Latrell & Latrell

Case [2024] FedCFamC1F 211

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Latrell & Latrell [2024] FedCFamC1F 211

File number: HBC 188 of 2023
Judgment of: MCGUIRE J
Date of judgment: 10 April 2024
Catchwords:

FAMILY LAW – PARENTING – application by wife for parenting orders that husband spend no time-with or communicate with the children – serious allegations of family violence – allegations of sexual abuse – allegations of cruelty to animals in the presence of the children – orders that children live with the wife – orders that wife have sole parental responsibility for the children – orders for the personal protection of the wife and the children.

FAMILY LAW – PROPERTY – application by wife for property settlement – marriage of 13 years - allegations of family violence perpetrated by the husband - Kennon v Kennon considerations – section 75(2) factors – where it is just and equitable to adjust the parties’ net property interests as to 80 per cent to the wife and 20 per cent to the husband

Legislation:

Australian Passports Act 2005 (Cth) ss 6 and 11

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65ZA, 68B, 75, 79, 102NA and 117
Cases cited:

AJO & GRO (2005) FLC 93-218; [2005] FamCA 195

Briginshaw v Briginshaw (1938) 60 CLR 336

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225

Hickey & Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143

In the Marriage of Weir (1993) FLC 92-338; [1992] FamCA 69

Isles & Nelissen (2021) 65 Fam LR 1; [2021] FedCFamC1F 295

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Jabour & Jabour (2019) FLC 93-898, [2019] FamCAFC 78

Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1

Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Pierce & Pierce (1999) FLC 92-844; [1998] FamCA 74

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Re Andrew (1996) FLC 92-692

Sedgley v Sedgley (1995) FLC 92–623

Stanford & Stanford (2012) 247 CLR 108
Division: Division 1 First Instance
Number of paragraphs: 236
Date of hearing: 12 March 2024
Place: Heard in Hobart, delivered in Melbourne
Counsel for the Applicant: Mrs Di Giovanni
Solicitor for the Applicant: Wallace Wilkinson & Webster
Solicitor for the Respondent: Litigant in Person - No appearance
Counsel for the Independent Children's Lawyer: Ms Ryan
Solicitor for the Independent Children's Lawyer: Butler McIntyre & Butler

ORDERS

HBC 188 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS LATRELL

Applicant
AND:

MR LATRELL

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

10 APRIL 2024

THE COURT ORDERS THAT:

PARENTING

1.The…

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Latrell & Latrell [2024] FedCFamC1F 211
Case
[2024] FedCFamC1F 211
Decision Date

CaseChat Overview and Summary

The case of Latrell & Latrell involved a complex family law dispute between Ms Latrell, the wife, and Mr Latrell, the husband, concerning parenting arrangements, property settlement, and personal protection orders. The marriage lasted 13 years and resulted in four children. The wife filed for divorce and sought sole parental responsibility, restraining orders, and a property settlement. The husband contested the claims but did not respond to several court orders and communications.

The court had to decide on the appropriate parenting orders for the children's welfare, the distribution of the marital property, and the issuance of personal protection orders for the wife and children. The legal issues included the best interests of the children, the application of the principles of justice and equity in property settlements, and the need for protection orders due to alleged family violence and other harmful behavior by the husband.

The court found that the husband's behavior during the marriage, including family violence, sexual abuse allegations, and cruelty to animals in the presence of the children, warranted the children living solely with the wife. The court granted the wife sole parental responsibility and issued comprehensive personal protection orders against the husband, restraining him from contacting the wife and children and prohibiting him from approaching them. The court also ordered the husband to deliver financial resources and vacate a property, with the proceeds and property distribution adjusted to reflect the husband's contributions and the wife's post-separation contributions, including her care for the children and relocation expenses. The court ordered an 80/20 split in favor of the wife for the property settlement, considering her ongoing PTSD and the husband's substantial income capacity. The court further ordered a split of the husband's superannuation in favor of the wife and the transfer of certain motor vehicles into the wife's sole name. The husband was also ordered to pay the wife's costs on an indemnity basis.

Orders

Orders of the court

HBC 188 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LATRELL

Applicant

AND:

MR LATRELL

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

10 APRIL 2024

THE COURT ORDERS THAT:

PARENTING

1. The Applicant Wife, Ms Latrell (“the wife”), have sole parental responsibility for:

(a) V (born 2015) (“V”);

(b) X (born 2018) (“X”);

(c) Y (born 2020) (“Y”); and

(d) Z (born 2023) (“Z”).

(collectively “the children”).

2. The children live with the wife.

3. The wife have leave to change the children’s names without the consent of the Respondent Husband, Mr Latrell (“the husband”), and without notice to the husband.

4. Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the children be permitted to have an Australian passport or a travel-related document (herein “an Australian travel document”) as defined by s 6 of the Australian Passports Act 2005 (Cth) and be permitted to travel internationally.

5. The wife’s exercise of sole parental responsibility in Order 1 herein includes that she be at liberty to do all acts and sign all documents necessary, and have such authority as is necessary pursuant to s 11(b) of the Australian Passports Act 2005 (Cth), to procure a valid Australian travel document for the children without the signature or consent of the husband, including that the wife is authorised to sign such documents as may be required on behalf of the husband.

6. The children’s Australian travel document shall be held by the wife.

7. For the purposes of s 65ZA of the Family Law Act 1975 (Cth) and s 11 of the Australian Passports Act 2005 (Cth), the wife be and is hereby authorised to:

(a) travel outside of Australia with the children without the consent of the husband; and

(b) obtain a passport for the children, notwithstanding that the husband has not signed any application for such passports.

8. Pursuant to s 68B of the Family Law Act 1975 (Cth), and for the personal protection of the wife and the children, the husband be and is hereby restrained from:

(a) contacting or attempting to contact (including by text message, telephone, email, any social media applications, or other electronic means) the wife and the children;

(b) doing any act or thing in order to locate or attempt to locate the whereabouts of the wife and the children including but not limited to where the wife and the children are presently living or may be living from time to time, any school and/or day care centre the children are presently attending or may be attending from time to time, and/or the wife’s place of employment;

(c) approaching the wife and/or the children, or being within 100 metres of the wife and/or the children;

(d) removing or attempting to remove the children from the care of the wife, or any third-party carer of the children, including from any school or day care centre the children are presently attending or may be attending from time to time;

(e) attending or contacting any school, day care centre, or extra-curricular activity the children are presently attending or may be attending from time to time should he become aware of these details;

(f) attending or contacting any general medical practitioners, paediatricians, hospitals, psychologists or allied health professionals presently engaged with the wife and/or the children or may be engaged with the wife and/or the children from time to time should he become aware of these details;

(g) publishing on the internet, by email, SMS, any social media applications, or any other electronic means, any material about the wife and/or the children; and

(h) engaging, encouraging, or allowing any other person to do any of the above

9. The above Order is an order for the personal protection of the wife and the children and is an order pursuant to s 68C of the Family Law Act 1975 (Cth) to which a power of arrest without warrant attaches.

10. Leave is granted for the wife to provide a copy of this Order to:

(a) any school and/or day care centre the children are presently attending or may be attending from time to time; and

(b) any general medical practitioners, paediatricians, hospitals, psychologists or allied health professionals presently engaged with the wife and/or the children or may be engaged with the wife and the children from time to time.

11. The wife will engage with professional supports for the purpose of addressing her Post Traumatic Stress Disorder symptoms and to manage her mental health, and in so doing:

(a) the wife will continue to engage with and follow the reasonable directions of Dr B, for as long as recommended by Dr B, or the reasonable directions of any alternative psychologist engaged by the wife, for as long as recommended by the alternative psychologist; and

(b) the wife will, engage in trauma informed therapy as recommended by Dr B.

12. The Single Expert report of Dr C dated 4 March 2024, be released to Dr B, the wife’s General Medical Practitioner and any other alternative psychologist engaged by the wife.

13. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

PROPERTY

THE DELIVERY AND SALE OF FINANCIAL RESOURCES

14. Within seven (7) days of the date of this Order, the husband shall deliver to the offices of the wife’s solicitors, Wallace Wilkinson & Webster in Tasmania during office hours (8:45am to 5:15pm) (“the wife’s solicitors”) the financial resources

15. Within three (3) days of the date of compliance by the husband with Order 14 herein, the wife shall do all acts and things and sign all necessary documents to:

(a) facilitate the transfer of the financial resources by D Company or a similar organisation to E Company, City G in Tasmania;

(b) arrange the sale of the financial resources at the current live market rate offered by E Company on the day of delivery; and

(c) authorise the sale proceeds of the financial resources to be paid by E Company to the trust account of the wife’s solicitors.

16. The proceeds of sale of the financial resources shall be applied as follows:

(a) firstly, to all costs associated with the sale of the financial resources including:

(i) the wife’s solicitors’ costs of and incidental to the sale of the financial resources; and

(ii) to payment of the costs of and incidental to the sale of the financial resources.

(b) secondly, pay 80 per cent of the net sale proceeds of the financial resources to the wife; and

(c) thirdly, pay 20 per cent of the net sale proceeds of the financial resources to the husband.

17. Within three (3) business days from the receipt of the sale proceeds by the wife’s solicitors, in accordance with Orders 15 and 16 herein, the wife’s solicitors shall provide to the husband:

(a) a bank cheque payable to the husband for his share of the net proceeds of sale of the financial resources in accordance with Order 16(c), NOTING the provisions of Orders 38 and 39 of this Order;

(b) copies of all sale receipts and documentation evidencing the sale of the financial resources to E Company;

(c) copies of all invoices relating to the transfer of the financial resources; and

(d) a copy of the wife’s solicitor’s invoice relating to the costs of and incidental to the sale of the financial resources.

SALE OF THE TOWN J PROPERTY

18. Within sixty (60) days of the date of this Order (“the vacation date”), the husband is to vacate the property at H Street, Town J in Tasmania, being property more particularly described in Certificates of Title Volume … Folio … and Volume … Folio … (“the Town J Property”) and when vacating the Town J Property, the husband shall do all acts and things to:

(a) leave the Town J Property in a neat and tidy condition;

(b) leave in situ the custom equipment situate at the Town J Property; and

(c) leave on the Town J Property the unregistered Motor Vehicle 1.

19. That subject to compliance with Order 14 herein, the husband is permitted to remove from the Town J Property and thereafter retain as his sole and absolute property the following:

(a) Motor Vehicle 6 in the possession of the husband;

(b) Motor Vehicle 2 in the possession of the husband;

(c) Motor Vehicle 3 in the possession of the husband;

(d) Motor Vehicle 3 in the possession of the husband;

(e) the art collection in the possession of the husband;

(f) the furniture and chattels in the possession of the husband; and

(g) the plant and equipment in the possession of the husband.

20. On or before the vacation date, the husband shall provide to the wife’s solicitors all or any access code(s) and security information necessary to facilitate the wife’s entry to the Town J Property and failing the provision of same, the wife or her Agent are permitted to undertake any action reasonably necessary to gain entry to the Town J Property and the costs of and incidental to the gaining entry to the Town J Property shall be paid by the husband and deducted from the husband’s share of the sale proceeds of sale as set out in Order 25(d) herein.

21. Any motor vehicle or chattel remaining at the Town J Property following the vacation date shall be the sole and absolute property of the wife.

22. Upon the husband vacating the Town J Property in accordance with Order 18, the wife and/or her Agent, shall have sole use and occupation of the Town J property pending the sale of the Town J property in accordance with this Order.

23. In the event of any wilful damage being sustained to the Town J Property as at the vacation date (not including reasonable wear and tear), the costs of and incidental of the repair of such damage shall be the sole responsibility of the husband with the repair costs to be deducted from the husband’s share of the net proceeds of sale to be paid to the husband in accordance with Order 25(d) herein.

24. Within thirty (30) days of the vacation date, the wife shall do all acts and things to market the Town J Property for sale on the following terms and conditions:

(a) the wife shall appoint an Agent (“the Agent”) of her choosing to market and sell the Town J Property;

(b) the wife shall authorise the Agent to provide all communications to the husband if requested;

(c) the wife shall accept all reasonable advice from the Agent regarding the marketing and sale of the Town J Property including any necessary repairs and improvements to be undertaken prior to the listing of the Town J Property on the market;

(d) the wife shall co-operate in every way with the Agent, including:

(i) making a key and security information available to the Agent; and

(ii) allowing access to all areas of the Town J Property and permitting inspections of the Town J Property at all reasonable times as requested by the Agent.

(e) the Town J Property shall be listed for sale for a minimum sale price of $775,000 and the wife shall be at liberty to accept any offer of purchase provided such offer is no less than 5 per cent below $775,000 (ie. $736,250);

(f) a Registrar of the Federal Circuit and Family Court of Australia at City G is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all such documents in the husband’s name and do all acts and things necessary to give effect to the sale of the Town J Property including but not limited to:

(i) signing the Agent’s authority to sell;

(ii) signing a contract of sale;

(iii) signing a discharge of mortgage authority; and

(iv) signing a transfer of property.

25. Upon completion of the sale of the Town J Property, the sale proceeds will be held by the wife’s solicitors and paid and distributed in the following manner and priority:

(a) firstly, to pay the Agent’s costs of sale, including sales commission and marketing expenses;

(b) secondly, to discharge the mortgage in favour of National Australia Bank being registered mortgage number …;

(c) to pay the legal conveyancing costs and disbursements in relation to the sale of the Town J Property;

(d) fourthly, and subject to the husband having fulfilled his obligation in accordance with Order 14 of this Order, the sum equivalent to 20 per cent of the net sale proceeds to the husband less any deduction for costs payable by the husband pursuant to Order 23, Order 38 and Orders 39 of this Order; and

(e) fifthly, the balance proceeds shall be paid to the wife.

26. Within three (3) business days from the completion of the sale of the Town J Property, the wife’s solicitors shall provide to the husband:

(a) a bank cheque made payable to the husband for his share of the net proceeds of sale of the Town J Property in accordance with paragraph 25(d);

(b) copies of all sale receipts and documentation evidencing the sale of the Town J Property and a copy of the settlement statement; and

(c) a copy of the wife’s solicitor’s invoice relating to costs of and incidental to the sale of the Town J Property.

SUPERANNUATION PAYMENT SPLIT

27. In accordance with s 90XT(1)(a) of the Family Law Act 1975 (“the Act”) a base amount of $54,665.00 shall be allocated to the wife from the interest of the husband in his Superannuation Fund 1 (“the Fund”).

28. Pursuant to s 90XT(1)(a) of the Act, whenever the Trustee of the Fund makes a splittable payment in respect of the husband’s interest in the Fund, the Trustee will:

(a) pay to the wife or her legal personal representatives, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

(b) make a corresponding reduction in the entitlement that the person to whom the splittable payment would have been made but for this Order.

29. The operative time for Order 27 and 28 above is four (4) business days after service of a certified copy of this Order on the Trustee of the Fund.

30. The Trustee of the Fund do all such acts and things and sign all necessary documents to fulfil any obligation set out in the Act and the Family Law (Superannuation) Regulations 2001 so that the wife’s entitlement can be calculated and paid to them in accordance with this Order.

31. A Registrar of the Federal Circuit and Family Court of Australia at City G is appointed pursuant to a 106A of the Act to execute all or any documents in the husband’s name to effect the payment split of superannuation set out in this Order.

TRANSFER OF MOTOR VEHICLES

32. A Registrar of the Federal Circuit and Family Court of Australia at City G is appointed pursuant to s 106A of the Act to execute all such documents in the husband’s name and do all acts and things necessary to effect transfer into the wife’s sole name, the registration of the:

(a) Motor Vehicle 4registration number …; and

(b) Motor Vehicle 1;

free from encumbrance to the intent the wife is the sole and absolute owner thereof.

RELINQUISHMENT OF INTERESTS

33. Subject to this Order, the wife shall relinquish in favour of the husband and where necessary transfer to him any claim or interest which she may have to or in:

(a) all earnings, bank accounts, savings, shares or investments held in the name of the husband or under his control;

(b) all motor vehicles in the possession of the husband;

(c) all furniture, household items, personal property and documents in the husband’s possession;

(d) subject to this Order, all superannuation entitlements accruing in the name of the husband; and

(e) any policy of life insurance or assurance owned by the husband or held for their benefit.

to the effect the husband shall be the sole and absolute legal, beneficial or equitable owner thereof or beneficially entitled to as the case may be.

34. Subject to this Order, the husband shall relinquish in favour of the wife and where necessary transfer to her any claim or interest which he may have to or in:

(a) all earnings, bank accounts, savings, shares or investments held in the name of the wife or under her control;

(b) all furniture, household items, personal property and documents in the wife’s possession;

(c) any superannuation entitlements accruing in the name of the wife; and

(d) all animals and related equipment in the wife’s possession;

to the effect the wife shall be the sole and absolute legal, beneficial or equitable owner thereof or beneficially entitled to as the case may be.

SECTION 106A ORDER

35. In default of the husband doing all acts and things and executing all such documents as are necessary to give effect to any other obligation of the husband not already set out in this Order, a Registrar of the Federal Circuit and Family Court of Australia at City G be appointed pursuant to s 106A of the Act to execute all such documents in the husband’s name and do all acts and things necessary to give validity and operation of this Order.

SERVICE OF DOCUMENTS NECESSARY TO IMPLEMENT THIS ORDER

36. Within seven (7) days of the date of this Order, the wife’s solicitors serve a copy of this Order on the husband by:

(a) instructing a process server to affix a copy of this Order to the gate of the Town J Property;

(b) registered mail to K Street, Suburb L in Tasmania, being property registered in the name of Ms M; and

(c) email to ....

37. For the purposes of the implementation of this Order in respect to the sale of the financial resources as set out in Order 14 and the sale of the Town J Property as set out in Order 18, all communications to the husband and payments due to the husband shall be provided to the husband by:

(a) registered mail to K Street, Suburb L in Tasmania, being property registered in the name of Ms M; and

(b) copy email to ....

COSTS

38. The husband pay the wife’s costs of and incidental to these proceedings on an indemnity basis in the sum of $108,500.

39. The wife’s solicitors are permitted to deduct their costs from any sum payable to the husband pursuant to this Order, including:

(a) from the husband’s share of the net sale proceeds of the financial resources in accordance with Order 16(c); and

(b) from the husband’s share of the net sale proceeds of the sale of the Town J Property in accordance with Order 25(d).

whichever occurs first in time.

LIBERTY TO APPLY

40. The wife have liberty to apply in respect to the implementation of this Order.

41. All extant applications otherwise be dismissed

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Further, and from the public gallery, the husband made a speech of some three or four minutes duration which was convoluted in its content and apparently indicative of the husband not accepting the jurisdiction of this Court and also indicative of the husband maintaining apparent “possessory” rights in respect of his children. The husband expressed himself to be a “sovereign citizen” apparently of a dominion other than the Commonwealth of Australia.BACKGROUND FACTS The husband was born in 1978 and is aged 45 years. The wife was born in 1992 and is aged 31 years. The parties met in 2009 and started a relationship in 2010. They married in 2011. They separated on 28 September 2022 and were divorced in early 2024. The four children of the marriage are V (aged nine years), X (aged 6 years), Y (aged 3 years) and Z (aged under one year). The children continue to live with the wife. The husband has not spent time with the children or communicated with them since separation. The wife commenced proceedings in this Court on 1 March 2023. The wife’s solicitors had previously written to the husband on 10 January 2023 and received a response from him indicating a desire to reconcile. On 22 March 2023, and after service on the husband, Chambers orders were made allocating the matter to the Evatt List with the appointment of an ICL and orders for the husband to file responding documents by 21 April 2023. Service of this order could not be effected and an order was made on 13 April 2023 for substituted service. On 19 April 2023 the wife filed an Amended Initiating Application including seeking orders for Z, then an infant. The matter was listed for directions before a judicial registrar on 17 May 2023 whereupon the husband was directed to complete a Notice of Address for Service. Further orders were made on that day for the husband to file responding documents. That time was extended by order of 26 June 2023. On 3 July 2023 both the wife and the husband attended remotely for interviews for a Child Impact Report. Such report was released on 13 July 2023. On 26 July 2023 the husband attended in person at the City G Registry to appear before Judge Taglieri whereupon trial directions were made in his presence and the Court noting the husband’s request for all documents to be posted to his address at H Street, Town J. During August and September 2023 the ICL attempted to settle the Terms of Reference for the Single Expert Report but without response from the husband. In October 2023 the wife’s solicitors wrote the husband by email and registered post proposing values for various assets held by the parties. The husband did not respond. In late 2023 the wife filed an Application for Divorce. Where there had been on 9 November 2023, no response from the husband a senior judicial registrar made orders for the appointment of the Single Expert and the Terms of Reference. In late 2023 the husband was personally served with the wife’s divorce application whereupon the husband is reported as responding to the process server “tell the lawyers, the courts, and everyone else to desist and I don’t want anyone else coming to this property ever again. I will be ignoring the lawyers and the courts”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Similarly, the wife has the financial responsibility for the care of the children including attending to their extra and specific medical and psychological needs. This is a significant contribution.CONCLUSION CONTRIBUTIONS I am satisfied that the husband made a superior initial contribution to the property of these parties as it currently stands. The marriage, however, occurred now more than 13 years ago. There has been a plethora of varied contributions by each of the parties during the course of the relationship. That relationship is a relatively lengthy one. I give weight to the wife’s contributions being made more onerous by reason of the husband’s behaviour. I consider it appropriate to give substantial weight to the wife’s post separation contributions. They are, in my experience, relatively unusual in that she has the sole actual and financial support for the children. Those children have special medical needs which come at a financial impost to the wife. She has been forced by reason of her fear of the husband to relocate and hence accrue the consequent expenses. The husband in the meantime has had the use and benefit of the considerable assets of the parties including the former matrimonial home and substantial financial resources. He has not contributed financially to the children since separation. In all of the circumstances and on the basis of contributions, I am of the view that there should be an adjustment of 10 per cent to the wife.SECTION 79(4)(d) – (g) AND DECTION 75(2) CONSIDERATIONS The husband is 45 years of age. He has skills, and experience so as to allow him continued employment for many years. His employability is not hindered by the responsibilities of caring for the children. There is no evidence of any physical or psychological diagnosis that again would impact negatively on the husband’s employability. The wife is 31 years of age. She suffers PTSD symptoms which are ongoing and severe. She is anxious and fearful. These are all factors that will impact on her employability. She continues to experience significant and complex trauma and consequent behavioural symptoms. The Single Expert, Dr C, suggests that the wife prioritise her own well-being and mental health at least in the short term. The husband’s income capacity is substantial. For the financial year ending 30 June 2014 he had an assessable income of $179,430. The wife is the full-time carer of the children. Those children are still young and of primary school age. At least three of the children suffer psychological issues which can reasonably be assumed to have a nexus to the husband’s behaviour during the relationship. The wife financially supports the children without assistance. The husband’s behaviour has caused such fear in the wife that she has chosen to relocate herself and the children away from her known environment, employment, and support networks. The wife has been required to borrow funds from family members to attend to living expenses for herself and the children since separation.

Ratio Decidendi

Legal Principle Established

It is reasonable to conclude that the entire process is permeated by considerations of justice and equity.CONSIDERATION – PARENTING MATTERSTHE EVIDENCE The task for the Court is to consider all of the evidence and attribute weight in making findings of fact and applying the relevant law. The standard of proof in making findings of fact is one of “on the balance of probabilities” consistent with s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) which provides:Civil proceedings: standard of proof(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject - matter of the proceeding; and(c) the gravity of the matters alleged. This section of the Evidence Act effectively enshrines the common law position most often cited in Briginshaw v Briginshaw[17] where noting it being appropriate to consider “the gravity of the matters alleged” Dixon J stated:…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[17] (1938) 60 CLR 336. In the matter before me, the evidence of the wife, her witnesses, and the Single Expert are unchallenged by cross-examination, and I therefore generally accept such evidence unless it be inherently implausible or unreliable.THE WIFE The wife provided a trial affidavit affirmed 19 February 2024. That document prominently sets out and particularises family violence during the relationship where such violence is often portrayed in relatively unusual and cruel detail where for instance, the wife deposes to having been required to give birth to her children without medical assistance. She particularises physical punishment from the husband to the children from infancy. At [36] and following the wife references the husband’s religious beliefs and practices including for a period where he attended a church and said to the wife:37.… Women should not speak in public as they will embarrass themselves… a woman should just listen to what the man is saying… women should not be involved in managing property and finances.