HOUGHTON & HOUGHTON - [2019] FamCA 498

FAMILY COURT OF AUSTRALIA

HOUGHTON & HOUGHTON

[2019] FamCA 498

FAMILY LAW – PARENTING – Where there are two children of the marriage – Where the children are aged ten and seven – Where the mother seeks the children spend no time, or limited supervised time with the father – Where the father seeks equal shared parental responsibility and unsupervised time with the children – Where the father pleaded guilty to a criminal offence causing grievous bodily harm to the mother – Where the criminal offence involved the father running the mother over with his car – Where the father was psychologically abusive towards the mother following the incident – Where the father allegedly followed adolescent and underage girls, and took and stored photographs of such girls without their consent – Where the mother discovered such photographs but they were not before the Court – Where the mother and father’s contemporaneous communications confirmed the seriousness of the photographs – Where the father subsequently denied the photographs were of a concerning, inappropriate, or illegal nature – Where the father conceded that he was sexually attracted to females of all ages – Where the father conceded that he was sexually attracted to girls in school uniforms – Where the risk to the children would increase as the children became older – Where age is not a protective factor for the children – Where the father took inappropriate photographs of adult women, including the mother, without their consent – Where these photographs were sexual in nature – Where the father denied he took the photos, or otherwise said they were taken with the consent of the subjects – Where the photographs were found to be taken without consent and were clearly inappropriate – Where the father had taken and stored photographs of shirtless children in a posed manner – Where the father used intimidation to parent the children – Where the children presented mixed views about continuing a relationship with the father – Where the father was found to be an unacceptable risk of harm to the children – Orders for limited supervised time with the father.

FAMILY LAW – PROPERTY – Where parties had no significant assets at the commencement of cohabitation – Where both parties contributed to the family – Where the husband was the primary income earner and the wife the primary carer – Where the wife provided substantial financial contributions – Where the husband provided substantial contributions by way of compensation payment – Where contributions are equal – Where the wife seeks an adjustment under the Kennon principle – Where this claim fails – Where the wife suffers from PTSD and has limited earning capacity – Where the wife has limited superannuation – Where the husband had failed to pay the mortgage and child maintenance pursuant to orders – Where the husband had arrears of child support at $37,455 at time of trial – Where there is reasonable doubt about whether the husband would contribute in the future – Where there is an adjustment in favour of the wife – Order for the wife to receive 70 per cent of the net assets of the parties – Order for the husband to receive 30 per cent of the net assets after repayment of his outstanding liabilities.

FAMILY LAW – CHILD SUPPORT – where the wife seeks a departure order from the child support assessment – Where the grounds for departure are not made out – Where her need for support and current earning capacity has been considered in the adjustments for the property settlement – Application dismissed.

Family Law Act 1975 (Cth) ss 60CC, 75(2), 79.
Child Support (Assessment) Act 1989 (Cth) s 117

Aleksovski & Aleksovski (1996) FLC 92-705
Kennon & Kennon (1997) FLC 92-757
K v K [2004] FamCA 360

APPLICANT:

Ms Houghton

RESPONDENT:

Mr Houghton

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

977

2017

DATE DELIVERED:

26 July 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

23, 24, 26, 29 & 30 April 2019; 8 & 9 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O'Dwyer of Queen’s Counsel appearing with Mr Wong

SOLICITOR FOR THE APPLICANT:	Gordon & Barry Lawyers Pty Ltd
THE RESPONDENT:	In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED

That each of the husband and the wife do all acts and things required to sell the property at Suburb A Property 1 and to disburse the proceeds of sale in the following manner and priority:
(a)In payment of the mortgage outstanding to the National Australia Bank;
(b)In payment of the costs of sale including but not limited to legal fees and agents’ commission;
(c)In payment of the sum of $16,794 to Mr B;
(d)In payment of $29,123 to the wife;
(e)In payment of 70 per cent of the balance remaining to the wife from which she shall pay $10,037.50 to the husband in re-imbursement of the costs paid to Dr C and $8,683.80 in payment to the Legal Aid Commission of NSW on account of the costs of the Independent Children’s Lawyer;
(f)In payment of $43,204.88 to the Child Support Agency on account of the husband’s arrears of child support and spousal maintenance;
(g)In payment of the sum of $8,683.80 to the Legal Aid Commission of NSW on account of the husband’s share of the costs of the Independent Children’s Lawyer;
(h)In payment to the wife of the sum of $26,925 being 70 per cent of the net value of the unit in the United Kingdom;
(i)In payment of the balance to the husband.
That upon the payment to the wife of the sum referred to in Order (1)(h), she shall do all things and sign all documents required to transfer to the husband, at his expense, her right, title and interest in the property in the United Kingdom and the husband shall indemnify the wife in relation to any and all liabilities secured over that property.
That the application for a child support departure order be dismissed.
That the father be restrained from attending upon the mother’s place of residence, any place where the mother is employed and any school attended by the children from time to time.
That the mother have sole parental responsibility for the children X born … 2009 and Y born … 2012.
That the mother notify the father of any proposed decision relating to the long-term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six (6) weeks prior to a final decision being made and take into consideration any views expressed by the father, in writing, about the proposed decision.
That the children live with the mother.
That the time that the father spends with the children pursuant to these Orders shall be supervised by an agency, organisation or person who is agreed upon by the parents at the cost of the father.
That the children spend time with the father on one occasion each calendar month for a period of three hours and, in the absence of agreement that time will occur on the first Sunday of each month excepting the month of December when the time will occur on Christmas Eve.
That the father notify the mother at least 14 days prior to each occasion of supervised contact where the contact is to occur and at what time and the mother will cause the children to be delivered to the supervisor at the commencement of each period and collected from the supervisor at the end.
That the children be permitted to communicate with the father by email, telephone or video call at any reasonable time and the mother shall, at the request of either child, facilitate such communication.
The mother shall:
(a)provide the father with and keep him advised of the names and addresses of the children’s treating doctors;
(b)inform the father in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to either of the children; and
(c)ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to either of the children, within 14 days of the receipt of the report;
(d)ensure that the father is notified as soon as practicable if either of the children is admitted to hospital; either of the children is involved in a medical emergency; or either of the children will be required to take medication when they spend time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the children are to spend with the father;
(e)authorise any treating doctor or specialist medical consultant of the children to discuss the children’s medical condition, prognosis and any medical treatment with the father.
That the mother shall authorise any school which the children are attending from time to time to provide both the mother and the father with:
(a)copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on school progress and behavioural issues; and
(b)any information which may be sought from time to time by the mother or by the father in relation to the children’s education.
That the mother and the father notify each other of any change in residence, telephone contact numbers and email address, such notification to be made in writing and within twenty-four (24) hours of any change.
That the mother notify the father of the name and address of any school the children attend and any place of work where she is employed or works as a contractor.
That the mother and the father are restrained from discussing these proceedings in the hearing of or presence of either of the children; speaking about the other parent or the other parent’s family or members of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children; and shall take all reasonable steps to prevent any other person discussing these proceedings in the hearing of or presence of either of the children or speaking about the other parent or the other parent’s family or members of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
That the father be restrained from photographing or videoing either of the children in full or partial state of undress; and publishing or sharing any photograph or video of either of the children or the mother (including on any website or social media platform) without the prior written consent of the mother.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in 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 Houghton & Houghton 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 977 of 2017

Ms Houghton

Applicant

And

Mr Houghton

Respondent

REASONS FOR JUDGMENT

Ms Houghton (“the mother”) and Mr Houghton (“the father”) are the parents of two children, X born in 2009 and Y born in 2012 (“the children”).
The father is a professional photographer. The mother has not been in paid employment for most of the children’s lives and has been their primary carer.
The children live with their mother and have time with their father for three hours each week under professional supervision.
The parents commenced their co-habitation in December 2005 and married in 2007.
The proceedings before the Court relate both to the parenting of the children and to financial matters.

PARENTING

The relationship between the parents began to unravel in March 2015 when the mother found a cache of photographs and videos which she found upsetting. The circumstances surrounding this event will be considered later in these reasons.
After March 2015, the mother asserts that they occupied separate rooms and did not resume a sexual relationship. The father disputes that assertion and says that, although he had a separate room, their sexual relationship resumed occasionally. As is later explained in these reasons, the relationship broke down at that time and was never really resumed although the father hoped that it might be.
The mother contends that the relationship formally ended on 6 June 2016 when she asked the father to leave the former matrimonial home. The father does not accept that the relationship ended on that date although that was not what he told the Single Expert Psychiatrist (“Single Expert”).
It is common ground that, from 6 June 2016, the mother, on a number of occasions, asked the father to leave the house and looked for alternate accommodation for him. The father did not want to leave and sought to maintain a household that included both parents and the children, whatever might have been the state of the relationship between the parents.
On 8 October 2016, there was a violent incident which occurred in the mother’s bedroom and partly in the presence and hearing of the children. There are competing versions of the event which was recorded by the father in an audio recording which lasts for some 51 minutes.
In November 2016, and again in December 2016, the mother holidayed in Country E. She met and formed a relationship with Mr F.
In January 2017, the mother travelled again to Country E and spent time with Mr F. The father contends that it was when, on 5 January 2017, he received a text message from the mother alluding to their separation, that the marriage ended.
The mother returned to Australia on 9 January 2017. The father picked her up at the airport, wishing to discuss with her the state of their relationship. After they arrived home, an incident evolved, which saw the mother sustain serious injuries requiring hospitalisation and surgery, when a car, driven by the father, ran over her leg. The father was charged with dangerous driving occasioning grievous bodily harm and assaulting the mother. The event has assumed a central role in these proceedings.
Despite the father’s guilty plea, the circumstances of that event are disputed and will be considered later in these reasons.
The father did not return to the home. After the mother was discharged from hospital, she lived in the home with the children, assisted by a nanny paid for by the third party insurer of the car.
The father saw the children for brief periods in the company of members of the mother’s family and friends.
On 22 March 2017, orders were made by consent for the father to spend time with the children for three hours each week, supervised by G Service, an organisation which provides professional supervision.
On 14 August 2017, the father pleaded guilty to the charges and a Final Apprehended Domestic Violence Order was made for the protection of the mother for a period of one year. The father was sentenced on 27 September 2017. He received a suspended sentence of one year’s imprisonment and was disqualified from driving for one year.
The mother suffers from Post-Traumatic Stress Disorder (“PTSD”) and is in therapy with a psychologist and a treating psychiatrist.
An Independent Children’s Lawyer (“ICL”) was appointed for the children.
Dr C, a consultant child and family psychiatrist, was appointed as Single Expert to prepare a report and interviews were scheduled for 3 and 4 September 2018. Shortly before the interviews with Dr C, the mother found a hard disk containing more photographs. The father asserts that the hard disk was connected to the family television set and was used for watching movies down loaded from the internet and storing family photographs.
The nature of the photographs on that hard drive, and the photographs seen by the mother in March 2015, was a matter for consideration by Dr C and an issue in the proceedings.
The mother sought orders that the father have no time with the children or, in the alternate, that his time be permanently supervised.
The father represented himself in the hearing, although his affidavit material and application had been prepared by lawyers. He sought orders for equal shared parental responsibility and equal time.
In cross-examination, he conceded that his position was untenable and that he would be content with overnight, unsupervised time with the girls each fortnight.
His position appeared to have changed again in submissions where he sought an increasing regime of time which, after 25 weeks, would have the children in his care on Wednesday afternoon after school until 6.30 pm and on alternate weekends from after school Friday until Monday morning. From January 2021, he sought orders for the children to spend half of all school holidays with him.
Thus the determination of the parenting dispute proceeds on the basis that the mother is the undisputed primary carer for these children. The issue for determination is whether the father should spend time with them and, if he does, under what conditions.
When the matter came to trial, the father was seeing the children for three hours each week, supervised.
The mother’s case is that unsupervised time with the father poses a risk to the children which is unacceptable.
The risk she asserts arises from a number of factors:
·    The mother’s PTSD and her ability to cope with the children’s spending unsupervised time with the father.
·    The father’s history of family violence culminating in her being run over on 9 January 2017 and the risk that he might pose of violence to the children.
·    The father’s propensity for taking inappropriate photographs, particularly of underage and adolescent girls.
·    The father’s parenting style which the mother characterised as parenting by fear.
It is the father’s case that:
·    The mother has exaggerated the allegations of violence.
·    The photographs of which the mother complains are innocent.
·    He denies the allegations that he has disciplined the children by frightening them.

THE REPORT OF DR C

Dr C interviewed the family on 3 and 4 September 2018.
In relation to her observation of the children with their father, Dr C stated that the girls separated happily from their aunt in the waiting room and came to their father in her office. She noted that the reunion was positive but the three of them were slow to relax. Dr C observed the father interacting with the girls and when the session was finished she noted that the girls briefly cuddled their father farewell with X noted to quickly separate from him.
In relation to her individual assessments of the children Dr C noted, in relation to Y:
Y presented as a bright attractive outgoing six year old with a positive disposition. She was forthright and showed no reservation about being seen alone.
As she was seen following the assessment with her father she was asked how it had been to see Dad. With a big smile, she used both hands to give the “thumbs up” sign.
To an enquiry about any “worries, problems, upsets” in the family, Y responded she was upset when Dad left her outside while it was raining and she had not done anything wrong. She indicated she remembered him doing this and “can’t stop, get it out of my head”.
To a query if anyone else in the family can’t get it out of their head, Y referred to X, as he did “the same thing” to her, and Mum. She reported “Dad was kicking Mum, really hurt and she cried. Kicked in the stomach”.
Y said she did not see this alleged incident, which occurred in the bedroom. She knew about it because “Mum told us”.

I note that there was an incident on 8 October 2016 when the mother alleges that the father kicked her in the stomach and both parties agree that the girls were in the room. The father denied that he kicked the mother but conceded that he pushed her forcibly with his foot.
Dr C asked Y to draw a dream and Y drew herself dreaming about living with her father. Asked if she wanted to live with her father Y said “No. There’s meant to be a supervisor. When I was littler, he was very mean to us, so I feel it will happen if he lives with us”. Y told Dr C that her dream was a bad dream about her father being mean, and not letting her see her cousins. Y said that she was worried that because this has happened in the past it might happen in the future and that she shared her worry with X.
Asked to draw a good dream Y wrote “Dad being nicer than before” and acknowledged that her father was nicer now adding “because there’s a supervisor and he doesn’t want to get into trouble”. Y told Dr C “Dad always been mean … pretending to be nice when got married”.
Given three magic wishes Y did not include her father in any of the wishes. Asked if she could change one thing in her family Y decided “Dad to come back home”. Y said that she didn’t know if anyone else wanted this to happen.
Y told Dr C that she spent time with her father on Saturdays and when asked if she wanted to spend more or less time now she said that she would like to keep “the same”. To a query about sleep overs at her father’s place Y said that she was “not sure”.
Of her interview with X Dr C reported:
Returning to the question raised when the girls were seen with their mother, X was asked about any “worries/problems/upsets” in the family. She thought before replying “I get upset sometimes, I’m anxious when I talk about, can’t remember what it was”.
Asked how she felt when “anxious”, she described feeling “worried and scared”. She reiterated she did not remember what made her feel this way.
Asked what it was like seeing Dad at the assessment, X reported “good” before adding “now I will have a nightmare, always do” after seeing him. She thought they occurred because once, when she did “not do something right” Dad showed her two goats taking children away in bags.
X stated because she did not want to wear her underpants to bed Dad showed her “before” and “after” (she was not sure of what) photographs of a pretty lady who turned into a scary ugly looking one. Dad told her “this is what happens if you do not wear” [underpants]. She indicated her nightmares were about these images and “so many other things”.
While actually with Dad, X felt “sort of fine sometimes”. At other times, she felt “scared for some reason” and could not identify what she feared.
…
For the dream of a sleeping girl, X drew her own Nightmare, which she last had “a few days ago”. She portrayed two angry looking goats “taking the children which did not do what someone wanted” in bags.
X did not include her father in any of her wishes and asked if she would like her father to be there she replied “He always shouts” and said she didn’t want him there.
Asked if she could change one thing in her life X said that she didn’t know and asked if anything could be better than it was currently she replied “nothing”.
Dr C asked X to identify four emoticons and to say who or what made her feel this way. X chose “happy”, “angry”, “surprised” and “sad”. For the happy emoticon she identified “my family and my friends”, indicating that she was referring to her maternal family.
In relation to the angry emoticon X nominated Y and “dad. He says mean words to me and Y”, saying “shut up” to her and “put us outside on the step when it’s raining, if we do anything slightly wrong”.
In the surprised emoticon X nominated her maternal grandparents, her mother and sometimes her sister.
For the sad emoticon X stated “Dad”, for the same reasons he made her angry. “He once said to stay in the room for one hour…left me there the whole day” when she was about six years old.
To an enquiry about whether she knew anything about Court X denied knowing anything and asked if she would like to change anything about the time she spent with her father X thought “less, maybe every fortnight”.
Dr C asked X if she would stay overnight with her father for a weekend and X responded: “just the park, no sleepover. He’ll probably get me very angry and make me sleep in the same bed as Y”. X added that she didn’t like his father’s two cats and his big dogs.
Dr C suggested to X that she wouldn’t get to know her father very well if she spent less time with him and X argued that she could “Facetime” with him every Sunday and Wednesday. X thought that Y would agree with her position and reported that her mother had said “whatever you and Y want”.
Dr C asked X if she worried about her mother and X responded:
“Sometimes. She gets sad…she cries, (which) makes me said too”. When X reassured her mother and asked what was wrong, her mother will say she did not want to tell her.
Dr C asked X to draw the family doing something, including the really important people to her. She did not include her father in the drawing, acknowledged that he was not there and denied that he was important to her.
In relation to her assessment of the mother Dr C reported that the mother became significantly distressed while describing the 2017 car incident in which her leg was fractured.
The mother told Dr C about her concerns about the father taking photographs of under aged girls. Dr C reported:
[The mother] mentioned “historically he has taken videos of under aged girls, followed them around” before relating how, the previous evening she “discovered a hard drive of inappropriate photos of (her) and the girls”. She added possibly this was also why she was “a bit emotional today”.
To a query what was “inappropriate”, [the mother] reported on a photograph of her through the key hole in a door. She said she was “just out of the shower” and had a towel wrapped around her waist before adding the photograph was taken from behind her…
Referring to photographs [the father] took in 2015, she stated they were some of thirteen to fifteen year olds in bikinis and of a girl in a junior school uniform in a doctor’s surgery. She described how the girl looked, the uneven hem line of her uniform and reported [the father] followed her (and an accompanying adult) outside.
She alleged he also followed and videoed a girl aged about fourteen in a Mall and photographed others having ice-cream with friends at a beach. She opined his photographs and videos were “creepy, sexualising children…focus on bottoms, legs, breasts…not art, creepy”. She had not seen any child pornography on the computer but reported there were google searches for “teen porn” and “teenage girls’ porn video”.
Dr C reported:
To an enquiry what outcome she hoped for from the proceedings, [the mother] responded “no contact” between the girls and their father because of his “mental health and instability”, including depression, anxiety, threats of suicide, things the girls said and his use and abuse of prescription drugs. She declared that he had “no remorse or accountability” that any of what he had done was “wrong”.
Dr C reported:
Continuing with her reasons for wanting no contact, she declared all the things he has done to me. He nearly killed me but none of it is his fault…He needs to accept he needs help.
The mother told Dr C that the children need to be kept safe from the father’s temper and emotionally damaging behaviour and she stated when the girls don’t do as the father wanted “he uses fear and intimidation to control them”.
The mother described the father as being “clever and manipulative…very charming”. Dr C noted that the mother reported to her an occasion when the father drove X into the English country side and left her with a bag of bread telling her that her new family would come for her and that X was frightened on that occasion. Dr C was also told by the mother about the occasion when X refused to put on her underpants and the father googled before and after pictures of a “crack addict” and showed them to X. She recalled that X was about four years old.
The mother told Dr C that X was afraid of security cameras because the father would ask her if she had cleaned her teeth and whether he needed to check the cameras. The mother said that X had refused to participate in her first school swimming carnival in term 1 of 2018 because the father had told her there were cameras watching her.
The mother told Dr C that when the children were watching ‘Charlie and the Chocolate Factory’ the father told Y that the workers in the factory were naughty children who were sent there to work for the rest of their lives and that when Y had a tantrum when she was aged two or three years the father would ask whether he needed to call the chocolate factory.
The mother told Dr C that X recalled the father showing her a photo of a “slender man goat” that took children away in a bag and telling her “that’s what happens to naughty children”.
Dr C reported in relation to the mother:
Discussing the degree of distress she was manifesting as she related these events, she declared she was “still so triggered” and was seeing psychologist…and psychiatrist. They have said until she became “less triggered, they can’t do EMDR” (eye movement desensitisation and reprocessing therapy designed to diminish negative feelings associated with memories of traumatic events) on her.
Declaring “I don’t want to be like this”, [the mother] referred to “the physical response my body has…get a period every time I’m in the same building as him, don’t sleep very well, my hair stand up when I see him, I can’t breathe and go into panic mode”.
She reported she was given techniques to manage flashbacks and memories. As she had now spoken about the event to me, she felt her breathing was “lighter”. She thought [the father’s] allegations about her was a “way of blaming me”.
In relation to her assessment of the father Dr C stated:
Explaining the order for a psychiatric assessment, [the father] said “because of my depressive state, episodes I had in the past, especially on separation from [the mother]”. Other reasons given were [the mother’s] allegations of inappropriate photographs (taken in 2015) and the incident with the car and [the mother], which was “an accident, listed as domestic violence (DV)”.
Dr C asked the father how the current situation had come about and noted that:
… [the Father] reported in mid-2015 he and [the mother] “essentially separated” but lived under the same roof. He stated he always hoped they would both make an effort to keep the marriage and family together.
Asked by Dr C about the allegations made by the mother in relation to his behaviour towards the children the father denied that he had made the girls sit outside in the rain, that he had kicked X, that he had shown X the before and after images of a “crack addict”, that he had told Y that the creatures from ‘Charlie and the Chocolate Factory’ would get her or that he had showed X pictures of the slender man goats.
Dr C asked the father about the mother’s allegation that he had threatened X by leaving her in the country side and the father reported that he and the mother had discussed X’s poor behaviour and agreed to give her a “short sharp shock” by driving her a little way from the farm where they were staying in England. He said that had put X out of the car but did not drive off and leave her. X would have been around five years old at the time of this incident in 2014.
Dr C reported that:
X and Y are vulnerable children given their experience of living in an environment with intimate partner abuse between their parents (which culminated in their mother being harmed by their father in the 2017 car incident), the breakdown of their family, ongoing parenting by a traumatised mother, the continuing acrimony between their parents and the loss of their father.
In relation to Y Dr C stated:
Y presented as an age appropriate six year old who is attached to both of her parents. She monitored her mother’s emotional state as she alleged her father kicked her mother and lied. As [the mother] become teary she asked Y “Do you want to cuddle?” and Y quickly went to comfort her. This interaction is concerning if there has been chronic role reversal, with the child comforting the parent, rather than the reverse.
Dr C quoted that while assessed with her father, Y:
… engaged with him in an easy-going and playful manner. There was no evidence of the “worry” she expressed about seeing him while she was with her mother. She wanted “Dad to come back home”.
Of note, during her individual assessment, Y acknowledged feeling happy about seeing him but again referred to him kicking her mother, being “mean” and the need for his time with them to be supervised. She explained he was nice “because there’s a supervisor and he doesn’t want to get in trouble” and stated he was “pretending to be nice when (her parents) got married”.
The latter two comments are too sophisticated for a six year old and suggest Y has heard something similar said by an adult. The discrepancy between her statement she was worried being with him and how she engaged with him raised concerns Y felt a need to make negative reports about him to please her mother.
In relation to X Dr C reported:
X presented as a concerning nine year old, although she has given her teacher no reason to be concerned about her. X expressed ambivalent feelings for her father and overall was rejecting of him during this assessment. Of note, she did not include him in the family drawing and denied he was important to her.
X’s wish to reduce her time with her father is understandable if her alleged experiences of him using fear to reprimand and control her are factual. If this is not the case, she has become aligned with her mother, whose anxieties are influencing her relationship with her father.
Dr C spoke to X’s play therapist, social worker Ms DD, who at that time was seeing X weekly. Ms DD told Dr C that X had raised the issue of not feeling safe when her father is angry. Ms DD said that the mother had given positive feedback to X and had not spoken inappropriately about the father.
In relation to the mother Dr C stated:
[The mother] presented as a committed parent who, unfortunately, was observed to use Y’s cuddles to comfort herself. Both girls appeared attuned to her emotional state and try to reassure her, which role reversal should not be encouraged (although clearly children need to be free to express empathetic feelings).
[The mother] has continued to experience traumatic feelings arising from the 2017 incident, during which her leg was fractured. She believed “he nearly killed” her and appeared appropriately distressed as she recounted her version of events, which ultimately resulted in her falling beside a moving car, which then ran over her leg.
Dr C reported of the mother:
She did not demonstrate an awareness that the girls may have been influenced by her fears and anxieties. [The mother] will need to continue her therapy, to assist her to contain her distress while coping with the fact there will always be risks; safety is a relative concept. Orders will need to assist her by providing for a living arrangement which does not exacerbate her anxiety beyond her capacity to manage it.
Dr C commented that it was understandable that the mother’s experiences and perceptions of the father’s behaviour have resulted in her losing trust in him and fearing that he will abscond with the children.
Dr C spoke to the mother’s psychologist who confirmed the diagnosis of PTSD and described the mother as becoming emotionally dysregulated when she felt unsafe.
The mother’s psychiatrist told Dr C that he had seen the mother twice in 2018 and indicated that she had a diagnosis of PTSD and was experiencing severe anxiety and flashbacks.
In relation to the father Dr C reported that the father believed he only had difficulties with conflict resolution while engaged with the wife. The father alleged that the mother was the main instigator of any abuse between them, including assaulting him by scratching him. He acknowledged that he contributed to the conflict by similarly name calling and swearing.
Dr C stated:
Notably, [the father] failed to mention significant details about his actions, for example retaining [the mother’s] ID cards after the car incident, missing Face Time calls with the children, allegedly interfering with her use of credit cards by intermittently stopping them (during their relationship) and being in arrears with the child support. Concerningly, when he returned the car to the family, it was in a neglected, possibly dangerous state.
There have been several reports of [the father] attempting to control or punish the girls by inducing fear in them: such behaviour reflects empathy failures by him. He acknowledged the incident of threatening X with abandonment (placing her by the side of the road for another family) but asserted [the mother] agreed with this strategy.
His actions on that occasion were abusive towards X. However he alleged [the mother] was the parent who wanted to frighten X into compliance by lying and showing her a gruesome image of an “ice” addict, which action was also abusive.
Dr C stated that she was unable to make a finding about which parent was responsible for those incidents.
Dr C stated that failing to pay child support, returning the defective car and perpetrating any form of family violence were suggestive of a self-absorbed, insensitive personality of the father.
Dr C considered that the father’s denial that the marriage had ended in March 2015 was remarkable. She stated:
For whatever reason, he was unable to consider the adverse impact on the children and [the mother] of his failure to cope with this loss as he remained living in the family home.
Dr C reviewed the 18 months of reports on the time between the children and the father supervised by G Service and noted that they demonstrated the father had a capacity to appropriately attend to his children and an ability to tune into the girls emotional states and respond to them in an empathetic manner. Dr C stated:
From this, I conclude that, when not stressed and perhaps through experience and because the girls are older, he has capacity to parent the children (for at least a limited time) without using the coercive strategies previously implemented. I have not seen evidence he has tried to undermine the children’s relationship with their mother.
In relation to her final recommendations about the children’s living arrangements Dr C stated:
Given(i) [The mother’s] ongoing traumatic arousal triggered by the children’s father and her fears (whether rational or not) for the girls’ safety.
(ii) [The father’s] historical insensitivity towards X.
(iii) The allegations of marked family violence perpetrated by [the father] and (to a lesser degree) by [the mother].
I cannot support [the father’s] hope for equal shared care of the children. It is also unlikely that [the mother] could tolerate shared parental responsibility in the short to medium term (at least).
Dr C opined that the children’s time with the father needed to increase and eventually become unsupervised but stated that the risks in taking this course were:
(i)[The mother’s] anxiety will heighten and adversely affect her parenting, particularly if she continues to reject medication which would assist her to regulate and stabilise her reactivity to the girls’ time with [the father]
(ii)If [the father] is the egocentric, insensitive perpetrator of intimate partner abuse and child abuse, as alleged by [the mother]. The domestic violence literature reports a significant majority of domestic violence allegations in family proceedings are not fabricated and, without the perpetrator making changes, the abuse may continue in his/her relationship with the children.
(as per the original)
Dr C noted that there was at least one past incident of inappropriate parenting by the father and that X’s therapist described X as expressing fear of his anger.

Dr C did not support the father’s spending time with the children without supervision at the present time but stated:
However, provided there are no judicial findings that [the father] is a risk of harm to the children and once the family has engaged with a family therapist for at least six sessions (after the proceedings have been finalised, then increasing their time together and reducing the supervisory conditions could commence, for example weekly day only time together accompanied by the children’s god parents or any other reasonable adult.
After six months, overnight time to commence (with another adult present and available to the girls) provided the children have not become symptomatic and the involved therapists have not assessed a need to make a mandatory report to FACS.
After twelve months, with the same conditions about the children’s mental health and absence of notifiable conduct in the parents, then day only unsupervised time could commence and progress to unsupervised overnight time (starting from after school one day to before school the next day).
Thereafter their time together to be incrementally increased until the children are spending three nights a fortnight with their father.
(as per the original)
Dr C did not hold to those recommendations in cross-examination.

FAMILY VIOLENCE

The allegations of family violence fall into a number of categories:
·    Physical violence towards the mother.
·    Controlling, manipulative and coercive behaviour towards the mother.
·    Intimidation of the children.
In these reasons, each of those categories will be considered.

PHYSICAL VIOLENCE TOWARDS THE MOTHER

There was an incident on 8 October 2016 at the family home. Both parents gave his or her version of what occurred. The father recorded the incident. The incident occurred at a time when the mother deposed, that the parents were separated and using separate bedrooms.
The mother deposed:
On a date in October 2016, [the father] went into my bedroom and got into my bed. I said to [him] “You can’t get in the bed. You’ve got the spare room to sleep in”. [The father] said “No, the bed’s not comfortable. My back is really sore”. I said “Well if you don’t want to sleep in the spare bed, you can go to your studio or a hotel”. [The father] said “I don’t want to. It’s my home I’m not going anywhere. If you want me to go, you leave”. I said “Fine, I will”. I saw [the father] recording me with his phone. I said “Are you recording me? If so, you should stop because I don’t consent.” I walked over to him to grab his phone. [The father] kicked me in the stomach and said “You get out”. As I tried to push his leg away, I scratched him. X and Y had walked into the room and they started to cry. I gathered them up and said “Come on girls, don’t worry, just grab your shoes, we’ll go and stay with [the maternal grandmother]. I otherwise attempted to shield the girls and did not say anything to them about their father. …As I was getting the girls together, I could see [the father] using his phone. I said to [him] “What are you doing?” He replied “I’m cancelling your credit card”.
The father denied that he had kicked the mother but, in cross-examination, conceded that he had pushed her with his foot with force.
The mother deposed that she took the children to her mother’s home and stayed there for a few days. Because her credit card had been cancelled the maternal grandmother provided her with money to buy food and groceries and a small amount of spending money.
The father’s version of the incident was that the mother had been drinking in the living room and that he “retreated to the bedroom”. The bedroom to which he referred was the master bedroom then used by the mother. He said that the mother came into the bedroom and shouted at him, waking the children who were asleep in their own beds. The children ran into the master bedroom. The mother shouted at him to get out and he refused. He deposed:
When I refused to leave, [the mother] scratched my leg so hard that it bled. I observed the children to cower underneath my arms. [The mother] said to the children words to the effect: “Daddy is going to leave now”. I replied to the children words to the effect: “It’s okay, I won’t leave you”. I recall that X said to [the mother] words to the effect “Please don’t make Daddy leave” and “Stop Mummy.”
[The mother] said to the children words to the effect “He’s no good for you. You’d be better off without him. He calls me names”. I recall that X replied with words to the effect “You call him names too. How would you feel if he told you to leave? He loves us”.
[The mother] then told the girls to go back to their bedroom and closed the door and started to speak more softly.
The father did not include in his affidavit the fact that he recorded the incident. Nor did the father include in his version of that event the fact that, as he conceded in cross-examination, the mother told him that she had booked a hotel room for him and that she wanted him to leave the house. The father said that he then cancelled his credit card which had been used for the booking so as to invalidate the booking. In cross-examination, he conceded that cancelling his card had the effect of cancelling the mother’s supplementary card and depriving her of access to their joint bank account. He said that the mother could have gone to the bank in person with appropriate identification and withdrawn cash over the counter. This answer was somewhat disingenuous given that 8 October 2016 was a Saturday and the bank was not open on the following day.
When, in cross-examination, it was suggested to the father that on 8 October 2016, all of the mother’s credit cards had been cancelled, he said that he didn’t know if that was so.
The recording was not made available to the mother’s solicitors and the father sought to introduce it into evidence after his cross-examination and the cross-examination of the mother had been completed. Because the recording had been the subject of cross-examination, both of the mother and of Dr C, by counsel for the ICL, it was allowed into evidence. The father was permitted to re-open his cross-examination of the mother in relation to the recording.
The recording clearly shows that the mother objected to being recorded and repeated her objection on a number of occasions.
The recording lasts for 51 minutes and for much of that time the children are present and can be heard. Also for much of that time the children’s distress is palpable. Both parents involve the children in the dispute and neither moderates his or her behaviour in the children’s presence.
The recording clearly demonstrates that the father is calm and controlled throughout the incident. The mother is not.
In the recording, there is discussion about the photographs and videos discovered by the mother in March 2015 to which reference is made later in these reasons. The children were present during that discussion. Neither parent made any attempt to shield them from this highly inappropriate topic.
Dr C did not listen to the recording but she was asked a number of questions about it, assuming the description of the recording given to her by counsel for the ICL.
Dr C, in relation to the father’s recording this altercation, said:
I think it’s totally inappropriate, that the conversation should go on like that with everyone so distressed. There – that he should remain calm and not be tuned into – I mean there seems to be a disconnect with – he’s trying to make a point with the mother. He’s, certainly, disconnected from the children and the distress of the children....
So that’s again not thinking in terms of empathy about her position. I know – I’m not being definite about it, because I don’t know – I need to know exactly what – whether – but his keeping calm is – would be unusual, especially for a 50-minute altercation that’s going on – verbal altercation. His failure or their failure to be able to bring it to a close and say, you know, “This is doing none of us any good” is a major concern...
...something that sort of is significant is he starts the recording. He does – he deliberately records this. And that to me is not the behaviour I would expect from someone who is dissociated under a stressful environment, that he has actually still got – he’s still doing something that, he thinks, will be of benefit for himself, that there is – he’s acting in a way that he feels beneficial for him with complete disregard for the other, his wife and his children. And I find that psychopathic here.
In cross-examination, counsel for the ICL suggested to the father that he could have put an end to the incident at any time, simply by removing himself from the room but that he was so determined to gather evidence against the mother that he lost sight of the distress being caused to the children. The father did not concede this. He said that his only thought had been to calm the children because they seemed so distressed. The ICL’s proposition is valid.
Dr C described the father’s behaviour in this episode as disconnected and psychopathic.
The recording demonstrates the father’s willingness to pursue a goal (in this instance of recording the argument) regardless of the effect upon any other person and, in this instance, regardless of the children’s distress.
The mother was asked in cross-examination, by counsel for the ICL, what she feared might happen if the father had unsupervised time with the children. She said, inter alia, that she was afraid that the father might want something so badly that he would ignore the effect of his pursuit of that aim on the children, in the same way as he had ignored the danger to her in his pursuit of the photographs on her phone in January 2017.
This recording demonstrates what the mother feared might happen – the pursuit of a goal without regard to the effect on others.
Dr C said that the father’s denial of physical violence was psychopathic. She said:
If he kicked her, he’s – to me, he has been psychopathic. He’s trying to say, “You’ve got it wrong. You don’t know the experience you had. You’re manufacturing something”, when she’s not. It’s a form of gas-lighting, I suppose, where someone is trying to say, “You’re the crazy one here; you’ve lost contact with reality. This is what really happening. All I did was push you with my foot”. If that’s what really happened, if he did kick her, he’s being totally what I would say psychopathic, he’s not considering the distress he’s causing her.
There was physical violence towards the mother on that occasion, whether she was kicked as she said, or pushed with the father’s foot as he said. More importantly, the circumstances of the argument and its recording by the father, and the involvement of the children in that altercation by both of the parents, were extremely psychologically abusive of the children.
On 9 January 2017, the father drove over the mother’s leg.
As a result of being run over the mother suffered a compound fracture of the left leg, multiple bruising and abrasions. She was hospitalised from 9 January to 11 January and again on 17 January 2017 when she underwent an open reduction and internal fixation of the fracture. The plates and pins were removed on 14 May 2018. The insurance company covered the cost of a nanny for 20 hours a week to assist with the care of the children between 20 January 2017 and 2 June 2017. She continues to suffer from PTSD.
In cross-examination by the father, the mother said she believed that the father deliberately ran her over and that it was, in part, pre-planned by him. She said that her reasons for believing that the incident was planned were that he:
·    Messaged her and offered to pick her up at the airport.
·    Reversed the car into the driveway when they arrived at the house.
·    Had already gathered her computer and charger and put them in the car.
·    Pushed her out the door and locked her out when he was already positioned to get away quickly.
The mother said that she jumped on the bonnet before the father turned the car on because she didn’t think he would be crazy enough to start the car.
When the father, in cross-examination, suggested to the mother that he was trying to avoid an accident she replied that he was trying to take her belongings at all cost.
When he suggested to her that it was clearly not his intention to run over her she replied that he continued driving with her hanging on to the car and that he had left her on the road deliberately.
Whatever may have been the father’s subjective intention at the time, the mother’s belief that he had, at least in part, planned to drive off with her computer and phone, was not unreasonable.
The father was charged with multiple offences and pleaded guilty to dangerous driving causing grievous bodily harm and assault upon the mother.
The father also pleaded guilty to reckless damage of the wife’s property including downloading and deleting information from her phone.
The father agreed, for the purpose of sentencing following his guilty plea, to the following facts:
The accused [the father] at about a quarter to 12 in the morning of 9 January, picked up the complainant [the mother] from Sydney Airport following a holiday; upon arriving, the complainant opened the back door and let a pet out. As this occurred, the complainant stepped through the door, the accused then locked the door. The accused picked up the complainant’s mobile phone and bag of belongings that she had returned with from overseas.
The accused moved out the front door of the house, and as this occurred the complainant pursued him by moving up the side of the house. The accused entered the driver’s seat of the car and locked the doors of the car whilst still in possession of the complainant’s mobile phone and personal possessions. The complainant jumped on the bonnet of the car; the accused asked the complainant to get off the car and refused to do so, began to slowly move the car out of the driveway while the complainant remained on the bonnet. The accused stopped on several occasions and asked the complainant to get off the car. Moving several meters, the accused got out of his car and moved the complainant from the bonnet. When the accused got back into the car, he wound the window partially down.
The complainant reached into the car across the driver’s seat in order to grab her belongings. The accused began to slowly move the car, as he did this the victim held onto the window area and proceeded to move along with the car. The complainant has screamed at the accused to stop and give her back her bag, which the accused has refused. The accused continued in a northerly direction along [the street] as the car neared a speed of 20 kilometres per hour; the complainant’s feet were dragging and the door opened slightly. The complainant lost grip of the car and fell to the ground. As a result of the event, an injury to the lower fibula and a full thickness abrasion to the left ankle; the fracture required surgical fixation. The medical opinion is that it will take some 12 months to fully heal.
(as per the original)
In cross-examination, the father conceded that he had put the mother’s computer in the car the night before.
It is notable that, on the agreed facts, the car was stationary when the mother climbed on the bonnet and the father drove off with her on the bonnet. In cross-examination, he agreed that he had driven, with her on the bonnet, for 60 meters down the street.
It is also notable that, on the agreed version of the facts, the mother was dragged down the street with the car reaching a speed of 20 kilometres per hour.
In cross-examination by Queen’s counsel for the mother, the father agreed that he had been “pretty determined” to get the mother’s phone and equally determined to keep it.
Pressed, he conceded that it did not cross his mind that the mother might be hurt when he drove off with her on the bonnet of the car and that he didn’t care.
Despite the fact that this was the version of the facts to which the father agreed for the purpose of the prosecution it was not the version of the facts which he gave to the Court, to Dr H, or to Dr C.
Dr C reported that, in relation to the incident where the mother was run over, the father told her:
[The father] reported he pleaded guilty to a charge of dangerous driving causing grievous bodily harm. He described how, during the incident, [the mother] was holding onto the car and running alongside it when she fell and twisted her ankle. The judge during his criminal hearing said he should have stopped the car but, he explained, he was trying to get to a safe place to stop.
On 20 February 2017 Dr H recorded what the husband had told her in relation to the assault upon the mother in the following manner “Scuffle @ car - pt being charged tho ex wife jumped on car bonnet”
In cross-examination Dr H said that she had not been told by the father that the mother had been seriously injured and had she been told that she would have recorded it.
In his trial affidavit, the father deposed:
When we arrived home, [the mother] stepped out the back door to let the dog out. I did not use force to push [the mother] out of the back door. When [the mother] stepped out onto the veranda, I locked the door behind her. [The mother] pulled the doorhandle off and threw it at the glass. Without thinking clearly, I picked up [her] bag with her iPhone sitting on top. I put it in the car. I recall that her laptop was already in the car.
I got into the car and locked the doors. I started the car and was driving out of the driveway when [the mother] jumped onto the bonnet of the car. I said to [the mother] words to the effect: “Get of the car”. She refused to do so. I also said to [the mother] words to the effect: “Why did you do it…?” I was referring to her relationship with Mr F.
The nose of the vehicle was protruding out into the street, with [the mother] clinging to it. To avoid any possible collision with oncoming traffic I slowly manoeuvred the vehicle on the other side of the road where there was a grass verge. [The mother] was on the right hand side of the bonnet so I thought this would be the most straight forward way of letting her off the bonnet.
When the car stopped, I said to [the mother] words to the effect: “Get off the bonnet”. I got out of the car and [the mother] continued to kick at me from the bonnet. I was able to hold her by the waist and remove her from the car.
After I had taken [the mother] off the bonnet, I got back into the car, wound the window partially down and started the engine. The car was quick to start because it is keyless and the engine can be started by simply pressing a button. [The mother] reached in through the open window on the driver’s side. Her bag was in the foot-well of the passenger’s seat so she could not reach the bag.
[The mother] scratched at my arms so I held her away from me and the car and tried to drive away. [The mother] then grabbed onto the steering wheel and attempted to steer the car into a trailer parked at the side of the road. I pulled the car away to avoid collision. I thought [the mother] had let go of the car and I sped up. I estimate that I was travelling at about 10-15 kilometres per hour for a short distance while [the mother] ran beside the car. [The mother] again grabbed at the window at the side mirror and, as she did so, tripped over and fell. [The mother] sustained injuries from the fall. As it happened, I was not aware that the tyre had come into contact with [the mother’s] leg. I did not hear or feel any impact. I looked out the rear view mirror and saw [the mother] on the ground but she did not look injured. By that I mean that I did not see any blood and I could not hear her screaming or shouting in pain. I also noticed that there were other people at the scene and I thought it was best if I went elsewhere and calmed down.
I drove back past the incident about 10 minutes later and saw a builder there. I said to him words to the effect “is she ok?” He said ‘She’s ok but if I was you, I’d get out of here.’ I handed him [the mother’s] bag.

The only enquiry that the father made as to the mother’s welfare was of the unknown builder. He did not speak to her or check for himself whether she had been injured, although he conceded in cross-examination that he saw that a number of people were attending to her.
What the father did not include in that narrative was the fact that after he had run over the mother he drove on for a distance then stopped the car and downloaded the photographs from the mother’s iPhone onto her computer, threw the iPhone out the window and drove off again. He then went back to the scene and spoke to the builder, and after he left he drove to the police station. There is no evidence of what the father told the police had occurred but he asserts he was told they did not wish to take a statement. He then drove to the studio and left the computer at the studio.
Dr C said, in cross-examination, that those actions on the part of the father demonstrated a disturbing lack of empathy. She said:
I think for him to become so organised that he can then download the iPhone into his computer while – after going through this – what, to the average person would be a very emotional arousing type of incident, whatever the emotion is, you’re in a highly aroused – emotionally-aroused state. For the average person who has had this sort of encounter to then be able to drive on and then calmly – well, we don’t know if he was calm – to be able to do that manoeuvre. It’s the cut-offness, it’s the lack of being able to even start to reflect in a, “What the hell have I done”, and, you know, “Is she okay”, or anything that suggests empathy and remorse and concern.
Dr C said:
...But for a person who is unable to process their highly-aroused feelings and need to dampen it down and detach for it, you’re looking at someone who, if this is a chronic pattern – and, again, when we’re talking about how people function, we must make sure it’s an ongoing pattern, it’s not just a one-off incident. But if someone does this on a regular basis, you’re looking at someone who can be – I suppose you’re looking at, sort of, someone who is rather psychopathic. They don’t have concerns for other people. They’re not bothered by actions that most people would show concern, empathy, whatever, fear. He cuts off and disassociates...
Dr C said that she would need more information, particularly about whether the father’s behaviour on that occasion was a “one off” or whether he gets into a driven state where he needs something to happen and does it, regardless of the consequences.
Dr C drew an analogy between the father’s behaviour in this incident and the recording on 8 October 2016. She said:
...he’s still doing something that, he thinks, will be of benefit for himself, that there is – he’s acting in a way that he feels beneficial for him with complete disregard for the other, his wife and his children. And I find that psychopathic here.
In relation to the disparity between the facts to which the father pleaded guilty, and her knowledge of the injuries to the mother on the one hand, and the father’s account of the event to her on the other, Dr C said:
I would be questioning his capacity for guilt, his capacity to accept responsibility and to get back to the capacity for empathy, for him to be able to become aware of that and sit with it. Even though he might have those capacities, are they so disconnected that he just can’t get in contact with them? Or does he not have them, which makes him the psychopath – a psychopathic person. Can he accept responsibility? Does he feel guilt? Because it’s fairly remarkable to say it’s a twisted ankle when, you know, the facts are out there. There was a fracture there. There were operations involved, that he should minimise that so significantly. I think there’s a disconnect there to how he can cause – what he can do. The pain he can cause others, he’s disconnected from that. Possibly because he might be overwhelmed by it. Possibly because he has no feelings or possibly because he could be overwhelmed by it, which would lead to his – him feeling badly about himself and being at risk.
Dr C also said, and I accept, that the father’s denials and description of that running over incident allowed the inference that the father’s descriptions of things which are adverse to his interests cannot be relied upon.
In relation to Dr C’s comments about the father’s capacity for remorse or empathy, it is notable that there is no evidence of any real attempt on the part of the father to make a sincere apology to the mother for the injury he caused.
Although he made reference to sending texts to the mother after the event, those texts were not in evidence and she did not acknowledge receiving them. He said that he had written a letter containing an apology which was tendered at his sentencing hearing but that letter was not in evidence and, in any event, it does not appear to ever have been given to the mother.
Nowhere in his trial affidavit did he express any remorse for his actions or any acknowledgement of the effect on the mother.
The father did not express remorse to either Dr H or Dr C. His explanation, recorded by Dr H, tends to suggest that the mother, not he, was at fault.
The father cross-examined the mother but did not, in the course of that cross-examination, tender any apology to her. Rather, the tenor of the father’s cross-examination of the mother and of his own evidence was that the whole event was an unfortunate accident and was caused by the wife refusing to get off the bonnet of the car.
When it was suggested to him that common decency required an apology the father said that, when he was able to do so, he sent a text to the maternal grandmother asking how the mother was.
At the conclusion of his cross-examination by Queen’s counsel for the mother, the father was prompted by Queen’s counsel to offer an apology and did so.
The father conceded that the events of 9 January 2017 caused the mother to be very sensitive to what he might do or say.
The mother contends that, after she returned home from hospital, during the period when the nanny was with her, and continuing until shortly before the trial commenced, there were a number of incidents that caused her to believe that the father had been coming to the home in her absence and spying on her.
She deposed to her car tyres being slashed on two occasions, the gas turned off, her car entered, things moved inside the house and, on two occasions, drones flying over the house and over the maternal grandmother’s house.
There is no evidence that the father was responsible for any of those events and he strongly denied any involvement. However, having regard to the mother’s heightened sensitivity to and fear of the father, it is understandable that she would believe that he is responsible.
The mother deposed:
Since the incident on 9 January 2017, I have become extremely anxious. I sleep much more lightly and I often wake up during the night and startle easily, both during the day and at night. I feel anxious a lot of the time and I am constantly fearful that [the father] will turn up unannounced at the house or start sending me messages. These fears are exacerbated by [the father’s] refusal to agree to an extension of the ADVO terms. I have recently found out that [the father] lives only a few kilometres from my home and this has caused me further anxiety.
The incident on 9 January 2017 was a serious physical assault on the mother causing her to suffer significant injury, both physical and psychological.

CONTROLLING AND COERCIVE BEHAVIOUR

The mother alleged a number of aspects of such behaviour. The most significant are that he controlled her access to money by cancelling her credit cards and that, after she was run over, he tampered with her computer so as to deny her access.
There are other examples.
The father admitted himself to the psychiatric unit attached to Suburb O Hospital on about 12 March 2015 and stayed there for approximately four nights. The mother deposed:
On the day of his discharge I received a call from someone from the hospital. That person said to me “you’re [sic] husband is here, he said he had suicidal thoughts, we have assessed him and we don’t believe he is suicidal. He has various other issues and we’re going to refer him to a psychiatrist. This is not a hotel and we have a teenager who is suicidal and needs a bad. We’ll have to discharge him. He said he has nowhere to go and he wants to return to you he said he will sleep on your sofa”. I felt I had no choice but to allow [the father] to come home.
The father sent a text to the mother on 15 March stating:
...crisis here, they need the bed for a young person in emergency case, they want to make a lady who isn’t as well as me to leave, I need you to please help by saying I can stay at home tonight or they will not let me leave and make this lady leave, I can sleep in the car just need you to say that to them?
After some other exchanges the mother queried “Are you sleeping in the car?” and the father replied “Don’t really have any other option”. The mother agreed that he could sleep on the sofa for one night only.
In cross-examination the father admitted that he had access to his credit cards and could, had he chosen to do so, have stayed in a hotel or sort other accommodation. He agreed with the proposition that he was really trying to persuade the mother to let him come back to the home.
The father’s behaviour on that occasion, in persuading the mother to allow him to return to the home, was manipulative and coercive.
The mother deposed:
From that time onwards, [the father and I] slept in separate rooms. At around this time I ceased to take birth control medication as we ceased being intimate. I remained in the main bedroom and [the father] slept in the spare room or the sofa. From this time, [the father] spent increasing amounts of time, including overnight time, away from the home. Sometimes, he stayed away for up to a week at a time.
The father told Dr C that in mid-2015 he and the mother “essentially separated” but lived under the one roof.
I accept the evidence of the mother that from March 2015, they were separated in that they both accepted that the marriage relationship was ended. However, I also accept that although the father hoped they could remain living in the same house, he did not believe that the marriage was still on foot but rather, as he told Dr C, that “he always hoped that they would both make an effort to keep the marriage and family together.”
The father conceded in cross-examination that at least by June 2016 the mother was keen for him to leave the house and was actively looking for accommodation for him as he was making no effort to find somewhere to live.
The mother deposed that when she was in hospital on about 10 January 2017 her mother told her that the father had been to the house to feed the dog and collect some of his things. When the mother was released from hospital on 13 January 2017 she found that her driver’s licence, Medicare card and health insurance card where not where she had left them. She also found that the hard drive to her laptop computer had been taken from where it was usually stored. At that time the father had access to the mother’s documents and backups on her laptop. The father retained the mother’s cards until they were returned to her by either Mr or Ms CC, friends of the family, on about 22 January 2017. The mother deposed “This caused me considerable anxiety at the time (it still does) wondering what he used my ID for.”
Both Mr and Ms CC swore affidavits in the proceedings. Mr CC deposed that on 21 January 2017 the father gave him some of the mother’s identification documents including a credit card, driver’s licence and Medicare card and requested that he return them to the mother.
The father gave no explanation for removing the mother’s documents of identification.
That action was, at least, controlling or, at worst, intended to intimidate or distress the mother.
Mr CC deposed that in late March 2017 he agreed to return the motor vehicle 1 from the father to the mother. Mr CC deposed:
I recollect that [the father] agreed to deliver the vehicle to my house at about 5.00pm on the Friday afternoon. [The father] delivered the vehicle to me at approximately 7.30pm. When I took possession of it the fuel tank was empty, the brake light warnings were flashing, the brakes appeared defective and the gear box was difficult to operate. I took the vehicle straight to [the mother].
In cross-examination by the father, Mr CC said that the vehicle was not in a fit state to be driven and he would not have allowed his wife and children to drive in it.
Dr C said that the fact that the father returned the car to the mother in an unsafe condition affected her general assessment of his risk to the children and that she considered his behaviour to be callous.
When the father returned the mother’s computer to her after she was discharged from hospital, she was unable to gain access to her files. The mother asserted that the father deliberately sabotaged her computer.
The mother engaged Dr J who is a digital forensic examiner to conduct an examination of her computer. Dr J reported:
·On 10 January 2017, the main account used by [the wife] was deactivated, so it does not appear as a selection for the user to log into at start up.
·The default user now resident on start-up is the user “[Mr Houghton]”, for which [the mother] does not have the password.
·On start-up it now displays the slogan “Is that better [Ms Houghton]”? and a password hint is also present that reads “cast”. This change occurred on 10 January 2017 at 14:20.
·The forensic software has identified that all the files in the profile, “macbookpro”, are still present and these have been exported and provided separate to this report on a USB drive.
·Without knowledge of the password for the account, “[Mr Houghton]”, using normal methods it is not possible to log into the computer, if it is known then the profile, “macbookpro” could be reactivated and then accessed in the normal mode of operation by the user.
·These actions are deliberate and would not occur through a virus or other similar action and have been done so, in an attempt to prevent [the mother] from gaining access to her own computer.
Dr J was not cross-examined. In so far as the father asserted that anything that he had done to the mother’s computer was inadvertent, I reject that evidence.
The father’s tampering with the mother’s computer was deliberate and designed to cause her distress.
Dr C accepted the proposition put by Queen’s counsel for the mother that this behaviour exhibited a psychopathic lack of empathy on behalf of the father.
The words “Is that better [Ms Houghton]” were designed to cause distress to the mother. The father in cross-examination said that those words had been placed on the screen by him on an earlier occasion when he had taken the wife’s computer to fix a problem. The father was aware of the evidence of Dr J when he swore his trial affidavit. Dr J had been a witness in the criminal proceedings. Having regard to the evidence of Dr J that the words were added the day after the wife was run over, I reject the father’s explanation. Accepting as I do, the evidence of Dr J, the father’s evidence must have been deliberately fabricated.
The father’s actions in relation to the mother’s computer were vindictive and cruel.
The mother alleged that the father blocked her use of credit cards from time to time as a punishment or to stop her spending money. He was the sole income earner and she did not have access to any funds of her own.
In cross-examination, the father conceded that, on a number of occasions he had blocked the mother’s credit cards although he denied that he did so as punishment.
He conceded that he had cancelled her K Bank card on 8 October 2016 and that he had cancelled her NAB card on 6 February 2017, at a time when she had been recently discharged from hospital and was recovering from her injuries. How the mother was to have access to any funds was not explained when she was not in a position to physically go to the bank.
I accept that it was likely that he blocked or cancelled her cards on other occasions. Whether he did so thoughtlessly, vindictively or in attempt to control her, cannot be determined. However, the effect on the mother is the same, whatever might have been the father’s motivation.

INTIMIDATION OF THE CHILDREN

Dr C reported that the mother told Dr C that the children need to be kept safe from the father’s temper and emotionally damaging behaviour and she stated when the girls don’t do as the father wanted “he uses fear and intimidation to control them”.
To Dr C, the mother described the father as being “clever and manipulative…very charming”.
The mother deposed that during a family trip to Europe in 2014 X was refusing to do something she was told to by the father. The mother deposed:
[The father] said he wanted to take [X] somewhere special; I assumed they would be going to the corner store for a treat. When they got back [X] was sobbing and shaking, she said: “Daddy said we were going somewhere special, and we went to a field in the country and he dropped me off with a bag of bread, but there was only a few slices in it, and he said my new family would come to pick me up, then he drove away”.
Dr C noted that the mother reported to her on the occasion when the father drove X into the English country side and left her with a bag of bread telling her that her new family would come for her and that X was frightened on that occasion. The father denied that he drove away from X and he said that it was the mother’s idea.
Dr C asked the father about the mother’s allegation that he had threatened X by leaving her in the country side and the father reported that he and the mother had discussed X’s poor behaviour and agreed to give her a “short sharp shock” by driving her a little way from the farm where they were staying in England. He said that had put X out of the car but did not drive off and leave her.
The mother in cross-examination, said that she was not present when the incident occurred and did not know of it until afterwards. The mother’s evidence about this incident was not challenged by the father.
On the balance of probabilities, I accept that the mother had no involvement.
Even if that is not correct, it was not the mother who carried out the discipline. That was done by the father alone. The action was abusive and harmful to X.
Dr C was very critical of the father’s behaviour on that occasion.
The mother told Dr C of an occasion when X, then about four years old, refused to wear her underpants. Her refusal extended over a few days and included a visit to the maternal grandmother at the beach house at Town L. The mother told Dr C that the father down loaded “before and after” photographs of a “crack addict” and showed them to X as a warning of what might happen to her if she didn’t wear underpants. The photographs were in evidence. The “after” photograph is frightening and would be so to a child.
The father denied that he had been the instigator and said that it was the mother who showed the photographs to X.
The maternal grandmother deposed that, in 2013, when the parents and X were at Town L, there was an extended period over Saturday and Sunday where the father tried to persuade X to wear underpants and she refused.
The family returned to Sydney on Sunday evening. The maternal grandmother telephoned the mother who told her that X was still refusing to put on her underpants and that the father had put her in her room and told her that she could not come out until she put her pants on.
The next day, Monday, the mother, in a telephone call, told the maternal grandmother about the father showing X the pictures and the mother later showed the pictures to the maternal grandmother.
The maternal grandmother was not cross-examined about that evidence.

I therefore find that the assets and liabilities of the parties are:

Ownership	Asset	value
Joint	Suburb A Property 1	$1,650,000
Joint	UK property	$338,550
Husband	NAB Classic Banking account #...53	$286
Wife	20% shareholding in V Pty Ltd Images Pty Ltd	-$2,985
Husband	80% shareholding in V Pty Ltd Images Pty Ltd	-$11,937
Joint	Motor vehicle 1 to be retained by the wife	$22,500
Wife	Household contents	$5,000
Husband	Household contents	$2,000
Husband	Photographic equipment	$10,000
Husband	Rental Bond for Suburb A Property 3	$2,700
Total	$2,016,114
Ownership	Liability	value
Joint	NAB Loan account #...93 (secured on Suburb A Property 1) as at 28 June 2019	-$739,811
Joint	AA Company T/A BB Ltd loan account #...53 (secured on UK property)	-$298,342
Joint	Debt to Z Bank UK	$1,744
Wife	Debt to Mr B re. mortgage arrears	-$16,794
Wife	Debt to Ms B & Mr B	-$36,623
Wife	Debt to Ms T	-$20,000
Total	$1,113,314
Net assets	$902,800
Member	Name of Fund	Wife's value
Wife	Super Fund 1 account member #...62	$29,507
Husband	Not disclosed

The parties have not included on the balance sheet the debt of $43,204.88 which, at the date of the trial, was owed by the husband to the Child Support Agency for arrears of child support and spousal maintenance.
I do not propose to add that debt as a liability to the balance sheet but rather to order that it be paid from any sum due to the husband by way of property settlement.
The husband will retain the shareholding in V Pty Ltd which has an agreed debit value of $14,922 and his contents, bond and photographic equipment valued at $14,700. I propose to treat the husband as having no net assets.
The wife will retain her car and household contents valued at $27,500 and will be liable for the debts to Mr and Ms B and to Ms T totalling $56,623. Thus the wife has net assets valued at debit $29,123.
The debt to Mr B for the mortgage arrears of $16,794 should be paid from the gross proceeds of the sale of Suburb A Property 1 before distribution.
The husband wishes to retain the property in the United Kingdom. It has an agreed value of $338,550 and is encumbered (including the debt owed to Z Bank UK) in the amount of $300,086 leaving a net equity of $38,464.
No submissions were addressed in the wife’s case to the husband’s application to retain the unit. He should be able to do so by paying to the wife, from his share of the proceeds of sale of the former matrimonial home, the equivalent of her interest in the UK unit.

SECTION 79(2)

The parties’ most valuable asset is currently not available for their continued joint use. They have agreed that Suburb A Property 1 will be sold.
It is just and equitable that their assets be divided between them.

ORDERS SOUGHT

The wife, in her application, seeks an order that she retain the whole of the proceeds of sale of Suburb A Property 1 and 50 per cent of the proceeds of sale of the property in the United Kingdom.
In submissions, she sought a division of the assets of 80 percent in her favour.
The husband seeks the sale of Suburb A Property 1 and a distribution of the net proceeds such that he receives 30 per cent of the assets in Australia and he retains the real property in the United Kingdom.

CONTRIBUTIONS

Neither of the parties had significant assets at the commencement of their co-habitation.
Until separation, each contributed their efforts to the enterprise of their family. The wife was the primary carer for the children and the primary home maker. The husband was the primary income earner.
There were two significant external contributions.
Mr P contributed $250,000 on behalf of the wife to the acquisition of the real property.
The husband contributed the compensation award of $422,470. There is no evidence of how that sum was made up.
In Aleksovski & Aleksovski (1996) FLC 92-705, the plurality of the Full Court held that:
The wife’s contribution via her compensation award must be given full weight, more particularly as $100,000 of that award was in respect of pain and suffering.
(at 83,437):
In our view, having regard to the facts of this case, his Honour was entirely correct in that the wife's damages award and, in particular, that portion of it which related to pain and suffering, should be regarded as a contribution by her to the marriage and to the family.
Similarly, that portion of a damages award which relates to economic loss, representing income lost during the marriage or period of cohabitation, may also be regarded as a contribution by the party who has suffered the loss.
…

In our opinion, in most cases, a damages verdict arising from a personal injury claim, whenever received, is a contribution by the party who suffered the injury. It should not be considered in isolation, for the reason that each and every contribution, which each of the parties makes to the relationship, must be weighed and considered at the same time.

I take their Honours to mean that, in so far as the compensation award contained a component for lost wages, that component requires no special recognition as the wages, had they been earned in the normal course of the husband’s employment, would have received no special recognition. Similarly, if there is a component for loss of future earnings, that does no more than bring forward wages which would have been given no special recognition. “Ultimately, contribution entitlements are best evaluated at the date of hearing and having regard to the asset pool then existing.” – a view upheld by Finn, Holden and Warnick JJ in K v K [2004] FamCA 360.
In the present case, however, there is no evidence of what proportion of the award represented pain and suffering and loss of amenity and what portion was allocated to future economic loss and compensation for the domestic services rendered by the wife after the accident.
There is no evidence that the husband’s earning capacity is affected into the future by the injuries he suffered in 2008.
I accept that the contribution of the relevant portion of the compensation award is likely to have been a greater contribution than the $250,000 contributed on the wife’s behalf by Mr P but I am unable to quantify any precise amount.
After separation, the wife was responsible for the physical care of the children and also for their financial support. The husband made one payment of child support but none thereafter. He did not pay spousal maintenance after July 2017 and did not pay the mortgage payments, causing the balance of the mortgage owed to increase.
The husband continued to work and earn income.
Doing the best I can with the evidence available, balancing the husband’s greater financial contribution of the compensation award against the wife’s greater responsibilities for the children after January 2017, I find that the contributions to the date of the trial are equal.

SECTION 75(2)

There is a reasonable doubt about whether the husband will pay child support in the future. In cross-examination he conceded that since January 2017 he has paid, in total, for child support “a couple of thousand dollars”. He sought to justify that position by saying that he had also paid for “all the other stuff that was ordered”. The husband had not paid the mortgage payments as he had been ordered to do and the wife was obliged to borrow money from her brother-in-law to forestall a mortgagee sale. At the time of the trial, the evidence was that the arrears of child support were $37,455 ($43,215 less arrears of spousal maintenance of $5,750).
The wife has not been in the work force for some ten years. She proposes to resume her retraining as an interior designer which was interrupted in 2017 when she was injured. She intends to undertake a course of study which will take about two or three years at an estimate cost of $28,000.
There is no evidence about what the wife might earn once she is qualified.
Whether the wife’s ability to earn will continue to be affected by the sequelae of the injuries and trauma she suffered in January 2017 is not known. She continues to suffer from PTSD.
The wife will be required to rehouse herself and the children. Because of the orders that will be made in relation to the time the husband spends with the children, he will not be required to provide housing for them although he will incur monthly fees for supervision of his time. If he chooses to engage G Service or a similar agency, those fees will be considerably higher than the fees charged by a contact centre, but that is a matter for him.
The wife has a very modest superannuation entitlement. There is no application for a splitting order. The husband may have a superannuation interest but it is not disclosed. I do not propose to take the wife’s superannuation entitlement into account. She is 39 years old. It will be many years before she receives any benefit from superannuation and the present value to her of that interest must be so significantly discounted as to be meaningless.
The husband continues to work as a freelance photographer. He is currently earning in excess of $100,000 per annum and there is no reason to believe that he will not continue to do so.
He has thus far avoided his obligation to pay child support.
In addition to those matters, the wife claims a further adjustment pursuant to the principles of Kennon & Kennon(1997) FLC 92-757 where the Full Court dealt with violent conduct by one party towards the other which had a significant adverse impact on the victim’s ability to make contributions.
I accept that the wife’s parenting of the children and her ability to perform her role as a mother and home maker was significantly affected by the sequelae of the incident in January 2017. Her physical injuries were severe but her psychological injuries have been enduring and persist. It is not possible to speculate whether the wife’s psychological injuries, particularly her PTSD, will resolve in the future. Her capacity to parent the children into the future will be affected for an undetermined period.
However, the Full Court in Kennon made it clear that, in order for the principles to apply, it was necessary to find that there had been a course of violent conduct. In this case, there was one, very violent incident.
I do not propose to make an adjustment according to the principles in Kennon but rather to recognise the difficulties inherent in the wife’s future role as a parent as a result of her injuries.
I consider that there should be a further adjustment in favour of the wife for section 75(2) factors of 20 per cent, such that the wife will receive 70 per cent of the net property of the parties.

CHILD SUPPORT

The wife seeks a departure from the child support assessment such that, in addition to any amount of child support assessed to be paid, he pay:
·    $150 per week for each child
·    School fees
·    Fees for gymnastics and swimming
There is no evidence in relation to school fees. The wife, in her Financial Statement deposed to no spending on education expenses.
The grounds for a departure order are set out in s 117(2) of the Child Support (Assessment) Act 1989 (Cth) (“Child Support Act”). Section 117 is set out in full below:
Matters as to which court must be satisfied before making order
Court may make departure order
(1)     Where:
(i)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b)       the court is satisfied:
(i)        that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii)       (ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
High costs involved in enabling parent to care for a child
(2B) A parent’s costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
(a) dividing the parent’s adjusted taxable income for the period by 365; and
(b) multiplying the quotient by the number of days in the period.
(2C) If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
High child care costs
(3A) The ground for departure mentioned in subparagraph (2)(b)(ib) is taken not to exist unless:
(a) the costs are incurred by a parent or a non‑parent carer; and
(b) the child is younger than 12 at the start of the child support period.
(3B) Child care costs for a parent can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total more than 5% of the amount worked out by:
(a) dividing the parent’s adjusted taxable income for the period by 365; and
(b) multiplying the quotient by the number of days in the period.
(3C) Child care costs for a non‑parent carer can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total at least 25% of the costs of the child for that period.
Matters to consider for purposes of subparagraph (1)(b)(ii)
(4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b) the proper needs of the child; and
(c) the income, earning capacity, property and financial resources of the child; and
(d) the income, property and financial resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding; and
(e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g) any hardship that would be caused:
(i) to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
(5) In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Proper needs of the child
(6) In having regard to the proper needs of the child, the court must have regard to:
(a) the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b) any special needs of the child.
Income, earning capacity, property and financial resources
(7) In having regard to the income, earning capacity, property and financial resources of the child, the court must:
(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7A) In having regard to the income, property and financial resources of a parent of the child, the court must:
(a) have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii) the parent has changed his or her occupation, industry or working pattern; and
(b) the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent’s caring responsibilities; or
(ii) the parent’s state of health; and
(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
Direct and indirect costs in providing care
(8) In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
Subsections not to limit consideration of other matters
(9) Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.

It is necessary first to determine whether a ground for departure exists. The wife relies on grounds specified in Sections 117(2)(a)(iii)(A) (commitments necessary to support herself); and section 117(2)(c)(ia) and (ib) (the income, property, financial resources and earning capacity of the other parent).
I do not consider that either of those grounds has been made out.
The wife has not established that she has any unusual need for support and her current earning capacity has been addressed in the adjustments made in relation to property settlement.
The real assets of the husband are ascertainable and are modest. He will receive 30 per cent of the parties’ net assets after repayment of his outstanding liabilities to the Child Support Agency. The husband’s actual income, although much greater than that he disclosed in these proceedings and to the Child Support Agency, has already been taken into account by the agency in the objection process. The Child Support Agency continues to be able to make its own assessment of the husband’s actual income.
The application for child support departure orders will be dismissed.

I certify that the preceding five hundred and eight (508) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 26 July 2019.

Associate:

Date: 26/07/2019