HILDITCH & HUANG

FAMILY COURT OF AUSTRALIA

HILDITCH & HUANG

[2020] FamCA 36

FAMILY LAW – CHILDREN – Parental responsibility – With whom a child lives – Where there is one child of the marriage – Where the child is aged 12 and a half years – Where the mother and father seek sole and equal shared parental responsibility for the child, respectively – Where the mother has always been the child’s primary caregiver – Where the parties agree that the mother will maintain this role and that the child will continue living primarily with the mother – Where the parties have conflicting views in relation to many aspects of the child’s care – Where the child’s clear and expressed views support the mother’s proposal – Where there is no evidence to suggest that reduced weight should be given to the child’s views – Where the Independent Children’s Lawyer seeks that the mother have sole parental responsibility and that the child live mainly with the mother – Where the mother largely adopted the terms of the orders sought by the Independent Children’s Lawyer during the hearing – Orders made in accordance with those proposed by the Independent Children’s Lawyer – Mother to have sole parental responsibility – Child to spend time with the father each fortnight during school terms and during most school holidays – Child to spend time with the father in block periods during the summer holidays – Where the mother seeks that the child’s time with the father be in accordance with the child’s wishes once he obtained the age of 14 and a half years – Where the Court declined to make that order.

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the father seeks an adjustment in his favour of the parties’ matrimonial asset pool – Where the mother seeks that no adjustment be made and that each party retain their respective assets – Where the parties each made initial contributions of substantial value – Where the mother’s contributions throughout the relationship and following separation were significantly greater than those of the father – Where the mother has access to significantly greater financial assets than the father – Where an interstate move by the father, necessitated by the circumstances of the relationship, negatively affected his earning capacity – Where the mother’s income far exceeds that of the father – Where it is just and equitable for the Court to make orders for an adjustment of property – Where the overall contributions of the mother and father were assessed to be 30 percent and 70 percent, respectively – Father to receive a 7.5 percent adjustment.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 75(2), 79

C & C[1998] FamCA 143
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Pierce & Pierce (1999) FLC 92-844; [1998] FamCA 74
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Hilditch

RESPONDENT:

Ms Huang

INDEPENDENT CHILDREN’S LAWYER:

Morton Family Lawyers

FILE NUMBER:

SYC

2358

2013

DATE DELIVERED:

31 January 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

4 - 7 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Judge

SOLICITOR FOR THE APPLICANT:

Linden Legal

COUNSEL FOR THE RESPONDENT:

Mr Johnston

SOLICITOR FOR THE RESPONDENT:

Super & Super Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Morton Family Lawyers

Orders

The mother shall have sole responsibility for the child, X, born … 2007.
X shall spend time with the father as follows:
(a)each alternate weekend from after X’s extracurricular activities on Saturday until the commencement of school or 9.00 am the following Monday where that day is not a school day, to continue during the school holiday periods at the end of Terms 1, 2 and 3 in each school year;
(b)for two block periods of not more than five days duration during the school holiday period at the end of Term 4 in each school year, being periods agreed in advance between the parents;
(c)on the weekend including Father’s Day where X would not otherwise be spending time with the father from 5.00 pm on Saturday until the commencement of school the following Monday;
(d)from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in each odd-numbered year;
(e)from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day in each even-numbered year; and
(f)at other times as agreed between the parties.
Order 2(a) shall be suspended as follows:
(a)during the school holiday period at the end of Term 4 of each year; and
(b)on the weekend including Mother’s Day from 5.00 pm on the Saturday immediately preceding that day.
The other parent shall not be present when X is collected from or delivered to school.
Apart from in a medical emergency, the father is restrained by injunction from attending X’s medical, dental or other health appointments.
The parties shall notify each other, as soon as is practicable but at least within four hours, in respect of any medical emergency suffered by X and requiring hospitalisation, when X is in their respective care.
By way of property settlement, within two months from the date of these Orders, the mother shall pay to the father, or as he directs, $2,158,236.
The parties shall sign all documents and do all things to cause the joint account with the S Bank account no. …12 to be transferred to the mother.
Otherwise each of the father and the mother retain as their own property, any asset standing in their sole name and/or possession and indemnify the other in relation to any liability they each retain in their own name.
In the event that either party refuses or neglects to execute any deed or instrument in order to give validity and operation to these Orders, then a Registrar of this Court is hereby empowered pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of the person who has so refused or neglected to comply.
Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other, in relation to the wording of these Orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2358 of 2013

Mr Hilditch

Applicant

And

Ms Huang

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the parenting arrangements for X, who is 12 years of age. His parents are Mr Hilditch (“the father” or “the husband”) and Ms Huang (“the mother” or “the wife”). Final parenting orders were made by consent in the Federal Circuit Court (“FCC”) on 18 June 2014. Many of those orders have now been suspended or varied through various interim orders but the parties remain in dispute about the long term care arrangements for X and the matter comes before this Court for a final determination.
The father and the mother also have competing applications in relation to property settlement. The father seeks an adjustment of property to the effect that he would hold 45 percent of the net assets of the marriage. The mother seeks that there be no adjustment of the parties’ property.

Applications

By way of a Minute of Orders received by the Court on 31 October 2019, the father seeks the following parenting orders:
Parenting Proceedings:
1. That the parents have equal shared parental responsibility for the child "X" born … 2007.
2.That, from the first week in term 1 in 2020 and the first week of each school term thereafter, X live with the father from the conclusion of school on Thursday until the commencement of school on Tuesday of the following week, repeating each fortnight.
3.That X spend one half of the school holidays (defined as commencing the day before he is required to attend school at the beginning of the next school term) with each of the parents, such time by agreement and failing agreement, in the first half of even numbered years with the mother and the second half with the father and in odd numbered years, the first half with the father and the second half with the mother provided that in the Christmas school holidays, X will spend the first two weeks and the last two weeks of those holidays with the father in odd numbered years and in even numbered years the second two weeks and the last two weeks.
4.Notwithstanding anything else contained in these Orders, that X spend time with the father (if X would otherwise be in his mother's care in accordance with these Orders) as follows:
a.From after school until 8pm on X's birthday if it falls on a school day.
b.From 1pm to 8pm on X's birthday if it falls on a non-school day.
c.From 9 am on Father's Day to the commencement of school the following day.
d.From 5pm on the day before Anzac Day to 5pm on Anzac Day.
e.At other times as agreed between the parents in writing, which includes by email.
5.Notwithstanding anything else contained in these Orders, that X spend time with the mother (if X would otherwise be in his father's care in accordance with these Orders) as follows:
a.From after school until 8pm on X's birthday if it falls on a school day.
b.From 1pm to 8pm on X's birthday if it falls on a non-school day.
c.From 9 am on Mother's Day to the commencement of school the following day.
d.At other times as agreed between the parents in writing, which includes by email.
6.That wherever changeovers do not occur at school, the parent dropping X will remain in his or her own vehicle and the other parent will not approach the vehicle.
7.That only the parent with whom X is residing at the time shall attend a medical appointment for X unless the other parent is invited to do so by the parent with whom X is residing, in writing, including by email.
8.That the parent with whom X is residing on the day of any school or extra-curricular event may attend that event and the other parent shall not attend.
9.That the Father or Mother not be present when X is collected or delivered to school by the other parent.
10.That each parent is allowed to travel with X outside metropolitan Sydney but within Australia, provided that parent notifies the other parent of the travel arrangements, address and telephone numbers of the place/s where X will be staying not later than 48 hours prior to the commencement of any such travel.
11.That each parent is allowed to travel with X overseas, provided:
a.That parent notifies the other parent of the proposed travel arrangements and address of the place/s where X will be staying not later than 42 days prior to the departure date; and
b.That parent notifies the other parent of the final travel arrangements, address and telephone numbers of the place/s where X will be staying (which must not be materially different from the arrangements notified in (a)), and provide a copy of the return airfare or other travel ticket, not later than 14 days prior to the departure date;
c.Both parents will complete all documents (including passport renewal applications and visa applications) necessary for X to travel within 7 days of being requested to do so.
d.X's passport will be held by the mother when not in use. The mother will provide X's passport to the father not later than 14 days prior to any departure date on which the father will be travelling overseas with X.
12.That X may communicate with each parent at such times as he wishes and the other parent shall facilitate such communication by telephone, in writing or by other electronic means including but not limited to emails, text messages and Skype.
13.If X is outside metropolitan Sydney when in a parent's care, then X is to communicate with the other parent by telephone at least once a week.
14.That each parent must notify the other parent not later than 24 hours after any change to their address and/or mobile number and/or email address.
15.That each parent be responsible for taking X to his social events (including birthday parties) when X is in her/his respective care.
16.That X’s extra-curricular activities outside school time and which are provided by external providers may be determined by the parent who has care for X at the time of that activity.
17.That each parent be responsible for taking X to medical appointments when he is ill and that X be taken to H Medical Centre, Suburb D in the State of New South Wales unless H Medical Centre is closed, or it is an emergency.
18.That each parent notify the other parent as soon as possible by both telephone and email, and in any event within 2 hours, of any serious injury or illness suffered by X whilst in that parent’s care.
23.That all routine administration relating to X's schooling generally (for example requests from the school) be completed by the mother and a copy sent to the father as soon as possible, unless the father's consent or signature is required in which case the father will sign all documents within 7 days of being requested to do so.
24.That the father and mother be restrained from:
a.Approaching each other without invitation;
b.Denigrating each other or members of each other's family in the presence or hearing of X, or permitting any other person to do so; and
c.Discussing these Court proceedings, any Court documents or reports, or X's views and wishes in relation to his future living and care arrangements, in the presence or hearing of X, or permitting any other person to do so.
25.That in the event either parent refuses or neglects to execute any document necessary to give effect to any or all Orders, then a Registrar of the Family Court in the Sydney Registry is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute any such document in the name of the defaulting parent and do all acts and things necessary to give validity and effect to the said document.
Pursuant to an order made on 8 November 2019 the father’s minute of property settlement orders was provided to the Court on 12 November 2019. The father seeks the following orders for property settlement:
1.That within 42 days from the date of these orders, the wife will (in her personal capacity and as the sole director and shareholder of K Pty Limited A.C.N …) do all acts and things and execute all documents necessary to transfer to the father the whole of the wife's and K Pty Limited's right title and interest in the property situate and known as 1 L Street, Suburb M in the state of Queensland being the whole of the land contained in title reference …, Lot … BUP… ("Unit 1 Suburb M property"), free of encumbrances.
2.That simultaneously with the transfer as provided in Order 1, the wife will pay to the father the sum of $2,491,752.
3.That the father retain to the exclusion of the wife:
3.1The properties at 2 and 3 L Street, Suburb M, Queensland;
3.2The Hilditch Family Trust and its assets subject to any encumbrances;
3.3all items of personal and real property in the father's possession or of which he is the registered proprietor as at the date of these Orders, including but not limited to all or any money standing to the credit of the father in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate and any superannuation entitlements.
4.That in default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Sydney be appointed pursuant to S.106A to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.
5.That the wife pay the father's costs of and incidental to these proceedings.
By way of the Minute of Orders Sought contained within her Case Outline document received by the Court on 28 October 2019, the mother sought the following orders in respect of property settlement:
PROPERTY ORDERS
1.That the Amended Initiating Application filed 9 March 2017 be dismissed.
2.Each of the father and wife retain as their own property any asset standing in their sole name and/or possession and indemnify the other in relation to any liability they each retain in their own name.
However, as to parenting orders, during final submissions the mother largely adopted the orders sought by the Independent Children’s Lawyer (“ICL”). The ICL’s proposals were set out in a document submitted during final submissions on 7 November 2019. The ICL sought:
1.That the mother shall have sole responsibility for the child, X born … 2007.
2.That X shall spend time with the Father as follows:
a.Each alternative weekend from after X’s extracurricular activities on Saturday until the commencement of school or 9 AM the following Monday where that day is not a school day to continue during the school holiday periods at the end of terms one, two and three in each school year.
b.For two block periods of not more than five days duration during the school holiday period at the end of term 4 in each school year.
c.On the weekend including Father’s Day where X would not otherwise be spending time with the Father from 5 PM on Saturday until the commencement of school the following Monday.
d.From 5 PM on Christmas Day until 5 PM on Boxing Day in each odd numbered year.
e.From 5 PM on Christmas Eve until 5 PM on Christmas Day in each even numbered year.
f.at other times as agreed between the parties.
3.That Order 2a. shall be suspended as follows:
a.during the school holiday period at the end of term four of each year.
b.On the weekend including Mother’s Day from 5 PM on the Saturday immediately preceding that day.
c.From 5 PM on Christmas Eve until 5 PM on Christmas Day in each odd numbered year.
d.From 5 PM on Christmas Day until 5 PM on Boxing Day in each even numbered year.
4.That the other parent shall not be present when X is collected from or delivered to school.
5.That, apart from in a medical emergency, the Father be restrained by injunction from attending X’s medical, dental or other health appointments.
6.That the parties shall notify each other, as soon as is practicable but at least within four hours, in respect of any medical emergency suffered by X, requiring hospitalisation, when X is in their respective care.
7.That within 14 days the Father shall attend upon his general practitioner for the purpose of obtaining a referral to an appropriate family therapist.
8.That within seven days of obtaining the referral the Father make the first available appointment with the referred therapist and continue to attend upon that therapist as required.
As to the aspects of those orders about which the mother did not agree, she sought that the time provided for in paragraph 2b. of the orders proposed by the ICL for the Christmas school holidays, be “as agreed between the parents”. The mother also sought that there be included a new paragraph 9 which would provide that once X had attained the age of 14 and a half years, all time with the father would be in accordance with his wishes.

Written Evidence

The father relied on:
·further Amended Initiating Application filed on 9 March 2017;
·father’s affidavit filed on 14 October 2019; and
·father’s Financial Statement filed on 14 October 2019.
The mother relied on:
·further Amended Response to Initiating Application filed on 14 October 2019;
·mother’s affidavit filed on 14 October 2019;
·mother’s Financial Statement filed on 14 October 2019;
·affidavit of Ms P (maternal grandmother) filed on 14 October 2019;
·affidavit of Mr P (maternal grandfather) filed on 14 October 2019; and
·affidavit of Ms O (private investigator) filed on 31 March 2017.

Expert Evidence

The following expert evidence was relied on:
·single expert report of Dr B dated 3 February 2014 (“the 2014 report”);
·single expert report of Dr B dated 15 July 2018 (“the 2018 report”); and
·updating comments from Dr B on the recommendations provided in the 2018 report, dated 3 November 2019.

The Hearing

By arrangement with the parties and to accommodate my availability, the hearing commenced at 2.30 pm on 4 November 2019. On 7 November 2019 the following orders were made:
1. By consent, an order is made in the terms of the document titled “Mother’s Minute Of Order” (Exhibit 1 dated 6 November 2019), as set out hereunder:
1.That X born … 2007 reside with the mother from 8.00 pm on 29 December 2019 to 28 January 2020 for the purpose of the mother taking him to Canada and USA on holiday.
2.The solicitor for the father file and serve a minute of the property orders sought by the father within seven days.
Otherwise judgment was reserved and the parties were excused on delivery of judgment.
During the trial there was discussion about a dispute in respect of the father’s time with X at Christmas 2019, particularly in light of the agreement reflected in the order made on 7 November 2019. There was a concern that if judgment was not delivered by the commencement of the Christmas school holidays, there may be no satisfactory arrangement for the father’s time during those holidays. The parties agreed to attempt to reach agreement about appropriate orders before the holidays. Unfortunately they were unable to do so and an application was subsequently filed by the father in that regard. As the substantive proceedings were reserved before me, that application was referred to another judicial officer to make a determination about X’s arrangements during the school holidays.

Short History

The father was born in 1968 and was aged 51 years at the time of the hearing. The mother was born in 1972 and was aged 47 years at the time of the hearing. The parties started living together either in about June 2006 or in 2009. They were married in 2006 and separated on 25 July 2012. The father left the matrimonial home on 11 October 2012 and the parties’ divorce took effect in 2013. X was born in 2007 and is 12 years of age.

Credibility and Submissions

The father was a poor witness. In many instances during cross-examination he did not answer the question asked of him or verbally canvassed the topic before coming to an answer. For example there was an exchange to the following effect:

Question Answer

The mother’s counsel: He was breastfeeding until he was eight months old? I really don’t want to address this, but….

His Honour: ‘Yes’ or ‘no’ or ‘I don’t remember’?
Was he breastfed until he was eight months of age?
I don’t think he was…
Let’s say until six months of age…

My memory is hazy.

At times the father appeared to try and address the purpose of the question, rather than the question itself. He was warned on several occasions about the likely consequences of failing to answer questions but he persisted. In my view the father was simply incapable of giving a direct answer to many of the questions asked in cross-examination. That said, I detected no deliberate strategy by the father to mislead the Court. In a couple of instances he made concessions against interest. Faced with the evidence from the Suburb D Medical Centre that his behaviour had caused support staff members to be upset and cry, his initial response was to the effect of “I did not see anyone cry”. It was a struggle but ultimately the father made the necessary concession that it was likely that he presented as aggressive and angry in some situations.
It was the father’s evidence that he made about half of the parenting contributions to X. The difficulty with that is that the father was in a different city to X for significant periods. X has always lived with the mother and has had significantly less time with the father than with the mother. The father steadfastly refused to concede that the mother’s parenting contribution was greater than his. In my view the father also exaggerated the extent and import of his financial and non-financial contributions. Of course, rather than any attempt to mislead the Court, it is entirely possible that the father’s contentions represent his sincere reflection on the facts.
The mother was a responsive, careful and consistent witness. She was not shown to give false evidence on any issue. As with the father, the mother was challenged on some matters that were probably more matters of perception rather than credit. For example, the mother initially did not accept that X is aware of the tension between her and the father. Sadly, she is almost certainly wrong about that and I understood her to eventually concede the point.
Ms O was briefly cross-examined but there was no challenge to her evidence.
The maternal grandmother was cross-examined. She explained that where she said at paragraph 51 of her affidavit that she lays out X’s school clothes, she meant to say that she leaves his school uniform hanging up. She also had difficulty giving consistent evidence on some other issues. She was asked about her knowledge about a deceased estate for which she is one of the executors. She variously said that she had little knowledge of the estate, that the assets of the estate included no real estate and then that they included a home. It appears to be common ground that the estate does not include any real property. The maternal grandmother indicated that she had some difficulty with her memory. I understood her to say that she believed X when he told her that he ate the skin on his hand because he was hungry. That is not the mother’s view. [1] The maternal grandmother is a healthcare professional and I find it impossible to accept her evidence on this issue, at face value. I suspect and hope that the gravamen of the maternal grandmother’s evidence was that, rather than an objective assessment about the cause of damage to X’s hand, she was focussed on supporting X by not challenging his disclosures of being hungry in his father’s care and of not being provided with play lunch on one occasion. In any event, the maternal grandmother was a poor witness.
[1] Paragraph 34 of the mother’s trial affidavit.
The maternal grandfather was not required for cross-examination.
Dr B gave evidence as an expert and his credit (as opposed to his opinions) was not challenged.
I apprehend and observed that the parents have been hurt by criticisms made or perceived during the course of the proceedings. Therefore it is important to say something about assessments of credit. The assessment of credit is not an end in itself. Such assessments are sometimes necessary where findings of fact are required on disputed issues and there is no reliable corroborative evidence. In those circumstances and where one witness is to be preferred over another, the Court is obliged to provide reasons for that finding. However, a person can be an unreliable witness for many reasons, including that they do not have a reliable memory, they have given inconsistent versions of a particular fact or incident or they had only a limited opportunity to witness the event in question. There is no necessary link between credit findings and, for example, the quality of the parenting performed by the witness in question. In these proceedings, to my observation, the parties and the maternal grandmother are each persons of obvious intelligence who love X and have his best interests in mind.

Background Facts

The father was born in 1968.
The mother was born in 1972.
The parties met in around April 2005 in Brisbane, where the father was then living. The mother was living in Sydney and the parties commuted to spend time with each other.
It is the father’s contention that the parties commenced cohabitation in about June 2006.
The mother says that her taxable income for the year ending 30 June 2006 was $642,711. At the time she was working as an Executive Director at Company T.
The parties had a party to celebrate their engagement on 15 October 2006, which the mother says she organised and paid for.
The parties were married in Melbourne in 2006.
At the commencement of the relationship the father had control or possession of the following assets:
·Hilditch Family Trust (“the Trust”). The father controlled the Trust and used the assets of the Trust for his benefit. At the relevant time, the Trust owned a property at 4 L Street, Suburb M, Queensland, a substantial collection of wine, a share portfolio worth about $250,000 and cash assets;
·a property at Q Street Brisbane, Queensland (“the Q Street property”). The father purchased this in December 2005 for $405,000, subject to a mortgage of $300,000;
·a property at 2 L Street, Suburb M, Queensland. This was purchased in November 2003 for $205,000 with a mortgage of about $70,000;
·superannuation of about $50,780 with AV Super Fund;
·Motor vehicle 1 purchased second-hand in early 2006 for $35,000;
·a diamond worth $10,000 which he says he gave to the mother when X was born;
·a signet ring which had belonged to his late father; and
·a limited edition Omega watch he purchased in around 1999.
At the commencement of the relationship, the mother’s assets consisted of the following:
·a townhouse at BA Street, Suburb D (“the townhouse”) which she purchased in April 1997 for $495,000 with an interest-free loan in that same amount from her parents (“the 1997 loan”);
·a home under construction at 1 R Street, Suburb D (“1 R Street”). The mother purchased the land and original house in November 2004 for $1,215,000 with a mortgage of $972,000 from the J Bank and her own savings. She later borrowed $580,000 from the J Bank to fund the demolition of the original house and construction of the new house. She drew down on that facility on 17 May 2006[2];
·Motor vehicle 2;
·various listed shares worth $78,259;
·funds in various bank accounts worth $397,606; and
·superannuation worth $141,952.
[2] See the letter from the NAB dated 17 May 2006 which is Exhibit Ms H – 63 to the mother’s trial affidavit.
In February 2007 the parties established a joint account with S Bank (“the S Bank account”) to pay expenses anticipated in relation to the baby they were expecting. This was the only joint account operated by the parties. The mother paid the initial $2,000 to set up the account and proposed that the parties each deposit $1,500 a month. The father was unable to make his contributions to that account, though he made one payment of $3,000 in October 2007. The mother continued to deposit into the S Bank account until 2010, at which time she began paying for X’s expenses directly from her personal account.
Approximately ten days before X was due to be born, the father came to Sydney to stay with the mother in anticipation of the birth.
X was born in 2007.
The father returned to Brisbane on 25 June 2007. He continued to travel back and forth between Sydney and Brisbane, with the weekends largely spent with the mother and X in Sydney.
Shortly after X was born, Ms P, the maternal grandmother, travelled to Sydney to help the mother with caring for the newborn and she assisted the mother to move into her home at 1 R Street, Suburb D. The maternal grandmother says that she became concerned that the father was travelling back and forth between Brisbane and Sydney and was able to provide only limited care for X.
Shortly after a telephone conversation between the maternal grandparents and the parties in August 2007, the maternal grandmother arranged to reduce her hours at the business in Victoria where she was employed and to become a part-time employee so that she could travel to Sydney each week to help look after her baby grandson.
On 23 September 2007 the maternal grandmother began her weekly travel to Sydney to assist with caring for X. She flew up most Sunday nights and returned to Melbourne on Thursday nights. The mother organised and paid for the maternal grandmother’s flights. The maternal grandmother says that this has allowed her to become very involved in X’s school and extracurricular activities as he grew up and she very much enjoys her time with him. She is not paid for looking after X.
The father says that he commenced living in Sydney with the mother and X on a full-time basis in 2008. The mother contends that this occurred in May 2009. It is not possible to resolve that dispute.
At all relevant times the father worked finance with Company CC. He initially worked in Queensland and subsequently obtained a transfer within the same company to a position in Sydney. His remuneration as and is by way of commission. He says that he had been earning over $100,000 per annum in Queensland but that his income substantially decreased following the move to Sydney.
In 2008 the mother sold the townhouse for $920,000 and discharged the J Bank mortgage in the sum of $584,693.38[3]. She still owed her parents $270,962 on the 1997 loan. The mother says that she and her father verbally agreed that she would not repay him but would hold onto this amount to purchase another property in the future.
[3] The settlement statement for the sale is Exhibit Ms H – 64 to the mother’s trial affidavit.
In July 2010 the mother resigned from Company T to take a lower-ranking and lower-paying job at the Company U. She says that she did this as she needed a less demanding job to allow her to assist X with settling into school in the following year.
In August 2010 the mother sold her Motor vehicle 2 for $7,500.
The mother says that her income in her last year of working at Company T comprised a base salary of $300,000, a cash bonus of $375,000, superannuation of $20,000 and conditional shares of $375,000. In her first year of working for Company U she earnt a base salary of $320,000, received a cash bonus of $226,667, superannuation of $23,040 and a conditional award of shares of $113,333. She forfeited the shares in the companies when she resigned.
In October 2010 the mother bought a studio apartment at V Street, Suburb D (“the V Street apartment”) with a mortgage of $380,000. The father used this as a home office space and he often worked from there.
In about November 2010 the mother purchased a property at 1 L Street, Suburb M, Queensland, for $415,000 from savings. Twenty five percent of the property is owned by her self-managed superannuation fund.
In 2011 the father sold the Q Street property for $470,000. He discharged the mortgage and put $45,000 of the net proceeds into the S Bank account to make up for the payments he had previously missed.
The parties separated on 25 July 2012. Following separation and until orders were made in the FCC in 2014, X lived with mother and spent time with the father from Saturday until Sunday morning and on Monday evenings after school (though not overnight).
Upon separation the father moved into the V Street apartment where he resided until 28 February 2015.
On 3 April 2013 the father’s mother passed away. The father was the sole beneficiary of the Hilditch Family Trust and he received the following items from her estate:
·J Bank shares worth $36,347.75;
·Company AA shares worth $44,863;
·Company BB shares worth $14,700;
·credit on a Company CC ledger for shares worth $58,438.85;
·bank account with W Limited worth $736.26;
·bank account with the DD Bank worth $240.11;
·bank account with ANZ worth $1,371.69;
·a property located at EE Street, FF Town, which the father sold in May 2014 for a net sum of $325,011.66; and
·jewellery and personal effects of no commercial value.
On 2 May 2013 the father commenced proceedings in the Federal Circuit Court of Australia (“the FCC”) seeking orders in relation to parenting and living arrangements for X.
In May 2013 the mother purchased an off the plan apartment in Suburb AG, Melbourne for $720,000. The purchase was made in the joint names of the mother and the maternal grandmother and the mother says that her parents considered this to be adequate repayment for the outstanding $270,962 under the 1997 loan.
The parties were divorced in 2013.
On 7 February 2014 the first single expert report prepared by Dr B was released to the parties.
On 18 June 2014 orders were made by consent in the FCC which included orders to the following effect (“the 2014 Orders”):
·the parents are to have equal shared parental responsibility for X;
·from Term 3 2014 until Term 4 2017, X live with the father from 6.00 pm Thursday until the commencement of school on Tuesday, repeating each fortnight;
·from Term 1, 2018 X live with the father from 6.00 pm Thursday until the commencement of school on Wednesday, repeating each fortnight;
·changeover is to occur at GG Swim Centre during school terms;
·X is to spend half of each school holidays with each of the parents;
·injunctions and non-denigration orders; and
·various other arrangements such as for X’s schooling, extracurricular activities, special occasions and travel.
On 1 October 2014 the father initiated proceedings for property settlement in the FCC.
On 28 February 2015 the father moved out of the V Street apartment.
In May 2015 the mother sold the V Street apartment for $515,000.
Later that month the mother purchased an investment property at 2 R Street, Suburb D for $2,375,000. It was funded by the proceeds of sale of the V Street apartment, a $1,200,000 mortgage from S Bank and a $100,000 interest-free loan from the maternal grandfather.
The father says that on 13 August 2015 the maternal grandmother hit him with X’s shoes at GG Swim Centre.
On 14 August 2015 X’s first Eucharist Mass and Celebration was held at the HH School, the school X was attending at the time. The father says that the mother had not provided him with X’s blazer and so he had made arrangements to borrow one from the school. The father says that the mother approached X as he was waiting outside the chapel standing in a line with his peers. He said that the mother said in an aggressive/angry tone “Take off that blazer, mummy’s brought your own”. She then allegedly raised her voice and said to the father “Step away [Mr Hilditch], I have court orders”. The father says that the mother kept saying “Change your blazer” to X and eventually X changed it after the father said to him “You should change your blazer”.
The mother’s account of the event is that the father approached her and the maternal grandparents multiple times and yelled abuse to the effect of “All Catholics are paedophiles”. The father denies doing so. The mother says that this was in full view of X’s school friends and their parents. She said to him “Step away, [Mr Hilditch]” and he said words to the effect of “I don’t know anything about court orders” though the mother denies that she had made any mention of the Orders. She says that the father pushed her out of the way and also pushed her then 71 and 82 year old parents and X’s teacher asked the father to desist. She says that the father then, in the presence of students and their parents, threw another child’s blazer at the mother. It is not possible to attribute responsibility for those events to only one of the parties.

On 27 August 2015 the father’s solicitors wrote to the mother’s solicitors about issues with the changeovers occurring at GG Swim Centre. He alleged that the mother regularly arrived late (between 6.00 pm and 6.10 pm for a 6.00 pm class) and often did not leave until 6.15 pm. He says that X was regularly late for lessons and there were lengthy and emotional farewells between X and the mother. He says that the mother did not consent to his suggestion of changing the handover location to X’s school as it meant a reduction in the time X would spend with her.
The father says that from February 2016 he no longer entered the Swim Centre until after the mother and/or the maternal grandmother had left, to avoid any further tension.
In March 2016 the father purchased a unit at 3 L Street, Suburb M, Queensland for $348,000. He financed the purchase by way of a $258,879 mortgage and paid the balance of the purchase price and stamp duty from profits received after selling some shares.
The father says that for several months in early 2016 he was concerned about X’s emotional health as he showed the father skin damage to his right hand between his thumb and forefinger, which seemed to indicate that X was biting and tearing the skin of his hand.
From around late June/early July 2016 the father’s concern increased as he observed X’s right thumb and forefinger to be chafing and often bleeding. He says that he treated the damage with topical medicines and that X’s hands improved while he was in the father’s care.
Similarly, the mother says that on 17 May 2016 X returned home after spending five days with the father and she noticed that the skin on the fingers of X’s right hand was peeling, red and raw. The mother deposes that the following conversation took place:
X:                  I ate the skin because I was hungry.
The mother: When were you hungry?
X: On Monday, because Dad only gave me a sandwich, no play lunch.
The mother: When did you do this?
X:                  At recess.
The mother: Did your teacher know that you didn’t have any play lunch?
X: I try to run out of the classroom to play with Y before Mr JJ sees us.
The mother: How often does this happen?
X:                  Most Fridays and Mondays.
The Fridays and Mondays referred to above were when X was in the father’s care. The mother says that she adopted recommendations from a general medical practitioner and a local pharmacist to use a medicated moisturiser to repair the skin.
On 28 July 2016 the parties attended a seminar about the teaching of boys at HH School. The mother alleges that the father made reference to “our son’s difficult circumstances” and said “X’s mother refuses to allow him to play sport”. She says that the father was told by a teacher: “Mr Hilditch it is not appropriate to discuss this in this forum. You need to make useful comments.” The mother says that the father continued talking and looked directly at her, and some of the others in the room followed his gaze. She says that she felt intimidated and publicly humiliated.
The mother says that on 9 August 2016 it appeared that X had been eating the skin on his hand again. When asked about it, X said words to the effect of “We drove to BD Town for soccer and didn’t eat much”.
On 19 August 2016 the father took X to Suburb D Medical Centre and Dr KK, who was not X’s usual doctor, referred X to Dr LL of the MM Centre as Dr KK considered X’s issue with the hands to be emotional. The mother says that she did not find out the details of the appointment until the next day.
The mother subsequently made an appointment for X to see his regular doctor, Dr C, on 31 August 2016. The mother says that she received a call that afternoon and the Head of the Junior School at HH School told her words to the effect of:
Yesterday afternoon at Gymnastics, X had an argument over the use of the trampoline with one of the female students and he said to her “I’m going to get a gun and shoot you”. The girl’s mother was angry and complained. I have already called X to my office and spoken to him before phoning you.
This is very unlike the X we know and I told the upset mother that X is normally a very nice boy.
The mother suggested to her that “X has an appointment with his doctor this afternoon and may have been worried about that”.
The outcome of the appointment with Dr C was the provision to the parties of referrals to Dr B, Dr LL and Mr NN. Dr C explained the difference between a psychiatrist, psychologist and counsellor. Dr C said “You should assess what X’s needs are”. The parties could not agree on which of those persons was best suited to assist X. The mother thought it best that X see Mr NN because of his field of expertise. She would also have been agreeable to X seeing Dr B as he had prepared a single expert report in the original FCC proceedings which led to the 2014 Orders. The father preferred Dr LL as he contended that Dr C told him that X did not need to see a psychiatrist (Dr B) and Mr NN had previously assisted the parties regarding communication issues but allegedly told the father he could not be of any further assistance to the parties.
The father’s solicitors wrote to the mother’s solicitors on 26 August 2016 and 1 and 8 September 2016 seeking the mother’s approval for X to see Dr LL. He received no response and booked in an initial consultation with Dr LL for 23 September 2016.
The father received a letter from the mother’s solicitors, dated 20 September 2016, advising that the mother did not consent to X seeing Dr LL and that she had made an appointment to see Mr NN on 19 October 2016.
The mother says that on 10 October 2016 X told her that he had been eating his hands. He told her words to the effect of “I ate it on Sunday because I had some sports sessions. By the time we finished, the BBQ sausage place had closed and Dad didn’t want to buy anything else.”
The mother says that on 19 October 2016, Mr NN, psychologist, spent nearly an hour talking to X, building a rapport and understanding what had led him to bite his nails and fingers. The mother says that he assisted X to be conscious of his habit and offered advice about how to deal with it. She says that she informed the father about the interview with Mr NN but he chose not to attend, and on 26 October 2016 his solicitors wrote to the mother’s solicitors refusing consent for X to see Mr NN. This continued to be a source of conflict between the parties in the following months.
On 23 November 2016 the FCC proceedings for property settlement were transferred to this Court.
The mother alleges that during changeovers at GG Swim Centre in 2016 and early 2017, the father heckled her as she walked past, saying words in a sarcastic tone to the following effect:
How are you, [Ms Huang].
Late again, [Ms Huang].
How’s Ma/Pa. I haven’t seen them for a while?
Happy Easter/Christmas. Remember how to be honest/faithful/Christian?
The mother alleges that the father would sometimes shout at her in an aggressive tone, causing her to feel intimidated, and that sometimes he appeared to be filming her or taking photos on his phone. She says that she became so worried that she hired a private investigator (“PI”) to monitor the father’s behaviour and step in if things got out of hand. The mother says that once the father found out about the PI, he no longer come onto the pool area during changeovers, however he would still sometimes appear to be filming her. The father says that he regards the mother’s engagement of a PI to be harassment and that he noticed people in cars who appeared to be watching him at various times in late 2017 and early 2018.
The mother says that on 27 December 2016 there was an incident when the father and X came to return the mother’s pet dog to her. She alleges that the father deliberately stretched out the dog’s lead and then let go so that it hit the mother’s hand. It hurt so much that she cried out and almost fell and the father laughed at her. She later had an x-ray and ultrasound and continues to experience soreness in her hand resulting from this incident. The father says that this was entirely unintentional and at first he had not realised that the mother had been hit by the lead. He says that the mother called out to X “Look what your father’s done”.
The father says that in the holidays before the start of the 2017 school year, X asked him: “Can I catch the bus to school?” The father ordered an Opal card for X, they looked up bus timetables together and he taught X how to safely cross at a particularly busy intersection. Initially the father would collect X from the bus stop and kept an eye on him once he started walking from the bus stop himself. The father contends that catching the school bus allowed X an appropriate level of independence and companionship with his peers. He alleges that the mother cancelled X’s Opal card six times and each time the father had one reissued. I understand that the mother disputes the assertion that she cancelled X’s Opal card.
On 18 January 2017 the father filed an Amended Initiating Application to re-open the parenting proceedings albeit only to resolve the discrete issue of the mother facilitating X’s attendance upon Dr LL.
On 31 January 2017 X started school at OO School. Both parents were present at the school on X’s first day. The mother deposes that she felt uncomfortable with the father’s presence and that she saw X appear to dodge a kiss and/or hug from the father. The father alleges that the mother loudly said “Step away from me, I’ve got a Court Order” about 10 times in front of about 100 students and their parents.
On 3 February 2017 the mother was told by a staff member at OO School that the father had refused consent for X to attend the school camp because he objected to the note the mother had written on the medical consent form, which said “Mother is allergic to sulphur. As a precaution, avoid sulphur-based drugs for X. Thank you.” The mother knew that X was looking forward to attending the camp and agreed to remove the note. The father says that his objection was based on his concerns of medical treatment for X being limited without him definitely being allergic to sulphur. He says that he agreed that X should be tested for any such allergies and has attempted to gain the mother’s consent; the mother contends that the father has not cooperated with her requests for same. This issue was explored in the father’s cross-examination. The father was unable to say whether there were any drugs containing sulphur which X might have required.
On 21 February 2017 the mother filed an Amended Response wherein she sought parenting orders to the following effect:
·the mother have sole parental responsibility for X;
·in the alternative, the mother be enabled to make decisions regarding X’s health and education in accordance with X’s wishes and by notifying the father of her proposed decision and allowing the father adequate time to respond; and
·the parties to facilitate X’s attendance upon Mr NN in relation to the issues with X’s hand.
On 3 March 2017 the parties attended a Swimming Carnival in which X was to compete. The mother says that the father sat next to her and she felt extremely uncomfortable. She tried to move away from him a number of times. The mother says that the father said to X words to the effect of:
You need to get up the front.
You need to support your friends.
No one is sitting with their parents/their Mum.
She says that X was visibly upset by these comments and stood up and moved to sit further away from the father. The father denies the mother’s account and says that he wanted to sit with X.
The mother says that on 14 March 2017 Dr C, who had been treating X, left her a voicemail explaining that the father’s behaviour when he attended the Medical Centre was “problematic” and that they had “staff members in tears”. She was told it was an “ongoing problem” and that he would address it with the father but “we are going to have to say he is no longer welcome at the practice, either as a patient or as an attendee”. The father confirmed that Dr C rang him. He said that Dr C appeared to be reading from a prepared statement. The father says that he was with a client at that time, he could not hear Dr C clearly and he asked the doctor to ring back. The father said that he did not thereafter have contact with Dr C about that issue.
The mother says that on or about 23 March 2017, X told her words to the effect of:
Dad doesn’t go to Woolworths. He goes to Coles. He had a fight with the man at Woolworths.
He has fights about the smallest things. He has fights when the computer scans the wrong price. He has had fights with the people at both Woolworths and Coles, but it was worse with the man at Woolworths.
The father denied that he had a fight with anyone at Woolworths.
In March 2017 the mother and a cousin each invested EUR128,250 in a European technology company through a Hong Kong company they established for that purpose. It is the mother’s contention that the technology company will be insolvent by the end of the current financial year and that her investment will be written off.
On 25 May 2017 orders were made for the appointment of an ICL.
From 23 June 2017 until 30 June 2017 X attended a ski camp to which the father had organised for him to go. The mother says that while on the camp, X sent her 488 text messages and called or contacted her on FaceTime 51 times, including through the night. She says that X was crying or distressed during almost every call. She says that throughout his communications he said things such as:
I don’t know anyone at camp. There are only three Year 5 boys, no Year 6 boys, and 50 senior schoolboys;
I miss you;
I can’t sleep; and
Can you text Dad and tell him I don’t like it here and ask him to come and get me.
In cross-examination the mother said that she responded to about one message in every four of the messages sent to her by X. She says that she repeatedly told X words to the effect of “Go back to sleep”. The mother says that X had also sent 97 messages to the maternal grandmother, who was overseas at the time of the ski camp, as well as making 13 calls to her. The mother then received communication from a colleague who was also skiing at PP Town and had been told by X that he wanted to come home. The mother asked the father to confirm if he was in PP Town and whether he could pick up X early. She says that he told her “In my nightly calls with X he is happy”. The father picked X up from camp on 30 June 2017.
The father’s version of events is as follows. The father was mindful that this was the first non-compulsory camp that X was going to and so he enquired with the school as to whether the children would have an opportunity to meet before going on the camp. He was told that some of the children, including X, would be “buddied up” with a student from the senior school. X did not tell the father that he was uncomfortable with having a buddy nor that he did not have any friends to play with. The mother emailed the father on 25 June 2017 asking him to collect X from the camp. His impression was that X was enjoying his time at camp and getting to know the students from other years while learning to ski. At no point during the camp did the staff from X’s school contact the father with any concerns or asking that he pick X up early. The father says that he discovered from X’s phone that the mother sent X 460 text messages, repeatedly telling X she missed him and she made numerous phone calls to his phone. X also sent the father text messages saying he missed him, to which the father reciprocated, but also generally encouraged X to enjoy his time at the camp. The father was due to pick X up from the camp on 29 June 2017 but when he told X that he was delayed and would not be able to collect him until the next day, X appeared happy to have the extra night at camp. The father says that if he has been given any indication from the school or from X that the camp was giving him anxiety, he would have collected him without hesitation.
No attempt was made during the trial to resolve the conflicting evidence about the rate of the mother’s responses to the messages sent by X during the ski camp.
The mother says that over the next few months, X constantly expressed his anxiety and concerns at having to attend the same camp again the next year. She says that he made statements such as the following:
I had a nightmare last night. I dreamt that I was with Dad next year and he made me go on the ski camp. Have you looked up whether I am with you or Dad?; and
Will I be with you when ski camp is on this year? If so, can you make sure I don’t have to go?
On 17 July 2017 X saw Dr QQ, who provided written guidance to help X to deal with his anxiety about the ski camp. X continues to see Dr QQ to the present time.
On 20 November 2017 the mother commenced employment with Company RR. She has more regular hours than her previous employment which enables her to care for and spend more time with X. However the base salary of the job is $400,000 and she contends that the scope for bonuses is significantly reduced in comparison to her previous roles.
On 8 December 2017 orders were made to the effect that the parties facilitate their attendance upon Dr B for the purpose of him preparing an updated single expert report.
On 9 February 2018 orders were made varying the 2014 Orders to the extent that changeover would occur at X’s school instead of at GG Swim Centre.
The mother alleges that on 26 February 2018 X said to her words to the effect of:
I don’t want to go to Dad’s;
Dad is the worst; and
When can I say what I want to do?
The mother says that on 28 February 2018 X said to her words to the effect of “Dad used to be on eHarmony. I wish he would find a new wife and have kids and forget all about you and me.” Later that night he said “three friends say that Dad’s not that bad. But he is nice in front of them. They don’t know how mean he is to me.” The mother says that that night, X insisted that she sleep with him. He went to bed at 9.30 pm but kept waking up every 30 minutes until 3.00 am. The mother says that he called out for the mother, was crying and said words to the effect of:
I can’t sleep;
Time is going too quickly; and
It is going to be Thursday too soon.
On 17 July 2018 I ordered the release of Dr B’s updating single expert report in the following terms:
1.The report of Dr B MBBS (Hons) PhD FRANZCP Cert. Adv. Trng. Child Adol. Psych., Consultant Psychiatrist, Child, Adolescent & Family Psychiatrist dated 15 July 2018 be released to the legal representatives of the parties and the Independent Children’s Lawyer only.
2.The Court notes that until further order Dr B’s report is not to be discussed with or provided to either of the parents.
On 20 July 2018 the following orders were made:
1.Leave is granted to the parties to read Dr B’s report.
2.By consent, orders are made in accordance with the document titled “Interim Orders” (Exhibit 1 dated 20 July 2018), as set out hereunder:
1.That Order 3 made on 18 June 2014 relating to parenting arrangements for X born … 2007 (“the child”), be varied and/or suspended as applicable to give effect to the following orders.
2.That the child spend time with the Mother from the commencement of school on Wednesday 25 July 2018 until the conclusion of school on Thursday 2 August 2018.
3.Commencing on 2 August 2018, during school term times, the child spend time with the Father each alternate Thursday from the conclusion of school until the commencement of school the following Wednesday.
4.The Father’s time be suspended from the commencement of school on Friday 14 September 2018 until 12pm on Sunday 16 September 2018.
5.The Mother’s time be suspended from the commencement of school on Tuesday 25 September 2018 until 8am on Friday 28 September 2018.
6.Otherwise, Orders operate in accordance with Order 3 made 18 June 2014.
7.Both parents are restrained from discussing the contents of any report prepared by Dr B or the recommendations he makes with the child or in the child’s hearing.
3.The Court notes that the Independent Children’s Lawyer will approach the chambers of Justice Le Poer Trench to relist this matter.

Conclusion under section 79

The parties separated after less than six years of marriage. Very significant contributions were made by each of the parties. They acquired substantial assets and provided for themselves and their son. Each of the parties made financial contributions and each of them made contributions to the family but in each case, the mother’s contributions were greater than those of the father. Largely because of the difference in the financial circumstances of the parties, an adjustment is warranted in favour of the father notwithstanding that the greater parenting load for the parties’ son will continue to fall to the mother. In my view, the division of property resulting from the orders I propose will reflect a just and equitable division of their property.

I certify that the preceding 349 (three hundred and forty nine) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 31 January 2020.

Associate:

Date: 31 January 2020

[2020] FamCA 36

31 January 2020

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Remedies