KLEIN & SEWARD

[2019] FCCA 391

FEDERAL CIRCUIT COURT OF AUSTRALIA

KLEIN & SEWARD [2019] FCCA 391

Catchwords:
FAMILY LAW – Parenting and property – where the mother has unilaterally relocated the residence of the children – allegations of family violence – allegations of mental ill-health – allegations exaggerated or unfounded –  mother’s well-being may be compromised if ordered to return – high level conflict – both parents are competent and capable – equal shared parental responsibility – small property pool – equal contributions by the parties – division of assets in favour of the wife.

Legislation:

Family Law Act 1975 (Cth), ss.4AB(1), 60CC, 60CG, 61DA, 65DAA, 75(2)

Applicant: MR KLEIN

Respondent: MS SEWARD

File Number: ASC 2 of 2018

Judgment of: Judge Young

Hearing dates: 13, 14 & 15 November 2018

Date of Last Submission: 15 November 2018

Delivered at: Darwin

Delivered on: 22 February 2019

REPRESENTATION

Counsel for the Applicant: Mr Gunn

Solicitors for the Applicant: Collier Lawyers

Counsel for the Respondent: Ms Farmer

Solicitors for the Respondent: Withnalls Lawyers

ORDERS

Parenting

1. That the parties have equal shared parental responsibility for the children [X] born … 2008 and [Y] born … 2010 (“the children”).

2. That the children reside with the mother in the Town A region, Western Australia.

3. That the mother is not to relocate the residence of the children away from the Town A region without an order of a court of appropriate jurisdiction.

4. That the mother provide the father with her postal and residential address.

5. That should the father remain living in Town B, the children will spend time with the father during Western Australian gazetted school holidays as follows or as agreed by the parties in writing:

   (a)For one half of the first term school holidays each year with this period to coincide with [Z] being in the care of the father where possible, failing agreement the children are to spend the first half of the holidays with the father and the second half of the holidays with the mother;

   (b)For one half of the mid-year school holidays each year with this period to coincide with [Z] being in the care of the father where possible, failing agreement the children are to spend the first half of the holidays with the father and the second half of the holidays with the mother;

   (c)For the whole of the third term school holidays each year; and

   (d)For the first half of the Christmas school holidays in odd years and the second half in even years alternating each year thereafter.

6. That for the purpose of order 5 herein:

   (a)The father is to book and pay for airfares for the children not less than 2 months prior to travel;

   (b)Upon booking and paying for the airfares, the father is to provide a copy of the itinerary and the tax invoice to the mother with the mother to reimburse the father one half of the expense at the completion of the school holiday period;

   (c)The father will endeavour to obtain the cheapest economy airfares available;

   (d)In the event that a flight is delayed or cancelled by the airline the father is to notify the mother at the earliest opportunity with the children to be placed on the next available flight at the equal cost of the parties;

   (e)In the event that that the children are unable to travel due to illness while in the care of the father, the father is to notify the mother at the earliest opportunity and book and pay for return airfares as soon as practicable with the mother to reimburse the father one half of any associated costs; and

   (f)In the event that the children are unable to travel due to illness while in the care of the mother, the mother is to notify the father at the earliest opportunity and makeup time be allowed at the next school holiday period with the mother to reimburse the father with one half of any associated costs.

7. That in the event that the father relocates and lives within 50 kilometres of the mother’s residence in the Town A region, the children will spend time with the father as follows or at other times as agreed by the parties in writing:

   During school terms

   (a)From after school Wednesday until the commencement of school on Monday each fortnight, commencing on the first Wednesday following the father’s arrival in the Town A region, Western Australia.

   During school holidays

   (b)For one half of the first term school holidays each year with this period to coincide with [Z] being in the care of the father where possible, failing agreement the children are to spend the first half of the holidays with the father and the second half of the holidays with the mother;

   (c)For one half of the mid-year school holidays each year with this period to coincide with [Z] being in the care of the father where possible, failing agreement the children are to spend the first half of the holidays with the father and the second half of the holidays with the mother;

   (d)For the whole of the third term school holidays each year; and

   (e)The first half of the Christmas school holidays in odd years and he second half in even years alternating each year thereafter.

8. That while the children are in the mother’s care, the father may communicate with the children by telephone, FaceTime or Skype on Wednesdays and Sundays at 7:30pm each week with the father to place a call to the mother’s mobile telephone and with the mother to facilitate the call.

9. That upon being presented with a copy of these orders, the children’s schools and medical practitioners are authorised to provide both parents  with the following:

   (a)A copy of school reports, school newsletters, school photo application forms, parent/teacher interview notices and any other information, documents or materials associated with the educational needs of the children; and

   (b)A copy of medical records including referrals, information regarding any medical condition suffered by the children including treatment information and any other information concerning the health and wellbeing of the children.

10. That the parties will:

    (a)Communicate via text or email except in the event of an emergency concerning the children;

    (b)In the event of any medical or other emergency whilst in their respective care, the parent with care of the children is to contact the other parent by telephone at the earliest opportunity; and

    (c)Keep each other informed of their current contact details including their residential and postal address, telephone numbers, email address and Skype details and will inform the other of any change in contact details within 7 days of the change.

11. That unless otherwise provided in these orders, both parties be restrained by injunction from:

    (a)Denigrating the other party or members of the other party’s extended family in the presence of the children;

    (b)Approaching within 200 metres of each other SAVE AND EXCEPT for school events, extra-curricular activities, sporting and other events of similar nature at which the other party might be present;

    (c)Entering or remaining on the premises of the other party’s residence; and

    (d)Communicating or attempting to communicate by any means with the other party, other than in relation to matters concerning the children

12. That both parents are permitted to travel overseas with the children.

13. That in the event that either parent intends to travel with the children for a period of more than 72 hours they are to advise the other parent of their departure and return dates and provide a contact number so that the children may be contacted by telephone, FaceTime or Skype during that period.

14. That the mother is not to travel with the children during their time with the father unless agreed by both parties in writing with makeup time to be provided at the next school holiday period.

    Property

15. That the husband is to pay the wife $40,125.00 within 12 months from the date of these orders on the following conditions:

    (a)The husband is permitted to pay the prescribed amount in instalments; and

    (b)From the date of these orders the husband is to pay interest on the amount prescribed or any such part thereof which remains due to be paid to the wife as prescribed by Rule 22.01 of the Federal Circuit Court Rules 2001 (Cth) (presently at 7.5% p.a).

16. That within 30 days from the date of these orders the parties will sign all documents and do all things necessary to roll over 50% of the superannuation entitlements from the parties self-managed superannuation fund “Super Fund” (“the superannuation fund”) into a superannuation fund of the wife’s choosing and thereupon the husband shall release the wife and the trustees of the superannuation fund from and against all and any cause of action the husband may have had in the past or may at any time in the future have against the wife or trustees for any decisions made and actions taken by them as trustees of the fund.

17. That in the event that the husband does not pay the wife the amount prescribed in order 15 herein, the husband is to sell the property located at Property C and the following conditions shall apply:

    (a)Within 30 days from the date of these orders each party shall do all things and execute all documents necessary to cause the property situated at Lot … Town of Town C from plan(s) … Volume … Folio … and known as Property C (“the property”) to be sold by private treaty at the earliest possible date and that the proceeds of sale be disbursed as follows and in that priority:

    (i)In payment of agents commission, advertising expenses, conveyancing adjustments and legal expenses of the sale;

    (ii)In payment of costs incurred in relation to the nomination of a real estate agent (if any), in payment of costs incurred in relation to the nomination of a solicitor (if any) and in payment of costs in relation to determination of value or selling price by the President of the [insert state] Division of the Australian Property Institute or his/her nominee (if any);

    (iii)Discharge of all mortgages secured on title;

    (iv)The net balance to be to the wife to satisfy order 15 herein.

18. That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act that the Registrar of the Federal Magistrates Court of Australia, Darwin Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.

19. That within 30 of days from the date of these orders, the wife shall sign all documents presented to her by the husband and provide all necessary consents, directions and authorities required and presented to her by the husband and the wife shall do all other things necessary at the expense of the husband to do or cause the following:

    (a)Transfer by the wife of all of her shares and interests in Company D (“the company”) to the husband or his nominee and resign all offices, positions and employment in relation to the company; and

    (b)Transfer by the wife of all her interest, units and other entitlements in the superannuation fund to the husband or his nominee and resign and remove herself from all positions as appointor and trustee in relation to the superannuation fund in favour of the husband and/or his nominee; and

    (c)Assignment by the wife to the husband and/or his nominee of all credit loan accounts standing in her name and the parties’ names jointly in the company; and

    (d)The husband shall attempt to transfer to his name from the wife’s name all debit loan accounts standing in the wife’s name and/or the parties’ names jointly in the company; and

    (e)The husband shall attempt to procure for the wife a release from liability, if any, pursuant to all mortgages, financial facilities and charges in relation to the company’s, director’s or personal guarantees to any creditor in relation to the company (“the guarantees”) and the receipt by the wife of a letter from the creditors stating the wife is released from all personal liability in respect of any actions, claims, suits, and demands arising under the guarantees shall be sufficient evidence of compliance by the husband with this paragraph; and

    (f)The husband hereby indemnifies and shall keep indemnified the wife in respect of all liabilities in relation to the company, whenever and however arising, including but not limited to all taxation liabilities of the companies or either party personally arising in connection with any interest, loan account, office or employment in relation to the company; and

    (g)That, as between the parties, the husband shall then be solely entitled to all interests in the company.

20. That pursuant to Section of the 78 Family Law Act that the husband and the wife respectively shall be and hereby are declared to be the sole and absolute owners at law and in equity of:

    (a)All items of furniture, furnishings, personalty, chattels and jewellery;

    (b)All monies (whether held in cash or in deposit with any financial institution);

    (c)Any motor vehicle;

    (d)All contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;

    in the possession, custody or control of each or in which either has an interest which are not otherwise dealt with in these orders.

21. That before an application is made to a court of appropriate jurisdiction for variation of these orders the parties are to:

    (a)Do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) or by the Commonwealth Attorney-General; or

    (b)Attend family dispute resolution with a person authorised under 10G of the Family Law Act 1975 (Cth).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALICE SPRINGS

ASC 2 of 2018

MR KLEIN

Applicant

And

MS SEWARD

Respondent

REASONS FOR JUDGMENT

1. This is a parenting and property case.  The children are [X] and [Y] who are 10 and 8 years old respectively.  They presently live with their mother near Town A in Western Australia.  The children and their parents formerly lived in Town B.  The applicant father seeks an order that the children live with him in Town B and spend time with the mother or, if the mother returns to live in Town B, a “shared care arrangement” (spending equal time is intended). If the court makes orders that the children live with the mother and permitting her to relocate the residence of the children to their present home near Town A then the father seeks a shared care arrangement if he moves to live in Town A. The respondent mother seeks orders permitting her to remain living “in Western Australia” with the children.

2. The father is 43 years old and the mother is 40 years old.  They began living together in … 2005.  They married in 2008 and separated in June 2017.  Initially the mother and the father remained separated under one roof in the former matrimonial home.  Later they seem to have entered into an arrangement where they lived separately but each moving into the former matrimonial home when the children were due to spend time with them.

3. The mother also appeared to continue to work in the family business in the central Australia area.  This arrangement broke down in December 2017 and in January 2018 the mother unilaterally relocated the residence of the children to Western Australia.  The father initially sought a recovery order but consent orders were made permitting the mother to remain living near Town A, Western Australia pending trial.

   Parenting

4. In relation to parenting the father asserts that he has a loving relationship with both children and it is in their best interests that they remain living in Town B where they have lived all their lives.  The family report confirmed that both children love the father and, subject to their concerns about the mother’s safety, would prefer to live in Town B.  A central issue for resolution in this case is the genuineness and reasonableness of the mother’s strong objection, primarily on the grounds of the children’s and her safety, to returning to live in Town B.

5. The father’s trial affidavit makes various allegations against the mother including heavy drinking and poor mental health.  A theme of the father’s trial affidavit is the mother’s alleged repeated infidelity during the relationship.  The mother denied any infidelity.  The relevance of this allegation is not obvious on reading the affidavit but may have been intended to relate to an implication of reckless or selfish behaviour by the mother.  The allegations may also be intended to explain the father’s reaction to the event which precipitated the parties’ separation under one roof in mid-2017 preceding their complete separation in December 2017. 

6. The mother was born in Country E and met the father while travelling in Australia as a backpacker.  She had family and friends in Country E and elsewhere in Country E. She had become estranged from her own mother when she was young due to abuse by her mother’s partner although her relationship with her mother was repaired in later years. Before coming to Australia she worked for many years in the Country F and had made friends there with an older married couple, Mr G and Ms H.  She said that she looked on Mr G and Ms H as her own family.  She liked to travel back to Country E to visit family and friends, including Mr G and Ms H. 

7. The mother visited Country E in … 2017.  While in Country E she had a depiction of a … tattooed on her ankle.  She said that Mr G and Ms H had also received similar tattoos and that this was a “family tradition” in Mr G’s and Ms H’s family.  On learning of the mother’s new tattoo (she had a couple of others) on her return to Australia the father described his reaction, in part, as follows:    

   However, as her then husband, I took issue with this particular tattoo as to me it signified her total disregard for both me and our children and that she has (sic) made a lifelong commitment to other people whom I dislike.   

   … After seeing the tattoo I was heartbroken and smashed a chair.   

8. The father went on to say that the children were at the other end of the living room at the time but there was no risk of harm to them.  He said he later discussed the incident with the children to let them know that he “considered this behaviour totally inappropriate”. 

9. The mother described father’s response to the discovery of her tattoo as follows:

   … [the father] went into a rage, picked up a toolbox with sharp items which included screwdrivers and nails and was about to throw the toolbox on the tiles.  I grabbed the toolbox from him and instead he grabbed a solid hardwood dining room chair and smashed it on the tiles.  Throughout his rage he was screaming at me that: I was a “fucking slut” getting a tattoo with my friends; what a horrible person I am, an inhumane, slutty monster of a shit wife he wasted his last 12 years on.

   He screamed at me repeatedly in front of [X] and [Y] to get the fuck out of his house, what I was (sic) thinking of “getting a tattoo with a bunch of cunts that has (sic) nothing to do with him”.  The children were present and they were crying and were huddled on the couch.

   … in an attempt to appease [the father] I agreed to get a tattoo of his name around my ankle, to take no more holidays on my own again, not to show my tattoo in public or at home, to wear socks at all times and not to go about barefoot in the house, and to sleep in the spare room or office.

   [The father] was sure that Mr G was my lover.  He made me hand over my phone and give him access to my emails so that he could make sure I did not have any secrets.  He said I was not to show my tattoo anywhere.  He screamed at me, threw himself on the floor and he sobbed (no tears) in front of the children.  I objected to his behaviour and told him to pull himself together and not make a scene in front of the children.  He said that it was all right (sic) for the children to see how sad and destroyed he was.

1. I have reservations about the reliability of the father’s evidence.  Although I have some reservations about the mother’s evidence I generally accept her as a somewhat more reliable witness in relation to factual matters although I consider that some of her interpretations and conclusions are disproportionate and exaggerated.

2. The mother alleged that the father had been controlling and denigrating of her throughout the relationship.  There was some evidence this was true.  In a series of email exchanges from 2015, about two years before separation, the father castigated the mother about various things while she was holidaying in Country E. He was jealous: accused her of infidelity, insulted her and used language that any person of ordinary sensitivity would find offensive and difficult to bear.  The mother denied any infidelity and attempted to placate the father.  I am satisfied that this was likely to be a pattern repeated through the marriage.

3. I am satisfied that during the period following separation in June 2017 the father threatened suicide on one or more occasions. This is apparent from an email from the mother to the father dated 15 August 2017 where she said she had sought advice about his threats and she said if he made a further threat she would call the police to have a health assessment made.  She said:

   I can’t deal with you saying these things and making me feel impossibly guilty so I am going into a kind of shock, worrying about you what you might be able to do to yourself.  I do care about you and so do the boys and your family and friends. 

4. According to the father's affidavit, after separation but while the parties lived under one roof, the mother saw "other men" and left her "dirty party clothes" for him to find. He described this as "cruel disregard".  The mother admitted that she had been out with another man once during this period.  In December 2017 the mother left the former matrimonial home after another incident when, according to the mother, she was “kicked out” of the former matrimonial home by the father and a box of her personal belongings was thrown and strewn on the road. According to the mother the children were present during this incident.

5. The immediate circumstances of a marriage breakdown are likely to be a time of heightened and extreme emotions for all concerned.  Irrational and dysregulated behaviour is common.  Nevertheless, I consider that the father's behaviour, in particular, immediately after the end of the relationship was controlling and coercive, angry, and denigrating of the mother.  This, including a threat or threats of suicide, must have been extremely stressful for the mother.  I am satisfied that this has significantly contributed to her genuine anxiety about returning to live in Town B.    

6. The father did not appear to have much insight into the dynamics of the situation.  Overall, it appeared to me that the father was controlling, insecure and jealous of the mother during the relationship and in the period immediately after.  As an example, after separation he apparently threatened to report the mother to "authorities" because she continued to pay herself from the business. In evidence, he said that her behaviour was "wrong" but without attempting in any way to delineate what he suggested was criminal behaviour.  I am satisfied that the mother's behaviour was not criminal and the father's threats were an example of him attempting to control the mother.

7. The father's evidence was equivocating and emotional. He was anxious to blame the mother for various things.  He accused her of having a drinking problem, notwithstanding that he had told the family consultant in May 2018 that he had no current concerns about her drinking.  He alleged that the only occasion of physical violence between the parties was when the mother had attempted to choke him during a dispute saying:

   On 27 October 2017 [the mother] attacked me and wrapped both her hands around my neck choking me.  During this episode she was saying that she hated me.  She was looking very closely into my eyes during this episode.  It lasted for approximately 20 seconds during which time I observed a change in her eyes where she checked her actions and stopped.  I was very scared.  She left and I picked up the children from school for my weekend contact.  I reported the incident immediately to my lawyer, without details, and to a friend later in the evening. 

8. In cross-examination he admitted that immediately before the alleged choking (counsel for the mother suggested she merely grabbed the father’s shoulders) he insulted the mother, including calling her a "slut".  I consider the husband’s evidence on this point, accusing the mother of assault while omitting from his account that he had insulted her by calling her a “slut” immediately beforehand, was untruthful. I am satisfied the father was anxious to paint a negative picture of the mother, was unwilling to recognise his own contribution to conflict and was at pains to justify his own conduct.   

9. The father also appeared emotionally labile during his evidence, at one point bursting into voluble weeping. I was left with concerns about the father’s capacity for emotional regulation. This is of some significance because the mother has said she is afraid of the father and that is one of the reasons why she does not wish to return to Town B.

10. I was concerned that almost 18 months after separation, the father's emotions appeared strong and, to some degree, unregulated.  I was concerned about the extent of his insight into the effect of his behaviour on the mother and the children.

11. The father relied on a report from a psychiatrist, Dr J. The father had not sought treatment and the report was prepared for use in the case. Dr J interviewed the father on one occasion. Dr J recorded that the father had “some self-harm thoughts” at the time of separation but had sought some online support at Mindspot (apparently a website) for self-diagnosed depression. This had been the father’s only depressive episode. Dr J expressed the opinion that the father showed no sign of psychosis or other mental illness and did not think of self-harm to himself or others. Dr J observed that the level of drinking reported by the father (eight standard drinks a night) while with the mother put him in a health risk category.

12. In her trial affidavit the mother recounted some of her background in Country E.  She deposed that she was physically abused as a child by her mother’s partner.  She said he also attempted to sexually abuse her and threatened to kill her when she resisted.  She said she left home when she was about 13 and lived in a home for girls.  She said that when she was 19 years old she rejected a man who then pulled out a gun and shot her.  She said the bullet grazed the side of the head but did not cause serious injury.  She said she was hospitalised for about a week.

13. The mother said that as a result of these experiences she becomes “anxious when dealing with or having any involvement with guns or family violence”.  Part of the relevance of the reference to “guns” is that the mother said the father proposed to join a pistol club at one point.  She said she vehemently objected.  As I understood the evidence the father did not join the club. 

14. The reference to “guns” was also relevant for another reason.  In the family report there was a reference to a claim made by the mother to the family consultant that the husband had made references to “using weapons to kill her”.  In her trial affidavit the mother elaborated on her claims to the family consultant and deposed that the husband had made:

    …verbal threats… to gain and use weapons to kill me including the following:

    (a) He was going to get a gun license (sic);

    (b) He was given a number 7 boomerang used for splitting heads which he showed to me and repeated (sic) told me he “knows” how to use it, that it is secret men’s business how to use it;

    (c) He threatened to “take his pain away” which I considered a direct threat to harm the children. 

15. These are extremely serious allegations. The affidavit was drafted by an experienced legal practitioner. It is surprising that particulars of these claims were not included in the affidavit and there is silence about the time, place and circumstances of the alleged threats.  The father annexed to his trial affidavit an email dated 8 February 2018 from the mother to him.  This email was sent after the mother had left Town B with children and before she revealed her whereabouts to him.  She stated that she had obtained legal advice and orders had been drafted for “sole parental responsibility and for the children to live with me (final and interim orders) as a result of severe domestic violence and threats to harm”.  The email went on to say:

    Since June 2017 you have made multiple threats to commit suicide, get a gun license (sic) and take your pain away.  You have threatened Mr G and myself to use your #7 boomerang to split heads and know how to use the weapon.  I am afraid that you would harm me and/or the children to take your pain away.   

16. While the matters outlined are serious enough there are significant discrepancies between what the mother said to the father in this email, with its emphasis on her fear flowing from his threats of suicide, and her later statements to the family consultant.  The father’s trial affidavit was filed before the mother’s affidavit and does not directly address these allegations.  Counsel for the father did not seek leave to adduce oral evidence in rebuttal (but attacked the mother’s credibility indirectly).  The father denied the allegations, apart from that of breaking the chair, when they were put to him by the family consultant.  He denied threatening to harm the mother or the children.  The father’s threats of suicide were not directly addressed in the family report but the psychiatric report relied on by the father reported that he had had thoughts of self-harm.  The report also stated that the father had denied any thought of or threats to harm the mother or the children.  As noted above I am satisfied that the father has made a threat or threats of suicide to the mother and, in that context, it is possible he threatened to obtain a gun licence. Mr G remained in the Country F at all times and it is difficult to imagine that any threat to harm him with a “number 7 boomerang”, even if made, could be taken seriously.  Although I accept that the mother has interpreted the father’s conduct, particularly the threat or threats of suicide, as constituting a danger to herself and the children I am not satisfied that the father has directly threatened to harm the mother or the children.     

17. The mother’s trial affidavit did not allege any actual physical violence perpetrated against her by the father.  The only episode of physical violence involving the mother alleged against the father was his damage to the chair at the time he discovered her tattoo and, perhaps, the allegation that he threw a box of her belongings onto the road at the time she was leaving the home.  Her allegations are more of verbal denigration and emotional coercion although, as I have noted above, this included one or more threats of suicide.  The mother did allege that the father had been “emotionally and psychologically abusive towards [X] and has subjected him to family violence”.  She alleged that in 2014 the father “assaulted [X] by throwing him against the bedroom wall and smacking very hard across the lower back and bottom, leaving an imprint of his hand on [X]’s back”.  She said that he also denigrated and taunted [X] because of his academic and social slowness. 

18. The mother was not directly challenged on this evidence.  She was cross-examined about an application for parenting and property consent orders to the Family Court signed by the parties on 18 November 2017 and filed on 21 December 2017.  The wife had left the matrimonial home on 14 December 2017.  The wife said she had sought legal advice about the document from Legal Aid but she had been advised to consult a private lawyer.  She did not consult a lawyer before signing the application. 

19. The application seeks orders for shared parental responsibility and that the children spend equal time with the parents, as well as property orders.  The document did not raise any concern about family violence and stated that there has been     no contact with the department responsible for child safety in respect of the children.  Both parties attested to the truth of the statements in the document.  The father said in his trial affidavit that he filed the application.  However, the mother subsequently withdrew her consent to the proposed orders and they were not made.  The mother asserted in cross-examination that she signed the document under “duress” although she had not previously made that claim nor did she provide any further detail in her evidence.  She also said in cross-examination that there had been reports about the children to Territory Families in June 2017 and December 2017.  She did not say who made the reports or what they were about.  If she made the reports or was aware of the reports at the time she signed the application for consent orders that would suggest her attestation of the truth of the matters set out in the application was false.  The matter was not further pursued in cross-examination. I have reservations about the mother’s evidence which I am satisfied displays a tendency to exaggeration which undermines its reliability.

20. The mother relied on a report from a psychologist, Mr K. He has been providing the mother with counselling, although the number and duration of sessions was not mentioned. Mr K referred to a GP having diagnosed the mother with Adjustment Disorder but there was no further information about that. He said that psychological tests on the mother indicated that she experienced severe levels of stress, anxiety and depression. He said this was caused by the mother’s fear that court orders may “lessen her role as the children’s primary carer and may want her to relocate back to Town B”.  He said that if the father “were to move to the town where [the mother] lives her mental health would be severely effected (sic)…”. The report relied on the mother’s history      which was brief and did not mention her childhood experiences in Country E.  He accepted the objectivity of the mother’s narrative of events. Mr K seemed to accept the mother’s explanation for her anxiety. It is noteworthy that the mother did not express any fear to him that the father would harm her; rather she appears to have focussed on the father’s alleged “abusive behaviour” and the risk of continuing conflict in a small town like Town B.  Although Mr K was not cross-examined, I consider the lack of a relevant detailed history detracts from the usefulness of his report.  Nevertheless, I give it some weight.

21. A family report was prepared. It was noted that [X] was reported to have been diagnosed as Level 2 of the Autistic Spectrum Disorder, with moderately compromised social and communication skills. He was reported to be academically below level for his age. There were no concerns raised about [Y]’s social, academic or physical development.

22. The father denied the mother’s allegations of abusive and controlling behaviour. The family consultant noted that the father became agitated and marginally angry, particularly when confronted with these allegations. He categorically denied that he posed a threat to the mother or the children. He offered to enter into a no-contact Domestic Violence Order if that would allay the mother’s fear. He acknowledged that his emotional state had deteriorated at the time of separation and “regrettably” he broke a chair during an argument but no one had been threatened. He said he was “baffled and bewildered” by the mother’s abrupt departure from Town B.

23. The author of the family report also asked the father about a concern, apparently raised by the mother, that he had chosen to teach a poem such as “The Hollow Men” by T S Elliot to the children during telephone time. It was suggested that it was inappropriate to introduce this poem, with its “prominent themes of death and dying”, to the children. The father replied to the family consultant that it was “one of the finest poems ever written”, was not violent and he “would love the boys to learn it”. Whatever the merits of the poem, it may suggest a lack of insight on the father’s part that he found this poem, with its complex and challenging themes, appropriate and enjoyable to read to children aged 10 and 8.

24. The author of the family report noted that the mother was wholly negative about the father.  The author noted that the parents’ accounts of their relationship differed greatly, as did their versions of events during and after separation.  It was noted that the mother “presented a narrative of absolute victimhood within the relationship” and “one of abject fear” of the father.

25. The family consultant interviewed both children.  [X] voluntarily reported that he felt scared when his parents were separating and he referred to the incident when the chair was broken.  He said that he was worried about his mum and what was going to happen.  He was aware that the cause of his parents fighting was “because mum got a tattoo on her foot, but not with dad.  She got it with someone else and dad got really upset”.  He said if he were the judge he would tell his parents “you’re not allowed to talk to each other” and “you have to live in separate houses”.

26. Nevertheless, [X] rated his feelings of safety and happiness in the company of each parent as 10 on a scale of 10.  He said he felt safe with his father and he felt safe with his mother.  He said he “loves being with mum and dad”.  He said that he and his brother should live “half a year with mum and half a year with dad”. 

27. However, [X] also recounted a dream to the family consultant where he said his father was going to shoot his mother.  [X] denied any knowledge of his father possessing a gun or that he had heard his father say any such thing but he said “that’s why I’m sometimes scared of him”.

28. [X] said he liked living in Western Australia and had made some new friends but he missed Town B and, in particular, certain named friends.  He said “I like spending time with dad.  I miss dad a lot.  I want to go back to WA but also want to stay with dad” and “I also really like Town B, maybe a little bit more than WA”.  He said he was supposed to keep secret where he lived.

29. [Y] was less forthcoming than [X].  The family consultant observed that he appeared tired.  However, he stated “[Y] likes Town B the most”.  [Y] claimed to “miss dad” and said “but I miss mum when I’m with dad, and I miss dad when I’m with mum”.  [Y] said that he did not feel scared or worried in his father’s care.  However, the family consultant said [Y] demonstrated feelings of ambivalence about his level of safety in relation to his father.  [Y] said he thinks his mother should stay in Western Australia because he is fearful that his father may hurt her.  He said “one time, dad got a weapon like a big stick and whacked it on mum’s leg and I’m so scared if they shout at each other”.  He also said “the fighting is bad, I felt scared” and “dad was the scariest one”. It should be noted that the mother has never alleged that the father struck her with a stick or in any other way.

30. As noted, [Y] demonstrated feelings of ambivalence about his level of safety in relation to his father.  He mentioned that maybe his mother could return to Town B but said “dad shouldn’t hurt us and mum”.  The family consultant queried what he thought his father might do and [Y] replied “I just think he’ll hurt me, I don’t know what he would do, just something”.  As [Y] was due to spend time with his father that afternoon the family consultant asked about that and [Y] replied “I will feel safe when I see him”.  The family consultant also observed that when she questioned [Y] about keeping secrets he agreed that he “needs to keep secrets” but was not willing to talk about the matter further.  He appeared uncomfortable and a little stressed about the topic.

1. The family consultant’s observations of the interaction of the children and their parents were unexceptional. The mother appeared to be a loving mother, highly attuned to the children’s needs. The children displayed a warmly affectionate relationship with their father. He appeared as an instructive and authoritative figure with whom the children appeared to feel safe. They expressed themselves to him without reserve and played together happily and enthusiastically.

2. The family consultant offered the following evaluation of the case:

   This is a highly challenging case to evaluate, as it presents with the most serious of risk factors, namely the allegation by the mother, that she fears the father may kill her and harm the children.  She cited this as the factor that compelled her to unilaterally take the children with her to Western Australia to an undisclosed location.  This decision was (sic) followed in the wake of what appears to be a deeply acrimonious separation in Town B, characterised by highly emotional and emotive verbal and psychological abuse.  It was also alleged by the mother that the father acted in a physically intimidating manner towards her, causing her much fear.

   … [The father] denied these allegations.

   In the face of such competing narratives by the parents, it is difficult to quantify the likelihood of whether or not this abuse did occur, and this is a matter for evidence.  However, on the face of it, it does appear that [the father] may have reacted with disproportionate anger and emotion to [the mother’s] travel to Europe, spending time with her friends and her choosing to get a tattoo.  It appears that [the mother] paid a high price for seeking to exercise her autonomy outside of the marriage, and this behaviour by [the father], may indeed reflect a pattern of more pervasive psychologically controlling behaviours by him.

3. The family consultant observed that the parties entered a state of intensified conflict as they separated and attempted to continue living under the same roof.  She said it is known that such situations can contribute to “situational couple violence”, with one or both parties losing control and lashing out or breaking or throwing items in the vicinity of the other.  She said that the allegations in relation to physical violence and threats can be attributed to the highly emotional volatile circumstances at the time of the parties’ separation.  She noted that both parents acknowledged their actions, no one was hurt, there were no reports of assault to the police, the father had no previous police record or breaches of a DVO alleged against him and no evidence that he had been physically violent to the mother in the past.  She concluded that the risks of the father assaulting the mother or killing her were “unlikely to be high”.  While there were elements of controlling behaviour, the father’s “profile” did not appear to be indicative of an intent to commit an act of homicide.  The family consultant said that, in her experience, usually partners who kill their spouses do so when they leave the relationship or soon after.

4. The family consultant said that as a consequence of the parental conflict it was likely the children were feeling deeply divided and influenced by the pain of each parent.  They were in a highly detrimental situation, caught in the middle between two warring parents.  She said that, ideally, the outcome required for the children’s well-being was for them to live in a “shared care arrangement” (she recommended an order for substantial and significant time) where the parents have emotionally disengaged from one another and created independent and financially viable lives for themselves.  She questioned whether these parents have the resilience and personal attributes to achieve such an outcome.  The father expressed hope and optimism about such an outcome but the mother expressed despair and distress at the prospect of living in the vicinity of the father.  The family consultant was concerned that the mother’s emotional well-being may be compromised if she were forced to return to Town B.

5. The family consultant identified a number of competing factors that needed to be taken into account.  She said it was apparent that the children had witnessed their parents’ conflict and had been deeply affected.  They are attuned to their mother’s fear of harm and aware that they should not disclose their whereabouts to the father. This is an emotional burden for the children to carry which would amplify their fear of something bad happening to their mother and to them.  Despite this the children did not appear to be frightened of the father and expressed a desire for an ongoing relationship with him under a shared care arrangement.  In the opinion of the family consultant this was not congruent with the mother’s negative portrayal of the father’s relationship with the children.  The children were torn about the living arrangements and both expressed a wish to spend significant time with the father, ideally with their mother also living Town B provided that her safety was not compromised.

6. The family consultant expressed the view that contemporary child custody dispute studies indicated better outcomes for children where the value and significance of their relationships with both of their parents have been prioritised above the competing needs and emotions of the parents.  These studies indicated that relocation is a potential stressor for children in general and children of divorce in particular.  For a non-residential parent to maintain a psychologically strong and meaningful relationship with their children they require the ability to regularly participate in the children’s lives in a meaningful way, such as being involved in their routines and activities including extracurricular and recreational activities.  The best outcomes of children are promoted by the maintenance of their relationship with both parents.  However, this is conditional on children not being exposed to ongoing conflict, the parents not involving the children in the dispute and the mental health of the parents being stable. In this regard the family consultant recommended that a report on the father’s mental health should be obtained.  As noted above, the father obtained such a report which stated that the examination of the father revealed no evidence of psychosis or thoughts of harm to himself or others. 

7. The family consultant was also concerned that the mental health of the mother was fragile and this, according to the family consultant, raised two questions.  First, has the mother’s experience of the separation been so greatly upsetting as to lead to such a heightened and disproportionate fear of harm from the father that she has influenced the children against him, to feel afraid of him?  Or, on the other hand, has the father’s behaviour been so pervasively controlling and threatening that the mother is traumatised so that a forced return to Town B will be further detrimental to her mental health and may affect her ability to parent the children in a balanced and stable manner?  She did not offer an answer to the questions she posed.

8. The family consultant concluded by expressing the opinion that the children’s best interests would be served by spending regular time with their father via a very specific court ordered parenting arrangement.  She said ideally this would mean the parents reside in reasonably close proximity to each other.  She said that because the father’s livelihood is based in Town B and the children have grown up in that town and expressed a desire to return to their school and friends there that Town B would be the more desirable location.

9. The family consultant acknowledged that such an outcome would be upsetting and difficult for the mother as she will be likely to associate Town B with the trauma of a tumultuous and acrimonious separation and to believe that the father will attempt to exert control over her.  She expressed the opinion that if the father agreed to a fair and equitable financial settlement and this occurred expeditiously and he consented to a non-contact DVO resettlement in Town B would allow the children to remain closely connected with the father.  Further, in the absence of abusive behaviour by the father towards the mother the children’s level of stress and fear about the parental relationship may subside over time, freeing them of this burden of anxiety and allowing them to relate confidently to both parents.

10. The family consultant’s concluding view was as follows:

    [The mother] has been the children’s primary caregiver, and no allegations have been raised against her in relation to her care of the children.  For this reason, the writer is of the view that it would not be in the children’s interest for this relationship to be disturbed, particularly given the children’s apparent fear and concern for her well-being, and their own trauma and distress caused by the parental conflict.  Therefore, the writer is of the view that the children would benefit by remaining in [the mother’s] primary care, and spending regular time with their father. 

11. The family consultant’s report is detailed and balanced.  I accept each of the observations in the report for which there was ample evidence in the trial.  I agree with the family consultant’s formulation of the relevant factors for evaluation.

12. There is no objective evidence that the father suffers from any mental illness or constitutes a threat to the mother or the children.  As the family consultant pointed out, the father has never assaulted the mother nor have there been any reports of assault to the police.  In my view the father does not constitute a danger to the mother or the children. The children love their father and, generally, wish to return to Town B. They have expressed concern about their father harming their mother but I consider this mostly reflects their emotional closeness to their mother and their awareness of her anxiety about the father.    

13. Nevertheless, while I am satisfied that the mother's level of anxiety about the father is not justified by reference to the objective facts, I am satisfied that the mother's anxiety is genuine.  It may be that the experience of separation, witnessing the father's lack of emotional regulation and his controlling and coercive behaviour, has triggered an anxiety response that the mother is having difficulty managing. I strongly suspect that her fear, which is not justified objectively, has been triggered or exaggerated by her own experience of physical abuse and wounding by gunshot when she was young. Regrettably, the psychological report relied on by the mother does not address any of these issues and does not suggest any way in which the mother’s anxiety which, as I find, is disproportionate to the father’s behaviour can be ameliorated or managed.

14. The children have a good relationship with their father and are not afraid of him.  However, I accept that the mother is highly anxious about living in a small town such as Town B with the father. Her psychologist gave evidence that a return to Town B would have a detrimental effect on her mental health.  In evidence, the mother said that she would not, in fact, return to Town B. She said if the choice was between the children living with her in Town A and her being obliged to live in Town B with the children she would not return even if the consequence of that was an order that the children live with father.  She was not challenged on that assertion. My sense of her evidence was that was genuinely how she felt. As noted, I accept that the mother’s anxiety and, indeed, fear on this point is genuine.

15. I also accept that the controlling behaviour of the father during the marriage continued after the separation of the parties while they lived under one roof and there is a significant possibility that this will continue into the future. 

16. The parties are already at loggerheads over child support issues and there have been challenges and reviews to assessments.  It is unnecessary to consider the substance of these disputes but I accept that the mother is genuinely of the view that disputes with the father are likely to continue for the foreseeable future.  She gave two examples.  She said that during the time the children returned with her to Town B for the preparation of the family report that the children spent time with the father.  She said that she accidentally saw the children and the father while shopping and rather than ignore the children, she briefly spoke to them.  This may have been a breach of an injunction that the parties not approach each other.  The father's response was to attend at the local police station and report the matter.  He said that he did so in order to protect himself in the event that the mother alleged a breach of the injunction. 

17. Another example was that when the mother travelled to Town B for the trial the children were left in the care of her mother in Town A.  She accidentally packed the children's phone in her luggage with the consequence that when the father rang the children for his usual Sunday night telephone time, there was no answer.  He then called the police to undertake a welfare check on the children.  The father said that he was concerned that the mother had taken flight with the children. 

18. Whatever the truth of these matters, it is clear that there is a high level of distrust between the parties and a tendency to engage outside agencies in their dispute.  I accept that this level of conflict and stress is likely to be deeply undermining of the mother's parenting capacity over time if it continues.  She says that her ability to deal with the stresses of parenting and life generally will be undermined if she lives in Town B.  It is something she cannot contemplate.

19. The resolution of a parenting dispute under the Family Law Act (“the Act”) requires adherence to the legislative pathway set out in Part VII of the Act.

20. In determining what is in the best interests of a child the court must consider the matters in subsections (2) and (3) of section 60CC of the Act.

21. Turning to subsection 60CC(2), the primary considerations in determining the best interests of the children are:

    (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

    When applying section 60CC(2) factors, the court is to give greater weight to the consideration set out in (2)(b).

22. I am satisfied that there is benefit to the children in having a meaningful relationship with their father. I am satisfied that the optimal way in which the children can have a meaningful relationship with both parents is if they continue to live in close proximity to allow each to participate in the day to day lives of the children. However, this is not the only matter to be considered.

23. The mother deposes that the father was psychologically abusive and displayed jealous and controlling behaviour throughout the relationship and that the children, at times, witnessed verbal abuse, yelling and property damage by the father. Generally I accept that the children have been exposed to this kind of behaviour which, in this case, I am satisfied constitutes “family violence” as defined in s. 4AB(1) of the Act. I consider the father is largely, although not solely, responsible for this behaviour.

24. It appears the children were not present during the neck (or shoulders) grabbing incident but they have been exposed to a high level of conflict between the parties. This is consistent with the family report in which the writer notes “[X] recounted a dream wherein his father said that he was going to shoot his mother”, he goes on “that’s why I am sometimes scared of him”. Likewise, [Y] has said that “he thinks that his mother should stay in WA, because he is fearful that his father may hurt her”.

25. I have serious concerns that the children would continue to be exposed to high levels of conflict if the parents both lived in the same, relatively small town such as Town B. The family consultant expressed the view that detailed orders, presumably intended to minimise contact between the father and the mother, would be able to minimise conflict. I accept that this may be so but I also consider that proximity may give rise to further conflict which would be psychologically harmful to the children.  

26. I will now turn to the additional considerations in subsection 60CC(3).

27. In relation to (a), the children’s views, [X] said he “loves being with mum and dad”. He said he was “thinking of living one year with my dad and one with my mum”. He said he likes living in Western Australia but misses Town B and his friends in particular. He expressed concerns about his mother’s safety but said he felt safe with his father.

28. [Y] said he liked Town B “the most” because he could see his friends, the “… Club” (this was not explained) and “play mind-craft (sic) on the computer”. He said it was “good” at his father’s home and they “get to kick the footy”. He said he missed one parent when he was with the other parent. [Y] spoke positively of Western Australia and said they have a big back yard and that they go fishing and camping with the mother and the mother’s friend “Mr L”.

29. In relation to (b), the nature of the relationship of the children with their parents and any other persons, both [X] and [Y] have established and close relationships with each of their parents and feel safe with them. The children have a good relationship with the paternal grandparents who live in Melbourne. There was evidence that the father has entered a new relationship with Ms M but that she and the father did not live together. There was no evidence about the children’s relationship, if any, with her. As I have mentioned, [Y] mentioned spending time with his mother in the company of a man he called “Mr L”. The mother denied being in relationship with “Mr L” and this was not pursued in cross-examination.

30. In relation to (c), the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decision-making about major long-term issues for the children and spending time with and communicating with the children, both parents have been actively involved in the children’s lives. The mother’s unilateral relocation with the children to an unidentified address near Town A in Western Australia appears to have deprived the father of the opportunity to participate in decisions about the children’s schooling and education, for example, and probably affects in a practical way his ability to participate in other long-term issues. 

31. In relation to maintenance of the children under part (ca), there was evidence about ongoing disputation between the parties about a child support assessment, reviews by the Registrar and so on but it is not necessary to pursue this issue further.  

32. In relation to (d), the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person with whom they have been living, a change in the children’s residence from Town B to Town A will separate the children from their father with whom they have a close and loving relationship and remove him from their day to day lives. It may also have an adverse effect on the children’s relationship with their 14 year old sister [Z], the father’s daughter from a previous relationship. [Z] lives with her mother in Melbourne but, according to the father’s evidence, she has a good relationship with the children which has been fostered by holiday time visits.

33. The further issue is that the father indicated an intention to relocate to Town A if the children are to live there. If so, he seeks a “shared care arrangement” if he resides “within 50 km of the Town A Post Office”. The father addresses this issue in his affidavit as follows:

    If the court does not grant a recovery order, I would be seeking to relocate to WA to ensure that the children of the marriage have a meaningful relationship with both parents.  The needs of my children outweigh my personal needs and I am prepared to put them first.  The consequences of me moving to WA are that my business would have to cease trading and all assets be sold.  As a result I would lose my vocation.  I would lose contact with my friends and family who would be devastated.

1. The mother said in oral evidence that if the father moved to Town A she would move again. I have no reason to doubt the seriousness of each party in making such claims. 

2. In relation to (e), the practical difficulty and expense of the children spending time with and communicating with a parent and whether that will substantially affect the children’s right to maintain personal relations and direct contact with both parents, it is clear that the fact that the parents reside many thousands of kilometres apart will necessarily affect the children’s relationship with the parent with whom they do not live and there will be significant expense in the children spending time with the non-residence parent. 

3. The father did not make any proposal in his amended application or his case outline for the children to spend time with him if he lives in Town B and they live in Town A. The only options he addressed were that the children live in Town B in a “shared care arrangement” (by which he meant equal time) or with him if the mother chooses not to return to Town B or, in the alternative, a “shared care arrangement” in Town A. He also mentioned another option of both parties living in Victoria. This was not seriously pursued. The mother proposed that the children spend all of the mid-year holiday and half of the other holidays with the father in Town B.

4. In relation to (f), the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, there appears to be little doubt that both parents love the children and are competent to care for them. The mother’s allegation that the father belittles [X] because of his autism does not seem to be supported by the observations of the children’s relationship with their father or to be consistent with [X]’s statements about his relationship with his father. There was no real challenge to the mother’s capacity. In relation to the father’s allegation that the mother has mental health problems I have made some reference to her psychologist’s report. I am satisfied that her present difficulties relate to the problems of separation and subsequent proceedings and are likely to settle in time. In relation to the allegation about the mother’s drinking I am satisfied that this is likely to be exaggerated by the father. He did not raise it as a problem when speaking to the family consultant and it is noteworthy that the report from Dr J identified the father as drinking at hazardous levels in the past with the mother.

5. The most concerning aspect of the parents’ capacity in this matter is the exposure of the children to ongoing parental conflict and the deleterious effect of that on the emotional and intellectual life of the children.

6. In relation to (g) the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child the court thinks are relevant, there is nothing requiring further consideration.

7. In relation to (h), the children are not Aboriginal or Torres Strait Islander children.

8. In relation to (i), the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both parents love their children but their capacity as parents suffers from the limitations described above.

9. In relation to (j), any family violence involving the child or a member of the child’s family, the mother alleged that she was the victim of family violence perpetrated by the father. This matter has been discussed in some detail. I accept that the father, principally, has engaged in family violence as defined in s. 4AB(1) of the Act, in particular “… behaviour that coerces and controls a member of the person’s family…”. I consider that the father denigrated and insulted the mother at times during the relationship, made jealous accusations and displayed anger that was calculated to coerce or control the mother. 

10. In relation to (m), any other fact or circumstance that the court thinks is relevant, the mother made a claim that there had been notifications made to the Northern Territory child welfare authorities but there was no other evidence on this issue.

11. Section 60CG requires the court to ensure that any order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. No family violence order applies. The principal allegations of family violence relate to the period when the parties were in a relationship and I am satisfied there is no current unacceptable risk of family violence to the parties or the children.

12. Given that I am satisfied there has been historical family violence the presumption of equal shared parental responsibility under section 61DA does not apply. Nevertheless, I am satisfied that it is appropriate that both parents should be involved in decisions concerning the children.

13. Both parties sought orders for shared parental responsibility. The court is required by section 65DAA to consider whether the children spending equal time or substantial and significant time with each parent is in the best interests of the children. Because both parents are presently living thousands of kilometres apart I am satisfied that it is not reasonably practicable for the children to spend equal time with each parent and I am satisfied that it is not reasonably practicable for the children to spend substantial and significant time, which is defined by the Act to include weekdays, weekends and time that is not holidays, with each parent. I am satisfied that the only practicable arrangement is for the children to spend holiday time with the non-residence parent. The expense of travel will obviously be a burden for the parties but I am satisfied that both parties should contribute to the cost and the orders I make will make provision for that.

14. On the other hand, if both parents live in the same area, equal time or substantial and significant time with the father becomes possible. I accept the view of the family consultant about this issue for the reasons given by her. The mother has been the primary carer and it is not in the children’s best interests to disturb that, particularly given the children’s experience of parental conflict and their concerns for their mother. Further, having regard to each of the matters in s. 65DAA (5) I am not satisfied that it is reasonably practicable for the children to spend equal time with the father, in particular because I doubt the parent’s capacity to implement such an arrangement and because I consider the capacity of the parents to communicate with each other to resolve difficulties is so limited that it is likely to be productive of further conflict.

15. I agree with the recommendation of the family consultant that the children should spend substantial and significant time with the father.   

16. I am not prepared to make an order that the mother return the residence of the children to Town B.  The mother stated unequivocally that she would not herself return to Town B.  The consequence of such an order would, in those circumstances, have the practical result that the children live with father.  I am satisfied that is not in the best interests of the children. 

17. Under the present circumstances, with the father living in Town B and the mother living in the Town A region, I consider that there ought to be orders that the children live with their mother in the Town A region and spend time with their father during school holidays. 

18. The father has indicated that if the mother and the children are permitted to remain living in the Town A region he will move to Town A, seeking a “shared care arrangement”.  As explained above, I am not prepared to make orders for equal time in the event that the father moves to Town A. Whether the father will still move in those circumstances is unclear. The mother said in cross-examination that if the father moved to Town A she would move again to some other place.  If such a scenario unfolds there is the capacity for an infinite repetition: the mother moving with the children and the father following.  Such a scenario would undoubtedly be seriously damaging to the welfare of the children.  

19. The court’s options are limited in these circumstances.  The court would be exceeding its powers if it ordered the father not to move to Town A unless an injunction of unusually wide ambit was required for the personal protection of the mother or the children.  Such an order is not required and one was not sought.  Accordingly, there is nothing to prevent the father moving to Town A.  Of course this would be likely to have serious consequences, including the loss of a long-established business in Town B and, consequently, the father’s livelihood.  Nevertheless, that is a choice the father is entitled to make.  If he does choose to make that choice it would be prudent of him to consider it carefully and probably delay acting for some significant period in order to let matters settle as far as they can.

20. To ensure there is no further unilateral relocation by the mother, I intend to make an order that the mother is not to further relocate the residence of the children away from the Town A region without an order of a court of appropriate jurisdiction.

21. In conclusion, there will be orders permitting the mother to relocate to the Town A region and orders for the children to spend holiday time with the father.  In the event that the father relocates to within 50 km of the mother’s residence I propose to make orders for the children to spend substantial and significant time with the father. There will also be an order that the mother provide the father with her present address because I consider secrecy unnecessary and because it imposes an emotional burden on the children. 

    Property

22. The parties began living together in … 2005.  They separated under one roof in June 2017.  The wife left the home in January 2018.

23. It appears that the parties initially lived in a house in Town B owned by the husband’s former wife and that family law proceedings between the husband and his former wife were continuing at the time the husband and the wife in this proceeding began living together.  As a result of those other proceedings the house owned by the husband’s former wife was sold.  The wife in these proceedings said that the husband spent $40,000-$45,000 on those proceedings and that her income contributed to their accommodation and living expenses during that period.  There was no evidence from the husband about his financial situation after the settlement of proceedings with his former wife.  In particular, there was no evidence that he retained any equity in the former matrimonial home, received any payment from his former wife or made any payment to her.

24. The husband said at paragraph [131] of his trial affidavit:

    At the commencement of the relationship I was in ownership of the Company D..  I had personal savings of approximately $60,000 that was sufficient to purchase the property at Town B Northern Territory.

25. In paragraph [133] of the same affidavit the husband said as follows:

    On 19 November 2007 we purchased Property C for $289,000.  I had a deposit of $80,000 that was form (sic) the savings I had earned before the relationship and money earned from Company D after the relationship commenced.  We borrowed $50,753 in a variable loan and $157,563 in a fixed loan.  The fixed loan was topped up on 3 February 2017 by $30,000 to refurbish the kitchen and install solar power.

26. The wife gave evidence about the establishment of Company D at paragraph [44] of her trial affidavit:

    On … 2005 Company D Pty Ltd was incorporated of which [the husband] was a sole director and I was the secretary and we each held fully paid beneficially held shares.

27. This evidence was not challenged.  I am satisfied that the business was incorporated and owned by both parties. 

28. A draft contract of sale for Property C was put into evidence.  It shows that the purchase price of the property was $289,000. A receipt was attached acknowledging that a deposit of $10,000 was paid.  The lender of the balance of the purchase price, $279,000, was described as “Financial Services (Mr N)”.  This would appear to be a reference to a mortgage broker but there was no evidence about that. An email from the Commonwealth Bank dated 8 October 2007 was also put into evidence.  This showed that the husband and the wife borrowed $227,932 as a fixed rate loan and $50,753 as a standard variable rate loan, a total of $278,685. This is consistent with a deposit of $10,000.

29. It was put to the husband that his evidence about providing an $80,000 deposit was incorrect. He appeared to concede that was the case.

30. I am not satisfied that the husband had pre-relationship savings in the sum of $60,000 or any other amount.  I am satisfied that the bulk of the purchase price of the former matrimonial home at Property C was from jointly borrowed funds and that the initial deposit of $10,000 was probably from joint funds as well.

31. I am satisfied that the business of the parties, Company D, was established jointly by the parties after the commencement of their relationship and the parties held equal shares in the business. However, sometime after separation the wife transferred her interest in Company D to the husband.  The precise circumstances of this were not in evidence but prior to trial the husband paid the wife the sum of $180,000 towards property settlement and I assume the wife’s interests in Company D and Property C were transferred to the husband at that time.

32. I generally do not accept the husband as a reliable witness in relation to financial matters.  The wife’s evidence was usually more precise and supported by documentary evidence. I consider her evidence in relation to financial matters is reliable.

33. There was little detailed evidence about the husband’s qualifications, training and working background.  The psychiatric report from Dr J mentioned that the husband had a … degree in … .  He had commenced but not completed … studies.  The wife did not appear to have any tertiary qualifications.  She is apparently a qualified health worker.  She also worked in a company in the Country F for some years and, I have little doubt, is familiar with the requirements for running a small business. As mentioned, Company D provided services in the central Australia region.  The husband regularly travelled to remote communities and was away from home for extended periods.  There appear to have been other employees from time to time involved in the business.  The wife managed the office and was responsible for day-to-day accounting.  I am satisfied that she was very competent in this area.  I am satisfied the business was a joint and equal enterprise of the parties.

34. The assets and liabilities of the parties at trial, and their values, were largely (but not entirely) agreed and a balance sheet agreed as follows:

Description	Husband	Wife	Total
Assets
1	Property C	$435,000
2	Husband’s partial settlement payment to wife	$180,000
3	Company D Pty Ltd	$98,673
4	Motorcar	$1,500
5	Household contents at Property C	$15,000
6	CBA bank account	$5, 905
7	CBA bank account	$1,141
Total	$554,578	$182,641	$737,219
Liabilities
8	Mortgage Property C	$335,000
9	Wife Centrelink debt	$3, 434
Total liabilities	$335,000	$3,434	$338,434
Net assets	$219,578	$179,207	$398,785
Superannuation
Superannuation Fund (SMSF) approximate equity $103,000 to $240,000 (indicative only, not valued)	$51,500 to $120,000	$51,500 to $120,000

1. The value of Company D was disputed at trial.  A single valuer prepared a report which concluded that as at 30 June 2018 the total equity of the parties in Company D was $98,673.  At trial counsel for the husband put to the valuer that his valuation had been prepared at a time when the cash at bank figure in the balance sheet was $56,451.  It was established that at the time of trial the cash at bank figure was $23,565, a reduction of $32,886.  The husband put to the valuer that the value of the equity should be considered to have undergone a commensurate reduction to $65,787.  The valuer replied “Yes, if all else is equal”.  It was not established that all else was equal.  There was no further evidence about the items in the balance sheet as at the time of trial.

2. The valuer’s summary of the balance sheets as at 30 June 2016, 30 June 2017 and 30 June 2018 showed a total equity in those years of $166,783, $58,359 and $98,673 respectively.  It is clear that the total equity in the company fluctuates significantly from time to time.  One would expect a variety of factors to influence the final figure, not only cash at bank.  Given the absence of evidence about any of those other potential factors affecting the total equity figure I am not satisfied that a reduction in the figure for cash at bank necessarily leads to a reduction in total equity.  It may or it may not depending on whether, as the valuer put it, “all else is equal”.  I am not satisfied that the figure derived by the valuer is incorrect and I accept the valuation as contained in the valuer’s report.

3. The value of the parties self-managed superannuation fund was not the subject of detailed evidence.  The husband’s outline of case contained some general assertions about the value of the residential unit, mortgage debt and cash in the SMSF. There was no admissible valuation evidence but I have taken the husband’s case outline as indicating the nature of the SMSF, no more. The parties have agreed that the wife’s 50% interest in the fund should be rolled into another superannuation account of her choosing.  Neither party sought anything other than a 50-50 division of their superannuation interests.

   Contributions

4. I am not satisfied that the husband made any significant initial financial contribution as he claims.  It appears he probably owned some furniture but he was also involved in family law litigation and he has not given evidence about his precise financial situation in relation to that.  His evidence of savings and a $60,000 or $80,000 contribution to a deposit for the purchase of Property C was shown to be incorrect.  I am not satisfied that either party brought any significant initial financial contribution to the relationship.

5. I am satisfied that both parties contributed to the operation of the family business, Company D, to the best of their abilities in their respective spheres.  It appears that the husband spent long periods away in remote communities.  The wife managed the business and cared for their home and children during that time.  I see nothing to suggest that contributions, both financial and otherwise, were anything but equal.

   Section 75 (2) factors

6. Both parties are in good health and there is nothing to suggest that they are not each able to obtain gainful employment.  The parties appear to have been able to earn good incomes while operating Company D.  According to the husband’s financial statement he was being paid $1,530 a week or $79,560 a year by Company D, including non-taxable travel allowance.  It appears from the valuer’s report that the husband’s sports equipment was owned by Company D and depreciation claimed.  This would appear to be a personal benefit derived from the company.  The wife asserted that the husband derived other personal benefits from the company and that his declared income was not the full picture.  I suspect that may be correct but I am not satisfied on the evidence that I can draw any particular conclusion about the value of personal benefits derived by the husband from the company.  The wife, according to her financial statement, received $520 a week from Centrelink and an estimated $60 a week in child support from the husband.  She asserted that the husband was minimising his child support liability by manipulating his income from the company.  I am unable to draw any conclusion about that claim.

1. It is unclear where the wife is presently residing.  In evidence she simply said it was near Town A.  I consider it likely that the wife is not exploiting her earning capacity to the full.  She said she was considering finding employment as a health worker, presumably in Town A.  Beyond that she appeared to have few concrete plans to obtain employment.  She did not assert that she was unable to work and I am satisfied that she is capable of finding employment as an office manager or something similar.  I am satisfied that she is capable of earning a living and is not limited to being dependent upon social welfare payments.  Nevertheless, I am satisfied there is a disparity between the earning capacity and the likely future earnings of the parties and that some adjustment is required for that factor. 

2. The wife has received $180,000 from the husband in part property settlement.  I consider that there ought to be an adjustment in her favour of 10% of the net asset pool.  This results in a 55%/45% split in favour of the wife or the payment to her of an additional $40,125. 

3. There was little or no evidence about the value of the self-managed superannuation fund.  The principal asset in the fund appears to be a residential unit in Town B.  The parties have agreed that the husband is to retain the fund and 50% of the value of the fund is to be rolled over to another superannuation fund of the wife’s choice.  This outcome may require the sale of the residential unit.  At the time of trial it was unclear how the split was to be achieved. 

4. The orders will need to make provision for transfer of the wife’s interest in Company D to the husband, if that has not already occurred, and splitting orders for the superannuation. 

5. The final result will be as follows:

Description	Husband	Wife	Total
Assets
1	Property C	$435,000
2	Husband’s partial settlement payment to wife	$180,000
3	Company D Pty Ltd	$98,673
4	Motorcar	$1, 500
5	Household contents at Property C	$15,000
6	CBA bank account	$5, 905
7	CBA bank account	$1, 141
Total	$554,578	$182,641	$737,219
Liabilities
8	Mortgage Property C	$335,000
9	Wife’s Centrelink debt	$3, 434
Total liabilities	$335,000	$3,434	$338,434
Net assets	$219,578	$179,207	$398,785
If 45%/55% split in favour of wife husband is to pay wife	($40,125)	$40,125
$179,453 (45%)	$219,332 (55%)	$398,785

1. The husband has mortgaged the house at Property C to pay the wife a partial property settlement. I am not satisfied that he can easily borrow the balance of the payment to the wife. I will allow him 12 months to pay that amount but interest will be payable from the time of these orders on any outstanding balance at the rate prescribed under rule 22.01 of the Federal Circuit Court Rules[1].

   [1] Presently 7.5% p.a.

2. There will be an order splitting the superannuation equally.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 22 February 2019