MAIGRET & ELLENBERG

FAMILY COURT OF AUSTRALIA

MAIGRET & ELLENBERG

[2017] FamCA 331

FAMILY LAW – CHILDREN – Where the parties agree on an order for equal shared parental responsibility – Where the wife seeks an order that the two younger children live with her – Where the parties separated in August 2013 and the wife moved interstate – Where the four children have been ordinarily residing with the husband since the separation – Where a single expert report released in January 2016 expressed an adverse opinion about the husband’s attitudes to parenting and recommended that the two younger children be moved to live with their mother – Where the wife alleges systemic sexual abuse during the marriage – Where it is found there is no unacceptable risk arising from alleged abuse – Where it is found that the husband’s attitudes have changed since reading the expert report – Where an order is made for the children live with their father – Where orders are made to maximise the time the children live with their mother – Where orders are made to allow the children to travel overseas and to have passports.

FAMILY LAW – PROPERTY – Where the wife seeks a finding that the parties made equal contributions towards the acquisition, conservation and improvement of the overall net assets and no further adjustment for s 79(4)(d)-(g) matters – Where the husband seeks a finding based on contributions that the overall assets should be divided as to 57.5 per cent to the husband and 42.5 per cent to the wife and a further 12.5 per cent adjustment for s 79(4)(d)-(g) matters – Where the contributions made by the parties until separation were equal – Where the husband had the burden of financially supporting the children since separation – Where the assets should be divided as to 52.5 per cent to the husband and 47.5 to the wife based on contributions and a 5 per cent adjustment should be made in the husband’s favour based on a 79(4)(d)-(g) matters.

Australian Passports Act 2005 (Cth)

Family Law Act 1975 (Cth)

APPLICANT:

Ms Maigret

RESPONDENT:

Mr Ellenberg

FILE NUMBER:

CAC

2015

DATE DELIVERED:

19 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra

JUDGMENT OF:

Watts J

HEARING DATE:

14 - 18 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Tonkin

SOLICITOR FOR THE APPLICANT:

Evans Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Millar

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini Dunn

Orders

PARENTING

All previous orders relating to the children, B, born … 2000 (“B”), C, born … 2002 (“C”), D, born … 2005 (“D”) and E, born … 2007 (“E”) (collectively “the children”) are discharged.
Both parents have equal shared parental responsibility for the children.
In the event the parties are unable to agree on a decision about:
3.1.the exercise of equal shared parental responsibility;
3.2.an interpretation of these Orders; or
3.3.a proposed variation of these Orders (if there is an assertion a significant change has occurred);
the parties will, prior to filing an application with the Court, seek the mediation services of a person agreed between them and failing agreement by the Director of Child Dispute Services, Canberra Registry, Family Law Courts or her or his then equivalent, in order to attempt to resolve any such dispute. The parties shall attend such session or sessions as agreed or nominated mediator recommends and the parties shall make a bona fide attempt to reach an agreement about any disputed issue.
The children live with the husband.
The wife spend time with B and C in accordance with their wishes.
The wife spend time with D and E, unless otherwise agreed in writing, as follows:
6.1.For two weekends during the school term:
6.1.1.on the weekend concluding the third week of the ACT school term from afterschool Friday until 4.00pm on Sunday (and in the event that the Monday is a non-school day, until 4.00pm on the Monday); and
6.1.2.on the weekend concluding the seventh week of the ACT school term from afterschool Friday until 4.00pm on Sunday (and in the event that the Monday is a non-school day, until 4.00pm on the Monday).
6.2.During the Term 1, Term 2 and Term 3 ACT school holidays:
6.2.1.for the whole of Term 1 and Term 3 ACT school holidays and for one half of Term 2 school holiday period, being the overlapping week between the ACT and Victorian school holidays AND IT IS NOTED THAT C and D’s birthdays may fall within the Term 2 school holiday period); and
6.2.2.for one half of the Term 4 ACT Christmas school holiday period, being the first half in odd numbered years, and the second half in the even numbered years.
6.3.On special occasions:
6.3.1.for the Mother’s Day weekend from afterschool Friday until 4:00pm on Sunday;
6.3.2.on E’s birthday from 9.00am to 12.00pm if it falls on a weekend and from afterschool until 7.00pm if it falls on a school day;
6.3.3.in the event D’s birthday falls outside the Term 2 holiday period, on D’s birthday from 9.00am to 12.00pm if it falls on a weekend and from afterschool until 7.00pm if it falls on a school day; and
6.3.4.on the wife’s birthday from 9.00am to 12.00pm if it falls on a non-school day and from afterschool until 7.00pm if it falls on a school day.
6.4.Such further or other times as the parties may agree in writing.
In the event that Father’s Day or the husband’s birthday falls upon a weekend when D and E would spend time with the wife then they will spend time with the wife on the following weekend instead.
The parties consult with one another in relation to any extra-curricular activities and social events in respect of which D or E are involved which would be on at the same time as when they are to spend time with their mother and such events are not to be scheduled unless the wife agrees.
Each parent take all reasonable steps to facilitate telephone contact between the children and the other parent, whilst the children are in their care whether via text message and/or telephone call:
9.1.at such times as agreed between the parents, or as may be requested by the children.
And failing agreement:
9.2.between the hours of 6.00pm and 7.00pm each Wednesday.
For the purposes of changeover pursuant to these orders, during school holidays changeover is to take place at McDonalds F Town and during school term, changeover is to take place at the home of the maternal grandmother.
The husband provide an authority to each of the children’s schools authorising the release of information to the wife including but not limited to school reports, school photograph order forms, invitations and flyers to school events and that each parent is at liberty to attend events involving the children at school.
Each parent notify the other forthwith via text message or in the event of an emergency via telephone call of:
12.1.any serious illness or injury affecting a child or the children, and be at liberty to contact any doctor or hospital treating the child/ren to obtain information; and
12.2.the name of any general practitioner or paediatrician or other specialist who treats the child/ren whilst the children are in that parent’s care.
Neither parent say unkind, uncomplimentary or denigrating comments about the other to or in the presence of the children, nor cause or allow anybody else to do so.
Neither parent cause nor allow any third party to inflict physical discipline on any of the children.
Each parent will forthwith provide to the other parent his/her contact details, including but not limited to the parent’s residential address, phone number and email address and will keep the other parent updated as to any changes in respect of those contact details.
Each parent will actively promote and encourage the children’s relationships with the other parent and other family members.
Pursuant to s 65Y of the Family Law Act 1975 (Cth), each party is permitted to take the children out of the Commonwealth of Australia or cause a child to travel outside of the Commonwealth of Australia during the time the children live with them, or for some other agreed period of time, provided that a full itinerary, a copy of return airfare tickets and a copy of a valid travel insurance policy for the proposed trip is provided to the other party not less than 21 days prior to travel together with contact details for the children during the absence.
For the purposes of s 11 Australian Passports Act 2005 (Cth):
18.1.it is noted the above orders allow:
18.1.1.the children to travel internationally;
18.1.2.the children to live with both their parents when those parents are outside Australia.
18.2.The children are permitted to have an Australian passport or travel-related document provided the application for that document is made jointly by the husband and wife, who are to sign any declaration on the application in the form approved by the relevant Minister.

PROPERTY

Pursuant to s 79 Family Law Act 1975 (Cth) (“the Act”), an order is made in the terms of paragraphs 20 to 27 below.
Within 42 days from the date of these Orders:
20.1.the wife do all things necessary to transfer to the husband, at the husband’s expense, her interest in the property contained in Volume … Folio … Section … Block … Deposited Plan …, otherwise known as G Street, Suburb H in the Australian Capital Territory (“the Suburb H property”).
20.2.the wife and the husband do all things necessary to cause Mortgage Registration number … to J Bank Pty Limited securing loan number … in the name of Ms Ellenberg to be formally discharged.
IT IS NOTED THAT:
20.3.Ms Maigret is one and the same person as Ms Ellenberg and the Suburb H Property is registered in the name of Ms Ellenberg.
Within 42 days of the date of these orders, the husband do all things and sign all necessary documents to transfer to the wife all his right, title and interest in Volume … Folio … Section … Block … Deposited Plan … Unit …, otherwise known as 1 L Street, Suburb K in the Australian Capital Territory (“the 1 L Street property”) and the wife thereafter indemnify the husband in relation to any outstanding liability in respect of that property.
Within 7 days of the date of these orders, the parties do all things necessary to provide a written direction to the Principle of I Lawyers to disburse the sale proceeds of the property situated at 2 L Street, Suburb K in the Australian Capital Territory (“the 2 L Street property”) held in their Trust Account as follows:
22.1.to the payment of any CGT liability in respect of the 2 L Street property (in the approximate sum of $13,188);
22.2.the sum of $54,734 to the husband;
22.3.the balance to the wife.
Within 14 days of the date of these orders, the husband return to the wife the jewellery, consisting of 3 platinum necklaces and 4 pendants, the coin pendant given to the wife by the husband’s grandmother.
The wife be entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects and where there is no legal title, currently in her possession and control, including but not limited to:
24.1.her interest in the property contained in Volume … Folio … otherwise known as M Street, N Town in the State of Victoria (“the N Town property”);
24.2.the wife’s engagement ring;
24.3.the 2005 Motor vehicle 1;
24.4.the 2013 Motor vehicle 2;
24.5.her interest in the business, “Business O” and “Business P”;
24.6.the wife’s tractor;
24.7.monies standing to the credit in any bank or credit union account in her name solely or joint with any other person;
24.8.Commsec shares;
24.9.her superannuation entitlements with PSS (Account (AGS) number …); and
24.10.household contents.
The husband be entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects and where there is no legal title, currently in his possession and control, including but not limited to:
25.1.the 4WD motor vehicle;
25.2.monies standing to the credit in any bank or credit union account in his name solely or joint with any other person;
25.3.those goods and associated paraphernalia in the personal possession of the husband;
25.4.his interest in the business known as “Business Q”; and
25.5.household contents.
The wife pay and indemnify the husband in respect of all liabilities in her sole name or jointly with any other person, including but not limited to:
26.1.all rates, insurances, utilities and land tax (if any) with respect to the N Town Property and 1 L Street;
26.2.the bank loan secured by way of a mortgage to R Limited (mortgage registration number …);
26.3.the amount payable, if any, to Ms S Maigret and/or Mr T Maigret, together with interest;
26.4.any capital gains tax payable by her with respect to 1 L Street, Suburb K;
26.5.any credit card debt in his sole name or jointly with any other person.
The husband pay and indemnify the wife in respect of all liabilities in his sole name or jointly with any other person, including but not limited to:
27.1.all rates, insurances, utilities and land tax (if any) with respect to the Suburb H Property;
27.2.any credit card debt in his sole name or jointly with any other person.
In the event that the wife or husband refuses or neglects to comply with any of the provisions of these Orders, within 7 days of a document being forwarded to either of them for their completion, a Deputy Registrar or a Registrar or other Officer of the Family Court of Australia be appointed pursuant to s 106A(1) of the Act, to execute all such deeds and documents in the name of the defaulting party and to do all acts and things necessary to give validity to the said Orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 33 of 2015

Ms Maigret

Applicant

And

Mr Ellenberg

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parties both seek orders in relation to their four children, B, born in 2000 (“B”), C, born in 2002 (“C”), D, born in 2005 (“D”) and E, born in 2007 (“E”) (collectively “the children”)
The wife seeks an order to change the living arrangements of the two younger children so that they ordinarily live with her. They have lived with their father and two brothers since August 2013. The basis of the wife’s application stems from a report of the single expert where that recommendation was made. During the hearing the single expert softened her recommendations.
The wife alleges systemic sexual abuse of her by the husband during their marriage. She also alleges that after she left the marriage and formed a relationship with another man, the husband has attempted to alienate the children from her.
The parties also ask the court to make different property settlement orders.

APPLICATIONS

The orders sought by the wife at the commencement of the hearing are set out in Schedule 1. In final submissions, the wife adopted the mirror provision as proposed by the husband for the two younger children to spend two weekends during each school term with the husband (and accepted those weekends should be the third and seventh weekend in each term). The wife indicated that she would deliver the children to the maternal grandparent’s home in Canberra on those occasions. The wife’s proposal for the responsibility of travel for those mid-term times is the same as the husband’s. That is, that she be responsible for all the travel for mid-term time as it would be too disruptive an arrangement to attempt to share it. The wife however proposes that during school holidays, there be a meeting point at McDonalds F Town.
The wife also adopts the husband’s position as set out in his proposed order 3(d) for special days.
The wife indicated, if the two younger children remained living with their father, then she would want to have the two younger children on two weekends during the school term and she would be responsible for all the travelling involved with that arrangement and the two younger children would be with her in Canberra on those weekends so that there would be no significant travel during school term.
The wife also sought orders in relation to the children’s bank accounts in similar terms to that as originally proposed by the husband in proposed orders 21 and 22. The application for those orders was not pressed by the husband.
The wife seeks a property settlement order that would divide assets on a 50/50 basis if the girls lived with the wife. Counsel for the wife indicated that the dollar figure set out in order 17 of Schedule 1 is an indicative figure only and would be subject to recalculation based on findings of disputed values on the balance sheet.
The wife also seeks an order that the husband deliver the jewellery consisting of three platinum necklaces and four pendants, the coin pendant given to the wife by the husband’s grandmother. This is a matter in contention. The husband seeks an order that within 14 days the wife return to him her diamond engagement ring and that he would thereafter hold the ring and the other jewellery in trust for the benefit of the two younger children to be given to them on their 21^st birthdays (it is unclear as to which child would get the diamond ring and how the other jewellery would be divided).
The orders sought by the husband are set out in Schedule 2. The husband seeks equal parental responsibility and for the children to live with him. He seeks orders that D and E spend time with their mother for two weekends per school term and for one half of school holidays and on special occasions and for B and C to spend time with the wife in accordance with their wishes. It was the husband’s position that in the event the two younger children live with their mother in Victoria, the time that he had with them on the two weekends during school term would be a mixture of him retaining them in that local area or perhaps coming back to Canberra with them. By way of property settlement, the husband seeks to retain the former matrimonial home at G Street, Suburb H, ACT (“the Suburb H property”) and to sell an investment property at 1 L Street, Suburb K, ACT (“the 1 L Street property”) with the husband to retain such other assets so as to obtain 70 per cent of the overall net assets. Counsel for the husband did not attempt to satisfy me that the husband would achieve that result if the property settlement order was made in accordance with Schedule 2.

DOCUMENTS RELIED UPON

The wife relied upon the following documents:
12.1.Amended Initiating Application filed 19 August 2016;
12.2.Notice of Risk filed 13 January 2015;
12.3.Financial Statement filed 30 September 2016;
12.4.Affidavit of wife filed 30 September 2016;
12.5.Affidavit of Mr Z filed 20 June 2016;
12.6.Affidavit of Mr T Maigret filed 20 June 2016; and
12.7.Affidavit of Ms S Maigret filed 20 June 2016.
The husband relied upon the following documents:
13.1.Amended Response to Initiating Application filed 2 September 2016;
13.2.Financial Statement filed 30 September 2016;
13.3.Affidavit of husband filed 30 September 2016;
13.4.Affidavit of Mr U Ellenberg filed 30 September 2016;
13.5.Affidavit of Ms V Ellenberg filed 30 September 2016;
13.6.Affidavit of Ms W filed 30 September 2016; and
13.7.Affidavit of Mr X filed 30 September 2016.

Both parties also relied on the expert report prepared by Dr Y dated 20 January 2016 as well as various valuation reports.

SHORT HISTORY

The husband was born in 1973 and is currently 43 years old.
The wife was born in 1975 and is currently 41 years old.
The wife says the parties commenced cohabitation in 1993. The husband says 1996. The parties married in 2000.
The parties’ first child, B, was born in 2000 and is currently 16 years of age.
The parties’ second child, C, was born in 2002 and is currently 15 years of age.
The parties’ third child, D, was born in 2005 and is currently 12 years of age.
The parties’ fourth child, E, was born in 2007 and is currently 10 years of age.
The parties separated on a final basis on 11 August 2013. The husband says they separated from between 10 August 2013 to 15 August 2013.

CREDIT

Wife

The wife, in the main, answered questions directly.
The wife’s discussion with the Department in April 2015 and her statement in the Notice of Risk damage the credibility of the version the wife now gives of being sexually assaulted by the husband during the marriage.
At paragraph [59] of the wife’s affidavit she describes the parties’ relationship between May and August 2013, in the period leading up to their separation, was “toxic”. In cross examination she was taken to text messages sent between the parties which are inconsistent with that suggestion and indicate warm, pleasant and even affectionate exchanges between the parties during that time (Exhibits 19 to 29). In particular, the wife’s denial that the text exchange between the parties on 24 June 2013 in Exhibit 24 indicated that she was looking forward to a sexual encounter with the husband does not support a reasonable reading of that exchange.

Husband

The husband was far less responsive than the wife during cross examination. The husband had a difficulty listening to questions and responding to questions. There were multiple occasions where simple questions were asked and the husband gave unresponsive answers and the question needed to be repeated so that the husband could focus on the question that was asked and answer that question.
I needed to encourage him on more than one occasion to focus on the question being asked and respond just to that question. On a number of occasions the husband became angry when discussing particular matters. He regularly expressed himself in a forceful and sometimes intimidating tone.
The husband’s demeanour in the witness box was one of a man who is still struggling with the separation well over three years after it happened. The husband, quite emotionally, indicated that he still had deep feelings for the wife, although he asserted he realised that there was no chance of he and the wife resuming their relationship together.
The husband’s assertion that the statement he made to Dr Y “she was going to get burnt in court for selling so much stuff without authorisation” was at the wrong place in the report and was not part of what he said in response to her inquiry of him as to what the long term impact might be for the children not having a relationship with their mother. Dr Y, by way of reference to her notes, confirmed that that was indeed the part of the interview where the husband made that statement and I find the husband’s evidence about that was incorrect.
The husband’s evidence that he does not have control over nor has ever read the transcripts he had made of the contents of the wife’s old mobile phone is not credible, particularly given statements made to Dr Y (discussed below).

Conclusion about the credit of the husband and wife

There are difficulties with the credit of both the husband and wife and I am unable to determine disputed facts by preferring one parties’ version over the other based upon credit findings.

Mr Z

Mr Z, the wife’s partner, presented as a nervous witness and drank a large amount of water throughout his cross examination.
Mr Z initially was coy about the extent of his son AA’s behavioural problems, presenting him as a normally “difficult” 15 year old. I find Mr Z downplayed his son’s behavioural difficulties. Mr Z said that his original answers in relation to AA’s behavioural problems were as a result of him being nervous but those answers do not do Mr Z any credit.

Paternal grandmother

Initially the paternal grandmother was reluctant to say that she and the husband made a decision not to engage with the wife and give her any information about the whereabouts of the children when they went overseas with the husband without telling the wife. That evidence was not accurate.

DETAILED CHRONOLOGY

The husband was born in 1973 and is currently 43 years old.
The wife was born in 1975 and is currently 41 years old.
The wife says the parties commenced cohabitation in 1993. The husband says the parties commenced a relationship in 1993 and commenced cohabitation in 1996.
In about 1993 the husband established a building company, BB Company. This company has later been known as “Business CC”, “Business DD”, “Business Q”, “Business EE” and “Business FF”.
In 1999 the wife qualified in a professional occupation. She took maternity leave after the birth of each of the parties’ children.
In 2000 the parties purchased the Suburb H property. The wife is the registered sole proprietor of the Suburb H property. The property was purchased as vacant block of land upon which the parties built the matrimonial home with the assistance of their fathers.
The parties were married in 2000.
The parties’ first child, B, was born in 2000 and is currently 16 years of age.
The parties’ second child, C, was born in 2002 and is currently 15 years of age.
The parties’ third child, D, was born in 2005 and is currently 12 years of age.
The parties’ fourth child, E, was born in 2007 and is currently 10 years of age.
In 2008 or 2009 the parties purchased an investment property at L Street, Suburb K ACT (“the Suburb K property”). The Suburb K property was subdivided into two properties, 2 L Street (“the 2 L Street property”) and, the 1 L Street property.
From mid-2012 to mid-2013 the wife ceased working in her professional occupation and commenced working part time at Company GG.
In about May 2013, the wife had an affair with a long-term family friend, Mr Z. At the date of the hearing the wife and Mr Z had been in a relationship together for almost three years.
In mid-2013 the wife recommenced working in her professional occupation.
On 7 June 2013 the wife attended Calvary Hospital and upon her discharge was diagnosed with anxiety. The wife was prescribed with medication which she says she took for no more than three months after which time the parties commenced marriage counselling.
At the end of June 2013 the wife informed the husband of her affair with Mr Z and that they had been having sexual relations.
In August 2013, the wife told the husband that she wanted to separate. The husband was overseas in Asia at the time. He says when he returned to Australia on about 10 August 2013 the wife left the Suburb H property and moved into the Suburb K property. The husband and the children remained living in the Suburb H property.
The parties separated on a final basis in 11 August 2013. The husband says they separated between 10 August 2013 and 15 August 2013.
Following their separation, the parties agreed that the wife would spend time with the children for dinner each Wednesday night, every second weekend and half of the school holidays.
Instead of spending time with the children for half of the school holidays in September 2013, the wife spent time with the children on the weekend following the last weekend of the holidays. On that weekend of 3 September 2013 the children stayed overnight with the wife. Mr Z was also present. The husband reports that E said that Mr Z hit her and yelled at C. After this time, Mr Z was present when the children visited the wife.
In late 2013 the husband says the parties agreed to cease the Wednesday midweek contact.
From 1 September to 10 September 2013 the husband travelled to Asia with the children for a holiday.
From October 2013 to February 2015 the children did not stay overnight with the wife.
In October 2013 B travelled to Asia for a sports competition.
From 20 December 2013 to 20 January 2014 the wife travelled overseas with Mr Z. She was unable to spend substantial time with the children over the term 4 school holidays.
In 2014 the wife says she contacted the children’s schools to place her name back onto the children’s contact details as her name had been removed as a contact for the children and she had not been receiving any communications from the schools.
In the first half of 2014 the husband commenced a relationship with Ms HH, a family friend whose children attended the same school as the parties’ children. He says at this time they had a sexual relationship but did not have a sexual relationship again until late 2014. Their sexual relationship ceased in early 2016.
On 31 January 2014 the wife and Mr Z settled on the purchase of a property at M Street, N Town, Victoria (“the N Town property”). The wife says that she relocated to N Town in May 2014. She and Mr Z later established a business, Business O and Business P.
The husband says that from the parties’ separation until February 2014 he and the wife communicated about arrangements concerning the children.
Between February and May 2014 the wife says the husband deliberately fettered her opportunity to spend time with the children, ensuring they were either unavailable or refusing to make them available. She also says that during this period the husband excluded her from decision making regarding the children such as informing her of his decision to travel overseas with the children.
In March 2014 the wife became aware that the husband had taken the children to Asia for a holiday with the paternal family, having not previously been informed by him.
The wife’s difficulties in arranging to spend time with the children and communicating with the children continued during April and September 2014. After a number of failed attempts to spend time with the children, the wife travelled to Canberra in the Term 3 school holidays in September 2014 and spent time with the children for about four days for a few hours each day.
In May 2014 the 2 L Street property was sold.
In late August 2014 the husband found out that B (then aged 13) and C (then aged 12) had been indecently assaulted by a neighbour of his, Mr II, at his parent’s coastal home. He had fondled the boys by putting his hand up their shorts. The husband says the two boys told him not to tell their mother. The husband did not inform the wife of what had happened to the boys until 24 February 2015 when the husband’s solicitors sent a letter to the wife’s solicitor advising them of the incident in which C and B had been involved.
In September 2014 the husband travelled to Asia with the children for a holiday. The wife says she was not informed of this holiday.
By November 2014 the wife had not had regular contact with the children for about 13 months apart from short telephone conversations and day time contact she had with them in Canberra.
The wife arranged to travel to Canberra on the weekend of 22 November 2014 to spend time with the children but was unable to do so as the husband had taken them camping.
In November 2014 the husband asked the wife to sign B and C’s passport renewal application forms so that they could travel to the United States on a holiday in January and February 2015.
The wife travelled to Canberra on the weekend of 29 November 2014 to spend time with the children. When she arrived the husband told her that the children did not want to see her as she would not sign their passport renewal applications.
In December 2014 the wife requested that the husband confirm the dates which she would spend with the children over Christmas. The wife advised the husband that she did not want the children to travel overseas before she had spent substantial time with them. In a letter from the wife’s solicitors on 2 December 2014 she indicated that she would permit the children to travel subject to her being provided with information. On 11 December 2014 the husband’s solicitor wrote to the wife advising that B and C’s passports did not need to be renewed to travel to the United States. The husband also advised the wife of the details of the trip.
On 16 December 2014 the husband’s solicitors wrote a letter to the wife proposing that she spend time with the children in Canberra on Christmas Day from 12pm to 6pm and/or for the weekend of 10 and 11 January 2014. On Christmas Day the children arrived at the maternal grandparents’ home to spend time with the wife. The husband later collected the children after he says they sent him a text message advising that they wanted to be collected as Mr Z was also in attendance.
On 6 January 2015 the wife’s solicitors sent a letter to the husband advising that she did not consent to the children’s travel to the United States in January 2015. On 14 January 2015 the husband’s solicitors sent a letter to the wife advising that he continued to make preparations for the children to travel to the United States based on her previous representation that she was not opposed to the children travelling provided she received the information she requested and that information had been provided. The wife did not respond. On 21 January 2015 the husband’s solicitors wrote to the wife advising that he and the children had departed Australia. On 27 January 2015 the wife’s solicitors wrote a letter advising that she did not consent to the children travelling to the United States.
On 13 January 2015 the wife filed an Application for Final Orders.
On 2 March 2015 interim orders were made by consent for both parties to have equal shared parental responsibility for the children and that neither party was to unreasonably withhold their consent to the children travelling outside Australia. Further orders were made for specific time for the wife to spend time with the children (with B to spend time with the wife subject to his wishes) and that such time was to occur in the absence of Mr Z. An order was made for telephone communication to occur between the children and the parent with whom the children were not with on Wednesday and Thursday between 6.00pm and 7.00pm.
In mid-May 2015 the wife signed the renewal of passport forms for C and B. The husband subsequently lodged the applications with the Australian Passport Office. About two weeks after 27 May 2015 the wife withdrew her consent to the renewal of C and B’s passports. The husband received a telephone call from someone at the Australian Passport Office advising they could no longer process the passport renewal application forms. As a consequence, the boys were unable to travel to New Zealand to compete in a sports competition.
From 2 July to 9 July 2015 the children’s paternal cousins travelled to Australia from the United States. B travelled with the cousins to JJ Town and the remaining children spent time with the wife from 11 to 12 July 2015.
In June and August 2015 the wife says she sent several text messages and attempted to telephone the husband to request to spend time with the children.
The wife spent time with the children on the weekend of 8 August 2015. The husband says the wife did not spend time with the children on this weekend as she cancelled.
In October 2015 the wife travelled to Canberra to spend time with the children rather than spending time with them in South Australia as originally planned after the husband advised her that the children were no longer competing in a sports competition there.
From 2 to 4 October 2015 E and D spent time with the wife. C refused to attend.
The wife travelled to Canberra on 23 October 2015 and spent time with the children at a school fete. D and E spent two nights at the maternal grandparents’ home.
The wife spent time with the children on 12 and 13 December 2015.
In December 2015 the wife provided consent for B to travel to the United States to work with his uncle.
Despite an agreement that the wife would spend time with the children from 9 January to 30 January 2016, the wife spent only two days with the girls during the 2015/2016 Christmas school holidays. The husband says on 9 January 2016 he drove D and E to the wife’s parents’ home but the girls refused to get out of the car.
On 20 January 2016 the single expert, Dr Y’s, report dated that day was filed. The report was released to the parties on 22 January 2016. Dr Y reached the recommendation that the girls should be moved to live with the wife “full time”.
On 1 February 2016 orders were made for the two younger children to spend defined time with the wife. Orders were also made in relation to passports and for the children to be placed on the airport Watch List for a period of 12 months. The previous order for Mr Z not to be present when the wife spent time with the children was discharged. An additional order was made that B and C be made clearly aware that their mother wished to spend time with them but did not wish to compel them against their wishes.
The wife spent time with D, E and C in Canberra on the weekend of 26 February 2016.
On 4 March 2016 orders were made removing the children’s names from the airport Watch List. Orders were also made for the parties to transfer the sum of approximately $77,848 to a trust account from the proceeds of sale of the 2 L Street property.
The wife spent time with all the children on the Easter weekend of 24 to 28 March 2016 at the N Town property.
On 11 April 2016 the two younger children spent time with the wife at the N Town property. She says over this time her relationship with the girls improved.
On 23 April 2016 the wife discovered that that on D’s iPod camera stream were pornographic and sexually explicit photographs and other material which had been uploaded by the husband including sexually explicit emails from the husband to Ms HH. The wife confiscated the iPod and did not return it to Canberra with the girls (she later returned it on 12 July 2016). The husband says the wife accessed his iCloud account using D’s iPod.
On about 25 April 2016 the husband travelled to Europe.
On 7 and 8 May 2016 the wife spent time with the two younger children at her parents’ home in Canberra.
On 10 to 13 June 2016 the wife spent time with the two younger children.
On 29 June 2016 the matter was transferred from the Federal Circuit Court to this Court.
From 1 July to 11 July 2016 the two younger children spent time with the wife. The husband had emailed the wife previously on 20 June 2016 asking whether she intended to spend time with the two boys. The wife did not respond.
The husband travelled to New Zealand with the children in July and August 2016 for a sports competition.
The wife spent time with the two younger children from 23 September 2016 to 30 September 2016 at the N Town property and also in Melbourne.
On 9 September 2016 the husband’s solicitors sent a letter to the wife’s solicitors suggesting weekends in term 4 that she could spend time with the children.
Since the beginning of 2016 the wife has been telephoning to speak to the children on either a Wednesday or Thursday night.

FAMILY VIOLENCE

The wife’s allegations of systemic sexual abuse during the relationship

The wife makes allegations of family violence against the husband.
The wife discussed her sexual abuse allegations with Dr Y. Commencing at line 135 of Dr Y’s report, the wife describes her relationship with the husband as being “very difficult”, with the husband being “very controlling of her for a number of years before the separation”. Commencing at line 145, Dr Y writes:
[The wife] reported that control from [the husband] during the relationship was mostly sexual, with [the husband] wanting to have sex every night, wanting to do things she wasn’t comfortable with and calling her a “snoozer” when she was reluctant to participate. She reported that when he engaged in sexual acts that she didn’t like she openly displayed distress including crying and there was no doubt that he would have known that she was not happy and was not freely consenting to the activities. [The wife] reported that this went on for a number of years and she didn’t know it was not normal as she hadn’t spoken to anybody else about it. She reported that [the husband] was also belittling of her in front of the children, such as making negative comments about her body.

The wife expands these allegations in her evidence alleging marital rape. The wife says that throughout the parties’ relationship the husband demanded sexual intercourse or sexual activity almost every day. The wife says the parties had sex most nights even during her menstrual cycle despite her telling the husband “no”. She says if she rejected or refused sexual intercourse the husband would berate, bully, harass her and call her a “snoozer”. She says that a few weeks following the birth of B by way of caesarean section, the husband wanted to have sex. She told him that the doctor had advised her to wait six weeks before have sexual intercourse. Despite this, the wife says the parties had sex.
The wife says that the husband took her to a sex shop where he purchased a dildo for the wife and used it during sexual intercourse despite the wife telling him she did not like it and she ultimately disposed of it. The husband later purchased a second dildo which the wife says she also disposed of. The wife says that the husband also inserted other objects into her vagina as a sexual activity including a deodorant bottle. The wife says the husband inserted his penis at the same time as the deodorant bottle which caused the wife pain and she started to cry and tell the husband to stop but he continued. On other occasions, she says that the parties’ sexual intercourse was so hard and rough that she caused scratches or nail marks to the husband’s back. The wife says the husband also inserted cucumbers, champagne bottles and a Maglite torch into her vagina. The wife says she would tell the husband to stop because these acts hurt her but he would continue. On the occasion when the husband inserted the Maglite torch, the wife was crying so much due to the pain that the husband removed it but then inserted his penis despite the wife’s refusal. The following days she says she was bleeding and swollen from the trauma caused to her vagina.
The wife says there were times during sexual intercourse with the husband that she yelled at the husband to stop and would become quite distressed and hysterical but the husband did not stop. The wife says the husband’s requests to use objects during sexual intercourse became less frequent after such outbursts by the wife but that he would leave phallic objects around the house (such as a Pepsi bottle and vegetables such as cucumbers and bananas) to suggest his desire to resume that type of sexual activity.
The wife says the husband would show her photographs of dildos and girls with objects in them. The wife says she told the husband those images were “disgusting”.
In the last few years of the parties’ relationship the wife says the husband would stay up late drinking alcohol and playing on the computer or be with a friend and would then wake the wife up demanding sex. Notwithstanding the wife’s refusal, she says he would proceed to have sexual intercourse with her.
The wife says that throughout their relationship, the husband would ridicule her for excess weight or being untoned. She also alleges that he was controlling about her appearance and would prevent her from doing things such as cutting her hair short. On numerous occasions she says the husband would involve the girls in pointing out the wife’s imperfections.
The husband denies the allegations made by the wife that their sexual interaction was anything but consensual. He says, “When we had sex, I never witnessed [the wife] to appear uncomfortable, distressed, tearful or upset. [The wife’s] behaviour towards me has always been indicative of her freely consenting to being intimate. If I felt anything to the contrary, we would have stopped what we were doing and talked. In the past, if [the wife] said ‘no’ to having sex, I have respected her wish. I have never pressured [the wife] into being intimate”. The husband says he used to call the wife a “snoozer” in the context of her struggling to stay awake at night time to watch a particular television show and not in relation to anything sexual.
In his affidavit filed 30 September 2016 he says “I considered our sexual relationship to be healthy and I observed [the wife] to think so too”. The husband says that he and the wife as, part of their sexual experimentation, used implements such as a champagne bottle, deodorant bottle, a Maglite torch and a cucumber during sexual intercourse. He says this occurred at about six monthly intervals and the wife never expressed any objection to the use of the items. On one occasion in the early 2000’s he says he told the wife to “pick something up for us” from the supermarket and she returned with the cucumber. He says he and the wife would look at photographs of dildos and girls with objects in them and would laugh. He says on one occasion in the mid-90’s after listening to a radio show called “Pillow Talk” where they discussed using a Maglite as a sex toy, the wife grabbed a Maglite and said to the husband that they should try using it. The husband also says that the parties did use vibrators and on an occasion in early 2013 they had used a vibrator toy but afterwards the wife had told him that she didn’t like using it and the husband said that was ok. He said at no time did the wife exhibit signs of being distressed, upset or uncomfortable with their sex life. He says a few months before their separation the wife complained about them not using sex toys any more.

Text messages

An paragraph [59] of the wife’s trial affidavit, she says:
Between May and August 2013 leading up to separation, my relationship with [the husband] was toxic. [The husband] and I commenced counselling in respect of our marriage difficulties which were ultimately unsuccessful.
One area of objective evidence that could be used to assist in making findings about the wife’s serious allegations is contained in a series of text messages between the parties which became Exhibits 19 through to 29. These text messages were sent between 7 May 2013 and 16 July 2013.
The following exchange occurred between the parties on 7 May 2013 (Exhibit 19):
The husband: I am booking my incredibly hot and sexy milf of a wife in advance for dinner tomorrow night (Wednesday) with your loving husband. Dress code is smart. Smart and sexy in your case. If this isn’t suitable can you please let me know ASAP. :):):):). Looking forward to your reply.
The wife: I would love to go out with you. About to go on duty.
The husband: Lovely. Can’t wait :):)
The wife: Me too :-)
On 8 May 2013 the husband sent the wife a text message stating, “So the FAMILY have YOU booked for weekends from now on” to which the wife replied “Love it” (Exhibit 20).
The wife was asked about words in a text message sent on 17 May 2013 which was in the following words (Exhibit 22):
The husband: You getting your new toy
The wife: Got it about to try it!!!
The husband: Remember to use your special cream to lubricant your butt.
The wife: Ty
Counsel for the husband incorrectly put to the wife that the reference to the wife’s new toy in the emails of about 18 May 2013 was a reference to a sex toy. The husband said those questions were a misconception of his instructions to his lawyers. Normally a court would be entitled to assume that experienced counsel would not put questions to a witness unless they were on instructions. I am in this case however prepared to accept that there was a miscommunication between the husband and his lawyers.
On 4 June 2013 the husband said to the wife, in response to an exchange of text messages, “Ok beautiful” (Exhibit 23).
On 24 June 2013 the following exchange of text messages took place (Exhibit 24):
The husband: Lucky you. How is your head and shoulders
The wife: Still have heat pac on. Think I will b finished by 4, I will b ready for when u come past with kids.
The husband: I have had nothing but positive thoughts today. Yes now all I need is some sleep
The wife: Sound good; sleep after a few attempts at pinching
The husband: Great I can’t wait dinner bath and bed all with my wife
The wife: I’m excited – with no headache
The wife denied that that text exchange indicated that she was looking forward to having a sexual encounter with the husband on that evening. I find that any reasonable reading of that exchange of text messages would lead to the conclusion that the wife was excited at the prospect of a sexual encounter with the husband on that evening and that the words “I’m excited – with no headache” clearly indicates that. The wife also denied that that chain of text communication was warm and affectionate. No reasonable reading of this text exchange could support that assertion.
The wife was asked as to what the word “pinching” meant. The wife, who had written that word, was unable to explain what she meant by it, saying that it was a “typo”. Whatever it means it is unlikely to connote anything violent.
On 28 June 2013 the following exchange occurred (Exhibit 26):
The wife: I’ll b ready when u r.
The husband: Your mate wouldn’t even look at me
The husband: Did you read my texts
The wife: Just – haven’t stopped til now
The wife: R u on way
The husband: One minute
The wife: C u in 50 sec
The husband: So will we still have endless wildness sex.
The wife: Y
I find the wife was disingenuous when asked what the letter “Y” meant. The wife suggested it might mean “Why?” I do not accept that that is what it means. The wife said that alternatively it could mean the word “yes”. I find that that is clearly what the wife did intend it to mean.
On 1 July 2013 the following exchange occurred (Exhibit 27):
The husband: How are you hot stuff
The wife: Feel great ty
The husband: You are lucky you still have someone that loves you:)
The wife: I know I have u.
On both 2 and 15 July 2013 the parties told each other they loved one another (Exhibits 28 and 29).
The wife indicated that prior to May 2013 she had had an affair with Mr Z and that affair had ceased when the husband found out about the existence of the affair. While these text messages are unfavourable to the wife’s version of systemic non-consensual sex, the text messages have to be seen in context. The parties were attempting a reconciliation at the time they were written.

Other objective evidence

The wife was tested on the timing of her allegations in relation to systemic sexual family violence.
The wife’s lawyer, on the wife’s behalf, filed a Notice of Risk on 13 January 2015. The wife said that she gave instructions to her lawyer to prepare that document. Her lawyer signed that notice on her behalf. At page four of that document there is a question:
3. Has there been family violence or is there a risk of family violence by a party to the proceedings or any other person who is relevant to these proceedings?
The box marked “no” is marked with an “x”. The wife was asked as to whether or not she provided that instruction to her lawyer. She responded by saying that she had told her lawyer some information but not everything. She said she should have marked the box “yes” and not “no”. The wife asserted that her lawyer was aware of the wife’s apprehension that had she put “yes” the husband would share that information with the children because of his history of doing so. The wife’s lawyer was present in court when this evidence was given. No further evidence was given in relation to the preparation of the Notice of Risk. On balance I find that the wife’s lawyer would not have marked the answer to question 3 on the Notice as “no” if the wife had in fact disclosed to the wife’s lawyer that evidence the wife now wishes to give in relation to systemic sexual family violence.
The next piece of objective evidence is a document produced under subpoena by the Department of Human Services. On 8 April 2015 an officer of the Department made the following record:
We discussed family violence and [the wife] does not have family violence safety concerns.
The wife in oral evidence said that statement related to any concerns that she might have had about the children and not about herself. I do not accept that evidence from the wife. It is likely that in the April 2015 discussion the wife had with the Department the wife knew she was responding to a question about whether or not she had any concerns about family violence generally.

Conclusion in respect to the sexual abuse allegations

Based upon the objective evidence, I am unable to conclude there was a history of sexual abuse by the husband of the wife during their marriage. Nor am I able to conclude that there is any unacceptable risk to the younger children arising from these allegations by the wife.

Husband’s derogatory attitude to the wife

The husband has referred to the wife in derogatory terms. In written communication between the husband and Ms HH, the woman with whom he started a sexual relationship about four months after the separation, both the husband and Ms HH refer to the wife as a “whore” and Ms HH refers to the wife as a “gold digger”. B has also referred to his mother as a “whore”.
The husband gives evidence that it was Mr Z’s son, AA, who told B that his mother was a whore. Given that that is an expression that the husband has used about the wife then I have some hesitation in accepting the husband’s explanation as to how B came to adopt that descriptor for his mother.
The husband has in his possession a transcript of text messages that he arranged to have downloaded from the wife’s mobile phone. He has promised to give these text messages to B. The husband’s evidence about the transcripts of the text messages was that after he had suspected that the wife and Mr Z were having an affair he purchased a new mobile phone for the wife and took possession of the phone that she had. He then took that phone to a friend who had the technical skills to be able to recover deleted messages from a mobile telephone. The husband’s evidence is that his friend carried out that task and then asked the husband whether or not he really wanted to read them. The husband said at that point he made a decision not to and he does not have control of the transcripts of the text messages nor has he ever read them.
That evidence is inconsistent with the husband saying to Dr Y (commencing at line 808):
[The husband] said “The kids don’t know about the affair”. [The husband] said “I’ve told them when they’re 16 I’ll tell them”. When I challenged the appropriateness of this with respect to parent/child boundaries and information that they needed to know, [the husband] defended his position by saying “By then they’ll figure it out anyway”. He said “If they want two sides of the story, they can see the transcripts of the conversation between their mother and [Mr Z]. I would let them read it and they can figure it out”. [The husband] defended that the children have a right to know that information and when asked how they would get access to it, he said that he would be able to find it somewhere.
The statements that the husband made to Dr Y as quoted above are inconsistent with the husband’s assertion that he does not currently have the ability to obtain access to transcripts of the text messages on the wife’s old mobile phone between the wife and Mr Z during the time of the development of their relationship. The husband’s evidence that he did not read the text messages at that time is inherently unlikely. The husband did not seek to lead any evidence from his friend to corroborate his assertion.
Commencing at line 3380 of Dr Y’s report, she records that the husband demonstrated “absolutist thinking, callousness, lack of insight and a vengeful, domineering attitude”. That was the observation of Dr Y during her interactions with the husband for the interviews for the report. Dr Y referenced one example of callousness where the husband told her that he wouldn’t lose sleep or mind if the wife died in a car accident.
I find it is likely the husband has not been guarded in his use of derogatory comments about the wife in front of the children at least between the separation and the receipt of Dr Y’s report.

CIRCUMSTANCES RELATING TO THE WIFE’S DEPARTURE FROM CANBERRA

The wife told Dr Y that her motivations for leaving Canberra were:
144.1.that she wasn’t getting any contact with the children; and
144.2.her reputation was suffering.
I find that the husband was angry at the time of the separation. There is probably some truth in the wife’s assertions about lack of contact and some damage to her reputation amongst the parties’ joint circle of friends and school acquaintances. However, the predominate motivation of the wife was to start a new life with Mr Z in a place they found which was mutually attractive to them.

THE WIFE’S PROPOSALS FOR SCHOOLING FOR THE GIRLS

At paragraph [318] of the wife’s affidavit filed 30 September 2016 she said that she sought an order that the children’s enrolment be transferred to KK School which is the local school to where the wife lives in N Town. The wife annexes a copy of the annual report from KK School. She said that the school would adequately provide for the children’s educational needs and would offer social and emotionally welfare programs from a qualified psychologist to both girls. On 28 January 2016 the wife had an appointment with the school principal of KK School who confirmed that the girls could be immediately enrolled. It is the wife’s intention to seek immediate counselling support for the two girls should they live with her.
In her oral evidence the wife initially confirmed that if orders were made in the form she seeks she would be sending the two younger children to KK School but added as an option, LL School which is in F Town, a 45 minute journey from the wife’s home. This is a private school. The wife estimated that the annual fees for each child would be in the approximate sum of $4,000. The wife’s intention once the girls are settled (a period she was unable to predict) is to obtain employment in her profession in F Town so that she would then assist in the transportation of the girls. Otherwise, the girls’ attendance at LL School would involve the girls in a 45 minute bus trip each way each day.
I formed the impression that the wife had not fully thought through her proposals in relation to LL School so there is some uncertainty, on the wife’s proposal, as to what the younger children’s schooling arrangements would be and whether or not they would start at KK School or start at LL School if orders are made in accordance with those sought by the wife.

DR Y’S INITIAL RECOMMENDATION AND HER ORAL EVIDENCE ABOUT THAT RECOMMENDATION

In her January 2016 report, the single expert, Dr Y formed the view that the only possibility for the two younger children to develop a genuine and positive relationship with their mother would be for them to live with her full time. She went on to say that in order for them to successfully build a positive relationship and make a good adjustment with that living arrangement, the girls would need to have limited unsupervised contact with their brothers, their father or their extended paternal family. In oral evidence Dr Y said that the girls’ time with their father should initially be supervised so that they are not given a negative influence or encouraged to play up and misbehave to undermine the placement with the wife. She said a period of a couple of months with a professional support network in place would be recommended where there would be no time with the husband and thereafter limited supervised time. Dr Y could not estimate how long supervision should continue but suggested a review before a move to unsupervised time took place.
Dr Y was subsequently given information that the husband had said in the witness box (on more than one occasion) that once he had read Dr Y’s report (and I inferred with his lawyers) in relation to the effect Dr Y’s recommendation might have in respect of the future of this litigation, the husband’s attitude to the children spending time with the wife, had changed. Dr Y was provided with information about the time the children have spent with the wife since the release of Dr Y’s report (see below).

The husband also asserts that he has sought some professional help in relation to his attitudes. I have no report from the husband’s treating professionals. The only evidence I have is firstly the husband’s written evidence at paragraph [348] of his affidavit where he says “[the wife] and I need to improve our communication. I am seeking assistance from a counsellor in relation to this as well as strategies for dealing with and encouraging the children if they are resistant to spending time with [the wife]”. Dr Y made it clear that her recommendation for moving the two younger children was based on her assumption that it was the only way that they would have any possibility of having a positive relationship with their mother. The effect of Dr Y’s evidence was that that recommendation certainly was not one that she strongly pursued if the court reached a conclusion that there had been a change in what she had observed to be the husband’s attitudes during the preparation of her report. Dr Y said if the court found that the husband and the paternal family had the capacity to support the children’s relationship with their mother, then her recommendation would soften.
Some questions of Dr Y in cross examination contained an implied criticism that she made a recommendation that was outside the orders both parties sought. Dr Y recommended a moving of the two younger children which she conceded was different from either application that the parties were then making. That criticism of Dr Y is unwarranted. The wife’s application was for her to have time with the girls. Dr Y had reached the conclusion at the end of her deliberations for the report that the only way the wife could successfully have time with the children was for the children to move to live with her. Dr Y properly recorded the allegations that the wife made of sexual violence by the husband against her and the husband’s response to those allegations. It was suggested to Dr Y that because she heard the allegations first from the wife and that in some way coloured the view that she had formed relevant to her assessment of the husband in her final recommendation. I do not accept that there is any substance in that assertion.

CHILDREN’S TIME WITH THE WIFE IN 2016

As indicated, Dr Y’s report was filed on 20 January 2016. Further interim orders were made on 1 February 2016. Since that time and until the time of the hearing:
153.1.the four children went to N Town from 24 March to 28 March 2016;
153.2.from 11 April to 25 April 2016 the girls spent the first term school holidays in N Town;
153.3.the three younger children saw the wife for Mother’s Day 2016 weekend in Canberra;
153.4.the girls saw the wife for a long weekend on 10-13 June 2016 at N Town;
153.5.from 1 to 11 July 2016 in the term 2 school holidays the girls spent with their mother in N Town; and
153.6.the girls spent time with their mother in the September school holidays from 23 to 30 September 2016.
The two elder children have not been to N Town since March 2016. The wife did not invite them to the farm in April 2016. The reasons for her not doing so were not explored in any detail at the hearing.

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).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.

EQUAL SHARED PARENTAL RESPONSIBILITY

The parties agree that an order for equal shared parental responsibility should be made.

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))

In this case the primary considerations are closely interconnected.
It is to the benefit of each of the children to have a meaningful relationship with both parents. The central question is whether the husband stands in the way of that being achieved.
Dr Y states that the wife “appeared to understand that the children’s relationship with their father was important and she agreed that he provides stability and many positive and enriching experiences for the children. She noted that she was unable to compete with this due to her more limited financial means. [The wife] was highly concerned about the level of negative influence that [the husband] gives to the children.”

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))

The wife makes allegations of family violence against the husband. She says she did not raise these allegations prior to filing her affidavit on 30 September 2016 for fear that he would reveal the information to the children. I have made findings about these allegations above.
The wife says the husband has indulged in psychologically abusive behaviour and has set out to alienate the children from her. Dr Y had formed the view as a result of the interviews and observations that she carried out for her report that all four children showed the majority of the signs and behavioural manifestations of alignment with the husband. Dr Y explained that alignment is the reluctance to have contact with the other parent. It includes a disconnect between their behaviour with the wife and how the children subsequently perceive that interaction. She said one example was the children may actually be enjoying time with their mother but then remembering it differently in an inaccurate way. For example, during Dr Y’s observations of D with both of her parents, D’s behaviour changed dramatically from how she was behaving with her father to when she first met her mother. After she had spent more time with the wife she went on to soften and started to relate to her in a fun and light-hearted way.
In her report Dr Y writes:
[The husband] took every opportunity to vilify [the wife] and his views showed a callous disregard for her as a person and the mother of the four children. He was highly resistant to influence and my attempts to explore alternative interpretations were met with scorn. I formed the view that [the husband] lacks insight regarding the benefit to the children of having a positive relationship with their mother and he has no intention to do anything different to support the children’s relationship with her … [the husband] was unable to provide any genuine positive statements regarding [the wife] and her role as the children’s mother. The few positive things he did say were immediately downplayed or dismissed. [The husband] consistently expressed the view that he has done everything he could be expected to do and “everyone” has told him they don’t know why he bothers. He appears to believe that everyone associated with the family believes that he should not be supported [the wife’s] relationship with the children.
The husband denies the wife’s allegations that he has frustrated her time with the children and organised activities for the children in its place. The children are involved in a range of activities which they have been engaged in since prior to the parties’ separation.
The husband says he has sought assistance from a counsellor to improve his relationship with the wife and to learn strategies for dealing with and encouraging the children if they are resistant to spending time with their mother. The husband says he is willing to participate in counselling with the wife to better improve their co-parenting relationship.
The wife says the husband previously divulged other information to the children including the wife’s affair with Mr Z, negotiations with the children, parenting and contact arrangements and financial and child-support matters. The husband concedes that he has told the children some things which did not concern them and realises he should not have done so. He says at other times it has been impossible to shield them from certain incidents.
The wife asserted that D came to see her with an iPod that the husband had provided to her. The wife alleged there was pornographic material found on that device. I accept the husband’s explanation as to how that material came to be available on that iPod.
The wife says that the husband used physical discipline on the children. She says he would pull B’s ear or clip him over the back of the neck. The wife says that the husband would get very frustrated with C and would thump him and give him dead legs. The wife says she tried to intervene and stop the husband but he would respond by saying “he has to learn”. The husband says that he disciplines the children by taking away their mobile phones, cancelling playdates, sending the children to their bedrooms and not allowing them to watch television. He concedes that he has occasionally given C a “dead” leg.
Dr Y concluded that there was no evidence that the children are at risk in the wife’s care. However, she noted that the “court may wish to explore the concerns reported regarding [Mr Z] to be satisfied with respect to the events raised”.
Mr Z denied a report by E, on what would have been either the first or second occasion that he met E, that he physically disciplined her. E also reported to Dr Y that Mr Z had “smacked my bottom”. I accept E’s report that he did so. It is likely that E has exaggerated any attempt by Mr Z to discipline her given that E had only just met him. While the husband says there appears to have been an incident of family violence between E and Mr Z, he agrees that there does not appear to be a current need to protect the children from physical or psychological harm emanating from Mr Z.

The additional considerations

Children’s views (s 60CC(3)(a))

Dr Y says B expressed the view that he does not want to spend any time with his mother. She says, “given his age and the amount of time this choice has been supported, it is unlikely that this will change during [B’s] adolescence”. Dr Y opines that any order for B to spend time with his mother against his views, would only further undermine his relationship with her and their relationship would be better maintained in a minimal way if he is not exposed to negative information about his mother.
C also expressed the view that he would not like to see his mother. C is already choosing to partake in other activities rather than spend time with his mother. Dr Y opines that it “may do more harm to force him to have contact if he chooses to go”. However, Dr Y notes that C has expressed the wish to travel to N Town with his sisters to ensure their safety but she formed the view he had the ulterior motive of being able to report back to his father what had taken place. She concluded that C’s presence in N Town may interfere with the time the two younger children spend time with the wife.
Dr Y concludes that B and C are at an age where they are unable to be forced to spend time with their mother against their will and the paternal family do not have the capacity to influence them to do so.
I note that the elder children did in fact travel with their sisters to the wife’s farm on one occasion in March 2016.
Dr Y says that while D and E also expressed a wish not to see their mother, that preference “is still open to the possibility of positive influence if there was a more regulated schedule for time” and the two girls are “young enough to be required to have contact with their mother,” and the two girls “would likely cooperate in having that contact time” notwithstanding the limited ability of the paternal family to positively encourage this.

Relationships of the children with the parents and other persons (s 60CC(3)(b)); 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))

The wife says that had an extremely close relationship with the children up until the parties’ separation. She says she was the parent most typically involved in the children’s day-to-day activities they would come to her for advice and support.
Since the parties’ separation, the wife has had limited regular contact with the children. She has recently spent more time with the two younger children in school holidays and spent limited time with C. However, she has not spent any significant time with B for a long time.
Since the parties’ separation, the wife’s relationship with B has faltered. She says he “became rude and hostile and very much behaved like [the husband did] at the point of separation”.
Dr Y says that the children are all alienated from their mother in varying degrees. She says that the two boys are “more stubborn in their views against their mother” and those views have been encouraged by the husband. Dr Y concludes that while all of the children are aligned with their father and express idealised views of him, the two younger children are not “absolute in their rejection of their mother as their brothers appear to be” and are “somewhat inconsistent in their attachment and relationship with their mother” with their narrative of their mother being inconsistent with Dr Y’s observations of them with her during the interviews for the report. As such she says there is a “window of opportunity” for the wife to re-establish a positive relationship with the two younger children. She says that arrangements for the wife to spend time with the two girls would “need to be rigid and enforced, including provisions that the girls are not to be enrolled in activities that clash with contact time with their mother. While such an Order may not extend to activities that their older brothers do while the girls have contact with their mother, I caution that if the girls perceive that they are missing out on something important, this will directly undermine their willingness to spend time with their mother”.
The children have a close relationship with the husband and have similar views that he is the “superior and more desirable parent”. Dr Y states, however, that particularly D and E’s “highly idealised relationship” with their father “represents a potentially fragile attachment because it is not a reality-based relationship interpretation that allows room for disappointment or conflict”.
However, Dr Y concludes that the children each have a strong alignment with their father which has been to the detriment of their relationship with their mother. Dr Y states “[t]his has occurred in the context of limited time with their mother over the past two years and the influence of their father and paternal family. The children believe their mother has lied, is trying to restrict their freedom (passports and bank accounts) and is trying to take all of their dad’s money. The children also have a distinctly negative opinion of the mother’s new partner, and this has further undermined their opportunities and wishes to see their mother. [The husband] appears to have made minimal attempts to encourage the children to respect their mother and enjoy time with her”.
The children’s maternal grandparents, maternal aunt and uncle, paternal grandparents and paternal uncles and their families live in Canberra. Their grandparents live only five doors apart in Canberra. The children’s godparents also live in Canberra. The husband says the children have close relationships with their cousins.
The maternal grandparents had a significant relationship with the children up until the date of separation. Since the parties’ separation, the children have had limited time with their maternal grandparents. It seems uncontroversial that the husband has not fostered that relationship since separation and that the amount of time the children spend with their maternal grandparents now is dependent upon their mother coming to Canberra and taking the children to see their maternal grandparents whilst she is in Canberra. Since separation the paternal grandparents have been more involved in the day to day lives of the children.
The wife has been in a relationship with Mr Z since about August 2013. Prior to their relationship, Mr Z was well known to the children as a family friend. Mr Z has two children who live with their mother in Canberra. Any time Mr Z spends with his children is during school holidays. The wife says, “I consider my relationship with [Mr Z] to be loving, stable and long-term. We have purchased the property at [N Town] together and are slowly making the home into a comfortable family house and the farm into a workable farm”. In accordance with previous interim orders, Mr Z did not spent any time with the children for a period of 12 months. However, the current interim orders discharged that injunction and the children spent the first term school holidays of 2016 in N Town and the girls returned over the Easter long weekend and the Queen’s Birthday long weekend during which times the children spent time with Mr Z. The wife says “Although there was some hostility from [B] initially, all four children have relaxed into a relationship with [Mr Z] that is still in its formative stages. Given that the girls have spent more time with [Mr Z] their relationship with him has been stronger and closer than that of the boys … [B] was the only child who was resistant to sharing a relationship with [Mr Z] but I do not believe that this is of his own making, and that he is simply acting out based on the information and influence of his father”.
Dr Y states in her report that the children “all have highly negative opinions” about Mr Z and have aligned with their father in his disdain for Mr Z. She opines that B and C especially would be “highly unlikely to ever tolerate” being in Mr Z’s company and therefore any chance of re-starting their relationship with the wife would need to occur in Mr Z’s absence. Dr Y states that while D and E also hold negative views about Mr Z, “it is possible that over time and without ongoing negative influence against him, they may come to develop a relationship with him”.
Dr Y however is of the view that the reason do not like Mr Z is because of the fact that Mr Z is being blamed by the husband and his family for what has happened to the parties’ family.
Dr Y agreed in oral evidence (as she says in her report) that the wife underestimates the degree to which all four children do not like Mr Z.

The husband will retain the unencumbered property in which he currently resides and the wife will retain her interest in the property in which she currently resides.
There is no loan outstanding to which the mortgage currently registered against the Suburb H Property relates. The formal process of discharging the mortgage has not yet occurred and an order shall be made that the parties attend to that process.
The wife, in her formal application, sought a sale of the 1 L Street property, payment of the capital gains tax associated with the sale and for her to retain the balance of proceeds. No allowance was made on the balance sheet for that capital gains tax and I have insufficient evidence to estimate what it might be. Counsel for the wife in final submissions made it clear that the wife was leaving it up to the court to re-do the mathematics on the basis that she receive a 50/50 division of the overall assets of the parties. Based on the above distribution table I find it is just and equitable for the wife to retain the property. Because that will be achieved by way of an order under s 79, capital gains tax is not immediately payable and will not be payable if the wife chooses not to dispose of the property.
The husband shall receive $54,734 from the net proceeds in the controlled monies account after the sale of the 2 L Street property. That fund is to be used to pay the capital gains tax on that sale with the wife to receive the balance.
The wife shall be entitled to retain her engagement ring and for the order that she seeks for the return the three platinum necklaces and four pendants and the coin pendant given to the wife by the husband’s grandmother. I will leave it to the wife to decide how this jewellery might eventually be divided amongst her daughters.
The husband sought an order that split the wife’s superannuation (based on his application that assets be divided 70/30). Given the decision about what is a just and equitable result, there is no need to split the wife’s superannuation interests.
Otherwise each party will retain what they have and the wife will be responsible for the loan to her parents.

I certify that the preceding three hundred and seventy-one (371) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 19 May 2017.

Associate:

Date: 19 May 2017

SCHEDULE 1 – orders sought by the wife

Parenting Orders

That both parents have equal shared parental responsibility for the four children, namely:
(a) B, born … 2000;
(b) C, born … 2002;
(c) D, born … 2005;
(d) E, born … 2007.
That the children B, born … 2000 and C, born … 2002 live with the Father.
That the children D, born … 2005 and E, born … 2007 live with the mother.
That the mother spend time with the children B and C in accordance with their wishes.
That the father spend time with the children D and E as follows:
(a) For half of the Victorian school term holidays and the Christmas/January school term holidays, as agreed between the parents, but failing agreement, for the first half of the school holidays in odd numbered years and the second half of the school holidays in even numbered years;
(b) At such other times as agreed between the parents.
Victorian school term holidays and the Christmas/January school term holidays are defined as follows:
(a) The first half of the holiday period commencing from 12noon on the day following the conclusion of school to 12noon the middle Saturday; and
(b) The second half of the holiday period commencing at 12noon the middle Saturday until 12noon the day before the re-commencement of the next school term.
For the purposes of changeover pursuant to these Orders, unless otherwise agreed by the parties the father will collect the children from KL Town at the commencement of his time with the children and the mother will collect the children at IJ Town at the conclusion of the father’s time with the children, or at a place as otherwise agreed in writing between the parents.
Each parent may communicate with the children by telephone each Wednesday and Thursday between the hours of 6:00PM and 7:00PM when they are not with the children.
Neither parent will remove or attempt to remove or cause any third parties to remove or attempt to remove the children from the Commonwealth of Australia without the written consent of the other parent or an Order of the Court.
Each parent will forthwith provide an authority to each of the children’s schools authorising the release of information to the other parent, including but not limited to, school reports, school photograph order forms, invitation and flyers to school events and that each parent is at liberty to attend events involving the children at school.
That each parent will forthwith provide an authority to each of the children’s treating medical practitioner authorising the release of information to the other parent regarding the children’s medical treatment.
That each parent will forthwith provide to the other parent his/her contact details, including but not limited to the parent’s residential address, phone number and email address and will keep the other parent updated of any changes in respect of those contact details.
Both parents will ensure that they communicate with the other parent in relation to the children’s health, medical emergencies and wellbeing and to notify the other parent of any injuries or hospitalisation suffered by any of the children as soon as practicable.
That each parent will actively promote and encourage the children’s relationships with the other parent and other family members.
Each parent shall refrain from derogatory comments or criticism in relation to the other parent or other family members in the presence of the children.

Financial Orders

Within 42 days of the date of these Orders (“the settlement date”), the Applicant will do all acts and things and sign all documents necessary to transfer her right, title and interest in the property known and situate at G Street, Suburb H in the Australian Capital Territory (more particularly described as the whole of the land contained in Suburb H Section … Block …) (hereinafter referred to as the “Suburb H property”) to the Respondent.
Simultaneous with the transfer pursuant to Order 16, the Respondent will pay the Applicant the amount of $720,000.
Pending the transfer of the Suburb H property pursuant to Order 16, the following will apply:
(a) The Respondent will pay as when they fall due all outgoings, rates, and taxes in respect to the Suburb H property and indemnify the Applicant and keep her indemnified in respect to those liabilities;
(b) The Respondent will have sole use and occupation of the Suburb H property to the exclusion of the Applicant;
(c) That both parties are restrained from encumbering the Suburb H property.
Within 7 days of the date of these Orders, the Respondent will deliver the jewellery, consisting of 3 platinum necklaces and 4 pendants, the coin pendant given to the Applicant by the respondents grandmother and the Applicant’s $5 notes in the Respondent’s possession to the Applicant.
Within 7 days of the date of these Orders, the parties will do all acts and things necessary to irrevocably authorise the conveyancing solicitor who acted for the parties in the sale of the property known and situate at 2 L Street, Suburb K in the Australian Capital Territory, and to cause the net proceeds of sale of the same property to be disbursed as follows:
(a) To the payment of any CGT liability in respect of the property;
(b) The balance of the proceeds to the Applicant.
Subject to these Orders, the Applicant will retain to the exclusion of the Respondent the following assets:
(a) The Applicant’s interest in the property known and situate at 1 L Street, Suburb K in the Australian Capital Territory;
(b) The Applicant’s interest in the property known and situate at M Street, N Town in the State of Victoria;
(c) The Motor vehicle;
(d) The monies standing to the credit of the Applicant in the MR Bank Offset Account, the CBA Savings Account, and any other account;
(e) All shares with CommSec;
(f) The Applicant’s superannuation entitlements with PSS; and
(g) All items of contents and personalty in the Applicant’s name, possession and control.
Subject to these Orders, the Respondent will retain to the exclusion of the Applicant the following assets:
(a) The 4WD motor vehicle;
(b)All Business Q business equipment, including work utes, trailers, tools and stock;
(c) The stock existing in the Business Q showroom;
(d) Goods (present in Australia and in the United States of America);
(e) The monies standing to the credit of the Respondent with St George Bank, the CBA Business and International Accounts;
(f) The boat and trailer;
(g) The motorbike;
(h) The quad-bike; and
(i) All items of contents and personalty in the Respondent’s name, possession and control.
Both parties will be jointly and equally responsible for any capital gains tax liability arising from the sale of the property known and situate at 2 L Street, Suburb K in the Australian Capital Territory.
Subject to Order 23, the parties will be solely responsible for any liabilities attaching to any item of property that they will be retaining or transferred to them pursuant to these Orders, and will indemnify the other party with respect to those liabilities.
These orders are binding upon all parties, heirs, executors and assigns.
That in the event that the Applicant husband or Respondent wife refuses or neglects to comply with any of the provisions of these Orders, within 7 days of a document being forwarded to either of them for their completion, a Deputy Registrar or a Registrar or other Officer of the Family Court of Australia be appointed pursuant to Section 106A(1) of the Act, to execute all such deeds and documents in the name of the defaulting party and to do all acts and things necessary to give validity to the said Orders.

SCHEDULE 2 – orders sought by the husband

CHILDREN

That the parents have equal shared parental responsibility for:
(a)B (“B”), born … 2000;
(b)C (“C”), born … 2002;
(c)D (“D”), born …; and
(d)E (“E”), born … 2007.
“the children”.

Care Arrangements for the Children

That the children live with the Respondent.
That D and E spend time with the Applicant, unless otherwise agreed in writing, as follows:
(a)During the school term:
(i)For two weekends per school term:
(a) On the weekend concluding the third week of the ACT school term from afterschool Friday until 4:00pm on Sunday (and in the event that the Monday is a non-school day, until 4:00pm on the Monday); and,
(b) On the weekend concluding the seventh week of the ACT school term from afterschool Friday until 4:00pm on Sunday (and in the event that the Monday is a non-school day, until 4:00pm on the Monday).
(b)During the Term 1, Term 2 and Term 3 ACT school holidays:
(i)For one half of the Term 1, Term 2 and Term 3 school holiday period, being the overlapping week between the ACT and Victorian school holidays AND IT IS NOTED THAT C and D’s birthdays … may fall within the Term 2 school holiday period).
(c)For one half of the Term 4 ACT Christmas school holiday period, being the first half in odd numbered years, and the second half in the even numbered years.
(d)On special occasions:
(i)For the Mother’s Day weekend from afterschool Friday until 4:00pm on Sunday.
(ii)On E’s birthday from 9:00am to 12:00pm on a weekend and from afterschool until 7:00pm on a school day.
(iii)In the event D’s birthday falls outside the Term 2 holiday period, on D’s birthday from 9:00am to 12:00pm on a weekend and from afterschool until 7:00pm on a school day
(iv)On the Applicant’s birthday from 9:00am to 12:00pm on a non-school day and from afterschool until 7:00pm on a school day.
(e)Such further or other times as the parties may agree in writing.
That B and C spend time with the Applicant in accordance with their wishes.
That the Respondent provide to the Applicant as much notice as possible of all extracurricular activities and social events to which D or E (or B or C as the case may be) have been invited and which may be scheduled to occur/take place during the Applicant’s time with them.

Electronic Communication

That each parent take all reasonable steps to facilitate telephone contact between the children and the other parent, whilst the children are in their care whether via text message and/or telephone call:
(a)at such times as agreed between the parents, or as may be requested by the children and failing agreement:
(b)between the hours of 6:00pm and 7:00pm each Wednesday.

Handover

That for the purposes of changeover pursuant to these Orders:
(a)At the commencement of time, the Applicant shall collect those children spending time with her from their school(s) on a school day and from the Respondent’s residence on a non-school day; and
(b)At the conclusion of time, the Applicant shall return those children who spent time with her to the Respondent’s residence.

Parental Communication

The Respondent provide an authority to each of the children’s schools authorising the release of information to the Applicant including but not limited to school reports, school photograph order forms, invitation and flyers to school events and that each parent is at liberty to attend events involving the children at school.
That each parent notify the other forthwith via text message or in the event of an emergency via telephone call of:
(a)Any serious illness or injury affecting a child or the children, and be at liberty to contact any doctor or hospital treating the child/ren to obtain information;
(b)The name of any general practitioner or paediatrician or other specialist who treats the child/ren whilst the children are in that parent’s care.
That neither parent say unkind, uncomplimentary or denigrating comments about the other to or in the presence of the children, nor cause or allow anybody else to do so.
That neither parent cause nor allow any third party to inflict physical discipline on any of the children.

Overseas Travel

That Orders 6 and 7 of the Orders made on 1 February 2016 be discharged.
That pursuant to Section 65Y, each party is permitted to take the children out of the Commonwealth of Australia or cause a child to travel outside of the Commonwealth of Australia during the time the children live with them, or for some other agreed period of time, provided that a full itinerary, a copy of return airfare tickets and a copy of a valid travel insurance policy for the proposed trip is provided to the other party not less than 21 days prior to travel together with contact details for the children during the absence.
That either parent be restrained from lodging any objections to the issue of an Australian travel document for the children or causing an Australian travel document for the children to be cancelled save without the written consent of other parent or further order of the Court.

Miscellaneous

In the event the parties are unable to agree on a decision about:
(a)The exercise of equal shared parental responsibility;
(b)An interpretation of these Orders or
(c)A proposed variation of these Orders (if there is an assertion a significant change has occurred),
the parties will, prior to filing an application with the Court, seek the mediation services of a person agreed between them and failing agreement by the Director of Child Dispute Services, Canberra Registry, Family Law Courts or her or his then equivalent, in order to attempt to resolve any such dispute. The parties shall attend such session or sessions as the agreed or nominated mediator recommends and the parties shall make a bona fide attempt to reach an agreement about any disputed issue.

PROPERTY

The Transfers, Sale & Payment

That within 42 days from the date of these Orders:
(a)The Applicant do all things necessary to transfer to the Respondent, at the Respondent’s expense, her interest in the property contained in Volume … Folio … Section … Block … Deposited Plan …, otherwise known as G Street, Suburb H in the Australian Capital Territory (“the Suburb H property”).
(b)That the Applicant and the Respondent do all things necessary to cause Mortgage Registration number … to J Bank Pty Limited securing loan number … in the name of Ms Ellenberg to be formally discharged.
(c)Within 42 days of the date of these orders the Applicant and the Respondent do all things necessary to sell to completion their interest in property contained in Volume … Folio … Section … Block … Deposited Plan … Unit …, otherwise known as 1 L Street, Suburb K in the Australian Capital Territory (“1 L Street”) with the proceeds of sale to be disbursed as follows:
(i)To pay all costs, commissions and expenses of the sale;
(ii)To pay the usual rates adjustments;
(iii)To pay to the Applicant such sum to pay the CGT liability she will incur arising from the sale of this property;
(iv)To pay to the Respondent such sum to pay the CGT liability he will incur arising from the sale of this property;
(v)To pay the balance as follows:
(a) To the Respondent such sum so as to provide that taking into account the effect of these orders, he receives 70 per cent of the non-superannuation asset pool;
(b) The balance to the Applicant.
(d)AND IT IS NOTED THAT:
(i)There is no loan outstanding to which the mortgage currently registered against the Suburb H Property relates. The formal process of discharging the mortgage has not occurred.
(ii)Ms Maigret is one and the same person as Ms Ellenberg.
(iii)The Suburb H Property is registered in the name of Ms Ellenberg.
(iv)1 L Street is registered in the names of Ms Ellenberg and Mr Ellenberg as joint tenants.
That within 42 days of the date of these Orders, the Respondent do all things necessary to sell all of the JK Ltd Shares held in his name with the proceeds of sale to be distributed as follows:
(a)To pay all costs and brokerage fees in relation to the sale;
(b)To pay to the Respondent such sum to pay the CGT liability he will incur arising from the sale of these shares;
(c)To pay the balance as follows:
(i)70 per cent to the Respondent;
(ii)30 per cent to the Applicant.
That within 7 days of the date of these orders, the parties do all things necessary to provide a written direction to the Principle of I Lawyers to disburse the sale proceeds of the property situate at 2 L Street held in their Trust Account as follows:
(a)To the payment of any CGT liability in respect of this Property;
(b)The balance to the Respondent.
That the Husband do all things necessary to cause the goods in the possession of Mr ZZ and Mr AB held on behalf of the Respondent be sold at a time as agreed between the parties with the proceeds of sale to be disbursed as follows:
(a)To pay any costs of sale/brokerage fees;
(b)To pay to Mr ZZ and to Mr AB their storage/holding fees;
(c)To pay the balance as follows:
(i)70 per cent to the Respondent;
(ii)30 per cent to the Applicant.

Jewellery

That within 14 days of the date of these orders, the Applicant return to the Respondent the diamond engagement ring and thereafter the Respondent shall then hold the engagement ring and the four necklaces currently in his possession on trust by the Respondent for the benefit of the children, D and, E, to be gifted to them on behalf of the Applicant and the Respondent upon their 21^st birthdays.

Superannuation

That in accordance with paragraph 90MT(1)(b) of the Family Law Act 1975:
(a)The Respondent (or such other person to whom a splittable amount is payable) is entitled to be paid the specified percentage of each splittable payment form the Applicant’s interest in the Public Sector Superannuation Scheme (“PSS”) (Account AGS number …) in the name of Ms Ellenberg;
(b)The Applicant’s entitlement (or the entitlement of such other person to whom a payment may be made out of the Applicant’s interest) in the PSS is correspondingly reduced by force of this Order;
(c)the specified percentage for the purposes of this Order is 50.00 per cent; and
(d)That this Order has effect from the operative time and the operative time is the beginning of the day upon which this Order is made.
That the Commonwealth Superannuation Corporation (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the Respondent in the immediately preceding clause of this Order; and
(b)pay the entitlement whenever the trustee makes a splittable payment from the Applicant’s interest in the PSS.
That the Court notes:
(a)That in accordance with section 90MZD of the Family Law Act 1975, the Trustee has been accorded procedural fairness in relation to the making of this Order and has been provided with a copy of the proposed Order;
(b)The Trustee, after service upon it of a sealed copy of this Order, has obligations under Public Sector Superannuation Trust Deed to create an associate preserved benefit in the name of the Respondent;
(c)any payments from the Applicant’s superannuation interest in the PSS made after the trustee has created an associate preserved benefit in the Respondent’s name in the PSS are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001; and
(d)The Trustee will be relieved of its obligations to calculate and split payments under this Order in the event that associate preserved benefit is created in the name of the Respondent.

Personal Property

The Applicant be entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects and where there is no legal title, currently in her possession and control, including but not limited to:
(a)Her interest in the property contained in Volume … Folio … otherwise known as M Street, N Town in the State of Victoria;
(b)The Motor vehicle 1;
(c)The Motor vehicle 2;
(d)Her interest in the business, “Business O” and “Business P”;
(e)Monies standing to the credit in any bank or credit union account in her name solely or joint with any other person;
(f)Commsec shares;
(g)Her superannuation entitlements with PSS (Account (AGS) number …); and,
(h)Household contents.
The Respondent be entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects and where there is no legal title, currently in his possession and control, including but not limited to:
(a)The 4WD;
(b)Monies standing to the credit in any bank or credit union account in his name solely or joint with any other person;
(c)Those goods and associated paraphernalia in the personal possession of the Respondent;
(d)His interest in the business known as “Business Q”; and
(e)Household contents.

Indemnities

That the Applicant pay and indemnify the Respondent in respect of all liabilities in her sole name or jointly with any other person, including but not limited to:
(a)All rates, insurances, utilities and land tax (if any) with respect to the N Town Property and 1 L Street;
(b)The R Ltd loan secured by way of a mortgage to R Limited Ltd (mortgage registration number …);
(c)The amount payable, if any, to Ms S Maigret and/or Mr T Maigret, together with interest;
(d)Any capital gains tax payable by her with respect to the sale of 2 L Street;
(e)Any capital gains tax payable by her with respect to 1 L Street;
(f)Any credit card debt in her sole name or jointly with any other person.
That the Respondent pay and indemnify the Applicant in respect of all liabilities in his sole name or jointly with any other person, including but not limited to:
(a)All rates, insurances, utilities and land tax (if any) with respect to the Suburb H Property;
(b)Capital gains tax payable by him with respect to the sale of 2 L Street;
(c)Capital gains tax payable by him with respect to the sale of the JK Ltd shares;
(d)Any credit card debt in his sole name or jointly with any other person.

Miscellaneous

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 Canberra Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
That the Applicant pay the Respondent’s costs of and incidental to his Application in a Case filed 22 January 2016.
That the Applicant pay the Respondent’s costs of and incidental to his Application in a Case filed 8 June 2016.

[2017] FamCA 331

19 May 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies