Leroux and Leroux & Anor

FAMILY COURT OF AUSTRALIA

LEROUX & LEROUX AND ANOR

[2016] FamCA 862

FAMILY LAW – CHILDREN – Where each party seeks that the two children, aged 14 and 12, live with them – Where the children have rejected their father – Where the father claims that the mother has alienated the children from him – Where the father seeks immersion therapy to reunite with the children – Consideration of section 60CC factors – Where the children’s wishes are given considerable weight – Where it is in the best interests of the children to cease therapy and for the litigation to conclude – Where orders for the children to spend time with the father will likely lead to further litigation – Where orders were made for the children to spend time with their father only as they elect.

FAMILY LAW – PROPERTY SETTLEMENT – Application by wife for adjustment of property –Where the wife received an inheritance from her mother’s estate – Where the parties shared the care of their two children – Greater contributions by the wife during the marriage – Contributions assessed at 60 per cent in favour of the wife – Where the wife has an illness and cannot return to work – Consideration of 75(2) factors – Where a further 10 per cent adjustment is made in favour of the wife.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for recusal on the basis of apprehended bias – Application refused.

Family Law Act 1975 (Cth), ss 60CC, 75(2), 79(2)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Smits v Roach (2006) 227 CLR 423
Vakauta v Kelly (1989) 167 CLR 568

APPLICANT:

Mr Leroux

RESPONDENT:	Ms Leroux
2^nd RESPONDENT:	Mr Digby

INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

FILE NUMBER:

HBC

909

2014

DATE DELIVERED:

7 October 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Hobart

JUDGMENT OF:

Rees J

HEARING DATE:

29 August – 16 September 2016

REPRESENTATION

THE APPLICANT:

In Person
August 29 and 30, September 2, 5, 6, 7, 8, 12, 13, 14 and 15

COUNSEL FOR THE APPLICANT:

Mr Broomhall

August 31 and September 1

COUNSEL FOR THE APPLICANT:

Mr Munro

September 16

COUNSEL FOR THE RESPONDENT:

Mr Blissenden

SOLICITOR FOR THE RESPONDENT:	Blissenden Lawyers
THE 2^ND RESPONDENT:	In Person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr FitzGerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders

IT IS ORDERED
PARENTING

That the children D, born … 2002, and E, born … 2003 (“the children”) live with the mother.
That the mother have sole parental responsibility for the children’s long term care, welfare and development.
That the children spend such time with the father as they elect.
That the father be permitted to communicate with the children by email, not more than once each week, to the children’s personal email addresses, which are to be provided by the mother to the father forthwith.
That the father be permitted to send presents and cards to the children at their home address by mail on each of their birthdays, and at Easter and Christmas.
That the father and the mother authorise any school which the children attend to send copies to each of them of all material usually forwarded to parents.
That the father be permitted to attend any event at the school attended by the children, to which parents are normally invited, noting that nothing in this Order detracts from, or affects, the authority of the Principal or the school board to determine who is permitted upon school grounds and in what circumstances.
That the mother inform the father, as soon as reasonably practicable, of any serious illness or injury suffered by the children.
That each of the father and the mother is authorised to provide to Ms B, Dr R, Dr S, Dr I and Dr W, copies of the following documents:
(a)       These Reasons and Orders;
(b)       The report of the Family Consultant dated 28 July 2016;
(c)       The report of Dr G dated 13 July 2016; and
(d)       The affidavit of Ms B sworn 2 August 2016.
That the mother facilitate the children’s continued consultations with Ms B as the children and Ms B agree.
That each the father and the mother is restrained from denigrating or disseminating derogatory information about the other and each shall use their best endeavours to prevent any other person from so doing.

PROPERTY

That the mother do all things required to sell the land in Country K, to pay all selling costs, and to pay 30 per cent of the net proceeds of sale to the father.
That the mother do all things required to sell the property at Unit 1, X Street, Suburb Y, and to pay the proceeds of sale in the following manner and priority:
(a)       To discharge the mortgage;
(b)       To pay all selling costs including agents’ commission and selling costs, and solicitors’ costs on the conveyance;
(c)       To pay 30 per cent of the balance remaining to the father;
(d)       To pay a further sum of $4,719 to the father;
(e)       To pay the balance to the mother.
That within two months of the date of these Orders, the father pay to the mother the sum of $119,000, and simultaneously with the payment of that amount, the mother shall sign all documents required to transfer to the father her interest in the property known as Unit 2, X Street, Suburb Y and the father shall thereafter indemnify the mother against all liability to repay money advanced by way of mortgage to the father and the mother by Mrs Digby and Mr Digby.
In the event that the father does not pay the sum of $119,000 within two months of the date of these Orders, then the father and the mother shall do all things required to sell the property at Unit 2, X Street, Suburb Y and to pay the proceeds of sale in the following manner and priority:
(a)       To discharge the mortgage;
(b)To pay all selling costs including agents’ commission and selling costs, and solicitors’ costs on the conveyance;
(c)       To pay 70 per cent of the balance remaining to the mother;
(d)       To pay the balance to the father.
Other than as provided in these orders, each party shall be solely entitled to any property in his or her possession at the date of these orders.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: HBC 909 of 2014

Mr Leroux

Applicant

And

Ms Leroux

Respondent

AND

Mr Digby

2^ndRespondent

REASONS FOR JUDGMENT

Mr Leroux (“the father”) and Ms Leroux (“the mother”) are the parents of D, born in 2002 and now aged 14 ½ years, and E, born in 2003, who will be 13 years old later this year (“the children”).

THE PARENTING PROCEEDINGS

There is no doubt that the children, at the present time, are completely estranged from their father and their paternal family.
The parents each approached these proceedings on the basis that the Court would examine the conduct of each of them and find that the behaviour of the other was the cause of the children’s present position.
It is the father’s case that the mother has embarked on a deliberate course to destroy his relationship with the children and that she started on that course before they separated.
It is the mother’s case that the father’s behaviour towards her and towards the children, and their own experiences of him, have led to their present rejection of him.
Both perceptions may have some validity.
It is not the purpose of these reasons to attribute blame or cause, but rather to examine how the children moved from having a loving relationship with their father and their paternal grandparents to their present attitude of rejection. In that examination, the most useful evidence is the contemporaneous evidence of treating professionals.
Their notes are more reliable than the recollections of the parents. This is particularly so as the father did not file a comprehensive trial affidavit (as will be discussed later in these reasons). Treating professionals do not have the imperative, acquired over the course of protracted litigation and conflict, to re-write history so as to justify a present position.

BACKGROUND

The documents relied on by each party and tendered over the course of the 15 days of hearing were voluminous. Each parent’s personal history and the factual background from which these parenting proceedings arise are significant to the determination of the matters at hand. As such, the timeline of events that has been outlined in the evidence is critical and has been summarised below.
The mother has a sad history. Her childhood was challenging. Between the ages of 12 and 17 years she had a number of psychiatric admissions. She was exposed to family violence and her parents’ persistent mental health issues. The Family Consultant, Ms U, summarised the mother’s history:
[The mother’s] early attempts to escape her adverse family environment were reflected in her “…atypical anorexia” which reflected the enormity of her self-control and the horror that a 12 year old would self-harm to the extent of inflicting long-term personal damage to achieve her desired outcome, escape. Medical records at this time also indicate [the mother’s] difficult relationship with her mother, consistent with her own feelings of being unprotected, and possibly leaving her seduced by the coercive controlling power of her father, behaviours she appears to have emulated and views she has presented to the children.
The father also has an unfortunate medical history which is set out in the notes of his General Practitioner, Dr A, which were tendered in the father’s case. When he was aged 16 he was admitted to a Psychiatric Unit in Queensland after he was assaulted. There was a further admission to the Psychiatric Unit at the Royal Hobart Hospital (“RHH”) in 1997 when the father was prescribed lithium which Dr A notes was “for bipolar”. On 1 May 2015, Dr A wrote a letter to Dr P, a psychiatrist. Dr A stated, inter alia:
[The father] has a past history of an admission to the [Queensland] Hospital 4 days after a traumatic event aged 17 and a couple of months later started having flash backs and was admitted to the RHH with an episode of acute psychosis. He was medicated on that admission and his memories of it are hazy.
In a letter dated 28 May 2012, Dr P reported to Dr A that the father had been admitted to the psychiatric unit at RHH in 1997 where he was put on a large dose of lithium carbonate with a diagnosis of Bipolar Affective Disorder. There were also later admissions.
The parents’ relationship commenced when the mother was 19 years old. The father was 22 years old. They “eloped” and married in Western Australia.
They returned to Hobart in about August of 2001, when the mother was pregnant with their first child, D. The mother was ill during the pregnancy and they needed family support. They lived with the father’s grandmother in Suburb Q.
On 24 August 2001, the mother was admitted to hospital under the care of Dr S, her treating psychiatrist. The admission notes state:
[The mother] was admitted to hospital because of escalating anxiety, tension and depressive symptoms, secondary to multiple stressors. She was 3 months pregnant, had recently returned to Hobart from WA because of marital stress and conflict. Her husband…had become extremely controlling, demanding, intrusive and inappropriate, probably because of a hypomanic episode.
The discharge notes indicate a diagnosis of “Adjustment Disorder with depressed and anxious mood” and “conflict with husband”.
When the mother left hospital, she stayed with her parents.
Dr S’s notes indicate that she saw the mother again on 24 September 2001. The mother told Dr S that there had been difficulties with her father and that she wanted to go home, presumably to Suburb Q. The mother told Dr S that the father was a lot calmer, but not completely normal and that they were planning to talk to a minister in Town V.
The next day, Pastor T contacted Dr S and told her that he had seen the father and the mother the previous night and that he had grave concerns about the marriage and the mother’s safety. In cross-examination, the father suggested that this was not the correct interpretation of Dr S’s notes and that, in fact, Pastor T had seen the mother and the maternal grandmother. Dr S confirmed in her oral evidence that the reference by Pastor T was to the father.
On 27 September 2001, the mother was again admitted to hospital after an unspecified “violent episode” with the father. She was discharged on 12 October 2001.
The older child D was born in 2002 and after her birth the family returned to Perth.
There seems to be no dispute that between 2002 and 2008 the family lived happily in Perth.
The younger child E was born in 2003.
In January 2008, they returned to Hobart. The father commenced to study for a PhD and the mother worked as a health professional. The mother provided the main financial support for the family. The father spent six months in Perth undertaking his studies and the mother had the sole care of the children during that period.
In July 2010, the maternal grandmother, Mrs Z, came to live with the family. The father gave up his PhD studies and his scholarship. The father’s study became the maternal grandmother’s bedroom.
The maternal grandmother’s personal circumstances created some challenges for the family, including the children. The mother had distanced herself from her parents for some ten years. The maternal grandmother had left an abusive relationship. She was a stranger to the children. Her treating psychologist, Dr R, described the maternal grandmother as very needy and as needing the same attention as another child. The effect on the children of the grandmother’s presence in their home was a subject of discussion between Dr R and the father during the time the grandmother was in the home. Dr R in cross-examination said that the whole family, including the children, was stressed by the challenges presented by the maternal grandmother’s behaviour.
Dr R said that the children increasingly resented the presence of the maternal grandmother in their home. They were embarrassed by her behaviour. They did not want her to go to their schools, and they did not want her in their home.
Dr R gave evidence about an occasion when the children were left in the care of the maternal grandmother. Mrs Z tripped and hurt herself. Her response was exaggerated and frightening for the children. Dr R said that the children were exposed to an inappropriate level of distress from their grandmother.
In addition, Dr R said that the presence of the maternal grandmother in the home was a trigger for the mother to relive her own childhood exposure to her father’s abusive behaviour, both towards her and towards her mother, and to deal with the consequences, for her mother, of her father’s behaviour.
Mrs Z instituted family law proceedings for property settlement. She was assisted in that endeavour by the father and the mother.
There is no doubt that the presence of the maternal grandmother, and the conduct of family law litigation on her behalf, created enormous stress for the whole family. The father appears to have been particularly affected as will be seen from his later hospital admissions. However, Dr R stressed the effect on the children of the presence of the grandmother, and the effect that caring for her had on the children’s parents.
There is a significant dispute between the father and the mother about the relationship between the maternal grandmother and the father. The father says he was a loving and caring son-in-law and became the grandmother’s carer. It is not disputed that Mrs Z had left an abusive relationship with her husband, (the maternal grandfather, Mr Z) and had significant psychological difficulties.
The mother says that the respondent father was abusive towards the maternal grandmother both emotionally and physically. She deposed that he slapped the grandmother’s face.
During the whole period that the maternal grandmother lived with the family, she attended on Dr R. She saw Dr R both with the father, who took her to most appointments, and alone. She also saw Dr R with the mother. In cross-examination, Dr R said that there had never been a complaint to her by the grandmother about the father’s treatment of her and that no complaint had been made by the mother during the grandmother’s lifetime. The mother’s first complaint to Dr R that the father had slapped the maternal grandmother’s face was made on 13 March 2014, some three years after the grandmother’s death and four months after separation.
The maternal grandmother died in 2011. The father was present at the scene.
Shortly after the maternal grandmother’s death, the mother was admitted to hospital suffering from kidney stones and salmonella with a 40 degree temperature. She was very ill.
After the maternal grandmother’s death, the mother consulted Dr R who has been the mother’s treating psychologist since March 2011. Dr R gave evidence that the initial consultations with the mother dealt with her grief over her mother’s death and the stress of the continuing legal proceedings (the maternal grandmother’s family law proceedings and the inquest into her death), but that from about September 2013, the focus of their sessions changed and became about the marital relationship and the mother’s complaints about the father’s behaviour.
There was an inquest into the maternal grandmother’s death. No report has yet been handed down.
The mother now believes that the father contributed to her mother’s death. She deposed that for a long time she had accepted that the father did all that he could to save the maternal grandmother from dying but that, after the evidence in the inquest concluded, she began to doubt this.
The mother’s suspicions about the father’s conduct surrounding the death of the maternal grandmother have permeated the parenting proceedings. The mother’s suspicions were raised in her trial affidavit. The father, understandably, felt that he needed to “clear his name” in relation to her allegations.
The most valuable insight into the relationship between the father and the maternal grandmother is gained from the documents sworn by the mother in the coronial proceedings. Although she claims that some of the documents were prepared by the father and that she was “forced” to sign them, other documents were prepared by the solicitor who represented the mother in the inquest and by police officers. There is no complaint in the documents prepared for the inquest about any inappropriate conduct by the father towards the grandmother. On the contrary, in an affidavit sworn after separation, prepared by her solicitors, the mother deposed that the father was very supportive of the grandmother, that he loved her and did everything he could for her. The mother deposed that the only time she saw the father get upset with the maternal grandmother was when she lied. The mother deposed that the father would take the grandmother outside and talk to her rather than remonstrate with her in front of the children.
In the submissions provided to the inquest by the solicitor for the mother, the solicitor stated “The overwhelming evidence is that this man loved Mrs [Z] and went out of his way to help her re-establish herself after leaving such an abusive relationship.”
The mother’s psychiatrist Dr S, and the mother’s psychologist Dr R, both said in cross-examination that the mother’s comments about the father were positive until about September 2013, and then were increasingly negative until those negative comments became almost the sole subject of their consultations. It may be that the mother’s experiences of the father were increasingly negative. It was not put to Dr S, or to Dr R, that the mother’s negative perceptions about the father were not genuinely held, and it was the tenor of their evidence that regardless of history, they were her perceptions of him.

I do not accept that the father’s relationship with the maternal grandmother was abusive, as the mother asserts. I cannot find that she has willingly distorted the facts. The most likely explanation is that the mother’s recollections and perceptions of that time have become distorted in the cauldron of litigation, dysfunction and suspicion that has beset this family.
Before the maternal grandmother’s death, with the assistance of the father and the mother, she instituted proceedings for property settlement. The father was heavily involved in the preparation of evidence. After the grandmother died, those proceedings were continued by the father and the mother. In addition to his involvement in the family law litigation, the father was heavily involved in the coronial proceedings. He was a person of interest in the inquest. He instructed his own lawyers. The tenor of the father’s cross-examination of the mother was that he was deeply offended that he was suspected to have played a part in the maternal grandmother’s death and needed to clear his name.
There seems to be no dispute that the father became enmeshed in the litigation to the extent that it was all-consuming for him.
The issue of concern in relation to the children, is how the stress and anxiety that the father undoubtedly experienced from the time the maternal grandmother came to live with the family and until separation, manifested itself in his behaviour and how that behaviour affected the mother, and more relevantly, the children.
The mother deposed that the father would yell and scream at her, that he prevented her from sleeping, and that he insisted on things being done in his own way. In her oral evidence she said to the father “You just went on and on and on and on”. She deposed to an incident when the family was on a holiday and the younger child misbehaved. The father “stormed off” and drove to their accommodation, leaving the mother and the children behind. The father agreed that he left them but said they were only a short walk away. The father insisted they cut the holiday short and return home that night. The mother deposed that she objected but “he kept yelling that this was what was going to happen until I complied”.
The mother deposed that from 2010 the father began to drink alcohol to excess. The father did not dispute drinking to excess but did not concede that his drinking was as serious as the mother contended. There is some support for the mother’s contention in the Child Inclusive Memorandum where the paternal grandmother told the Family Consultant, Ms F, that the father’s drinking had caused problems in the marriage. The younger child also told Ms F that his father drank. Ms F reported that both children “recalled irrational behaviour by their father when alcohol affected that was scary for them”. The children told Ms F that the police had attended their home on several occasions and that their father’s difficult behaviour was not always associated with alcohol. Mr Digby, the paternal grandfather, told the Family Consultant that the father’s drinking had caused problems.
Notes produced by C School, the school the children then attended, record a conversation with the younger child on 13 April 2011where the child said that the father had been shouting a lot about clothing for the past two or three weeks. The child said that he did not think it was fair that his father shouted at his mother and that he felt sad. The child said “He’s angry at mum but mum hasn’t done anything wrong”. When the child was asked what he would write in a letter home, the child nominated:
·Please stop shouting;
·Be nicer to mummy;
·Let me choose what I wear to school.
On 5 July 2011, an order was made in the Magistrates’ Court in the absence of the father that the father must not stalk Mr Z (the maternal grandfather) and Ms Z (the mother’s sister). On 30 January 2012, a further order was made to the same effect, again in the absence of the father.
Notes produced by Dr A indicate that in November 2011, while the father was in Western Australia, he was admitted to a Psychiatric Unit. The father was not sleeping, having nightmares and was extremely anxious.
Dr A’s notes indicate that on the anniversary of the maternal grandmother’s death, in 2012, the father had a panic attack.
Dr A’s notes dated 22 May 2012, state that the father currently had “issues with a taxi fare that landed him in trouble with police who charged him with disorderly conduct”. The matter was still before the court. The mother deposed that the older child was with the father when that incident occurred.
Dr A notes that on 2 June 2012 the father was prescribed medication for anxiety. He had difficulty sleeping and was worried about the court case. She noted that going to court triggered an anxiety attack requiring the father to go to hospital for treatment.
Throughout the balance of 2012, Dr A’s notes refer to the father not sleeping.
On 12 July 2012 there was an incident at C School. The Deputy Principal, Ms NN, wrote to the father saying:
I have now had an opportunity to interview witnesses to the incident and received accounts from both parties involved. While the driver of the other vehicle may have used an inappropriate gesture and language, it is reported that you responded very aggressively by smashing your fist against her driver side window and raising your voice.
Should another incident of such aggression occur, you will be asked to refrain from using the driveway.
Ms NN was a witness in the father’s case and swore an affidavit.
The father disputed the accuracy of the Deputy Principal’s description of the incident and insisted that the driver of the other vehicle was at fault. Whatever occurred, both children were present.
On 20 March 2013, Dr A noted that the younger child has had sleep issues for the last couple of months. He was waking six to twelve times a night.
On 25 March 2013, the older child told “…” at C School that E woke a lot in the night. She said that he “gets upset and calls mum”, and that he screamed in his sleep. The older child was concerned that E was being frightened by an “M” rated game he was playing. The child said that she had deleted the game. The child said that she was sad “because our families (sic) different. When I go to other people’s houses I notice they all talk more to each other than we do.” The child said “Dad spends all his time on the computer and talks about this court case [I infer, the inquest] and all the affidavides (sic). Mum doesn’t want people around at our house because it is messy and dad sometimes gets angry when he is drinking”. The child said they don’t have cooked meals any more. She said that on the weekends they don’t go anywhere, “I just go into my room and play on my iPod. [E] and I play together”. The older child said “I’m sad because everything is different now”.
On 16 May 2013, the father contacted XX Clinic by telephone stating that he had PTSD, depression and anxiety and his symptoms were increasing. He did not give any further information but stated that he was feeling able to keep himself safe overnight. The hospital noted that he was to be admitted.
On 17 May 2013 the father was admitted to XX Clinic referred by his psychiatrist Dr P. The presenting problems were noted to be anxiety and poor sleep. The admission followed a panic attack. The provisional diagnosis was PTSD, acute anxiety state, and adjustment disorder. The father was noted to be very talkative, very difficult to keep on track and hypomanic. The notes record that the father brought half a suitcase of clothes with him but two suitcases and one portable filing box of documents.
On 20 May 2013, the notes record that the father woke screaming for approximately ten seconds. He told staff that he dreamed that someone was coming into his room to kill him and that he had similar dreams at home.
On 22 May 2013, the father was noted to be verbally aggressive towards nursing staff. Throughout the admission the father is noted to be preoccupied with the inquest proceedings. On 31 May 2013, the father was noted to have awoken screaming from a dream on two occasions during the night.
He was discharged on 3 June 2013.
On 19 June 2013 the mother told Dr A that the younger child was anxious after learning that his paternal grandmother had been diagnosed with terminal cancer and “seems fearful of losing his mother too as keeps checking her at night”.
Notes produced by RHH state that in July 2013, the father presented at 6.59 am having been assaulted the night before. The incident took place at his sister’s engagement party where there was an altercation between the father and a security guard. He had initially come to the hospital the night before but did not wait to be seen by a medical officer and re-presented the following morning. The father was treated with analgesia and two litres of IV fluids and departed under his own care. The father alleges that he was assaulted, unlawfully detained and his property was damaged. The Tasmania Police took no action in relation to the incident and the father made a complaint that the police failed in their duties to investigate the matter.
On 26 July 2013, a letter was written by Dr A to XX Clinic stating, inter alia,
Unfortunately [the father] was assaulted at a function on the weekend when drunk ([the father] denies he was drunk – says he’d only had a couple of drinks) and ended up with his head being pushed against concrete and being “choked” before the man let him go. He then presented to the RHH for treatment saying he was having difficulty breathing and the police arrived and asked him to leave. [The father] then presented to DEM [Department of Emergency Medicine] at [a private hospital] for treatment, the police were called and he spent a night in a police cell. In the morning he re-presented to [the private hospital] and was again asked to leave.
I got a phone call on Tuesday from the General Manager of [the private hospital] concerned that [the father] may re-present as he said his behaviour had been threatening to his staff and he was concerned for them.
On 26 July 2013, the father was admitted to XX Clinic. The reason for referral is stated to be:
-        Over stressed
-        Drinking too much
-        Inappropriate behaviour
-        No insight
-        Becoming agitated at home
-        Anxiety becoming unbearable
Under the heading “Drug & alcohol history” the notes state “drinking increasingly causing him to become disinhibited.”
On 23 August 2013, the father was admitted to RHH after midnight. The mother called the police. She deposed that the father was drunk and “ranting about Nazis and people trying to kill him”. The records produced by RHH note that the father was brought in by police due to bizarre behaviour. He smelt of alcohol but claimed to have had only two standard drinks. He was noted to be loud and disruptive. Next morning the father was anxious and tried to run away.
A document entitled “Tasmania Police Mental Health Report – Assessment Sheet” records that the father was displaying bizarre behaviour and speaking in different languages. Under the heading “Response to Police Contact”, the police noted “Aggressive verbal, abusive, bizarre ranting”. The psychiatric assessment noted “Risky behaviour. Lying down in front of ambulances entering [the emergency ward], stated he wanted to be run over to “have it all over and done with”. Later denied suicidal intent when wishing to leave”. The “Psychiatric Assessment Summary” records:
35 year old male self presented to E/D [with] chest pain, bizarre behaviour, including lying on the ramp wanting an ambulance to run him over.
Initially in E/D, tangential, irritable and un-cooperative. Responded well to reassurance. Full medical check completed re chest pain. [The father] v. poor sleep for weeks (sic), pending an inquest … into mother-in-law’s death …. He was present, did CPR & she did not survive (This was 2 yrs ago). Now … nightmares & flashbacks, v. poor sleep, initial insomnia, broken sleep, states no sleep for 4 nights, slightly illogical, i.e. obviously cares deeply about his family, but feels they would be fine if he died. Stated he had just had enough – later denied suicidal intent i.e. when he wished to leave.
In cross-examination about that admission, the father insisted that everything that had been noted in the records was reported by the mother. I reject that evidence. It is clear from the notes that they record the observations of medical staff.
On 30 August 2013 the younger child’s school reported to Child Protection Services (“CPS”) that E had been disruptive at school. The child’s teacher reported that the child explained that he was up late the previous night due to his father. The child said his father was drunk and disruptive and shouting at their hotel. He said that a man turned up and proceeded to assault the father, and that the mother called the police. The notes record “[The child] said he was used to it (the drunken behaviour, implying it happens often)”.
The report continued:
I asked [the child] how dad was today (30^th Aug.) [The child] said dad came out of hospital on Saturday! I hadn’t caught that he had gone to hospital in our previous conversation. [The child] then went on to say how dad is often shouting, mean and abusive (language wise) to mum and himself and that mum and (sic) confided in him it was 50/50 that she will stay with dad. Dad was also abusive/shouting at mum recently blaming her for various work issues.
The father tendered a recording made in May 2013 of interviews with the children and the mother, made for the purpose of evidence in the inquest into the maternal grandmother’s death.
The younger child told the interviewer that he used to do things with his father but “now he is literally on the computer all of the time”. The child said, of his father, “he finds it stressful and when he’s stressed, I am too”. The child talked about “all these documents” about court and that his father had been going to hospital lately because he hadn’t been able to sleep well. The child said that the Family Law case was finished now and “we just have to do the inquest” to find out what happened to the maternal grandmother when she died. The interviewer asked the child what he thought had happened and the child said “my opinion is that she had a stroke”. The child said he was stressed because he didn’t have enough time with his father. He said he was stressed at school and got into trouble for telephoning his father on a school telephone without permission when his father forgot his football gear.
The older child told the interviewer that, on the day her maternal grandmother died, she wasn’t told and she found out the next day at the swimming carnival when another child told her. The older child said that she became really annoyed with both her parents constantly talking about “it”. She said that it would be good when it’s over because “we can spend time with Mum and Dad”. The child said that her father was “always on the computer”. She said that her mother goes to work “so we can’t be with them that often” and that, at the end of the day, her father was still on the phone. The child said that they used to go to the pool but she couldn’t remember what they used to do “because it’s been so long”. The child said her parents talk about “it” (the legal proceedings) a lot and “it gets annoying”. She described going with her parents to the solicitors’ office and waiting for two hours while they talked. The child said “Dad gets stressed out a lot and mum too”. The child was asked by the interviewer how she thought her maternal grandmother died and the child said that she might have had a heart attack or a stroke – “I hear dad talking”. The child said that her maternal grandmother might have been “put off her medication”. The child was asked whether she thought anyone would go to jail and said she did not think so. She said her parents were “just always talking about the Court and those things” and that when it was all over she was hoping they would get a dog.
On 6 November 2013, according to the father, the parents separated.
Records produced by the Tasmania Police state that “On the evening of Wednesday 6 November 2013, [the mother] went to bed and [the father] remained up for a period before entering the bedroom at about 10.30pm.” The mother told the police that he had belittled her, telling her that she had ruined the family and hadn’t protected the family in relation to the media and family finances, and that she was the cause of his mental health issues. According to the mother, the father told her that she needed to go to parenting classes to make up for being a bad mother. The father left the room and returned with a cup of water which he threw over the mother in the bed. He took the sheets, blankets and doona off the bed and took the sheets to the washing machine. He then told the mother to call a friend and get out of the house. The older child woke and yelled out from her room for her father to be quiet and leave her mother alone. The father made up a bed in the lounge room and the mother went to sleep in the bedroom.
The mother deposed that the next morning, the father confronted the mother about her wages not having been paid into the joint account. The mother informed the father that she had diverted her pay from the joint account to an account in her own name and an argument ensued. The parents and the children got in the car to take the children to school. There was an argument about money. The older child told the father not to speak to her mother like that but the argument continued in front of the children.
The mother told the police that after dropping the children at school the father stopped the car at the Family Court of Australia and returned with a pile of documents, informing the mother “Once I file something I never withdraw it”. The father and the mother then went to an appliance store. They argued about building supplies. The father opened the mother’s door, reached over and undid her seatbelt and told her to go into the store and sort out the problem. The mother was upset and took her phone and handbag and walked down the street away from the father. The father ran after her and grabbed her bag from her shoulder and took her mobile from her hand saying “How dare you leave me without any money.” She continued to walk away from him and was asked by several strangers if she was okay. The mother asked a stranger if she could use her phone and called the police. The mother hid at the back of a store until the police came.
After the parents separated, the mother and the children remained living at the former family home at Unit 2, X Street, Suburb Y (“Unit 2”).
On 7 November 2013, a Family Violence Order (“FVO”) was made prohibiting the father from stalking the mother or directly or indirectly threatening, harassing, abusing or assaulting her. On 7 March 2014 the father pleaded guilty to a breach of an FVO and was fined $750.00.
Dr A notes that on 8 November 2013 the father was admitted to XX Clinic. He was discharged on 16 December 2013.
On 12 November 2013, the older child was referred to a psychologist, Ms B. The referral was made by the school. Ms B was wrongly told by the school that both parents consented to the child seeing Ms B. In fact, only the mother gave consent.
The circumstances of Ms B’s involvement with the children have assumed a disproportionate significance for the father. He conceded in cross-examination that the children would have benefitted from involvement with a counsellor, but maintained that their involvement with Ms B was inappropriate because he had not consented. The father’s complaint against Ms B is two-fold. Firstly, that she commenced her counselling with the children without his consent, and secondly, that she did not achieve reconciliation between him and the children. An examination of both Ms B’s reports and her notes demonstrates that the therapy was at all times directed to reconciling the children with their father. That she did not succeed is not a reflection on her intentions. The father made a complaint about Ms B to her professional body.

The father was of the view that Ms B had been engaged by the mother with the intention to further alienate the children from him. The paternal grandfather made similar allegations in his affidavit. There is no indication from the extensive material filed and tendered in this case that the mother had any such intention, or that she was plotting to turn the children against their father.
The father was not able to set aside his sense of injustice because Ms B saw the children without his consent and was not able to see that her involvement with the children was beneficial to them. Ms B gave evidence that both E’s anger and D’s anxiety lessened in the course of her therapy. When the father insisted that Ms B cease therapy with the children, the younger child E was angry.
The older child was initially referred to Ms B by Ms PP of C School on 12 November 2013 for emotional support following a family crisis. In her first consultation, the child told Ms B that she “worries about her mum” when she is at school. In her report dated 18 November 2014, Ms B stated:
At this time, [the child] expressed her main concern was her Father, stating ‘Dad yells, it gets really bad’, ‘he yells out in the night’, he ‘poured water on her’, ‘he yells out near the street’. [The child] further stated she was ‘getting woken up in the night by Dad shouting’, ‘I want to get up to check up on Mum, but I wait until its safe like if I hear the shower on, I want to check she is ok’… [The child] articulated her thinking to be ‘what will he do?’, ‘Is Mum ok?’, ‘when will it stop?’
The older child told Ms B “I want mum to leave dad and get a divorce, but then I worry court will make me stay with dad”, “I want to stay with mum”, “I worry about this”. Ms B noted that the child presented as visibly distressed with her situation at home and especially the level of her father’s anger. The child told Ms B that a friend had suggested she could get a mobile phone to ring her mother if she needed to, if her father got angry. The child said E also wanted to stay with their mother. Ms B noted that D was very worried about the younger child.
On 13 November 2013, records produced by the police note that the father arrived at Unit 2. The mother was in the bedroom lying on the bed talking on her mobile phone. The father yelled at the mother, calling her “lazy” and “evil”, and grabbed the phone. The police records note that the father continued to yell at the mother and threw a heap of washing on her. The police allege that the father hid the mother’s mobile phone and iPad in the boot of his car and hid the keys to the car. Police located those items. The police were called by the friend to whom the mother had been speaking on the phone. When the police arrived, the father told the mother not to answer the door and pulled her away from the door. The police obtained a statutory declaration from the mother who stated that she was not physically afraid of the father and wanted to continue the relationship and did not want any change to the current order. The mother told the police that the father had confiscated her phone on a previous occasion. The phone was given back to the mother by the police.
On 14 November 2013, the younger child’s teacher sent a note to the head of the School stating:
[E] was in late today…he was woken up in the early hours when the police arrived to arrest his dad following a domestic incident re [E’s] mum and the recent inquest etc. so he had a very disrupted night and start to the day. He appears tired, a bit low (unusual for [E]) and a little on edge – but seems to be managing. Will let him take life very easy today and support as needed.
On 14 November 2013, the father presented himself at XX Clinic at 4.00 pm requesting admission stating that he was anxious. He was told there were no beds available and he should return the next day.
On 15 November 2013, the father was referred to XX Clinic by Dr A. He was admitted on 18 November 2013, under the care of Dr P and was noted to be anxious, agitated and not feeling safe.
On 15 November 2013, Child Support Services telephoned Ms B and suggested that Ms B “Google” articles in relation to the father’s involvement with the inquest to assist her in supporting the child D with possible difficulties she might encounter at school with other children.
On 18 November 2013, Ms B had a session with the older child. She noted that the child presented as stressed and visibly upset, stating that her father was angry when her mother was in the car. The child stated that her father had taken her mother’s bag but gave it back eventually. Ms B stated in her notes that the aim of her sessions was to decrease the child’s stress levels.
The father was again admitted to XX Clinic on 18 November 2013. The nursing admission summary on 18 November 2013 notes the reason for admission as “Increased anxiety and low mood in relation to situational crisis. Suicidal ideation – feeling safe at [XX].”
The notes produced by XX Clinic on 18 November 2013 state:
Arrived at the clinic at 12.30 hours. Dressed erratically carrying washing to be machined and powder stating he had got the children to school, needed to go home and then pick them up. Almost no clothing, meds or toiletries packed only papers. Seemed disorganised in his thinking – difficult to organise into steps of admission … speech garrulous … please do not discuss patient with any other person including his wife.
The psychiatric summary indicates that he was admitted because he was taken into custody on an FVO and became very distressed. He was discharged with a stipulation that he reside with his parents.
On 26 November 2013, the older child told Ms B that she had been feeling less stressed because her father had not been at the home. The child told Ms B he was currently in hospital getting treatment.
In November 2013 the father filed an application in the Supreme Court of Tasmania seeking to have the Coroner discharged, claiming that the proceedings were tainted by fraud or deception, and that the Coroner was biased.
In late 2013, an article was published in a newspaper about the coronial inquest which included a photograph of the father. The article made numerous references to the father in the context of the death of the maternal grandmother.
On 3 December 2013, the older child told Ms B that her father was not at home but was in XX Clinic getting treatment. The child told Ms B that some children had been making comments about the court case and Ms B practised with the child saying to the children “I’d rather not talk about it” when the issue of the inquest was raised. The child told Ms B that her father had put in an application saying that the coroner was biased and that this had upset her mother.
On 6 December 2013, the father made an application to revoke the Family Violence Order made on 7 November 2013. The father complained that a named police officer had exhibited extreme bias “in his obsessive persecution” of the father. In his amended application the father stated:
No evidence has been tested by an independent court to establish whether a Police Family Violence Order (PFVO) is justified under the circumstances, let alone such a court being satisfied that such a family violence offence has been committed and that the perverted PFVO is lawful under the circumstances. The devious motives of certain officers of Tasmania Police, for which the PFVO was obtained, must be considered fairly, including the attempt to pervert the course of justice at a Public Inquest, by deliberately and falsely discrediting the witnesses [the father] and [the mother] before they have been allowed the opportunity to properly give their evidence at that Inquest. This Inquest only took place only due to [the mother] insisting upon the need for an Inquest, given the perverted influence of [a named police officer] acting as the investigating officer, despite a known and severe conflict of interest whereby it appears he may have contributed to that death by his appalling neglect of duty to offer any assistance and making a decent effort to preserve the life of the deceased.
The father was discharged from XX Clinic on 16 December 2013.
The police records show that on 14 January 2014 the father pleaded guilty to a breach of restraint order, and on 13 February 2014 the father pleaded guilty to two charges of failure to comply with the direction of a police officer.
Ms B notes that the first consultation with the younger child occurred on 25 February 2014 when the child asked for help to deal with his anger.
On 25 February 2014, Ms B saw both children at the older child’s request. Both children were upset and concerned for their mother who had been upset and crying in bed several days earlier. They reported that the father was not staying at the house but was regularly there. The younger child stated that he was often there late into the evening. The older child reported that the father had been getting “very angry” with their mother and that he had been yelling at her about the maternal grandmother’s death. The older child requested further appointments and asked Ms B to see the younger child. D didn’t think that E was coping. The younger child stated that he was worried when his father drank and he got angry with the mother. The younger child stated that he had been “very scared” in the car with his parents when his father had been driving “very fast”. The child stated that he thought his father would crash, and that he was yelling at his mother. The child stated that he thought his father had been drinking.
In her first session with the younger child on 25 February 2014, the child told Ms B “that Friday had been bad – dad had had some drinks and was reving (sic) the car really fast”. Ms B noted that “[E] felt this was faster than the speed limit. [E] reported feeling very scared and that they nearly ran off the road. Worse after dad drinks.” The child told Ms B that his parents were separated at the moment and his father was living with Ms HH. The child told Ms B that he had been getting really angry with his mother and he would like to learn how to stop this. He stated that his father goes to a “Mental place at [Town V] – but when he comes back it’s the same stuff”. Ms B and the child discussed that the focus of the child’s sessions would be anger management.
On 1 April 2014, the younger child told Ms B that the older child had been upset the previous night as her father wanted to talk to her on the telephone during her favourite television show. She asked him to ring back but he wouldn’t listen. The younger child said that his father thinks his mother has “betrayed” him and that he thinks “[Mr YY] likes Mum”. The child told Ms B that he was “Sick of questions about [Mr YY]”.
In relation to the younger child, Ms B reported on 18 November 2014:
Much of the psychological intervention with [the younger child] has been around managing his anger (at home and school) and sleep issues, however he has frequently reported being angry with his father. This anger increased when his father left Australia. [The child] states that his father ‘abandoned’ them. [The child] has proved very difficult to shift his view from this and I would say his relationship with [the father] is currently poor. [The younger child] continues to maintain that he would like only minimal contact with his father despites attempts at moderating this view point.
On 4 March 2014, Ms B met with the older child. Ms B noted that the child presented visibly upset, crying and shaking. The older child said that her father had been dropping the children at school fairly often which had been going alright until that morning when her father came and wanted her to go with him on her own. The child asked Ms B about the safety plan which had been developed the previous year. The child said there had been an incident of her father being really angry with her mother. The child also told Ms B that her father had got her to sign passport papers but that she did not want to go away with him. She told Ms B that her mother had talked to her about what to do if her father took her to the airport. Ms B said that the child seemed quite concerned that this could be a possibility.
Ms B also noted that on 5 March 2014 there was an incident at school which was reported to her by Ms PP. She noted that the older child was frightened that she didn’t know where her father was going to take her. The child told Ms PP that her father had talked to her about setting up a Facebook account for her and had given her a new email address and password for the Facebook account.
On the morning of 6 March 2016, the police records indicate that the father arrived at Unit 2 and attempted to take one of the children. The mother reported that the father had parked his vehicle in front of hers to prevent her leaving the property. When the police attended, they observed that the father’s vehicle was parked up the road adjacent to the curb and not across the driveway. The father told police that he intended to take the younger child to school and the child had willingly placed his school bag and soccer ball into the father’s car. After a short time the mother ushered the child away from the garage and put him in her car before locking the doors and attempting to drive the child to school. The father said that he approached the vehicle and knocked on the driver’s window to see what was going on. The father said that the child indicated he had been locked in the vehicle. Eventually the mother unlocked the boot and the father placed the soccer ball and school bag in the vehicle and everyone waited for the police to arrive.
Records produced by C School note that when the children arrived at school that morning, the children instigated a meeting and described the incident where the father had come to the house and the parents argued about who was taking the children to school. They reported that they got into the mother’s car and the father “got in the way and yelled at us to get out and hit the window and blocked (with his car) our way out”. The older child said she told the mother to lock the doors “because I didn’t want to get him. He might have done something to mum or he might have tried to take us”. The younger child said that he was scared that the father might come to the school and “try and grab us”. The children were reassured and went to class.
Later that morning, the police were called to C School when the father arrived at approximately 11 am to collect the younger child. The father said that he was intending to take the child to get new sneakers in his lunch break. The school reported that the child did not want to go with the father. The police reported that the father was compliant but argumentative.
Ms B came to the school at lunch time and spoke to the children. The mother collected the children after school. She took a telephone call from the father. The younger child became upset and asked the mother not to answer the call.
On 7 March 2014, the father was convicted of a breach of the FVO arising from the incident on 13 November 2013, and a further FVO was made for the protection of the mother for a period of one year.
At about midnight between 7 and 8 March 2014, the police record that the mother said the father entered her bedroom. The mother observed that the father appeared teary and his eyes looked glassy. The father told the mother that he wasn’t meant to be there and was breaching an order. The children woke. The mother left the bedroom to settle the children back to bed and called the police. When the mother returned to the bedroom, the father had got into bed. The mother told police that the father appeared to be intoxicated but was calm. When the police attended the father was in the master bedroom in bed. The father was informed that he was under arrest. Police noted that the father appeared to be under the effect of alcohol but had denied drinking alcohol. The father was taken to the Police Station where he declined to be interviewed and was placed on remand to await court.
On 12 March 2014 there was a telephone call from someone at the school to the father. The identity of the caller is not clear. The purpose of the call was to offer a meeting at the school. The caller was probably Ms B. The father told Ms B that he suffered from anxiety based PTSD and had difficulty sleeping. He said that the mother uses his mental condition against him. The notes of the phone call record “his phone was barred, no money, no petrol – so he followed her took her bag and put it in the car – As a result Police FV Order in place.”
The notes further record:
Later that week did 6 loads of washing – took them to parents for drying [I infer the former matrimonial home]. 30-40 items on the line when it started raining – [the mother] on the phone – [the father] stated that he did raise his voice.
Took phone off her. Then got washing in - & police cars arrived one after another.
Terrified children.
The notes indicate that the father was upset because he was unable to go to his own home now and that he believes that the mother was instilling fear in the children. He stated that he has breached a restraining order and the police opposed bail. The father was offered a meeting to discuss strategies for rebuilding the relationship with the children. The notes record that it was difficult to bring the focus to the children as the father wanted to focus on the mother. The call was terminated after a meeting was arranged for 18 March 2014.
On 12 March 2014, the father sent an email to the principal of the school and Ms NN, the deputy principal. In the email he said, inter alia, “I asked [Ms NN] to assist me in finding out from the Primary School’s psychologist, [Ms B], how I could best support our children…”.
On 15 March 2014, the mother’s psychologist, Dr R, noted that the father had contacted her to ask her to mediate between the father and the mother. Dr R refused. She noted that the father made numerous telephone calls to her mobile telephone, leaving lengthy voice mail messages in total in excess of an hour. Dr R noted that the content of the father’s messages appeared “obsessional, pressured and paranoid”.
On 18 March 2014, the father met with Ms B and a teacher from the school, Ms PP. He was accompanied to the meeting by Ms HH. Ms HH gave evidence in the father’s case. She was shown the record of the meeting produced by the school and said in cross-examination that the record was an accurate representation of the meeting, a matter that the father disputes. The record notes that Ms B repeatedly attempted to focus the father’s attention on the children and rebuilding his relationship with them but the father was insistent on telling his side of the story.
The father asked Ms B whether there was a conflict of interest in her counselling the children because Ms B’s mother worked for Child Protection Services (“CPS”). She assured him there was not. In cross-examination, the father elaborated on the alleged conflict of interest. He asserted that, because a relative of Ms B worked in CPS and when Ms B made a notification to CPS she was sometimes asked to provide a report, Ms B was financially benefitting from making reports to CPS. Ms B, when cross-examined by the father, said that she was not aware of any relative of hers who worked for CPS. There is no evidence that Ms B was paid in relation to any report to CPS. In the course of the meeting on 18 March 2014, the father was assured that the school had not contacted CPS but that the Police had made the contact. The notes do not record the father telling Ms B that she did not have his permission to continue to counsel the children.
On 19 March 2014, there was a court appearance and the FVO that was in place against the father was varied so that the father was also restrained from entering upon Unit 2. That order remained in place until 7 March 2015.
On 21 March 2014, the mother reported to Ms B that the older child repeatedly says to the younger child when he is angry “why are you acting like dad did?” The mother told Ms B that the younger child was having significant difficulties sleeping.

On 2 April 2014, the father pleaded guilty and was convicted of a breach of the FVO arising out of the incident on 7 and 8 March. He received a sentence of one month, which was suspended for two years.
On 8 April 2014, Ms B and the younger child worked on anger management rules.
On 13 May 2014, the older child told Ms B that she had seen her father while on holidays for day trips only and had enjoyed this time. The child said that her father had stopped drinking and was doing much better and the child was much relieved by this.
Evidence in the inquest was concluded in May 2014.
On 30 May 2014 the father left Australia on a one way ticket. He travelled to London and then, after spending some time there, travelled to Northern Europe.
The father deposed to a conversation with the older child before he left Australia when the child said to him words to the effect of “Never give up on me dad”. The father interpreted those words as measure of the strong bond between them. The Family Consultant interpreted then as an expression of the child’s anxiety. The Family Consultant also said that it was her sense, from the children, that they did not know when the father was coming back, that his departure was “open ended”.
There is a dispute as to whether the father told the mother that he was going to Northern Europe and whether he told her when he planned to return. The mother told her psychiatrist, Dr S, that the father had relocated overseas which suggests that she did not know his absence was temporary.
There is no dispute that he told the children he was going. There is no evidence that he told them when he planned to return. The father, in correspondence, told C School that he was in Northern Europe to earn money to pay the school fees. In cross-examination he disputed that and said that he had gone for professional development and earned no income when he was there.
The father arranged Skype, Facebook and email avenues of communication with the children while he was absent.
The mother deposed that she had concerns about the Skype communication. She deposed that the father repeatedly told the older child he would arrange for her to travel to the United Kingdom for the September 2014 school holidays and he told the child “if I come back to Hobart I’ll try to get 50/50 of just you”. The younger child was reluctant to engage with Skype.
The mother deposed that the younger child was and remains angry with the father for leaving him. The child said to his mother “He didn’t say goodbye” and “He won’t tell us where he is”. The child said to the mother “He’s abandoned me, so he’s not my father”.
On 3 June 2014, the younger child told Ms B that his father was living in London for “maybe 2 years”. Ms B noted that the child appeared very confused by this and angry with his father for going.
On 17 June 2014, the younger child told Ms B that his father had been robbed. The child said to Ms B “Why didn’t he tell me?” and “What is he doing?” The younger child was very angry with his father and confused about where his father was living. Ms B noted that the child was very agitated. The older child also told Ms B that her father was currently in England and had been robbed. The older child said they were mostly communicating through Facebook. The child was upset and didn’t know when she would see her father again or why he left.
On 23 June 2014 the father sent an email to C School saying that he had not heard from the younger child “for a number of weeks now”.
On 24 June 2014, the younger child told Ms B “Dad is texting [D] again”. The younger child was upset by this. The child also told Ms B that “Nanna” (the paternal grandmother, Mrs Digby) has stage 4 cancer and said “Dad has abandoned her too.” The younger child told Ms B that their father had asked the older child if she “would do half and half”. The younger child said that the older child did not want to do this. The younger child was very angry stating that he did not wish to live with his father.
Also on 24 June 2014 the father emailed Mr FF at C School expressing concern that the younger child “has at least one pedophile (sic) following him on his Instagram account”. He also said “At the moment [the mother] is illegitimately restricting my access to our children and I am stopped by her from being a proper Father to them. I am unable to protect my son from such things occurring. Unbelievably, [E] is following 724 people and has 352 people following him on Instagram (most of whom he would not even know) and his mother does not monitor his account or his unrestricted access to it”. Mr FF responded that the school was doing everything in its power to keep the younger child safe during school hours. The father was not satisfied with that response.
On 29 June 2014, C School recorded that the younger child was distraught on the previous Friday and told Ms PP that the paternal grandparents had come to the house and “were really mean and threatening to mum”. The child said that he had listened at the door as he was supposed to be in bed. The child said his grandparents threatened to take the house away and that “according to [the younger child] they gave mum and dad the money for the house and mum and dad had to pay back $90,000 but they’ve only paid back $60,000!” [E] is really worried that they will come back and might hurt mum; that they will take the house off them…”
On 1 July 2014, the younger child saw Ms B and the focus of the session was yelling and arguing. Also on 1 July 2014, Ms B had a session with the older child and the mother. The older child told Ms B that she was “struggling with getting special time with mum due to [E’s] behaviour”.
On 9 July 2014 the children’s General Practitioner Dr A prepared a mental health plan referring the younger child to Ms B for ongoing counselling. In the referral Dr A noted:
He is dealing with the consequences of family stress and breakdown and is feeling abandoned by his father. I have reassured him that his father still loves him and really wants to be involved in his life as much as possible (repeatedly stated by [the father]). [The father] is currently overseas and this has exacerbated [the child’s] impression of “abandonment”. He needs help dealing with his anger issues and interrupted sleep.
In mid-July 2014 the broadband internet service at the mother’s home stopped working. The account was not in the mother’s name. The mother assumed that Mr Digby, the paternal grandfather, either had the service disconnected or did not pay the bill. As a result, for four to five weeks, there was no Skype or internet contact between the father and the children at home.
There was no telephone communication from the father to the children while he was overseas.
From Northern Europe, the father travelled to Country K. He was there for about four weeks but could not be specific about the dates.
On 20 July 2014 the mother was admitted to RHH with a serious medical condition. On 24 July 2014, the mother phoned Ms B and told her she had been admitted to hospital the previous Sunday. The mother said that the children were each staying with the parents of school friends and the mother was due to have surgery that afternoon.
She was discharged on 28 July 2014. While the mother was in hospital, the children were cared for by parents of school friends.
On 29 July 2014, the younger child told Ms B that his mother had come home from hospital yesterday but he did not know what was wrong with her. Ms B stated that the child was very angry with his father and felt that his father lies to them.
On 1 August 2014, when he was in Country K, the father lodged the equivalent of a caveat over land in Country K to which reference is made later in these reasons in relation to property proceedings.
On 2 August 2014, the mother was again admitted to RHH where she remained until 15 August. The mother was eventually diagnosed with a chronic disease affecting her heart.
At some time in August 2014, the father became aware that the mother was in hospital and the children were being cared for by parents of school friends.
It is most likely that he was in Country K when he became aware of the mother being hospitalised.
The father did not return home to care for the children. He explained in cross-examination that he did not think it was necessary for him to do so. He said he was in regular contact with the school and knew that the children were going to school. He asked his lawyers to contact the mother’s lawyers and ask for information about the children.
On 5 August 2014, Ms B had a joint session with the children. The children discussed their worries about their mother. The children were staying with the parents of other school friends.
On 11 August 2014, in response to a letter from C School informing him that the younger child had harmed another child, the father suggested that the child
…may be feeling frustrated due to his mother’s long term and ongoing affair with another man, who is not [E’s] father … [E] is regularly being passed off onto other people … by his mother, so she can spend extra time with her boyfriend. Such actions are likely to be having an unsettling effect on [E], who has had his life thrown into turmoil by the selfish actions of his mother…
On 13 August 2014, the mother telephoned Ms B. She told Ms B that the father had complained that she was denying the children access to Skype and broadband. The mother stated that it has been difficult for her to sort out the issue of the internet because she was in hospital. The mother said that the younger child does not want to participate in Skype sessions with the father and discussed with Ms B strategies for keeping the sessions short so that the child would participate.
On 14 August 2014, the father gave to Ms B an authority to communicate with his lawyers and provide any information the lawyer requested.
In August 2014 there was an incident where the younger child injured the older child. The older child required medical treatment. The father, in an email to the school dated 23 August 2014, expressed his hope that “her wound will heal quickly and there will be no scarring on her face from her injury”. In the same email the father said that the younger child had complained to him that his mother was spending too much time on the phone and not with the child.
In August 2014 the records kept by C School note concerns about the younger child’s behaviour including intimidating other children, using racist language and bullying.
On 18 August 2014, the father wrote a letter to his then solicitor (tendered by the father in the file of his then psychologist, Mr SS) in which he stated:
Currently I am overseas for the purpose of trying to secure work to pay down considerable overdue School fees so kids can stay at their School next year. I can support this with evidence of job applications that I have made, offers I have been made, etc. Last month, I applied to a University for a position that was advertised. There were many applicants. A couple of weeks later I received an invitation to an interview having been short listed. A week later I was offered a position and a salary. I negotiated on the salary. I then had a health check done and my employer applied for a work permit on my behalf. Then today (2 weeks later) I was advised that they could not proceed due to inquest material on Google.
My absence is not motivated by fear of the inquest findings, as I know that I did my best in the situation and I did nothing wrong and nothing to contribute to the [death]. However, I have no doubt that [the mother] would wish to try and have me incarcerated by inciting a further breach of the current FVO and, based on experience, I have to take that risk very seriously.
Once parenting matters are sorted out, including the return of my vehicle so I have transport, I will be able to return to Hobart and resume shared care of our children.
On 19 August 2014, the children had a joint session with Ms B. They told Ms B that their mother was out of hospital. The older child told Ms B that she had been communicating with her father through Facebook. Both children said they struggled with Skype. They said that their father was often doing other things like typing and they are busy themselves. Ms B encouraged the children to consider an alternate time for the Skype contact and the older child suggested that mornings might be better.
On 22 August 2014, the father wrote a letter to his solicitor. A copy of the letter was forwarded by the father to his then psychologist Mr SS. Mr SS’s file was tendered in the father’s case. In the letter the father says, inter alia:
I agree with your suggestion about returning to Tasmania for the sake of our children, and that remains my intention. However, nothing has yet been resolved regarding re-establishing adequate communications between the children and I (e.g. their mother reconnecting internet access at home so the children and I can chat on Skype). There is no arrangement for the reasonable return of my vehicle. There is no agreement upon the care that I will be providing to my children upon my return. Until these things are settled it is pointless to return.
The father instructed his solicitor to make a proposal for the children to spend seven days a fortnight with him and stated “… once parenting issues are sorted out, I intend to immediately return home to care for our children.”
In relation to the alleged incident of family violence in November 2013, the father said in the letter:
I did not verbally abuse [the mother] in November 2013, I said she was being “lazy” by deliberately leaving her dirty washing all over our bedroom floor and not caring for our children. There is evidence to suggest that this was done in an attempt to insight a breach of that PFVO. [The mother] was intentionally slandering and defaming me to a misandrist girlfriend on a mobile phone… I wanted the mobile removed from our bedroom area because it was causing me considerable anxiety.
The father instructed his solicitor:
[The mother’s] psychiatric files should be subpoenaed otherwise she will try and cover up her mental history and condition and her drug addiction. … It will not be sufficient to simply obtain a report from her treating health care professionals otherwise [the mother] will manipulate what goes into the report. Even and independent mental health assessment with those records and psychiatric history will be useless because it will not reveal her extensive and complex psychiatric history and her mental health conditions, disorders and problems.
He concluded:
Shortly, I will be in a position to propose the name of a suitable person (health care professional) to see our children. Obviously [the mother] would need to agree to this. However I do not consent to [Ms B] authoring any reports regarding our children. I did not agree for her to see them this year. [Ms B] may have been fine if she had been engaged with the agreement of both parents for the benefit of our children, but that is not the case. [The mother] has been filtering selected information to [Ms B] and briefing our kids on what to say to her. Mothers coaching their kids in what to say to psychologists (and court appointed social workers etc) is a common problem and so being able to find someone who can see through that stuff and act truly, skilfully and professionally in our children’s issues is vital.
On 24 August 2014 the father wrote to C School expressing concern about “the level of deception” involved in the children seeing Ms B. He advised that he did not consent to the children continuing counselling.
When the father left the Country K, he did not return to Australia to care for the children but travelled to Scandinavia. Again the father could not be precise about the dates but it appears that he went to Scandinavia in early September. When asked in cross-examination why he did not return to care for the children, the father said that he thought it was important for him to make contact with a group in Scandinavia who were concerned with promoting the children’s relationships with both parents.
On 25 August 2014, the father sent a letter to C School in which he stated, inter alia, “I hereby advise that [Ms B] does not have my consent to continuing seeing our children under any circumstances. Please advise [Ms B] in writing of this on my behalf.” The father also said “I will arrange for [the mother’s] lawyer to be advised of my decision regarding [Ms B]. I will also request that he inform [the mother] that I am prepared for our children to see a mutually agreed upon clinical psychologist, and a choice of three (3) will be suggested for that purpose.”
The mother deposed that the younger child developed anxiety over the possibility of her dying. She stated, “When at home he would follow me everywhere”. The child had trouble sleeping and on one occasion he woke and couldn’t find his mother and woke the older child, telling her “We’ve lost mum”.
On 24 September 2014, the younger child saw Ms B. Ms B noted that “[E] presented as very angry about why I hadn’t seen him at school – requested he know why this had happened. [E] stated that he had needed support at school and hadn’t been able to see me.” The child stated that he thinks “it’s dads fault.” The child requested help managing his yelling and getting angry with his teacher at school.
The mother deposed that after the younger child resumed seeing Ms B he was less anxious.
Skype communication between the father and the children recommenced on 14 October 2014.
The father did not return to Australia until 13 November 2014.
In her report dated 18 November 2014, Ms B stated:
[The child D] has also expressed a desire for infrequent contact with her father (‘I want to stay with Mum’, ‘…I worry people will make me stay with Dad’). [D] has reported enjoying certain activities with Dad, such as fishing. Time will need to be taken to re-establish parent-child relationships.
In relation to the relationship that the children have with the paternal grandparents, Ms B reported:
[E] has stated that in his interactions with his grandparents he gets asked a considerable number of questions about his mother (‘they ask me lots of questions about what mum is up to’). [E] indicated he was uncomfortable with this. [D] has also raised similar concerns.
Ms B reported that the younger child had significant difficulties with emotion regulation specifically with anger management. He suffered sleep disturbance which was exacerbated by stress and anxiety. Ms B considered that the older child also suffered from anxiety symptoms. Ms B reported that both children’s anxiety levels increased when they are expecting to see their father or their paternal grandparents.
Ms B stated:
In discussions with the children they have indicated that they would currently prefer infrequent contact with their father. In a joint session, both children agreed they would be able to manage weekly morning Skype calls with their father. This was communicated to [the mother] and my understanding is that this has occurred although [E] in particular is very reluctant. [E] would prefer no Skype contact. [D] has required counselling support in regard to responding to probing questions around where they have been and who they have seen while with their mother. Both children have requested that conversations revolve around what they are doing and what their dad has been up to rather than what their mum is doing. This will assist in making contact between the children and their father or grandparents much more comfortable.
Ms B’s report concluded:
Summarising, both children have stated that they would like only limited contact with their father. [D] has stated that she would like some contact such as an organised activity like fishing ‘then he won’t be able to keep asking me questions’. [D] reports enjoying fishing trips in the past. Both children have reported that they would not at this stage feel comfortable with overnight visits with their father. It is my opinion that contact be limited to day time visits in order to re-establish a relationship with their father. These visits should be of an organised nature rather than surprise visits in order to develop trust amongst the children and their father.

The paternal grandfather represented himself in the hearing. He was a vociferous advocate for the father, seeking to cross-examine in the father’s interest although he had been warned that this would not be permitted, objecting when the father was being cross-examined, and interjecting.
The paternal grandfather had sworn a number of affidavits in the proceedings. He was permitted to rely on two affidavits sworn by himself, and one by his late wife, in the substantive proceedings. He was permitted to rely on a third affidavit, sworn 26 August 2016, only for the purpose of his application for an adjournment. He was cross-examined on the contents of other affidavits filed earlier.
In his affidavit sworn 26 August 2016, under the heading “Indicators of Psychopathy of the Mother” he stated:
She orchestrated trumped up charges of domestic violence and exaggerated claims of drunken behaviours. She took delight in manipulatively using free government resources such as police and Family Violence people, involving and familiar friends, she always sought sympathy from such as doctors and psychiatrists acting upon her pleas of violence to unite against [the father] (sic).
These were by no means the most strident of the paternal grandfather’s criticisms of the mother which were unbridled and derogatory. Counsel for the mother cross-examined the grandfather on criticisms made in other affidavits. The paternal grandfather was asked if he still held those highly critical views of the mother, to which the grandfather replied “leopards don’t change their spots”.
In answer to questions put to him by the ICL, the paternal grandfather said that the father had done nothing to contribute to the children’s current views of the father and the paternal family. He said that the children had been brainwashed by the mother about what to say to Ms B and presumably Dr G. He was highly critical of Ms B, saying that she was partisan and that her reports were irresponsible and one-sided.
Of his interactions with the children after the commencement of the proceedings, the paternal grandfather said that on every occasion they went from bad to worse. I accept that evidence.
Counsel for the mother described the paternal grandfather’s descriptions of the mother, with justification, as vituperation.
The paternal grandfather supported the father’s position in every respect. He is an advocate for the father. I have no confidence that, if he were to spend time with the children, he could spare them from his negative views of their mother.
It is likely, if the Family Consultant’s views of the mother are correct, that the children are already aware of the paternal grandfather’s views of their mother. They would be understandably apprehensive, in those circumstances, of being brought into contact with him.
The theme of denigration of the mother is not solely confined to the paternal grandfather. The father relied on at least three affidavits from friends who demonstrated a clear distrust of the mother in her capacity as a parent. It is clear that the lay witnesses the father relied on are aligned with the father in their negative perceptions of the mother.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.

I have dealt with the issue of the maturity of the children in the context of the consideration of their views.
The father’s maternal ancestry is Northern Europea and he and the children hold dual Australian and Country GG citizenship. The father speaks French and has an ancestral connection with Country K through his grandfather. The children would be advantaged if they had the opportunity to share and experience those cultures with their father.
The older child is learning and enjoying French, and that could be an interest that she and her father could pursue together.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

Each of the parents is committed to the children and each wants to be a responsible parent. Each of them has done his or her best, according to his or her own particular limitations which have been extensively explored in these reasons.

Family violence

I have already made a finding that there was no family violence perpetrated upon the children by the father.
However, there have been a series of Family Violence Orders made, and on a number of occasions the father has been convicted of breaching those orders, on some occasions after a guilty plea. I am conscious of the fact that the father is currently challenging some of the FVOs in the Supreme Court of Tasmania and those proceedings have not yet been determined.
The history of FVOs against the father, the mother (on the application of the father), and Mr LL (by proceedings filed by the father), suggests that any contact of any nature between the mother and the father, or the father and Mr LL, is likely to lead to yet another application for an FVO. One complaint by the father against Mr LL arose out of the father and Mr LL both attending one of the younger child’s soccer matches.
That is a matter of some concern in that both parents agree that the father should be able to attend school functions, where presumably the mother and Mr LL might also attend, and the father wishes to be able to attend the children’s extra-curricular activities. There is a significant likelihood that the attendance of the parents, or the father and Mr LL, will lead to further FVO applications.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.

The mother told the Family Consultant that if the litigation stopped, then the children would re-engage with their father. That may be because the mother believed that she could achieve that outcome providing she first achieved her outcome, that is, the end of the litigation.
The father is a persistent litigator. Some of the actions which he has instituted are set out earlier in these reasons. I am not aware of all of the proceedings in the Magistrate’s Court and the Supreme Court of Tasmania in which the father has been engaged as a moving party.
The children’s need for respite from the litigation was strongly advocated by both the Family Consultant and Dr G.
In addition, the father has complained to the professional bodies of both Ms B and Mr JJ. The father maintained the complaint against Ms B even after Dr G recommended that the children continue counselling with her. He sent volumes of correspondence to the professional bodies of the ICL and counsel for the mother, and to the ICL’s employer.
If an order is made for the family to attend “immersion therapy” and that process does not proceed without a hitch, and does not conclude to the father’s entire satisfaction, it is highly likely that he will file further applications.
If an order is made for the children to live with the father and they will not comply, it is inevitable that the father will file further applications.
If an order is made for the children to spend time with the father, however limited that time may be, and they do not comply to his satisfaction, it is inevitable that he will file further applications.
It is likely that an order that the father be permitted to attend at the school will also lead to further applications if the father feels that the mother or Mr LL have in some way interfered with his rights or if the children refuse to engage with him.
I am only persuaded to make such an order because the mother, the father, and the ICL all seek it.
Attendance by the father at extra-curricular activities is also likely to lead to further litigation because the mother and Mr LL may also attend.
The children do not want their father to attend at their activities. I do not propose to make that order.

PARENTAL RESPONSIBILITY

The presumption in favour of equal shared parental responsibility is rebutted if such an arrangement is not in the best interests of the children.
I am satisfied that there are no circumstances in which the parents can cooperate to make decisions in relation to the children and I am also satisfied that the children would not tolerate their father’s involvement in such decisions.
However, the mother will be required to keep the father informed of significant matters relating to the children’s health and welfare, and the father will be entitled to receive information directly from the school in relation to their education.

CONCLUSION

I place the greatest weight in my determination on the children’s views and the need for this litigation to come to an end.
For that reason, there will be no order that provides for “immersion therapy” and there will be no order for the children to spend face-to-face time with the father.
I am persuaded that the only way that the children will ever be able to have a relationship with their father is if the relationship is initiated, facilitated and encouraged by the mother.
For the sake of the children, it is to be hoped that she will, with the assistance of her psychologist, her psychiatrist, and Ms B, be motivated to achieve this.
There is some glimmer of hope that she will; that being the recent contact between the mother and the children’s paternal aunt Ms VV to facilitate the children’s visit to their dying paternal grandmother and their attendance at her funeral.
The father will be permitted to have email contact directly with the children, no more than once each week to their personal email addresses. They are under no obligation to acknowledge or reply but they will have an avenue to communicate with him if they choose. He will also be permitted to post cards and presents to them, to their home address, on their birthdays and at Christmas and Easter.
The father will be permitted to attend activities at the school to which parents are normally invited. However, the father should understand that this order does not bind the principal of the school, who retains all the authority to determine what activities or occasions individual parents might attend.

PROPERTY SETTLEMENT

The father and the mother married in 2000 in Western Australia. The mother was 19 years old and the father was 22.
The father did not file a trial affidavit, and the mother’s evidence was largely unchallenged.
The mother deposed to having $6,000 savings at the time of the marriage. There is no evidence that the father had any assets.
The parties lived in Western Australia. The father enrolled at university to complete a Bachelor degree, and the mother to complete a Bachelor degree. They each had part time work. The father, from time to time, received Centrelink benefits.
In mid-2001, they moved to Hobart and lived with the father’s grandmother. The older child was born in Hobart in 2002.
They then returned to Perth with the older child to resume their studies.
They each completed their degrees. The father holds two degrees, one with first class honours. The mother has completed post-graduate qualifications. The father enrolled in, but did not complete, a PhD.
The younger child was born in 2003.
They returned to Tasmania in 2008 with the two children. The mother worked as a health professional. Until 2010, she worked mostly afternoon shifts starting at 2.30 pm so she was home with the children for the first part of the day. The father cared for the children while the mother worked, preparing their evening meal and putting them to bed.
In 2003, the father’s parents had purchased a unit at X Street, Suburb Y (“Unit 2”) for $165,000. In April 2008, the father’s parents sold Unit 2 to the father and the mother for $193,000.The father and the mother contributed the first home owners’ grant of $7,000 and the father’s parents financed the balance of the purchase by way of mortgage back to them. The mortgage was interest free.
The mother acknowledged that it would not have been possible for them to buy Unit 2 without the assistance of the father’s parents.
Unit 2 became the family home.
After 2010, the mother changed her shifts to coincide with school hours, starting at 7.30 am and finishing at 3.30 pm.
The mother was the main wage earner in the family.
The father’s total taxable income from 30 June 2002 until 30 June 2010 was $137,506, or an average of $15,278 per annum. The father travelled overseas in 2007, 2008, five times in 2009, and to Malaysia and Europe in separate trips in 2010. The father has not lodged a tax return since 30 June 2010 and there is no evidence that he earned any income after 30 June 2010 other than from Centrelink. For a short period in 2011, the father received a Centrelink benefit as the maternal grandmother’s carer . He received one payment.
In the same period of 2002 to 2010, the mother’s taxable income was $195,907, or an average of $21,767per annum. In 2012 and 2013, the mother earned in excess of $70,000 per annum. When the parties separated in 2014, the mother was earning in excess of $53,000 per annum.
The father’s grandfather owned two parcels of land at Country K (“the K land”). He gave that land to the father.
In December 2012, approval was granted for the K land to be transferred from the father’s grandfather to the mother, subject to the payment of a transfer fee of 1.5 per cent of the total consideration and stamp duty of 5 per cent. In March 2013, the land was registered in the mother’s name as proprietor, by way of transfer. The consideration was expressed to be 1,219,000 Country K rupees. The mother does not assert that the consideration was actually paid. I accept that the land was a gift to the father from his grandfather. It is unclear why the land was not registered in the name of the father. The mother deposed that the father was not eligible to own land in Country K because he did not pass the relevant character test. In cross-examination, she said that she had been required to provide referees as to her own good character before she could become the registered proprietor.
In 2009, the father and his grandfather engaged in litigation in Country K in relation to another piece of real estate. In 2011, the father travelled to Country K to give evidence in those proceedings. In March 2013 the proceedings were dismissed. The father and his grandfather were entirely unsuccessful.
The mother deposed that the lawyers and valuers in Country K charged $8,133 in relation to those proceedings. The father tendered documents which suggested that, in fact, there were further funds paid towards the litigation.
In 2010, the maternal grandmother came to live with the father and the mother. She provided financial assistance with school fees in 2011, she purchased a car for the mother for $30,000 in 2011, and she contributed $7,000 towards the costs of double glazing for Unit 2. The mother deposed that the maternal grandmother contributed towards the cost of other work at Unit 2.
The maternal grandmother instituted family law proceedings in relation to her entitlement to property settlement arising out of her marriage. She was assisted in those proceedings by the mother and the father.
The maternal grandmother died in March 2011.
In April 2011, the adjoining unit, Unit 1, X Street, Suburb Y (“Unit 1”) was purchased in the name of the mother. The maternal grandmother had provided $66,131 towards the purchase and the balance was borrowed by way of mortgage from the Commonwealth Bank of Australia (“CBA”). It was intended that Unit 1 would be a residence for the maternal grandmother, but settlement took place after her death.
The mother was a beneficiary of the maternal grandmother’s estate. She and the father were the executors of the grandmother’s will and were substituted as applicants in the family law proceedings.
There was an inquest into the maternal grandmother’s death. The mother was legally represented in the inquest.
Legal fees were paid from the estate for both the family law proceedings and the inquest.
The mother deposed that she received $420,646 from her mother’s estate, net of legal fees. The children each received a bequest of $5,000 which was used to pay school fees. In August 2013, the mother opened a bank account with CBA into which she deposited $339,000 from the maternal grandmother’s estate. The father was not a signatory to that account.
The mother was unable to account for the expenditure of the funds from her mother’s estate except to say that they were used to pay debts and that “a great deal of money” was used to renovate Unit 2. Part of the money was used to purchase sandstone which was intended to be used for landscaping. The mother estimated that the cost of the sandstone was $100,000. The father, in cross-examination, could not recall how much was paid.
Tendered in the mother’s case was a statement of her credit card for August 2013 showing payments into the account of approximately $100,000 and purchases including school fees, building materials, appliances and general living expenses in about the same amount.
The mother gave evidence that she also withdrew from the CBA account amounts of cash which she gave to the father to pay tradesmen. She said that the stonemason alone was paid about $7,000 each week in cash. The father was the person who was supervising the renovation work.
The mother gave evidence that some of the funds were used to pay legal fees relating to the inquest into her mother’s death. A payment of some $39,000 was specifically identified. There is no evidence about the payment of the father’s legal fees in relation to the inquest, in which he was also represented, but the only possible source of funds was the mother’s inheritance.
The father and the mother separated in November 2013. The father says the separation commenced on 6 November, the mother says that he actually left the home on 13 November. The circumstances are relevant only to the parenting proceedings. No mortgage payments were made by either the father or the mother after separation.
The mortgage on Unit 1 was paid from rental income, although there was a small shortfall.
On 30 May 2014, the father left Australia on a one way ticket. The circumstances of that event have been canvassed in the reasons in relation to the parenting proceedings.
During the time that the father was absent from Australia, the children were attending a private school and the father contributed $176 towards their school fees. There is no evidence that he made any other contribution to the support of the mother and the children in that period.
During the period that the father was out of Australia, the mother was hospitalised for four to five weeks suffering from a serious medical condition. In mid-July 2014 she was discharged from her employment as medically unfit. She instituted wrongful dismissal proceedings which were settled on the basis that she resigned from her employment. During this time, she had no income from employment.
The father returned to Australia on 13 November 2014.
The litigation commenced in December 2014.

THE BALANCE SHEET

At the commencement of the hearing, the mother and the father were requested to file a balance sheet setting out their respective contentions of the assets and liabilities of the marriage. There was no joint document. A balance sheet was filed by the mother. A separate document was filed by the father on the second day of the hearing and before the commencement of his cross-examination.
The father described his document as a draft. He set out in the document the figures for which he contended. Where the father made no contention contrary to that of the mother, I have assumed that her figure is accepted.
Their respective contentions are set out in the table below. I propose to deal with the disputes using the numbers from the balance sheet.

Asset

Husband’s value

Wife’s value

1.

W

Unit 1 X Street, Suburb Y – agreed value.

$295,000

$295,000

2.

J

Unit 2 X Street, Suburb Y – agreed value.

$315,000

$315,000

3.

W

Land in Country K– valued by single expert and agreed.

$210,680

$210,680

4.

W

Volkswagen vehicle

$13,450

$13,450

5.

W

Furniture

$2,280

$2,280

6.

W

Superannuation

$53,304

$53,304

7.

H

Superannuation

$47,735

$47,735

8.

H

Interest in CS Limited

Nil

NK

9.

H

Interest in Leroux Pty limited

$100

NK

10.

H

Overseas Bank account

Nil

NK

Liability

11.

W

Mortgage to CBA over Unit 1

$237,617

$237,617

12.

J

Mortgage to husband’s parents over Unit 2

$145,000

$145,000

13.

W

Legal fees

$31,057

$31,057

14.

W

C School (children’s school fees)

$10,878

$10,878

15.

W

Westpac Flexi Loan

$15,683

$15,683

16.

W

Westpac Credit Card

$960

$960

17.

W

Overdraft

$1,836

$1,836

18.

H

Legal fees

$14,615

$14,615

19.

W

Capital gains liability on Unit 1

Negligible

Negligible

20.

H

Debt to father (Mr Digby)

$30,000

Addback assets disposed of by wife

21.

Sandstone

$40,000

22.

2010 Volkswagen

$13,000

Item 3 – Country K land

The father’s application throughout the trial was that the Country K land, currently in two parcels, be further subdivided. Throughout the trial, he sought an order that the mother cause a subdivision of the larger parcel into two new lots, the mother was then to transfer the larger lot to the father and retain the two remaining lots.
There was no evidence before the Court of the requirements for subdivision under the law of Country K. It cannot be assumed that such a subdivision will be permitted. There was no evidence of the cost of the subdivision if permitted.
The Country K land has been valued by a single expert valuer at 2,100,000 Country K rupees. The land is agreed to be worth AUD $210,680.
The mother seeks an order that she sell the Country K land and that the purchase price be added to the net asset pool for division between the parties.
On the last day of the hearing, at the commencement of the submissions on behalf of the father, counsel instructed to appear only on that day, filed in Court an amended Minute of Orders. He sought an order that the mother retain the land in Country K. The mother did not have notice that the father’s position had changed in relation to the land in Country K and she was not cross-examined about the proposal that she retain the land.
Throughout the hearing, it was the mother’s position that the land be sold and the proceeds divided.

Items 6 and 7 - superannuation

The father proposes that each party retain his or her superannuation. The mother seeks a superannuation splitting order.
It is not necessary to make a splitting order to give effect to the division of property which is sought by either party. The father is 38 years old, the mother is 34 years old. They will not have access to their superannuation entitlements for many years. The father gave evidence that he intends to work after the completion of these proceedings and he is likely to have the opportunity to increase his entitlements. The mother’s present health may militate against her being able to work again.
I propose to leave the superannuation entitlements as they are, and to consider whether there should be any consequent adjustment pursuant to s 75(2) of the Act.

Item 8 – shares in CS Limited

There is no evidence that the company is operative or that the shares have any value. This item will be deleted.

Item 9 – shares in Leroux Pty Limited

There is no evidence that the shares have any value other than as asserted by the father.

Item 10 – overseas bank accounts

There is no evidence that the father currently has any overseas accounts. This item will be removed from the balance sheet.

Items 13 and 18 – legal fees

Both parties have legal fees. Each will be required to pay them. The mother has chosen to be represented for the whole of the proceedings. The father has not. Neither party should either benefit from, or be detrimentally affected by, the choices each has made. These debts will be considered pursuant to s 75(2).

Item 14 – school fees

The mother has a debt to the school for the fees incurred in 2015 for which she undertook to be responsible.
In 2014, the father had proposed that the children be removed from their school as he could not afford to make a contribution to their fees. He proposed that they change school at the end of 2014. Instead, the mother caused the children to remain at the school. She was not working and not in receipt of sufficient income to pay the fees. She changed the children’s school at the beginning of the 2016 school year.
The father should not be required to contribute to the fees which were incurred by the mother after he made it clear that he could not afford to contribute. This item will be removed from the balance sheet but taken into account pursuant to s 75(2).

Items 15, 16 and 17 – the mother’s debts

There is no evidence that the debts referred to were incurred before separation or for joint purposes.
Accordingly they will be removed from the balance sheet but given consideration pursuant to s 75(2).

Item 20 – debt to Mr Digby

There is no evidence that the debt was incurred before separation or for joint purposes. Other than the father’s assertion that the debt existed, there is no evidence of when the money was borrowed, how it was spent, on what conditions it was borrowed or when (if at all) it will be repaid.
Mr Digby gave no evidence in relation to the asserted debt.
Accordingly, it will be removed from the balance sheet but given consideration pursuant to s 75(2).

Item 21 - sandstone

The father asserts that the mother has removed a quantity of sandstone blocks from the premises at Suburb Y.
There is no evidence before the Court of the value of that material. The father was unable to say what the material had cost when purchased.
The mother deposed that some time before November 2014 she sold some of the sandstone, some taps and a sink for $1,000. This was at a time when she was not in receipt of income and the father was not in Australia.
There is no evidence that the father was making any contributions to the financial care of the children during this period.
I do not consider it appropriate for this sum to be added back in these circumstances.

Item 21 – the 2010 Volkswagen

The 2010 Volkswagen car was registered in the name of the mother. She sold the car in February 2015 for $8,500 and retained the proceeds.
There is no evidence that the father was making any contributions to the financial care of the children during this period.
I do not consider it appropriate for this sum to be added back in these circumstances.

Assets and liabilities

For the purpose of these proceedings, the assets and liabilities of the parties are:

Ownership

Assets

Value

W

Unit 1 X Street, Suburb Y – agreed value

$295,000

J

Unit 2 X Street, Suburb Y – agreed value

$315,000

W

Land in Country K – valued by single expert and agreed.

$210,680

W

Volkswagon vehicle

$13,450

W

Furniture

$2,280

H

Interest in Leroux Pty limited

$100

Total assets

$836,510

Liabilities

W

Mortgage to CBA over Unit 1

$237,617

J

Mortgage to father’s parents over Unit 2

$145,000

Total liabilities

$382,617

Total Net Assets

$453,893

Thus the parties have gross assets in Australia valued at $836,510 and liabilities of $382,617, leaving net assets of $453,893.

Section 79(2) Factors

Both parties ask the Court to adjust their interests in their assets.
Their most valuable asset is their interest in Unit 2 which is jointly owned and which they can no longer jointly enjoy. In those circumstances, it is just and equitable to make an order.

CONTRIBUTIONS

The father, through his counsel, contended for a finding that contributions were equal.
The mother had a small amount of money at the commencement of cohabitation. The father had nothing. That disparity does not justify an adjustment.
The father’s parents made a contribution by providing interest-free finance from 2008 to the present, allowing the parties to acquire Unit 2 as their home. There is no evidence from which that contribution can be quantified. The parties reduced the principal owed to the father’s parents by $55,000, but the interest-free component of the mortgage, over eight years, was a significant contribution.
The maternal grandmother contributed funds towards the private school fees and renovation expenses during her lifetime. She also contributed $66,131 towards the purchase of Unit 1.
The mother received an inheritance of $420,646 from the maternal grandmother’s estate. There is no evidence that any of the funds remain. I accept that a substantial portion of the funds was spent on renovations and material to renovate Unit 2. It is her unchallenged evidence that $100,000 was spent on sandstone alone.
The mother was cross-examined in relation to a bank account into which she deposited $338,995 from the estate on 2 August 2013. Most of those funds had been withdrawn by the end of September 2013.
The mother gave evidence of a payment to solicitors engaged by the father of $22,000. She named specific solicitors and counsel who had been paid, but not specific sums.
It is unlikely that the pattern of spending displayed in the August credit card statement was isolated. In addition to the mother’s legal fees, the father incurred legal fees instructing his own lawyers in relation to the inquest. There was no source of funds to pay the father’s lawyers other than the inheritance from the maternal grandmother’s estate.
I am satisfied that the inheritance was used for the purposes of the family until the money had been spent.
The father’s grandfather gave the father the Country K land.
Until separation, both parties were involved in the care of the children. From 2011 until separation in November 2013, the mother was also the major income earner.
After separation, the mother had the care of the children. The father did not pay child support.
The father left Australia in May 2014 and did not return until November 2014. Apart from the sum of $176 paid in school fees, there is no evidence that he made any contribution to the financial care of the children.
After the father returned to Australia in November 2014, he did not pay child support, although he purchased gifts, including clothes, for the children.
The mother’s contributions are greater than those of the father. I assess her contributions at 60 per cent and the father’s at 40 per cent.

SECTION 75(2)

The father, through his counsel, contended for an adjustment in favour of the mother of 10 per cent.
The father gave evidence that, when the litigation is finished, he intends to return to work. He has qualifications in commerce and management.
There is no evidence that he has ever earned a significant income, but since he has not filed a tax return since the 30 June 2010 tax year, and he did not comply with the directions made for financial disclosure, it is not possible to determine what his financial position is. I note that the father filed a Financial Statement after all cross-examination had concluded in which he disclosed an income from Newstart and no assets.
On 25 May 2016, orders were made for the father to provide financial disclosure by way of documents specified in a list, including but not limited to payments to lawyers, payments for sandstone, bank and building society statements, statements for specified bank accounts, and documents relating to various corporate entities. It was only in the course of cross-examination that the Court became aware of the existence of the Leroux Discretionary Trust.
The father did not file a Financial Statement before the commencement of the trial, or an affidavit in support of his application for property settlement. He did not comply with the orders for financial disclosure.
The mother cannot return to her chosen profession but her physician deposed that she could undertake employment that did not require standing. There is no evidence that such employment is currently available within the profession. If she is to undertake employment of which she may be physically capable in another field, then she will be required to retrain.
The father has not paid child support since separation. He currently, on a voluntary basis, pays half of the children’s school fees amounting to approximately $4,000 per annum. The orders that will be made in relation to parenting will have the effect that the children will remain in the care of the mother and that, in the foreseeable future, she will be their sole carer and will remain responsible for the children’s housing and day-to-day financial support.
Both parties have re-partnered. The mother has married Mr LL who owns his own business from which he derives an income of $1,263 per week. Mr LL deposed to weekly expenses of $1,082 for himself, his two children, and the mother and the two subject children. The mother and Mr LL live in rented accommodation.
The father lives with Ms RR who is a student. There is no evidence of when she might expect to earn an income from employment.
Each party will retain their superannuation. The mother’s present entitlement is a little more than the father’s, but he is more likely than she to be able to earn an income from exertion. He is qualified in management and commerce and has no physical disability.
The mother suffers from an autonomic disease. Her treating physician, Dr UU, provided an affidavit and was cross-examined. The condition is chronic and will not resolve. Dr UU said that the mother was not physically or mentally capable of performing the duties of a health professional. I accept that the mother cannot return to work as a health professional, because of her physical incapacity and because her condition affects her mental alertness.
The mother gave evidence that she proposes to retrain so that she might be able to work as a counsellor. Whether she will be able to obtain employment in that capacity remains to be seen. There is no evidence about the length of time involved in obtaining the required qualifications. Presumably, there would be a cost involved in paying the relevant fees.
The father contends that the mother could work in the health profession at a job which was largely administrative. There is no evidence of the nature of such employment, whether any jobs exist in that category, or what qualifications might be required for such a position.
Both parties have debts. The mother owes $29,357 in school fees, legal fees and loans. The father owes $14,615 in legal fees. He may be required to repay $30,000 to Mr Digby. Each will have to settle their debts from the property they receive.
There should be a small adjustment in favour of the mother to take into account, primarily, her reduced earning capacity, and her obligations for both the physical and financial care of the children.
There will be a further adjustment of 10 per cent in favour of the mother.

CONCLUSION

The Country K land and Unit 1 will be sold and the proceeds divided as to 70 per cent to the mother and 30 per cent to the father. From her share of the proceeds of sale of the two properties, the mother should pay the father a sum of $4,719, being the equivalent of 30 per cent of her retained assets (the Volkswagen car and furniture).
The remaining asset is Unit 2 which has an agreed net value of $170,000. The mother is entitled to 70 per cent of the net value of Unit 2, or $119,000. The father wishes to retain Unit 2 and he should have that opportunity. In the event that the father is not able to pay the mother the sum of $119,000 within two months of the date of the Orders made herein, then the property will be sold and the proceeds divided as to 70 per cent to the mother, and the balance to the father.

I certify that the preceding seven hundred and sixty-one (761) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 October 2016.

Associate:
Date:7/10/2016

[2016] FamCA 862

7 October 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Costs

Damages

Jurisdiction

Natural Justice

Procedural Fairness

Asset	Husband’s value	Wife’s value
1.	W	Unit 1 X Street, Suburb Y – agreed value.	$295,000	$295,000
2.	J	Unit 2 X Street, Suburb Y – agreed value.	$315,000	$315,000
3.	W	Land in Country K– valued by single expert and agreed.	$210,680	$210,680
4.	W	Volkswagen vehicle	$13,450	$13,450
5.	W	Furniture	$2,280	$2,280
6.	W	Superannuation	$53,304	$53,304
7.	H	Superannuation	$47,735	$47,735
8.	H	Interest in CS Limited	Nil	NK
9.	H	Interest in Leroux Pty limited	$100	NK
10.	H	Overseas Bank account	Nil	NK
Liability
11.	W	Mortgage to CBA over Unit 1	$237,617	$237,617
12.	J	Mortgage to husband’s parents over Unit 2	$145,000	$145,000
13.	W	Legal fees	$31,057	$31,057
14.	W	C School (children’s school fees)	$10,878	$10,878
15.	W	Westpac Flexi Loan	$15,683	$15,683
16.	W	Westpac Credit Card	$960	$960
17.	W	Overdraft	$1,836	$1,836
18.	H	Legal fees	$14,615	$14,615
19.	W	Capital gains liability on Unit 1	Negligible	Negligible
20.	H	Debt to father (Mr Digby)	$30,000
Addback assets disposed of by wife
21.	Sandstone	$40,000
22.	2010 Volkswagen	$13,000

Ownership	Assets	Value
W	Unit 1 X Street, Suburb Y – agreed value	$295,000
J	Unit 2 X Street, Suburb Y – agreed value	$315,000
W	Land in Country K – valued by single expert and agreed.	$210,680
W	Volkswagon vehicle	$13,450
W	Furniture	$2,280
H	Interest in Leroux Pty limited	$100
Total assets	$836,510
Liabilities
W	Mortgage to CBA over Unit 1	$237,617
J	Mortgage to father’s parents over Unit 2	$145,000
Total liabilities	$382,617
Total Net Assets	$453,893