LONGLEY & LONGLEY

FAMILY COURT OF AUSTRALIA

LONGLEY & LONGLEY

[2018] FamCA 484

FAMILY LAW – CHILDREN – Parenting – Where the children, aged 15 and 13, live with the husband – Where the eldest child suffers from an intellectual disability – Where the wife seeks to spend one night per fortnight with the eldest child and a week-about arrangement with the youngest child – Where the wife’s parenting capacity and ability to cope with the children is limited – Where the wife has breached previous parenting orders restraining her from bringing the children into contact with her new partner – Where the children are to live with the husband and spend alternate weekends with the wife as well as school holidays and special occasions – Where the husband has sole parental responsibility.

FAMILY LAW – PROPERTY – Where the parties seek an adjustment of their property interests in accordance with s 79 of the Family Law Act 1975 (Cth) – Where the husband’s contributions are assessed at 60 per cent – Where the wife has a lesser income but the husband has the ongoing future care of the children, one of which has an intellectual disability – Where the husband seeks 55 per cent of the asset pool – Orders made in accordance with the husband’s application – Order made for the wife to receive a superannuation splitting order.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks either lump sum or periodic spousal maintenance – Where the Court is not satisfied that the wife is unable to support herself – Application dismissed.

FAMILY LAW – COSTS – Where the wife seeks that the husband pay her costs of the hearing on an indemnity basis – Consideration of s 117(2A) – Application dismissed.

Family Law Act 1975 (Cth) ss 72, 75(2), 79, 117(2A)

APPLICANT:

Mr Longley

RESPONDENT:

Ms Longley

INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

FILE NUMBER:

SYC

5347

2015

DATE DELIVERED:

28 June 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

30 April 2018 and 1 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Petrie

SOLICITOR FOR THE APPLICANT:

Phoenix Legal Consultancy

FOR THE RESPONDENT:

Mrs Longley in person with Mr B as a McKenzie Friend

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McGee

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

Orders

PARENTING

That the children X born … 2005 and Y born … 2002 (hereinafter referred to as “the children”) live with the husband.
That the husband have sole parental responsibility for the children with the husband providing notice to the wife of any medical, educational and religious decisions made by him.
That the husband notify the wife of any medical and educational appointments in relation to the child Y and that the wife be permitted to participate in such appointments, as well as any educational events for both children in which parents are otherwise entitled to participate.
That during school terms, the children shall spend time with the wife as follows (unless otherwise agreed Week 1 will commence Sunday, 1 July 2018):
(a)       In Week 1:
(i)For X, from the conclusion of school on Friday (or 3.00 pm if Friday is a non-school day) to 5.00 pm Sunday and each alternate weekend thereafter;
(ii)For Y, from 5.00 pm Saturday to 5.00 pm Sunday (on the same weekend as X spends with the wife) and each alternate weekend thereafter.
(b)       In Week 2:
(i)For X, from after school Monday (or 3.00 pm if Monday is a non-school day) to 7.00 pm;
(ii)For Y, from after school Tuesday (or 3.00 pm if Tuesday is a non‑school day) to 7.00 pm;
(c)       Such other time as the parents agree.
That, unless otherwise agreed, during school holidays the children spend time with the wife as follows:
(a) During the long summer holidays:
(i)from 5.00 pm on 27 December until 7.00 pm on 1 January;
(ii)from 5.00 pm on 9 January until 7.00 pm on 13 January; and
(iii)from 5.00 pm on 20 January until 7.00 pm on 25 January.
(b)During the short school holidays for five consecutive days commencing at 5.00 pm on the first Saturday of each holiday period.
(c)Such other time as the parents agree.
That notwithstanding any other order, in even numbered years, the children spend time with the wife from 7.00 pm on Christmas Eve until 7.00 pm on Christmas Day.
That notwithstanding any other orders, the children spend time with the wife as follows:
(a)From 5.00 pm the Saturday before Mother’s Day until 5.00 pm on Mother’s Day;
That the wife’s time as otherwise provided shall be suspended as follows:
(a)From 5.00 pm the Saturday before Father’s Day until 5.00 pm on Father’s Day.
That in the event that the children, or either of them, stay overnight at Mr B’s residence, the wife shall be present at all times.
That for the purposes of changeover, the wife is to collect and deliver the children to and from the husband’s residence. The wife is to ensure that she is on time when collecting and returning the children to the husband’s care and advise the husband via text message if she is late.
That the wife ensure that Y has his own bed when spending overnight time with the wife.
That the wife ensure that X attends her music lessons when she is in the wife’s care.
That each parent ensure that any of the children’s possessions including clothing that accompany the children when they are spending time with the other parent be returned when the children are returned.
That the wife ensure the children attend any extra-curricular activity in which they are enrolled while they are in her care.
That both parties not enrol X in any extra-curricular activity without the written consent of the other and with X’s agreement.
That each party shall be restrained from making any derogatory comments about the other parent or any other members of that parent’s household or extended family in the presence of the children.
That the wife and husband refrain from discussing these proceedings in the presence or within the hearing of the children.
That both parties shall notify the other of any medical appointments and other health related appointments at least 48 hours beforehand indicating its nature, the time, place and practitioner, and provide authority (if required) for the other parent to receive whatever information from the practitioner as is reasonable.
That both parents are authorised to receive all notices relating to school and extra-curricular activities and are able to attend such activities with the children.
That the wife and the husband are to keep each other advised of their address and telephone numbers and advise the other of any change within 48 hours of such change occurring.
That the parties are to each sign all documents and do all acts necessary to cause an Australian passport to be obtained for the children and once obtained the passport is to be held by the husband.
That in the event that the children are to travel out of the Commonwealth of Australia during the time that the children are living with or spending time with either parent pursuant to these orders:
(a)the parent shall give the other parent at least 28 days’ written notice or as otherwise agreed of the intention to so travel including all details of the proposed travel including mode of travel, countries to be visited, addresses and contact details of where the children will stay and an itinerary.
(b)In the case of any travel with the wife, the husband is to make available the children’s passports for such travel no later than 14 days prior to the commencement of such travel and the wife is to return the passports to the husband within 14 days of the children’s return.

PROPERTY

That the husband and the wife do all acts and things required to distribute the funds held in the controlled money account, the Commonwealth Bank joint account and the St George Bank joint account in the following manner and priority:
(a)The sum of $15,000 to the Legal Aid Commission of NSW in payment of the costs of the Independent Children’s Lawyer;
(b)The payment of the fees of Dr C in relation to his attendance at Court on 1 May 2018;
(c)Fifty five (55) per cent of the balance remaining to the husband;
(d)The sum of $3,500 to the husband;
(e)The sum of $250 to the husband;
(f)The sum of $5,084 to the husband;
(g)The balance to the wife.
That the husband and the wife do all acts required to transfer to the wife the jointly owned S shares.
That:
(a)The Court allocates as required by s 90MT(4) of the Family Law Act, a base amount of $65,106.60 to the wife out of the husband’s interest in the D Super Plan.
(b) In accordance with s 90MT(1)(a) of the Family Law Act, the Court:
(i)Creates an entitlement on the part of the wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(ii)Makes a corresponding reduction in the entitlement of the husband, or such other person to whom a splittable payment may be made, would have in the fund but for these orders.
(c)Whenever the Trustee of the fund makes a splittable payment out of the husband’s interest in the fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in Order (25)(a) of these Orders in accordance with the requirements of the Family Law Act and the Family Law (Superannuation) Regulations 2001.
(d)These orders have effect from the operative time and the operative time is four business days from the date of service of these orders on the Trustee.
That the wife’s application for spousal maintenance is dismissed.
That the wife’s application for costs is dismissed.

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 Longley & Longley 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: SYC 5347 of 2015

Mr Longley

Applicant

And

Ms Longley

Respondent

REASONS FOR JUDGMENT

Mr Longley (“the husband”) and Ms Longley (“the wife”) commenced living together in 1991 and married in 1998. They separated under the same roof in January 2014 and finally separated when the husband left the matrimonial home with the children on 28 December 2014, the wife remaining in the home.
They have two children, Y born in 2002 and X born in 2005.
Since separation the children have lived with the husband and spent limited time with the wife.
Neither of the parties had any substantial assets at the commencement of cohabitation.
In 2006 the parties purchased a property at Suburb E for $717,500 with a mortgage of about $500,000 (“the former matrimonial home”). There is no evidence about how the balance of the purchase money was provided and I have therefore assumed that the monies were saved by the parties during their cohabitation.
In 2013 they purchased a home and land package in Queensland for $400,000, the purchase money being entirely borrowed.
During the course of the marriage the husband’s income was significantly higher than that of the wife. The wife did not work between 2002 and 2011 and after that worked part-time.
In October 2014, shortly before the parties physically separated, the wife drew down $50,000 from the mortgage account secured against the matrimonial home.
The husband contributed significantly both to the care of the children and the running of the household prior to separation.
The wife remained living in the Suburb E property for a few months following separation and has retained the whole of the contents of the property.
In late 2015 the wife’s primary residence was with Mr B with whom she formed a relationship. Mr B is the father of X’s best friend, F.
At the time the parties separated in December 2014 there was a joint Commonwealth MasterCard with a debit balance of about $25,000 and a St George Visa card in the name of the husband which also had a balance of about $25,000. The husband, from his own funds, paid $25,665 off the joint credit cards in November 2014 and closed the cards. There was a balance then owing of about $25,000 on the St George Visa card.
Following separation, the husband continued to make the mortgage payments on both properties. The husband deposed that he had paid $91,851 from his after tax income towards mortgage payments. When the husband was unable to continue to pay the mortgage payments, default notices issued in November 2015 and again in June 2016.
The husband attempted, unsuccessfully, to negotiate with the wife to sell the two properties. They reached an agreement to sell in July 2016 but the wife resiled from that agreement. Ultimately he filed an application which came before the Court on 13 September 2016 and the wife consented to orders being made providing for the sale of the properties and the payment of $50,000 to each party by way of partial property settlement.
The Queensland property was sold for less than the mortgage liability. The husband paid $6,549 to St George Bank to make up a shortfall in mortgage payments and the agent’s commission on settlement of the Queensland property.
In addition, the husband paid the costs of marketing, remedial building work and a building inspection in relation to the Suburb E property in the sum of $10,169.
Subsequently, on 10 April 2017, an agreement was reached that each party would receive a further $50,000, also by way of partial property settlement.
On 13 June 2017 an agreement was reached that the wife receive a further amount of $10,000, although the nature of that payment was unqualified.
At the time the matter came before the Court the net proceeds of sale of the former matrimonial home at Suburb E, now totalling $473,303 was held in trust. Apart from superannuation owned by each of them they had no other significant assets.

The Hearing

The husband relied on an affidavit sworn by him on 2 February 2018 and a Financial Statement sworn 9 June 2017.
The wife relied on an affidavit sworn by her on 31 January 2018 and a Financial Statement sworn 3 May 2017. The wife’s partner, Mr B, did not swear an affidavit and did not give evidence although he was in Court throughout the proceedings as the wife’s McKenzie friend. The wife represented herself.
An Independent Children’s Lawyer (“ICL”) was appointed for the children.
The Court had the advantage of a report from a single expert, Dr C, a child and family psychiatrist, who was cross-examined.

PARENTING

The husband seeks orders that the children live with him and spend time with the wife, during term time, each alternate weekend from after school Friday until 5.00 pm on Sunday. He seeks further orders that X spend time with the wife from after school until 7.00 pm each alternate Monday and that Y spend time with the wife after school until 7.00 pm each alternate Tuesday.
The husband also seeks orders that the children spend holiday time with the wife during the long summer holidays in three blocks of five days, and during the short holidays for a period of seven days in each holiday. He also seeks orders in relation to specific special occasions.
The husband proposes that any overnight time spent by the children with the wife should be subject to the condition that the children have their own rooms. He did not seek to continue the restraint on the wife from bringing the children into contact with Mr B.
The wife, until just prior to the commencement of the hearing, sought orders that the children live with each parent on a week-about basis.
The wife changed her application at the commencement of the hearing and sought orders that X live with her on a week-about basis and that Y live with the husband and spend time with her each alternate Saturday night.
In the alternative, she sought an order that X live with her from after school Friday until the commencement of school on Monday in each alternate week and overnight every Tuesday; and that Y spend time with her on alternate weekends from 5.00 pm on Saturday until 5.00 pm on Sunday and on Monday in the other week from after school until 7.00 pm.
The wife also sought orders for school holiday time and other ancillary orders.
The Court was assisted by a report from Dr C who saw the family in August 2016 and prepared a report dated 5 October 2016.
Y has been diagnosed with autism and attends a special needs school. He has limited verbal skills and the husband described his behaviour as being, at times, challenging and difficult to manage. Both parties agree that Y has difficulties with incontinence and hygiene and that his verbal skills are very limited. He is unable to give his address or telephone number. The Department of Education has arranged transport for Y to and from school due to his disability. He requires constant supervision and care. Both parties agree that Y will require a high level of ongoing care after he is an adult.
On 19 December 2013, an incident occurred that had a long ranging effect on the future relationship between the husband and Mr B. The wife took X for a sleepover at Mr B’s house. It is not in dispute that X and F slept in Mr B’s bed.
In a statutory declaration made on 14 April 2016, Mr B gave his version of that event in the following terms:
Sleep over agreed by both parents … for daughter [X] approx. 2 years ago at [Mr B’s home]. Both children were set up in [F’s] own room with appropriate bedding and to sleep. [F] (not unusual asked to come and sleep in my bed which is very normal per above). At approx. 1.00am in the morning [X] requested permission to sleep next to [F] as she was scared and begged same. I allowed [X] to sleep next to [F] given time and circumstance relationship parents and children [F] and [X] [sic]. I vacated the bed once both children were asleep to retire in [F’s] bedroom. The next morning I suggested to [X] that it may not go down too well if she told her parents that she slept in my bed as I believed they possibly would not understand the circumstances. The circumstances have never been explained to date as nothing eventuated as a result …
X told the husband that she had slept in Mr B’s bed with him. The husband deposed that he raised the incident with the wife who was aware of the sleeping arrangements but was unconcerned. In cross-examination, the wife said that she was not concerned about the incident but she conceded that Mr B’s suggestion to X that she not tell her parents was a matter for concern.
X was referred to a psychologist, Dr G, in September 2014.
After the physical separation of the husband and the wife in December 2014 the husband moved with the children to live with his mother in Suburb H.
Thereafter, the arrangements for the care of the children, primarily, that the children would live with the husband and spend time with the wife, were unpredictable and somewhat chaotic.
The wife was self-represented in the hearing and her affidavit evidence was scant. There was no real challenge to the husband’s evidence about the children after separation or about his parenting of the children while the parents lived together.
The husband deposed that on 24 January 2015 the wife took X without notice from a birthday party that she had been attending. X was upset and asked the husband to collect her from the local shopping mall.
The husband deposed that on 28 January 2015 he and X attended at the wife’s residence to pick up X’s school uniform and bag. The wife refused to give the items to the husband and forcibly tried to restrain X. There was yelling between X and the wife. X ran away and got into the husband’s car.

Following the incident on 28 January 2015, the husband and the wife discussed the issue of appropriate arrangements and agreed that each Sunday the husband would take the children to the nearby aquatic centre where the wife would spend time with them. The wife did not attend for four weeks and attended for the first time on 1 March 2015.
The parties also agreed that they would all have dinner together at the former matrimonial home in Suburb E, where the wife was living, each Wednesday evening. The arrangement was cancelled once on short notice by the wife but they attended from early February 2015. On the husband’s suggestion the wife continued to see the children on three days of each week and regularly attended X’s swimming on Friday nights from March 2015.
On 7 April 2015 the wife picked up X but did not return her. X sent the husband a text message saying, “Mum asked me to say this” and “I want to spend time with Mum”. The next day X told the husband that the wife had yelled at her to send the message.
On 24 April 2015 the husband and the wife attended mediation and agreed that the children would not visit or stay at Mr B’s house. They also agreed that the children would spend Sundays with the wife until 5.00 pm; that X would spend Monday after school until 7.00 pm with the wife; and that Y would spend Tuesday after school until 7.00 pm with her.
Later on 24 April 2015 the wife sent a text saying that she would go to see the children after swimming that night but she did not.
On 25 April 2015, the wife messaged X asking her to go and play at Mr B’s house.
On 26 April 2015 the wife took the children to Mr B’s house for the day. Again on 27 April 2015 the wife took X to Mr B’s house after school. When the children were returned home, the husband objected to the children being taken to Mr B’s house and there was an argument in X’s presence. X recorded some of the argument on her phone.
On 28 April 2015 the wife attended X’s school and spoke to X on the playground. The husband deposed:
She made [X] get her phone and deleted a number of recordings that [X] had taken of her shouting at me. As a result the school contacted me and [the wife] and I understand told us both that if we want to see the children in school time it must happen in the office.
In cross-examination the wife agreed that she had attended at the school and caused X to delete recordings on her phone but denied that the recordings were of her shouting at the husband.
On 28 April 2015 Mr B sent a text to the husband which read:
It has come to my recent attention communication by [the husband’s solicitor] that u have made 2 unfounded allegations in writing relating to myself that I have a new partner and that I have engaged in an act of pedophilia [sic]. I wish to be very clear that I assume u can substantiate same and that if u fail to we will be claiming damages, defamation and all costs on both accounts. Always remember there are two sides to any story. You will be receiving our advices regarding your allegations shortly.
On 15 June 2015 the wife caused a letter to be written by her solicitors to the husband asking that the children spend half the upcoming school holidays with her. The husband and the wife reached an agreement which was that the children would spend the first week of the holidays with the wife but that they would not stay overnight. The wife saw the children on 28 June 2015 in accordance with the agreement and then refused to return them to the husband. Initially the wife did not respond to any communication from the husband and the children were not allowed to contact the husband. On 5 July 2015 they were returned to the husband.
On 31 July 2015 the wife attended X’s school early and took X. When the husband arrived to collect X the wife was still there. When X saw the husband’s car she ran across the school ground to the husband. The husband deposed that the wife shouted at X and X was upset and crying.
On 4 August 2015, when Y was in the care of the wife, Y called the husband using FaceTime. He was in a shopping centre and did not know where the wife was. The husband recognised Y’s surroundings and then located the wife who was in a store.
On 10 August 2015 the wife collected X from school in accordance with the arrangement which had been in place since April 2015. That evening she sent the husband a text saying she would not return X. The husband insisted that X be returned and the wife then sent a text saying that she had had a few drinks and it was unsafe for her to drive. Around 8.30 pm the husband drove to Mr B’s home where the wife and X were. He asked to speak to X. The wife shouted at him through the door and threatened to call the police. X was crying and the husband deposed that he heard her say a number of times “I wanta see Dad. I wanta go to Dad”. The husband saw X run towards the glass doors and try to get through and saw the wife pull X back hard and X fell to the floor. The husband deposed:
[X] was on the floor curled up and crying. The wife shouted at her “No. You are not going.” I tried to ask [X] is [sic] she was okay. [The wife] shouted “Does she look okay?”. I said “No she doesn’t look okay”. I was then confronted by [Mr B] and threatened to leave the property. I was concerned about the level of conflict, especially in front of the children, and left the front door and was walking towards the street where I was greeted by the police on the driveway.
The police officers told the husband that X was tearful and saying she wanted to go home but the wife would not agree. The officers told the husband that they had spoken with the wife about avoiding a repetition of such an incident by retaining the children and that the wife had said it would not happen again and she would stick to the agreement.
On 10 August 2015 Mr B sent the husband a text which read:
Just so we r clear do not ever come to this premises unless invited. I have reported u to the police for tress passing [sic] as I advised when u refused to leave…
Now I will need to decide to press charges or not…
The following day the husband attended X’s school with her sports uniform which he handed in at the office. The husband spoke to X’s teacher. The teacher said that X had disclosed to her that she had been upset and wanted to go home the previous night but the wife had stopped her leaving and that she had hurt her hand. The teacher said that X was very upset and that the situation was disruptive to the whole class. The teacher indicated to the husband that X was fearful of the wife coming to pick her up early from school in case a repeat of the incident occurred and that the school was concerned about conflict on the premises.
The husband deposed that he picked X up from school at about 2.00 pm that day to take her to her general practitioner. He observed a small bruise on X’s forehead at her hairline and a slight swelling on the little finger of her left hand.
On 11 August 2015, after the arrangement had been in place for some three months for Y to spend Tuesday evenings with the wife, the husband texted the wife to confirm that she would be returning Y but received no response. At about 8.20 pm Y called the husband on FaceTime. The husband deposed:
He was agitated and said he wanted to come home. He was speaking quietly and looking around. I formed the opinion he was hiding his call. I understood that he was at [Mr B’s] house. I then heard [the wife] shout loudly at Y and the call was abruptly terminated with [the wife’s] face clearly visible on the screen.
The husband, concerned for Y’s welfare, asked for help from Suburb J Police. While the husband was present a police officer telephoned Mr B’s house but the telephone was not answered. The police sent a car to the house but the door was not answered when they knocked. Both children were sent to school the next day.
On 14 August 2015 Dr G, X’s psychologist, wrote a letter to each of the husband and the wife stating:
I am contacting you out of a duty of care to [X], to express concern for her emotional and psychological wellbeing in the context of ongoing care disputes and her consultation with me yesterday (13^th August).
Concerns for [X]
[X’s] care arrangements are unpredictable and changes are often made without consultation or regard for her opinion. This is detrimental for any child, and I am concerned that [X] is becoming increasingly distressed by the recurrence of this and the apparent disregard for her feelings about it. I am also concerned at ongoing reports of screaming and shouting from [the wife] – either to [X] or [the husband] around care arrangements as well as an increase in physical force from [the wife], to control [X] at these times.
My concerns include:
·Previously agreed activities (e.g. agreement to attend a circus with both parents at a set time) being changed at short notice and without consultation (e.g. [the wife’s] decision not to attend the circus at the agreed time but to attend at an alternate time instead, without [the husband]). This distresses [X] a lot.
·Ongoing failure to stick with predictable care arrangements.
oI understand that the agreement is for [X] to see [the wife] on Sundays and Mondays and for her to return to [the husband] on each of these nights. Prior to Mondays I understand that [X] saw [the wife] on Wednesday evenings and that these evenings were regularly cancelled by [the wife] leaving [X] confused about care arrangements and insecure as to [the wife’s] priorities.
o[X] has been very distressed on a number of occasions, that [Ms Longley] has ‘taken’ her without notice on additional times (e.g. picked her up from school on other days), turned up at school unannounced to tackle a concern (e.g. to delete recordings on [X’s] phone) or extended [X’s] stays without prior agreement or notice, and despite [X’s] objection (e.g. last Monday). [X] has been very distressed by these episodes.
·High emotional stress around care arrangements.
o[X] experiences [the wife] as screaming at her, displaying high emotional distress and being dismissive or having a disregard for [X’s] own distress when care arrangements are changed. [X] described being collected from school on a Friday by [the wife] and driven to [K School] to collect her friend, [F]. X then saw her father at [K School] and ran to him. She reports [the wife] ‘screaming’ at her to come back. These episodes are highly distressing for [X]. [X] has recounted several of these episodes including an occasion at [Suburb L] Mall shopping centre and at her mother’s.
Impact on [X]
[X] talks about being ‘taken’ and ‘hidden’ by her mother and is becoming increasingly fearful and anxious about seeing [the wife], both for fear of not being allowed home to her father and for fear of being screamed at and her feelings being disregarded. She is also anxious about [the wife] turning up unannounced at school. In her last session she indicated her left shoulder/chest area and described pain in this area when she thinks about her mother turning up at school. Indeed, she reported that this pain has forewarned her of [the wife] turning up.
[X’s] chronic anxiety at the unpredictability of her care and fear of being ‘taken’ are very concerning. Not only is sustained anxiety detrimental to her emotional and psychological wellbeing, it is also detrimental to her learning. Anxiety impedes learning, memory and attention. Sustained anxiety will impede [X’s] ability to learn and progress academically. I understand that [X] has the support of her class teacher and is able to talk to her about her concerns. It is a concern however, that her emotional state is impacting on her school day, potentially distracting her from learning.
The recurrence of situations in which [X] is effectively ‘fought over’, the ongoing unpredictability of her shared care, the failure to heed her requests to go home or her distress at being forced to stay with [the wife], as well as enforcing changes in her care without consultation or prior notice to X are all detrimental to [X]. This pattern suggests a disturbing lack of awareness as to the impact of these situations on [X], and a concerning disregard for her emotional wellbeing and opinion.
I have observed an increase in [X’s] distress in her sessions, her play in her last session (13.8.15) was violent and disorganised and centred on dolls hurting one another and hurling one another across the room or off the roof of the dolls house. This increase in distress followed [X] relaying the incident on Monday night (11.8.15), when [the wife] refused to take her home to [the husband] on the basis of not being safe to drive. I understand that [the wife] then refused to let [X] go home with [the husband] when he came to the house to collect her. [X] reported being physically hurt on her forehead and finger as a result of [the wife] pushing her back from the door and her landing on the floor and hitting her head on the wall. [X] was also distressed at the police attendance and at not being returned home to [the husband], despite asking for this.
[X’s] experience of unpredictability, being forced to stay with [the wife], without notice and against her will, feeling screamed at and discounting her objections, are likely to further impair her relationship with [the wife]. These experiences are increasing her resentment and frustration towards [the wife] and making her more insecure in her attachment to [the wife]. Insecure attachment is associated with poorer self esteem, poorer problem solving including social problem solving skills, less independence, poorer self soothing ability when distressed and more anger towards parents, amongst other significant social-emotional outcomes.
As I have previously discussed with both of you, [X] shows early indicators of poor body image and disordered eating. This is reflective of a poor ability to self soothe and regulate distressing emotion. These indicators, make [X] her [sic] further vulnerable to the ongoing conflict and unpredictability of her care. [X] is also at risk of developing a mood disorder, in the context of ongoing, unpredictable, conflict ridden care arrangements and an ongoing fear of being ‘taken’ against [sic] by her mother.
It is vitally important for [X’s] emotional and psychological wellbeing and development, as well as her social and cognitive development that this situation is resolved. [X], needs predictable, conflict free care arrangements and parents who are sensitive to her needs and emotions.
I appeal to you, to place [X’s] needs first in managing her shared care and to prioritise predictable, conflict-free care arrangements for her.
After receiving the letter from Dr G the husband filed an application for interim and final orders in the Federal Circuit Court which was made returnable on 2 December 2015.
On 16 August 2015 X told the husband that she was very anxious about seeing the wife and worried that she would be kept overnight again. X also said that she was unwell. The husband cancelled the overnight time and advised the wife.
On 17 August 2015 the husband received a text message from the wife and a letter from her solicitors indicating that she would be retaining the children overnight, unilaterally.
There were a series of text messages between the husband and the wife on that day. At 3.05 pm the husband texted “Please confirm that you will be bringing [X] home this evening”.
At 7.14 pm the wife texted:
Per solicitor correspondence which I have discussed and shown to [X] she will be staying with me on Monday nights. Feel free to call the police, however best to stay away as this time u will be charged with trespassing. I have also advised the police same case number of same [sic].
At 7.19 pm and 7.26 pm the husband sent the following messages:
You are well aware of the concerns from [Dr G] which you are choosing to ignore. A response has been sent to your lawyer informing that [X] is not to be staying over. So you are deceiving [X] by just showing het [sic] a request from your lawyer NOT an agreement for her staying.
So from your msg I know you again have her at [Mr B’s] residence and not where you say you reside. Do you not live at the [Suburb E] residence anymore?
The wife responded “X is safe and in my care”.
The husband then replied:
I want to say goodnight to [X]. Also I expect that both her uniforms, shoes etc will be in her bag so she can bring them home.
I also hope that she will be sleeping in her own bed and not with others or on an inflatable on the lounge floor as she was initially last week.
On 23 August 2015 Y was unwell. The husband arrived at the changeover and the wife suggested that he keep Y. Mr B was present and told the husband that he did not want any sick children around but that X should stay. The husband told Mr B that X was also starting to feel unwell. Ultimately, both children stayed with the wife. The husband deposed that:
When the children were returned [X] was quite distraught and in tears. [X] talked about how she thought her discussions with [Dr G] were private. She then told me that [the wife] had read [Dr G’s] letter to her [and] was shouting at her and blaming her.
In cross‑examination the wife agreed that she had yelled at X about the contents of Dr G’s letter and that X was distressed.
On 25 August 2015 Dr G wrote a further letter in which she stated:
I am very concerned for [X’s] ongoing emotional and psychological wellbeing, following my letter to both parents (14.8.15) in which I expressed concerns for [X]. I understand that [the wife] read this letter to [X], and challenged her about it, to [X’s] distress and surprise. In doing this, [the wife] has caused [X] further anxiety and distress and compromised [X’s] therapeutic relationship with me.
It is inappropriate and emotionally damaging to involve [X] in adult discussions about her wellbeing, how best to prioritise her needs and negotiate her care. [The wife’s] actions in sharing this letter with [X] and tackling her about it, suggest an inability to prioritise [X’s] wellbeing or to reflect on how her own behaviour and emotions impact on [X] and their relationship. Her actions suggest an inability to recognise what is appropriate to discuss with a 10 year old child. I am concerned at [the wife’s] poor self regulation with [X], with the consequence that [X] is now reportedly experiencing heightened anxiety and emotional distress and feeling blamed by her mother.
[X’s] therapy sessions will be less effective if she is on-guard, concerned that her behaviour and comments will be used against her later by her mother. This in turn, leaves [X] less supported at a time when she is vulnerable emotionally and psychologically.
I am very concerned at the ongoing emotional/psychological harm on [X] of her mother’s behaviour and comments to [X]. I wonder if supervised time, may help [Ms Longley] to better regulate her emotions and actions during these visits, to set clear boundaries as to what is and is not appropriate to discuss with [X] and to help [X] to feel emotionally safe with her mother. I am concerned at the long term impact that [Ms Longley’s] behaviour is having on [X] and their relationship.
On 20 September 2015 X told the husband that on the way home that evening, the wife had pulled the car over on the side of the road and screamed at her to get out of the car. Y and F (X’s friend and Mr B’s daughter) were in the car whilst the wife berated X on the side of the road.
X told the husband that earlier that day they had visited Mr B’s residence to collect F and Mr B had confronted X and asked her why she felt uncomfortable at his house. X told the husband that Mr B said that if she was uncomfortable at his house then F and X could not be friends.
On 25 September 2015 the wife took the children, with Mr B and some of his family, into the city. X told the husband that Mr B had deliberately mocked her about her unwillingness to go to his house.

On 30 September 2015 the husband arranged a play date between X and F at F’s mother’s home. Mr B had attempted to call the husband four times in the space of two minutes. When the husband arrived at F’s mother’s house, she informed him that Mr B had sent her a text message which read, “Did u arrange [X] to sleepover behind my back? I will now unleash on [M].” The husband deposed that ‘M’ is a name which Mr B uses when referring to the husband. I infer the reference is not intended to be flattering.
On 1 October 2015 Mr B sent a text to the husband which stated, “I will now be in touch with [the husband’s solicitor] false unfounded allegations FYI have a great day”.
On 24 October 2015 the husband was preparing to take X to a school camp. Y was to stay with the paternal grandmother. The wife arrived at the husband’s home unexpectedly and said she wanted to take Y to a fair. The husband agreed. A short time after the wife left with Y, the police arrived and informed the husband that the wife had called them and reported that he was denying her access to the children.
On 24 October 2015 Mr B sent an email to the husband addressing him as “[M]”. The text read:
[M] as it appears u r too weak and spineless to return my msg or answer my calls regarding Halloween after u rudely hung up on me yesterday. I have no choice but to msg u. Firstly it appears u r confused on multiple levels. Let me clarify… I am the primary carer for [F] as [F’s mother] is the primary carer for [N] at their respective requests. As such anything to do with [F] must come via me as does anything to do with [N] comes via [her mother]…! Fairly fucking obvious I would have thought. And no this will not change any time soon I can assure you. As [X] is best friends with [F] my daughter your continued unfounded defamation towards me is disrupting their friendship and clearly not in the children’s best interests. it is obvious this is to suit ur pathetic agenda and your … exposed in court. Can’t wait ... Ur pathetic affidavit is false and unfounded on many levels. [The wife] is not my partner I simply support her through a very difficult time. Secondly u refer to a sleep over incident X and refer to my sexual references to same. So u know and [your solicitor] will receive my response defamation shortly. X begged the request to join F (next to her) in my bed at which time I vacated the bed once asleep. I have prepared a full stat dec with all details regarding same as annexture [sic] to response for court. So if u wish to continue with unfair access between parents, I am happy to get involved regarding court and happily witness and assist. I am extremely assertive same and will be very focused. Lastly u r social reject as evidenced by the huge amount of friends u have and ur many interests. In fact u r so boring I would rather watch … sure many feel exactly the same. U have no life what so ever which is obviously to everyone and is part of the reason you have retained the children. Thanks for reading the msg. Have a great day.
On 31 October 2015 Mr B messaged the husband:
Morning retard. As u failed to communicate with me regarding Halloween [F] will not be trick or treating with [X] so we clear. I have arranged other friends for her…
And Yes I allowed [F] to txt [X] this morning
As [X] has told [F] that u do not allow her to FaceTime or txt when she is with me which is most of the time and will be documented same in affidavit….so we r clear…
X told the husband that on 15 November 2015, when she was in Mr B’s car with the wife and F, she asked if she and Y were going home soon. X said that Mr B became angry and swore at them. At 5.38 pm Mr B texted the husband, “Kids will be dropped home after Sunday night dinner incase u r confused”.
On 22 November 2015 the husband had arranged to take the children to a show and reminded the wife by text that they needed to be home by 5.00 pm. At 5.04 pm the husband received a text message from Mr B which read, “Ur bullshit is interrupting my daughters friendship. Ur kids will be home after dinner. This is my decision any issues u deal direct with me”.
Shortly afterwards, Mr B sent a further text message, “[X] said she is going to [church]. [The wife] will meet u there shortly.”
At 6.09 pm Mr B sent the following text message to the husband, “I have dropped ur children to [X’s mother’s] house. Go and collect them now”.
At 6.13 pm Mr B sent a text message to the husband which read:
Moving forward on Sunday the kids will be returned after dinner. My house my rules. Nobody on this planet dictates to me so ur r [sic] clear. Suggest u position this with [X] as ur bullshit causes anxiety for her and is interrupting her relationship with [F] which I will not tolerate…
When the husband collected the children that evening Y told the husband that Mr B had shouted at him and that he had felt scared and did not want to see Mr B. X said she was happy to see the husband and that Mr B had been shouting and swearing at them and calling her stupid.
On 27 November 2015 Mr B sent an email to the husband’s solicitors. Although the letter is stated to be “without prejudice save as to costs”, since Mr B was not a party to the proceedings and was not a legal practitioner acting on behalf of the wife, it was allowed into evidence. In that email Mr B stated:
I wish to advise that a number of points in your client’s affidavit amongst other correspondence are inaccurate, unfounded, defamatory and untrue some of which are listed below;
·Unfounded Defamatory comments and insinuation regarding myself in relation to sexual interference
·I have not Re partnered with anyone, [the wife] is a friend and I am a single dad
It should be noted that the insulting amount of time that your client bullied [the wife] into agreeing to referencing an unenforceable mediation agreement being approx. 5% access of a 168 hour week with both children and approx. 4% access of a 168 hour week singular access for each child is nothing short of disgusting. Irrespective of any amount of your client’s expert or psychologist responses that are out of context (and suit his agenda) focusing only on events that he himself is partly responsible for, you and I both know this statistic alone will be viewed dimly by the court.
Your client has denigrated and exasperated the situation as a result of marriage breakdown motivated by both spite and genuine child best interest. This has caused anxiety with the children who only want to please daddy in his agenda to alienate the children’s mother …
So you are aware [the wife] makes no apology whatsoever for her attempts to see her children over and above the insulting amount of time she was forced under duress to agree to.
I have recently decided to focus on this and assist the affidavit response same [sic]. It will be damming in line with your client’s response to child sharing arrangements to date.
As a high profile member of the community I will need to decide whether to take action regarding the defamatory comments and insinuation made by your client amongst other things.
Irrespective of denigrated child view and requests, I see no other option other than an independent court appointed expert to assess the situation and a decision made by the court regarding a fair child sharing arrangement moving forward.
We will note in our response that you have been made aware before the court date of inaccurate, untrue and unfounded allegations by your client referencing this email.
I thank you for your time and we confirm there will be no direct response to your most recent correspondence dated 25 November 2015 in line with your non response to multiple requests from …
On 2 December 2015 orders were made by consent in the Federal Circuit Court which provided for X to continue to attend upon Dr G for so long as Dr G considered necessary. The orders also provided that whilst spending time with the wife, the children were restrained from spending time with Mr B. The orders also restrained each of the parents from discussing the dispute with the children and from showing them correspondence or reports in the matter.
On 2 December 2015 Mr B sent a text to the husband which read:
U were very lucky I was in [Asia] today. Won’t be the case in April court case. Have a nice day…
On 3 December 2015 Mr B sent a text to the husband which read:
Ur document point 2 will be appealed within the 28 day appeal period. I will be there. U will need to justify same. [Dr G’s] correspondence won’t help either. Don’t like ur chances. Good luck…!
Snitching to [F’s mother] u r so pathetic is actually laughable … Too funny have a great day…
On 5 December 2015 Mr B texted:
I will be taking [F] to dance and collecting her including concert until term end FYI. Until appeal is heard I suggest u remove [X] from dance or take her there yourself. The appeal will also include this communication…
[X] will not be invited to [F’s] party … as previously was the case FYI …
[F] will also be advised of the reasons and the fact that u r the instigator of same. communications will be placed on social media outlining the situation so as to reference comment and feedback.
As the primary carer of [F] the court will also be made aware that clear documented denigration is present and the best interests of the children are not foremost.
Have a great day as I will be taking approx 15 children [to an activity]…
The consent orders of 2 December 2015 provided for the children to spend time with the wife each Sunday from 11.00 am until 7.00 pm during school term time, for X to spend additional time with the wife from after school until 7.00 pm each Monday and Y from after school until 7.00 pm each Tuesday. Commencing in Term 1 of 2016 both of the children were to spend time with the wife from Thursday after school until 7.00 pm, from 8.30 am to 7.00 pm for two blocks of seven consecutive days during the 2015 Christmas school holidays, and from 11.00 am to 8.00 pm on Christmas Day 2015.
On 7 December 2015 Mr B wrote a further letter to the husband’s solicitors which read:
Without prejudice I understand you represented and encouraged a federal court judge on the 2^nd December 2015 based on your client’s instructions and evidence to restrain me from being anywhere near their children [Y] and [X] whilst the children are with their mother … on her allotted days with the children.
I have advised [the husband] that I will be taking my daughter [F] (X’s best friend) to dancing at 4.30pm today same dance school that [X] attends.
I am letting you know under my lawyer’s instructions that I will continue to take my daughter to her dance school and to her end of year concert as I am the primary carer for [F] who lives with me fulltime at my place of residence.
Additionally this particular restraint item 2 on the interim orders will be appealed and a Stay process initiated immediately.
I [sic] the interim I give you advance notice in good faith and look forward to resolving this matter swiftly and fairly as currently is not the case.
Thank you and have a nice day …
The wife lodged an appeal against the orders of 2 December 2015 but the appeal was later withdrawn.
The wife refused to comply with the order in relation to Dr G and on 11 December 2015 sent an email to X’s general practitioner indicating that she did not consent to X’s attending any further visits with Dr G. A copy of that email was also sent to the husband’s solicitor.
On 13 December 2015, Mr B sent to the husband a photograph of F and X at their dance class. The husband, reasonably, interpreted that action as “clearly indicating that he was in their presence and wanting to show me that”.
On 25 December 2015 Mr B texted the husband, “Hi [M]. Incase u r confused my team and I have now taken over have a nice Xmas day…!”
After the release of the report of Dr C in November 2016, the ICL organised a settlement conference. An agreement was reached but the wife left the conference before the agreement was concluded and repudiated the agreement.
On 6 February 2016 Mr B texted the husband:
Hi [M] pls keep the 7th March 10.00 am free. I will see u there and yes I have taken over in case ur confused including all material to ensure a fair outcome that I am happy with …
On 27 February 2016 Mr B texted:
Dear [Mr Longley], as u have now upset my daughter for her 10th birthday my barrister is taking full instructions from me (yes that’s my barrister) around child and financial matters in case u r confused. C u on the 7th March and yes I wrote all documents post 2nd December Incase ur wondering to save as to costs coz I can … Have a great weekend …
On 16 December 2016, orders were made which provided for the wife to have overnight time with the children at the home of an acquaintance, Ms D. Overnight time occurred on three occasions, the last on 9 January 2017. Ms D wrote a letter to the husband on 6 February 2017 indicating that she would no longer permit the wife to stay at her home.
In the first term of 2017, the children spent one overnight period with the wife at Town T in holiday accommodation. On the second occasion, they travelled with the wife and Mr B to the U Area but had no accommodation booked and returned to Mr B’s home. X and F slept in the car that night outside Mr B’s home. In cross-examination, the wife said that the children were happy to sleep in the car but did not explain why it was either appropriate or necessary for them to do so.
On 27 April 2017, the wife arranged for Y to be sent home early and without notice to the husband. In cross-examination, the wife said that she had not contacted the husband because he would have been at work but that she telephoned the house to make sure that the paternal grandmother was home. The paternal grandmother is 84 years old and the wife, in cross-examination, said that she has dementia. It is difficult to understand why, if the wife believed that the paternal grandmother suffered from dementia, she thought it appropriate to return Y to his grandmother’s care.
On 13 August 2017 X sent a text to the husband indicating that they had spent the night at Mr B’s home.
On 10 September 2017 X sent a text to the husband indicating that they had spent the night at Mr B’s home. X said:
I am so upset because we slept over at [Mr B’s]! Mum probably thinks that she can now do that when ever she wants because she got away with it the first time … I am not happy at all and I don’t want to sleep at [Mr B’s] I am really not happy at all
On 28 September 2017, X contacted the husband to tell him that Y was being taken home early. At about 2.00 pm the husband was informed that Y had been dropped off at home by a taxi. The husband’s sister had to pay the shortfall in the taxi fare. In cross-examination, the wife again said that she did not contact the husband because he was at work. She conceded that Y did not know his address or how to contact his home by telephone if something had gone wrong.
The following day, Y was again taken home early by an Uber driver. They arrived at about 3.45 pm but no-one was home. Presumably Y was taken back to the wife. Y was later dropped off again at 5.30 pm after the wife rang the home to make sure that someone would be there.
On 5 November 2017 X sent the following text messages to the husband:
Dad mums really upset
She’s crying and going on about court
And now she doesn’t want todo [sic] it anymore
And saying that she can’t stop acting happy and inside she’s dying
And it’s making me upset
And she said she will end up on the street
The husband replied, “That’s too much to put on you”.
X responded:
I said why are you putting all this on me
And she said because [sic] is on you and for you to make a difference
And she’s shouting
And I feel upset because I love her so much but she makes me feel like I ruined her
On 19 November 2017 X sent a text to the husband saying:
I’m so sick of this!!
We slept over at [Mr B’s] again and I can’t even remember a time that we went to mums apartment
Although I didn’t see [Mr B] or mum last night I didn’t like it
On 12 December 2017 Mr B texted the husband, “U must be very excited about the new gay marriage laws…”
On 14 December 2017 Mr B texted the husband:
Dear [M] I note ur current parenting orders are completely outdated relating to ur pathetic restraint. As such FYI [X] is with me in my care at her specific request attending a musical with my daughter [N]. I note [X] is reaching relative maturity and is capable of making her own decisions. I further suggest ur recent txt responses may be used in further affidavit material discouraging your daughter friendships [sic] and activities and to suit your own agenda. Enjoy ur evening…
Later that evening Mr B texted:
Feel free to use this in court material…
To clarify [X] has been in my care on many occasions at her request and consent given her relative maturity. It appears u continue to attempt to exert power of the child again to suit ur own agenda rather than the best interests of the child. Feel free to use this in court…
[X] tells me most things FYI. Suggest compromising the child is simply the act of a monster…
Making YOU a monster…
On 22 December 2017 X sent a text to the husband which read, “Mum making me sleep over and I don’t want to”.
The husband replied “No. You are supposed to come home”. X responded:
She said “you can make your own decisions when you are 12” and i told her I want to go home and I don’t want to sleep over and she seemed so mad and then she is picking up pizza now and then she said “X you are sleeping over its going to be so late” and I don’t want to sleep over
On 25 December 2017 X sent a text to the husband indicating that she did not wish to stay at Mr B’s home but she wanted to go with F to F’s mother’s home but Mr B would not permit it. It would appear from X’s texts that X and Y stayed at Mr B’s home on Christmas Day and Boxing Day.
Shortly after Christmas 2017 the husband sent a text to the wife which read:
Bit of a sensitive topic but I need to mention it. On Christmas Day [X] called and msged me several times distressed. She told me that you had been telling her you wanted to kill yourself. This is not something she should be told as it caused her great distress. She felt trapped as she did want to be where she was feeling so bad but also didn’t want to leave you and cause you any additional distress. Please try not to have those discussions with her and I urge you to seek some professional help if these are thoughts you are feeling.
The wife responded:
Yes because you are driving me to it by continuing to go to court. How do you think this is affecting my relationship with our children? It seems you hate me more than you love our children. Let’s just get this over with and move on with our lives. It’s costing us a fortune and we are just giving it away to the court system. This is affecting everyone and I know you confide in her like an adult. How many times have you been spoken to by professionals and our GP but yet you continue. And don’t be so patronising about getting help. You need it more than I do. What are you trying to achieve by not allowing me access to my own children – don’t you realise you are hurting them and their relationship with their birth mother – they have a right to a nurturing and loving relationship with both parents. We made them together remember??? So I suggest you get some help and 2018 may be the turning point for all of us to get on together and move towards peace and forgiveness.
On 30 December 2017 X sent a text to the husband which read, “Today is going to be a long day ... Mum’s already angry talking about court and money and saying she can’t pay her rent this week”.
The living arrangements in Mr B’s house are complex. Although the Court was led to believe that F lived with Mr B, it emerged in cross‑examination that this is no longer the case and F is now living primarily with her mother. Mr B and F’s mother are engaged in family law litigation about the parenting arrangements for their children.

The wife gave evidence in cross-examination that Mr B’s house has four bedrooms. One bedroom is occupied by Mr B and the wife, and another by a student who is a boarder. The other two rooms were described by the wife as “N’s room” and “F’s room”. There is also a two bedroom flat downstairs which is occupied by O who is a teenager and O’s mother. The wife made passing reference to a “new granny flat” which has two bedrooms and said that it is possible that, on any occasion when X is in her care, she and X might occupy that granny flat. She did not suggest that they had done so in the past. Rather it appeared from the wife’s evidence that when the children have stayed over they have made various makeshift arrangements on an ad hoc basis.
In cross-examination the wife said that she spends most of her time in Mr B’s house and prefers to live there.
The wife rents a two bedroom flat at Suburb J but she also lets out one of the bedrooms to casual tenants using an internet rental site. She did not give evidence or provide any documents which indicated how often the bedroom at Suburb J was occupied by persons who are strangers to the children or how many people at a time are accommodated. The wife said that, when she and the children stay at Suburb J, if there are tenants in the second bedroom, they use the main bedroom and one of them sleeps on a pull out sofa in the lounge area.
The situation is further complicated by the fact that Mr B will not permit Y to stay overnight at his house.
The wife tendered a letter from her current psychologist Ms P. In the letter, Ms P stated that the children had attended a session with her and with the wife. The wife did not seek the husband’s permission to take the children to see Ms P. In cross-examination, she said that she knew that she was required to have his consent and that she knew the husband would not consent. Therefore, she did not ask. The wife conceded that she took the children to see Ms P for the purpose of obtaining a letter which would be of assistance to her in the parenting proceedings.

The evidence of Dr C

Dr C assessed each of the parents and conducted interviews with the parents, the children, and the parents and the children together. He also included Mr B and the wife’s brother and sister-in-law in the interviews.
In relation to the wife, Dr C stated:
Currently, [the wife] is sleeping poorly. She has difficulty getting to sleep. Her appetite fluctuates and she has lost some weight. Her attention and concentration is poor. [The wife] finds it hard to focus. Her mood is depressed. She is constantly feeling stressed and worried about the children. She’s able to enjoy visit [sic] her friends and having dinner and coffee. She had suicidal thoughts but no overdoses or attempts at suicide. There are constant feelings of hopelessness and worthlessness and panic symptoms at times. She avoids crowds and feels overwhelmed. She has headaches and nightmares about the violence from her stepfather who was a schizophrenic. This appears consistent with persistent depressive disorder with some post‑traumatic stress features.
The wife told Dr C that she had moved into Mr B’s home in mid‑2015.
In relation to the orders which prevented the children being brought into contact with Mr B the wife told Dr C:
[Mr B] slept in the same bed with the children. It’s now become court ordered that the children are not to be in [Mr B’s] presence, but what am I meant to do? I am living there. I had to send him away. He’s at work Monday, Tuesday, Wednesday, Thursday and Friday. However, on Sundays he’s there.
Dr C reported in relation to his interview with Y:
[Y] was able to express himself in short sentences which were much younger than his years. There was no abnormality of perception. His affect was happy. He appeared somewhat confused by the situation. His cognitive function appeared to be consistent with a mild to moderate intellectual disability. He wasn’t able to express himself particularly clearly. However, he was clear that he enjoyed being with his father and also with his mother.
Dr C asked Y if he wanted anything to change but Y did not seem to fully appreciate the question.
In relation to his interview with X, Dr C reported that X was quite clear that she preferred being with the husband although he opined that she was a little protective of him.
Asked about the wife, Dr C reported:
[X] said she liked seeing her mother. “She’s good sometimes. She shows us things”. I asked if there were ever any problems. She said, “Sometimes she pushes us a little. She hit my brother on the face a few years ago”. This statement appeared like a pre-prepared statement. She seemed to be indicating that there had been some rough interaction but it was a long time ago and not current. I did not form the view that there was any current concern about her treatment by the mother.
X told Dr C that there had been times when she wanted to go home to her father but her mother had prevented her from doing so.
Dr C asked X about Mr B. He reported:
[X] seemed to have some reservations about [Mr B]. She said, “He’s okay I guess”. [X] then explained that her best friend at school was [F]. She sees [F] at [Mr B’s] house. She then said about [Mr B], “I don’t have a good time with him. I love my dad. He doesn’t like my dad. He talks about my dad behind his back”. This also seemed somewhat prepared as if she wanted to support her father. Nevertheless it was clear to me that she appeared tolerant of [Mr B] because she had a good relationship with [Mr B’s] daughter F.
Dr C asked X what she wanted the judge to decide. X said that she would like to be able to go on holidays with the husband but she was being prevented from doing so by the Court. Dr C reported:
She was aware that her mother was complaining that there wasn’t enough time with the children. “She is complaining that she doesn’t have enough time with us. I think she does have enough time. She did keep me sometimes.” I asked about any traumatic experiences. She denied that she’d ever had any traumatic experiences. However, she did indicate that on one occasion, “Mum tried to hit me but my brother blocked her”. Again this appeared to be a statement in support of her father as if she needed to provide additional support for him.
[X] denied that any adults had ever hurt her or had ever touched her in a bad way. She wasn’t able to give any clear indication about sleeping arrangements. She said she’s happy to stay with her father and is concerned about being away from him.
Dr C observed both of the children with the wife. He reported:
The two children appeared happy to see their mother. [Y] in particular was smiling and animated. [X] appeared happy but there was some reluctance to be too expressive. She was a little reserved with her mother.
In the presence of the wife X reiterated to Dr C that she did not want the current situation to change. Dr C observed that the wife became “even more tearful”.
Dr C invited the wife to ask Y about his wishes. The wife asked Y if he wanted to spend more time with her and Y nodded although Dr C stated that it was not clear that he fully understood the question. The wife became even more tearful and told Dr C that she was losing her relationship with her children. Dr C stated:
Then [X] on experiencing her mother’s extreme distress and in response tried to support her and said, “I love you”. Clearly [X] cared about her mother. Then [X] confused said to her mother, “Why are you crying?” This was confusing for [X]. [Y] didn’t seem to notice the crying.
Dr C observed Mr B with the two children. He noted that Y seemed happy to see Mr B but that F seemed somewhat reserved and there was an air of discomfort. In Mr B’s presence X told Dr C that she did not want to stay overnight at Mr B’s home. Mr B told Dr C that he believed that X and Y wanted to spend more time with the wife but he indicated that overnight would be a problem saying, “[The wife] would need her own environment.”
Mr B indicated that the wife would need to get a separate residence if the children were going to stay overnight saying, “I don’t think overnight in my house.” X agreed.
Dr C then observed both of the children with the husband. He noted that X was particularly pleased and relieved to see him and that Y also looked happy but there was no dramatic change in his demeanour.
X, in the husband’s presence, told Dr C “I like it the way it is. I want to go on holidays. I want Dad to tell Mum that we can go on holidays”.
In relation to the nature of the relationship between the husband and the children, Dr C stated:
[The husband] has remained very involved with the children. He organises their activities. He’s very involved in supporting their educational, social and physical needs. [The husband] appears to have a particularly close relationship with [X]. There is a very close bond between them. Both [Y] and [X] appear to respond well to [him]. The children do appear to be developing as well as possible in [his] care. Whilst he supports a relationship with the mother he has significant reservations about allowing the children to have extensive time with [Mr B].
Dr C formed the view that the husband was a capable and caring parent, able to provide for the children’s psychological and social needs.
In relation to the husband’s attitude towards Mr B, Dr C stated:
In addition, I do believe that he wants to encourage a relationship between the children [and the wife] although he does have significant reservations about her abilities. [The husband’s] concerns about the potential for sexual abuse appear to have little foundation from my assessment. I couldn’t find any indication that [Mr B] was an unacceptable risk to the children. There was no indication that [Mr B] had a history of child abuse.
[The husband’s] concerns appear to be more motivated by his general disapproval of [Mr B’s] involvement in his and his children’s lives. [The husband] feels that [Mr B] had a negative impact on the marriage and is partially instrumental in the marriage breakdown. Therefore, I believe it is difficult for [the husband] to be objective about [Mr B’s] role as he feels that he’s a damaging influence.
Dr C noted that the husband did not suggest that he thought any untoward sexual interaction had occurred between Mr B and X.
Generally in relation to the husband’s parenting Dr C stated:
In all, I formed the view that [the husband] was a capable caring parent and could continue to care for the children well. The one area of difficulty for [him] is being able to encourage a relationship between the children and the mother by putting what appear to be unfounded restrictions on the mother because of [his] disdain for [Mr B].
In relation to the nature of the relationship between the children and the wife, Dr C stated that the wife was extremely close and dependent upon her mother, brother and sister and the husband throughout her life and has lacked self-confidence and continues to feel overwhelmed, having difficulty coping with stress. Dr C stated, “After [Y] was born I believe this was overwhelming.”
Dr C stated that following X’s birth the wife continued to struggle emotionally. He stated:
Despite her difficulty coping and fear of failing she cares a great deal about the children and wants to have a significant input into the children. [The wife] seems to particularly have an affinity for [Y]. Nevertheless, she and [X] also have a close relationship and there is a positive attachment between the children and the [wife]. The main danger is the [wife] feeling overwhelmed. On the one hand [she] feels guilty about not having more care of the children yet on the other it’s not clear how well she would cope if the children [sic] in her care for extended periods of time.
In relation to the wife’s mental health, Dr C stated:
On one hand [the wife] does have significant strengths as she has been able to complete certificates and maintain employment most of her life. Nevertheless, despite her strength in being able to work, her personality style appears to be consistently one of over reliance on others, allowing others needs to take precedence over her own, not having confidence about being able to cope and feelings of being overwhelmed. I believe there’s [sic] consistent with dependent personality disorder. As a result it’s difficult for her to be able to take on a full responsibility as a parent.
In relation to the wife’s parenting capacity Dr C opined that for short periods of time the wife could meet the children’s needs. He stated:
However, I have concerns that for extended periods of time she would find this overwhelming. Her own needs of dependency are so great she is reliant on others and for example she has remained with [Mr B] in his residence which has prevented her from seeing the children. This indicates to me that her emotional needs are great and it’s not clear to me that she would be able to reside independently and support herself adequately to then be able to provide for the children in a substantial way. I formed the view that the dependent personality disorder does impair her from being able to have some substantial input into the children.
Dr C stated:
Therefore, overall I formed the view that [the wife] can provide some significant input as a parent but in my view there are limitations to her parenting because of her dependency problems and risk of becoming overloaded. It’s probably difficult for her to have overnight with the children whilst she’s residing with [Mr B] because he doesn’t want this and also it is not her house and the father does not support it. She would need to have her own separate residence in order to have overnight time with the children.
In relation to the wishes of the children and the weight to be given to those wishes, Dr C stated:
The children have very different needs. [Y] has a significant autistic disorder and suffers intellectual delay as well as language difficulties. However, he’s a very pleasant child who is clearly very close to his mother and father. [Y] was unable to express himself easily and he was very animated with the mother. He enjoyed interacting with her and probably would be happy to spend as much time as possible with her. However, he wasn’t able to articulate any particular wishes.
Dr C formed the view that Y was developing as well as possible considering his significant disabilities, that he appeared to relate well to both of his parents and that he did not appear to be aware of any dynamics between the parents and Mr B. Dr C stated:
Overall, I formed the view that [Y] would be happy to follow the directions that are provided for him by the court and would be happy with whatever those directions could be. I don’t believe he has a particular opinion that he can express.
In relation to X, Dr C stated:
[X] is a bright 11 year old girl who appears to be developing well both cognitively and emotionally for her age. She is progressing well in year 5 at school. [X] in her behaviour and reactions appear [sic] more closely aligned with the father. However, it was quite clear to me that she had a very strong attachment to both parents. She was more openly affectionate and positively directed towards the father.
In relation to Mr B, Dr C reported that X tolerated her time with him awkwardly and he described their relationship as “an uneasy tolerance”.
In relation to the wife, Dr C noted that X seemed somewhat prompted to make negative statements about her, however:
… by and large, I formed the view that [X] was comfortable with both parents. She appeared to have a preference towards the father however, how much of this was a natural affinity towards the father and how much was perhaps some mild alienation is unclear. Nevertheless she still had a good relationship with her mother and a reasonable relationship with [Mr B].
Dr C stated:
I formed the view that [X] would be happy to spend time with both parents. She probably would primarily like to reside with the father. Whilst it’s important to acknowledge [X’s] statements and wishes, I don’t believe that the full weight should be given to her expressed views as she appears to me to be actively trying to support the father from a loyalty perspective rather than from an individual perspective.
Dr C discussed three options for the future parenting of the children in the following terms.
The first option was that the children remain in the care of the husband and have regular contact with the wife on a day time basis. Dr C believed this would be a satisfactory outcome for the children. He stated:
The main disadvantage is that the daytime contact makes [the wife] feel as though she is an inadequate mother and this also fuels her feeling of inadequacy. Nevertheless the children have a good relationship with her and they appear to be progressing well considering their significant issues, particularly for [Y].
The second option was a shared parenting arrangement. Dr C stated:
I believe that a week about arrangement between the children and both parents is unrealistic. I don’t believe there is a high enough level of communication and cooperation between the parents to sustain such an arrangement. In addition, I don’t believe the mother would be able to provide full care for a week without enormous support. It’s unrealistic for the children to reside with [the wife] and [Mr B] and his other children. The other alternative is for [the wife] to find her own residence. However, I believe she would find this difficult to be residing on her own and then also to be caring for the children. Overall, I believe a shared parenting arrangement is unrealistic and unworkable.
The third option proposed by Dr C, should the wife have access to her own residence, was the possibility of the children spending some overnight time with the wife. Dr C stated that he believed the wife would be capable of having overnight contact perhaps one night per week with the children if she had her own residence. He stated that in the absence of her having her own residence, “it would seem that the daytime contact is the most feasible arrangement”.
Dr C recommended that the children continue to reside with the husband. He recommended regular contact with the wife, noting that the current arrangements were working “surprisingly well”. Whilst the wife continues to reside with Mr B, Dr C recommended that daytime only contact was the best arrangement. Dr C stated “should [the wife] move to her own residence I believe that it would be possible to have perhaps some midweek contact for several hours and then perhaps overnight contact for one night on the weekend”.
Dr C also recommended that the wife requires psychological assistance with an experienced therapist to assist her to develop skills to cope independently and to enhance emotional regulation and coping skills and improve her levels of confidence.
In cross-examination, Dr C considered whether the children’s time with the wife should be spent separately, for example, that Y would spend a weekend alone with her and that X should spend a weekend alone with her. He said that there was some merit in that proposition but it needed to be balanced against the danger that Y might feel that he was being treated differently from X.
In relation to the updated affidavit material and particularly the text messages between X and the husband in November 2017 and the exchange between the husband and the wife after Christmas Day in 2017, Dr C expressed his concern that, in the wife’s household, X was under pressure to meet the wife’s needs and that the wife was having difficulties maintaining appropriate adult/child boundaries with X.
Dr C reiterated his concerns about X spending extended time in the wife’s care when the wife would most likely be put under stress and would then look to X to meet her own needs.

Consideration

There is no dispute that it is in the interests of the children that they have a meaningful relationship with both of their parents. In these proceedings, the real issue is how that relationship can be maintained having regard to the ability of the wife to care for the children.

I propose to consider each relevant factor in s 60CC(3).

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

The views expressed by the children need to be considered separately because of their different cognitive levels.
Y has expressed no views and neither parent contends that he has expressed any preference in relation to his living arrangements.
In relation to X, the situation is more complex. X has expressed a strong wish to live with the husband but I accept the evidence of Dr C that X may be influenced by the husband’s view of Mr B. I also accept that the husband has not intentionally influenced X’s views.
The wife in cross-examination said that X had told her that she wanted more time with the wife but conceded that X had never suggested that she wanted a week-about arrangement.
It would be understandable that X might want more time alone with the wife. Currently, when she sees the wife at the same time as Y, he absorbs most of the wife’s time and attention. It would also seem that, on those occasions when Y is not present, X’s time with the wife is spent in the home of Mr B when a number of other people are present in the house.
It is reasonable to conclude that X would prefer to continue to live in the primary care of the husband but to spend more time with the wife, including more time alone with her.
Whether that can be achieved is another matter.

(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child)

I accept the evidence of Dr C that both children have a close and loving relationship with each parent.

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child

The wife has made a conscious decision not to spend significant time with Y. She acknowledged in cross-examination that her decision was based on her own understanding that one night per fortnight was the maximum time she could manage.
There have been a number of occasions when the wife has returned Y early to the care of the husband or the paternal grandmother.

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

The wife has provided no financial support for the children.

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

In relation to Y, no significant change is proposed. He will continue to spend most of his time in the care of the husband and to spend one night each fortnight, and one afternoon after school, in the care of the wife.
In relation to X, both parties propose a significant change.
In submissions, the husband’s proposal was that X spend time with the wife in accordance with her wishes. The wife’s proposal was that X spend time with her on a week-about basis or, alternatively, that X spend time with her on alternate weekends from Friday afternoon until Sunday at 8.00 pm and overnight on Tuesdays.
The ICL did not support either proposal.
The ICL proposed that X spend alternate weekends with the wife from after school Friday until 5.00 pm on Sunday, and after school each alternate Monday until 7.00 pm.
Dr C did not support the husband’s proposal. He expressed concern about the pressure to which X might be subjected by the wife if X was required to decide how she spends her time and said that X was not sufficiently mature to make that decision.
Dr C favoured a set arrangement where X spends time with the wife as suggested by the ICL but was able, by agreement between the parents, to spend additional time with the wife.
Dr C, in relation to the issue of additional time, cautioned that this must be handled in a way that Y did not feel that he was being treated differently from X.
However, Dr C’s main concern about X spending more time with the wife was that the wife would not be able to cope with extended time. In cross‑examination he said that he was concerned about the wife being “overloaded”. He expressed doubt that the wife could cope with the children unassisted for seven consecutive nights.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

The parents live within a reasonable proximity.
The wife gave evidence that she can adjust her work commitments to accommodate the time that the children spend with her.

(f) the capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

I accept the evidence of Dr C that the wife’s capacity to parent the children is limited by her personal frailties.
Although the wife would be supported by Mr B, his attitude to the husband, as demonstrated in his communications, is damaging to the children’s relationship both with the husband and with Mr B. His support is limited. He does not want Y in his home and does not want the children’s overnight time to be spent in his home.
Consistently with Dr C’s observations of the wife’s dependent personality, the wife has allowed Mr B to take over the litigation and to dominate and dictate her relationship with the husband in relation to their children with unfortunate consequences for the children.
The wife has either not been able, or not wanted, to prevent Mr B from consistently breaching the agreement and then the Court order that provided for the children not to be brought into contact with Mr B. In cross-examination, time after time, the wife said that she was justified in bringing the children into contact with Mr B because that was what they wanted and she knew that they would come to no harm. When it was suggested to the wife that she would disregard any Court order with which she did not agree, she had no answer.
Mr B, in his communications with the husband, has been triumphal in his attitude to the breaches.
The wife has also breached the order requiring her to facilitate X’s continued counselling relationship with Dr G. In cross-examination by counsel for the ICL it was clear that the wife objected to Dr G because Dr G criticised her parenting rather than on any basis related to X’s welfare or the benefit that X might have been receiving from her counselling.
I accept the submission of counsel for the ICL that, in response to any professional advice that the wife received, her reaction was to take offence, rather than to consider whether the advice might be justified.
The whole tenor of the wife’s evidence and her submissions was the focus on her own needs, rather than on those of the children.
The husband, confronted with the wife’s consistent breaches of the December 2016 orders, has nevertheless continued to make the children available to spend time with the wife and has been able to persuade X to remain in the wife’s care on occasions when X was clearly unhappy and distressed and wanting to return home to the husband’s care.
I accept the evidence of Dr C in cross-examination that the husband is an impressive parent. I also accept Dr C’s opinion that he is likely to make decisions that are in the children’s best interests regardless of their wishes.

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

Whilst it might be that the wife’s position in relation to Y is realistic, it demonstrates the difference between her parenting capacity and that of the husband.
The wife cannot cope with Y’s care for more than one night per fortnight. Therefore, the husband must shoulder that responsibility.
The wife’s position in relation to X was not justified by her in terms of the benefit to X but in terms of her own needs.
The wife knew that X was aware that she was not permitted, because of Court orders, to stay at Mr B’s house. The wife’s unwillingness to comply with the orders of the Court, knowing that X was fully aware of them, demonstrates her inability to model appropriate behaviour in response to authority where it does not coincide with self-interest.
The wife’s persistent involvement of X in the parenting dispute, as evidenced both by the wife’s own actions and communications, and by X’s texts, is further evidence of her inability to consider X’s welfare above her own needs.
A further example of the difficulties in the wife’s attitude to the responsibilities was her application that she have access to 50 per cent of Y’s NDIS benefit so that she could pay for any outings, aftercare or respite care for Y when he was in her care. This is despite the fact that Y spends 13 nights each fortnight in the husband’s care and the wife makes no financial contribution to Y’s care.

Conclusion

Having regard to all of those matters and the opinion of Dr C, I consider that the proposal of the ICL, in general terms, best promotes the children’s interests.

Parental responsibility

The ICL and the husband propose that the husband have sole parental responsibility for the children.
The wife seeks an order that she and the husband have equal shared parental responsibility.
The wife in cross-examination said that communication between herself and the husband was difficult if not impossible. Whether this was because she left communications to Mr B is not clear.
Other than the husband’s failure to agree to her property and parenting proposals, she gave no example of her having asked the husband to do anything and being met with refusal. In cross‑examination she was unable to explain why she called the police on the occasion when she wanted to take Y to the fair, except that she assumed the husband would not agree.
I accept the evidence of Dr C that shared parental responsibility involves an element of trust and co-operation between parents. In particular, each parent must be able to rely on the other parent keeping to agreed positions. The wife has demonstrated that she cannot be relied upon to abide by either agreements with the husband or Court orders.
I accept that the wife’s longstanding attitude to breaching the orders restraining her from bringing the children into contact with Mr B and to facilitate X’s counselling with Dr G had undermined the husband’s ability to operate in a trusting and co-operative relationship with her. The wife has demonstrated, as recently as March 2018 when she took the children to see her psychologist Ms P that she will act in her own interests regardless of the law or agreements. She had no hesitation in abusing their existing shared parental rights to further her cause.
I have no confidence that, if the wife has shared parental responsibility for the children, she will exercise those rights to the benefit of the children rather than her own perceived benefit.
The husband will have sole parental responsibility.

Ancillary matters

The wife proposed, and the husband agreed, that, in the event that the children or either of them, stay overnight at Mr B’s home, she should be present.
There are five areas of dispute still to be resolved in relation to the parenting dispute.
The first relates to the wife’s request that she spend time with X alone. The second relates to transport for changeovers and the third relates to school holidays. The fourth issue is whether X’s time with the wife on Monday during the school week should be overnight.
In the course of the hearing, I raised with the parties and with Dr C the possibility that orders could be structured so that each child spend a weekend with the wife alone. This proposal had not been put by either of the parents. Dr C expressed guarded support for that proposal.
However, the proposal was opposed by the husband who submitted that the children should be together with the wife on their weekends.
Part of the reason advanced on behalf of the husband was that, if the children spent separate weekends with the wife, he would never have a weekend when he was not caring for one of them.
Whilst I accept that it is the children’s welfare and interests which are the paramount consideration, a component of their welfare is the husband’s ability to maintain his present level of care for them and I accept that his ability might be compromised if he is not able to have any respite from his responsibilities. Therefore, the orders will provide that the children spend their weekends with the wife largely together.
The wife objected to being the parent who was responsible for all the travelling for changeovers and sought an order that the husband share the travelling.
The parenting responsibility in this family is disproportionately shared with the husband bearing the overwhelmingly greater burden. There is no evidence of the travelling time but, on the assumption that, at weekends, the travel time is about an hour, I do not consider it unreasonable to require the wife to undertake all of the travel. She does not work full-time as does the husband, and by undertaking this responsibility she assists to a small extent in alleviating the burden on the husband.
In relation to holiday time, the ICL proposed that Y should continue to spend time with the wife on alternate weekends and that X should have block periods of five nights.
The husband sought orders that each period of block time be structured so that the children remain together for the period they spend with the wife.
The wife’s position was that X would spend holiday time with her for a week in the short holidays and Y for three nights.
No submissions were addressed by the husband and the wife to this issue which addressed the relative merits of their respective proposals.
I infer that the husband’s proposal, to some extent, provides him with a period when he will not have any child caring responsibility. The wife’s proposal appears to address her inability, or unwillingness, to care for Y for an extended period.
I accept the evidence of Dr C that it is important that the arrangements for the children are such that Y does not feel that he is being treated differently from X. Although the wife proposes holiday time with X alone, she does not make a similar proposal for time with Y alone. Thus, the potential arises for Y to feel he is “missing out” on time with the wife.
The wife’s brother and sister-in-law told Dr C that they would like to spend holiday time with the children and it may be that, if the wife perceives difficulties in caring for both children, she can enlist their assistance and the support which they are offering.
On balance, it is preferable for both children to spend time in holiday periods together with the wife unless the parties otherwise agree. I propose to order that the children spend a block period of five nights in the short school holidays with the wife, and three block periods of five nights with the wife during the long school holidays.
The wife seeks orders for an overnight stay for X in the alternate week. I prefer the position adopted by the ICL where each child spends an afternoon with the wife each alternate week.
X has started high school and will have additional responsibilities and homework to attend to. I accept the evidence of Dr C that overnight time during the school week would be too great an imposition on X and on the wife’s parenting capacity. If, in the future, X is keen to spend an overnight with the wife during the school week, that is a matter upon which the parents can agree. I do not doubt that the husband will agree to extend X’s time with the wife if that is what X wants and he believes it is workable.
The final issue to be determined is Christmas arrangements. The wife sought an order that the children live with her from 7pm on Christmas Eve until 7pm on Christmas Day in alternate years.
The husband sought a similar arrangement but from 1pm on Christmas Eve until 1pm on Christmas Day.
There was no relevant evidence in relation to this specific issue and no submissions were directed to it.
I propose to make orders as sought by the wife.

PROPERTY

Both parties ask the Court to distribute their remaining property. The substantial asset is a sum held by solicitors which represents the remaining proceeds of sale of their jointly owned property. It is just and equitable that those funds be divided between them.
Before turning to the assets and liabilities of the parties, it is necessary to consider the characterisation of the payment of $10,000 received by the wife in addition to the payments of $100,000 received by each of the parties.
The appropriate time for the payment to be characterised is when the order is made for the payment. Then there can be no disagreement about what was intended.
The wife submits that the payment should be characterised as spousal maintenance. The husband submits that the payment should be characterised as partial or interim property settlement. The parties chose not to characterise the payment at the time that the order was made. Without a transcript which might illuminate the basis of their agreement, or any other evidence about the jurisdictional basis of the payment, it is not possible to characterise it. I propose to treat the payment of $10,000 as money which the wife has received and take it into account pursuant to s 75(2).
The husband relied on a Financial Statement sworn on 8 June 2017. The wife relied on a Financial Statement sworn on 3 May 2017 and a Financial Questionnaire filed 6 October 2017.

The Balance Sheet

The parties tendered a joint balance sheet which is reproduced below. A number of issues apparent on the document tendered were resolved in cross‑examination.
I will deal with the disputes arising out of the balance sheet using the item numbers in the balance sheet.

ASSETS

Ownership Description Wife’s value Husband’s value

1       J Controlled monies held by the Husband’s solicitor 473,303 473,303

2       J Commonwealth Bank Joint Bank Account ending …45* 674 674

3       J St George Joint Bank Account ending …66* 73 73

4       H R Shares (525 @ $4.05) 2,126 2,126

5       J S Shares (640 @ $3.11) 1,990 1,990

6       H Interim property settlement 50,000 50,000

7       W Interim property settlement 50,000 50,000

8       W Interim property settlement NIL 10,000

9       H Commonwealth Bank Account ending …89 1,156 1,156

10     H Motor vehicle 1 8,000 8,000

11     H D shares (60 @ $56.96) 3,418 3,418

12     H St George Bank Account ending …16* 40 40

13     H Household contents Nominal Nominal

14     W Household contents Nominal Nominal

15     W Motor vehicle 2 500 500

16     W NAB account ending …32 20,000 N/K

Total $611,280 $601,280

ASSETS
1	J	Controlled monies held by the Husband’s solicitor	473,303	473,303
2	J	Commonwealth Bank Joint Bank Account ending …45*	674	674
3	J	St George Joint Bank Account ending …66*	73	73
4	H	R Shares (525 @ $4.05)	2,126	2,126
5	J	S Shares (640 @ $3.11)	1,990	1,990
6	H	Interim property settlement	50,000	50,000
7	W	Interim property settlement	50,000	50,000
8	W	Interim property settlement	NIL	10,000
9	H	Commonwealth Bank Account ending …89	1,156	1,156
10	H	Motor vehicle 1	8,000	8,000
11	H	D shares (60 @ $56.96)	3,418	3,418
12	H	St George Bank Account ending …16*	40	40
13	H	Household contents	Nominal	Nominal
14	W	Household contents	Nominal	Nominal
15	W	Motor vehicle 2	500	500
16	W	NAB account ending …32	20,000	N/K
Total	$611,280	$601,280

ADDBACKS

Ownership Description Wife’s value Husband’s value

17    W $50,000 withdrawn by the Wife on 15 October 2014 from the joint mortgage NIL 50,000

18    50 per cent of the cost of the joint expert report prepared by Dr C (Total: $7,000) 3,500 7,000

19    W Costs awarded against the Wife by the Full Court of the Family Court of Australia N/K 250

20    W $3,275, being half the amount paid by the Husband in October 2016 to St George Bank to meet outstanding liabilities on the property and ensure property settlement would occur N/K NIL

21    W Half the amount expended by the Husband to make the former matrimonial home ready for sale 5,084 5,084

Total $8,584 $62,334

ADDBACKS
17	W	$50,000 withdrawn by the Wife on 15 October 2014 from the joint mortgage	NIL	50,000
18	50 per cent of the cost of the joint expert report prepared by Dr C (Total: $7,000)	3,500	7,000
19	W	Costs awarded against the Wife by the Full Court of the Family Court of Australia	N/K	250
20	W	$3,275, being half the amount paid by the Husband in October 2016 to St George Bank to meet outstanding liabilities on the property and ensure property settlement would occur	N/K	NIL
21	W	Half the amount expended by the Husband to make the former matrimonial home ready for sale	5,084	5,084
Total	$8,584	$62,334

LIABILITIES

Ownership Description Wife’s value Husband’s value

22 H CBA MasterCard ending …93* N/K NIL

23 H Ms Q Longley* N/K NIL

Total N/K NIL

LIABILITIES
22	H	CBA MasterCard ending …93*	N/K	NIL
23	H	Ms Q Longley*	N/K	NIL
Total	N/K	NIL

SUPERANNUATION

Member Name of Fund Type of Interest Wife’s value Husband’s value

24     W R Super 41,357 N/K

25     H D Super Plan N/K 217,022

26     H R Super N/K 27,542

Total $41,357 $         244,564

SUPERANNUATION
24	W	R Super	41,357	N/K
25	H	D Super Plan	N/K	217,022
26	H	R Super	N/K	27,542
Total	$41,357	$ 244,564

Items 6 and 7 – interim property settlement

In relation to the sums received by each of them specifically by way of interim property settlement, each has received $100,000. The wife has spent almost the whole of the funds that she received on legal fees as she was entitled to do. However, she cannot expect that the husband should, indirectly, bear any portion of those fees. Therefore, both the partial property settlement and the legal fees will be disregarded.
The husband also received $100,000 but he has also spent almost all of that amount. So as to treat both parties in the same manner, both the partial property settlement and the amount retained by the husband will be disregarded.
Each party has incurred legal fees, both paid and yet to be paid. The amount they each chose to spend is a discretionary expense and will be disregarded.
Insofar as the husband has borrowed funds from his sister to fund legal fees, that loan will also be disregarded.

Item 8 - $10,000 received by the wife

This item will not be included as an asset but taken into account in considering the s 75(2) factors.

Items 9, 12, and 16 – parties’ respective bank accounts

Having disregarded the funds received by each of the parties by way of interim property settlement, it would not be appropriate to then include the funds they have each retained from those payments. The funds retained in their bank accounts will be disregarded.

Item 17 – add back of $50,000

I propose to deal with this payment in considering the s 75(2) factors.

Item 18 – fees of Dr C paid by the husband

The wife’s position was that the husband should be solely responsible for the payment to Dr C. There was no cogent reason advanced by the wife to explain her position.
The amount of $3,500 will be deducted from the wife’s share of the controlled monies account and paid to reimburse the husband.

Item 19 – costs awarded against the wife

The sum of $250 will be deducted from the wife’s share of the controlled monies account and paid to the husband.

Item 21 – money spent by the husband to make the home ready for sale

The sum of $5,084, representing half of the amount the husband expended in preparing the Suburb E property for sale, will be deducted from the wife’s share of the controlled monies account and paid to the husband.

Item 24 – wife’s superannuation

The wife has not provided proper disclosure as to the present balance of her superannuation fund. She tendered an undated document which appeared to have been downloaded from the internet and which made no reference to the name of the account holder. Counsel for the husband disputed the veracity of the document and it cannot be evidence of the value of the wife’s superannuation.
Thus, I find that the assets of the parties, for the purpose of these proceedings, to be as follows:

ASSETS

Ownership Description Value

1 J Controlled monies held by the Husband’s solicitor 473,303

2 J Commonwealth Bank Joint Bank Account ending …45 674

3 J St George Joint Bank Account ending …66* 73

4 H R Shares (525 @ $4.05) 2,126

5 J S Shares (640 @ $3.11) 1,990

10 H Motor vehicle 1 8,000

11 H D shares (60 @ $56.96) 3,418

15 W Motor vehicle 2 500

Total $490,084

ASSETS
1	J	Controlled monies held by the Husband’s solicitor	473,303
2	J	Commonwealth Bank Joint Bank Account ending …45	674
3	J	St George Joint Bank Account ending …66*	73
4	H	R Shares (525 @ $4.05)	2,126
5	J	S Shares (640 @ $3.11)	1,990
10	H	Motor vehicle 1	8,000
11	H	D shares (60 @ $56.96)	3,418
15	W	Motor vehicle 2	500
Total	$490,084

The total of the controlled money account and the two small joint accounts (“the joint pool”) is $474,050. The husband will retain assets to the value of $13,544.
The wife will retain assets, including the S shares, to the value of $2,490.
The husband seeks a division of both the asset pool and the superannuation interests as to 55 per cent in his favour.
The wife seeks a division as to $300,000 to her together with a superannuation split of 30 per cent of the husband’s D Superannuation fund.
In addition the wife seeks, in the alternate, either lump sum spousal maintenance of $143,000 or periodic spousal maintenance of $500 per month until X reaches 18 years of age.
The husband seeks an order transferring the S shares to the wife. I do not understand her to oppose that order.

Contribution

Neither party had any significant assets at the commencement of their relationship.
They both made contributions to the care of their children and to the welfare of their family.
They both worked although the husband worked more than the wife.
Each of them contributed according to his or her ability.
Up to the time of their separation, I regard their contributions as equal.
The wife had the benefit of occupation of the former matrimonial for almost two years until its sale in 2016, during which period the husband paid the mortgage from his earnings. The amount which he paid, which totalled some $98,400, is significant having regard to the asset pool now available.
For about 18 months of that period, from mid-2015, according to the wife, she did not live at the former matrimonial home but lived with Mr B. Thus, the husband continued to pay the mortgage over the former matrimonial home when the property could have been sold as the wife did not live there.
In addition, the husband, from after tax income, paid $25,665 off joint credit cards after separation and a further sum of about $10,000 in relation to the marketing of the Queensland property.
Since separation, the husband has met all of the children’s expenses including, but not limited to, their school fees of about $12,000. He has also had the majority of care of the children who did not have overnight time with the wife until December 2016 and thereafter had only one overnight each fortnight.
Having regard to the payments made by the husband after separation of not less than $146,000, and his greater post-separation contributions to the care and financial cost of the children, I consider that, in an asset pool of $490,084, an adjustment in favour of the husband is warranted and I find that the husband’s contributions at the date of the hearing should be assessed at 60 per cent.

Section 75(2)

Each party has received an interim property settlement of $100,000 to which I propose to give no further consideration.
In October 2014, shortly before the parties physically separated, the wife drew down $50,000 from the mortgage account, secured against the matrimonial home. She has not accounted for her use of those funds, despite being asked to do so.
The wife also received $10,000 in June 2017.
The husband is employed and earns $145,392 per annum.
It is difficult to ascertain what the wife’s earning capacity is. In her Financial Statement, she discloses an income of $66 per week or $3,432 per annum. In her Financial Questionnaire filed 6 October 2017 she disclosed an income of $23,000 per annum. In her trial affidavit she deposed that her usual income is $350 per week or $18,200 per annum. The husband’s evidence was that in 2014 the wife earned $30,000.
There are also doubts about the completeness and accuracy of the wife’s disclosure. At the conclusion of the hearing, she tendered a bundle of accounts for a Commonwealth Bank account ending in …20. The wife swore a Financial Statement on 3 May 2017 (her most recent). She did not disclose any Commonwealth Bank account although it is clear from the statements that the account was in existence at that time. The statements also disclose funds being transferred from another Commonwealth Bank account, for example on 21 July 2017, $9,500 was transferred into the …20 account from an account ending in 4926. The wife did not disclose the existence of the …26 account in her Financial Statement.
Neither is there any evidence about the financial position of Mr B with whom the wife lives. Part E of the wife’s Financial Statement entitled “Other income earners in your household” is left blank. It would appear from his correspondence to the husband’s solicitors that Mr B works in a professional occupation. There is no evidence of his assets or income.
However, I accept that the husband’s earning capacity significantly exceeds that of the wife.
Further, the husband’s superannuation entitlement significantly exceeds that of the wife and although he is likely to be able to accrue more superannuation in the course of his employment, her ability to do so is more limited. That position will be ameliorated by a superannuation splitting order in favour of the wife.
The husband will continue to have the financial responsibility for the care of the children. X will be attending a private school and in 2018 the fees are in excess of $12,000. The husband will continue to bear that expense for the next six years until X finishes school. In addition, the husband has the physical care of the children for the majority of the time.
The wife has made no financial contribution by way of child support and is unlikely to do so in the future.
I do not accept the submission made in the wife’s trial affidavit that the husband is likely to receive an inheritance of more than $1,000,000 on his mother’s death. The husband is one of four siblings and there is no evidence of the extent or value of his mother’s estate. The husband’s mother is 84 years of age and in good health.
The most significant factor is that the husband will have the financial responsibility for both of the children for at least the next six years and that he will continue to have responsibility for both Y’s physical care and his financial care for the foreseeable future.
In those circumstances, the adjustment which may have been justified in favour of the wife because of her lesser earning capacity (although this is also problematic because of the lack of evidence about Ms Bs’ financial position) is balanced by the future responsibility which will be undertaken by the husband for Y’s care.
There will be no further adjustment.
The parties both agreed that the costs of the ICL and the costs of Dr C for giving evidence should be paid from the joint pool before distribution.
If the husband were to receive 60 per cent of the total asset pool he would receive $294,050 which would be achieved by his retaining his assets of $13,544 and a further $280,506 from the joint pool. However, the husband’s position, enunciated in submissions, was that he receive 55 per cent of the joint pool and the orders will provide that he receive that amount, namely $256,002.
The wife will receive 30 per cent of the husband’s D Superannuation fund in accordance with her application.

Spousal maintenance

The wife bears the onus, pursuant to s 72 of the Family Law Act 1975 (Cth), of demonstrating that she is unable to support herself adequately, either:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason.
The wife will receive about $220,000 from the joint pool.
As has been explained above, it is not clear what the wife’s ability to support herself might be.
In cross-examination she said that she had been working for 20 hours each week for which she received $25 per hour. Despite her being challenged, no documentary evidence was provided to substantiate that assertion.
The wife gave no evidence about whether she could work more hours if she chose to do so.
She deposed that she pays rent on a two bedroom apartment in the sum of $520 per week but she does not appear to explain where she finds the funds to pay her rent. In her Financial Statement at Part G she estimates her weekly expenditure to be $633 per week but she estimates her discretionary expenses at Part N to be $935 per week. I will assume that the Part N expenses are the expenses she would incur if she had the means to do so. Those expenses include expenses for the children which would, in any event, be disregarded.
The extent of Mr B’s support of the wife is unclear. On social media in February 2017, he stated that his “girlfriend”, presumably the wife, lives with him.
However, on 3 June 2016, the wife filed an Application in a Case, supported by an affidavit, in which she described Mr B as her current partner. In cross‑examination, she said that she and Mr B were in a relationship and that she intended to continue to live with Mr B as her partner.
Mr B was present in Court as the wife’s McKenzie friend throughout the wife’s cross-examination. He did not give evidence contradictory to that of the wife.
The wife said that she makes no financial contribution to the running of the household of herself and Mr B.
Also in cross-examination, the wife said that she rents out a bedroom in her flat at Suburb J on “Airbnb” for $118 per night although the bedroom is not let every night. She did not reveal how much money she received by way of rent.
I do not accept the wife’s evidence that she was required by the orders made in December 2015 to rent the Suburb J unit. She said in cross-examination, repeatedly, that the children had often stayed overnight at Mr B’s house. It became clear in cross-examination that the wife had rented the Suburb J unit as a place for her and Y to stay after Mr B made it clear to her that he would not tolerate Y staying at his house because of Y’s difficult behaviour and the effect of Y’s uninhibited behaviour on Mr B’s daughters.
Having regard to the evidence revealed in cross-examination about the wife’s continuing cohabitation with Mr B and the uncertainty about her actual income, I am not satisfied that the wife has demonstrated that she is unable to support herself.
The application for spousal maintenance will be dismissed.

Costs

The wife filed an Application in a Case on 16 April 2018, prior to the commencement of the final hearing, seeking an order that the husband pay her costs on an indemnity basis. She seeks an amount of $137,217 or a greater sum as assessed.
The husband opposed the application.
In order to save further costs being incurred, the parties were asked to make their submissions in relation to costs at the conclusion of the trial.
An application for costs falls to be determined according to s 117(2A) of the Act, the provisions of which are set out below:
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Dealing with those provisions seriatim:
(a)The wife’s earnings are significantly less than those of the husband but the husband has the financial responsibility for the support of the two children.
(b)Neither party is in receipt of legal aid.
(c)The wife appears to rely on the husband’s refusal to settle the proceedings and his refusal of her “multiple reasonable offers”. Since none of those offers were in evidence, the reasonableness of her position cannot be assessed. Having regard to the evidence of Dr C, I do not consider that the position of the husband at trial was unreasonable in that he sought orders broadly in accordance with the recommendations of the expert. In relation to financial matters, neither party achieved the outcome for which he or she advocated.
(d)Not applicable.
(e)Whilst it cannot be said that the wife has been “wholly unsuccessful”, she has not persuaded the Court to make either the parenting orders or the financial orders that she sought. The parenting orders which were made, parenting issues having dominated the trial, were in terms similar to those for which the husband advocated.
(f)Although the wife deposed that the husband had “numerous opportunities to enter into discuss [sic] and/or negotiations” she does not assert that she made any offer of settlement in writing.
(g)I was not referred to any other matter which it was submitted was relevant.
Having regard to all of these matters, I am not satisfied that this is a matter where any order should be made for the husband to contribute to the wife’s costs.
In those circumstances, it is not necessary to consider whether indemnity costs would be appropriate.
The wife’s application for costs will be dismissed.

I certify that the preceding three hundred and eighteen (318) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 28 June 2018.

Associate:

Date: 28 June 2018

[2018] FamCA 484

28 June 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Damages

Remedies

ASSETS
Ownership		Description		Wife’s value	Husband’s value
1	J	Controlled monies held by the Husband’s solicitor		473,303	473,303
2	J	Commonwealth Bank Joint Bank Account ending …45*		674	674
3	J	St George Joint Bank Account ending …66*		73	73
4	H	R Shares (525 @ $4.05)		2,126	2,126
5	J	S Shares (640 @ $3.11)		1,990	1,990
6	H	Interim property settlement		50,000	50,000
7	W	Interim property settlement		50,000	50,000
8	W	Interim property settlement		NIL	10,000
9	H	Commonwealth Bank Account ending …89		1,156	1,156
10	H	Motor vehicle 1		8,000	8,000
11	H	D shares (60 @ $56.96)		3,418	3,418
12	H	St George Bank Account ending …16*		40	40
13	H	Household contents		Nominal	Nominal
14	W	Household contents		Nominal	Nominal
15	W	Motor vehicle 2		500	500
16	W	NAB account ending …32		20,000	N/K
Total		$611,280	$601,280

SUPERANNUATION
Member		Name of Fund		Type of Interest		Wife’s value	Husband’s value
24	W	R Super		41,357	N/K
25	H	D Super Plan		N/K	217,022
26	H	R Super		N/K	27,542
Total		$41,357	$ 244,564