LOWTHER & LOWTHER

FAMILY COURT OF AUSTRALIA

LOWTHER & LOWTHER

[2015] FamCA 1201

FAMILY LAW – CHILDREN – Where the parties agree, and it is in the children’s best interests, for an order for equal shared parental responsibility to be made – Where the husband seeks to spend equal time with the children – Where the wife seeks the children spend nine nights per fortnight with her – Where the husband asserts the parties’ daughter has an enmeshed relationship with the wife – Where the single expert changed his view about the enmeshed relationship in his second report – Where the husband contends the wife is undermining his relationship with the children – Where the parties’ daughter has strong views about residing with the wife and the single expert opines an order which did not recognise the child’s views would not be in her interest – Where the parties’ son is aware of and accepts his sister’s views – Where an equal time arrangement is not in the best interests of the children – Where the children should spend significant and substantive time with the husband.

FAMILY LAW – PROPERTY – Where the parties’ assets are divided into two pools – Where the parties agree that the superannuation assets be split evenly – Where the wife is seeking a 62.5 per cent adjustment of non-superannuation assets in her favour and the husband is seeking a 51 per cent adjustment in his favour – Where the wife made substantial initial contributions – Where both parties were in well paid employment during the marriage – Where the wife ceased employment following separation – Where the wife received significant payments from her family trust during the marriage – Where the parties’ homemaker and parenting contributions are found to be equal – Where the wife has lived off capital since separation – Where the parties have both spent money from the joint mortgage account post separation and that mortgage has substantially increased – Where the wife is entitled to a 55 per cent adjustment of non-superannuation assets based on contributions – Where the husband submits the wife has an earning capacity she refuses to utilise – Where the husband asserts the wife’s choice not to work should not call for a further adjustment – Where the wife will fulfil the role of primary carer for the children – Where no adjustment is made for s 79(4)(d)-(g) considerations – Where it is just and equitable to make a property settlement order.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband made an application that the trial judge disqualify himself half way through the final hearing because the single expert’s updating report was incomplete – Where the single expert provided a complete updating report during the hearing – Where the husband did not object to the trial judge receiving the complete updated report – Where it was submitted that the additional material raised issues of procedural fairness to the husband and to the integrity of the report writing process and the confidence the husband had in the process and recommendations of the single expert – Where the parties were given the opportunity to review the material and recall parties for cross examination – – Where a submission as to bias was not open – Where it was submitted the material was so prejudicial and so late that it would lead to a reasonable apprehension that the trial judge might not be able to bring an impartial and unprejudiced mind to the resolution of parenting proceedings – Where the wife opposed this application – Where case management principles were discussed – Where any damage could be reasonably rectified – Where the husband’s application was dismissed.

Family Law Act 1975 (Cth)

Ebner v The Official Trustee (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Pierce and Pierce (1999) FLC 92-710
Scott and Scott (1994) FLC 92-457
Williams & Williams [2007] FamCA 313

APPLICANT:

Mr Lowther

RESPONDENT:

Ms Lowther

INDEPENDENT CHILDREN’S LAWYER:

Ms Warda

FILE NUMBER:

SYC

358

2014

DATE DELIVERED:

22 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

2 – 6 November 2015; 27 November 2015; 18 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell, SC

SOLICITOR FOR THE APPLICANT:

Karras Partners

COUNSEL FOR THE RESPONDENT:

Mr Lloyd, SC

SOLICITOR FOR THE RESPONDENT:

Newnhams Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Spain

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley Lawyers

Orders

Parenting

All previous parenting orders be discharged.
The husband and wife shall each have equal shared parental responsibility for making all decision in relation to major long term issues concerning the children of the marriage, C born … 2001 and B born … 2003 (“the children”) and the parties shall consult with each other prior to making a joint decision about any such issue.
The children live with the wife at times when they are not spending time with the husband.
The children spend time with the husband as agreed, or failing agreement, as follows:
4.1.During school term from after school on Thursday to before school on Tuesday each alternate week;
4.2.Unless otherwise provided for in these orders, for one half of each school holiday period as agreed between the parties and failing agreement, for the first half of each school holiday period in even numbered years and for the second half of school holiday period in odd numbered years provided that during any school holidays when the husband is at work, one or both the children should have the ability to visit with their mother during the period of time when their father is away at work on the basis that they do not leave the husband’s home until after he has left for work and they come back to the husband’s residence prior to him returning home from work;
4.3.On Father’s Day each year if that is a day that the children would not ordinarily be spending with the husband from 6 pm the preceding Saturday to 7.00 pm on Father’s Day;
4.4.From 4.00 pm Christmas Eve to 4.00 pm on Christmas Day in odd numbered years;
4.5.On each child’s birthday as agreed but failing agreement in the event the children are not spending time with the husband as follows:
4.5.1.If the children’s birthdays fall on a non-school day, then from 10.00 am to 2.00 pm in even numbered years and from 2.00 pm to 7.00 pm in odd numbered years;
4.5.2.If the children’s birthdays fall on a school day, from 6.00 pm until 8.30 pm on the day before the child’s birthday in even numbered years, and 6.00 pm to 8.30 pm on the child’s birthday in odd numbered years.
4.6.On the husband’s birthday in the event the children are not spending time with the husband as follows:
4.6.1.If on a school day then for a period of not less than two hours;
4.6.2.If on a non-school day then for a period of not less than four hours.
4.7.Such further times as the parties may from time to time agree between themselves.
School holidays are deemed to commence from 9.00 am on the first day following the last day of the school term for the last of the children and shall be deemed to end at 4.00 pm the day before the first child resumes attendance at school for the following term.
The husband’s time in accordance with order 4 shall be suspended as follows:
6.1.In the event Mother’s Day does not fall on the wife’s weekend, then from 6.00 pm the preceding Saturday to 7.00 pm on Mother’s Day;
6.2.On the wife’s birthday in the event the children are not spending time with the wife as follows:
6.2.1.If on a school day then for a period of not less than two hours;
6.2.2.If on a non-school day then for a period of not less than four hours.
6.3.On each of the children’s birthdays as agreed or failing agreement in the event the children are not spending time with the wife as follows:
6.3.1.If the children’s birthdays fall on a non-school day, then from 10.00 am to 2.00 pm in even numbered years and from 2.00 pm to 7.00 pm on odd numbered years;
6.3.2.If the children’s birthdays fall on a school day, from 6.00 pm until 8.30 pm on the day before the child’s birthday in even numbered years and 6.00 pm to 8.30 pm on the child’s birthday in odd numbered years.
The husband and wife shall be at liberty to communicate with the children at all reasonable times.
Either parent may attend any activity in which the children participate.
The husband and wife shall advise the other party as soon as is practical of any serious medical issues suffered by the children.
The husband and wife shall provide to the other in a timely manner, the resume (including a police check) and complete details (including mobile telephone number) of any party who will be supervising the children in the absence of the parents, such as au pairs and/or nannies. The other parent will be at liberty to communicate with the supervising party regarding the children.
Each of the parents respectively are restrained from:
11.1.Interfering in the children’s electronic communications with the other parent;
11.2.Denigrating the other parent within the hearing or in the presence of the children.
Both parties do all acts and things to ensure that the children hold current Australian and United Kingdom passports at all times, and in the event that one party requests the other to sign any passport application or other document required to have passports issued to the children, the other party will promptly sign and return such documents in order to facilitate the processing of the applications.
Each parent is at liberty to remove the children from the Commonwealth of Australia on holidays provided that parent shall give to the other at least six weeks notice of their intention to do so and provide the other parent with a detailed itinerary.
During any period of travel outside the Commonwealth of Australia, the parent travelling with the children shall ensure that the children’s personal mobile telephones have the capacity to send and receive SMS and telephone messages between the children and the other parent.
The wife shall retain the children’s Australian passports except when required by the children for travel with the husband.
The husband shall retain the children’s United Kingdom passports other than when required by the children for travel with the wife.
Each party is permitted to liaise directly with the children’s school and sporting bodies to receive any school notices, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
Each party will keep the other informed, in a timely manner, of all health, education and developmental issues relating to the children, but will immediately notify the other in an event of an emergency involving the children.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property

Pursuant to s 79 of the Act an order is made in accordance with paragraphs 21 to 41 below.
The husband and wife shall forthwith do all things and sign all documents necessary to cause the sale of the property known as J Street, Suburb H (“the property”) on the following terms:
21.1.The parties shall instruct such lawyer or conveyancer as they agree upon to have the conduct of the sale on behalf of both parties or failing agreement, shall instruct such lawyer or conveyancer as may be appointed by the President for the time being of the Law Society of New South Wales (“the lawyer”). The costs and incidentals to such appointment to be borne by the parties equally;
21.2.The parties shall instruct such agent as the parties may agree to appoint or failing agreement, within 14 days, shall instruct such agent as the President for the time being of the Australian Property Institute (NSW Division) shall appoint (“the agent”). The costs of and incidental to such appointment to be borne by the parties equally;
21.3.List the property for sale by private treaty on a date agreed or failing agreement on a date nominated by the agent within six weeks from the date of appointment of the agent;
21.4.The sale price for the purpose of private treaty sale in accordance with paragraph 21.3 shall be such price as the parties agree in writing, or in the absence of agreement reached within 14 days shall be the price nominated as the fair market value of the property by a valuer appointed by the President for the time being of the Australian Property Institute (NSW Division) (“the valuer”). The costs of and incidental to such appointment and valuation to be borne equally by the parties as and when those costs fall due;
21.5.The parties shall each cooperate in every way with the agent and the valuer including (without limiting the generality of the foregoing):
21.5.1.Making the key available to the agent and the valuer;
21.5.2.Allowing inspection of the property at all reasonable times requested by the agent and the valuer;
21.5.3.Doing or saying nothing to hinder or prevent the sale being effected;
21.5.4.Ensuring the property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers;
21.5.5.Permit the wife reasonable access to the property on 24 hours notice to the husband to enable her to inspect the property and carry out all reasonable work agreed in writing to make the property presentable for sale and inspection;
21.5.6.Immediately inform the wife of any offers to purchase the property and all matters relevant to the sale;
21.5.7.Sign all documents requested by the agent in relation to the listing for sale of the property except a contract or agreement for sale which has not been authorised by the parties’ lawyer.
21.6.If the property remains unsold after ten weeks from the date the property was listed for sale in accordance with paragraph 21.3, the parties shall do all acts and things and sign all documents necessary to immediately list the property for sale by public auction and the provisions of paragraphs 21.1 to 21.5 above shall apply;
21.7.The property shall be offered for sale at public auction at a reserve of $4,000,000 (or such reserve price as the parties may otherwise agree in writing);
21.8.In the event the bidding at the auction does not reach the reserve price, the parties or such of them as attends the auction may negotiate with the highest bidders or other interested persons and effect a sale of the property at a price which is not more than 5 per cent below the reserve price, or such other price as the parties agree upon in writing;
21.9.If the property remains unsold at the conclusion of the auction pursuant to paragraph 21.6, the parties shall do all acts and things and sign all documents necessary to list the property for sale by public auction at three monthly intervals, and the provisions of paragraphs 21.1 to 21.5 shall apply successively until the property has been sold so that at each successive auction the reserve price shall be as agreed or failing agreement, 5 per cent less than the reserve price at the immediately preceding auction unless otherwise agreed by the parties in writing.
Upon the sale of the property, the proceeds of sale be paid in the following manner and priority:
22.1.Payment of agent’s commission and other expenses of the agent, if any;
22.2.Payment of all monies outstanding under the mortgage registered on the title of the property to the National Australia Bank;
22.3.Payment of legal costs on the sale of the property;
22.4.Payment of water rates, council rates and other applicable conveyancing adjustments;
22.5.Payment to either party to reimburse that party in relation to the costs of any improvements undertaken on the property for the purposes of sale, as previously agreed in writing;
22.6.As to 58.6 per cent of the balance to the wife;
22.7.As to 41.4 per cent of the balance to the husband
22.8.Payment by the husband to the wife of the sum of $74,768 pursuant to paragraph 38;
22.9.Payment by the husband to the wife of any amount owing pursuant to paragraph 25;
The payments to the husband and wife pursuant to paragraphs 22.6 and 22.7 will be subject to an adjustment whereby:
23.1.In the event the property sells for more than $4,000,000, the wife will receive 55 per cent of that increase and the husband will receive 45 per cent of that increase;
23.2.In the event the property sells for less than $4,000,000, the wife shall have deducted from the amount that she receives, the sum equivalent to 55 per cent of the difference between the lower contract price and the sum of $4,000,000 and the husband shall have deducted from the amount that he receives, the sum equivalent to 45 per cent of the difference between the lower contract price and the sum of $4,000,000.
Until the sale of the property in accordance with these orders, the husband shall:
24.1.Have sole occupancy of the property to the exclusion of the wife, subject to paragraph 25;
24.2.Pay all rates, taxes, mortgage and other proper outgoings in respect of the property as and when the same fall due;
24.3.Do all acts and things and pay all money necessary to maintain the property presentable for sale in a good state and condition.
The husband pay from his share of the proceeds of the sale of the Suburb H property one half of the lease liability in respect of the wife’s rental property at A Street, Suburb G in the State of New South Wales or such rental property the wife resides in provided it does not exceed $1,000 per week (that is, the husband is not to be responsible for so much of half of the wife’s lease liabilities which exceeds a lease liability of $2,000 per week), due and payable from the date of these orders and payable in a lump sum from the husband’s share of the proceeds of the Suburb H property.
Within 45 days of the wife’s receipt of funds pursuant to paragraph 22.6, the wife shall forthwith do all acts and things and call all meetings and pass all resolutions as sole director of V Pty Limited to declare a fully franked dividend of an amount of $739,977 (“the dividend”) in favour of the U Trust (“the trust”).
Simultaneously with the wife’s compliance with paragraph 26, the wife as trustee of the trust, apply the dividend by way of distribution as follows:
27.1.As to 50 per cent of the fully franked dividend to the husband as beneficiary of the trust which shall be applied in repayment of the husband’s loan account and part in non-cash loan receivable to in effect cancel the husband’s loan account in V Pty Ltd and the balance as a dividend;
27.2.As to 50 per cent of the fully franked dividends to the wife as beneficiary of the trust which shall be applied in repayment of the wife’s loan account and part in non-cash loan receivable to in effect cancel the wife’s loan account in V Pty Ltd and the balance as a dividend.
Upon compliance with paragraphs 26 and 27, the husband and wife do all acts and things and sign all documents, instruments and writings to cause the husband to be removed as a beneficiary of the U Trust.
The husband and wife forthwith do all acts and things and sign all documents as are necessary to divide equally between them the funds held by them jointly in AXA Evolution Funds Policy #331 and Old Mutual Collective Investment Bond Policy #176 and within 42 days the wife do all acts and things and sign all documents as are necessary to transfer to the husband her interest in Barclays ING bank account #014 in the United Kingdom.

The husband, as trustee for the children, is solely entitled to the exclusion of the wife, and the wife has no interest in the following:
30.1.Friendly Society B Account #004;
30.2.Friendly Society C Account #997;
30.3.Share Centre Account #104;
30.4.ING Direct Children’s savings a/c #595, other than to comply with paragraph 32;
30.5.ING Children’s Account #233.
Within 14 days of the date of these orders the husband as trustee for the children, pay $38,000 from the ING Direct Children’s savings account #595 to an account nominated by the wife as trustee for the children.
The Husband shall hold the remaining funds listed in paragraph 30 on trust for the children until they each attain the age of 18 years.
Simultaneous with the husband’s compliance with paragraph 31, the wife shall hold the funds received by the wife in accordance with paragraph 31, on trust for the children until they each attain the age of 18 years.
Each party is to be solely entitled to the exclusion of the other and the other will have no interest in any asset of which each has been designated as owing in the distribution table set out in the reasons for judgment and, as between the parties, each party is to be solely responsible for any liability assigned to each party in the distribution table and that party will indemnify the other party in relation to any obligation arising from that liability.
The parties do all things and sign all necessary documents to sell the Honda motor vehicle and the wine held by L Company in the United Kingdom, account reference #03 and divide the proceeds of the sale as to 55 per cent to the wife and 45 per cent to the husband.
The husband’s superannuation interests with SunSuper Superannuation Fund shall be split to create a superannuation interest for the wife as follows:
36.1.Pursuant to Section 90MT(2) of the Act and Regulation 27 of the Family Law (Superannuation) Regulations 2001 the Court determines the amount in relation to the husband’s superannuation in SunSuper is $279,203.00.
36.2.Pursuant to Section 90MT(4) of the Act the Court allocates a base amount to the wife in respect of the husband’s superannuation interests in SunSuper of $278,000.00.
36.3.Pursuant to Section 90MT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the husband’s superannuation in SunSuper the wife is entitled to be paid an amount calculated in accordance with the Family Law Regulations where the base amount is $278,000.00 and there is a corresponding reduction in the entitlement of the husband at the time of the splittable payment.
36.4.The operative time for the payment under this order is 4 business days after service of this order.
36.5.The trustee shall do all such acts and things and sign all documents as may be necessary, in accordance with the obligations set out under Act and the Family Law (Superannuation) Regulations to calculate the entitlement to make payment to the wife in accordance with these orders.
36.6.The husband shall not give or grant to the trustee of SunSuper a binding death nomination in favour of a child which would have the effect of in any way reducing the value to the wife of the splittable order herein and in particular the base amount allocated to her and the husband and his legal personal representatives in the event of his death, do hereby indemnify and keep indemnified the wife in respect of any loss that may be suffered by her as the result of any failure by him to comply with this order.
36.7.The husband shall forthwith do all acts and things and sign all documents necessary to cause and maintain the wife to be the nominated death beneficiary of his entitlement to a proportion of not less than 95 per cent of the total value of his entitlement in SunSuper until such date as there is a split of payments in favour of the wife pursuant to these orders.
36.8.That having been accorded procedural fairness in relation to the making of this order, this order binds the trustee of SunSuper.
The husband’s superannuation interests with IOOF Employer Super (“IOOF”) shall be split to create a superannuation interest for the wife as follows:
37.1.Pursuant to Section 90MT(2) of the Act and Regulation 27 of the Family Law (Superannuation) Regulations the Court determines the amount in relation to the husband’s superannuation in IOOF is $121,850.000.
37.2.Pursuant to Section 90MT(4) of the Act the Court allocates a base amount to the wife in respect of the husband’s superannuation interests in IOOF of $120,000.00.
37.3.Pursuant to Section 90MT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the husband’s superannuation in IOOF the wife is entitled to be paid an amount calculated in accordance with the Family Law Regulations where the base amount is $120,000.00 and there is a corresponding reduction in the entitlement of the husband at the time of the splittable payment.
37.4.The operative time for the payment under this order is 4 business days after service of this Order.
37.5.The Trustee shall do all such acts and things and sign all documents as may be necessary, in accordance with the obligations set out under the Act and the Family Law (Superannuation) Regulations to calculate the entitlement to make payment to the wife in accordance with these orders.
37.6.The husband shall not give or grant to the trustee of IOOF a binding death nomination in favour of a child which would have the effect of in any way reducing the value to the wife of the splittable order herein and in particular the base amount allocated to her and the husband and his legal personal representatives in the event of his death, do hereby indemnify and keep indemnified the wife in respect of any loss that may be suffered by her as the result of any failure by him to comply with this order.
37.7.The husband shall forthwith do all acts and things and sign all documents necessary to cause and maintain the wife to be the nominated death beneficiary of his entitlement to a proportion of not less than 95 per cent of the total value of his entitlement in IOOF until such date as there is a split of payments in favour of the wife pursuant to these orders.
37.8.That having been accorded procedural fairness in relation to the making of this order, this order binds the trustee of IOOF.
The husband do all things and sign all necessary documents to put into place the orders relating to the splitting of his superannuation interests to the wife and in accordance with paragraph 22.9, to pay to the wife the sum of $74,768 with the intent that the parties’ respective interests in superannuation will be adjusted as being equal.
The parties are to retain or receive furniture, chattels and jewellery in accordance with Schedule 2 of the reasons for judgment.
Either party have liberty to apply on 7 days’ notice in the event of any difficulty arising out of the implementation and enforcement of these orders.
Each party be liable in equal amounts for the tax liability arising from the sale of Skandia and OM assets.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Act to execute such documents on behalf of such party

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 358 of 2014

Mr Lowther

Applicant

And

Ms Lowther

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parties seek that the court resolve disputes between them relating to parenting arrangements in respect of the two children of the marriage, C (“the older child”), born in 2001, and B (“the younger child”), born in 2003 (collectively “the children”). The parties also seek different property settlement orders.

APPLICATIONS

Parenting

Both parties and the Independent Children's Lawyer propose that there be an order for equal shared parental responsibility.
The two most significant issues between the parties relate to the amount of time the children will spend with each of the parties during school term and how school holidays will be shared.
The husband, up until the commencement of final submissions, primarily proposed that the children live nine nights with him and five nights with the wife during school term. His alternate proposal was that the children live seven consecutive days with each parent in each fortnight. During final submissions, the husband abandoned his primary position so that the application he made at the end of the hearing was that the children live week about with each parent during school term.
The wife’s proposal was that the children be with her ten nights a fortnight and the husband four nights a fortnight (after school Friday to before school Tuesday each alternate week).
The Independent Children's Lawyer proposed that an order be made that the children spend time with their father five nights a fortnight from after school Thursday to before school on Tuesday each alternate week.
In relation to school holidays, both the husband and the Independent Children's Lawyer proposed that the children spend one half of each school holidays with their father. The wife proposed that the children spend five of their school holiday weeks each year with the husband during school terms (the configuration being the first week of term 1 in even numbered years; the first two weeks of term 2 school holidays in each year; the first week of the term 3 school holidays in odd numbered years and for two weeks during the summer school holidays commencing Christmas Day in odd numbered years and 11 December in even numbered years).
Various other orders sought by the wife, the husband and the Independent Children's Lawyer are set out in Exhibits 31, 29 and 24 respectively.

Property

The applications sought by the wife in relation to property are set out in Exhibits 31. At the end of the hearing, the applications sought by the husband in relation to property settlement were set out in Exhibit 29, however subsequently, by consent the husband further amended the orders which he sought and I mark that final amended set of orders Exhibit 35. The parties generally agree upon the form of most of the orders sought.
The parties have in effect agreed to split the superannuation assets evenly. Overall the wife is seeking a 60 to 62.5 per cent of the overall non-superannuation assets of the parties. The wife proposes that the husband retain the property at J Street, Suburb H (“the former matrimonial home”) and its mortgage on the basis that he pay to her within 30 days an adjusting sum which the wife calculates to be $3,390,000 and in the event that he does not make that payment, he pay to her a sum of $1,000,000 and the former matrimonial home be sold and that she receive from the proceeds of that sale the amount of $2,390,000 or 60 per cent if the contract price of the property is in excess of $4,000,000. The wife seeks the husband pay her rent pending the sale of the property. The wife also seeks the distribution of chattels.
The parties have agreed upon a distribution of chattels and jewellery.
The husband is seeking a 51 per cent adjustment in his favour of the non-superannuation assets of the parties. The husband had sought to retain the former matrimonial home and pay the wife an adjusting sum which in his application he calculates at $1,479,225. He would have also sought an order that he accept sole liability for the current mortgage on the former matrimonial home.
The husband most recently seeks a sale of the former matrimonial home in which case the mortgage on the home will be discharged. The wife does not oppose an immediate sale of the home.
If the former matrimonial home has to be sold by auction, the parties disagree upon the reserve price (the husband is seeking that that reserve be $4,200,000 and the wife is seeking the value placed upon the property by the single expert, namely $4,000,000).

DOCUMENTS RELIED UPON

The documents relied on by the parties are set out in Schedule 1.

SHORT HISTORY

The wife was born in 1966 in Melbourne. She is currently 49 years old.
The husband was born in 1967 in the United Kingdom, and is currently 48 years old.
The parties commenced cohabitation in October 1994 in the United Kingdom.
The parties were married in the United Kingdom in 1998.
The older child was born in 2001 and is currently 14 years old.
The younger child was born in 2003 and is currently 12 years old.
The parties moved to Australia in August 2004.
In September 2012 the parties separated under the same roof.
On 8 April 2014 the wife vacated the former matrimonial home.

DETAILED CHRONOLOGY

The wife was born in 1966.
The husband was born in 1967.
The husband purchased a property in Suburb U, United Kingdom on 2 October 1994. He borrowed 79,000 pounds to complete this purchase.
The parties commenced cohabitation in October 1994 in the United Kingdom.
The husband sold his motor vehicle in 1995 for 500 pounds.
In January 1998 the wife received $10,000 on the death of her grandmother.
The parties were married in the United Kingdom in mid 1998.
On 4 September 1998 the wife received a distribution from the O Family Trust equivalent to $250,000.
The husband sold his property in Suburb U, United Kingdom in September 1999 for 145,000 pounds. At this time the parties purchased a house in Suburb U for 550,000 pounds. The wife says her parents contributed 100,000 pounds towards the acquisition of that property.
The older child was born in 2001.
The wife received another distribution from the O Family Trust on 16 September 2002 of about $101,500. She says she contributed this money towards the reduction of the mortgage on the U property.
The younger child was born in 2003.
The wife took 18 months off work during 2003 and 2004.
The wife received $15,000 on the death of her other grandmother in 2003 and a gift of $9,000 from her parents.
The parties moved to Australia in August 2004.
In December 2004 the wife commenced working in Australia.
In May 2005 the husband commenced working in Australia.
On 23 June 2005 the parties established the U Trust. The husband was the trustee and the wife the appointor.
On 24 June 2005 the wife incorporated V Pty Limited.
During 2007 the wife travelled on a three month working trip overseas. The husband cared for the children during this time.
In 2007 the parties sold the house in Suburb U, United Kingdom, for 932,000 pounds. The mortgage was discharged following payment of 496,000 pounds.
In September 2007 the parties purchased the former matrimonial home for $4.2 million. $2.3 million of the purchase price was funded from the sale of the U property and the wife contributed $120,000 from the sale of her share portfolio.
In September 2012 the parties separated under the same roof. The wife says that separation actually took place in 2007 because from that time the parties led separate lives.
On 17 September 2013 the parties negotiated a Parenting Plan with a Family Dispute Resolution Practitioner. This plan involved an equal time week about care arrangement and a sale of the matrimonial home. The wife said during her oral evidence that she had been frustrated by the husband’s resistance to selling the home and had agreed to the children spending equal time with him to get the home sold, never thinking that equal time was in the children’s best interests and never meaning to honour what the husband thought she had agreed to.
In October 2013 the wife made enquiries to obtain a senior management position with a bank.
The parties listed the former matrimonial home for sale on 1 October 2013.
In November 2013, without notice to the wife, the husband instructed the NAB to stop withdrawals from his mortgage account, thereby freezing the wife’s ability to use the account. Although this account was in the husband’s sole name because the matrimonial home was in the husband’s sole name, this was accessed by the parties to make ordinary payments for living expenses.
The wife left her employment with X Bank in November 2013 and entered into a Termination Agreement with the bank.
The husband says that on 4 November 2013 the wife told him “I’ve given up work so that I can gain full custody of the children”. That day the husband says the wife told other people that she was sacked from her employment with X Bank.
On 20 November 2013 the wife received a termination payment from X Bank. She deposited $110,000 into the husband’s mortgage account.
The wife then discovered the husband had frozen her out of the use of their regular trading account. The wife asked for access to her termination monies. The husband offered her $25,000, he says upon legal advice, but declined to return the balance of the funds to her.
On 28 November 2013 the wife was able to get the bank to release the $110,000 from the husband’s account using his email address. The husband threatened to sue the bank.
The husband took the children to the coast for a holiday on 26 December 2013 during which time the husband says the children were calm and happy to be with him.
The wife did not permit the husband to travel to the United Kingdom with the children in January 2014.
The husband says he found out on 16 January 2014 that the wife had hidden documents relating to the family law matter in the younger child’s bedroom.
The wife cancelled mediation that was scheduled to take place on 23 January 2014 between the parties. The wife commenced proceedings in this court on that day.
The children commenced therapy with Ms R in April 2014. This was recommended by the family consultant.
On 8 April 2014 the wife vacated the former matrimonial home. Orders were made by consent between the parties on 28 April 2014 that the children live week about with each parent. Those orders expired in October 2014 and were remade by consent on an interim basis on 14 November 2014.
On 14 April 2014 the Specific Issues Report was issued by the family consultant.
On 1 May 2014 the husband says the older child disclosed to the husband conversations he had had with the wife about therapy and the family law litigation.
Between May and November 2014 the wife withdrew funds from the NAB V Pty Ltd account. (as discussed below).
The husband took the children to the United Kingdom in June 2014 for a holiday to visit his family.
On 15 June 2014 the wife demanded payment of $126,524 to be paid by the husband into the V Pty Ltd account.
Dr M released his first export report on 25 June 2014.
The husband paid the demand for $126,524 on 27 June 2014 by drawing on the NAB mortgage account.
The husband contends that in July 2014 he was approached by a real estate agent to sell the former matrimonial home for a price “in the mid-four millions”.
Ms Z began working as a nanny for the husband in mid July 2014.
The husband was issued a Termination Notice by K Ltd on 31 July 2014.
The husband completed the “Keeping Kids in Mind” parenting course on 2 September 2014.
The wife entered the former matrimonial home despite an exclusive occupancy order that had been made on 4 September 2014. The husband complains this was the sixth occasion on which the wife did this.
The husband and children travelled to New Zealand for 10 days on 5 December 2014.
The husband ceased work with K Ltd on 31 December 2014.
The younger child broke her arm while horse riding in January 2015.
The husband took issue with the wife making arrangements for friends to be with older child on the child’s birthday in early 2015 during a time he was in the care of the husband.
In February 2015 the husband accepted a part-time position at S Organisation.

On 6 March 2015 Ms Z ceased working for the husband and in April 2015 Ms Y commenced working as the nanny for the husband.
The husband commenced a full time position with the S Organisation on 25 May 2015.

THE APPROACH IN CHILDREN’S CASES

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

WHETHER THE YOUNGER CHILD HAS AN ENMESHED RELATIONSHIP WITH HER MOTHER

The husband holds the view that the younger child has been deeply empowered in an unhealthy relationship with her mother.
The husband says that in April 2013 the wife said to the children “I’m planning to give up work so I can look after you and he can pay for me for the rest of my life”.
The husband also contends that in August 2013 the wife yelled at him in the presence of the children “They will never see you after the divorce” and in September 2013 “You will not look after the children”.
On 15 September 2013 the husband says the wife told him “You leave the family room, no one wants you here”. This was in the presence of the children.
On 1 December 2013 the husband asserts the older child demanded to see the Parenting Plan but he refused to show the child.
In October 2013 the husband says the children started to ignore him and told him to “piss off”.
When the family consultant saw the family on 31 March 2014 she noted that the younger child was highly indignant, very confused and totally aligned with her mother. She also opined that the children were “dangerously empowered”. She observed that the younger child was sifting through the enormous amount of adult information she had in her brain. The family consultant thought that much of that information came from the wife.
In his first report, Dr M notes that the younger child was highly protective of her mother. He opined that there was no doubt that the child, when with her father, missed the emotional intimacy of the enmeshed relationship with her mother. Dr M recorded that given her pseudo-maturity which had developed in the context of the wife-daughter relationship, it was unsurprising that she complained that her father treated her like a kid.
Dr M’s first interviews were done on 16 June 2014 with a report released on 26 June 2014. To some extent, Dr M’s report is influenced by an adversarial expert report that the husband’s solicitors had commissioned from Dr W. Dr W did not see either of the parties or the children. His report was commissioned on 3 April 2014 and he provided it on 11 April 2014. It consisted of a letter being written by the husband’s solicitors setting out the husband’s instructions and Dr W was asked to comment upon the issue of alienation. Dr W’s opinions were not admitted before me but his report was in evidence as a document that had been provided to Dr M and had been to a significant degree, adopted by Dr M after he had seen the parents and the children and reviewed other written material.
At [6] of his first report, Dr M recorded that the wife rejected the assumptions in Dr W’s report, as he had based his opinion upon the assumption that the wife had turned the younger child against the husband in a manipulative fashion. Dr M did record however that the wife acknowledged that she and the younger child had been “emotionally intertwined” and that she had shared her experience with the child. During oral evidence Dr M confirmed that this conversation took place in the context of Dr M exploring with the wife her response to Dr W’s report. Dr M confirmed “intertwined” and “enmeshed” meant the same thing. Dr M said that although the wife spoke of emotional intertwinement in the first interview, during the second interview she denied any form of enmeshment.
In his first report Dr M also referred to a previous report of Dr W who had also postulated about the potential problems of alignment and alienation should the children be prevented from maintaining a significant and substantive relationship with the husband.
Dr M sets out in his second report details of his telephone interview with the family therapist, Ms R. Ms R indicated to Dr M that the enmeshed mother/daughter relationship had changed during the course of therapeutic intervention to the extent that there was no longer evidence of enmeshment. There was no indication the wife was currently undermining the husband’s relationship with the children, nor that the wife sought to alienate the children from him. During his oral evidence Dr M indicated that he had only just had the opportunity of perusing Ms R’s notes. He had formed a different view of her objectivity than the one he had formed when he spoke to her in his telephone interview. Having read some of the notes he was of the view that she had been influenced by the wife’s micro-management of the therapy. In those circumstances it was agreed by all that Ms R would not continue to provide family therapy.
By the time of the final hearing, Dr M expressed the view that although the wife/daughter relationship had previously been identified to have been enmeshed, this had ameliorated over time and both the wife and the younger child were able to recognise the importance of the husband’s role in the family.
During cross examination, Dr M said that there were healthy and unhealthy aspects of the younger child’s relationship with the wife. The healthy aspect of having the close connection and feeling respected and acknowledged by her mother was validating and something the child enjoyed. The part that Dr M found problematic was that the child identified very strongly with her mother and the wife shared a lot of information and a lot of emotional experience with the child which would be regarded as excessive.
Dr M accepted the view that the relationship between the younger child and her father was more a parent-child relationship as opposed to an interaction of equals. This is something Dr M accepted the child resented.
In oral evidence, the husband indicated that there had been significant improvement in the younger child’s attitude towards him during the course of the litigation. He commented that the child was now at a point where he was able to tuck her into bed at night; she draped her legs over him whilst they were watching television together on the lounge; she told him that she loved him and he was being allowed to go into her bedroom.
The interim orders for a week about arrangement have been useful in creating a circuit breaker for what was potentially a very damaging situation in respect of the younger child’s future relationship with her father. The circumstances around those difficulties had their genesis in the volatile situation that existed in the household when the parties were separated under the one roof, particularly in circumstances where the husband was resisting discussing property settlement; the husband locked the wife out of the joint account and for a short time, deprived her of access to her termination benefits; the wife had disingenuously entered into a parenting plan with no long term intention to commit to what she had agreed to on paper and had made the mistake of hiding papers relating to the court proceedings in the younger child’s bedroom thinking that her daughter would not be tempted to read those papers, notwithstanding the fact that her mother had told her not to look at them.
There was a significant shift in the opinion of Dr M between his first and second reports in relation to the nature of the mother/daughter relationship and I accept Dr M’s opinion as to the nature of that relationship as expressed by him in his second report and during oral evidence.

STATUTORY CONSIDERATIONS

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))

Dr M opined, and I accept, that the children would continue to benefit from both parents’ active engagement in their lives and would continue to benefit from having a significant and substantive relationship with both parents.

The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))

Dr M opined, and I accept, that although the children had been exposed to parental conflict, they had not been exposed to family violence and there was no indication that they had been exposed to or were at risk of being exposed to future family violence, abuse or neglect.

The additional considerations

Children’s views (s 60CC(3)(a))

The children’s views need to be seen through the prism of the discussion and conclusions set out above in respect of the possibility that the younger child has an enmeshed relationship with her mother.
The family consultant interviewed the children on 31 March 2014. She found the children to be highly intelligent, articulate children who were open in expressing views and opinions. However, at that point in time, the family consultant was also of the view that the children were caught in the middle of a complex and bitter dispute between their parents and it was not possible to know the extent to which their views were genuinely their own or formed as a consequence of pressure and/or a desire not to hurt one or the other parent’s feelings.
In his first report in 2014, Dr M found that the children were highly articulate in the expression of their experience and views. He opined that the children presented in a manner consistent with their parents’ thoughtful observations. The older child had adapted well to shared care and commented that this was the best arrangement. The older child was motivated for the parental conflict to be resolved. The older child was also empathetic of the younger child’s experience. Dr M noted the younger child to be protective of her mother. The younger child identified interactions with her father as being less of an interaction of equals and more of a parent-child relationship. It was recorded that the younger child stopped short of expressing the view that she wanted to return to her mother’s primary care, but was making persistent complaints about her father’s care.
Dr M interviewed the younger child again for the last time on 20 July 2015. He found that there was no evidence that she had been prepared by either parent for the assessment but it appeared striking to Dr M that the child used the word “amazing” frequently which is the wife’s favourite descriptor.
The younger child regards the current orders as “quite complicated” in that things would change rapidly from everyone being happy to things going wrong. The younger child spoke to Dr M about recent altercations between the older child and the husband. On the weekend prior to the interview, the children had been arguing, the older child was hitting her and the husband intervened. The younger child told Dr M this was not something that would happen at the wife’s home and her mother would “control it from the start”.
The younger child presented the view that she did not often agree with her father and whilst she found him “amazing” looking after her, he did not respond well to her emotional experience and would ignore this and leave the problem unsolved. The child noted that it was hard to have a good relationship with her father as they did not get on and had different opinions.
The younger child described the time since separation and living in an equal time arrangement as difficult. She did not feel there was enough time to settle and found it hard swapping between houses.
The younger child described living with her mother as normal. She said she is really happy with her mother. The child told Dr M she found it difficult living with an au pair at her father’s home and that the situation was hard to deal with because she would get to know the au pair and then they would leave.
Ms R told Dr M during a telephone interview that the younger child remained definite in her wish to reside in her mother’s primary care. This was seen to be the child’s own view, rather than a reflection of her mother’s wishes.
The older child was last interviewed by Dr M on 20 July 2015. He commented to Dr M that he did not have a problem with the equal time arrangement as he was quite flexible and could mould. He knew it was a problem for his sister, and commented that the younger child’s situation is more important that his own personal preference. He found it important that the younger child’s comfort was looked at and was well aware of hi sister’s unhappiness in the current circumstances. Dr M accepted the proposition put by senior counsel for the husband that the older child operated upon the principle “happy [B], happy life.”
The older child gets on well with both parents. He noted that at home with his mother, she was present the whole time, and with his father he was largely cared for by au pairs.
The older child discussed with Dr M his therapy with Ms R. He found going to see her to be a chore and did not find it really helpful. He preferred not to go and see Ms R.
In respect of school holidays, the older child felt everyone was available and he was happy with the 50/50 arrangement.
Dr M ultimately found the children’s wishes to reside primarily with the wife (or the younger child’s strong desire and the older child’s support of his sister’s strong wishes) was not to be seen as simply a function of the close and intense mother/daughter relationship but also involving factors such as the husband’s parenting style, the coming and goings of au pairs, and the more volatile sibling interaction in the husband’s care.
Records from the younger child’s school were tendered and are Exhibit 12. On 9 April 2014 there is a note about the child telling the deputy principal about the family situation and that her desire is to be 10 nights with the wife and four nights with the husband. The child also told the deputy principal that she does not want to spend time with her father as according to her every conversation ends up in an argument at the moment. On 29 May 2014 the child told her deputy principal that she was not happy with the equal time arrangement but was prepared to give it a go. Interestingly, the child referred to the au pairs her father was employing as “big sisters”.
In final submissions, senior counsel for the husband and counsel for the Independent Children’s Lawyer referred to the younger child telling all and sundry that that she wished to spend more time with her mother and that she is not happy with the current circumstances. The use of the words “all and sundry” came from Dr M’s oral evidence. I accept the submission made by senior counsel for the wife that that is probably an unfair categorisation. Senior counsel for the wife submitted that the child only told people who matter to her, and institutions that matter to her, such as her school and I accept that is so.
Dr M opined that significant weight should be given to the children’s views. In cross examination he said that the challenge of not acknowledging or respecting, to a significant degree, the younger child’s experience would be significant. Dr M opined that to not acknowledge the way the younger child feels would inflame rather than contain her emotional experience. Dr M felt the younger child was the emotional thermometer of the family and if she is in uproar she will be difficult to contain. Going into adolescence, Dr M indicated that one would expect her emotional experience to be further amplified. He said the motivation for his recommendation that the children live most of term time with the wife was as an acknowledgement to the child that she had been heard and respected.
It is probably that the younger child is aware that the wife’s application before the court is for four nights a fortnight during school term and it is also probable if asked, the child would express a view that was consistent with her mother’s view. Dr M’s recommendation of five nights has the attraction that it would indicate to the younger child that the court had not entirely adopted her expressed views.
In final submissions senior counsel for the husband referred to the family consultant’s first finding that the younger child was an “interesting child”, was extremely loquacious, very expressive and her use of language was highly advanced. The family consultant also said that although the younger child presented in many ways as older than her years, this is superficial, and under that pseudo maturity, she was at that time a quiet ten year old. Senior counsel for the husband then referred to Dr M’s views as to the child’s pseudo-maturity and that because of her level of maturity which she had developed in the context of the mother-daughter relationship, it was unsurprising that the younger child complained her father treated her like a kid.
In oral evidence Dr M opined that although the younger child is only 12 years old, she is functioning at a more intense emotional level and is less compliant than an average 12 year old. The first reason for this, Dr M put down to the child being a bright and articulate girl, and secondly because of the family dynamics and the child’s pseudo-maturity.
The husband submitted that the younger child, at her age, should not dictate what arrangements should be. The husband submitted that the child has been over empowered to the point of dictating agendas.
I am unable to accept those submissions. The younger child is now aged 12 years and four months. Her views are strongly expressed and have been consistently held for a significant period of time. Dr M assesses that whatever might have been the situation in the past, those views, whilst they coincide with the wife’s views, are independently held by her. I accept Dr M’s opinion that not to recognise the reality of the current situation in relation to the child’s strong feelings would be to jeopardise rather than enhance the daughter/father relationship moving forward. The younger child’s strong views (and the older child’s recognition and support for his sister’s views) are a very weighty matter in this case.

Relationships of the children with the parents and other persons (s 60CC(3)(b)) and the willingness of the parents to participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the children (s 60CC(3)(c))

During their first interview with Dr M on 17 June 2014, Dr M observed a lack of conversation and engagement between the children and their father. A close and intimate relationship was observed between the children and their mother.

The husband raised during the hearing, and also with Dr M, an issue as to the wife continuing to undermine the younger child’s perception of him as a father. The husband feels the wife undermines his role with regards to matters relating to education and health and in his view the child does not have a sense of him as a core part of her life. The husband also expressed the view to Dr M that the wife wanted to install the view that she was the primary carer of the children and this impeded his capacity to re-establish a relationship with the children. The husband said he never got the chance to have a natural relationship with the children.
The children both expressed the view, and the husband accepted that view, that the children did not like the transient nature of the au pairs.
The wife told Dr M that she and the younger child talked about the child’s relationship with her father. The wife acknowledged that the child loved her father and wanted a relationship with him but after spending time with him, the child would return in a sad and worse state and would feel stressed. The wife was of the view that the younger child was not happy and not coping with the current arrangements and this was affecting her relationship with her father and the older child.
Dr M stated during oral evidence that he did not share the husband’s concern that if he did not spend nine nights a fortnight with the children in school term he would forever lose his relationship with the younger child. Dr M was of the view there was no “magic number” of days. He said significant contact is important, and being involved in the children’s day to day life is important. In recommending five nights Dr M said it was a number in between both parties’ proposals and allows a balance whereby the children’s developmental needs are met and there is appropriate parental guidance and executive control.

Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))

There is no suggestion that either of the parents has not fulfilled their obligation to maintain the children.

Likely effect of any change in the children’s circumstances (s 60CC(3)(d))

Counsel for the husband submitted that it would be devastating to go back to an arrangement that did not work. The husband’s initial proposal of nine nights per fortnight (abandoned by the husband during final submissions) would have seen an increase in the amount of time the children spend with him, and a large decrease in the amount of time spent with the wife. The evidence suggests a strong desire for the younger child to spend more time with the wife. The older child supports his sister’s wishes. Dr M stressed in his oral evidence the negative effects of forcing the younger child to spend more time with the husband, particular to her emotional development, saying that the child would be outraged by a proposal for nine nights.
The arrangement proposed by both Dr M and the wife (the children being five nights and four nights a fortnight with their father respectively) would be a change from the current interim arrangements. Dr M opined, and I accept, that that change would be beneficial for the children.

Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))

The husband has a very strong view that the wife continues to behave in ways that undermine his position as a parent. He consequently resists the wife having any freedom to come to his front door (even though on about half the occasions when she has come to his home it has been by invitation usually to return some item that has been left behind by the children). Other than that, there is no practical difficulty and expense involved in the children spending time with and communicating with either parent when in the care of the other parent.

The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60cc(3)(i))

The husband presented both his written evidence during his interviews with Dr M and in oral evidence as having a preoccupation with the wife’s undermining behaviour. Dr M found that even normal behaviours such as the return of a school blazer were interpreted as inappropriate, intrusive and undermining of his relationship with the children. Dr M opined that the husband’s focus on parallel parenting was not beneficial to the children as it perpetuated the parental communication difficulties and impeded on their problem solving.
During final submissions, senior counsel for the husband emphasised the evidence that the husband had given at [50] to [90] of his trial affidavit. Senior counsel relying upon Scott and Scott (1994) FLC 92-457 suggested that since none of that evidence had been challenged it should be accepted by the court. As the Full Court pointed out in Scott, there is no rule of law that requires a judge must accept evidence which is unchallenged. It depends upon the circumstances of a particular case.
Paragraphs 50 to 90 of the husband’s trial affidavit set out the husband’s views at to the wife’s parenting capacity. Issues the husband raises include:
137.1.The wife involving the children in the family law issues and giving the younger child family law documents to look at;
137.2.The wife organising things for the children including a performance at the Opera House, a birthday present for the younger child, a birthday party for the older child and his friends, a mathematics school camp for the younger child;
137.3.The wife undermining the husband’s relationship with the children by yelling at him and accusing him of stealing money in front of the children, telephoning the children twice a day when they were holidaying with the husband, being in the presence of the children in a very overt way and lodging a postal re-direction for the children’s mail.
137.4.An argument between the parties regarding money in the joint mortgage account that occurred on 3 December 2013 in the presence of the children.
The husband was, however, cross examined about some of what is in those paragraphs, in particular his view about the wife undermining his relationship with the children. He was cross examined about the mathematics camp. It turned out that the husband was aware of the mathematics camp, had received an invitation and had discussed it with the younger child. He took issue with the wife submitted approval and payment for the child to attend the camp when the child was to be with him during that time. The husband felt that he was the parent who should have done those things. The husband was also cross examined about the older child’s birthday party and his concerns that the wife did not consult him about organising the party when the child was to be in his care. He said he found it inappropriate that the child was left to tell him about the arrangements. The husband was also extensively cross examined about the argument that took place between he and the wife about the monies in the joint mortgage account. The husband said the children were parroting the wife and accusing him of stealing the wife’s money. The husband felt ferociously attacked by the wife and children.
Senior counsel for the wife, in his submissions, referred to that oral evidence and also to Exhibit 20, 21 and 22 which were tendered during that cross examination.
Exhibit 20 is a series of emails between the parties. In these emails the parties discuss at one point the wife dropping items of clothing off to the husband’s home. The emails, however, go largely to selecting a high school for the younger child and the child’s own involvement in that decision. The husband had told Dr M that the wife did not involve him in the younger child’s scholarship exams. Senior counsel for the wife during cross examination of the husband tendered the emails to suggest the opposite.
Exhibit 21 goes to the wife informing the husband as to health issues involving the children including the younger child’s broken arm and orthodontics. Despite being shown that email the husband continued to assert that the wife undermines his involvement in the children’s health issues.
Exhibit 22 are emails between the parties regarding permission forms the younger child had given the husband. The husband had told Dr M that the child had only given the wife permission forms. Despite being shown emails the husband continued to assert he was not given all forms and this was a part of the wife’s undermining of him.
I find that the wife’s involvement in completing the forms for the mathematics camp and the older child’s birthday arrangements was not inappropriate.
Senior counsel for the husband submitted that this evidence supports a finding that the wife has been involved in undermining the husband’s relationship with the children. In this case, I have no difficulty in finding that at particular points in time the wife’s ability to let go of her micro-management of the children’s lives whilst they are with their father has been more intense than it is at the current time.
The husband submitted in his case outline document that the children have been the subject of psychological manipulation by the wife and that she has exposed them to conflict and emotional harm. The wife has involved the children in issues to do with this matter. The family consultant found that they were highly aware of what was going on between the parties.
Dr M found that both parents had demonstrated an appropriate attitude to the responsibilities of parenthood. They shared values and a commitment to the children’s welfare enabling them to have an excellent education and numerous extra-curricular opportunities. However in cross examination, Dr M noted that the wife remained concerned that there were aspects of the husband’s parenting that were simply not good enough. The wife does not support the children remaining primarily in the husband’s care, or shared care. The wife feels she is more capable of meeting the children’s needs.
There was an issue raised during the hearing as to whether or not the wife intended to resume employment any time soon. The wife was very successful and very well renumerated in her previous employment.
The older child did comment to Dr M that he understood the wife was thinking of returning to work in the future. The older child also told the family consultant one year earlier that he hoped his mother would go back to work as her career was an important part of her and her life.
In oral evidence the wife said that she thought initially the children could not believe it was plausible that all their life their mum had worked and now would not go back. She acknowledged she might have said at some future point in time when she believed the children were settled that she would go back to work, but that would not be for four to five years. I accept the wife’s current intention is not to return to the paid workforce in the foreseeable future. The wife has also said that she would return to work once she assesses the children are settled.
I accept the wife’s sworn evidence as to her current intentions to be available full time to look after the children during periods of time when the children are to be with her.

The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))

I have referred above to comments made by the family consultant upon meeting the younger child on 31 March 2014, in respect of the child’s pseudo maturity. Dr M commented on the child’s maturity levels in his first and second report. I have discussed his views already.
As indicated above, both children are highly intelligent, articulate children who are able to openly express their view and are at a level of maturity where serious attention needs to be paid to what they are saying.

If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))

Not applicable.

Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))

Not applicable.

Likelihood of order leading to further proceedings (s 60CC(3)(l))

Dr M was of the view that if the children were ordered to spend nine nights per fortnight with the husband, the younger child would find this difficult and this could affect her emotional development. I find that even an order for an equal time arrangement would be likely to lead to further proceedings in the future.

Any other relevant fact or circumstance (s 60CC(3)(m))

Not applicable.
Both parents and the Independent Children's Lawyer seek that an order be made that they have equal shared parental responsibility for the children, Dr M recommends it, and I find it would be in the best interests of the children for that order to be made.

SECTION 65DAA(1) OF THE ACT

Given that I propose to make an order for equal shared parental responsibility, s 65DAA(1) and (2) are enlivened. Section 65DAA(1) provides that I must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides:
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
The husband now proposes an equal time arrangement. The wife proposes that the husband have substantial and significant time.
The parties have demonstrated that an equal time arrangement is reasonably practicable, notwithstanding the difficulties that have existed from time to time around the movement of wearing apparel and other items.
The real issue in this case is whether or not an equal time arrangement is in the best interests of the children.
Dr M is of the view that it is not, and that the maintenance of significant and substantive time between the children and their father, of the order of five nights per fortnight, half school holidays and shared special days, is the preferred arrangement. In oral evidence, Dr M said that it would at times be challenging for the younger child to spend the five nights with the husband, but in the current equal time arrangement the wife and the child have been compliant. As indicated, he opined that if the children were ordered to spend nine nights a fortnight with the husband the child’s reaction would be one of outrage and she would escalate the situation. She would be more difficult to manage. Senior counsel suggested to Dr M that if the wife was more supportive, a week about arrangement could work. Dr M flatly rejected that proposition. As indicated, the husband maintained an application until the commencement of final submissions that the children spend nine nights a fortnight with him during school term. The husband’s primary motivation in relation to seeking the majority of time with the children was his conviction that the wife’s past behaviour, which he viewed as alienation, would inevitably lead to him losing his relationship, particularly with the younger child, unless he had that amount of time with her on a fortnightly basis. Dr M opined that rather than the child focussing on aspects of her life including schooling and social development, her home situation would become a bigger issue in her mind and she would feel more hostile, more resentful and this would be deleterious to her emotional development.
I conclude that the arrangement that would be in the children’s best interests is that proposed by the Independent Children's Lawyer and Dr M and I will order that the children spend time with the wife for nine nights a fortnight and the husband five nights a fortnight during school term.
In respect of school holidays as set out above, both the husband and the Independent Children's Lawyer propose that the children spend one half of each school holidays with their father. The wife proposes the children spend five weeks each year with the husband. It was agreed that the children would be off school in the order of 15 weeks a year, which would mean if holidays were split evenly the children would be with each of their parents for about seven and a half weeks a year. That means that for about a week and a half at least, the husband would be working during school holidays. Dr M opined that it would be ideal for the husband to spend his six weeks leave with the children. He acknowledged that if the children are at home during the holidays with an au pair, and their mother is at her home which is in close proximity, this might be a recipe for frustration and resentment, particularly for the younger child. Dr M was of the view the wife might feel that way too. Dr M however accepted the proposition that that frustration and resentment could be answered by the wife being supportive of the husband’s time with the children. It was submitted by counsel for the Independent Children’s Lawyer that the children are at an age where they will not be sitting at home every day being looked after by a parent or au pair. They are more likely to spend time out in company of friends or doing things themselves.
Counsel for the husband submitted that the time he would be at work if school holidays were shared equally was modest and that the children would also be going to friend’s homes and outings.
Counsel for the wife submitted that some of the holiday time spent by the children would be in the care of an au pair and that if the younger child knows she is at home with an au pair and her mother is home nearby, that would impact on her conduct. The wife’s preference is that the husband be home with the children during holiday time, but should positive and alternate arrangements be made, counsel for the wife submitted that the wife would give consideration to it.
In order to guard against any resentment the younger child might feel being at home during school holidays when her father is at work and her mother is available, I will make an order that during any school holidays when the husband is at work, one or both the children should have the ability to visit with their mother during the period of time when their father is away at work on the basis that they do not leave the husband’s home until after he has left for work and they come back to the husband’s residence prior to him returning home from work.
The focus of submissions went to how much time each of the children would spend with their parents during school term and how much time the children would spend with their parents during school holidays. There was no focus during submissions on the numerous other parenting orders that were sought. Many of them are to identical effect, even though the words used might be slightly different. Some of the times proposed are different. I have selected from each of the three proposals the version that I have thought would best suit the children’s interests. Where a party proposed an order which seemed reasonable and no other party had said it was not, then I have made that order.

The parties are both in good health.
Based on my findings in relation to the parenting issues, the wife will fulfil the role of primary carer for the children. The parties have throughout the course of their marriage, managed their roles as parents whilst both maintaining demanding full time positions in their employment.
Whilst it is the wife’s current intention not to go back to work for four or five years, now that final decisions have been made in this litigation, things may well stabilise for the children and particularly for the younger child in a shorter time frame than that, and the wife may feel that she is able to re-engage with the work force in a shorter space of time. As noted above the wife said once the children were settled she would return to work.
Senior Counsel for the husband submitted that the wife’s earning capacity will be available to her, and will vastly exceed anything the husband will be able to earn. The husband asks me to accept that the wife has previously demonstrated a superior earning capacity, and is likely to again realise that capacity. Senior counsel for the husband submitted that the wife made the decision to stop working on her own and the consequence has been that monies that otherwise would have come to the family, have not, and so capital has been diminished. Senior counsel for the husband also submitted that it is entirely a matter for the wife if she wishes to return to work but the financial consequences of the wife not being in employment should not call for a further adjustment.
Senior counsel for the wife submitted that this was not a case where a party who has historically enjoyed a significant income elects to no longer exercise it in the absence of any reason. Senior counsel submitted that there is evidence that the children need assistance on an ongoing basis because of the turmoil they have experienced, that is, the children require a full time mother. The wife wishes to be the primary carer and it is submitted that she ought not be criticised for wanting to do that. It was also submitted by senior counsel for the wife that as each year rolls by without the wife being employment, it would become more difficult to return to a level of income that she enjoyed at the time she ceased employment. Section 75(2)(l) of the Act allows the court to take into account the need to protect a party who wishes to continue the party’s role as parent.
I take into account at least in the short term, the husband will have significantly superior earnings to the wife simply because the wife is currently not in the workforce and I accept will not be in the workforce for some period of time.
Given that the husband will be working and the husband will not, the husband is likely to be paying some child support to the wife.
Taking all those matters into account, and being mindful of the adjustment being made in the wife’s favour as a result of the finding in relation to contributions, I find that no further adjustment needs to be made on account of s 79(4)(d) – (g) matters.

JUST AND EQUITABLE ADJUSTMENT AND PROPOSED ORDERS

Based upon my findings as to contributions and s 79(4)(d) – (g) factors, the wife should receive 55 per cent and the husband receive 45 per cent of the non-superannuation assets and they both will effectively receive 50 per cent of the superannuation.
Taking into account the comments I make in respect of proposed orders below, overall percentage division could be achieved by a distribution of the non-superannuation assets and liabilities in accordance with the table set out below.

Husband gets 45.0%
Assets
Item No.	Description	Percentage	Value
1	Suburb H home	41.4%	$1,654,996
2	Honda … motor vehicle (to be sold)	100%	$0
4	Contents and jewellery	100%	$17,330
5	Jewellery (see item 4)	100%	$0
7	County E house	100%	$57,462
8	Honda … motor vehicle	100%	$27,810
10	Wine (to be sold)	100%	$0
11	NAB a/c #944	100%	$89
12	NAB a/c #005	100%	$1,342
13	Lloyds a/c #441	100%	$2,846
14	Lloyds a/c #877 debit card	100%	$940
15	Lloyds a/c #160	100%	$47,646
23	K Ltd shares x 4674 - proceeds	100%	$768,563
28	Old Mutual Collective Investment Bond policy #176	50%	$187,917
29	AXA Evolution Funds policy #331	50%	$107,197
31	Barclays ING #014 - UK	100%	$7,235
33	Legal fees	100%	$301,258
Liabilities
Item No.	Description	Percentage	Value
34	NAB home mortgage	41.4%	$362,385
35	V Pty Ltd loan a/c	100%	$171,798
37	CG tax on K Ltd shares	100%	$157,500
38	V Pty Ltd tax liability	100%	$70,298
41	Tax on sale Skandia & OM assets	50%	$12,323
43	EY fees	100%	$0
Net Assets to Husband			$2,408,327
Wife gets 55.0%
Assets
Item No.	Description	Percentage	Value
1	Suburb H home	58.6%	$2,345,004
3	Audi motor vehicle	100%	$9,650
6	Contents and jewellery	100%	$42,215
9	Contents (see item 6)	100%	$0
10	Wine (to be sold)	100%	$0
16	ING Direct Savings a/c #378	100%	$303
17	Natwest a/c #199	100%	$93
18	Natwest a/c #714	100%	$10
19	NAB current a/c #5735	100%	$25
20	Rabo a/c #600	100%	$41
21	CBA current a/c #320	100%	$7
22	CBA (CDIA)	100%	$3,211
24	WOW shares x 4410 - proceeds	100%	$39,348
25	TLS shares x 500	100%	$2,770
26	NAB shares x 9527	100%	$289,368
27	SCA shares x 834	100%	$1,681
28	Old Mutual Collective Investment Bond policy #176	50%	$187,916
29	AXA Evolution Funds policy #331	50%	$107,198
30	V Pty Ltd/U Trust	100%	$517,984
32	Legal fees	100%	$270,106
Liabilities
Item No.	Description	Percentage	Value
36	V Pty Ltd loan a/c	100%	$257,028
39	V Pty Ltd tax liability	100%	$70,298
40	Tax on sale of Woolworth shares	100%	$18,174
41	Tax on sale Skandia & OM assets	50%	$12,323
42	Tax liability personal tax year ended 30/6/15	100%	$3,334
44	Fees	100%	$0
34	NAB home mortgage	58.6%	$512,685
Net Assets to Wife			$2,943,088

Standing back, I consider an adjustment of assets and liabilities in that manner to be one that is just and equitable between the parties.
In relation to the proposed orders for a sale of the former matrimonial home, both parties agreed that the property would initially be listed by private treaty and they seem on the face of their respective minute of orders to agree if they cannot agree on a sale price then that price is to be determined by a nominee of the Australian Property Institute. If the property remains unsold after ten weeks, then the property is to be listed for sale by public auction and in those circumstances the husband proposes a reserve price of $4,200,000 and the wife proposes a reserve price of $4,000,000.
I would rely on the expert evidence as to the value of the property in the sum of $4,000,000 and accordingly I would prefer the wife’s position in relation to what the reserve should be. Obviously the parties themselves can agree at the time of the auction on a different reserve.
As indicated above, the parties agreed that the Honda vehicle and the wine holding in the United Kingdom be sold and the proceeds divided 55 per cent to the wife and 45 per cent to the husband.
In relation to items 28, 29 and 31 on the balance sheet, namely the Old Mutual Collective Investment Bond Policy #176, AXA Evolution Fund Policy #331 and Barclays ING #014 (UK), the husband wishes to transfer all three assets to the wife. The wife wishes the first two to be divided evenly and the third to be transferred to the husband. Neither party addressed me in relation to this issue. Given the size of the investments in items 28 and 29 and the lack of any exploration as to the nature of those investments, they should be divided evenly between the parties. In relation to the small investment in Barclays, for the sake of convenience given it is in the United Kingdom and the husband is retaining other substantial interests in the United Kingdom, he should retain it.
Both parties agree on a wording of orders relating to the assets and liabilities in V Pty Ltd and the U Trust. There is no issue between the parties as to the value to be placed upon the balance sheet relating to the parties’ interests and loan accounts in these assets.
In relation to item 41, this is a joint liability on the balance sheet for tax on the sale of Skandia and OM assets in the sum of $24,646. Neither party seeks any order in respect of that liability and each party should pay one half of that liability.
The husband and wife have agreed that monies held by them in trust for the children will be treated as a joint financial resource and that those monies will continue to be held by them for the children. The parties have agreed on the investments to be held by the husband as trustee and have agreed that monies be transferred by the husband to the wife to be invested by the wife in trust accounts for the children so that the parties each hold one half of the value of all of the children’s trust accounts.
It is the mutual intention of the parties that superannuation splitting orders should be made so that as far as possible, the superannuation interests of the parties are held evenly. This will not be able to be entirely achieved and will need the husband to pay a cash adjustment, given the substantial interest the husband holds in superannuation in the United Kingdom. The parties agree that the husband will transfer to the wife, by way of a splitting order, almost the entirety of his interests in IOOF Spectrum Superannuation and Sun Superannuation. The husband proposes a base amount splitting order of $120,000 and $178,000 respectively and it seems simpler to make an order in those terms than the terms proposed by the wife.
The mathematics of the cash adjustment to create equality is set out in the following distribution table.

Husband gets 50.0%
Assets
Item No.	Description	Percentage	Value
1	IOOF Spectrum Superannuation	$1,850
2	Sun Superannuation	$1,203
3	Standard AVC	100%	$234,743
4	Equitable AVC	100%	$4,340
5	Friends AVC	100%	$42,796
6	F Company	100%	$869,827
7	P Company pension	100%	$107,165
8	Q Company pension	100%	$132,104
Husband pays Wife			$74,768
Net Assets to Husband			$1,319,260
Wife gets 50.0%
Assets
Item No.	Description	Percentage	Value
1	IOOF Spectrum Superannuation	100%	$120,000
2	Sun Superannuation	$278,000
9	NAB superannuation	100%	$111,975
10	Macquarie superannuation	100%	$675,413
11	Aviva 1	100%	$27,352
12	Aviva 2	100%	$14,168
13	Standard UK #007	100%	$17,583
Wife receives			$74,768
Net Assets to Wife			$1,319,259

The husband had proposed that he pay the wife the sum of $71,500 by way of superannuation adjustment within seven days. It can be seen that the amount that the husband will need to pay the wife by way of a cash adjustment to achieve equality is in the sum of $74,768. I will order that the adjusting sum be paid from the husband’s share of the proceeds of the sale of the former matrimonial home.
The wife has sought an order, as a part of the s 79 property order, that pending any sale of the former matrimonial home, the husband pay the lease liability of the wife’s rental property at Suburb G or such rental property the wife resides in provided it does not exceed $2,000 per week due and payable from the date of these orders until the wife has been paid the amount that she is due under these orders, either in cash by the husband or from the proceeds of the sale of the former matrimonial home. Neither party addressed me in relation to this application. The husband, after these orders are made, will continue to have the benefit of the occupancy of the most valuable asset the parties hold. At Part G of her Financial Statement the wife states her weekly rent is $2000. I don’t have any evidence as to the current rental value of the former matrimonial home. The husband’s capacity to pay a periodic amount to the wife pending the sale was not explored in the hearing. It is just and equitable however that there be an adjustment in the wife’s favour from any proceeds of a sale of the former matrimonial home for half the rent paid by her after the expiration of 42 days from the date of the orders. That rent is to be half the actual rent she pays or the sum of $1,000 per week, whichever is the lesser sum.
The amount that the wife is to receive is $1,832,509. The current agreed equity in the former matrimonial home is $4,000,000, less the NAB home mortgage which is $875,070, namely $3,124,930. The amount the wife is to receive is 58.6 per cent ($1,832,509/$3,124,930) of the current equity in the former matrimonial home and she will receive that percentage from the proceeds of sale. In the event that the former matrimonial home sells for more than $4,000,000, the parties will divide that additional amount 55/45 to the wife. In the event the former matrimonial home sells for less than $4,000,000, the wife is to have deducted from the amount that she would otherwise receive, 55 per cent of the difference between the sale price and the sum of $4,000,000 and the husband have deducted 45 per cent of the difference from his share.
At order 9 sought in her Response filed 11 February 2014 the wife sought that furniture and household items currently located in the former matrimonial home be divided between the parties by agreement. At order 9 the wife sought that the parties retain assets in their name or possession including personal effects. The husband did not seek any orders in relation to these items in his Initiating Application filed 23 January 2014.
I granted the parties leave to have discussions and prepare a statement as to the division of contents and jewellery as between them. The parties’ solicitors emailed to my associate on 11 December 2015 a joint letter as prepared by the wife’s solicitors in relation to contents and jewellery. The parties agree that the wife is to receive $42,215 of contents and jewellery as valued by Mr N in his valuation of 26 October 2015. The husband is to receive $17,330 of the contents and jewellery. Items of the children will remain with the children. The letter states “The parties observe the inequality in value of the distribution of contents and jewellery shall be taken into account by his Honour in determining the overall adjustment of the asset pool”.

THE HUSBAND’S DISQUALIFICATION APPLICATION

On 5 November 2015 the husband made an application that I disqualify myself from further hearing the proceedings. I dismissed that application and reserved my reasons for doing so. These are those reasons.
The application was made in unusual circumstances.
On 7 August 2015, Dr M’s supplementary report of 6 August 2015 was released to the parties.
That report recorded that on 20 July 2015 Dr M had carried out interviews with the wife, the husband and the children and thereafter the parties were seen separately and together. The report, as originally released, contained an account of Dr M’s interview with the wife, a brief observation of the husband with the children, accounts of Dr M’s interview with the younger child, and telephone interviews with the family therapist and the wife’s therapist. The report then sets out the single expert’s opinion and recommendations.
Whilst in hindsight it is obvious, nobody thought to ask Dr M why his supplementary report did not contain a description of Dr M’s interview with the older child and his interview with the husband. On the morning of 5 November 2015 I was informed that the parties had discovered that Dr M’s supplementary report dated 6 August 2015 had been issued by him with that part of the report missing.
The original report which was issued was consecutively numbered and consisted of nine pages (40 paragraphs). On the morning of 5 November 2015, an amended report was provided to me (it was marked Exhibit 18). The husband did not object to me receiving the revised supplementary report with the additional pages, nor me reading it. That report contained all of the material in the originally issued supplementary report (which was not altered in any way) with an additional 40 paragraphs, being five pages in length. That additional material came between Dr M’s account of his interview with the younger child and his account of his telephone interview with the family therapist. The additional material consisted of his account of his interview with the older child, an account of his interview and observations of the husband and the children, a description of his interview with the husband, observations of the wife and the children, and an account of a further conversation with the wife.
Senior counsel for the husband was granted leave to make an oral application that I disqualify myself from further hearing the parenting proceedings and that either I disqualify myself from further hearing the property proceedings or stand over the determination of the financial applications until the outcome of the parenting hearing before another judge was known.
Senior counsel for the wife opposed the husband’s application that I disqualify myself. Counsel for the Independent Children's Lawyer indicated that she did not wish to be heard on the application.
Senior counsel for the husband submitted that the additional material provided by Dr M on 5 November 2015 raised issues of procedural fairness to the husband and also raised questions going to the integrity of the report writing process and the confidence which the husband had in that process and the opinions and recommendations of Dr M.
In relation to the procedural fairness ground, senior counsel for the husband submitted:
... A party is entitled to know what the evidence is that they are facing in a case usually before they’re asked to ultimately go into the witness box, particularly in a jurisdiction where evidence is adduced by affidavit and, in the case of experts, by report rather than viva voce. A party inevitably knows the case in its entirety that is marshalled against them. There is no doubt that in some cases, new material may arise during the course of the trial that a party, by necessity, has to deal with.
Senior counsel for the husband relied upon three particular parts of the new material to support an assertion made by him that nothing could be now done to afford the husband procedural fairness short of starting a new hearing again before a new judge.
The three paragraphs relied upon in the new material were the second sentence of [49], part of [56] and [59]. That evidence by Dr M was as follows:
Part of Dr M’s interview with the father
49. ...[the husband] stated that [the family therapist] had supported his view that [the mother’s] behaviour had to stop with regard to the home visits and excluding him from decision-making about the children.
Part of Dr M’s interview with the mother and the children
56. ... [The mother] commented that most siblings would fight and this was a normal thing which would happen at times. Both children agreed that the conflict would happen more at dad’s. They regarded this to be a function of how he managed such issues. [The elder child] acknowledged that things would get more heated at dad’s and regarded this to be a function of [the younger child] being less happy there. He stated that [the younger child] was calmer at mum’s and that mum was less worried. [The younger child] commented that dad was more touchy and irritated if someone was not telling the truth.
Part of Dr M’s interview with the mother.
59. [The mother] justified her application for sole parental responsibility for health and education. She focussed on the need to decide a senior school for [the younger child] and issues around orthodontic care. Although she did not want to exclude [the father], it was necessary for there to be a resolution regarding such issues. She wanted to involve [the father] eventually. They had different methodologies for addressing things. [The father] did not want to involve [the younger child] until the parents had worked things out first. [The mother] did not agree philosophically with such an approach. After a protracted period, they had mutually agreed on [a school]. Regarding orthodontic care, there had been no final decision.

In relation to the second sentence of [49], senior counsel for the husband did not indicate whether or not his instructions were that the husband had in fact told Dr M what Dr M recorded that the husband had said to him. If what Dr M recorded the husband had said to him is accurate, then it could only assist the husband’s case, unless of course it turned out that the husband was not being truthful with Dr M. Senior counsel for the husband said it was not the point that this evidence was not highly prejudicial material and could otherwise be dealt with by giving opportunity for further evidence, but rather it was a matter of procedural fairness that a party was entitled to know the entirety of the case before entering the witness box.
Senior counsel for the husband did not develop why it would be that the passage quoted from [56] created such difficulties arising from the grounds of procedural fairness that the parenting proceedings needed to recommence afresh before another judge.
In relation to [59], senior counsel for the husband initially submitted that [59] evidenced that the wife’s position in relation to sole parental responsibility for health and education in her interview with Dr M in July 2015 was a different position to the one which she had adopted in evidence before me on the first day of the hearing in March 2015. Senior counsel for the husband was submitting that the wife, having sought equal shared parental responsibility before me in March 2015, had changed her position so that she wanted sole parental responsibility in relation to health and education in July 2015. This is in circumstances where at the final phase of the hearing the wife had accepted that an order for equal shared parental responsibility would be made.
At my request, senior counsel for the husband handed up that transcript of the March 2015 event and sought to tender a case outline that was prepared by the wife for the March 2015 event. After further discussion, senior counsel for the husband ultimately conceded that the transcript from March 2015 demonstrated he was incorrect about what the transcript said and in his initial submission about the wife’s position in March 2015. When it was pointed out to senior counsel for the husband that what was set out in the wife’s case outline was exactly the same as what she had said to me in oral evidence on the first day in March 2015 and was the same as what she said to Dr M in [59], senior counsel for the husband withdrew the tender. While senior counsel for the husband did not explicitly withdrew his submission about [59] of Exhibit 18, it was clear from the concessions that he did make that the underlying basis of his complaint arising from [59] could no longer be maintained.
Senior counsel for the husband more generally submitted that, although the parties could be recalled and asked additional questions:
....where then a party with the knowledge of the evidence goes into the witness box and is cross-examined, then answers that they gave then in answer to the knowledge of what the evidence was may well be very different if they had been aware of other aspects that they might have used to supplement their answers or to provide answers in re-examination.....
... one can never correct the entirety of a course of transcript and the impression that one is left as the decision-maker by concessions made earlier on or material not included. That prejudice and that impression can never be cured.
That submission is answered by observing that this is a civil trial by a judge alone and not by a jury. During the course of parenting proceedings, which focus on what parenting orders are to be made in the best interests of a child, a trial judge may read and exclude highly prejudicial material. The fact that highly prejudicial material has been seen by a judge does not mean that the judge can no longer continue to hear the case. My job is to take into account only those parts of the evidence that are relevant and to place weight on different parts of the evidence.
Whilst the opinions of a single expert are usually weighty pieces of evidence, other pieces of evidence which emerge during a trial and are not known at the commencement of a hearing can also, in many circumstances, become quite weighty. It is a regular experience the parents are recalled to give evidence about other evidence that has emerged during the hearing and is not known at the commencement of the hearing. That evidence can emerge even after both parents have completed their evidence.
Senior counsel for the husband further submitted:
....When a decision is made to cross-examine a particular witness, then the decision is made on the basis of the available material and forensic decisions are made about the order in which questions are asked, the way in which a particular question is framed. And that’s framed against a background of knowing the entirety of the case that’s currently before the court. And true it is that when new evidence arises, as in this case, the prejudice can, to a certain extent, be cured by permitting cross-examination on the new material.
And I’m not suggesting for one moment that your Honour wouldn’t permit us to do that. But a prejudice that cannot be cured is the decision that is made to pursue a particular line which may not have been pursued had all of the facts been available. And in circumstances whereby there is suddenly a whole plethora of new material, particular avenues of cross-examination may well have been explored in other ways, questions may have been posed different or not at all. And that cannot ever be cured because of the lateness of the evidence.
Senior counsel’s categorisation of “a whole plethora of material” in my view greatly exaggerates the nature of the additional five pages provided by Dr M. There is very little in those five pages that has been identified as surprising or new. Dr M’s opinions and recommendations in Dr M’s report remained unaltered. Whilst some of the additional material might have had the effect to some degree buttressing his opinions and recommendations, none of it is of such a weighty nature that his opinions and recommendations are dependent upon that material. Even if it is said that they were, Dr M is yet to be cross examined and the new material was known to the parties well ahead of the time that they would be asking Dr M questions in cross examination.
When pressed, senior counsel for the husband indicated that he was unwilling to give specific examples of questions that he would not have asked or questions that he would have asked had the material been known at the commencement of the hearing. Senior counsel indicated that in his view, it would be a breach of legal professional privilege for him to give a specific example. Of course any litigant is entitled to rely upon legal professional privilege. They are also able to waive it. Without specific examples, it is not possible to place any weight upon the general submissions by senior counsel for the husband.
Senior counsel for the husband lastly submitted that:
....in relation to the question of procedural fairness, there is the confidence that my client has in ultimately Dr [M’s] conclusions in circumstances whereby it would appear that the first report is said to have been based entirely upon the material that’s contained within it and the opinions expressed on that basis. And in circumstances whereby he concluded that he had reached an opinion based entirely upon 40 paragraphs and in his declaration said at the end:
(1) I have made all of the inquiries I believe are necessary and appropriate and to my knowledge there have not been any relevant matters omitted from this report.
....
Now, a fair reading of that would be that he made his decision upon 40 paragraphs and it would appear that there are an additional 38 paragraphs [sic] that were omitted from the report. Now, we don’t know whether or not they formed part of Dr [M’s] opinion when he came to write the report and when he gave his opinion. It may well be that he will say, “Yes, I was aware of all of those things,” but it goes directly to the confidence that my client has in the process whereby Dr [M] reaches his ultimate conclusions. And in circumstances where a single expert report on parenting matters – whilst not determinative of the outcome at all – is a very important piece of evidence. We wouldn’t otherwise be having them if they’re not.
And they’re very important pieces of evidence. And in circumstances whereby the expert proffers an opinion and, as he says at the end of the August report:
(2) This report concludes at paragraph 40.4.
And we find that then there are, as I indicated, a further 38 paragraphs [sic] then it gives cause for concern about the opinions and it creates an unfairness to my client in having to cross-examine Dr [M] along the lines of him not having done his job properly at the time and with the potential that that may well cause some prejudice to my client....
In relation to senior counsel for the husband’s argument that the husband could not any longer have any confidence in Dr M given the declaration in his report that “I have made all inquiries I believe are necessary and appropriate and, to my knowledge, there have not been any relevant matters omitted from this report, except as otherwise specifically stated in this report”, it is important to emphasise the words in that declaration “to my knowledge”. I accept, on its face, what has happened in this case is an honest omission or error by the single expert which falls into the category of a slip by him. That error can in my view be rectified by allowing those types of opportunities that have been outlined above.
Senior counsel identified the applicable test in a recusal application as being that set down by the High Court in Johnson v Johnson (2000) 201 CLR 488, namely, whether a fair-minded lay observer might reasonably apprehend that a judge might bring an impartial and unprejudiced mind to the resolution of the question that the judge has been asked to determine.
Senior counsel for the husband made clear that the application was not based upon an assertion of any actual bias. Nor might I observe did senior counsel for the husband submit the application was based upon something available to a fair minded lay observer that would indicate any expression of pre-determination of the matter nor any apprehended bias towards either of the parties or those who represent the parties or the Independent Children's Lawyer. The reasonable apprehension of bias is asserted to arise from material coming before the court after the parties have been cross examined, after various concessions (unspecified) had been made and after the case had been formed in the course of forensic decisions made.
Senior counsel for the husband contended that the material was so prejudicial and so late that it would lead to a reasonable apprehension that I might not be able to bring an impartial unprejudiced mind to the resolution of questions in the parenting proceedings between the parties.
Senior counsel for the wife submitted that the matters referred to by the husband did not satisfy the test under Johnson & Johnson or Ebner v The Official Trustee (2000) 205 CLR 337 and that line of authority.
Senior counsel for the husband submitted that that was particularly so, set against the background of measures that had been afforded the parties or could be afforded the parties. Those included:
267.1.Once the difficulty had been brought to the court’s attention shortly after 10.00 am on the fourth day of the hearing, the parties were given until 2.00 pm to consider the additional five pages and what course should be taken;
267.2.Consideration in respect of any additional time that was needed to digest the report;
267.3.Sufficient time to discuss matters set out in the additional pages with the report writer, Dr M;
267.4.The opportunity of recalling those parties were who cross examined who could be re-examined and re-cross examined at an appropriate time convenient to the parties;
267.5.Allowing for sufficient time for the parties to give instructions to their lawyers about any issue that arises from the additional material.
Senior counsel for the wife pointed to the fact that Dr M had yet to enter the witness box and neither party had closed their case and the matter was still live.
Senior counsel for the wife had flagged that one comment made by the husband as recorded by Dr M in the new material might necessitate the wife calling the family therapist as a witness. I indicated that I would have some reservations about giving leave for that to happen, but I was not excluding hearing submissions if any formal application was made to call the family therapist or any other witness for that matter.
Given that all those opportunities are available, senior counsel for the wife submitted that an assertion that a fair minded lay observer might reasonably apprehend bias was not open.
Senior counsel for the wife submitted that paragraphs 49, 56 and 59 were of no relevance whatsoever to an application for recusal given what had been offered to the parties by way of remedy to rectify the problem that had arose. He correctly submitted that although it was desirable to attempt to conclude the hearing within the time frames originally envisaged, there was no suggestion that the parties would not be given an opportunity to properly prepare any cross examination of any witness (principally the parents).
I accept the submissions made by senior counsel for the wife. The overall case management of parenting hearings would be thrown into total chaos if a general principle was accepted that a judge hearing the matter would be perceived to be biased in circumstances where, during the final stage of the parenting hearing, new material emerged of a significant nature that was not known at the commencement of the hearing.
It is also axiomatic that it is not for a single expert to decide a parenting controversy. The single expert at the end of the day is but one witness, albeit in many cases including this one, an important witness, and the fact that a witness has made an error in the written material that they have provided the court, particularly in circumstances where they have disclosed that error prior to entering the witness box, is not sufficient to lead to a successful challenge to the judge continuing to hear the case, particularly in circumstances where any damage done can be reasonably rectified by allowing the parties sufficient time to consider their position in light of the error that has been made and for an opportunity for additional evidence to be called if necessary.
For those reasons, I dismissed the husband’s application that I disqualify myself.

I certify that the preceding two hundred and seventy-four (274) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 22 December 2015.

Associate:

Date: 22.12.2015

SCHEDULE 1

The husband relies on the following documents:

Initiating Application filed on 23 January 2014;
Affidavit of Evidence in Chief filed on 20 July 2015
Affidavit filed 30 October 2015;
Financial Statement filed on 3 July 2015.
Parenting Questionnaire filed on 23 February 2015;
Affidavit by MS filed on 20 March 2014.

The wife relies on the following documents:

Response filed on 11 February 2014;
Affidavit filed on 16 July 2015;
Parenting Questionnaire filed on 24 February 2015;
Financial Questionnaire filed 1 July 2014;
Financial Statement filed 16 July 2015;
Affidavit of Ms D filed 17 July 2015.

The court also had the following documents:

Report by Dr M, single expert Family Psychiatrist, dated 25 June 2014;
Report by Dr M, single expert Family Psychiatrist, dated 6 August 2015 and updated copy as handed up in court on 5 November 2015;
Specific Issues Report prepared by Ms YY dated 7 April 2014;
Affidavit by Mr BB, single expert Property Valuer, filed on 28 July 2014;
Affidavit by Mr BB, single expert Property Valuer, filed on 27 October 2015.

SCHEDULE 2

Schedule based on the single expert’s valuation of contents and jewellery – omitted for publication purposes.

[2015] FamCA 1201

22 December 2015

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Procedural Fairness

Jurisdiction

Remedies

Costs

Statutory Construction

Appeal