravention related to my Order of 7 September 2018 that required the father to attend family therapy with the two boys “on a weekly basis” until the family therapist, the ICL and the father all agreed that less frequent visits were appropriate. The contravention alleged by the mother to have occurred was that, without reasonable excuse, the father failed to have the children attend weekly family therapy between the date of the Order and January 2019. The father conceded that the order had not been strictly complied with in that he had not taken the boys to family therapy with the family therapist on a weekly basis. He said that he considered he had a reasonable excuse as he took the boys to all the appointments that were made by the family therapist. He said that he had told her the Court Order required weekly attendances but that she was a busy professional and that she could not give him weekly appointments. Appointments were suspended over the Christmas and New Year holidays as the family therapist herself was unavailable due to being on her own leave.
The mother cross-examined the father about the family therapist, but she spent most of the time in that cross-examination trying to establish that the father and the family therapist he began taking the boys to had a pre-existing relationship that created a conflict of interest on the part of the therapist. She did not explore the factual issues around this allegation of contravention. Neither did the mother ask the family therapist any questions about it in her cross-examination of her. In her submissions, the wife submitted that the husband contravened by not engaging a family therapist who he could attend upon on a weekly basis in the first instance.
I am satisfied that the father had a reasonable excuse for not taking the boys to family therapy on a weekly basis in circumstances where the family therapist could not see them on a weekly basis due to professional and personal commitments. The father began taking the boys within two weeks of my Orders as required and on a weekly basis for several weeks before the visits became less frequent at the arrangement of the family therapist. The Order I made in September 2018 provided for the family therapist to have some professional control over the scheduling. Accordingly, I dismiss that first Contravention application completely.
There were two alleged contraventions in the second Contravention application. In the first count, the mother alleged that the father contravened a non-denigration Order that was made in March 2018 by denigrating the mother to the youngest boy, Y, on 8 December 2018 and discussing adult issues with him in contravention of the same March 2018 Orders.
The only evidence adduced by the mother in support of this alleged contravention was a paragraph in her supporting affidavit in which she said the father:
…did this by discussing adult issues relating to the financial matters by telling [the boy] that state [sic] “your Mother has spent all your money and [X’s]. I get over $600 per day and over $6000 per week and paid over $200,00 in rent in advance.” [sic]
That being the only evidence and there being no account given by the mother of how she could even be aware of such thing given the boys were in the father’s care in December 2018, I struck that count out at the trial, satisfied there was no case for the father to answer in respect to it.
In the second count, the mother alleged the father contravened another March 2018 Order on 10 September 2018 when he physically disciplined the child, X that day. In her evidence, the mother deposed to the father physically grabbing X and starting to try to “rip off [X’s] Clothes”. She said that X said he would not attend school “so his father grabbed him so hard and started ripping his clothes so he ran and locked himself in the bathroom because he felt unsafe.” The mother said X told her this story with tears pouring down his face.
The father denied that he had physically disciplined the child. He gave evidence that on the said day, X had stayed in bed and said he was not going to go to school. The father was conscious of the fact that I had told him in September 2018 that he was to ensure that X went to school as he had missed several weeks of school whilst in the mother’s care. The father tried to get X out of bed and tried to get him to change out of his pyjamas and into his school clothes. He said that X resisted and ran into the bathroom and locked himself in there. Worried that X had a pocket knife in the bathroom with him and that he may self-harm, the father called the police to come and assist in getting X safely out of the bathroom. They did. No action was taken by the police against the father.
The family report writer wrote something of this matter in her second report after her conversation with X. She said that X told her that when he went to stay with his father, his father “pulled him out of bed in the morning and tried to make him get dressed”. He is reported as having said that his father took him to work initially but that he had since then been going regularly to school. She wrote that X did not convey any hostility towards his father for having made him go to school against his will, nor did he make any ongoing complaints about it. The family report writer also reported that X told her that his father had called the police one day “because he thought that he had a knife in his room”. X is reported as having said that he did have a pen knife but that he would never try to hurt himself and that it was “ridiculous” of his father to have called the police.
None of that reported account persuades me that the father “physically disciplined” X on that day as alleged by the mother. I dismiss that allegation too.
Accordingly, each of the Contravention allegations is dismissed.

Costs

In dispute between the husband and wife was the question of who should pay the costs charged by the joint accounting expert, Mr T, for his attendance at Court. He gave evidence that his fees would be around $700 - $800 for that attendance. I accept the submission made for the husband that the wife should pay those costs. The wife did not accept Mr T’s valuation opinion and insisted that he come to Court to be cross-examined. The husband accepted the valuation opinion and did not require Mr T for cross-examination. I accepted T’s valuation opinion as reflective of the value of the accounting business run by the husband. The wife’s cross-examination achieved nothing other than reinforcement of the accountant’s opinion.
In these circumstances, I consider the wife should solely meet any costs charged by Mr T. If the husband has already paid them or they have been paid out of the money in trust then the amount to be paid to the wife pursuant to the Orders is to be adjusted to reflect that such cost of the accountant’s attendance at Court in person to give evidence should be borne by the wife alone.
For the husband, it was also submitted that the husband’s costs of defending the Contravention applications should be paid by the wife. The wife was wholly unsuccessful in respect of both of the Contravention applications she filed. The hearing of those applications really did not add much at all to the length of the trial, probably not even an hour. However, I consider that some of the husband’s professional costs, particularly his solicitor’s hourly charging, would be attributable to the defence of the wife’s contravention applications. In the circumstances, I am satisfied that an order that the wife pay the husband the sum of $300 by way of costs in respect of his defending the two Contravention applications is a just order in circumstances where a costs order is justified. That order will be met by the husband withholding the sum of $300 from the amount he is to pay the wife pursuant to the property adjustment Orders.
I make the Orders set out at the commencement of these written reasons.

I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 25 March 2020.

Associate:

Date: 25 March 2020

[2020] FamCA 217

25 March 2020

Key Legal Topics

Areas of Law

Family Law