Munayallan and Scott (No 2)

[2019] FamCA 676

FAMILY COURT OF AUSTRALIA

MUNAYALLAN & SCOTT (NO. 2) [2019] FamCA 676

FAMILY LAW – CHILDREN – Final hearing – With whom a child lives and spends time – Where the children have lived with the parties in equal time since 2014 – Where the husband seeks to continue the arrangement – Where the relationship between the parties is becoming increasingly fractured – Where the wife seeks to reduce the husband’s time with the children to five nights per fortnight – Orders.

Family Law Act 1975 (Cth) ss60B, 60B(2), 60B(3), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA

Champness & Hanson (2009) FLC 93-407
Sigley & Evor [201]] FamCAFC 22

APPLICANT: Ms Munayallan

RESPONDENT: Mr Scott

FILE NUMBER: SYC 59 of 2010

DATE DELIVERED: 15 August 2019

PLACE DELIVERED: Darwin

PLACE HEARD: Sydney

JUDGMENT OF: Berman J

HEARING DATE: 17 to 21 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duc

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the parties shall have shared parental responsibility for C born … 2007  and D born … 2010 (collectively “the children”) PROVIDED that the wife shall have sole parental responsibility for their health and education and shall use her best endeavours to reach agreement with the husband on any health and education related topic but if unable to do so THEN the wife shall make the necessary decisions and advise the husband as soon as is reasonably practicable thereafter.

2. That the children shall live with the wife.

3. That the children shall spend time with the husband as follows:-

   (a)From the conclusion of school on Thursday to the commencement of school on the following Monday commencing 22 August 2019 and each alternate week thereafter;

   (b)For one half of all short school holidays as agreed between the parties but in default of agreement from the conclusion of school on the last day of term until 5.00 pm eight (8) days thereafter;

   (c)For one half of the Christmas school holidays as agreed between the parties but in default of agreement THEN the children are to spend time with the husband in the first half of the Christmas school holidays commencing at 10.00 am on the first day of the holidays and concluding at 5.00 pm on the middle day of the holidays NOTING that the Christmas school holidays shall be deemed to have concluded at 5.00 pm on the last day of the Christmas school holidays before the commencement of the school term.

4. That the children spend time with the parties as follows:-

   (a)       On Mother’s Day and Father’s Day in each year:-

   (i)Between 5.00 pm on the Saturday preceding Mother’s Day until 5.00 pm on Mother’s Day the children will spend time with the wife;

   (ii)Between 5.00 pm on the Saturday preceding Father’s Day until 5.00 pm on Father’s Day the children will spend time with the husband;

   (b)       On the children’s birthdays in each year:-

   (i)If the child’s birthday falls on a day that is not a school day and the husband would not otherwise be spending time with the child THEN the child will spend time with the husband from 2.00 pm until 7.00 pm;

   (ii)If the child’s birthday falls on a day that is not a school day and the husband has the care of the child THEN the child will spend time with the wife from 2.00 pm until 7.00 pm;

   (iii)If the child’s birthday falls on a school day and the husband would not otherwise have the care of the child THEN the child will spend time with the husband from the conclusion of school until 6:30 pm;

   (iv)If the child’s birthday falls on a school day and the wife would not otherwise have the care of the child THEN the child will spend time with the wife from the conclusion of school until 6:30 pm.

5. That each party shall be at liberty to take the children on an overseas holiday at least annually PROVIDED:-

   (a)The party requesting the holiday time shall provide forty two (42) days written notice to the other party;

   (b)Both parties consent in writing to the holiday occurring if some or all of the proposed period does not coincide with school holidays;

   (c)That in the Christmas school holidays commencing 2019 and each alternate year thereafter the wife at her election can seek the children’s time with her be extended to thirty (30) days;

   (d)That in the Christmas school holidays commencing 2020 and each alternate year thereafter the husband at his election can seek the children’s time with him be extended to thirty (30) days.

6. When giving notice of any intended holidays each party shall provide the other with the following information:-

   (a)       an itinerary;

   (b)       flight and/or accommodation details;

   (c)       contact details of the duration of overseas travel.

7. That the wife shall inform the husband of the identity and contact details of any health professional (including dental) involved with the children’s care and shall authorise the health professionals to communicate with the husband and to release any information to him as he may request.

8. That the wife shall authorise any school at which the children attend to provide copies of school reports, school notices, school newsletters and school photos of the children (at the husband’s expense) to be provided to him and such other information as he may request.

9. That neither party shall denigrate the other in the presence or hearing of the children or permit the children to remain in the presence or hearing of any person who shall engage in such conduct.

10. That each party shall keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within forty eight (48) hours of such change occurring.

11. That for the purpose of communicating information between the parties the wife and husband shall:-

    (a)       communicate by telephone matters of an urgent nature and otherwise;

    (b)communicate by email about day to day matters including arrangements for each party to spend time with the children.

12. The husband shall forthwith deliver up to the wife any passports (whether Country X or Australian) pertaining to the children and held by him to the wife who thereafter shall retain the children’s passports subject to receiving notice from the husband of his intention to take the children overseas in which case the wife shall cause the children’s Australian passports to be delivered up to the husband fourteen (14) days prior to the intended date of travel PROVIDED that the husband shall return the passports to the wife within forty eight (48) hours of the children’s return to the Commonwealth of Australia.

13. That the parties are restrained by mandatory injunction requiring the children to only travel on their Australian passports and not their Country X passports.

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 Munayallan & Scott 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

FILE NUMBER: SYC 59 of 2010

Ms Munayallan

Applicant

And

Mr Scott

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings between Ms Munayallan (“the wife”) and Mr Scott (“the husband”) relate to the ongoing parenting arrangements for C born in 2007 (“C”) and D born in 2010 (“D”) (collectively “the children”).

2. The proceedings commenced by the Further Amended Initiating Application of the wife filed 3 August 2016. The husband relies upon his Response filed 13 August 2014. It is common ground that neither party continues to seek the orders as set out in the application and response.

3. The orders sought by the wife are set out in a Minute of Order tendered at the commencement of the proceedings. They are summarised as follows:-

   (1)That the wife have sole parental responsibility for the children.

   (2)That the children live with her.

   (3)That the children spend time with the husband five days and four nights per fortnight commencing on a Tuesday and concluding the following Saturday.

   (4)That the husband shall collect the children from the wife at the commencement of the children’s time with him and deliver the children to the wife at the conclusion of their time with the husband.

   (5)That the wife be at liberty to take the children on vacation interstate or overseas provided the wife shall give the husband not less than 14 days written notice of the proposed travel together with reasonable particulars as to destination of travel, travel itinerary including flight or other transport details and the husband’s time with the child shall be suspended during such periods of travel with the wife.

   (6)The wife shall retain the children’s passports at all times that the children are not travelling outside of Australia.

   (7)That the passports held at the Court be returned to the wife and the husband do all things necessary for the children’s expired passports to be renewed within two months.

   (8)That the husband be and is hereby restrained from approaching or going within 50 meters of any home at which the wife resides unless it is for the purpose of facilitating handover.

   (9)The wife seeks usual orders that require the parties to keep each other informed as to their residential address and contact details and an appropriate exchange of information relevant to the children’s health, welfare and wellbeing.

4. The parenting proposal of the husband was somewhat uncertain. The difficulty arises with the husband relying on his Response filed 13 August 2014, but acknowledging that he no longer seeks those orders.

5. The husband did not comply with any of the trial direction orders and accordingly at the commencement of the proceedings he had not filed any amended response or trial affidavit material.

6. It was foreshadowed by the husband that he had prepared a document but that it was not affirmed until 19 June 2019 being the first day of the parenting hearing.

7. The affidavit was unsatisfactory given its primary focus was related to the property proceedings and not children’s issues.

8. The following extract from the transcript at page 354 commencing at line 12 highlights the difficulty:-

   Mr Duc:[The husband] hasn’t filed any evidence in these proceedings. It would normally be the practice for myself to swear up the witness in the witness box. The affidavit is on, potentially, and then if there was some other evidence to be tested, then the respondent would be able to test it.

   His Honour:   Yes.

   Mr Duc:In this case there is no affidavit material.

   His Honour:   I know, but I’m going to try and deal with that now. …

   Husband:Your Honour, I was going to ask for leave to – I’ve got three copies for your Honour, of my affidavit, your Honour. It’s actually unsworn, yes. I was going to get it sworn over lunch, your Honour. I do apologise.

   His Honour:   See Wednesday afternoon.

   Husband:I do apologise, your Honour.

   His Honour:   Wednesday afternoon … and I’ve forgotten now when we raised this. Was it last night that we raised this at some detail?

   Husband:Yes we did. Yes, we did, your Honour.

   His Honour:   You know, I’m – you might think that I’m difficult, but I’m not trying to be difficult … But I don’t know how many times I have to urge you to …

   Husband:Your Honour.

   His Honour:   …file the affidavit. But …

   Husband:Your Honour, there is nothing new in the content. It’s all just extracts from old affidavits. So it’s nothing…

   His Honour:   Okay. I get it.

   Husband:…that no parties haven’t read.

   His Honour:   Now, just answer me this question without me looking at what you’ve got, which I’m assuming is a draft in the sense that it hasn’t yet been sealed.

   Husband:That’s correct, your Honour.

   His Honour:   Hasn’t yet been sworn.

   Husband:Yes.

   His Honour:   Is it all narrative?

   Husband:Yes, your Honour.

9. Whilst there was no application by the husband setting out his parenting orders, his position is to continue the orders made on 24 October 2014 namely:-

   (4)The children live with the father and the mother on a week about basis from the conclusion of school Wednesday (or 3.00pm if not a school day) to the commencement of school (or 9.00am if not a school day) the following Wednesday.

10. That order currently regulates the parenting arrangements for the children.

11. The position of the husband seems to be that provided the children’s time is shared equally between the parties he has no strong view on matters of parental responsibility or the ability of each of the parties to travel overseas with the children.

12. General orders sought by the wife to keep each of the parties informed of matters concerning the health and welfare of the children are likely to be objectionable.

Documents relied upon

1. The wife relies upon the following documents:-

   (1)Further Amended Initiating Application filed 3 August 2016.

   (2)The wife’s Trial Affidavit filed 10 April 2019.

2. The husband relies upon the following documents:-

   (1)Response filed 13 August 2014.

   (2)Paragraph 3 (which incorporates paragraphs 6 to 19) of the husband’s Affidavit filed 27 January 2015.

   (3)Paragraphs 14, 15, 17, 31, 33, 34, 35, 36 and 46 of the husband’s Trial Affidavit filed 19 June 2019.

3. At the commencement of the proceedings the Independent Children’s Lawyer (“ICL”) sought leave to withdraw from the proceedings on the basis that the tardiness of the parties in filing their trial affidavit material had not left the ICL with a sufficient opportunity to prepare the case.

4. Given that the parties were relatively close in terms of the orders that each of them seek and that the Court is assisted by a recent report of the family consultant, in the absence of the ICL being able to promote orders that might best serve the interests of the children, I canvassed with the wife’s counsel and the husband whether there would be any objection to the ICL withdrawing from the proceedings. No objection was taken and given my determination that the proceedings would not be assisted by the continued involvement of the ICL, leave to withdraw was given and the order of appointment discharged.

5. The Court did receive the reports of Dr G dated 15 June 2015 (“the first report”) and 4 April 2019 (“the second report”).

Issues

1. The issues in dispute and for determination are as follows:-

   (1)Whether one or other of the parties should have sole parental responsibility as opposed to equal shared parental responsibility.

   (2)Whether the children’s time with the parties should continue to be shared, or whether the husband’s time with the children should be reduced.

Division 12A considerations

1. At the commencement of the proceedings consideration was given to the application of pt VII – div 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular the principles applicable to parenting cases as set out in s 69ZN and issues of evidence that arise from a consideration of s 69ZT.

2. Whilst the proceedings were confined to parenting issues, the parties were also seeking orders for settlement of property. In the unusual circumstances of this case I decided to bifurcate the proceedings given the limited time available to hear the matter and my view that the interests of the children would be served by a resolution of the outstanding parenting dispute.

3. Both the husband and the wife’s counsel consented to the application of div 12A notwithstanding that technically property proceedings were still before the Court.

4. No application was made by either party to dispense with the provisions of s 69ZT in preference for the greater evidentiary rigor of the Evidence Act 1995 (Cth) (“the Evidence Act”). Accordingly, the admissibility of evidence was to be determined by reference to s 69ZT(1).

5. Pursuant to s 135 of the Evidence Act and the application of r 15.13 of the Family Law Rules 2004 (Cth) I heard and determined objections to evidence as promoted by the wife’s counsel. Ultimately, I took a more generous approach to the husband’s evidence given that he was a self-represented litigant.

Background

1. The wife was born in 1973 and the husband born in 1970. The wife lives in rented accommodation in proximity to the children’s school. The husband’s residence was the subject of some mystery, although it seems that he also lives in rented accommodation. There is some suggestion that he may spend significant time in his parent’s home or that his mother may spend regular time in his rented accommodation.

2. Notwithstanding that the parties appear to be in high conflict and enmeshed in long running and complex litigation, they have managed the arrangements for the children tolerably well.

3. The financial circumstances of the parties has significantly fuelled the conflict. The wife has employment as a childcare worker operating principally from her home. The current orders have assisted her in being able to focus on her occupation. She receives no child support or financial assistance from the husband.

4. The employment circumstances of the husband is uncertain. He holds IT qualifications but does not currently work. Moreover, the inability of the parties to resolve the property dispute has not assisted the parties’ relationship.

5. The husband is fixated on regaining possession of the former matrimonial home at J Street, Suburb E (“the Suburb E property”) which has resulted in the parties being engaged in litigation not just in the Family Law system but also in the Supreme Court of New South Wales given the involvement of the purchasers of the Suburb E property.

6. The parties are not agreed as to the history and duration of their relationship.

7. The wife was born in County X and studied at university in Country Y. She came to Australia in 2000 and became an Australian Citizen in 2003. The wife contends that the parties commenced their cohabitation soon after their engagement in November 2006 and lived together until early 2014. She details incidents of family violence where the husband threw her to the floor, cut her computer cord to her computer and her hair dryer.

8. For his part, the husband considers that the parties did not cohabit prior to 2009 and that he distanced himself from her after February 2006 when he became aware of her anger-management and aggressive conduct.

9. The parties each alleged family violence. The wife agreed that following an incident in October 2008 she caused damage to the husband’s home and pleaded guilty to charges of malicious damage.

10. Each of the parties considered that the relationship was marred and ultimately resulted in marital breakdown by aggressive behaviour by each of the parties.

11. The allegations made by each of the parties continued. In April 2014 the wife alleged that the husband had hacked into her computer and fabricated emails which he purported to have been authored by her.

12. For his part, the husband reported the wife to the police in May 2014 that in April she had hit him on the face with a coffee cup, on the arm with a skateboard and had threatened him with a knife. The wife appealed the apprehended violence order obtained by the husband and ultimately all charges for family violence were dismissed.

13. The children lived predominantly with the husband up until the orders were made in October 2014 that provided for the children to spend equal time with the parties.

14. The wife now contends that her personal and financial circumstances have improved and she is able to resume the children’s primary care. The husband argues that the parenting arrangements have been in place for nearly five years, have been without incident and are well suited to the needs of the children who are used to the equal time arrangements and support its continuation.

The evidence

The husband

1. As discussed, the husband continued to be disparaging of the wife, her personal life and her ability to parent the children. He considered that the wife’s focus was not directed to the best interests of the children but rather, financially motivated in seeking a settlement of property to which she was either not entitled or had only limited entitlement.

2. The husband’s trial affidavit provided little of evidentiary value and he chose to focus on his view that the wife was self-centred. The following appears at [46] of his trial affidavit:-

   …she has not taken the children on any holidays at all, while I have taken the children to Queensland in 2015, and the South Pacific Islands in 2014. This proves the mother only care about herself. I do asked the court if the children can be removed from he Passport watch list as my extended family will like to take me and my children to Hawaii this coming summer. Also the mother places the children in after school care on Friday’s as she can’t hand the stress of looking after them.

3. The husband’s evidence was supplemented by his examination in chief. He referred to the family living in the Suburb E property in 2014 at the date of separation. It was his contention that the children remained in his care for the majority of 2014. The family had the benefit of a social worker who visited twice weekly, support from the maternal grandmother and a live-in nanny.

4. Taking into account the different temperaments of the children, the husband considered that C was more severely affected by the separation than D. She has adapted and appears comfortable in the current arrangements. C took more time to settle into the arrangements as reflected in some initial difficulty in coping with her studies, in particular mathematics and science.

5. The husband conceded that the parties did not communicate freely with each other, but he believed that communications were improving. He gave examples of the parties being able to cooperate productively for the management of the children’s health and when one party was not able to attend a medical appointment with the children the other would step in and assist.

6. The husband gave enthusiastic evidence of the children’s involvement with little athletics and gymnastics. He was active in promoting the children’s involvement and undertook the mechanics of transporting the children to and from their training and other venues.

7. The husband was enthusiastic in his support for each of the parties being permitted to take the children overseas, but he held reservations about the children travelling to a non-Hague Convention country, in particularly the wife’s home country of Country X.

8. Whilst he was able to elucidate his position, the husband was not able to indicate with clarity what orders he sought. He remained concerned as to his view of the political and civil unrest in parts of Africa.

9. The husband confirmed that C has her own mobile phone. D does not. There appears to be no difficulty between the parties as to the children’s ability to contact each party without restriction. The husband considered that no orders were required in respect of the children being able to communicate with either party, or to require the parties to facilitate communication. He anticipated that the wife would agree communication between the children and the parties have been effectively resolved.

10. A residual issue for the husband was what he considered to be the lackadaisical approach of the wife to the children walking from home to school. The distance between the wife’s home and D’s school is about 800 meters. His position is that he has spoken to the wife a number of times and expressed his view that it was unsafe for D to walk to and from school.

11. Under cross examination, the husband refused to reveal his residence (and that of the children when they are with him) other than he lived in the Suburb R area.

12. His reason for the objection to disclosing his address is his contention that there is a history of family violence perpetrated by the wife.

13. The wife’s counsel sought the husband’s address.

14. After considerable hesitation, the husband responded that he lived at S Street, Suburb E. The area proximate to the husband’s address would be well-known to the wife given that she had lived nearby.

15. The husband was reluctant to answer questions about his current living arrangements. When asked whether the premises were rented or owned he confirmed that the premises were being rented, but that he shared with other people and he paid about $400 per week. When further questioned, the husband admitted that he shared with his mother who attended his premises each alternate week. The presence of the paternal grandmother did not seem to always coincide with the children’s presence.

16. A further enquiry by counsel revealed that the lease for the premises is in the name of his mother, but he was not able to explain the rental arrangements between he and his mother other than the total rent was nearing $800 per week.

17. There was some suspicion on the part of the wife’s counsel as to whether the husband did live in the S Street premises and accordingly the husband was asked to bring along any document which might establish or corroborate his evidence as to where he lived.

18. The husband knew who the letting agent was, but had not obtained any documents by way of a copy of the lease or rental agreement. His evidence was unsatisfactory and strongly suggests an ulterior motive of the husband in regard to his address.

19. At the conclusion of the evidence and prior to closing submissions, counsel for the wife indicated to the court that the husband had been observed to reach across to the wife’s counsel’s side of the bar table to retrieve a document. The husband agreed that he had done so, because “it was [his] document”.[1]

    [1] Transcript of proceedings page 659 line 9.

20. The document showed the husband’s address as S Street, Suburb E. I raised with the husband that he had not provided the Court with his correct address when he gave S Street, Suburb E. His explanation was that he had “mixed up” the numbers because he “very rarely” gives the address out.

21. The thrust of counsel’s cross examination was to support the wife’s contention that the husband denigrated the wife to the children and sought to impress upon them that the wife did not really care for or about them.

22. The first issue explored was the husband’s allegation that the wife had withheld the children for the last two days despite the order. It was put to the husband that it was his request that the children remain with the wife, but he gave a contrary position to the children.

23. The following appears at page 407, line 39:-

    Counsel:So what you’re saying is you deliberately ran down the mother in front of the children; is that what you’re saying?

    Husband:Well, she withheld them this week from me. Yes. She has withheld them on purposely. And I said, “No matter what, I’m picking them up today”. I said, “That’s my daughter. No…”

    Counsel:You ran the mother down. You diminished her reputation in the eyes of her children; is that what you’re telling the court?

    Husband:I didn’t diminish her eyes. She has withheld the children from me this week purposely to gain credit in the court.

    Counsel:You said to the children that “your mother has planned this”?

    Husband:Of course.

    Counsel:Yes. So you are diminishing the mother in the children’s eyes?

    Husband:It’s not diminishing, it’s stating that what her plan…

24. The husband was then challenged as to his employment and income status. He confirmed that he was in receipt of a carer’s pension in the sum of $1,100 per fortnight.

25. He also received $200 per fortnight for “Family Assist”.

26. The conundrum for the husband is that his share of the rent is $1,000 per fortnight and taking into account the full suite of Centrelink Benefits received, over and above his rent the husband had to support himself and the children on $300 per fortnight.

27. The husband denied that he had any other assets other than a motor vehicle of modest value.

28. He did concede when shown a picture of him driving a European car that from time to time he was able to use his father’s car.

29. When pressed, the husband conceded some level of uncertainty as to the category of documents that might be available to establish his continued residence and in the course of that discourse he advised that the lease had now expired.

30. For reasons that were not immediately apparent, the husband prevaricated as to the information relating to his place of residence and his continued occupancy. It was unsatisfactory and I advised the husband that I considered the whereabouts of the children when with him to be a significant issue.

31. The husband also agreed that the children’s address given to the school was the Suburb E property and not their apparent premises at the Suburb R property.

32. He agreed that if the school had forwarded written communication as regards the children then it would have gone to the Suburb E property where he no longer resides.

33. It seems that the retention of the children’s address being the Suburb E property for the purposes of their school and the husband’s reluctance to confirm the children were residing in Suburb R has something to do with his focus on returning to the Suburb E property.

34. The Suburb E property had been tenanted up until late May 2019 with persons who were associates of the husband.

35. When pressed by counsel as to the relationship that the husband had with the previous occupants or tenants to the property, the following exchange at page 440 line 1 is of assistance:-

    Counsel:        You’re making this up as we go along, aren’t you...?

    Husband:       Absolutely not. Absolutely not.

    Counsel:        This is absolute nonsense?

    Husband:       Okay.

36. Exhibit “24” is an email from the husband to the wife dated 28 December 2018. It assumes considerable importance in terms of the wife’s case and accordingly I set out its contents as follows:-

    From: [the husband]

    Sent: Friday, December 28, 2018 10:15:54 AM

    To: [the wife]

    Cc:[email protected]

    Subject: [the wife], your mother affidavit

    [the wife],

    You are truly an evil person! You write and signed this affidavit to kick your own children out of their J Street home.

    I will show the girls this affidavit so they can see their mother doesn’t care about her own children feelings, and where they live. That their mother is full of evil and loves money more than her children.

    The children where heartbroken that they had to leave the house and friends.

    You are not mentally fit to be their mother.

37. The husband provided his response to counsel questioning the wisdom of the email being sent to the wife and copied to C at page 444 line 4:-

    Husband:And the answer to [counsel’s] question, he asked why did I send that email. My children were crying dramatically for days after we got evicted from J Street. They – that’s the home what they know of. Their friends and their neighbours is what they grew up with and they played with almost on a regular basis, almost on a daily basis when they lived there. They were completely heartbroken and it took them months to recover once they left J Street.

    Counsel:You’ve – you’ve?

    Husband:There was highly emotions on all parties involved. My kids took months to adjust leaving J – J Street. [The wife] knows the importance of that address to my children.

    Counsel:Okay?

    Husband:And I was heartbroken. I was completely heartbroken and couldn’t understand what was going on. My mother was heartbroken. My father still has not recovered. You seen him come here. He was kicked out of that home. He was heartbroken. My mother had to be wait four hours for an ambulance to escort her out of the premises. She was heartbroken.

38. I intervened to remind the husband that the purported eviction of the husband and members of his family (and at a later stage the tenants) was as a result of the third party action by the purchasers of the property. The husband’s response was that the wife had been complicit in assisting the third parties and that she had filed a “fabricated application” and a “false affidavit”.

39. I find that the husband’s explanation for the email to the wife and copied to C wholly inadequate. The husband intended that his daughter know the depth of his feelings towards the wife as an evil person and responsible for the purported eviction of the children from the Suburb E property.

40. Even when pressed, the husband was not prepared to accept that his daughter should never have been included in his communication with the wife. The husband has a seeming inability to put aside his loss of the Suburb E property and continues to mourn its transfer to unrelated third party purchasers.

41. There is no evidence that the wife was in any way complicit with the litigation conducted by the third parties and certainly there is an absence of evidence that the wife fabricated or falsified any application or affidavit pertaining to the transfer of the Suburb E property.

42. It is not controversial that the husband took the children on an overseas cruise in December 2014. It was put to the husband that he did so without the consent of the wife. His initial response was that he could not recall. When his memory was refreshed he responded that he had “complete custody of my children” with the implication that he did not need to consult with the wife. He refused to answer the direct question of counsel that he had failed to inform the wife that the children were taken overseas.

43. I find that the husband did not obtain the wife’s consent, nor inform her that he was taking the children on a cruise to the South Pacific.

44. Of more recent date, counsel put to the husband that he failed to attend the parent/teacher night on 22 May 2019. He was not able to remember when he attended, but agreed that he attended a week later.

45. The husband was shown a copy of the New South Wales Court system online listing which highlighted that on … June 2019 the husband was required to attend a Local Court for a criminal hearing. At first the husband was not prepared to provide any information in respect of the charge, but later agreed that he had been charged with trespass in respect of the Suburb E property, assault alleging that he had pushed the third party purchaser and resisting arrest.

46. The charges appear to emanate from the husband’s conduct in attending at the Suburb E property.

47. But for the cross examination, the Court would not have known of the pending charges against the husband.

48. On 5 May 2014 the husband alleged that the wife had perpetrated family violence. It resulted in her being removed from the Suburb E property. The following exchange commencing page 462 line 42 is relevant:-

    Counsel:You made a false allegation of violence against your wife on – I’m sorry I withdraw. You made an allegation of violence against your wife on 5 May 2014 to the New South Wales Police?

    Husband:Yes.

    Counsel:And that was about an assault that you allege that she committed…

    His Honour:   Sorry, what was that date, [counsel]? I’m sorry.

    Counsel:That was 5 May 2014.

    His Honour:   Thank you.

    Counsel:And that date is the report to the police. Sorry. And that was about an assault that you allege occurred by [the wife] on 21 April 2014?

    Husband:Yes.

    Counsel:That complaint was a false allegation, was it not?

    Husband:Completely incorrect.

    Counsel:As a result of that complaint, Ms – you took out an apprehended violence order against [the wife]?

    Husband:That’s what was recommended by the police.

    Counsel:[The wife] was then excluded from the house of J Street?

    Husband:I did not wish that to occur. I asked the police for not that to occur.

    Counsel:[The wife] was excluded from the house?

    Husband:I - I begged the police for not that to occur.

    Counsel:Thank you, [the husband]. Now [the wife] challenged – I’m sorry. [The wife] was found guilty in the Local Court of that assault. You agree with me on that?

    Husband:Yes.

49. The wife challenged the decision of the Local Court and the husband was reminded of the remarks of the trial Judge repeated at page 464 line 1:-

    …were going through a relationship breakdown. I do not accept the complainant’s evidence that he did not want the appellant to get into trouble, and that is why he did not complain about the assaults alleged to have occurred on 21 April 2014. On this issue, I prefer the evidence of the appellant that the breakdown of the relationship had reached a point the complainant and the appellant were discussing arrangements for her to move out of the matrimonial home. This evidence was corroborated by the fact the appellant had instructed solicitors to commence the Family Court proceedings and those solicitors had progressed the matter to the stage of filing the initiating application in the Family Court. In my view, this upset the complainant – sufficiently to make false allegations of what occurred on 21 April 2014 and 5 May 2014.

50. The husband rejected the findings of the trial Judge and he was pressed upon the proposition that he had made a false allegation to have her removed from the Suburb E property under an AVO.

51. I do not accept the husband’s evidence that he did not wish for the wife to be removed. There is no evidence that he begged the police to allow her to stay. I find that the husband had a strategy to retain the Suburb E property and have the wife removed.

52. The husband admitted that in 2014 he suffered from depression and anxiety. It was sufficiently debilitating that the paternal grandfather’s Affidavit sworn 20 May 2019 and filed 11 June 2019 records the following:-

    I knew of [the husband] going through a personal mental breakdown in 2014 due to his own family and other issues. He was on several forms of heavy medications, alcohol and other drugs, which I believe affected his state of mind. There have been countless professional medical reports to support that [the husband] had a mental collapse in 2014. And these medical reports were provided in his previous affidavits. [The wife] also stated [the husband] was no in the right mental capacity in 2014 in her affidavit dated 2017.[2]

    [2] Transcript of proceedings page 475 line 3.

53. The husband however denied that he continued to suffer from any mental health issues and was not on any non-prescription medication.

54. The husband did seek assistance from a psychologist to present evidence that at the time of the transfer of the Suburb E property to the third party purchasers, the husband was “not in the right state of mind”. The husband agreed with that contention and considered that he had had a complete breakdown, that it was severe and meant he didn’t know what he was doing in 2014. He did the best to look after his children with the assistance of a social worker provided by Children’s Services.

55. The thrust of counsel’s cross examination was to highlight that the husband had not provided any medical evidence at all of any mental health issues affecting his capacity to parent and/or to function from 2014 to the present.

56. The difficulty for the husband was that if he is to be believed, it is hard to reconcile his ability to appropriately parent the children in 2014 in circumstances where he asserted that the wife was a risk to them, but at the same time purporting to have suffered a severe mental breakdown to the point where he might not have been responsible for his actions at the time, in particular in entering into a contract for the transfer and sale of the Suburb E property.

57. Attention returned to the content of Exhibit “24” and the following was put to the husband at page 483 line 17:-

    His Honour:   Exactly. And you see, what concerns me is that there is this attitude that you have about[the wife] which persists, not just up to 28 December, but right up until 19 June 2019?

    Husband:That, your Honour – your Honour, that was a cut and paste from 2016.

    His Honour:   It’s signed by you?

    Husband:Yes. I know, but …

    His Honour:   …as your current evidence. Would you like me to find that I can place little or no reliance on the entirety of that affidavit? Is that what you want me to find …?

    Husband:Your Honour.

1. The husband conceded that his affidavit was not a proper reflection of the current evidence on the basis that it had been cut and pasted and was in “draft mode” and a “rush job”. He agreed that it was “not a perfect document”.

2. An indication of the low regard in which the husband holds the wife is informed by the following exchange commencing page 486, line 20:-

   Husband:My daughter yesterday was wandering by herself on the street yesterday because [the wife] wasn’t home. No one was at home. I had to go find her on the street yesterday, and I bring up to the courthouse, serious that is. She was lost, she was crying, and then I had to go rushing home. Some lady was at [the wife’s] – sorry [the wife’s] home – some lady was there. She goes, “I don’t even know where D is.” I go, “What the hell, you don’t even know where D is.” This is information I bring up to the court that it is a serious concern, and I will do that when my case. Then I find D crying at a dance studio where her friends are. I go, “How did you even get here, D?” She said “I went home. Mummy wasn’t home.” I go, “Well, why didn’t you stay at the home so you’re somewhere safe. You walked by the streets yourself to another dance studio, and it’s dark at night.” This is serious. I picked her up straight – I go, “Let’s go back to your mum’s. Get your bag.” Take her home. My other daughter is at the dance recital at the school – except it was go straight over – get something from there – go straight over there. And then I go, “This is just unbelievably shocking.” It’s not the first time it has happened. You know [the wife] has lost a child at the age of two. She let him wander in the swimming pool. It’s in the court records, subpoenaed in the coroner’s report…

3. The wife’s counsel suggested that it was outrageous and contemptible of the husband to have raised these matters and notwithstanding the objection the husband continued and said “the child died because he wandered away”.

4. I find that the husband raised the circumstances of the passing of the wife’s child because he knew it would be hurtful and distressing to the wife. The husband was given every opportunity to understand that the topic was unlikely to be relevant to the current proceedings and that in any event the circumstances of the child’s death was not as asserted by the husband.

5. At some point the husband realised that the Exhibit “24” email was inappropriate and he sought to apologise to the wife admitting that it was ill-mannered of him and explained his actions by it being an emotional period.

6. Whilst the implication of the husband’s apology was that it may be considered as a retraction and withdrawal of various allegations, it seems that it was only the language used rather than the underlying sentiment that was the subject of regret and apology. The husband still considered that the wife had signed a false allegation and was in concert with the third party purchasers.

7. In re-examination, the husband had reconsidered the circumstance of the South Pacific cruise and stated that he had given the wife notice of his intention to take the children overseas. He said he did so by telling his brother to notify her, but also sent her an email. He has not retained the email and the brother was not called to corroborate the husband’s instructions to him or to give evidence as to the conversation he purportedly had with the wife.

8. In the circumstances of the husband’s evidence, the failure to call his brother entitles the Court to find that if the brother had been called his evidence would not have assisted the husband.

The wife

1. The wife relied upon her Trial Affidavit filed 10 April 2019. To a significant degree the affidavit was largely directed to the early history of the parties and in particular the wife’s assertion that it was the husband who was controlling, coercive and physically aggressive towards her.

2. The construct of the affidavit seems to have been prepared by a copying and pasting of earlier affidavits and was difficult to apply to the current circumstances of the parties.

3. The husband’s cross examination of the wife provided little assistance.

4. The wife was challenged as to her support for the children walking home from school. It was conceded that both children now walk home together and as a result it appears that the issue that had originally caused concern to the husband has now largely dissipated.

5. The parties communicate by email. The husband tendered emails forming Exhibit “27”. It is difficult to ascertain the purpose of tender but it seems that the husband remained concerned at the wife’s practice of allowing D to continue walking to school by herself.

6. The tenor of the email then changed to an ongoing dispute between the parties as to the sharing of the costs of the children both curricular and extra-curricular.

7. Neither party does themselves credit by the tone and tenor of the email exchange.

8. If the husband’s purpose in tendering the email trail was to establish that the parties are able to communicate at an effective level, their content would belie that contention. I accept that the lines of communication remain open between the parties. The level of mistrust and dislike is however manifest and readily apparent. The relationship between the parties remains toxic.

9. The husband was referred to [46] of this trial affidavit and reminded of his remarks directed to the wife that “you always look after yourself”.

10. The husband questioned the wife as to her being charged in 2007 with assault. He reminded the wife that she had been found guilty but the court decided to dismiss the charge without proceeding to a conviction. As I understand the circumstances as alleged by the husband, the wife entered the home and hit the husband with a wooden statue. The wife denied the allegation.

11. The husband was reminded that whilst he sought to cross examine the wife to establish his contention that she was the perpetrator of family violence, such a position was inconsistent with the orders that he sought namely, that the parties jointly parent the children and their time be shared between them.

12. For reasons that are best known to the husband but against counsel’s objections, the husband returned to the topic of the death of the wife’s son. The following exchange appears at page 574 line 10:-

    Husband:       … did you have a son called Z?

    Wife:            Yes. I did.

    Husband:       Can you explain what happened with your son, Z?

    Counsel:Objection, your Honour. Your Honour, I can’t see how this relates to any order that [the husband] seeks in relation to a change or otherwise in the parenting arrangements.

    His Honour:   No. You’re right, but I am going to let him ask the question, [counsel]. Thank you for your objection. I understand the nature of the objection, but I’m going to let [the husband] explore this topic.

    Wife:My son drowned in a swimming pool on the age of one year and a half.

    Husband:And can you give the circumstances associated with your son. How did he drown?

    Wife:I refuse to go there.

    Husband:Was your son…

    His Honour:   Do you want me to force [the wife] to answer…?

    Husband:No, no, no. I will ask the questions, your Honour.

13. And then at line 45:-

    Husband:       Was your son properly supervised…?

    Wife:I’m not answering that. I’m a fit mother and a good mother and no one will replace the love of Z I had.

14. The Court made it clear to the husband that further exploration of this topic was unlikely to assist the husband’s case.

15. The husband put to the wife the following extract from a police report:-

    …2002 the deceased went with [the wife] to the friend’s place of [Mr W] situated at [T Street, Suburb U] the premises of a two storey brick residency, a granny flat downstairs. The top level of the premises leads out to the backyard where the undercover barbeque area and swimming pool were. Upon arrival, [Mr W] cooked a barbeque for himself and [the wife] - …and the deceased and [the wife]. Between 1.30 pm and 2 pm [the wife] took the deceased to a spare room and put him to sleep. She closed the door and her and [Mr W] went downstairs to look at the granny flat.[3]

    [3] Transcript of proceedings page 575 line 39.

16. The husband then asked the wife what she and Mr W were doing in the granny flat. It was apparent that the husband considered that the wife and Mr W had engaged in some form of sexual activity.

17. Whilst I was prepared to uphold the objection of counsel, the wife indicated that she was prepared to answer the question and indeed wanted to. Her evidence was that she was inspecting the granny flat so that she could consider whether she would rent it. Mr W and the wife apparently attended the same church.

18. The wife was challenged by the husband as to her version of the events. The husband considered that the wife was prone to fabrication and he has always harboured a suspicion that the wife had not told the truth as to the circumstances of her son’s death. The following appears at page 579, line 1:-

    Husband:She always told me there’s a group of people there and there was a party and they were having a barbeque and the next minute the child has fallen in the pool, and I’ve never just understood that until I read that report afterwards and that’s where the contradiction came in.

19. The husband persisted with his inquiry of the wife notwithstanding that there had been an objection, a caution as to whether the topic was relevant together with the wife’s extreme and obvious distress in relation to the issue.

20. I find that the husband’s questioning of the wife in respect of the 2002 incident was not directed for the purpose of showing that the wife may have been less diligent in her supervision of her son and that therefore presents a risk to the children, but rather, the questions were intended to cause upset and distress.

21. The husband then changed focus and questioned the wife as to the circumstances of the wife and her family migrating to Australia. It was put to the wife that she had not been truthful to the Australian Government and had deceived the Immigration authorities.

22. The wife was asked whether she had entered Australia under a false visa.

23. The husband ultimately abandoned the topic of the wife’s immigration status.

24. Regrettably, the husband directed questions to the wife as to the circumstances of the wife’s tenancy and potential inconsistencies in references made to Centrelink.

25. The allegation was that the wife was not able to obtain the lease without the husband being a co-tenant. The parties signed a statutory declaration that specified they would both occupy the property when it was understood that the husband would continue to reside in the Suburb E property.

26. The statutory declaration may have been sent to Centrelink. Whilst difficult to understand the point being promoted by the husband, he indicated that whilst not relevant to parenting considerations, it was a topic that went to the wife’s credit.

27. At page 598, line 27 I provided the following caution to the husband:-

    His Honour:   But I’m warning you. If this gets to the point where I am concerned that either you or [the wife] or the both of you acted in concert in relation to matters relating to Centrelink fraud, I may well have to consider a certificate, and referring the papers to the Attorney-General for criminal prosecution. Anyway…

28. The husband’s response was to threaten the wife with the possibility of criminal investigations. The husband withdrew the threat and whilst apologising, did not seem to understand that what he was demonstrating was a fractured and toxic relationship with her.

29. Exhibit “30” was tendered by the husband and comprises email communication between the parties on 11 and 12 March 2018. The purpose of the communication appears to establish an ongoing dispute between the parties as to their separate involvement in C’s study routine in preparation for the “selective exam”. If the document was tendered as an example of co-operative parenting and easy communication between the parties, then I consider that it is likely to support the opposite contention.

30. The husband sought assurances from the wife that if she was permitted to take the children overseas and they went to Country X, the children would be returned to Australia.

31. I consider that the wife’s response was important and the following appears at page 645, line 35:-

    I am – I am – I was ….. mad enough, intelligent and sensible enough not to run away this country that I’ve been in for 20 years, that I have friends and family, to take the children away to their land. To take them where there is a war. I am here for that reason. I came here to educate myself at university, better university, because that was the future I want. Why would I take that away from my children? Why would I take children in a third world country? Even though my family have facilities and ministers and doctors, why would I do that to the children?

32. The wife agreed that the children hold both Australian and Country X passports. She considers it important for the children to acknowledge their Country X heritage and the wife remains proud of where she came from, but also considers it important that the children understand their cultural and ancestral connection and heritage to Country X.

33. Whilst there was some financial advantage to the wife in the children entering Country X without the need for a visa and therefore saving about $60 to $90 AUD, she agreed that if required the children would only travel on an Australian passport.

34. Unfortunately, the topic of the children holding Country X passports was the catalyst for a further embittered exchange between the parties.

35. The husband denied the wife’s allegation that he had supported the children to obtain a Country X passport. The wife alleged that the husband had signed a statutory declaration and sent it to Country X when the wife was in the country with the children. In relation to D, the wife asserted that the husband was physically present.

36. The husband responded that he “would never condone a Country X passport, never involved in it” and then accused the wife of having bribed an immigration official for the sum of $10 USD.

37. Over the objection of the wife’s counsel, the husband continued and further alleged that the maternal grandmother in his presence had bribed a police officer.

38. The husband was intent on accusing the wife of bribery and having engaged in corruption of a Country X Government official. The wife gave clear and consistent denials.

39. The wife’s evidence demonstrated that she was child-focused and had a clear plan to improve her personal circumstances and thereby promote the interests and proper development of the children.

40. The husband’s cross examination of the wife barely touched upon any matter relevant to parenting, but rather, was his attempt to discredit, embarrass and cast the wife in a poor light.

41. The husband persisted in the face of the Court’s repeated warning that the topics canvassed by him were unlikely to be of assistance in terms of the Court determining how the children’s interests would be best served by the separate proposals of the parties.

42. The relationship between the parties is toxic and built on mistrust. The husband’s fixation with his belief that the wife has conspired with the third party purchasers of the Suburb E property to support their claim and defeat that of the husband speaks strongly against any suggestion that the parties are able to communicate cooperatively for the benefit of the children.

43. The relationship between the parties is fractured and at least for the foreseeable future is becoming more aggressive in its tone and content.

44. In the face of aggressive, insulting and distressing questions by the husband, the wife maintained an appropriate level of dignity.

The family consultant

1. Dr G (“the family consultant”) prepared a Family Report dated 15 June 2015 (“the first report”) and an update Family Report dated 4 April 2019 (“the second report”).

2. The family consultant acknowledged that the purpose of the second report was to assist the Court in a determination of the future parenting arrangements for the children. The family consultant properly recorded that the children reside with each of the parties on an equal shared basis and have done so since 2014.

3. At the time of the assessment in August 2018 the husband was living in the Suburb E property. It is uncontroversial that he now lives in an apartment in Suburb R.

4. The wife was working as a childcare provider from her home.

5. It was an important consideration for the family consultant that the context of the first report should be considered against the allegations made by each of the parties that they had been the victim of physical, emotional and financial abuse.

6. The physical violence was overt and on occasion had been witnessed by the children.

7. That scenario is to be compared to the presentation of the parties for the second report wherein neither party raised any further incident of family violence.

8. The wife remained mistrustful of the husband and there was less obvious interference by each of the parties in the private and personal lives of the other.

9. The family consultant recorded the following issues in dispute:-

   ·The differences in the perceptions of the parties in their communication and capacity to exchange information and co-parent;

   ·The living arrangements for the children;

   ·The impact on the children of the dispute;

   ·The children’s views and how much weight should be given to them;

   ·The allegations each of the parties make about the other’s parenting capacity.

10. Each of the parties considered that the children would wish to spend more time with them but the wife considered they were unlikely to express such a view because they would not wish to upset the husband.

11. The wife concedes that the children love their father and want to see him.

12. The wife considered that the children now entering their adolescence was a relevant consideration. This was highlighted by C seeking her mother’s involvement when she entered puberty.

13. A continuing concern was expressed by the wife that the children had been told she had been responsible for the breakdown of the relationship and the possible loss of the family’s financial security.

14. For his part, the husband denied that he was rigid in his approach to the children and the parenting arrangements between the parties and considered that he was flexible in accommodating the children’s needs taking into account the wife’s work commitments.

15. The husband believed that there was reasonable communication with the wife and when needed, they were civil towards each other. It was his assessment that hostility between the parties had lessened to the point where it was unlikely to be observed by the children.

16. The wife’s assessment of the quality of communication between the parties is that the emails are redolent with sarcasm and she proffers an example of the parties agreeing that C should attend a nominated high school, whereas unbeknown to her, the husband had attempted to enrol C in a different high school.

17. The children were far more perceptive of the inter-parental dispute than as considered by the parties.

18. C considered that going to school gave her an “escape” from the “drama happening at home”.

19. The children understood that they were living in an equal shared-care arrangement. C expressed a view that she was not able to imagine what a different arrangement might be like.

20. She was concerned that when there may be issues as to the proper transfer between the parties of her clothes and school items, but generally her perception was that the parties cooperated in this regard.

21. Both children spoke positively of their lives in their parent’s homes.

22. The perception of the children was that the wife was more organised and that there was a clear routine in her household. C described the wife as “caring, decisive, not shy, loving and supportive”. The husband was described as “funny, independent and caring”.

23. The perception of the children was that both parties attempted to do the best that they could to provide a happy and safe environment.

1. It is not surprising that both children considered that they were happiest when they could see that the parties were not in conflict or dispute.

2. It was an important observation of the family consultant that the hostility between the parties had largely abated and the husband seemed:-

   [T]o be less critical of the other in terms of their parenting capacity although they still consider themselves to be the better parent who provides stimulation for the children such as going on outings and encouraging the children to have peers visit when they are in their care...[4]

   [4] Family Report 4 April 2019 [64].

3. The family consultant summarised the children’s presentation in the second assessment and report as follows:-

   75.The children have now been immersed in family law proceedings for many years and unless arrangements for their care are finalized soon it has the potential to take a toll on their emotional energies. Both parents love the children and are making an earnest investment into their care. At the time of the last assessment, certain indicators were identified which would have contra-indicated equal share care. There have been significant improvements in the tenor of the parental relationship and from all accounts the current arrangements allow the parties to work in a complementary manner to meet their children’s needs. There are still unknowns about each party’s final proposal. [The wife] seems to have a clearer definition to her life which has consolidated in the past three years. For [the husband] there seems to be considerable uncertainty about what the future holds. While final orders may need to take that into account, in the face of the parties’ current life trajectories and the disclosures of the children including their views, there are no strong indicators against a continuation of the existing arrangements.

4. The family consultant was asked by counsel the principal reasons that supported her recommendation of the retention of the current arrangements where the children’s care was shared equally between the parties.

5. The family consultant considered that the parenting arrangements had been ongoing since 2014 and that whilst there were some disruptions, both the parents and the children appeared to be quite settled.

6. In summary, she considered that the mistrust and disharmony between the parties had abated somewhat and that they were now able to work cooperatively to suit the needs of the children.

7. The family consultant was asked to consider Exhibit “24” containing the offensive communication sent to the wife and copied to C.

8. The observations of the family consultant’s response was one of surprise. She considered that the correspondence was totally inappropriate, represented “very poor communication” and “certainty totally out of order to involve a child in … as a recipient of that email”.

9. At page 530, line 9 I engaged in the following exchange with the family consultant:-

   His Honour:   …if I can just ask you something though. Obviously when you undertake an assessment and you take the background you accept what people tell you unless there’s evidence to the contrary, obviously that…?

   Answer:Yes.

   His Honour:   …makes it clear, but it’s important for these children, is it not, that the circumstances that each of the parties told you about in terms of matters that might go to the stability of the children – accommodation…?

   Answer:Yes.

   His Honour:   …employment, availability, [wife’s] employment and how she conducts her life, [husband’s] position and how he conducts his life – it’s important that if those items are stable then that means that you’ve got a better platform to be able to decide the parenting – the abilities of the children to deal with these factors. But if there is uncertainty about those matters then that’s a matter that has to be brought to account?

   Answer:Yes.

   His Honour:   So, for instance, if I were to find – it has nothing to do with you, but if I were to find that I did not have confidence in the history that indicated the stability of the environment created by the [wife] or the environment created by the [husband], would you agree that would be a relevant factor that I would need to bring to account?

   Answer:Absolutely. Absolutely.

10. The family consultant considered that the children’s familiarity with the Suburb E property (where they were living at the time of the second report) was an important “anchor”.

11. The family consultant was challenged as to the basis of her recommendation that the current parenting arrangements for the children should remain.

12. The family consultant expressed genuine concern at the tone and tenor of the email comprising Exhibit “24” and I find that by 28 December 2018 being the date of the email, the relationship between the parties had deteriorated from that which was evident to the family consultant in August 2018.

Principles relating to parenting considerations

1. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I have the best interests of the child as the paramount consideration. The best interests are to be considered by the application of the objects of s 60B(1) and the underlying principles of s 60B(2).

2. I am cognizant of the primary and additional considerations in respect of the matters as set out in s 60CC(2) and (3).

3. I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the wife that the husband has engaged in family violence.

4. I propose to adopt the following approach:

   a)Give consideration to the proposals put forward by each of the parties;

   b)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);

   c)Have regard to the provisions of s 60CC in order to determine in each case what is in the best interests of the children;

   d)Have regard to the primary considerations under s 60CC(2), namely the benefit of the children having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm;

   e)Have regard to the additional considerations under s 60CC(3); and

   f)The evidence adduced in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of diminution and comment.

5. A determination of parental responsibility is informed by regard to the best interests of the child. Section 61DA of the Act provides that there is a presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

6. Section 61DA(4) provides that:-

   The presumption may be rebutted by evidence that satisfies the Court that it would be in the best interests of the child for the child’s parents to have equal shared parental responsibility.

Parenting considerations

Meaningful relationship with both parents

1. There is clearly a relationship between the children and the parties.

2. In Sigley & Evor [2011] FamCAFC 22 the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at page 83,513:-

   The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the court, not an expert, to determine what constitutes ‘a meaningful relationship’.

3. The children have a close and affectionate relationship with each of the parties. Moreover, the strength of the relationship is recognised by the parties, although with greater insight by the wife than the husband.

Risks that may be posed to the care of the children in the care of either parent

1. The current parenting arrangements have been in place since 2014. The children, but in particular C could not imagine a different arrangement.

2. I do not consider that either party presents as a risk to the children.

3. The wife’s concern relates to the lack of regard in which the husband holds her and his single focus on property settlement and the entrenched litigation over the ownership of the Suburb E property and the extent to which the net proceeds of sale should form part of the pool of assets available to the Court for distribution and adjustment.

4. I am satisfied that in the wife’s home there is support for the husband’s relationship with the children. There is no conduct on behalf of the wife that has been the subject of any evidence suggestive that she is not able to adequately care for the children.

5. I reject entirely the focus of the husband on historical events intended to demonstrate that the wife lacks supervision of the children or is in some way negligent or wilfully blind to their supervision.

6. The husband does not present as a physical risk to the children, but his inability to separate the needs of the children and the benefit that would inure to them of his fulsome support of the relationship with the wife is brought into stark focus by the content of Exhibit “24” and his unrelenting cross examination of the wife seeking to discredit her by references to the death of her son, allegations of bribery and corruption of Country X Officials and his ongoing denigration of the wife arising out of his belief that she has conspired with the third party purchasers to remove the Suburb E property from his ownership and control.

7. The husband’s evidence supports a finding he is unable to compartmentalise his mistrust of the wife from the need to have if not a civil relationship with the wife, then at least a functional one. The clear impression created by the husband’s presentation is that the hostility towards the wife is increasing.

8. Whilst the husband’s presentation is troubling and has the potential to place the children at risk of psychological harm in terms of their ability to put aside his ongoing denigration of the wife, the proposals of each of the parties can only be seen as a recognition by them that it is important for the children to maintain a relationship with their parents.

Any views expressed by the children

1. The apparent satisfaction of the children with the current arrangements was given significant weight by the family consultant. Whilst each of the parties asserted that the children wanted to spend more time with them than with the other party, the children’s wishes are best encapsulated by C’s statement that she could not imagine what a different parenting arrangement would be like.

2. The children were however aware of the ongoing hostility between the parties and at the time of the second report the family consultant had considered that some of the animosity had abated.

3. As discussed, I have found that the relationship between the parties has degenerated since the assessment and the open hostility of the husband is exemplified by the content of the email of 28 December 2018.

4. When asked whether C had any views about her living arrangements, she was vague and suggested that she might like some better flexibility in the arrangements. She was not able to be more specific, but that she considered it might be of advantage if when with one parent she could return to the care of the other parent if she wanted to do so.

5. D spoke appropriately about the family members and life in each household. There was nothing that she disliked and she described her father as nice, that he takes care of her and that she loves him.

6. D did make something of the former matrimonial home and described the husband’s house as being generous of space and comprising a pool and trampoline.

7. The children recognised that the wife was “really nice” and it is to her that the children turn for comfort if they are anxious.

8. From time to time D felt sad but gains comfort from C.

9. As considered by the family consultant, the children’s presentation in August 2018 was such that they held a strong view to remain in the then current parenting arrangements without being able to establish any significant detriment.

10. When the family consultant was confronted with evidence of the husband’s increasing hostility towards the wife and the concern that was engendered by evidence that the husband is likely to have inappropriately involved the children in the property conflict, there was a distinct waning of support for the current arrangement to continue.

11. There is no current indication of the attitude of the children and whilst on any view of the evidence the children need to spend significant and substantial time with the husband, it is apparent that the relationship between the parties has further deteriorated and the children are likely to be much more aware of the husband’s dislike for the wife.

12. I consider that the children’s views should be given weight and that can be reflected by a finding that at the very least the children spend time with each of the parties on a significant and substantial time basis.

13. Whether the appropriate outcome is that the current arrangement continues is a matter to be further considered.

The nature of the children’s relationship with each parent and other family members

1. The children are strongly attached to the parties and to members of the husband’s extended family.

2. The relationship between each of the parties and the children is different but loving and appropriate.

3. It is reasonable to distil the remarks of the family consultant both in her second report (following on from the first report) and in her evidence that the wife is likely to be more child focussed than the husband which manifests itself in a stronger emotional attachment. The wife’s home is more structured and there is a higher level of certainty for the children as to how they should conduct themselves.

4. Each of the parties are able to provide for the physical needs of the children but it is likely that the wife’s financial resources are limited whereas the husband may have the assistance of his extended family.

The likely effect of any changes in the children’s circumstances including the effect on the children of any separation from their parents or any other person they have been living with

1. The orders sought by the wife would represent a modest change to the current arrangements. At present the children spend equal time in the care of each of the parties.

2. The husband does not really address parental responsibility. It is reasonable to conclude that his satisfaction with the current arrangements would suggest that he considers equal shared parental responsibility to be in the interests of the children.

3. The wife seeks an order for sole parental responsibility on the basis that she does not consider she is able to work effectively or cooperatively with the husband.

4. The wife seeks to reduce the time that the children spend with their father on the basis that the current state of the inter-parental relationship is poor and unlikely to improve in the short to medium term.

5. The circumstances of the children may well change. At the time of the second report they were living in the former matrimonial home being the Suburb E property. It is assumed by the Court that they live in rented accommodation in the Suburb E/Suburb R area.

6. The Court is left with the distinct uncertainty as to the accommodation arrangements as provided by the husband. It was difficult to understand the basis for the husband’s initial refusal to provide his address and evidence has been presented that has suggested the address may not be entirely accurate.

7. The wife’s proposal would not see any significant change in the residential arrangements for the children. They would live predominantly in the wife’s home but remain closely linked to the husband’s home. They would also still spend significant time with the paternal grandmother who is apparently cared for by the husband.

8. The wife is busy both promoting her childcare business, but also undertaking further study. She has managed to adequately deal with the various components of her life and but for the children spending some extra days with the wife and therefore a lesser period with the husband, the disruption to their lives would be minimal.

9. The children will attend the same school and I am satisfied that the wife is closely involved in the children’s education, whereas the husband’s focus has been on their extra-curricular activities including athletics and gymnastics.

The capacity of the parties or any other relative to provide for the needs of the children including emotional and intellectual needs

1. The children appear to be meeting their developmental milestones despite the overt denigration by the husband of the wife. The children are aware of their father’s attitude towards their mother, but the concern expressed by the family consultant is that the husband’s persistent conduct of denigration, mistrust and an inability to exclude the children from his consideration of the wife may put the children at risk.

2. As at the date of the second report it was reasonable for the family consultant to find that the conduct of the parties towards each other had largely abated and whilst the relationship between them may not have been civil it was at least functional.

3. The evidence now supports a finding that the functionality of the parenting arrangement is substantially at risk.

4. I have found that the husband is not able to restrain himself from the most overt denigration of the wife. His inquiry into the death of the wife’s child was unnecessary, irrelevant and insensitive. The only purpose for the inquiry in circumstances where the husband had been cautioned as to his continued exploration of the topic, leads to the conclusion that he intended to cause upset and distress.

5. The inability of the husband to provide appropriate support for the children’s continued relationship with the wife and the finding that he is likely to continue his vitriol against her unabated represents the gravamen of the wife’s case that whilst the children’s relationship with the husband needs to be maintained, continued shared care is problematic.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristic of the children that the Court thinks are relevant

1. Each of the parties have significant cultural heritage and values that are important to the welfare and development of the children.

2. It is to their credit that the parties do not seek to interfere with the other parent’s reinforcement of their separate cultural heritage.

3. The husband however was highly derogatory of the wife’s Country X heritage and considered her country of birth to be a third world country suffering dysfunction and a breakdown of proper government and governance.

4. The husband exemplified his views by the questions put to the wife alleging that she had attempted to bribe a corrupt government official and that such conduct was endemic.

5. The questions put by the husband to the wife were scandalous and offensive.

6. I accept that the wife’s Country X heritage is important to her and that she considers the children would be advantaged by having an understanding of their mother’s cultural connections.

7. Similarly, cultural considerations are important to the husband. However, there is no evidence to suggest that the wife held any antipathy to the husband’s cultural ties.

8. I do not consider that any evidence was presented which would inform the Court that the cultural background and traditions relevant to the children would be qualitatively better catered for in the home of the mother or the father.

Orders least likely to lead to further litigation

1. Generally, the parties are respectful of the need to comply with Court orders. Unfortunately, the litigation between the parties will continue given the parties focus on the unresolved issue of property settlement. It is likely that the status of the Suburb E property and the net proceeds of sale will be determined by the Supreme Court of New South Wales. That would suggest that the parties will be embroiled in ongoing litigation for some considerable time.

1. I am satisfied that I should make orders which promote the children having a meaningful relationship with each of the parties, but to recognise that the shared care arrangement, whilst it has been in place for a number of years, is becoming less tenable by reason of the escalating adverse and aggressive conduct of the husband.

Parental responsibility

1. The wife seeks an order for sole parental responsibility, whereas the husband is equivocal but, doing the best that I can, I consider he likely seeks an order for equal shared parental responsibility.

2. The parties communicate via email and I have found that notwithstanding there are periods when the parties are able to focus on the needs of the children, at other times the husband has been unable to resist his denigration of the wife. There is also evidence that the parties are not able to reach ready agreement as to matters relating to the children’s medical and dental health.

3. The stability of these children needs to be resolved and I consider that the wife should have the sole parental responsibility for the children’s health and education in circumstances where she is likely to promote their relationship with the husband and to keep him properly informed, whereas the same cannot be said for the husband.

4. Parental responsibility is to be informed by a determination of what is in the best interests of a child.

5. I bring to account the s 60CC factors in my determination that the wife should have sole parental responsibility for the children’s education and health but that otherwise there should be an attempt at reaching a consensus.

Overseas travel

1. The parties have agreed that the children should be permitted to travel overseas.

2. The husband holds some reservation as to an intention by the wife to take the children to her home country of Country X.

3. The Court should always be cautious in respect of children travelling to countries that are not a signatory to the Hague Convention.

4. In this case, I am impressed by the wife’s presentation and I am entirely satisfied that she presents little or no flight risk in terms of the children.

5. They have been to Country X and have been returned. The wife has been in Australia for 20 years, has significant connection by reason of employment, education and social networks and was persuasive in her explanation that whatever her cultural connection may be, Australia is clearly her home.

6. It is also a relevant consideration that there has been proper compliance with Court orders and I have been able to find that the wife is supportive of the children’s relationship with their father. She does not seek to remove him from the children’s lives but rather, seeks an order that lessens the potential for adverse outcome arising from his inability to properly support the wife’s relationship with the children and cease his ongoing denigration.

Conclusion

1. I propose to make orders that provide for the wife to have sole parental responsibility in respect of matters relating to the health and education of the children, but otherwise their parental responsibility shall be shared.

2. The children will live with the wife and spend five nights a fortnight with the husband.

3. I will order that each of the parties will be able to take the children overseas and in that respect the wife shall hold the children’s passports and the husband will forthwith deliver up to her any passports of the children including Country X passports that he holds.

4. I make orders as appear at the commencement of these reasons.

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I certify that the preceding two hundred and fifty four (254) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 15 August 2019.

Associate:

Date: 15 August 2019