Idris and Hurley

[2017] FCCA 1745

FEDERAL CIRCUIT COURT OF AUSTRALIA

IDRIS & HURLEY [2017] FCCA 1745

Catchwords:
FAMILY LAW – Parenting and property – when children able to travel overseas to spend time with father – equal shared parental responsibility – change of children’s names – property orders.

Legislation:

Family Law Act 1975

Applicant: MS IDRIS

Respondent: MR HURLEY

File Number: SYC 6989 of 2012

Judgment of: Judge Henderson

Hearing dates: 18, 19, 20 and 21 April 2017

Date of Last Submission: 21 April 2017

Delivered at: Sydney

Delivered on: 28 July 2017

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Mr Dura

Solicitors for the Respondent: Hamish Cumming Family Lawyers

Counsel for the Independent Children's Lawyer: Mr Guttierez

Solicitors for the Independent Children's Lawyer: Tiyce & Partners

ORDERS

1. All previous parenting, property and spouse maintenance orders be discharged.

2. The mother and father have equal shared parental responsibility for the children X born (omitted) 2011 and Y born (omitted) 2011.

3. The children live with the mother.

4. The children spend time with the father as agreed between the parents, but failing agreement as follows:

   (a)During the children’s school holiday period at the end of Term 4, 2017:

   (i)From 10am until 5pm on Monday, Wednesday and Friday in two consecutive weeks;

   (ii)The father to provide the mother with at least 56 days’ notice in writing of the specific dates on which he intends to exercise time.

   (b)During the children’s school holiday periods at the end of Term 1, 2 and 3, 2018:

   (i)In one week as nominated by the father:

   A.From 10am until 5pm on Monday;

   B.From 10am until 5pm on Wednesday; and

   C.From 10am on Friday until 5pm on Saturday.

   (ii)The father to provide the mother with at least 28 days’ notice in writing of the specific dates on which he intends to exercise time.

   (c)During the children’s school holiday period at the end of Term 4, 2018:

   (i)In two consecutive weeks:

   A.From 10am until 5pm on Monday;

   B.From 10am until 5pm on Wednesday; and

   C.From 10am on Thursday until 5pm on Saturday.

   (ii)The father to provide the mother with at least 56 days’ notice in writing of the specific dates on which he intends to exercise time.

   (d)During the children’s school holiday periods at the end of Terms 1, 2 and 3, 2019:

   (i)In one week as nominated by the father:

   A.From 10am until 5pm on Monday; and

   B.From 10am on Wednesday until 5pm on Saturday.

   (ii)The father to provide the mother with at least 28 days’ notice in writing of the specific dates on which he intends to exercise time.

   (e)During the children’s school holiday periods at the end of Term 4, 2019 and Term 1, 2020:

   (i)For five consecutive nights;

   (ii)The father to provide the mother with at least 56 days’ notice in writing of the specific dates on which he intends to exercise time.

   (f)During the children’s school holiday periods at the end of Term 2 and 3, 2020:

   (i)For seven consecutive nights;

   (ii)The father to provide the mother with at least 56 days’ notice in writing of the specific dates on which he intends to exercise time.

   (g)During the children’s school holiday period at the end of Term 4, 2020 and in each school holiday period thereafter:

   (i)For one week in each holiday period, with two of those periods each year to take place in Sydney and two to take place in (country omitted) or any other location where the father may be living or wish to holiday with the children.

   (ii)The father to provide the mother with at least 2 months’ notice in writing of the specific dates on which he intends to exercise time, and whether he proposes that the time take place in Sydney or (country omitted) or any other location where the father may be living or wish to holiday with the children.

   (iii)The father is to bear the cost of the children’s travel between Sydney and (country omitted) or any other location agreed between the parties.

   (iv)On the first occasion when the children are to spend time with the father outside of Australia the father shall pay the mother’s return flight at economy rates to accompany the children from Sydney to the proposed destination.

   (v)Thereafter the father to accompany the children for two trips and thereafter a member of the father’s family is to do so until the children reach the age of 13 years.

   (h)On the weekend immediately prior to the children’s birthday (omitted)) in 2018, from 4pm on Friday until 5pm on Saturday, and in each year thereafter:

   (i)If the children’s birthday does not fall on a Friday, Saturday or Sunday, then from 4pm on Friday until 5pm on Sunday on the weekend immediately prior to their birthday; and

   (ii)If the children’s birthday falls on a Friday, Saturday or Sunday, then from 4pm on Friday until 5pm on Sunday on the birthday weekend.

   (iii)On the first weekend of September (being Father’s Day weekend), from 4pm on Friday until 5pm on Sunday, each year commencing in 2018.

5. For the purposes of Order 4:

   (a)All changeovers at the commencement of the children’s time with the father shall be facilitated by Phoenix Rising until Term 1 2018 unless otherwise agreed in writing between the parents, and the father shall meet the cost of the changeover services and thereafter shall occur at (omitted) or otherwise as agreed between the parents; and

   (b)All changeover as the conclusion of the children’s time with the father shall take place directly between the parents at (omitted) or otherwise as agreed between the parents.

6. Each parent does all acts and things necessary to facilitate liberal and reasonable communication between the children and their father as follows:

   (a)By video Skype call or video conference call on days and times agreed between the parents, but failing agreement, between 6:30pm and 7pm AEST each Wednesday and between 9:30am and 10.30 am AEST each Saturday;

   (b)On the children’s birthday ((omitted)) each year, between 4.30 pm and 6.30 pm AEST; and

   (c)On the first day of (event omitted) each year, between 4.30 pm and 6.30 pm AEST, with the mother to initiate the call to the father on behalf of the children.

7. Each parent notifies the other in writing of any proposed change of address at least 14 days prior to such change.

8. Each parent notifies the other in writing of any change in telephone contact details no later than 48 hours after such change.

9. Each parent notifies the other as soon as practicable in the event that either of the children suffers a significant injury or illness, or is hospitalised, whilst in that parent’s care.

10. The mother forthwith provides the father with the full name and contact details of the children’s treating doctor(s) and any specialists consulting or providing treatment to either of the children currently and in the future.

11. The father be and hereby is authorised to obtain information concerning either of the children’s health or medical treatment from any of their treating doctors or specialists who have consulted or provided treatment to either of the children.

12. The father be and hereby is authorised to obtain from any school attended by the children, currently or in the future, information in relation to each child’s education, including copies of school reports, general school newsletters and school photograph order forms.

13. The mother provide the father with at least 21 days’ notice in writing in the event that she proposes to change either child’s school enrolment, including providing details of any alternative school proposed by the mother.

14. Each parent be and hereby is restrained from:

    (a)Speaking in a critical or derogatory manner about the other parent or any member of the other parent’s family to, or in the presence or hearing of, either of the children;

    (b)Discussing these proceedings or any of the issues raised in these proceedings with either of the children, or in their presence or hearing; and

    (c)AND neither parent shall permit or allow any other person to do so.

15. Within 28 days, the mother do all acts and things necessary, including signing all necessary documents, to apply to the NSW Registry of Births, Deaths and Marriages for the name of the father, Mr Hurley, to be added to each child’s birth registration.

16. The children be known as X and Y, and that, within 14 days, the mother do all acts and things necessary, including signing all necessary documents, to apply to the NSW Registry of Births, Deaths and Marriages to register the change in each child’s name in accordance with this Order.

17. The mother give the father at least two months prior notice in writing in the event that she proposes to travel with either of the children outside the (omitted) Bank, including providing the father with details of the proposed dates of departure and return, destination(s) and contact telephone number(s) for the children whilst overseas.

18. In addition to the time provided for in Order 4 above, in the event that the father will be in Sydney during the last week of school term preceding the father’s time or the first week of school term following the father shall spend time with the children on Monday, Wednesday and Friday of the said week from the conclusion of school until 7pm and the following shall apply:

    (a)The father shall provide the mother with not less than 56 days’ notice of his intention to be in Sydney for the nominated week;

    (b)The father shall collect the children from school at the commencement of his time and return the children to the mother’s home at the conclusion of his time; and

    (c)The father shall ensure that the children attend any extra-curricular activity that they are enrolled to attend during his time.

19. In the event the father is travelling to Sydney at times otherwise than as provided by Orders 4 and 18 above, and upon the father providing the mother with not less than 28 days’ prior notice of his intention to travel to Sydney, then the parties shall use their best endeavours to facilitate the children spending time with the father as they may agree from time to time.

20. The father shall advise the mother as soon as practicable in the event that he proposes to reside outside of (country omitted) and in particular his proposed address and proposed duration of such period of residence.

21. For the purposes of Orders 11 and 12 above, the father shall be at liberty to provide a copy of these Orders to any of the children’s health professionals and the children’s school.

22. In the event that the father is unable to spend time with the children in accordance with these Orders the father shall provide the mother with as much notice as possible of his inability to spend the time with the children.

23. In the event that either party refuses, fails or neglects to execute any documents necessary to give effect to these Orders, then the Registrar of this Court shall be authorised pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such document in the place of the defaulting party upon application by the other party.

Property

1. Within 14 days, the wife to return the husband’s (omitted) lounge and ottoman to the husband.

2. Within 42 days of the date of these orders the wife to pay to the husband the sum of $64,985.

3. Upon payment of that sum to the husband the parties retain all assets in their name including superannuation and are to be responsible for all liabilities in their name.

4. In the event the wife fails to comply with the terms of Order 25, the wife is to list the property at Property A for sale by way of private treaty at a price agreed and failing agreement as recommended by the selling agent.

5. The wife is to comply with the terms of Order 27 within 42 days of her failure to comply with the terms of Order 25.

6. Upon sale of the property the wife to pay the husband $64,985 together with interest accrued and is to retain the balance of the sale proceeds.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6989 of 2012

MS IDRIS

Applicant

And

MR HURLEY

Respondent

REASONS FOR JUDGMENT

1. The matter of Hurley and Idris was a parenting and property application heard by way of final hearing for four days commencing 18 April 2017.

2. The parenting related to the parties twins X and Y now aged 6 and born on (omitted) 2011. The mother placed a large photograph of the children on the Bar table. The photograph revealed happy, healthy smiling children.

3. Mr Dura of Counsel acted for the respondent husband, Mr Guttierez, of Counsel, represented the children, and the mother represented herself. The mother was at a serious disadvantage by representing herself in this, at times, complicated and emotionally charged matter.

4. The documents I read were as follows:

   a)For the mother:

   i)Financial statement filed 8 April 2017 and sworn at the hearing on 18 April 2017;

   ii)Affidavit of 7 April 2017;

   iii)Affidavit of 19 November 2013; and

   iv)Minute of proposed orders.

   b)For the father:

   i)Case outline prepared by his Counsel;

   ii)Minute of orders sought;

   iii)Amended response filed 10 April 2017;

   iv)Financial statement filed 3 April 2017; and

   v)Affidavit of 31 March 2017.

   c)The Independent Children's Lawyer produced a series of orders that they sought.

5. Two family reports were prepared. The first report was prepared by Dr J in 2015 and was marked Court exhibit 2.

6. The most updated report was prepared by Mr L, dated 23 March 2017 and was marked Court exhibit 1.

7. The mother, the father and Mr L were cross-examined.

8. There were voluminous exhibits tendered.

9. Mother’s exhibits:

   a)Exhibit 1 – letter dated 8 December 2016 relating to the sale of her property in Property B. The mother netted some $269,000 from that sale. The wife failed to tell the husband she was selling the apartment

   b)Exhibit 2 – a lengthy letter in very small print from the mother to the father dated 8 March 2013 setting out her demands and as follows:

   I remind you we were given ample opportunity to build a relationship with the twins from January 2012 when you returned to Sydney to develop a relationship having abandoned us after the birth in (omitted) 2011 and returned to (country omitted) for 2011.

   I hear you want to develop a relationship with X and Y. What they need is predictability and consistency. In order for us to be able to work out any parenting arrangement, we require transparency and clarification as to your work and life situation. At this point in time you had returned to Sydney to be part of their lives so I facilitated you spending time with the twins during this period. You also refused all financial responsibilities to the twins at this point.

   Paragraph 5 – you did not take advantage of this opportunity to be part of their lives and subsequently abandoned them a few months later without informing of your intentions.

   Paragraph 6 – to the best of my knowledge, you abandoned contact with us in the first half of 2012 in order to pursue your career with (employer omitted) in (country omitted).

   You’ve admitted on several occasions you do not know how to take care of the twins and this, compounded with your history of abusive behaviour - their safety and welfare is paramount. Independent time with them is not appropriate and must be supervised. Payment for supervision is over above any child support payment made. It’s not maintenance.

   I will not tolerate your abuse and subject the twins to witness such events during visits again. Your rage has been explosive on many occasions and the repercussions of this affect the twin’s wellbeing.

   You made one request to see the twins since that second abandonment in 2012 for the weekend of 1 September which coincided with Father's Day and I arranged for you to spend time on a supervised basis.

   I remind you child support payment was in arrears. You stated you wanted to see the twins three times a week for approximately two hours each time in your divorce papers. Can you explain how you intend to do that when you live in (country omitted)?

   You mention fair and equitable payments for the twins and your obligations not extending past child support that you deem appropriate. Please remember you were not contributing financially to the twins and actively sought to diminish your liabilities most cruelly when I contacted the agency. Despite your improper conduct in relation to financial matters, I offered you the opportunity to develop a relationship with the twins.

   c)Exhibit 3 – a letter from the mother to the father’s lawyer dated 4 June 2015 setting out a litany of complaints about the father and his treatment of the children and their reaction after spending time with him. This included allegations that the father was physically violent to Y at a supervised changeover, and that Y reported his father “smacked my bot three times”. The mother also complained that the address given by the father in Sydney is not a valid address.

   d)Exhibit 4 – A deposit slip for money she deposited into the parties account in (country omitted) in December 2007 being $15,500.

   e)Exhibit 5 – trust account statement of the father’s legal fees

10. Father’s exhibits:

    a)Exhibit 1 – the father’s current child support assessment dated 23 January 2017. This document assesses his child support at $34,420 per annum using the figure of $4046 as the mother’s income. In cross examination it became apparent the mother’s income is incorrect. The mother has done nothing to address this error with the Agency despite the consequence being that the father is likely paying a higher rate of child support than should be the case.

    b)Exhibit 2 – documents in relation to the mother’s late mothers’ estate.

    c)Exhibit 3 - A series of emails from 21 January 2013 through to January 2014 showing how the parties communicated. As an example, an email dated 21 January 2014 from the mother to the father:

    The visit scheduled tomorrow, Wednesday 22 January 2014 at 8am needs to be cancelled as Y is generally unwell and has a recurring fever. I note you’ve not paid money required for the nanny.

    d)Exhibit 4 – a series of text messages between the parties in relation to the father’s many requests to see his children, which are not answered by the mother. These requests run from August 2012 through to December 2015. It was the mother’s case that the father was disinterested in the children and did not want to spend time with them. It is clear from this series of emails that the mother’s position is not supported on the evidence.

    e)For example the father wrote to the mother on 7 January 2013:

    Can you please respond as to when I can see my children?

    f)He received no response.

    g)The father’s pleas to speak with, see via Skype, and visit his children were met with absolute silence from the mother in 2013 and 2014.

    h)Exhibit 5 – a list of the calls that the father says he had with the children on Skype since April 2016 to April 2017. The father has an unreasonable expectation in 2016 of the length and depth of Skype calls. He filed a contravention application alleging numerous breaches of the Skype order which I dissuaded him from pursuing. He now accepts that if he sees the children and they see him even for a short time on Skype that is a good thing. His expression was “ it is as it is “

    i)Exhibit 6 - a series of letters as follows.

    j)A letter dated 18 March 2016 from the mother’s then lawyers, Barkus Doolan, seeking the sum of $1253 a month from the father for the support of the children and an additional $456 per month for other expenses for the children. This letter set out the large number of health professionals the children were seeing. Additionally the mother was seeking the father pay $30,000 per annum in school fees for two children just commencing kindergarten.

    k)The father’s response dated 22 March 2016. The father stated he had no knowledge of any health professionals the children were seeing. These professionals included; speech pathologists, chiropractors, physiotherapist, developmental paediatrician, podiatrist, paediatrician, physiotherapist and allergy testing for X.

    l)This is a recurring and constant theme in the mother’s responses to the father in regards to the financial issues between them. The mother has high expectations for the financial and practical care of her children. The mother is of the view that the children should have the absolute very best of everything, including education, and that they consult every specialist that is available

    m)Exhibit 7 - a copy of the parties’ Australian passports. The father, although of (country omitted) birth, is an Australian citizen. That is clear despite the mother’s contrary oral evidence that he was not an Australian citizen.

    n)Exhibit 8 - a series of printouts the mother obtained from an internet site called (omitted).com supporting what she said was the meaning of the (country omitted) middle names the father sought for his children. The mother contended the name chosen for their daughter meant “prostitute” and for their son “idiot”.

    o)Exhibit 9 – response dated 15 January 2016 to the mother.

    p)Exhibit 10 – a letter dated 22 March 27 to the mother from the father’s solicitors seeking to value the Property A and Property C properties.

    q)The Property A property is a property now owned by the mother due to the joint survivorship of the joint tenancy she and her mother entered into when they purchased the property in 2014. Property C is a property that was owned by her mother and is subject to her mother’s will, over which there is now a dispute with the wife and her sister. The letter also sought copies of the mother wife’s financial documents, tax returns, bank statements and the like.

    r)Exhibit 11 – contact reports from Phoenix Rising.

    s)Exhibit 12 – the father’s current work contract with (employer omitted).

THE FACTS

1. The husband was born in 1972, and the wife in 1973.

2. The parties commenced a relationship in 2005.

3. In August 2006 the husband moved to (country omitted) with a job offer. The father has always worked overseas.

4. In early 2007 the wife purchased a property at Property B with a $320,000 mortgage from the (omitted) Bank. The mother had savings of $80,000 being the deposit and stamp duty. That money that was put into the property came from her resources.

5. The parties commenced cohabitation in (omitted) 2007 in (country omitted) being a month or two post the Property B purchase. At this time the wife commenced employment in (country omitted).

6. The husband asserts his mother lent him approximately $386,000 on 28 June 2007. There is a loan agreement supporting this transaction signed by the husband and his mother attached to his affidavit.

7. In 11 October 2007 the husband, with the wife’s agreement, enters into an agreement to purchase an off the plan an apartment in (country omitted) for $574,886.

8. The husband claims that the deposit of $123,146 came from part of the monies his mother had advanced to him, and the remainder of the purchase price was via a mortgage with (omitted) Bank.

9. The wife said under cross examination that the parties had over $200,000 saved in (country omitted) and that this was used to part fund the (country omitted) property. The parties had commenced cohabitation in (omitted) 2007. Although I accept that the deposit for the unit was paid later in time than the date upon which contracts were exchanged, in the absence of documentary evidence and coupled with the husband’s denial, I cannot accept the parties managed to save such a vast sum in a period of about 12 months from co-habitation.

10. The wife resigned her work in November 2007. The husband was made redundant in 2008.

11. The parties married in (omitted) 2008.

12. The parties moved to (country omitted) in (omitted) 2009 and lived in a home owned by the wife’s mother rent free.

13. From (omitted) 2007 to (omitted) 2008 the parties lived on the husband’s income only. From (omitted) 2008, after the husband’s redundancy, until (omitted) 2010 the parties lived off monies in their possession and not income.

14. The husband’s case is that they lived off savings, his redundancy of about $40,000 and the balance of monies left over from the loan to his mother. The wife’s evidence on how the parties supported themselves in (country omitted) for 2 years without working was vague and not specific and I prefer the husband’s evidence which has the ring of truth.

15. In (omitted) 2010 the parties moved to (country omitted) and the husband commenced full time employment.

16. The wife became pregnant and later contracted dengue fever and she returned to Australia in (omitted) 2010.

17. On (omitted) 2011 X and Y were born.

18. From 2011 to January 2012, the wife and children lived in a rental property in (omitted), paid for by the husband. The wife’s assertion the husband did not financially support the children is not made out based on these facts.

19. The husband says the date of separation was 20 December 2011.

20. The wife says separation was February 2011, however, that is not an issue for me to determine. The husband had returned to Australia during 2011 to see the children.

21. The husband returned to Australia in late 2011 in an endeavour to find work and live closer to his children. He could not find work at the level of remuneration he could receive overseas and in (omitted) 2012, he moved to (country omitted) where he continues to be employed with (employer omitted) in (employment omitted).

22. The parties divorce in February 2013.

23. The wife sought orders on 21 November 2013 for periodic spousal maintenance, and $5000 towards repairs of the Property B property where she and the children were living.

24. I made orders for the husband to pay the wife some $1200 per week by way of spouse maintenance.

25. In August 2014, the wife and her mother entered into an interest only mortgage to purchase a property at Property A. The mortgage is $1.2 million.

26. On 15 December 2014, the husband filed an application to reduce payments of spousal maintenance as the wife had moved out of the Property B property and was receiving rent from Property B. That application was successful

27. The wife sells, unbeknown to the husband, the property in Property B for $640,000 in November 2016.

28. The father has spent time with the children in Sydney since 2014 although not all ordered time.

THE TRIAL EVIDENCE

1. The contact reports from Phoenix Rising are of supervised changeovers not supervised time. The reports run from June 2014 to March 2017. I will refer to some of them

2. 26 March 2017:

   X and Y arrived back with Mr Hurley in a happy mood. The Children were excited to see their father.

3. The mother alleges the children cannot eat dairy and need a gluten-free diet. There is no medical evidence to support the mother’s position however the father complies with her requests.

4. 2 January 2017 – children arrived very clingy, did not want to leave their mother. They refused and shouted no when asked to eat sushi with their dad. When asked why they did not want to spend time, they said he spends time on his phone during their contact. Y was very attached to his mum and did not want to leave her side. The contact worker encouraged the children to leave the mother. The children agreed to meet with Mr Hurley for five minutes. The mother put her watch on X’s hand and showed her what five minutes were. The children were not comfortable on that visit.

5. On 31 December 2016, the mother told the supervisor the stress was too much for the children and appeared to be affecting them physically. The children were taken to the (omitted) movie by their father and it is clear the mother did not want them to attend the movie. The father now agrees he should have respected the mother’s wishes.

6. The mother tells the supervisor that the children do not enjoy contacts. They do not do anything enjoyable. That they are becoming distressed and not getting much sleep. The mother wants to know what the children are doing at contact. The contact was cancelled at 10:20 as the children would not spend time with their father.

7. On 29 December 2016 – children told the contact worker they had a good time with their father. The mother said they would be asking her a lot of questions.

8. The mother told the contact worker she was not happy with the previous contact because the father had been physically and verbally abusive with the children; they were highly distressed when they returned. The children were standing beside her when she said these words. It is not surprising the children might be stressed at changeovers on hearing those comments.

9. The mother said the children became sick after their visit and Y had not slept the last couple of nights. The contact worker noted the children are highly aware of their physical health, as X reported she had a fever.

10. The mother was not happy the children had eaten ice-cream and bread. The children she said had returned the previous visit with scars on their legs. The contact worker said she had observed the children prior to their visit on 26 December and that the mother put Band-Aids on Y’s legs because she said his scars were bleeding and that X wanted the same.

11. The mother said it was too hot to go to the beach and that Mr Hurley does not know how to swim.

12. On 26 December 2016 – mother reported she was not happy with the supervisor and she was not aware of the change of supervisor and that she was not comfortable with this person doing handovers. The children appeared comfortable. On 26 December 2016 – children were very happy upon their return. The supervisor gave the mother the details of what the children had eaten whilst they had been with their father.

13. The supervisor noted that the mother appeared disappointed as she believed that Mr Hurley fed the children McDonald’s, and he had placed a Band-Aid on X’s leg and fed them dairy. It is clear the children eat gelato in their father’s care, as evident in the notes of 6 November 2016, not ice-cream even though there is no medical evidence the children are dairy intolerant.

14. There is some evidence that the mother has overstimulated the children in relation to their health due to her extremely heightened concerns for them at birth and for some years when they were young. However, her concerns should be abating given how well they are progressing in her care which is clear from the photograph of the children the mother placed on the bar table showing beautiful, well cared for, happy and healthy children. The mother continues to persist that her children need particular and special care even now. I accept at birth and for some years that was likely the case.

15. I accept her complaint of the father taking the children to (omitted movie). The father said he took the children to (omitted movie) as he had purchased the tickets and that his own father took him to (omitted), and he wanted to share the same experience with his children. He now agrees that this was not appropriate.

16. The mother maintained that the father hits the children. At times, the children, particularly Y, has behaved badly. Y has run away from his father, kicked him in the groin and spat water in his face. Only the mother claims the father hit the child.

17. The mother has an interventionist and protective style of parenting. This is no doubt founded upon the difficult and traumatic birth the mother and children experienced. This is particularly the case for Y who has had and continues to have extensive speech therapy and other developmental paediatric interventions and assessments in order for him to reach his potential.

18. There are no doubts that the mother parents the children to a very high degree. The mother has been relentless in her pursuit of the best healthcare and educational outcomes for her children. However, she also has a very high expectation of the father’s financial capacity to meet what are her extremely high expectations for the care of their children.

19. The mother has made a litany of complaints about the father’s poor behaviour, inability to care for the children, and abandonment of them and her at their birth. However, as is so often the case at the conclusion of the evidence, the parents agreed on a whole raft of orders for the father to spend time with and communicate with the children.

20. The parents had been able to arrange, to their credit, a very comfortable and important contact where the mother and father sat down with the children the weekend before the hearing and they had breakfast as a family. This was done without any assistance from lawyers. They had arranged a contact visit the following weekend.

21. Ultimately the only issues for me to decide in relation to parenting and property were ;

    a)When a period of two nights in their father’s care would commence;

    b)When, if ever, the children would be able to travel to (country omitted), or such other places the father may be working for holidays and the like;

    c)Whether as the mother sought, she have sole parental responsibility or as the father and Independent Children’s Lawyer contended, that responsibility be shared;

    d)A change to the children’s middle names and surname; and

    e)Appropriate division of the matrimonial property.

22. The father will continue to work overseas and this is not an easy issue to determine or for the mother to agree too, namely when the children will be ready for overseas travel. The father’s likely work places are (country omitted), (country omitted) and (country omitted). His evidence was that his superiors told him he will likely be offered another position in 24 months and that (country omitted) has been mentioned.

23. Going to the remaining parenting issues to be determined.

24. Mr L was cross-examined first.

25. The mother still maintains that the father was physically abusive of Y and hit him on the bottom three times at a very unsuccessful contact changeover on 27 December 2015 when Y kicked his father in the groin, ran away from his father and spat water in his face. His father shouted out to him. I make no criticism of the father shouting out to his son who had run away from him. Children require discipline at times. Children need to do what adults tell them. If children are running away from an adult, a yell to stop them is possibly the only way to prevent them from injuring themselves.

26. The only person who saw the father hit the child was the mother. The supervisor did not see it. The father denies it. I prefer the father and supervisor’s evidence on this issue to that of the mother who tended to the histrionic at times.

27. The mother was persisting, even with Mr L in 2016, that the father had physically abused Y. He has not.

28. At paragraph 37 of Mr L’s report, the mother alleges that the father was violent towards her during their relationship, hitting her and that he hit his mother once:

    He showed outbursts of impulsive anger. We were under stress. He was controlling. I never had time alone. He lost his job when we moved to my mother’s place in (country omitted). He got more angry. Things were all my fault. He shouted a lot, was domineering, put me down and drove very fast. I would be frightened and crying, or he used the silent treatment.

29. At paragraph 38 of Mr L’s report, the mother repeated that the father had a low sperm count and repeated this comment in Court. I could not see the relevance of this evidence. The twins were conceived by IVF treatment. What is most extraordinary is that the mother says at paragraph 25 of her affidavit:

    Now that the father has accepted paternity of the children.

30. The mother made a similar statement in Court that the father had denied paternity and thus he was not recorded as the father on the birth certificates. The mother now accepts the father has accepted paternity and will include his name on the birth certificates yet has not done so.

31. There is not one shred, not one jot, not one scintilla of evidence to support the mother’s spurious claims that the father denied paternity. The children were conceived by IVF treatment and he is the sperm donor. That evidence did the mother no good, yet she persisted.

32. The mother said that the father was angry because twins would be an enormous financial burden and all he did was take photographs at the hospital.

33. There is no doubt the birth of the twins was very traumatic for the mother. It has affected her deeply. The mother has not yet recovered from the trauma:

    I got an infection. I ended up with organ failure and the twins had sepsis and Y had problems with his brain from the vacuum and encephalitis he had acquired. Y was resuscitated several times. Breastfeeding went well even though I got an infection. I couldn’t see the children for five days.

34. The father’s evidence in court that the mother was not in ICU did him no good. After their birth, the mother was in a serious, if not critical condition, having had an operation, a caesarean, having given birth to twins who were each in specialised neonatal care and Y’s condition worsened after birth. This was a traumatic event by any standards and the mother, not the father, went through it. All Mr Hurley needed to do at the hearing was accept that his wife was possibly facing a serious and life-threatening situation, but he could not do that.

35. That lack of compassion for her only adds to the mother’s significant feelings of abandonment, which are littered throughout her affidavit, her oral evidence and to Mr L. However, the facts do not support the mother’s assertion that the father abandoned her and the children.

36. I accept that only some few weeks after the birth of the children the father returned to work in (country omitted). He says he and the mother agreed to this as they needed the money. The mother was not forthcoming on whether she agreed that this was their arrangement, however I accept that being left alone with twins was in hindsight not conducive to the marriage continuing and explains the mother’s belief she and the children had been abandoned.

37. The mother is now unable to accept that the father’s return to (country omitted) was both agreed and a necessity. I accept the father’s position. The mother would do well to honestly recall what was happening at that time, and accept that they each agreed for the father to return to (country omitted) and that neither anticipated the destructive consequences that have flowed. The mother must stop blaming the father solely for the consequences of their joint decision.

38. The mother asserted to Mr L and in her affidavit that the father did not want to have his name on the children’s birth certificate. That is simply an untruth. Attached to the father’s affidavit is an email he sent to the mother about this very issue at page 64 of 95 of his affidavit dated 31 March 2017 to the wife:

    As mentioned on the phone, there is only till 20 April to register the bubs – not meant to pick another argument or distract the matter from your recovery, but I just want you to know I really want the kids to have a (country omitted) name, in the same way that it is with X and Ms Idris, as in your family’s tradition. I’ve never questioned the use of either Ms Idris or X or the double surname Idris-Hurley. It is not my mother’s wish but it is my own wish, just like you do with X, X and Ms Idris – a part of my family tradition.

39. Y’s middle name of X and X’s middle name of Ms Idris are names important and meaningful to the mother.

40. The father wanted X as part of X’s middle name and Y as part of Y’s middle name. The father also seeks their surname be hyphenated to Hurley-Idris. The children’s current registered names are X and Y.

41. The father clearly told the mother on 29 March 2011 that this is what he wanted, both as to the (country omitted) middle names and the hyphenation of the surname via e-mail.

42. He had sent an earlier email on 28 March 2011 as follows :

    Hope the recovery is going well. My mother came to drop by your jewellery at your home but no one was there. She is going to put them in a safety deposit box. Maybe you think I don’t care about your recovery because I’m in (country omitted) working to make ends meet. It’s not true. It’s certainly not easy for me in (country omitted) by myself ….. I hope you understand that. Have you given any more thought to the names yet, as registration is due on 20 April?

43. What does the mother do? Totally disregards the father’s position and registered the children’s names as she determined. The mother did not even include the father’s name on their birth certificate, nor on any school or pre-school enrolment.

44. This behaviour is contrary to the mother’s statements that she is willing for children to have a relationship with their father and wants his involvement in their lives.

45. The mother excluded the father from the children’s life whenever she could. No doubt due to her belief that he had abandoned her and the children at their birth which I accept was a most difficult time in her life.

46. Mr L could observe no indication that the children were in fear of their father, or that they had been abused by him or suffered at his hands. He did not observe any reaction to seeing their father consistent with them being abused by him. Mr L agreed that had the father acted as the mother asserted, he should have observed in such young children some hesitation or difficulty yet he made no such observation.

47. Mr L made no such observations of the children consistent with them having experienced uncontrollable rages in their father’s presence.

48. Mr L observed a positive connection with the children in his report dated 2017, as had Dr J in her report of 2015. Mr L thought the father had proposed his time be supervised and misunderstood that the father sought only the changeover be supervised. Thus he had made his recommendations that the father have four hours of time with the children which were far less than the daytime he is now currently spending on this erroneous belief.

49. Ultimately he agreed that the father’s proposed regime of time in Sydney was appropriate. However, given that the parties have agreed on the regime of time for the children and father in Sydney, including block holiday time, all the issues addressed by Mr L need not be set out.

1. Mr L recommended there be equal shared parental responsibility despite what he says was the difficult relationship he observed between the parents. He believed that the father would fall into line with the decisions the mother made, that I should take a benign view of these parents as parents and that the father did not seem to be a person who would interfere with the decisions the mother made, particularly as he is living in (country omitted) and the mother in Sydney. Mr L opined that it was extremely important for children to know that both their parents were making these important long-term decisions and he had been led to believe by the mother that she had contacted the father about decisions to be made and thus he could see no difficulty.

2. The reality is the mother has only contacted the father and told him of decisions made after the event. There was no evidence of the mother ever contacting the father before a decision is made as to which school to attend, an operation to be had, a therapy to be undertaken or an orthotic to be worn.

3. The mother makes all and every decision and then tells the father. The mother not only expects him to fall in line with her decision, but pay the cost of her decision as well.

4. The mother presented herself to Mr L as a woman who had been abused, controlled and belittled in her relationship. I could see no evidence of that woman at the trial. I do not accept the mother’s evidence that the father was disinterested in the children, had abandoned her or that he had little interest in the children’s development.

5. That view could not be further from the truth. The father’s multitude of plaintive requests, since their birth via email, SMS message, and other such communication vehicles asking to spend time with the children, his commitment in flying from (country omitted) and (country omitted) to Sydney to spend time with the children is contraindicated to a dis-interested parent.

6. The father has been thwarted in seeing his children on many occasions by the mother by not turning up with the children yet he has persisted and his actions are not consistent with the mother’s opinion he abandoned the children at birth.

7. The father may have abandoned their relationship, as did the mother, and it is apparent that these parents do not like each other. Unfortunately the children are cognisant and aware of this. As Mr L reported paragraph 62:

   X is aware of the tension between the parents as is Y. She recalled the father yelled at her, but she couldn’t remember that happening. “Mummy doesn’t really like Daddy.” But she said this without strong emotion. Y interjected and said, “He went away when we were babies.” Once again, this was said without obvious emotion. Y said, “I like seeing Daddy and he said he does not smack.” Neither child could ever recall seeing or knowing of any pictures with their dad.

8. When the writer asked the children what might be the main things they worry about, they both said:

   They don’t like each other. X said she would like her parents to sit together.

9. Happily the parents listened to X and they did that very thing the weekend before the hearing and the visit went well according to both parents.

10. Mr L put to the mother, “Where would he get that from? Namely Y’s comment of:

    He went away and left us when we were babies.

11. The mother refuted any suggestion she had communicated this information to Y. She indicated more likely the explanation was:

    Mr Hurley brings it up. I have a much broader view of everything.

12. That is a remarkable comment when the children spend very limited time with their father. Y has heard this comment at his mother’s house.

13. The mother was not truthful with Mr L in the family report when asked about the children’s names on their birth certificate. When asked about this the mother said:

    He denied paternity. He did not acknowledge being the father. He refused to fill it in but I’m willing for it to happen.

14. That is not correct. The father’s email of March 2011 satisfies me the father told the mother what he wanted and she simply ignored his request.

15. The mother was asked about the children spending time overseas.

    There is a long time to go before the children could spend time with their father overseas. I don’t know where he lives and works, and he works 16 hours a day.

16. I accept this is an issue for the mother.

17. It became apparent that despite Dr J’s recommendation in 2015 that the mother immediately wean Y and begin to have the children sleep independently of her, that the children continue to co-sleep with their mother.

18. The mother said Y had only ceased breast-feeding at age six, one month before the trial. The continuation of co-sleeping and breast feeding a 6 year old child are not the actions or conduct of a parent willing to take on advice from an expert. Dr J is a well experienced professional in this area and one month ago was well past the time for Y to cease breast feeding and both children to cease co-sleeping given her advice. The children are entitled to be independent from their mother and part of that entitlement is sleeping independently.

19. Mr L said, a big effort should be now made by the mother to wean her child and similarly with co-sleeping, comfort or not. He opined that it is not appropriate for children attending school to be still sleeping in a parent’s bed.

20. The mother believes that her way is the only way. In light of this style of parenting it is clear to me that the father had no ability, even if he had lived next door let alone in another country, to be involved in or influence any decision the mother wanted to make.

21. Despite this, the children want to see their father and they have a positive relationship with him despite their extremely limited and truncated time with him.

22. Mr L said at paragraph 87:

    The subject children’s presentation during the observations and interviews belied the parents’ respective perspectives documented in their affidavit material. That is, the mother alienating the children from the father, and the mother believing the father abandoned and was disinterested in the children. Ms Idris describes and depicts the father as an angry, disinterested parent who abandoned the children at a time when they most needed him, and who at times behaved in an intimidating manner towards both herself and the children. Mr Hurley depicts the mother as a gatekeeping, alienating mother who systematically undermined the children’s relationship with him and his extended family.

    If either of them, or a combination of these perspectives as documented were to reflect current reality, it would be expected the children would have reacted to the father and observations with him in a manner that was suggestive of apprehension or fearfulness. Or that they reacted to him in a contemptuous manner that is common characteristic of truly alienated children. The children did not present in this way.

    Although the children were less spontaneous with their father than their mother, they nevertheless enjoyed interacting with him. They showed no signs of fear or apprehension and no such description was given from the supervising agencies. They are aware of the tensions of their father.

23. The reality is, though, from the mother’s point of view she and the father have never lived together since the birth of the children and she has effectively solely parented the children. The mother has done so without the practical day to day assistance of the father, without his emotional and psychological support, and has had to at times to make decisions that are best for her children without having any input from the father.

24. However, her argument that the father abandoned her and the children and was disinterested in the children is not made out. The relationship with the father is not as she would wanted it to have been. The father is very interested in his children and has shown a dogged determination in the face of some real obstacles to maintain his presence and influence in the children’s lives for their benefit.

25. Secondly, the father has financially supported the children and her and has done so at times in excess of what his obligations should have been.

26. The father’s case was that he went back to (country omitted) in 2011 after a discussion between himself and the mother, because they had no money and they needed money given the mother had just given birth to twins. He was hoping to come back to Australia to use his words “rectify or regain his relationship” and did so in late 2011. He endeavoured to spend some time with the children with little success, and he realised the relationship was over and he took work in (country omitted) in June 2012.

27. The mother said he just abandoned her and the children and I do not accept that evidence. I accept that the father told her he had made an application for a job in (country omitted) in 2012, that he was successful and that he was taking the job as he could not find work of a commensurate remuneration in Sydney. Since that time the father has used his income to support his family in paying the mother spouse maintenance despite her own income, payment of child support and has maintained the (country omitted) property.

28. Mr L could see no difficulty with the orders the father proposed that by 2020 the twins would be mature enough to travel overseas to spend time with their father. He cautioned that they would need a familiar adult with them on the first few occasions of such travel because overseas travel is different and new and could be anxiety causing.

29. Mr L said provided the children had been spending good quality holiday time with their father in Australia which the parents had agreed should be happening between now and 2020, that this time that would prepare them to spend such time overseas, and that in fact overseas travel is exciting.

Parental responsibility

1. The mother says she requires sole parental responsibility. At one level I understand this position. The mother and children live in Australia, the father overseas and she is the parent on the ground doing all the hard yards alone and has effectively exercised sole parental responsibility since their birth. However, there are other more subtle undercurrents in this matter than just the practical reality.

2. I do not accept there has been family violence between the parents. Therefore, there is no basis to rebut the presumption for that reason. Merely because the parent is overseas and not living in Australia is also no reason to rebut the presumption.

3. Mr Hurley has shown himself a competent and capable parent, well-interested in his children’s needs, and is able to directly communicate with the mother in a respectful and polite way. It has been the mother that has not communicated with him. It is important for these children, particularly when their father lives overseas and where they have a (country omitted) cultural heritage which can be best nurtured by their father and paternal family in Australia, that their father is part of the decision making process for them.

4. Although in many cases with these facts and a poor level of communication, I would rebut the presumption I accept the position of Mr Dura and the Independent Children’s Lawyer who also supported an equal shared parental responsibility for the following.

5. Given the mother’s past history of excluding the father from decisions, in repeatedly not responding to the father’s repeated pleas to spend time with or communicate with the children I am concerned that to further exclude the fathers input at law would make it difficult to maintain for these children the significant benefit to them of a meaningful relationship with their father, the paternal family who live in Sydney, whom are also desirous and willing to spend time with the children.

6. Parental responsibility will be shared to do other than that would not be an order in the childrens’ best interests and the mother’s track record of not involving the father in decisions to be made for the children until sometime after the decision has been brought into effect cannot continue.

7. It is an imperative that this responsibility be shared to ensure the children maintain the benefit to them of a meaningful relationship with each parent. This order will not affect the children’s lives day to day and each parent is competent and capable and takes their responsibilities as a parent seriously.

8. When the father is in Sydney, he takes the children to see their uncle, cousins and grandmother. The mother agreed that she had not been able to see her way clear to picking up the phone and seeing if the children’s only cousins and/or grandmother would like to come to a birthday party, for example. Such a gesture had never crossed the mother’s mind. This is all the more poignant as the children recently lost their maternal grandmother and thus the father’s family is their only extended family.

9. The father made inquiries with his brother and sister-in-law and sister at the trial and they agree to accept a call from the mother; and accept an invitation to a birthday party. The mother agreed she would similarly accept an invitation from the father’s family for her children to attend their cousin’s birthday party. The father hopes that when he is spending more time and overnight time which time will occur at the home of the paternal uncle in a family environment the children will have the benefit of their extended paternal family in Sydney, and enjoy their cultural heritage, including time with their grandmother who is often with the father’s brother.

10. The father hopes that his brother, sister and mother may, in time, become the familiar figure to be able to accompany the children back to (country omitted) or such other places the father may be living and working from time-to-time.

11. The parents agreed that for the father’s time in school holidays, either the week before the holidays commence or the week after they cease the father will remain in Australia and take them to and from school. The father assured the Court and I accept he is able to work for a week either side of the children’s school holidays in Sydney within school time. This will give him and the children the important opportunity of getting to know their school, their friends, their parents’ friends, and taking the children to and from school each day.

12. The father must give the mother 56 days’ notice of which week he intends to spend with the children before or after the school holidays and where the children will be staying. He will further be ordered to ensure the children attend school and any extracurricular activity they may be attending from time to time during that time.

13. The parents have agreed on the time the children are to spend with their father in Sydney it is the time overseas I am now tasked to deal with and looking at the relevant matters under section 60CC[1] that impact on this decision.

    [1] Family Law Act 1975 (Cth), s 60CC.

14. Time overseas will be a change for the children. However, they are of a (country omitted) background from their father and enjoy a (nationality omitted) heritage from their mother and their parents have also lived overseas. Thus these children may have a greater affinity and capacity with travel than others due to the experiences of each of their parents.

15. I do not see the father is a flight risk nor would he be taking them to a non-Hague country.

16. The issue of the children’s capacity to fly to (country omitted). Both the father and the Independent Children’s Lawyer’s views are consistent with some minor differences only and at what age the children can fly to (country omitted).

17. The mother puts no such proposal to the Court and cannot see a way clear for the children to travel until late primary school or high school.

18. The proposal is that the children spend 2 periods of holiday time each year overseas with their father and that the father come to Australia for the other school holiday period commencing 2020. Mr L was of the view that by 2020 the children will be mature enough and able to spend time overseas away from their mother in their father’s care.

19. It was clear from the father’s evidence that in 24 months he may well be offered a position in (country omitted) and he would take such a position. I accept for the mother that is a difficulty. (country omitted) is nine hours. (country omitted) is a much further flight requiring stopovers. I can understand the mother’s concern in that there is a degree of uncertainty about where the father will be working in two years let alone in 2020.Thus his request that the children travel overseas and spend time with him where he is living and working may be a moveable feast.

20. The father says they well be able to travel overseas to where he is living at age nine. By that time the children will have spent significant time with their father in Sydney in being a week at a time in school holidays. The children ought to be very familiar with their paternal family, who they see and know currently on the limited time they spend with their father in Sydney.

21. Given their developmental progress thus far and supported by Mr L’s opinion that provided they are travelling with a familiar adult for a time they will be able to manage time overseas, I have formed the view that they are well able to have a trip to (country omitted) or (country omitted) or (country omitted), depending on where the father lives by age nine.

22. The father agreed that for the first overseas holidays for the children he will pay for the mother to accompany them by paying for her economy return air flight tickets to and from wherever he is living at that time. That was a concession made by him and it was appropriate, child-focused and was very much in the children’s best interest.

23. The father will accompany the children on the second occasion of overseas travel to and from Sydney. Thereafter one of his family members, being his brother, his sister or the children’s grandmother will travel with the children to enable them to spend time with their father where he will be working be it (country omitted), (country omitted) or (country omitted).

24. The father will bear all the children’s costs of associated with them travelling to and from wherever he is working otherwise, his time with the children in holidays would be enjoyed by him in Sydney.

25. The order will be that the children travel to where their father lives for two occasions during school holidays each year commencing the first term of February 2020, with the father to give the mother appropriate notice.

26. Going now to the third important issue which was the children’s name. The mother’s conduct in relation to naming the children against the father’s wishes is not justified in any way. Her trawling through the internet to attempt to establish that the name the father chose for the children’s middle names were offensive did her no credit and was untrue as the spelling was incorrect.

27. These children will henceforth be known as X and Y. The mother will sign the appropriate application at Births Deaths & Marriages to change the children’s surname on their birth certificates and to include on their birth certificates their father’s name. To do otherwise will be to deprive the children of significant names for both their mother and father and minimise the father importance in their lives.

28. The remaining parenting orders to be made will be as set out by the father and the Independent Children’s Lawyer as to non-denigration orders, Father’s Days, children’s birthdays, (event omitted), Christmas etc. as these were agreed.

PROPERTY ISSUES

1. The balance sheet is as follows:

Ownership	Description	Wife Value	Husband Value
Assets
Husband	(country omitted) Property	$762,000	$762,000
Husband	(omitted) Motorcycle	$6,500
Husband	(omitted) Motor Vehicle	$21,000
Husband	(omitted) Bank e-saver	$200
Husband	Etrade-equities	$11,244
Husband	(omitted) e-trade	$51
Wife	Property A	$1,625,000	$1,625,000
Wife	(omitted) Bank – Funds in account	$104,000	$104,000
Wife	(omitted) Shares	$1,195	$1,195
Wife	Jewellery	$41, 300
Total	$2,572,990

Party	Description	Wife Value	Husband Value
Liabilities
Wife	CGT in respect of Property B	$38,000	$38,000
Wife	Mortgage in respect of Property A.	$1,200,000	$1,200,000
Husband	Inland Revenue Authority: (country omitted)	$68,100
Husband	Mortgage in respect of (country omitted) Property	$472,000
Husband	Strata Fee in respect of (country omitted) Property	$9,450
Husband	Chilled water fee in respect of (country omitted) Property	$2,980
Husband	Maintenance in respect of (country omitted) Property	$1,550
Husband	Loan from Ms W ((country omitted) Property)	$460,000
Husband	Loan from Ms W	$78,026
Husband	(omitted) MasterCard	$40,000
Husband	(omitted) MasterCard	$3,000
Total	$2,373,106

Superannuation
Member	Name of Fund	Type of Interest	Wife Value	Husband Value
Wife	(omitted)	$33,122	$33,122
Wife	(omitted) Super	$8,100	$8,100
Husband	(omitted) Fund	$56,360	56,360
Total	$97, 582	$97, 582

1. When the matter came before on 29 January 2014, I made an order that the husband was to pay the wife the sum of $1245 by way of periodic spousal maintenance each week and pay her costs in the sum of $7,417. I also restrained him from disposing of certain items and he was to pay an amount for repairs to the property so that the wife and children could live in the unit. The father complied with that order and also was paying child support in accordance with assessments issued by the Child Support Agency. Despite the mother’s assertion to the contrary, I find the father has always paid the assessments issued and or pursuant to orders made.

2. On 28 April 2015 I reduced that order to $675 a week as the wife had been renting out the Property B property at some $600 a week without the knowledge of the husband, whilst receiving the spousal maintenance of $1240 a week. I discharged the order for spousal maintenance at the cessation of the final hearing as the wife was earning an income, and had been for some time. The wife has been less than open and honest with the Court and particularly with the husband about her financial position and yet asks me today to accept what she says.

3. The wife’s attitude to money and the children’s needs is, at times, breathtaking. They attend a (language omitted) school at a cost of $10,000 per annum each and they have had every health service that could possibly be provided for any child.

4. The wife received some $276,000 net profit or thereabouts from the sale of Property B which settled in December 2016. The mother asks that I accept that she has paid and/or is to incur the following expenses from the net proceeds of the sale of her property at Property B set out at paragraph 62 of her affidavit.

5. The mortgage of $344,000 was paid.

6. Legal fees of $3112.

7. Commission $15,000.

8. Capital gains tax to be paid was estimated at $50,000. The wife has, put $75,000 in an account for the payment of capital gains. However reading the documents attached to her affidavit, being her taxation estimate for 2016, her total tax, including capital gains, will be some $38,000.

9. Barkus Doolan legal fees, $23,000.

10. (omitted) legal fees for the probate matter, $50,000.

11. Mr R, SC for the probate matter, $10,000. The mother and her sister are in a dispute over aspects of their mother’s will. These aspects being properties in Property C, in (country omitted), cash, shares other personal items. However, it would appear that the wife’s ownership of Property A is assured as that property was purchased by her and her mother as joint tenants before her mother’s death.

12. Essential repairs for Property A $18,000.

13. Odd jobs $12,000.

14. Security doors $3000.

15. Roof repairs, $7800.

16. School fees for the children, $21,000.

17. Replacing the rotten front veranda at Property A $30,000.

18. Estate planning - a will for herself $2,500.

19. Credit card, $8000.

20. Additional legal fees from Barkus Doolan, $8000.

21. Costs on an ongoing basis are;

    a.Y’s medical costs at $125 weekly for occupational therapy;

    b.Speech pathology at $140 per week;

    c.Orthodontic palate expander at $8000 for each child.

22. The mother agreed the palate expander is a very future cost. On those figures the wife will have expended all the monies she received from the sale of Property B.

23. The wife has $104,000 left from the sale of Property B broken up into $75,000 in a fixed account and some $25,000 in an everyday account.

24. The husband’s assets in the balance sheet.

25. The property in (country omitted) valued at $762,000. The wife complains about that valuation however she provided no other valuation and I will accept this figure.

26. (omitted) motorbike, $6500.

27. (omitted) motor vehicle, $21,000. These are the husband’s assets.

28. I will not take account of money in the husband’s every day account, (omitted) bank. Those accounts are either of a small compass or is money he has earnt since separation unlike the wife’s bank accounts which is money from the sale of an asset.

29. E-trade equities $11,244.

30. Husband’s debts.

31. Tax of $68,000. This is not a matrimonial debt given the length of separation I will exclude it from the balance sheet.

32. Mortgage for (country omitted) $472,000.

33. Strata fee for (country omitted), $9450.

34. Cold water fee for (country omitted), $2980.

35. Maintenance for (country omitted) $1550.

36. Balance of loan from his mother, $460,000.

37. Loan from Ms W $78,026 in the husband’s name. This is the husband’s debt and not a matrimonial debt.

38. Husband's (omitted) Bank and (omitted) MasterCard’s are not matrimonial debts.

39. The wife’s assets in the balance sheet.

40. Wife’s property at Property A, $1,625,000. The wife dispute this should be included.

41. Wife’s bank account, $104,000. The wife disputes this should be included.

42. Wife’s jewellery $41,000. I will not include this as a matrimonial asset for division as it consists in the main of gifts.

43. (omitted) shares $1,195. They are the wife’s shares and not a matrimonial asset.

44. Wife’s debts.

45. Capital gains tax of $38,000 in relation to Property B.

46. Mortgage of $1,200,000 in relation to Property A.

47. The wife has some $40,000-odd in super and the husband $56,000. I propose to leave the superannuation where it is and neither party contend for a super splitting order.

48. I will not allow the wife any of her future expenses for Property A as a matrimonial debt, as they are contingent at best and she will be receiving additional funds from her mother’s estate when that matter is finalised.

49. In relation to the loan from the husband’s mother. I accept that is a valid debt. It has been pleaded in documentary form of a signed and dated debt agreement between the husband and his mother. Further, the use of this money together with their limited savings at the time and the husband’s redundancy is the only explanation of how the parties funded the deposit on the (country omitted) property and lived in (country omitted) without income for 2 years.

50. The argument for including Property B in the matrimonial pool is this. The wife purchased Property B shortly before the commencement of the relationship and with money she had saved of some $80,000. However, whilst the parties lived in (country omitted), that property was rented out. There was, on the wife’s evidence, a shortfall between the rental and the mortgage payments. The wife said it was modest, the husband said it was a greater amount. In the absence of bank records I can make no finding.

51. However, on many issues the wife gilded the lily and I have difficulty in accepting her accuracy as an historian. Her evidence that the parties had saved $200,000 in 12 months in (country omitted) was unacceptable. The wife when pressed tended to the histrionic.

52. This is in stark contrast to the husband who made many concessions about his regretful behaviour, the wife’s clear funding of Property B and the like.

53. He deposed to looking with the wife for a property to purchase in Australia and assisting her in that regard in purchasing Property B and that this really was a joint venture by them although he agrees the wife used her pre relationship savings to fund the deposit and stamp duty. When there is a contest, I prefer the husband’s evidence to the wife.

54. I find that there has been a contribution by the parties from their joint incomes and particularly when the wife was not working for one year in (country omitted), the husband’s sole income was used for the conservation of Property B. Additionally, the husband only seeks to include money the wife still has from that sale, not the net amount she received. On these facts I will include the $104,000 left over from the sale of Property B as a matrimonial asset.

55. In relation to Property A, the argument that it be included in the matrimonial pool is more tenuous. The husband’s case for this is as follows.

56. The wife came to Court in 29 January 2014 stating loudly that “I cannot make ends meet. The needs of myself and my children are such that the husband must support me.”

57. I accepted her assertions. I accepted that she was earning virtually no income or a very limited income and I ordered the husband pay her $1,245 a week by way of spousal maintenance. This was to assist and support her with the payment of the mortgage on Property B where she and the children were living. I also made a costs order against him. The husband was additionally paying child support.

58. Yet the wife was, after August 2014, renting out the Property B property, and receiving an additional $650 a week by way of income and told no one of this increase in her income.

59. Additionally, in August 2014 when the wife and her mother entered into a mortgage to fund the purchase of a property at Property A, the wife included in her loan documentation with the bank that part of her income was the spouse maintenance order of $1,245 per week.

60. The veracity of the wife’s claim to me in 2014 that she required an order for spouse maintenance is now at issue due to the wife minimising her resources to the Court and maximizing her income to the Bank at the same time. The evidence now may possibly lead me to find that the wife has been deceitful in that she has used monies paid to her by the husband for her maintenance to fund the purchase of property when had the true facts been known to the Court such an order may not have been made.

61. In light of these facts and my findings, it is clear the husband has contributed to the acquisition, conservation and ongoing maintenance of Property A by his overpayment to the wife of spouse maintenance and the payment of spouse maintenance to which she was not entitled had her true financial affairs been known to the Court.

62. This behaviour continues today as the wife has not corrected the error in her stated income on the latest child support assessment of some $4,000 when, on her own evidence, she earnt some $70,000 per annum for the relevant period and was earning income during the period spouse maintenance was paid.

63. Additionally some $60,000 to $70,000 from the sale of Property B has gone directly into the maintenance of the Property A property. As such the husband has made a contribution to Property A.

64. Thus I find the matrimonial assets for division to be.

Ownership	Description	Value
Assets
Husband	(country omitted) Property	$762,000
Husband	(omitted) Motorcycle	$6,500
Husband	(omitted) Motor Vehicle	$21,000
Husband	Etrade-equities	$11,244
Wife	Property A	$1,625,000
Wife	(omitted) bank – Funds in account	$104,000
Total	$2,529,744

Party	Description	Value
Liabilities
Wife	CGT in respect of Property B property	$38,000
Wife	Mortgage in respect of Property A.	$1,200,000
Husband	Mortgage in respect of (country omitted) Property	$472,000
Husband	Strata Fee in respect of (country omitted) Property	$9,450
Husband	Chilled water fee in respect of (country omitted) Property	$2,980
Husband	Maintenance in respect of (country omitted) Property	$1,550
Husband	Loan from Ms W ((country omitted) Property)	$460,000
Total	$2,183,980

Superannuation
Member	Name of Fund	Value
Wife	(omitted)	$33,122
Wife	(omitted) Super	$8,100
Husband	(omitted) Fund	56,360
Total	$97, 582

1. Net equity for division less superannuation is $345,764.

2. The husband’s case is that I should equally divide whatever I find to be the net equity. That it ought to be an equal division of that property having regard to the financial contributions made by each of the parties to their various assets. The husband asserts he has made a superior financial contribution to the assets over the wife and he has by way of income and the loan from his mother who funded the purchase of (country omitted) property and the parties living expenses in (country omitted) for 2 years while neither was employed.

3. However, the contribution of the loan from his mother cannot be double counted, in that it has been taken into account in determining the party’s net assets and has reduced the pool for division.

4. The husband seeks to retain the (country omitted) property and the loan to his mother is not repayable under the loan agreement until the property is sold, nor are there any payments to be made under the loan agreement of a regular type unlike the (omitted) Bank mortgage.

5. The reality is that the husband is receiving an allowance for the debt to his mother which is a debt he does not have to repay nor does he have ongoing payments in respect of, provided he retains the (country omitted) property. This is not the case for the mortgage with (omitted) Bank.

6. I accept the husband has made all payments in respect of the (country omitted) property including strata levies and other fees, and I have allowed him the current debts of the property in the balance sheet. However, the husband has also had a superior income to the wife during the time since (country omitted) was purchased and has retained all the income from the rental of that property.

7. Going to the wife’s past contributions. The wife has made a superior initial financial contribution to the Property B property by her $80,000 in savings put into the property.

8. The wife and her mother were the ones who purchased Property A with no input or practical assistance from the husband although he has made a financial contribution to its acquisition and maintenance by way of spouse maintenance payments and injection of capital from the sale of Property B.

9. The equity in Property A is $420,000. Half of the net value was inherited by the wife from her mother and from her mother’s estate and thus the husband has made no contribution to 50% of the current equity. Thus I find there has been a superior initial contribution by the wife to the acquisition of both items of real estate in Australia.

10. There is no doubt that the husband’s mother’s money which I have given him full credit for was used by the parties to fund their lifestyle in (country omitted), however, they lived rent free in a property owned by the wife’s mother during that time which must also be seen as a contribution by the wife.

11. In addition the wife has made the overwhelming contribution as parent and homemaker, given the husband’s absence overseas working. The husband has been the primary financial provider for the family, however, the wife has also worked and used her income to support the children. The wife has two children to care for, and although the husband has been a good financial provider and will continue so to do, the wife solely parents these children in reality, day-to-day in Sydney alone. The wife is the parent who takes them to and from school, to medical appointments, to extra-curricular activities as the father cannot do so.

12. I find that the wife has made a past superior financial contribution both financially and as a parent and homemaker and assess that contribution based entitlement at 60%.

13. In relation to future needs. Post separation, the wife’s contribution as parent and homemaker and continuing into the future, will always be superior to that of the husband. The sole care of these young children does have a negative impact on her income earning capacity which is not the case for the husband; although I accept he will fund the high costs of travel for the children to spend time with him.

14. The husband earns currently 3 times the income of the wife.

15. For that future need I will adjust her past contribution based entitlement by 10% giving a total of 70% of the matrimonial assets to the wife.

16. This then results in the following cash adjustment.

17. 70% of $345,764 is $242,035 to the wife and $103,729 to the husband.

18. The husband currently has $38,744 in liquid assets. This would require a payment to him by the wife of $64,985 and each would retain all other assets in their name.

19. I find that division of property to be just and equitable in all the circumstances and I will so order.

I certify that the preceding two hundred and twenty-eight (228) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date:  28 July 2017