Koncz and Koncz (No 2)

FAMILY COURT OF AUSTRALIA

KONCZ & KONCZ (NO. 2)

[2013] FamCA 1021

FAMILY LAW – CHILDREN – Best Interests – Whether granting equal shared parental responsibility would be in the best interests of the children – Whether there is risk of emotional abuse of the children – Whether there is a risk of removal of the children from Australia – Whether the time the children spend with the father should be supervised – Where it is the view of the single expert that the relationship between the children and the father is being hindered by supervised contact – Where the court determined that it is appropriate so as to minimise the risk of the children being exposed to psychological harm to limit the time they spend with the father – Where the court found there is an unacceptable risk of removal of the children from Australia – Where the presumption for equal shared parental responsibility is rebutted – Where an order is made that the children live with the mother – Where an order is made maintaining the children on the Airport Watch List – Where an order is made that the children spend time with the father in a graduated regime increasing to each alternate weekend.

FAMILY LAW – PROPERTY – Application by the wife for property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) – Whether just and equitable to alter property interests and rights – Stanford v Stanford [2012] HCA 52 considered – Consideration of factors under s 79 and s 75(2) of the Family Law Act 1975 (Cth) – Where the outcome of the assessment of financial and non-financial contributions up to the time of separation are assessed as being equal – Where an adjustment, pursuant to s 75(2), of 17.5 per cent in the wife’s favour is appropriate.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife sought orders for spousal maintenance – Where the evidence does presently establish that the wife is unable to support herself adequately – Where the husband has, on the evidence, the ability to make a relatively modest spousal maintenance payment to the wife for a period of four years.

The Convention on the Civil Aspects of the International Child Abduction
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 72, 75(2), 79, 81
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Family Law Rules 2004 r 11.08(2)

Stanford v Stanford [2012] HCA 52

APPLICANT:

Ms Koncz

RESPONDENT:

Mr Koncz

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Nowra

FILE NUMBER:

WOC

376

2012

DATE DELIVERED:

20 December 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

16-18 October & 1 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Rebecca Bailey & Associates Family Law Solutions

SOLICITOR FOR THE RESPONDENT:

Capellia Legal

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Werne

Orders

Parenting Orders:

That save as provided in Order 2, the wife shall have sole parental responsibility for the children A born on … 2003, P born on … 2005 and K born on … 2007 (collectively referred to as “the children”) in relation to decisions concerning their long term care, welfare and development including, but not limited to:
(a)the children’s education and schooling;
(b)the children’s religion;
(c)the children’s health and medical treatment;
(d)the children’s place of residence.
That the husband has such parental responsibility, when the children spend time with him, as is necessary for any health professional or institution dealing with the children, including but not limited to doctors and allied health professionals, subject to Order 20:
(a)obtain such medical treatment as the children may require when they are spending time with their father; and
(b)obtain any information about the children to which a parent is normally entitled, including but not limited to medical reports, treatment plans and the like.
That each parent shall promptly provide to the other:
(a)the names and contact details of any medical, therapeutic or other allied health practitioner upon whom the children are required to attend; and
(b)details of any medical, therapeutic or other allied health appointment which the children are required to attend and/or treatment prescribed by such practitioners for the children.
That both parents shall follow the treatment recommendations made by any medical or allied health practitioner for each of the children in their respective households whilst the children are in their care.
That both parents are authorised by these orders to obtain from any school(s) that the children may attend information about their progress and welfare, including but not limited to:
(a)copies of all school reports, awards and information regarding the children’s achievements and activities;
(b)school photograph order forms so that each parent has the opportunity to order same; and
(c)information about parent-teacher nights, sports and swimming carnivals, school concerts, award ceremonies and events to which parents are normally invited.
That the children shall live with the wife.
That until Order 19 has been complied with the children shall spend time with the husband each Saturday between 10 am and 11 am supervised by KK Contact Centre (“KK”) subject to the availability of the Contact Centre.
That:
(a)commencing forthwith after compliance with Order 19 the children shall spend time with the husband on each Friday:
(i)from the conclusion of school or 3.00 pm until 7.00 pm; or
(ii)during the summer holidays, on Saturdays between 1.00pm and 5.00pm.
(b)commencing four (4) weeks after compliance with Order 8(a) on each Saturday between 10.00 am until 5.00 pm;
(c)commencing twelve (12) weeks after compliance with Order 8(b) each alternate weekend from 10.00 am on Saturday until 4.00 pm on Sunday.
That twenty-four (24) weeks after compliance with Order 8(a) to (c) inclusive the children shall spend time with the husband until the conclusion of Term 3, 2015:
(a)on each alternate weekend from 10.00 am Saturday until 4.00 pm on Sunday.
(b)in addition to the children’s alternate weekend time with the husband during school holidays the children shall spend time with him:
i.for two (2), four (4) day block periods in 2014-2015 summer holidays, as agreed between the parents and failing agreement:
(A)from 10.00 am on 26 December 2014 until 4.00pm on 29 December 2014; and
(B)from 10.00 am on 9 January 2015 until 4.00 pm on 12 January 2015.
ii.from the conclusion of school on 2 April 2015 until 4.00 pm on 6 April 2015;
iii.from the conclusion of school on 26 June 2015 until 4.00 pm on 30 June 2015.
That thereafter, the children shall spend time with the husband:
During School Terms:
(a)on each alternate weekend from 10.00 am Saturday until 4.00 pm on Sunday, subject to paragraph 10(b) below;
(b)upon each child attaining the age of 13 years, that child may elect to attend weekend time with the husband on one (1) weekend in every four (4) week period.
During School Holidays:
(c)for the first half of each of the short school holiday periods at the conclusion of Terms 1, 2 and 3 to commence at the conclusion of school on the last day that school breaks up for those terms; and to conclude at 4.00 pm on the second Saturday of the holidays; and
(d)for half of the summer school holidays:
i.In 2015-2016 and each alternate year thereafter, for the first half of the holidays to commence at the conclusion of school on the last day that school breaks up and to conclude at 4.00 pm on 7 January.
ii.In 2016-2017 and each alternate year thereafter, for the first half of the holidays to commence at 10.00 am on 7 January and to conclude at 4.00 pm on 26 January.
That from the commencement of 2014 the children shall spend two (2) hours with each parent on the parent’s birthday, each child’s birthday and Christmas Day, and with the wife on Mother’s day and the husband on Father’s Day in the event those days fall on the day when the children are with the other parent, with the times to be agreed or otherwise between 3.00 pm and 5.00 pm.
That the children’s time with the husband shall be facilitated:
(a)where these orders refer to the children’s time with the husband commencing at “the conclusion of school” and it is a school day, then the husband shall collect the children from school;
(b)otherwise:
i.the wife or her nominee will be responsible for delivering the children to the front of the husband’s residential address at the commencement of the children’s time with the husband; and
ii.the husband shall be responsible for delivering the children to the front of the wife’s residential address at the conclusion of the children’s time with him, and
iii.each parent (or their nominee) shall at all times remain within their motor vehicle when delivering the children to the other parent’s residence;
iv.each parent (or their nominee) shall at all times, when receiving the children at changeover, remain in their residence;
v.each parent (or their nominee) shall promptly leave the vicinity of the other parent’s home once they have observed that the children have safely made their way inside those premises.
That in respect of the time prescribed in Order 8(a)(i), the husband shall give the children dinner before returning them to the mother’s care.
That in respect of Order 10, the children’s alternate weekend time with the father shall be suspended during school terms and shall resume:
(a)when the children have spent the first half of the school holidays with the husband, on the first week after term resumes; and
(b)when the children have spent the second half of the school holidays with the husband, on the second weekend after term resumes.
That from the date of these Orders the husband have telephone or ‘Skype/Facetime’ contact with the children once per week at times as agreed between the husband and wife, and failing agreement on each Wednesday between 5.30 pm and 6.00pm and for that purpose the husband is to provide the wife with a telephone contact number or Skype/Facetime address and the wife will cause a telephone or Skype/Facetime call to be made to implement the telephone or Skype/Facetime contact.

The parties shall keep each other advised in writing (including electronically) of their current home address, telephone number, email and Skype/Facetime address.
That the wife and the husband shall do all acts and things necessary to forthwith consult a therapist nominated by Dr N to address the recommendations made in the Expert Reports of Dr N dated 13 February and 7 October 2013 and to facilitate this order each parent shall:
(a)attend at such frequency and for such duration as directed by the therapist individually or together as the therapist requires;
(b)make the children and each of them available for consultations with the therapist;
(c)be solely responsible for the costs of:
i.their own attendances at therapy; and
ii.any sessions attended by themselves and any of the children; and
(d)share equally the costs of any:
i.attendances by any of the children at therapy; and
ii.therapy sessions attended by the entire family.
That leave be granted to the independent children’s lawyer to provide a copy of the Expert Reports of Dr N dated 13 February and 7 October 2013 to the therapist whom the parties jointly consult pursuant to Order 17. Such report is to remain in the custody and control of that therapist and shall not be shown to, nor copies made for any other person without further leave of this Court.
That the independent children’s lawyer, or if she so elects, the therapist appointed pursuant to Order 17, shall explain Order 29 to the children in the presence of each parent (not at the same time).
That each parent is restrained from taking any of the children to any other therapist unless as directed by the family therapist in Order 17.
That the wife attend a parenting after separation course within four (4) months from the date of these Orders.
That the wife enrol the children in Rollercoasters, or a similar course, as soon as practicable.
That each parent be restrained by injunction from:
(a)physically disciplining the children;
(b)making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each parent do all things necessary to ensure that no third party makes critical comments about the other parent in the presence or within hearing of the children;
(c)discussing the family law proceedings or any other legal proceedings in which either parent has been involved in the presence or hearing of the children or permit any other person to do so; and
(d)attempting to influence the children’s views in relation to “time with” and living arrangements.
That until the commencement of Term 4, 2014, the father is restrained by injunction from attending events at the children’s school as set out in Order 5(c).
That:
25.1the father, by himself, his servants or agents are restrained from removing or attempting to remove the children, A born on … 2003, female, P born on … 2005, male, and K born on … 2007, male, from the Commonwealth of Australia.
25.2the Marshal of the Family Court of Australia and all the officers of the Australia Federal Police and of the police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain the father from removing or attempting to remove the said children from the Commonwealth of Australia.
25.3the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s names on the Airport Watch List, also known as the PACE Alert System, at all points of arrival and departure in the Commonwealth of Australia.
25.4the Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all States and Territories of the Commonwealth of the Australia assist in the implementation of, and give effect to, these Orders.
25.5the Australian Federal Police and the police forces of the States and Territories of the Commonwealth of the Australia assist in the implementation of, and give effect to, these Orders.
25.6the father be restrained by injunction from commencing or proceeding with any application for a passport for the children from the Foreign Affairs Department of the Commonwealth of Australia or the Consulate or any other appropriate consent of any other country.
25.7the secretary of the Department of Foreign Affairs be requested to take such steps as may be appropriate with the limits of the practice of the Department to ensure compliance with the preceding Order and to request the … Embassy and Consulates in Australia not to issue a passport for the children of the marriage.
That the wife and husband shall do all acts and things and sign all documents necessary to renew and/or replace each of the children’s Australian passports upon the expiration of the validity of their passports pending each of the children attaining the age of 18 years.
That the mother shall ordinarily hold the children’s passports.
That the wife give the husband six (6) weeks notice in writing of her intention to take or permit the children to travel overseas.
That the husband be restrained by way of injunction from taking the children to any airport, domestic or international, or other port of departure from the Commonwealth of Australia.
That for the purpose of communication between the parents regarding parenting matters only so far as they are referred to in these Orders, the parents shall use a communication book. In circumstances of urgency, the parents shall use email and SMS text messaging.
That within twenty-eight (28) days of the date of this Order, each parent shall pay to Legal Aid New South Wales the sum of $5 033.40 (GST inclusive) by way of further contribution to the costs of the independent children’s lawyer.

Property Orders:

That the wife be paid $327 320 from the controlled monies account forthwith.
That the husband be paid $20 946 from the controlled monies account forthwith.
That any remaining balance, including accrued interest, is to be divided between the parties as to 67.5 per cent to the wife and 32.5 per cent to the husband.
That the wife shall retain all of her right, title and interest in the following to the exclusion of the husband:
(a)Toyota motor vehicle registration number …;
(b)all personal property in her respective possession or control;
(c)any monies currently held on deposit with any bank, credit union or other financial institution in her name;
(d)any superannuation funds in her sole name; and
(e)any debts or personal loans in her sole name.
That the husband shall retain all of his right, title and interest in the following to the exclusion of the wife:
(a)      Toyota motor vehicle registration number …;
(b)      all personal property in his respective possession or control
(c)any monies currently held on deposit with any bank, credit union or other financial institution in his name;
(d)the collections;
(e)      any superannuation funds in his sole name, and
(f)       any debts or personal loans in his sole name.
That within twenty-one (21) days the wife shall do all things and sign all documents necessary to resign as an office bearer and transfer any interest she has in the following entities:
(a)DP Pty Limited ABN …
(b)H Pty Limited ABN …
(c)Koncz Trust ABN …

That the husband shall forthwith indemnify the wife from any liability associated with the entities referred to in Order 37.
That the husband pay to the wife the sum of $250 per week by way of spousal maintenance with the first payment to be made within seven (7) days of the date of these Orders for a period of four (4) years.
That the parties do all acts and things necessary and give all consents and execute all documents in writing to give effect to these Orders in the time periods prescribed.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
That all applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 376 of 2012

Ms Koncz

Applicant

And

Mr Koncz

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings are between Ms Koncz (“the wife”) and Mr Koncz (“the husband”) concerning both property settlement and parenting issues.
There are three children of the relationship. A is aged 10, P is aged seven and K is aged five.
Presently, pursuant to orders made by consent on 26 April 2013, the children live with the wife and spend time with the husband each Saturday between 10.00 am and 11.00 am supervised by KK Children’s Contact Service (“the Contact Service”).
The wife sought orders that she have sole parental responsibility for the children and that they live with her. She proposed two alternative sets of orders for the children to spend time with the husband. If the court found that there was a significant risk that the husband would remove the children from Australia the wife proposed that the children spend supervised time with the father each alternate Saturday with such time to take place at a contact centre until 2017. Alternatively, if no such risk was found by the court, the wife proposed that the children spend each alternate Saturday with the husband, such time to take place at a supervised contact centre for 12 months. Thereafter, over a period of a further 12 months, the time the children spend with the husband be extended to each alternate weekend from after school Friday until before school Monday. Orders were also sought to provide for school holiday time.
The wife proposed orders for the appointment of a family therapist for the children and that such therapist be a person nominated by the single expert, Dr N.
The husband sought orders that there be equal shared parental responsibility for the children, that they live with the wife and spend time with him every second weekend from 6.00 pm on Friday until before school on Monday. He also proposed orders to deal with school holiday time.
In submissions the husband agreed that orders should be made for the appointment of a family therapist but opposed the single expert selecting the therapist.
The Independent Children’s Lawyer (“the ICL”) proposed orders by which the wife have sole parental responsibility for the children in relation to decisions concerning their long term care, welfare and development. The husband was to be given parental responsibility to obtain medical treatment for the children when they were with him and to obtain information concerning the children from health professionals or institutions. The ICL proposed that the children live with the wife and spend time with the husband. Initially, this is to be from after school on each Friday until 7.00 pm and gradually extending to time each alternate weekend from after school Friday until 4.00 pm on Sunday, with the extended time to commence on 13 June 2014. The ICL did not suggest that anytime be supervised.
The ICL supported the wife’s proposals for the appointment of a family therapist for the children.
In addition to the parenting orders, each party sought a property division under s 79 of the Family Law Act 1975 (Cth) (“the Act”).

Background

The husband was born in a European country in 1962 and is aged 51 years. He immigrated to Australia in 1978. He became an Australian Citizen in April 1982.
The wife was born in 1971 and is aged 42 years old.
The parties commenced living together on the date of their marriage on in late 1994.
At the time of the marriage the wife owned a motor vehicle and had approximately $10 000 in savings. The husband had just purchased J Street, Town M (“the J Street property”) for $155 000. The property was subject to a mortgage of $144 000. He also owned a motor vehicle.
At that time the husband was practising as a health professional at M.
In 2000 the health practice was sold for $65 000. At the same time the J Street property was sold for $295 000. After renting a property for six months the parties purchased, as joint tenants, S Street, Town M (“the S Street property”) for the sum of $429 000. The sum of $200 000 was borrowed from the Colonial State bank. The balance of the purchase price was financed by savings and the proceeds of sale of the health practice and the J Street property.
The husband continued to work as a health professional. Until 2003 the wife continued to work as a casual teacher but also working part-time as an assistant for the husband.
In 2003, the child A was born.
In 2005, the child P was born.
In May 2006 the parties purchased a health practice in Town L. This involved the purchase of the premises in which it was located. The purchase price was $385 000. The property was acquired by DP Pty Limited as trustee for the Koncz Family Trust. The stamp duty and legal fees on the purchase were approximately $17 000. There were plans to redevelop the land and architectural advice was obtained in the cost of $14 000. A mortgage was obtained from the National Australia Bank secured over that property and the parties’ home in the sum of $405 000.
In 2007, the child K was born.
In October 2009 the health practice and the land were sold at a loss of about $30 000.
The parties separated on 4 April 2012 when the wife moved from the S Street property to live with her parents in southern New South Wales. The children went with her.
On 11 July 2012 the S Street property was sold for $780 000. The net proceeds of sale of $519 216.67 were placed with solicitors to be held on trust. Since then $19 900 has been withdrawn to pay for the expert family report. Recently, each of the parties received $50 000 as an interim property settlement from those funds.

Parenting proceedings

Principles to be applied

I must apply the relevant principles of the Act. Having regard to the objects of the part of the Act dealing with children as set out in s 60B. Section 60CA provides that the court must regard the best interests of the children as the paramount consideration. I am obliged to consider the matters set out in s 60CC of the Act.
Section 61DA(1) provides:
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the children’s parents to have equal shared parental responsibility for the child.
Sub-section (4) provides:
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Before dealing with the s 60CC considerations there are a number of discrete issues which must be discussed which have relevance for those considerations.

Counselling for the Children

Shortly after separation the wife contacted the Family Relationships Centre and booked a consultation. During that process she was referred to Anglicare. Consequently, the children A and P attend four sessions with the children’s counsellor there between 25 May 2012 and 26 June 2012.
It was thought desirable that A receive further counselling and the wife was referred to Ms F, a specialised child clinical psychologist, for both herself and A.
A attended a session with Ms F on 9 July 2012.
Due to concerns about the husband’s consent further sessions were cancelled until the husband’s consent was provided.
On 26 July 2012 the wife’s solicitors wrote to the husband’s solicitors proposing that A attend upon Ms F.
Not having received a response a further letter was sent by the wife’s solicitors on 16 August 2012. Again no response was received.
On 10 September 2012 the parties attended court for the Child Inclusive Conference. At that conference the parties agreed that it would be desirable for A to attend upon a counsellor. This was noted by the Family Consultant in her Memorandum to the court.
On 18 September 2012 the ICL was appointed and orders, by consent, were made for the appointment of Dr N, as single expert, for the purposes of preparing a report in the parenting proceedings.
On 7 November 2012 the wife’s solicitor wrote to the husband’s solicitor referring to that agreement and asking that the husband reconsider the contents of the letters dated 26 July 2012 and 16 August 2012.
On 21 November 2012 the wife’s solicitors forwarded the above correspondence to the ICL.
On 29 November 2012 the husband’s solicitor wrote to the ICL stating:
We wish to clarify that our client does not oppose the children’s attendance upon a counsellor. Our client wishes to be advised of all scheduled consultations and provided with any reports associated with their attendance.
On 29 November 2012 the wife’s solicitors wrote to the husband’s solicitors noting that agreement and confirming that arrangements would be made for A to attend upon a counsellor.
Ms F was engaged and A saw her in December 2012 and January 2013.
On 12 February 2013 the husband’s solicitor wrote informing the wife’s solicitors that ‘we are instructed to reject your instructions regarding the counsellor, Ms [F]’.
Upon receiving that letter the arrangements for A to see Ms F were cancelled.
The parties and the children had seen Dr N for the purposes of providing a single expert report. He provided that report on 13 February 2013. Dr N made a specific and very detailed recommendation for individual child therapy
On 28 February 2013 the wife’s solicitors wrote to the husband’s solicitors asking the husband to reconsider his attitude to A attending upon Ms F and pointing out what she perceived to be the advantages of that course. The husband was informed that the wife had not attended upon Ms F herself for several months and was prepared to cease all therapy with her.
On 4 March 2013, after having spoken to Ms F, the ICL advised the husband’s solicitors, ‘Ms [F] is assisting [A] with coping and indicated that she is happy to provide feed-back on treatment to both parents’.
On 20 March 2013 the wife’s solicitors wrote to the husband’s solicitors as follows:
Our client proposes that the children attend upon Ms [F] for family counselling. However, noting your client’s usual resistance to our client’s preference, she proposes as an alternative the following:
1.[PL] Services – This is the same practice that Ms [F] operates from and which has other psychologists available for therapy. Our client is now attending upon Ms [R] of that practice. The Practice is located in … (close to the children’s residence) and offers Medicare rebates. This would also ensure that whilst the children may attend upon a different person, the environment is still the same.
2.[PS] Counselling – This practice is located in … and would be able to service all of the family in a unique and professional manner. With a Medicare referral the cost is nil. We invite your client to review the practice on their website …
No response was received.
On 12 April 2013, on the application of the father, the Federal Circuit Court made the following order:
1.The Mother and Father be restrained pending further order from engaging the children in any form of therapeutic intervention without the consent in writing of the Independent Children’s Lawyer and on recommendation to the Independent Children’s Lawyer by the Single Expert Dr [N].
On 26 April 2013 the matter was transferred to the Family Court of Australia.
On 17 June 2013 the wife’s solicitors again wrote to the husband’s solicitors. The husband was asked to reconsider Ms F acting as a counsellor for the children. It was noted that counselling for both the child A and the child P had been recommended by both the Family Consultant and Dr N, the single expert appointed by the court.
Once again there was no response from the husband.
The result is that none of the children are receiving child therapy. The only therapy that any of the children have received has been the four occasions on which A and P saw Ms F between 25 May 2012 and 26 June 2012 and when A saw Ms F in December 2012 and January 2013.
The husband said that it had always been his position that the wife was free to take the children to any counsellor other than Ms F and that his lawyers wrote letters to that effect on a number of times. He said that between 26 July and 7 November 2012 there were many documents sent by his solicitors giving permission for the wife to take the children to a counsellor other than Ms F.
No such documents were ever produced.
When it was suggested to him that the letter of his solicitors of 29 November 2012 was the first step he had taken towards arranging counselling the husband said words to the effect:
I totally reject that, there is no factual basis for that, why wouldn’t I, what is my motive? It is a ridiculous suggestion there is plenty of correspondence that we did.
When it was put that at no time did the husband propose an alternative counsellor the husband said words to the effect:
I can’t say yes or no. It is up to the wife. I am not in a position to make decisions. I have been cut off and shut off from the children.
When asked if the failure of the children to see a counsellor was entirely the wife’s fault the husband agreed, saying, because of his wife’s insistence on A seeing Ms F, his proposals have no weight. He repeated that he had been disenfranchised.
When shown the letter of 20 March 2013, which proposed alternative counsellors, he said that he had never seen that letter and had no recollection of it but that his lawyers’ instructions, at the time, were to accept any counsellor other than Ms F.
When pressed with the letter, the husband said that PL Services would not be appropriate because Ms F and all of the other psychologists could have a staff meeting and discuss all their matters. Thus, there was a conflict of interest.
He initially denied that an alternative, PS Counselling, had been proposed. He then, rhetorically, asked ‘is [PS] Counselling the same practice as [PL] Services?’ He could not agree to it because the wife had not established that Ms F was not, in fact, part of that practice, as well.
The husband is an intelligent and educated man. It is very difficult to accept his evidence as to the meaning of the letter 20 March 2013 which, quite clearly, proposes two alternatives to Ms F. The husband did not produce the correspondence which, he says, was sent proposing alternative counsellors.
Thus, although the husband agreed that it would have been very desirable for A to see a counsellor from shortly after the separation, apart from the few occasions referred to above, she has not. At the time of the hearing neither a counsellor nor a mechanism for appointing a counsellor had been agreed.
In light of the above, the only conclusion that can be drawn is that A did not see a counsellor because of the husband’s intransigence. The difficulties with Ms F did not emerge until 12 February 2013 which was when they were first raised by the husband. He then did not respond to letters proposing alternatives to Ms F. The failure of the husband to respond to the approaches to appoint counsellors and his subsequent blaming of the wife for A not seeing a counsellor are matters that will need to be taken into account in due course.
The husband asserted that in an email dated 5 May 2012 he proposed Ms Q as a counsellor for the children and that he received no response from the wife. Quite clearly, as the email makes plain, it is a proposal for marriage counselling between the parties with a view to trying to effect a reconciliation. It is not a proposal for therapy for the children. Indeed, it seeks to distinguish the counselling to be provided by Ms Q from counselling for the children provided by the Family Relationship Centre.
Thus, the husband failed to identify any positive proposals by him for the counselling of A.

The conduct of the husband at contact centres

Shortly after separation the wife formed the view that the husband’s time with the children should be supervised. It seems there must have been some discussion about that possibility because, on 15 May 2012, the husband sent to the wife an email stating:
I want to see my children as soon as possible and I don’t really mind what circumstances, i.e. the Catholic Centre, or wherever else, as long as I see them.
The wife then immediately made an application to the CatholicCare Contact Centre (“CatholicCare”) for the use of their supervised facility. On 25 May 2012 the wife’s application was noted as received by CatholicCare. They advised her that they would commence the intake process only after they had also received the husband’s application.
The husband did not provide his documents until 15 August 2012.
In May 2012 the waiting time at CatholicCare was nil.
The children started spending time with the husband at CatholicCare from 13 October 2012.
When asked to explain this delay the husband said that he had struggled as to why there was a need for supervision. He said he was told by his lawyers that if you agreed to supervised contact you get locked in and it is hard to get out. He added:
What is the need, why should I submit to that just because the wife has decided I am unfit? It was not an easy decision and it took some weeks. I was coerced.
When it was suggested that he had not seen the children because he took no steps to do so he replied, ‘that is baseless, what sort of brain do you have’.
The supervised contact at CatholicCare did not go well.
There was frequent disagreement between the husband and the centre staff as to the time he was to arrive. Pursuant to the agreement with CatholicCare, he was to arrive fifteen minutes before contact but he frequently arrived at the time contact was to commence. When it was pointed out to him by the ICL that the CatholicCare staff had called him to appraise him of the correct time the husband said words to the effect:
This is not the first time they have lied. They are younger people not so experienced in supervision because of their age. They asserted I had said something when I had not. They victimised me by getting me to do things that weren’t part of the agreement. They were judgmental … they were judgmental and vindictive.
The proposed visit for 8 December 2012 was the last contact visit immediately before Christmas. The husband arrived carrying a cake and about twenty presents for the children. It was an express term of the agreement between CatholicCare and the husband that all gifts were to be in gift bags. His were not. They were all individually wrapped. The staff informed the husband that the presents would have to be unwrapped in order to comply with the agreement. They commenced to unwrap them. The husband became concerned about the unwrapping. When asked if he was surprised that the staff would unwrap the gifts the husband said ‘Yes I was because I abided by the agreement by waiting for the correct date. I had twenty presents all wrapped and labelled which I had spent hours doing being destroyed. One of the pleasures is in the unwrapping. This was an insult to the children.’
The husband then realised that the unwrapping process would take a long time, perhaps even an hour. Consequently, he collected the presents and left without seeing the children.
The husband agreed that this would have been very upsetting for the children. However it was not his fault. He said of the CatholicCare staff:
They had started the hurtful process. There had been a five month gap in me seeing the children and this was the fifth visit. An older person would not have thought me a risk and could have dealt with issues concerns where there was a need. There was no need for concern.
He later said ‘there was no empathy from these young girls, they were vindictive and judgmental’.
This incident is of some concern.
In May 2011 the husband had approached a Mr E who is a psychologist who provided therapy to enable to assist the husband to control his emotions, to know his limitations and to be aware of his actions. The husband was trained by Mr E to deal with automatic negative thoughts. The purpose of this training was for the husband to deal with negative thoughts and not respond in an angry or aggressive manner. The approach to Mr E was undertaken after the violent incident in the Northern Territory. This incident will be discussed shortly.

The husband said he continues to use those techniques.
When it was put to him that with this incident at CatholicCare indicated that he had not been able to use these techniques successfully he said that it was not correct. He once again repeated his comments about the care centre workers. In response to the suggestion that he did not use these skills, or use them effectively, he said words to the effect; ‘I believe I did, there was no aggression directed at the staff at all’.
The husband could have seen the children without the presents or taken in the cake and at least a present for each of the children that had been unwrapped but he did not. He chose to leave.
On 2 March 2013 there was a further incident at CatholicCare.
The father wished to take photographs of the children. According to the CatholicCare agreement photographs may be taken of the children but they must be taken by one of the contact centre staff.
The husband brought his camera with him and asked if, at some stage during the visit, photographs could be taken. This was agreed. A short time later the contact supervisor approached the husband and informed him that, as he was on the Airport Watch List, photographs could not be taken.
This was not part of the written agreement and it came as news to the husband. Shortly thereafter, as the use of mobile phones during contact was banned, he left the room where he was seeing the children and went to another room. Using his mobile telephone, he telephoned his solicitor to get advice as to whether what the supervisor had told him about the taking of photographs was correct or not. After speaking to his solicitor, he attempted to rejoin the children. The CatholicCare agreement clearly provides that if a parent leaves a contact session they cannot rejoin it. Accordingly, he was refused admittance. There was then an angry scene between him and the contact centre workers. The husband left.
The result is that the children saw their father for less than forty minutes on this occasion.
When it was suggested to him that he might have not interrupted his time with the children, and called his solicitor after the contact time, the husband variously said:
Well they [the contact centre staff] interrupted my time and it was insensitive of them to interrupt me to tell me photographs could not be taken … I was only out for five minutes and they had already insensitively interrupted my time and they could have done the same and told me after the visit … you can’t put the blame on me.
The husband said that in relation to these two incidents that he would act in precisely the same way again.
On 26 March 2013 the husband informed CatholicCare that he would no longer attend the centre to see the children. The husband did not contact the mother to inform her of his decision. No explanation was given as to why the husband did not wish to spend time with his children.
He did not see his children again until 4 May 2013 until supervised time was spent by the children with the husband at KK. This was pursuant to consent orders made on 26 April 2013.

The conduct of the mother at contact centres

The husband’s case is that the wife’s conduct as recorded at KK demonstrates that the wife is actively undermining his relationship with the children. The submission seems to proceed along the lines that the reservations expressed by the children to Dr N about their father were instilled by the mother and were not an actual response to him by the children themselves.
On 4 May 2013 the children commenced to spend time with their father at the centre. The centre records indicate that all three children were pleased to see the husband and the contact went well even though during the visit K asked his father if he was going to gaol.
On 11 May 2013, the second contact time at KK, P told the supervisor that he did not want his dad to go to gaol.
Later, K asked the husband if he was a witch. When he replied ‘No’ K said ‘Mum said you were a witch’.
The children seemed to the supervisor to have enjoyed their time with the husband and were reluctant to leave him.
On 18 May 2013, on arrival, P told the supervisor that he did not want to stay. The supervisor told him that it was ‘ok’ if he did not want to attend. The wife said to K that ‘you don’t have to go, no one can make you’. He did stay but was reluctant to go over to his father saying ‘I hate him and I don’t want to hug and kiss him’. Later he said to the husband ‘you have been to gaol and you’re going back to gaol’.
However, by the end of the visit he was talking to the husband and kissed and hugged him goodbye.
On 25 May 2013 P refused to attend contact.
The supervisors note includes the following ‘[P] seems conflicted as whether to attend contact with his father. This is very different from the first two visits where [P] could not get to see his father quickly enough’.
On 1 June 2013 P attended the contact. He spat at his father.
On 8 June 2013 P did not attend contact. According to the supervisor ‘[The mother] just raised her hands and said it’s nothing to do with me’.
On 29 June 2013 the supervisor recorded ‘[P] not sure whether to go. [P] hangs around and you need to ask 3 times whether he is going or not’.
P did not again attend contact until 31 August 2013. He told the supervisor that he was only going because mum made me. It was the day after Dr N met with the children and the parties in preparation for his second report.
Thereafter P has attended contact visits with his father.
The wife admits that she told the children that the husband had been in gaol for a day but did so only because the children had asked her and she did not want to tell the children an untruth. This particularly upsets the husband as he asserts he was never in gaol, but merely held in custody for two hours whilst being charged (in relation to the Northern Territory incident).
It is likely that the children have heard the suggestions of the husband being in jail and perhaps that the father was a witch, from the wife or her family. If so, that was not cautious and was unwise of whoever said these things in the presence of the children.
The children told Dr N that they did not feel safe with their father. They felt he might hurt them, or take them away. Supervision was to prevent this. They were scared of the father’s house (to which they had not been) imagining it to full of monsters and ghosts or a shark that might eat them. K said ‘… he’s going to jail at the end, for taking me away, in the river’. He said that mum and ‘nan’ are worried about dad taking him away, especially ‘nan’.
The children’s fears about their father which they expressed to Dr N were described by him as deriving ‘…partly from their own lived experience and episodic memory of the father’s past grumpiness and intermittent anger and partly absorbed from the mother’s fears and negativity about the father’.
Given the highly negative nature of the relationship between the parties it would be surprising if the children did not pick up from the wife and her mother their negative feelings towards the husband. This is especially so where the wife insists on the time the children being spent with the husband being supervised.
Dr N said ‘I maintain a view that the children have not experienced emotional abuse in the care of the mother or deliberate disruption of the father-child relationships’.
The husband submits that the evidence also establishes that the wife actively encouraged P not to go to contact visits.
The wife said that she encouraged all the children to look forward to and to attend all contact visits. She said, however, that once P was given the chance of not attending by the supervisor there was nothing she could realistically do. Whilst she could have at least attempted more positively to encourage P to stay, there is some force in her position. Dr N was also of the view that the wife could have given P a greater ‘push’ towards attending.
Tellingly, P resumed contact visits on 31 August and has attended all since. That is more consistent with the wife encouraging P to attend than encouraging P not to attend.
The evidence of the wife and Dr N on this issue is accepted. The evidence, thus, does not establish that the wife has actively sought to damage the relationship between the children and the husband. It is clear that the children have absorbed some negativity from the wife as well as forming this view from their own experiences.

The incident in the Northern Territory

From mid-2010 to approximately May 2011 the husband spent much of his time working as a health professional in Darwin. In April 2011 he was involved in a violent incident.
Whilst the husband was talking to the wife on his mobile phone an argument with another person ensued which led to a violent altercation between them. The husband agreed that he punched the complainant, a woman, in the head several times. He said it was in self-defence. In due course the charges were dismissed.
The wife swore a statement in support of the husband to be used at his trial but sought to resile from that in her evidence in these proceedings. That statement was largely supportive of the husband’s position that he was merely defending himself.
The wife tendered statements made to the police by other witnesses. They were not called in these proceeding and their statements are thus untested.
Given the fate of the charges and the incomplete state of the evidence it is not possible to come to a concluded view as to the nature of the incident.
There were no other suggestions of physically violent conduct by the husband. While each party sought to assist their case by reliance upon this incident and what flowed from it, it is of no particular assistance in determining the ultimate issues in these proceedings.

Child Safety Incidents

The wife relied upon three incidents that she submitted raise concerns about the ability of the husband to care for the children.

The incident in Europe

In January 2010 the parties were in Europe. The family was at the top of a slope on a ski field with toboggans. The wife took a toboggan ride down the slope. Whilst she was at the bottom of the slope the husband allowed P, who was then four years old, to head off on his own in a toboggan. At the bottom of the slope P collided with some ski lift equipment. As a result he suffered a depressed fracture of the skull which required a minor craniotomy.
The wife submitted that this demonstrates that the husband does not have an adequate appreciation of the risks involved when parenting because he ought not to have let P, at that age, toboggan down the slope by himself, never having done so before.
When this was put to him the husband said words to the effect:
It wasn’t the wife’s fault or my fault. She says everything is my fault. He was not under my care she was there in the same capacity as me. She had every opportunity to come up the slope to stop [P] … you didn’t ask [the mother] if it was unwise to let him take off. She was relaxing and eating and drinking on the slope. I was supervising the children more. We had no way of assessing the risk. There was no sign it was dangerous, it was due to the negligence of the operator.
The evidence does not enable a view to be taken as to whether or not it was a wise decision to let the child toboggan unaided down the slope.
What is clear is that the husband was in close physical proximity to him and could have prevented him doing so, or assisted him by pointing him in a different direction. The wife, being at the bottom of the slope could not. The husband, however, could not accept that the decision to let the child go, wise or unwise in hindsight, was his.

The incident at the Grand Canyon

In October 2008 the family visited the Grand Canyon. The wife complains that the husband was hardly keeping an eye on the children. This was distressing to her as the paths had no significant safety railings and there were deep drops close to the paths.
Whilst the husband disputed that there was any risk at all, his response in cross-examination was illuminating. When the wife’s concerns were put to him he said words to the effect, ‘Well the wife made us eat in a café where there was a bullet hole in the window’.
He was then asked why he always complained about the wife the husband responded to the effect:
You must be joking, she is always blackening my character and alienating the children… she was there in the same capacity as me.
Again the point is not whether the conduct of the husband was reckless (the wife submits that it was but the evidence does not enable such a determination to be made) but rather that the husband cannot see the concerns of the mother and responds with a personal attack.

Children left locked in car - January 2009

According to a police report, on 7 January 2009, the children were observed to be locked in the husband’s car at a time when the temperature was 30 degrees. Witnesses informed the police that three children had been seen locked inside the husband’s car. The children were described as red and sweating profusely, not responding to the witness and the youngest crying.
One of the witnesses went to the nearby JB Hi-Fi store to find the driver with no success.
The car was then broken into by the witnesses, the children removed and taken to a nearby TAB where there was air conditioning. The husband did not appear for another ten minutes. The witnesses then called the police.
According to the police report, the husband was surprised yet remorseful for his actions and that there was a need for police and bystanders to become involved. He told them that he had only left the children for a short period of time and the children were not in danger.
The police forwarded a Notice of Child Abuse to the Department of Family and Community Services.
The husband’s version in these proceedings was quite different.
He said he left the children locked in the car, with the windows down, for no more than three to five minutes while he quickly popped into JB Hi-Fi to return an item. He was distressed when he emerged to find the car was empty and later that the children were in the care of two persons in the TAB. He described those persons, being the people who had removed the children, several times as ‘drunks’.
When it was suggested to the husband in cross-examination that the children were red in the face, sweating and crying because there were no windows open the husband said words to the effect:
Children become red in the face and sweat when they cry. They would do that when two strange drunks try to remove them from their car.
When it was suggested that one of the children was wearing a jumper he said that he did not remember but that the mother may have been responsible for what they were wearing.
He described the suggestion that he had left the children alone for over 15 minutes at least as total rubbish.
On 28 April 2012 the mother wrote to the husband attempting to deal with some of the difficulties in the relationship. She said:
There are other issues that I have also found hard to bear and would also like you to recognise and promise not to continue.
There then followed a number of bullet points. One of those bullet points was, ‘no longer begrudge taking care of the children and leave them in a car for an hour or more like you did in the United States and the … car park’.
The husband’s response to this email was, ‘Thank you for your thoughts. They are all valid points and I agree that they are unacceptable to our family and our lives and I will never do them again – see attachment’. Attached to the email was a document which was headed ‘What [the mother] Needs, What [the father] will do (2)’. The bullet point just quoted was repeated.
That email is a clear admission by the husband that his children were left, by him, in car for an inappropriate time on both those occasions.
Returning to the incident on 7 January 2009, the husband’s version is not probable. Two bystanders undoubtedly removed the children from the car, took them to the TAB and called the police. This the husband accepts. It is not probable that this occurred within just a few minutes. It is also likely that bystanders would wait, at least a short time, so as to see if the driver would return before acting.
In those circumstances the husband’s version of events cannot be accepted.
The reference to the United States in the email just quoted is a reference to a similar incident said to have occurred whilst the family were holidaying there.
Again the husband denied that the children were in the car for over an hour and asserted that it was just a few minutes. Again he asserted that officious bystanders had acted unreasonably to raise concerns.
Again the above email exchange does not sit comfortably with the husband’s version.
It follows that the husband does not necessarily have a significant appreciation of risk when caring for the children.
More important, however, is his reaction to the above events. The husband does not and, seemingly, cannot accept the responsibility for his actions. As emerged many times during his evidence when incidents occurred, others were always to blame – particularly, and often, the wife. Nothing was ever due to him. Examples already discussed include the issues over therapy for the children and contact centre behaviour.

The first single expert report of Dr N – 13 February 2013

Dr N described the children has having a positive relationship with the wife who was their most significant attachment figure. Significantly, he noted that the husband expressed the view that the mother raised the children well. He did, however, say that a current vulnerability of the mother/child relationship was that the wife was presently projecting her own ‘stuff’ about the husband onto the children which has led her to restricting contact to more than what was necessary.
Dr N described the children as having a positive relationship with the husband and he was of significance to the children.
Dr N believed that he did not perceive either of the parties to have a personality dysfunction or mental disorder. The husband was, however, described as having obsessional personality traits, using intellectualising psychological defences and being insecure in his sense of self. The husband’s insecurity in his sense of self is expressed culturally. He feels he does not fit in to Australian society and has considered a return to Europe.
In relation to the safety incidents described above Dr N said:
149.I did not find the father’s response to my questioning about the above incidents reassuring, in that he did not talk about the process of monitoring or managing risk when caring for children, but instead was rather dismissing of the mother’s concerns.
Dr N said that, notwithstanding the wife’s ingrained mistrust of and negativity towards the husband, the wife had not been burdening the children with a loyalty conflict and presented as allowing the children to be free to love and see the husband.
Dr N recommended shared parental responsibility, that the children live with the wife and that the children commence regular unsupervised time with the husband progressing to spending every second weekend and half the school holidays with the husband.

The second single expert report of Dr N - 7 October 2013

Dr N advised that his overall observation of each parent’s relationship with the children remained as in the initial report.
He did note there had been a significant shift in the husband’s stance on the wife’s relationship with the children and the parenting capacity in that he was now openly critical and globally dismissing of the wife’s past parenting and the children’s current parenting environment.
He now found that the husband had a greater degree of personality dysfunction than that of the wife and that the relationship bore some characteristics of a pattern of family violence perpetrated by the husband against the wife. He found the degree of personality dysfunction had the potential to disrupt his parenting capacity in the longer term and had in fact already done so (in relation to the contact centre visits). He found that the husband had narcissistic personality traits, a long standing pattern of grandiosity, need for respect and acknowledgment and lack of empathy. He thought it unlikely there was a personality disorder.

Dr N considered that the family violence to which he referred was not physical violence but was behaviour within a family relationship that is coercive and intimidating, disrespectful and harmful to the others.
The children raised a number of issues with Dr N in relation to the husband. They said they were scared of the husband, that there would be monsters at his house and the like. Dr N said of this:
93.In my view, the children’s confusing and anxiety-provoking polarised perspective on the father is being maintained and exacerbated by the current contact arrangements, and would be assisted by the institution of more substantial time spent with the father, with appropriate management of any associated risk, and the institution of therapy as recommended in the initial report and elaborated upon below.
Dr N opined that with an appropriate ‘dose’ of contact, a ‘weekend and holidays contact scenario’ the children are at risk of discomfort in the care of their father but are not in danger.
Dr N’s recommendation has remained substantially as before but he changed the detail of them considerably to provide for a gradual change from unsupervised time and proposed that when the children reached the age of thirteen the children could initiate a reduction from alternate weekend visits to one weekend in four.

The risk of removal of the children to Europe

The wife submits that the children are at risk of being removed from Australia by the husband. Thus, she submits, their names should remain on the Airport Watch List and that orders should remain in place prohibiting the husband from taking the children from Australia. The husband opposes both of these orders.
The wife’s concerns arise from a number of factors.
The husband was born in Europe, he then came to Australia as a teenager in 1987 and was subsequently naturalised in 1992. The husband has a high regard for European culture and his ethnic heritage.
In late 2011 and early 2012 the parties were actively considering moving to Europe.
The husband was in Europe in February 2009 and in August and September 2011. It seems that on the latter occasion he became registered to practice there as a health professional.
On one of the trips to Europe the husband became romantically involved with a person called Ms G. This relationship was the direct cause of the parties separating. That relationship continued for some time after separation until it was terminated by the husband.
It only emerged in cross-examination that after that termination that relationship resumed. This was after the husband informed the wife of the termination and made an approach for reconciliation. After the wife made no response the relationship with Ms G resumed.
The husband has formed the view that the wife is an unsuitable parent, that she does not care for the children properly and never has. During the hearing, in many answers, the husband was openly critical of the wife’s parenting ability, her genetic makeup and the character of her relatives. On many occasions he said that all she was concerned with was assassinating his character and alienating the children from him. Such comments were made most vehemently and firmly.
Dr N said that the hardening attitude of the husband to the parenting capacity of the wife feeds into a concern that the husband would see flight with the children as a better course for them than being raised by the wife. The husband’s evidence in court of the wife’s parenting ability was described by Dr N as adding to his concerns. This was particularly so as the criticism included references to class and culture.
In his second report Dr N said that there was a risk of the father unilaterally relocating with the children outside of Australia because the husband’s overall belief that his children are not getting a proper upbringing could lead him to take them somewhere where they could get a proper upbringing. Dr N said:
102.It is now my view that there is a significant risk that the father if able might unilaterally relocate overseas with the children, and that he would be able to construct a moral defence in his mind for such action, even if it involved covert strategies. This view is based upon:
102.1The father’s clear view expressed to me at interview on this occasion that the children are currently being raised in an inadequate and dysfunctional context, which is damaging to them, and an associated view that he could and would do better.
102.2The father’s expression of his judgment of the mother’s parenting using the language of class and culture, in the light of his expression to me at paragraph 136 of the initial report that he does not “fit in” to Australian society, and the views expressed at Annexes [sic] A11 and A12 to the mother’s recent affidavit.
102.3The father’s belief (I believe, inaccurate) that the mother is actively seeking to undermine the children’s relationship with him.
The references to the annexures are references to the documents that the husband has written, or approved of, pointing to the superiority of European culture which was damaged by the intrusion of non-Europeans (including Jews, Barbarians, Mongols, Turks, ‘still more Jews’ and Asians) and the desirability of strict cultural segregation. Those documents indicate the husband holds little respect for other cultures.
As to the third of the points raised, Dr N was of the view that contact, as proposed by him, may well ameliorate that concern of the husband. It is, indeed, the husband’s view that the insistence upon supervised time by the wife and what he says as the failure of the wife to require the child P to attend the contact centre are examples of such undermining.
There has been no threat by the husband to remove the children.
Dr N was of the view that a person of the personality of the husband would not make such threats but simply act. I accept that opinion.
The wife submitted that this risk was exacerbated by what she says was the husband’s writing of prescriptions in family member’s names when the prescriptions were not for them, altering his Citizenship Certificate and forging the wife’s signature on a bank document. These matters establish, it is said, a tendency and an ability to act improperly to create such documents.
As to the first, the position of the husband, ultimately, was that he had written prescriptions in family members’ names but that on occasions, the prescription had been for his wife’s use and her mother’s use, that he had taken some of the drugs so prescribed himself and kept some in his health practice for use by various patients. At least the last two would seem to be improper.
The wife and her mother, for whom prescriptions had been written by the husband, said that they had not received or used the medication. Certainly, in relation to the wife’s mother, the drugs were obtained from a pharmacy which was not the pharmacy from which she obtained her other prescriptions. Whilst the possibility remains that the wife and her mother did use, from time to time, some of the drugs so prescribed their evidence that they were not specifically prescribed for them is accepted. The probabilities accord with this finding because they each had their own medical practitioners and the drugs were supplied by a pharmacy not used by them. The evidence of the husband to the contrary was confused and argumentative.
As to the second, sometime after he became an Australian citizen in April 1982 he altered his Certificate of Australian Citizenship. He deleted the name ‘[forename Koncz]’ and replaced it with ‘[additional forename Koncz]’. He deleted the place of birth of ‘[City 1, Country 1]’ and replaced it with ‘[City 2, Country 2]’. The Certificate was then laminated. The husband said that he did not laminate it, that it was done at his direction and the purpose of the lamination was to disguise the alteration.
Although he agreed he falsified the Certificate with intent to deceive the husband’s response when first shown the certificate was to say words to the effect: ‘This document was stolen from me in May 2011 when she stole personal documents. This is obsolete and ready for disposal. It is a piece of rubbish’.
The husband said that he made the alterations because, on arrival in Australia, he was assaulted because of his accent and possibly his appearance. He was traumatised by this. To alleviate this he tried to supress his Country 1 heritage and pretended he was from Country 2. At the time of his marriage he altered the Certificate because he had already told the minister marrying the parties that he was from Country 2 and ‘did not want to betray his trust in me’. He said that recently he had come to regret this and had obtained replacement Certificates of Australian Citizenship and Marriage Certificate (which also referred to the husband’s birthplace as Country 2).
A Certificate of Australian Citizenship is an important public document. It can be used to obtain a driver’s licence which, in turn, can be used to obtain a passport.
Even if the ‘innocent’ explanation is accepted it shows that the husband is prepared to alter public documents for his own benefit. It is troubling that he thought it of little significance.
These two matters indicate that the husband is prepared to alter public documents to suit his purposes and that he thought such alteration was of little moment. Thus he might more readily alter documents in an attempt to remove the children from Australia. This adds to the risk of removal.
The third matter can be dealt with briefly. The husband placed what purported to be the wife’s signature on a bank document. Given that the parties were borrowing from the bank, it is likely that the wife would have signed the document if she had been asked. She did not raise the matter until this hearing.
Whilst there was, seemingly, no dishonest intent by the husband, it does confirm that he will do what he thinks desirable despite the legalities.
These factors, when taken together, are sufficient to raise the prospect that the husband would unilaterally remove the children from Australia. He himself said he has no ties in Australia other than the children. He has no relatives living in Australia. He has no property in Australia. He would be able to work in Europe where apparently there is a person with whom he continues to have a romantic attachment. His hardening views about the wife, which now extend to her family and genetic make-up, support a finding that he could justify to himself such a removal.
Accordingly, I find there is an unacceptable risk of removal of the children from Australia. It is no answer to say that the country of the father’s birth is a country which is a signatory to the Convention on the Civil Aspects of the International Child Abduction. Any removal of the children from their mother would be devastating to them which must be guarded against.
Appropriate orders will be made to mitigate against the removal of the children from Australia.
Dr N suggested that a desirable step to take would be to arm the children with information which would protect them from removal. This would be done by the child’s therapist or the ICL explaining the orders against removal to them in the presence of each parent (not at the same time). The aim is to normalise the children’s fears of removal and also to arm them with the knowledge that if such a removal is attempted they would be empowered to speak up.
It was suggested to Dr N that the children might tend to be compliant with the husband and not raise an alarm if they were, for example, taken to an airport with some explanation being given to them that they were travelling domestically. He agreed that a safer course would be to prevent the husband from taking the children to airports or ports of departure. This would assist the children to raise an alarm as the boundaries of the husband’s conduct would be clearly defined. Such an order will be made.
This is a desirable course given the children’s concerns about their father.

Section 60CC Considerations

Given that the wife commenced proceedings in the then Federal Magistrates Court on 27 April 2012 the section 60CC considerations applicable to the parenting proceedings are those prior to introduction of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.
One of the two primary considerations under s 60CC is the benefit to the child of having a meaningful relationship with both of the child’s parents.
The children are clearly closely attached to the wife. The wife is and has been the primary carer of the children. All three children spoke positively to Dr N of their life at home with the wife. In Dr N’s first report he said:
58. In my view, the children have a positive relationship with the mother. The mother is an attachment figure to the children, in that they turn to her to meet their needs for engagement, empathy, sustenance and protection from danger. They experience her as engaging, empathic and non-dangerous.
…
65.The interaction between the children and each other, and the children and the mother, had energy and reciprocity.
Of the children’s relationship with the husband Dr N opined:
83.In my view, the children have a positive relationship with the father. The father has been over the years, prior to marital separation, someone to whom the children are aware they are precious and carry a special significance. The father is an attachment figure to the children, in that they can turn to him to meet their needs for engagement, special-ness, sustenance and protection from danger. My impression is that the children will tend to approach the mother first with their need, but if mum is busy or unavailable, they will turn to the father.
…
90.So, the father gives the children the signal that they are special to him. He does engage with them, and try to guide or instruct them. But, he is not particularly playful or attuned to the children’s wants/needs in the moment. And, he has many solitary passtimes, to which he will want to retreat after a period of engagement at work or home. So, the children are used to dad being around, being affirming of their worth, but at times be annoyed by their intrusion, and also being rather disconnected and engaged in other things.
The children thus have a meaningful relationship with both of their parents which is of benefit to them.
It is important that the relationship of the children with both parents be maintained.
All parties agree that the children should live with their mother. The husband does not seek for the children to live with him. Rather he seeks extended unsupervised time every second weekend from Friday until Monday and on alternate weeks overnight on Friday until early Saturday and half holidays.
The wife opposes that course seeking significantly less time that the children spend with the husband and that such time be supervised for a number of years.
Thus the parties agree that it is desirable that the children should have a meaningful relationship with the husband and that, in order to facilitate this, they should spend time with him regularly.
The view of Dr N was that the relationship and development of a meaningful relationship between the children and the husband is being hindered by the supervised contact. This is because they do not see the husband as a complete person. Rather they see an idealised aspect him from the way he presents at contact visits. They see him at his best and most engaging. They do not see him as a complete person because they do not see the other side of his personality. A meaningful relationship is one that takes account and understands both the strengths and weaknesses of a person. The supervision is hindering the development of such a relationship and it should be lifted in an appropriate way.
Whilst the wife sees this as exposing the children, in a harmful way, to the less positive aspects of the husband’s personality Dr N opines that it is in the best interests of the children to see the husband as a whole person - his good aspects and his bad aspects. The view of Dr N accords with the finding of the court.

The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The wife submits that the need to protect the children from psychological harm or the risk of removal from Australia requires that the children’s time with the husband be supervised for many years.
Dr N in his second report opined:
53.In terms of the children’s possible future relational experience with the father, a parental aggressive outburst or coercive reaction followed by a form of mutual apology and reflective discussion, or at least an implied regret and a reparation, is often not harmful and in fact can be of developmental benefit. But, where a parent behaves in such a way but denies any wrong doing on their own part and in fact seeks to extract an apology or capitulation from the child, this can be demoralising and developmentally harmful, and can if repeated become a form of emotional abuse.
54.In my view, the mother had such an experience of the father, and she rightly is vigilant to the risk that the children may be exposed to the same. I would hold to my opinion expressed in the initial report that in term of the children’s current experience of limited supervised contact time, the children are mostly enjoying this time, and the mother is projecting onto them her own fears and apprehensions about the father. But, in terms of future more substantial time, I feel that the mother is accurate in her caution about the children likely experiencing paternal interpersonally coercive and emotionally abusive behaviour.
This opinion accords with the evidence of the wife. She said:
After an argument, [the father] would often withdraw from myself and the children, almost like “the silent treatment”. I would be at pains to ensure that my behaviour was especially proper around him and was anxious about the children being near him at these times in case they did something to upset him further. The children would try to be “helpful” to [the father] as much as possible when he was in these moods. If the children or I tried to coax him out of these moods he would become angry at us. This attitude continued throughout the relationship.
The wife said that the husband engaged in derogatory behaviour throughout the relationship often saying to her words to the effect ‘if you are not happy, leave’. She said he would regularly put her down and criticise her during the marriage, calling her a number of derogatory expletives.
In addition to the matters discussed, the wife describes difficult and controlling behaviour. She said he is obsessively clean requiring the wife, for example, to vacuum floors after each meal. The wife said that the husband cannot tolerate even a hint of criticism by others and remains calm and collected until circumstances get beyond control at which point it becomes verbally abusive and intimidating.
She described what she regarded as inappropriate discipline of the children, for example, the children were allowed by the father only to play with one toy at a time. If he found they had more than one toy out at a time, rather than being required to return the toys with which they were not then playing to storage, they were obliged to return all toys to storage and stop playing. The house had a parquetry floor. The husband was concerned it would get dents in it by children dropping Lego on the floor. If the children did so the husband has called the children names such as ‘stupid idiot’ and sent them to their room. The wife said he aggressively destroyed the child A’s toy shopping trolley in front of her for making scratches on the floor.
In early 2012, when the child P was five, he scratched a DVD. The husband required P to pay for a replacement and, to do so, confiscated his birthday and Christmas money. He was required to hand over his money jar of coins.

This is an important consideration when determining the amount of time the children should spend with the husband. It points to a shorter rather than longer time.
It is also an important consideration in determining whether there should be equal shared parental responsibility. It speaks strongly against such an order.
The wife clearly has the capacity to provide for the emotional and intellectual needs of the children although she does project onto them, at times, a number of her own fears and insecurities about the children. The wife attends a therapist regularly and has at all times been alive to the desirability of the children having therapy to assist them through the difficult separation.
She is supported by the maternal grandparents although Dr N noted that the maternal grandmother seemed consistently more negative towards the husband than the wife. Notwithstanding that she may have been the source of some of the negative information the children have picked up about the husband, she seems to have the ability to care appropriately for the children.
The capacity of the husband to provide the children’s intellectual and emotional needs is questionable, especially if the children spend longer periods of time with him. The husband is a firmer disciplinarian than the wife. That, of itself, is not a difficulty. The husband’s personality issues make it difficult for him to empathise with the children and to allow them freedom to be children as they will disagree or indeed upset him at times.
There is the danger that has already been identified that there is a risk of emotional abuse if the children spend too much time with the husband.
To some extent, these can be mitigated by the appointment of a family therapist. The husband has already completed a parenting after separation course.

The maturity, sex, lifestyle & background of the children or either of the children’s parents

The husband is of Country 1 descent and very proud of his European and ethnic heritage. That being said, he has not forced that upon the children and, for example, he has not attempted to teach them his native language.
The orders that will be made in this matter will not prevent the husband from appropriately exposing the children to his ethnic heritage. It is true that the orders as framed will prevent the children from being taken to Country 1 by the husband, which is one of his wishes. Whilst in ordinary circumstances that would be desirable, from the matters discussed earlier this cannot be permitted in the medium term.

The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents

These matters have been fully discussed earlier. The attitude of the husband is such that his time with the children should be limited.
There are no other matters raised by s 60CC that require specific attention.

Has the Presumption Under s 61DA been Rebutted?

Section 61DA provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Thus the presumption of equal shared parental responsibility is to apply unless it is shown, by reason of abuse or violence, not to apply or where it is rebutted by evidence that it would not be in the best interests of the child for it to apply.
The attitude to the parties about making decisions that are in the best interests of their children is best illustrated by what occurred in relation to the appointment of a psychologist to provide therapeutic counselling for the child A. Shortly after separation the parents agreed that it was a good idea. As at the date of this hearing they had still not agreed upon a person to provide that therapy or on a mechanism for a third person to choose such a therapist.
The husband’s attitude to when he will see the children and his behaviour at the contact centres suggests he puts his feelings and needs ahead of the children’s.
The wife will not talk directly to the husband, even about children’s matters. Communication takes place through the solicitors.
Given the husband’s hostile, negative and derogatory view of the wife, vividly apparent in this hearing, one would not expect that direct communication would go well in any event.
It has been found that the wife generally acts in the best interests of the children.
The evidence details a number of instances where the husband has made inappropriate parenting decisions or behaved inappropriately towards the children. When issues about his parenting decisions are raised he becomes angry and abusively blaming of others. There are the incidents of the children being locked in the car as examples, as well as the contact centres.
The husband’s continuing attitude towards the counsellor raises genuine concerns as to whether he is able to put the children’s interests above his own needs.
Quite simply, the parties are not able to work together to manage joint parenting. This is especially so given the husband's attitude to risk management and to the wife. Joint responsibility has led to A not seeing a counsellor despite everyone agreeing it was desirable.
The evidence comfortably establishes that it would not be in the best interests of the children for the presumption of equal shared parental responsibility to apply. The wife will have sole parental responsibility for the children. There will be orders made, as suggested by the ICL, to provide for access to records and decisions to be made by the husband when the children are with him. The ICL suggested that there should be an order requiring the wife to consult with the husband prior to making significant decisions about the children. Given the conflict between the husband and wife, and the long history of non-cooperation, that order will not be made.
For the reasons set out earlier there is ample evidence that rebuts the presumption provided by s 61DA(1). In the light of that finding it is not necessary to consider the provisions of s 65DAA.

The orders that are to be made

For the reasons given earlier, orders will be made maintaining the children on the Airport Watch List and preventing the husband from removing the children from Australia. As a further precaution, the husband will be restrained from taking to children to any domestic or international airport or other port of departure from the Commonwealth of Australia. These orders are to be explained to the children by the family therapist, as nominated by Dr N, or the ICL.
The issue then arises as to what time the children should spend with the father and in what circumstances.
The submissions of the ICL and the evidence of Dr N that supervised time is not in the interests of the children are accepted. The children may have, at times, some discomfort spending unsupervised time with the father, provided the time is appropriate they are not likely to be subject to emotional abuse.
If the above orders are insufficient to prevent the children from being removed from Australia, then supervised access is unlikely to prevent abduction.
Further, long periods of supervised time are regarded by this Court, in general, as undesirable.
The evidence also establishes that long term supervision is not practical. KK does not provide supervision after final orders are made. The centres available that provide such supervision were, in the circumstances of these parties, prohibitively expensive. The period for which supervision is required under these orders is very short and hopefully KK will be able to facilitate the contact, in effect, for an interim period. If KK cannot provide supervised contact then the father will spend no time with the children until such time as the ICL or nominated therapist has explained the effect and reasons for the orders preventing removal. In any event, the husband will have telephone or ‘Skype/Facetime’ contact with the children from the date of the orders.
As to the time the children spend with their father there is the issue of distance. At present the husband resides some 50 minutes by car from the children’s home and school. He is at present working in Newcastle but able to collect the children from after school on Fridays.
He said that he is negotiating employment opportunities in Melbourne, Charters Towers and Tamworth. Obviously, if one of those opportunities is taken up, that will create difficulties. The husband said that he would expect to be able to negotiate an employment agreement which would enable him to return to the Illawarra each weekend. He did not say, however, that such employment would still enable him to collect the children from after school Friday and return them to school on Monday. For each of the possible employment opportunities the husband would be obliged to drive to the airport at Sydney and fly to his destination. It is difficult then to see how he could do other than work part-time if the children are to spend time with him from Friday to Monday. He did not say he could, or would, do so.
The time the children are to spend with the father should be increased gradually so as to allow them and the father to get to know each other in this new environment, in a manner that is less threatening to them. Hopefully, in this way, a more meaningful relationship will be developed than a sudden change into long periods of time with the father. They have not been alone with him for a long time.
The opinion and reasons of Dr N that it is best to dive in at the deep end and cease supervised time immediately are accepted. The reality is that, since there will be an order that the parties are to engage in family therapy with a therapist identified by Dr N and that unsupervised time will not commence until such therapy has commenced to the stage that the therapist or ICL has explained the effect and reasons for the orders preventing removal from Australia, there will be a short period of supervised time. If any adjustment by the children and the parties is required, this should be sufficient time for that to take place. As stated, if KK is unable to provide supervised contact after the final orders are made then the husband will have no contact with the children until such orders have been explained to them.
As to the periods of time to be spent with the father by the children the orders proposed by the ICL provide an appropriate graduation to an appropriate time that the children spend with the father. In Dr N’s words, the ‘dose’ is sufficient to enable them to have a complete and meaningful relationship with their father without the time being so long as to give rise to an unacceptable risk of emotional abuse.
As agreed between the parties, orders for the appointment of a therapist will be made. Despite the husband’s concerns about Dr N’s impartiality, he is the person best able to identify a therapist. Given the parties are unable to agree someone else must do it, it will be him.
It was also agreed that there should be orders requiring the wife to attend a parenting after separation course and for her to enrol the children in Rollercoasters, or a similar course, as soon as possible.
Due the difficulties with the communication between the parties there should be a communication book to facilitate the flow of information about the children.
Finally, the husband, especially, will perceive that much in these reasons has been written about him and less about the wife. This flows simply from the fact that it was agreed by all, including the husband, that the children should spend most of the time with their mother. The issue in the proceedings was what time and in what circumstances the children spend time with the husband. That directs the focus onto him and his relationship with the children as the primary focus of the parenting proceedings.

Property proceedings

Applicable Principles

According to guidelines established through a series of leading decisions, the court is required to determine the following matters:
·the assets, liabilities and financial resources of the parties to the marriage
·having regard to the breakdown of the marriage, if any, is it just and equitable to consider whether the alteration of the parties interests in their property is just and equitable
·all relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of s 79(4) must be identified and weighed against each other
·the matters in paragraphs (d) to (g) of s 79(4), particularly paragraph (e) which takes up by reference the provisions of s 75(2) must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of contribution
·an order under s 79 must not be made unless the court is satisfied that, in all the circumstances, it is just and equitable to make the order.
There was little disagreement between the parties as to the value or identity of their properties owned by them. The principle asset owned by them is the sale proceeds of the former matrimonial home presently held in trust. There were three issues that required determination.

NAB Gold Account

The husband had an NAB Gold account. On 2 May 2013, $50 000 was deposited to it. It is to be recalled that the parties agreed that each would receive $50 000 from the proceeds of sale being held in the controlled monies account. On 15 April 2013 the husband’s solicitors wrote to the wife’s enclosing an Authority to Release Funds. It was submitted, therefore the funds deposited on 2 May 2013 must have been this sum of $50 000.
In his Financial Statement sworn on 11 April 2013 the husband said he had $54 000 in his bank account. This, it was submitted, must therefore have been an additional sum of $50 000 for which no account has been made.
The bank accounts tendered by the husband do not show two such deposits. They do, however, only commence from 13 April 2013 and show a balance of $1 619.22. Thus, for the wife’s submission to be correct, over $52 000 must have been removed from this account over the preceding five days. Neither party tendered bank statements covering that period.
In the absence of such statements, which would have been readily available, the Financial Statement appears to be an error. It would have been easy for the wife to have tendered a bank statement showing a sum of $54 000 on 11 April 2013 and the withdrawal of $52 000 but she did not.
Taking the evidence as a whole, the wife’s submission is not accepted. The husband’s figure will, thus, be accepted.

Collections

The husband is a collector of a number of things. He has a collection of minerals, meteorites and fossils, a collection of coins, particularly early European coins, bank notes, and historical DVDs and films from the Nazi era and jewellery.
Orders were made for a single expert to conduct the valuation of these items. For a number of reasons the valuer declined to value them. Consequently, the wife served upon the husband a Notice to Admit Facts relying upon values that she had obtained by perusing the invoice for the purchase of those items.
A notice disputing those facts was not served within fourteen days of the notice to admit being served. Consequently, pursuant to rule 11.08(2) of the Family Law Rules 2004 the husband is taken to have admitted, for the purpose of this case, that the facts are true.
Accordingly, the collections will be valued in accordance with the Notice to Admit Facts. In any event, the husband’s assertions about the value of these items were merely that.

Add Backs

The husband submitted that the sum of $24 680, taken from the joint bank account at the time of separation and the sum of $7 000 taken by the wife from the home safe should be added-back to the balance sheet. This was because she had taken and used for her benefit assets that would otherwise have been available for distribution.
As to the first sum the wife’s evidence was that she has used that sum to support herself and the children following separation. Her only source of income has been Centrelink payments. The husband has provided no form of financial support to the wife and limited support for the children. That was an appropriate use of the funds and they will not be added-back to the balance sheet.
As to the $7 000 I accept the wife’s evidence that this sum was spent by her prior to separation.
Accordingly, I find the parties assets and liabilities at the date of hearing to be:

BALANCE SHEET

Assets

Joint

Wife

Husband

Sale proceeds of former matrimonial home 348 267.18

2010 Toyota motor vehicle 17 250.00

2008 Toyota motor vehicle 24 500.00

Furniture & contents retained by husband 10 000.00

Furniture & contents retained by wife 250.00

NAB Account …892 1 000.00

NAB Gold Account …082 770.00

Collections (Hobbies) 55 537.18

Assets $348 267.18 $18 500.00 $90 807.18

Total assets $457 574.36

Add-Backs

Joint

Wife

Husband

FMH sale proceeds distributed to husband

85 000.00

FMH sale proceeds distributed to wife

85 000.00

Total Add-Backs

$170 000.00

Liabilities

Joint

Wife

Husband

NAB MasterCard Platinum One Acc 5313-5566-1231-0047

1 000.00

Liabilities

$1 000.00

Total Liabilities

$1 000.00

Hesta Super as at 30 June 2013

25 966.00

First State Super as at 2012

29 674.00

Total superannuation

$55 640.00

Total Assets

$683 214.36

Less Total Liabilities

$1 000.00

Net Assets

$682 214.36

I must first determine whether it is just and equitable that there be an alteration in the property rights of the parties. This must be done by consideration of the relationship, its breakdown, if any, the property held by the parties and the basis on which it was held and used by them. The determination is not to be conflated with the consideration of matters arising under s 79(4). [1]
[1] Stanford v Stanford [2012] HCA 52
In the present case I am satisfied that it is just and equitable to make orders altering the interests of the parties to the marriage to the property held by them. They are no longer living in a marital relationship. The basis on which the ownership of their property and the use of it by reason of them being in a married relationship and living together has ended and it is appropriate that their property interests are altered so as to meet their new needs and circumstances. The parties join in seeking such an order.

Section 79(4)

At the time the parties commenced living together in 1994 they had approximately an equal amount of assets. The wife owned a motor vehicle and had approximately $10 000 in savings. The husband owned a motor vehicle and had just purchased the J Street property for $155 000. This was subject to a mortgage of $144 000. He also owned a motor vehicle.

Their initial contribution was thus equal. At that time the husband was practicing as a health professional, until 2003 the wife worked as a casual teacher and, at times, as an assistant for her husband. She ceased work on the birth of the parties’ first child. She has not worked since.
Since that time the wife has devoted her time to the care and raising of the children and the welfare of the family. The husband has, through his practice as a health professional, been the bread winner. It was a long marriage with three children.
These factors lead to a finding that the financial and non-financial contributions of the parties to their assets and to the welfare of the children, up to the date of separation, were equal. Nothing of significance happened in relation to their assets that would require any adjustment for post separation contributions. If any such adjustments were to be made they would favour the wife who has had the care and control of the children since separation with a relatively small amount of financial support from the husband.
The husband submitted that the husband brought into the marriage the health practice at Town M which was sold in 2000 for $65 000. That sale price, of course, does not give any indication to what the practice was worth in December 1994. There was no evidence to that effect.
The husband then submitted that the J Street property was sold in 2000 for $256 000. By that time the mortgage had been fully discharged. Assuming the net proceeds to be $250 000 the husband calculates that some eight per cent of those proceeds were due to the initial deposit of $11 000 thus 92 per cent represented the reductions in the mortgage. The husband asserts that it ‘would be reasonable to attribute to the wife only 40 per cent of the 92 per cent worth of the mortgage repayments, with the remaining 52 per cent to the husband’. Such reasoning would entitle the husband to 60 per cent ($150 000) of the net proceeds of the sale of the townhouse and 40 per cent ($100 000) to the wife. Thus, taking into account the sale of the health practice, which should be attributed solely to the husband, the husband’s entitlement from those two properties was $210 000 and the wife’s $100 000.
The husband then feeds those figures into the purchase and sale of the S Street property. He calculates that the entitlements from the proceeds of that sale amount to some 60.5 per cent to him and 39.5 per cent to the wife.
There are at least two difficulties with this approach. The first is that the evidence does not justify the allocation of percentages by the husband.
The second difficulty is that such a mathematical approach is not supported by the authorities. It pretends to give a false air of precision to the determination of contributions which, is inherently an imprecise exercise. Thirdly, it emphasises direct financial contributions and places less weight on the indirect contributions particularly those relating to the welfare of the family. The husband’s submissions are thus rejected.

Other section 79(4) Factors

The orders to be made in this matter will not have any affect upon the earning capacity of either party to the marriage. Each of the parties is in good health although the husband is somewhat older than the wife.
As can be seen the parties have relatively limited assets. The wife has presently no income other than Centrelink benefits. They each have very modest superannuation entitlements. The husband clearly has the capacity to earn a good income as a health professional. The evidence establishes that during the period May 2012 to May 2013 the husband’s part-time employment enabled him to receive $120 000 or an average of $2 300 per week. That is a gross figure. It is not known what expenses might be deducted from that sum. In the husband’s Financial Statement filed on 1 April 2013 the husband disclosed an average weekly income of $1 088.83.
These two figures cannot be reconciled and the husband did not adduce evidence to enable them to be reconciled.
The husband gave evidence that, as a health professional, he could earn between $3 500 to $5 000 per week but that employment in his profession was difficult at the present.
Nonetheless, it remains that the husband has the capacity for employment to earn a significant income.
The wife has not worked as a teacher since she ceased work in 2003. Her attempts, earlier this year, to engage in a bridging course that might enable her to re-engage in teaching were defeated when the course was cancelled. She is currently engaged in a part-time university degree which will take her six years to complete. She has been a full-time carer of the children since their birth. It is not unreasonable, given the way that the parties conducted their relationship, that she will continue to do that for some period of time into the future. Her capacity for employment is, and will remain, significantly lower than the husband and this requires a significant adjustment in her favour.
The wife has the care and control of the children of the marriage the youngest of whom is not quite six. She will have the care of the children for some time. Pursuant to the orders to be made in this matter she will have the care of the children for the majority of the time. This again will require a substantial adjustment in her favour.
Neither party has any present commitments that are necessary to enable them to support themselves or the child. They have no responsibilities to support any other person.
By reason of the change of circumstances it is likely that the standard of living of both parties will be less than what they had received before.
The marriage was lengthy and by reason of the wife not having worked as a teacher since 2003 she cannot re-enter the workforce as a teacher without further training. The wife wishes to continue her role as a full-time parent to the children.
Neither party is cohabiting with another person. This matter and the wife’s wish to continue her role as a full-time parent to the children require there to be a significant adjustment in favour of the wife.
The parties’ superannuation entitlements are relatively modest and were, seemingly, acquired during the relationship. It is appropriate that each should keep them and that they be dealt with along with the other assets in the pool. The husband sought an asset by asset approach would be applied to the pool of assets.
Particularly, he sought an order that the collections be sold and the proceeds divided between the parties in the proportion otherwise determined by the court. Given the difficulties with the nature of the assets and difficulties of their valuation the husband has not established that the cost of such a course would justify any benefit. That approach is, accordingly, refused.
Taking all these matters into account the appropriate adjustment is an adjustment of 17.5 per cent of the total asset pool in favour of the wife. This is $119 388. It is a significant sum, in the context of the parties’ total assets. It reflects the significantly weaker earning capacity of the wife and the fact that she will have the primary and substantial care and control of the children. From these funds she will have to find accommodation for herself and the children. It recognises that any form of employment will not, in the short term, be easy for her to obtain.
The total net asset pool is $682 214.
67.5 per cent of this is $460 494.
The wife will retain or has had the benefit of the following:
Toyota motor vehicle   $17 250
Furniture and contents  $250
NAB Account   $1 000
Add back of prior distribution  $85 000
Superannuation   $29 674

TOTAL $133 174

Accordingly, to achieve the required percentage the wife needs a payment of $327 320.
32.5 per cent of the total net asset pool is $221 719. The husband will retain or has had the benefit of the following:
Toyota motor vehicle  $24 500
Furniture  $10 000
NAB Gold Account  $770
Collections  $55 537
Add back of prior distribution   $85 000
Superannuation   $25 966
SUB-TOTAL   $201 773
Less Liability Mastercard   $1 000

TOTAL $200 773

Accordingly, the husband needs the difference between that sum and his percentage, namely $20 946.
The sum of $327 320 and $20 946 is $348 266 which is the money standing to the credit of the parties in the controlled monies account. The appropriate orders therefore will be that each of the parties will retain the assets of each of theirs, as described above. From the controlled monies account the wife will be paid $327 320 and the husband $20 946. Any remaining balance including accrued interest is to be divided between the parties as to 67.5 per cent to the wife and 32.5 per cent to the husband.
Taking all of the above matters into account, I am satisfied that the orders I propose to make are appropriate, that is to say, just and equitable taking into account all of the matters I have discussed under the heading s 79(4) as set out above. The orders meet the obligation under s 81 finally to determine the financial relationship between the parties and avoid further proceedings between them to the extent possible.

Spousal Maintenance

The wife sought an order for spousal maintenance. The wife’s present source of income is Centrelink benefits.
Section 72 provides:
(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
The first step then is to determine whether or not the wife is unable to support herself adequately. As has been identified earlier the wife is on Centrelink benefits, is engaged in a university course, has the care and control of the three children of the marriage and is not presently employed. She therefore is not presently able to adequately support herself, for those reasons. She supports herself and the children by means of Centrelink payments and payments received from the husband from time-to-time for the benefit of the children. She described her weekly expenses in her financial statement of 19 December 2012 as $243 per week. Those expenses included no amounts attributable to household supplies or educational expenses. They are reasonable expenses. This evidence establishes that the wife is unable to support herself adequately.
The next issue is whether the husband is reasonably able to maintain the other party. In his Financial Statement filed on 11 April 2013 he identifies his weekly expenditure as $1 224.92. This includes rent in the amount of $480 per week and a payment of $300 per week for the benefit of the children. There is then an entry (Item 32) described as ‘home and contents ins, home broadband, telephone – landline, telephone – mobile, electricity, etc. as $378.58’. It is impossible to see how this sum is derived. Part N of the Financial Statement was not completed. Included as a schedule ‘total of all other expenditure by [Mr Koncz]’ is a list of a number of matters including home and contents insurance, home broadband, telephone both landline and mobile, electricity, gas and water. This totalled $82.06 per week. It is a mystery as to what comprises the balance.
As earlier found the husband’s income for the year February 2012 to February 2013 was sum $120 000. This is the total of the payments made to him by his employers over that period. Obviously, from this sum he would have to pay various business expenses and income tax. His Financial Statement did not refer to either.
The discrepancy between his annual income as shown in his Financial Statement ($1 088.83 per week or $56 619.16 per annum) does not sit well with the evidence produced by his employers.
Thus there are two difficulties with the husband’s Financial Statement. There is an unexplained expenditure of approximately $200 per week claimed by him. There is the discrepancy between the income referred to there and the sums he receives from his employers. Taking these two matters into account and noting that the husband has, on the material he has chosen to put before the court, the ability to make a relatively modest spousal maintenance payment to the wife in addition to the $300 per week he is paying for the benefit of the children.
The wife’s needs have been identified before. They are modest and reasonable. Accordingly, it is proper to order that the husband pay to the wife the sum of $250 per week by way of spousal maintenance with the first payment to be made within seven days of the date of these orders. As the children grow older the wife will have more time available to pursue employment. She is presently studying. That study, or re-training, will improve her capacity for employment. Therefore, the period of spousal maintenance should not be unlimited. In the circumstances, payment of the maintenance for four years is appropriate.
The parties agreed that the following order should be made:
That within twenty-eight (28) days of the date of this order each parent shall pay to Legal Aid New South Wales the sum of $5,033.40 (GST inclusive) by way of further contribution to the costs of the independent children’s lawyer.

I certify that the preceding three hundred and fifty-four (354) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 20 December 2013.

Legal Associate:

Date: 20 December 2013

[2013] FamCA 1021

20 December 2013

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Costs

Injunction

Remedies

Procedural Fairness

BALANCE SHEET
Assets	Joint	Wife	Husband
Sale proceeds of former matrimonial home	348 267.18
2010 Toyota motor vehicle	17 250.00
2008 Toyota motor vehicle	24 500.00
Furniture & contents retained by husband	10 000.00
Furniture & contents retained by wife	250.00
NAB Account …892	1 000.00
NAB Gold Account …082	770.00
Collections (Hobbies)	55 537.18
Assets	$348 267.18	$18 500.00	$90 807.18
Total assets $457 574.36

Add-Backs	Joint	Wife	Husband
FMH sale proceeds distributed to husband	85 000.00
FMH sale proceeds distributed to wife	85 000.00
Total Add-Backs	$170 000.00
Liabilities	Joint	Wife	Husband
NAB MasterCard Platinum One Acc 5313-5566-1231-0047	1 000.00
Liabilities	$1 000.00
Total Liabilities	$1 000.00
Hesta Super as at 30 June 2013	25 966.00
First State Super as at 2012	29 674.00
Total superannuation	$55 640.00
Total Assets	$683 214.36
Less Total Liabilities	$1 000.00
Net Assets	$682 214.36