PERRAS & PERRAS

[2020] FCCA 3109

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERRAS & PERRAS [2020] FCCA 3109

Catchwords:
FAMILY LAW – Parenting – young children – distance between homes – parenting capacity – allegations of mental ill health - family violence.
FAMILY LAW – Property – fall in value of major asset – withdrawal of joint funds after separation.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC(2A), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65DAC, 75(2), 79(1), 79(2), 79(4), 102NA(1)(c)(i)

Cases cited:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Applicant: MS PERRAS

Respondent: MR PERRAS

File Number: CAC 1281 of 2016

Judgment of: Judge Hughes

Hearing dates:

16, 17 and 18 April 2018, 16, 17 and 18 July

2018, 6 August 2018, 14 and 15 November 2019 and 14 January 2020

Date of Last Submission: 11 March 2020

Delivered at: Canberra

Delivered on: 20 November 2020

REPRESENTATION

Counsel for the Applicant: Ms Ryan and Ms Aidman

Solicitors for the Applicant: Elringtons

Counsel for the Respondent: Self represented

ORDERS

Parenting orders

1. All previous orders in relation to the children X, born in 2013, and Y, born in 2015, are discharged.

2. The mother shall have sole parental responsibility for the children but, before making any decision concerning a major long term issue concerning the children, she shall:

   (a)advise the father in writing of the decision to be made and her thoughts about it, at least 28 days in advance;

   (b)invite the father’s input in relation to the decision;

   (c)consider any views the father offers before making her decision; and

   (d)advise the father in writing of the decision within 7 days.

3. The children shall live with the mother.

4. Unless otherwise agreed in writing, the children shall spend time with the father as follows:

   (a)during school term, on the first, fifth and ninth weekend of term, from 5pm Friday to 5pm Sunday or Monday if the Monday is a public holiday;

   (b)for half of all school holidays at the ends of Terms 1, 2 and 3 each year at times to be agreed or, failing agreement, for the first half in years ending in an odd number and the second half in years ending in an even number;

   (c)for half of the long summer holidays at the end of Term 4 each year as follows:

   (i)on a week about basis in the summer holidays commencing in December 2020, starting with the first week with the mother;

   (ii)for the summer holidays commencing in December 2021 and December 2023, with the father for weeks 1 and 2, with the mother for weeks 3 and 4, the father for week 5 and the mother for week 6;

   (iii)for the summer holidays commencing in December 2022 and December 2024 with the mother for weeks 1 and 2, the father for weeks 3 and 4, the mother for week 5 and the father for week 6;

   (iv)from December 2025, for the first half of the summer school holidays with the father and the second half with the mother and alternating each year thereafter; and

   (v)such additional or alternative times as agreed.

5. In the event the father is posted to a place that is within five hours’ drive from City B, the arrangements in order 4(a) will continue during school term.

6. In the event the father is posted to a place more than five hours travel from City B, the children will spend time with their father in accordance with order 4(a) in the region in which the children live, unless otherwise agreed.

7. The children shall have telephone communication with their father once each week at times to be agreed or, failing agreement, between 5pm and 5.30pm each Thursday with the father to place the call and the mother to ensure the children are available to receive their father’s call.  In the event the children are unavailable for any reason, the mother shall facilitate the children returning their father’s call within 24 hours.

8. During school holiday periods the children shall have telephone communication with their mother while in their father’s care twice each week at times to be agreed or, failing agreement, between 5pm and 5:30pm each Tuesday and Thursday with the mother to place the call and the father to ensure the children are available to receive their mother’s call.  In the event the children are unavailable for any reason, the father shall facilitate the children returning their mother’s call within 24 hours.

9. Each party shall facilitate the children communicating with the other parent at any reasonable time if the children request.

10. Notwithstanding the order for sole parental responsibility above;

    (i)The father is free to arrange with the children’s schools to receive copies of the children’s school reports, school photos, newsletters and the like and to attend all events and functions to which parents are invited.

    (ii)The father is hereby authorised to contact any of the children’s treating medical, dental and allied health professionals and to receive information about the children directly from those professionals.

11. The mother shall keep the father advised of the names and contact details of the children’s treating medical, dental and allied health professionals and, to any extent necessary, authorise those professionals to provide information directly to the father in accordance with the previous order.

12. Each party shall keep the other advised of their residential address, email address and mobile telephone numbers and advise of any changes to those details within 48 hours of the change.

13. Each party is hereby restrained from denigrating the other parent or a member of their family to, or in the presence of, the children and from allowing anyone else to do so.

Property orders

1. Within 30 days, the husband shall pay to the wife the sum of $40,500.

2. Within 60 days the husband shall take all steps necessary to transfer to the wife, at her expense, all of his right, title and interest in the property known as C Street, City B, New South Wales (“the C Street, City B property”).

3. Simultaneously with the transfer in order (15) above:

   (i)the wife shall take all steps necessary to discharge the joint home loan secured by the C Street, City B property and refinance it into a loan in her own name; and

   (ii)the wife shall indemnify the husband and keep him indemnified in relation to all liabilities associated with the C Street, City B property.

4. Except as otherwise provided in these orders, each party is declared to have no further interest in any property in the name or possession of the other party at the date of these orders.

5. Otherwise, all extant applications are hereby dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Perras & Perras is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Table of Contents

Introduction…………………………………………………………………………..1

Background…………………………………………………………………………..2

The proceedings….……………………………..……………………………………2

Family violence………………………………………………………………….…...9

Alleged sexual assaults……………………………………………………..….....9

Other family violence allegations…………………………………………….…12

Financial abuse………………………………………………………………….15

Incidents leading to separation……...…………………………………..………17

Incidents following separation…………………………………………………..20

Child dispute conference 19 January 2017………………………………………….23

Family report 21 March 2018……………………………………………………….23

Incidents leading to the re-opened proceedings…………………………………….30

The children’s special needs………………………………………………………...41

The wife’s mental health……………………………………………………………45

The husband’s mental health………………………………………………………..46

Credibility issues……………………………………………………………...…….47

The wife……..…………………………………………………………….…….47

The husband……………………………………………………………………..48

Other witnesses……………………………………………………………………..49

The maternal grandmother, Ms D…………………………………49

The maternal aunt, Ms E……………………………………….…….53

Ms F……………………………………………………………………57

The paternal grandparents, Mr G and Ms H………………………58

The wife’s proposals…………………………………………………………..……60

The husband’s proposals………………………………………………………...….60

The legal principles in relation to parenting...………………………………………60

Parental responsibility…...………………………………………………………….66

History in relation to property……….……………………………………………...67

Withdrawal of funds after separation...……………………………………………..69

The legal principles in relation to property…………………………………………69

The parties’ property…………………………………………………………….….70

Contributions………………………………………………………………………..72

Section 75(2) factors………………………………………………………………..72

Justice and equity considerations…………………………………………………...74

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1281 of 2016

MS PERRAS

Applicant

And

MR PERRAS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting and property proceedings after a relationship of less than four years.  Each party alleged the other behaved aggressively during the relationship and each alleged the other has some serious mental health issues.  Claiming impecuniosity, neither party complied with an order for a mental health assessment.

2. The mother and children live in City B, NSW.  The father lives in Sydney.  The father sought orders for the children to spend time with him every second weekend and for half of all school holidays.  The mother proposed the father have only supervised time with the children and only after he had undergone a full psychiatric assessment and completed an anger management course.

3. In relation to property settlement, the wife sought a distribution to her of 55 percent of the value of the parties’ combined property.  She argued the husband should be regarded as having had an advance on his share of the property by virtue of funds he withdrew after separation.  The husband initially sought orders giving him 90 percent of the value of the parties’ combined property because of his extra financial contributions but modified his position to some extent over the course of the litigation.

Background

1. The parties began their relationship in 2012.  At that time the father, who is a tradesman in the Australian Army, was living in Darwin.  A month later he was posted to City J.  The mother was living in City B.  The mother became pregnant in 2013, four months into the relationship.  The father applied for a compassionate transfer from City J to Canberra.

2. The parties became engaged in 2013 and married in 2013.  They continued to live in different cities until late 2013 when the father was granted a compassionate transfer.

3. The parties separated in August 2016 after what the mother said was an episode of family violence.

4. The parties have two children, X, born in 2013 who is now aged six and, Y, born in 2015, now aged five.

5. The mother owned a flat in City B prior to the relationship.  The parties lived together in that property from late 2013 until January 2016 when the father was posted to Sydney.  The mother and children moved with him but, at separation, they returned to the City B district.  The C Street, City B flat was rented out while the parties lived in Sydney.  The mother and children moved back to City B after separation but did not return to the live in the flat until early 2020.

6. The mother alleged the father behaved in an emotionally, physically and sexually abusive manner during the relationship.  I will return to those issues shortly.

The proceedings

1. The mother commenced proceedings on 12 August 2016 seeking parenting orders.  She sought orders for sole parental responsibility, for the children to live with her and for the children to spend time with their father on a frequent and regular basis as agreed between the parties or as ordered by the Court.  She sought interim orders for both parties to be the subject of a psychiatric or psychological assessment to ascertain their capacity to adequately care for the children.

2. The father filed responding material on 5 September 2016.  He sought orders for the children to live on a week about basis with each parent.  At the time the children were aged two and almost 11 months respectively.

3. On the first Court day, 31 October 2016, interim orders were made by consent which provided for the children to live with their mother and to spend time with their father from Saturday morning to Sunday afternoon every second week with handovers to occur in Town K.  On the alternate Sundays the children were to spend time with the father from 9am to 1pm in the presence of their mother.  Although not specified, it was obvious that the only practical way this could occur was for the time to occur in the City B district.  The father subsequently explained that the parties were exploring a reconciliation at the time and he was travelling to City B every weekend in any event.  He said that in January 2017, when it became clear the reconciliation was not going to be successful, he began seeing the children only every second weekend as it was too much travelling to do every week.  Other orders were made on 31 October 2016 by consent, including that the father not bring the children into contact with his neighbours, Ms F and Ms L.  That particular order was not ultimately pursued by the mother at trial.

4. The parties attended a child dispute conference on 19 January 2017.

5. On 5 June 2017 the mother filed an amended application seeking property orders in addition to the parenting orders.

6. A family report was released on 21 March 2018.

7. The trial was originally listed for three days from 16 to 18 April 2018.  As a result of another trial finishing late, the trial did not start until the afternoon of 17 April 2018.  At the end of the day on 18 April 2018, it was adjourned part-heard for a further three days from 16 to 18 July 2018.  Submissions were made on 6 August 2018 and the proceedings adjourned for judgment on a date to be advised.

8. There were many unsatisfactory features of the proceedings.  The father was at a disadvantage as he was self-represented and not well organised.  He often quoted legal principles and case law when it would have served him better to concentrate on the facts in dispute.

9. There were several further applications filed while the judgment was reserved.  On 22 November 2018 the father filed an application a case seeking orders related to the property issues between the parties.  The mother filed a response to that application on 28 November 2018.  The matter came before me on 4 December 2018.  Both the application and response were summarily dismissed because I was not prepared to re-open the evidence.

10. On 20 March 2019 the father filed a contravention application supported by affidavits filed on 21 March 2019 and 16 April 2019.  He alleged the mother had breached orders in various ways including by not using the communication book, failing to support the children’s telephone communication with him, refusing him extra time with the children, failing to comply with handover orders and failing to provide him with copies of rates notices in relation to the C Street, City B property.

11. The contravention application was dismissed for want of prosecution on 1 May 2019 as the father failed to attend Court that day.  However, there had been some confusion on the father’s part about a change to the Court date.  He wrote to the Court asking that the application be reinstated.  The matter was re-listed for mention on 30 May 2019. The contravention application was not reinstated but the issues leading to the father filing the application were substantially resolved that day.  The father told the Court he wanted to have the option to have handover of the children in City B if he was in the Canberra district on a contact weekend.  He was in a relationship with a woman who lived in Canberra and he was often in the area in any event.  He also wanted to have a means of communication with the mother and a telephone number for emergencies.  The mother’s solicitor told the Court that the mother did not want any ongoing contact with the father.  She said he collects the children on only half of the occasions he is due to spend time with them.  She said he sometimes tells her he is running late but, by then, she has had to cancel work for the day because she does not know if he is coming and she has no alternative care on the weekends.  The mother sought a mechanism by which the father was required to advise her in advance of whether or not he would be spending time with the children and whether the handover would be in City B or Town K. 

12. The father denied missing half of his time with the children.  He said he had missed time with the children because he had been away on holidays.  He said he had wanted to take the children with him for the month of January 2019 but the mother would not consent.  He said he had not attended on the previous fortnight because the mother had applied for an apprehended violence order against him and he did not want to come into contact with her in those circumstances.

13. That day, 30 May 2019, orders were made requiring each party to register for the “FamCal” communication app within 7 days and to use that app to communicate with each other in relation to all issues concerning the children.  The parties were restrained from deleting any entries on the app and from using the app to make any denigrating or harassing comments to or about the other party.

14. The orders provided that, unless otherwise agreed, all handover of the children was to occur at the BP Service Station in Town K or the McDonald's restaurant in City B, depending on whether or not the father was going to be in City B on the relevant day.  The father was required to advise the mother through the FamCal app by 5pm on the Wednesday prior to any contact weekend whether or not he would be spending time with the children and whether the handover would occur at Town K or City B at the beginning and end of his time with them.  In the event the father failed to advise the mother by the required time, she was not obliged to make them available.

15. An order was made permitting each party to communicate by email with the other party only in the event of an emergency, such as being delayed in reaching the handover point.

16. The time for telephone communication between the father and the children was changed to occur each Tuesday and Thursday, with the mother to initiate the children telephoning their father and, if the call was not answered, to make two further attempts at least five minutes apart.  She was also required to take reasonable steps to ensure the phone calls occurred without distraction or interruption and with reasonable privacy.

17. It was noted in the orders of 30 May 2019 that the orders dealt with most of the issues raised by the father in his contravention application filed on 20 March 2019, but that some remaining aspects related to the same subject matter as the substantive proceedings which were awaiting judgment.  It was noted the father would consider his options once the judgment was delivered and, if any outstanding issues were unable to be resolved by communication with the mother's solicitors, the father may bring a further contravention application.

18. It was also noted that there was a current interim family violence order for the protection of the mother issued by the New South Wales Local Court at City B and that the father intended to defend the application for a final family violence order.

19. Less than two months later, on 12 June 2019, the mother filed an application seeking to re-open the proceedings because of new evidence which, she said, had not been available at the time of the trial and which would likely affect the outcome.  The application was listed on 19 July 2019.  The mother said the major issue was that X had been diagnosed with Sensory Processing Disorder in March 2019.  She said the father had not seen the children for three months and his inconsistent attendance was causing major difficulties for X.  She said her application for an apprehended violence order was dismissed on 16 July 2019 despite the police saying there were grounds for the order.

20. The father supported the application to re-open the evidence.  He said he wanted to show that the mother was engaging in parental alienation.  He complained that she failed to provide relevant medical information in relation to the children and that she had repeatedly sought to obtain a family violence order against him.

1. The parties were given leave to call further evidence relevant to the well-being of the children.  Each party complained about difficulties at handover.  The mother complained of poor behaviour by the father.  The father said the mother blatantly lied about his behaviour.  The parties were permitted to audio record the changeovers of the children on their mobile telephones provided the phone remained in a pocket or bag.  No video recording by either party was permitted.  The parties agreed the father had not spent time with the children since April or May 2019 but, now that there was no family violence order in place, he said he intended to spend time with the children in accordance with the interim orders.

2. The proceedings were listed for two days on a date to be advised to hear the further evidence.  An independent children’s lawyer was appointed and a filing timetable was provided.  Each party was required to file and serve an updated financial statement noting that the property proceedings were re-opened only to update the financial circumstances of each party.

3. On 26 July 2019 the proceedings were listed for a mention as I was, by then, reconsidering the order for the appointment of an independent children’s lawyer.  Each party appeared unrepresented and, after hearing their views, the order for the appointment of an independent children's lawyer was discharged.

4. Hearing dates of 14 and 15 November 2019 were allocated.

5. On 2 October 2019 the father filed an application in a case seeking to adjourn the hearing.  He said there was a pending New South Wales Police professional standards investigation into a police officer who had assisted the mother to obtain the interim family violence order.  The father said he wanted the family law proceedings to be delayed until the outcome of the investigation was known.  He said the decision was expected to be available by the end of the year.  He also said he had the opportunity to participate in a promotions course in October/November 2019 and, if he had to attend a hearing in person, he could not do the course and this would adversely affect his career progression.  He sought the hearing be adjourned to 2020.

6. The father's application came before the Court on 8 October 2019.  The adjournment application was dismissed, but arrangements were made for the father to participate by telephone which would free him from travelling to Canberra and would enable him to attend the course.  The matter remained listed for hearing on 14 and 15 November 2019.

7. After discussion, the previous order requiring each party to file a financial statement was discharged.  It was noted the father was intending to spend time with the children next on 30 and 31 November 2019.  The requirement for the mother to make the children available for telephone contact with their father was suspended between 15 and 25 November 2019 because the father would be travelling late on 15 November and would then be on field exercises.

8. It was noted in the order that section 102NA(1)(c)(i) of the Family Law Act1975 (“the Act”) applied to the parties because both parties had been charged with offences involving violence against the other and, accordingly, no direct cross-examination of either party by the other was permitted.  In retrospect, this was an error on my part as there were no charges pending at that time, only historical charges and, although there had been a finding of guilt against the mother, no conviction was recorded.  However, the parties had agreed to a process for the re-opened proceedings which involved each party filing affidavit material and making submissions and, if the Court was of the view that either party was disadvantaged by not being able to cross-examine the other, the trial might be adjourned and the parties required to apply for the Commonwealth Family Violence and Cross-Examination of Parties Scheme.

9. The hearing proceeded on 14 and 15 November 2019.  The mother was legally represented.  The father was not.  He appeared by telephone.  Each party wanted to cross-examine the other.  The father cross-examined the mother indirectly by indicating the questions he wanted asked of her, and I asked the questions of the mother.  This was a cumbersome and slow process which took one and a half days of the two-day hearing.  The father was cross-examined by telephone by the mother’s solicitor.

10. On 15 November 2019 the proceedings were adjourned part heard to 14 January 2020.  Each party was restrained from video or audio recording the other party in any circumstances other than those provided in the orders of 19 July 2019.  Each party was restrained from attending at or approaching within 20 metres of the other party’s home without a written invitation to do so.

11. Four days before the re-opened proceedings, on 10 January 2020, the mother filed another affidavit containing allegations about the father since November 2019.

12. On 14 January 2020 the father was given permission to give oral evidence about the mother’s allegations and about his current financial circumstances.

13. At the end of the proceedings that day, an order was made by consent permitting the mother to occupy the property at C Street, City B.  The father was required to provide the Motor Vehicle 1 to the mother by the end of March 2020.  The mother was to file written submissions by 11 February 2020 and the father by 21 February 2020.  The mother was permitted to serve any submissions in reply by 26 February 2020.  The proceedings were then again adjourned for judgment on a date to be advised. Each party filed their submissions late.

Family violence allegations

1. Family violence is defined in the Family Law Act 1975 as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”. [1]

   [1] Section 4AB

Alleged sexual assaults

1. The mother alleged that she was sexually abused by the father.  She said he told her, early in their relationship, “Sex is the most important part of a relationship” and a few months later, “It’s a woman’s job to have sex with her husband”.  She said he insisted on having sex every day during their relationship, except for a short period following the birth of each child.  She said she frequently woke up in the night with the father having sex with her and that he persisted, even when she told him to stop.  She said she eventually gave up refusing and simply put up with it.

2. The mother said that, ten days after X was born and while she still had perineal stitches, the father forced himself on her.  She said this was painful and caused bleeding.  She said the daily sexual encounters resumed from then.  The mother said she occasionally screamed or physically fought the father off which caused him to desist but he would then refuse to speak to her for days.  She said that, after Y was born in 2015, she told the father she did not want to have sex with him again at all.  She said he responded that, in that case, he would have to go elsewhere for sex.

3. The mother said the children sometimes came into the room when the parents were having sex and the father would not stop, even then.

4. In November 2016, after separation, the mother had a miscarriage.  Shortly afterwards she drove the children to Sydney to see their father who said he would look after the children so the mother could rest.  The mother said that within 30 minutes of them arriving, the father forced her to have sex against her will.  She said he forced himself on her again in January 2017 when he came to Canberra to see the children.  The mother said she sometimes voluntarily had sex with the father after separation as she felt some ambivalence about the relationship and the parties were considering reconciling.

5. The father denied all of the mother’s allegations made of sexual assault or other sexually inappropriate behaviour.[2]

   [2] Father’s affidavit filed 9 April 2018 at paragraph 55

6. It is clear on the evidence that the mother found the father’s expectations or demands about sexual intercourse oppressive and sometimes distressing.  Although the standard of proof in civil proceedings is the balance of probabilities, the more serious the allegation the more certain the Court must be that the events as described occurred.[3]  On the mother’s evidence alone I cannot be satisfied to the requisite standard that the father sexually assaulted her.  This is because of the ambivalence she described on her part, including after separation when the parties were considering a reconciliation.  Prior to separation, it seems the mother largely acquiesced to the father’s sexual demands.  For instance, the mother said in her trial affidavit the following:

   “Early in our relationship, in about 2013 and up to X’s birth I would try and have sex whenever Mr Perras wanted to.  After X’s birth I struggled with Mr Perras having sex with me.  He would do this to me every day.  I felt I was not part of the sexual act.  I would just lie there in silence until he was finished. 

   I say that on the few occasions that I said “no” to Mr Perras and did so very forcefully (for example screaming or repeating myself or physically fighting him off), Mr Perras would spend days not speaking to me.” [4]

   [3] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

   [4] Mother’s affidavit filed 21 March 2018 at paragraphs 53 and 54

7. On her evidence, therefore, she rarely said no and, when she did so unambiguously, he desisted.  The mother’s evidence indicates a dysfunctional relationship and a lack of sensitivity on the father’s part, rather than sexual assault.

Other family violence allegations

1. The mother alleged the father had an explosive temper, was frequently verbally abusive of her and often made veiled threats to cause her harm.  She alleged that, in late 2014, an incident occurred after the father’s mother had been trying to reach him all morning.  The mother said she took the phone and put it next to him in the bed where he was lying and said “ring your mother”.  She said the father jumped out of bed and pushed her down the hallway into X’s bedroom.  The mother said she crouched down next to X’s cot.  The father stood over her, pointing at her and screaming words to the effect of “You are not allowed to tell me what to do!”  The mother said she called the police and told the father she had done so.  She said he then said “You will see what happens when you leave, life will become very hard for you and you will regret this”.  She said this frightened her and, when the police arrived, she told them she had called them mistakenly.  She said the father showed the police a referral from her doctor which set out her medical history, including a diagnosis of depression.  She said the father said to the police words to the effect of “My wife is very unwell, look at all the medication she is taking.  I am in the Army.  I will not do anything to compromise my employment”.  She said the police left without taking any action.[5]

   [5] Ibid at paragraph 74 to 75

2. The mother alleged that, in early 2015, after an argument between the parties, the father said to her words to the effect of “I could just go into the kitchen, grab a knife and nothing can stop me”.  She said she responded “Stop it, you are making me very scared”.  He replied “No I am not.  I am just making a statement of facts”.[6]

   [6] Ibid at paragraph 76

3. The mother said the father was aggressive to other people including members of her family.  She said her sister, Ms E, and the father had a disagreement about the content of a program they were watching on television in early 2014.  She said the father raised his voice and continued to go on about the issue for the rest of the program and for half an hour afterwards.  She said she was unable to distract him from the issue.

4. During the Easter period in 2014, the mother’s sister expressed the view that same-sex couples should be allowed to marry.  The mother said the father responded with “They should all be shot”.

5. The mother said that, in about 2016, the father had an argument with her father about X needing special shoes.  She said the father expressed the view that he did not need special shoes and should just walk around barefoot.  When the maternal grandfather referred to the physiotherapist recommending the shoes for X, the father raised his voice in response, spoke quickly, paced back and forth and his face turned red.  She said she managed to diffuse the situation by persuading the father to leave.  She said she sometimes tried to talk to the father about his behaviour but he would become angry.  She said, for instance, that when she raised the subject in early 2016 he said “You are the loony here, not me”.

6. In his affidavit the father did not deal directly with any specific allegation of family violence made by the mother.  Rather, he denied the allegations in a global sense and alleged the mother was suffering mental illness.  In relation to the allegations of physical violence he said as follows:

   I find almost all of Ms Perras’ allegations vexatious and frivolous.  As a consequence, I seek assistance from the court to protect my rights and set a precedent that discourages such behaviours especially in light of the available evidence against Ms Perras.[7]

   Ms Perras has made numerous mistakes, errors, repeated false and/or misleading information through all affidavits and supplementary evidence to the court.  These repeated acts of perjury exist both in our parenting and property matter.[8]

   I ask the Court consider referral to the Department of Public Prosecutions for her continued perjury – vexatious and frivolous behaviours.[9]

   [7] Father’s affidavit filed 9 April 2018 at paragraph 43

   [8]  Father’s affidavit filed 9 April 2018 at paragraph 63

   [9]  Ibid at paragraph 64

7. The mother said that the father’s problematic behaviour extended beyond the home.  He was the subject of two separate disciplinary actions in the Army; the first for leaving his firearm unattended and for accessing an area on the military base that he was not permitted to and the second for riding a motorbike without a helmet at work.  The father did not dispute this.  Prior to joining the Army he studied health care at the University of City M.  The mother said she found a letter from the University of City M in early 2016, indicating the father had been expelled from the University because of various conduct incidents, including an alleged threat to kill his clinical mentor while on placement.[10]  During cross-examination on 18 July 2018 the father said there had been a complaint about him by a patient, which he said was completely unjustified.  He said a staff member then alleged he had threatened to kill them and he was suspended from the University.  He said he appealed the suspension, but he was then accepted into the Army and decided to let the issue go.[11]

   [10] Mother’s affidavit filed 21 March 2018 at paragraph 90

   [11] Transcript 18 July 2018 pages 50 to 54

8. The mother alleged that in mid 2014 the father attended the Medicare office in City B to claim a refund on medical expenses.  She said she waited in the car and, when the father returned, he was very agitated and complained the staff were mean and aggressive and would not help him.  The mother said she rang the Medicare office the next day to enquire about the claim.  She said she was told by a Medicare staff member that they had to call security the previous day because the father was aggressive, had called staff names and had stood over them and threatened them.  She was told that when the father left the office, the doors were locked to stop him re-entering.[12]  When asked about this in cross-examination on 18 July 2018, the father initially denied being angry.  He then conceded he was angry with Medicare staff because they were enforcing a bureaucratic barrier to him receiving a refund for some medical expenditure.  He denied raising his voice at them.[13]

   [12] Mother’s affidavit filed 21 March 2018 at paragraphs 80 and 81

   [13] Transcript 18 July 2018 at page 58

9. The father alleged it was the mother who was quick to anger, aggressive and unreasonable.  He alleged the mother had a long history of conflict and poor relationships and that she had mental health issues which were not well managed.  His evidence was in general, non-specific terms.  He said for instance:

   Ms Perras also had a violent outburst throughout our relationship.  Acts of self-harm, such as hitting her head against the wall, regular prescription drug misuse/use; anger outbursts such as yelling/screaming, abusive conniptions over minor occurrences, intimidating phone calls to my workplace supervisor/myself and repeated and sustained emotional attacks.  Property destruction.[14]

   [14] Father’s affidavit filed 9 April 2018 at paragraph 51

10. During his oral evidence the father was asked for examples of the mother's repeated and sustained emotional attacks on him.  He said she was inconsistent in her attitude, for instance, one day telling him not to tell his mother about things in their personal life and the following day encouraging him to call his mother.  He said that, on one occasion, she broke his DVD player saying she was sick of him playing on it and, at the end of the week, bought him a new one and apologised for breaking the first one.  He said he did a lot of work around the house but she constantly complained about him not doing enough.  He said he felt exhausted with all the house work he was expected to do on top of his full-time work.  He said he sometimes felt like a slave.  When asked to clarify what emotional attacks the mother made on him, he said he did what she wanted and she still was not happy.[15] None of the father’s evidence about the mother’s abuse of him was compelling.

    [15] Transcript 18 July 2018 at pages 67 to 69

11. The mother denied having any mental illness other than depression, for which she was, and is, treated. I will return to that issue later in these reasons.

Alleged financial abuse

1. The mother alleged the father was financially controlling throughout the relationship.  The father denied that.  He said the parties hardly knew each other when the mother became pregnant in 2013, four months into their relationship and when they were still living in separate cities.  They got married but did not live together until about a month before X was born.  He said they did not have the opportunity to discuss their issues and expectations prior to dealing with the tensions that come with living together for the first time and having a baby.  He said he was taken by surprise when he moved in with the mother to find that she was not a good manager of money and had several outstanding final notices for expenses including utilities.  He said it was necessary for him to budget carefully because he was on a modest income which was adequate for him but which now had to support three people.  He said he put the mother onto a much more secure financial footing during the relationship than she had previously been.

2. The parties set up a joint account when the mother was pregnant with X.  Although both parties deposited money into that account, they also retained their personal accounts.  The wife paid the mortgage, rates, strata levies, insurances and other fixed expenditure from her account. The husband paid for other more discretionary items including food, clothes and medical expenses. The joint account had no key card or similar facility to withdraw money directly through an ATM.  The father transferred money from the joint account to his personal account from which various expenses were paid, generally using his credit card.  The mother said that, as a result of this arrangement, she had no idea of the parties’ financial situation and what their money was being spent on.  She said the father was extremely controlling of any money she spent and, when they went shopping together, he refused to allow her to buy things which she considered basic requirements including, at times, fresh fruit and vegetables.  She said he refused to allow her to attend any doctors who did not bulk bill and this extended to the children once they were born.  However during cross-examination, the father put to the mother that he had spent more than $6,000 on medical costs for the mother and the children during the relationship.  The mother conceded that he may have done so.[16]  The mother also agreed that she had a card to pay for items from the father’s personal account.  She agreed she had free access to the account, was fully authorised to operate it and could have viewed the statements if she wanted.  She said she would never have withdrawn money from the father’s account without permission and she did not feel she could view the statements, even if technically permitted to.  At some point the mother became aware the father was transferring funds into another personal account in his name as a form of saving and asked him not to. The father continued the practice.

   [16] Transcript 18 July 2018 at page 191

1. The mother increasingly relied on her parents to pay for basic items including food and medical expenses during the relationship. It became apparent in the proceedings that the father had quarantined significant pre-relationship savings in one of his bank accounts and transferred $50 a week to that account throughout the relationship. Consequently, he had the funds to relieve some of the financial stress on the family. While this no doubt reflects on his attitude, the evidence as a whole does not support a finding that the father was using financial means to coerce or control the mother and is not a form of family violence as defined in the Act.

Incidents leading to separation

1. In early 2016 the father was transferred to Sydney and the mother and children moved with him.

2. In mid 2016 the mother went to see her doctor about feeling constantly tired.  She said the father accompanied her to the appointment.  Her doctor suggested a change of her anti-depressant medication but warned she may have some adverse reaction while adjusting to the change.

3. In mid 2016, while the mother and children were visiting her parents at their home in Town N, outside of Canberra, X was admitted to hospital with a medical condition.  The mother left Y in the care of her parents and stayed at the hospital with X.  The father travelled to Canberra the following day.  The mother said the father refused to speak to her for several days and only grunted in response to questions.  The mother said she was feeling anxious and low in mood which she attributed to the effects of the change in her medication.  The parties travelled to Town O, NSW, before returning to Sydney by car.  The trip took seven hours and the mother only drove for one hour because she was not feeling well.  She said the father criticised her almost non-stop including calling her a “lunatic” and “a nut bag” and telling her she needed to get help.  She said he criticised the fact that she had back pain and anxiety and criticised the amount of food she ate.

4. The mother said that when the family arrived back in Sydney, she was feeling exhausted and wanted to go to bed.  She said the father wanted her to do various chores and screamed at her “Did you put the washing on?”  She said she told him to leave her alone.  She went and laid down on the bed and pulled the sheet over her head.  She said the father pulled the sheet away and screamed at her “Get up, you have to bath them… Look at you.  What's wrong with you?”

5. The mother said she got up and attended to the children but felt unwell.  She took her medication.  She said she took four tablets but remembered shortly afterwards that she had already taken a dose about half an hour earlier before putting Y to bed and had, therefore,  inadvertently doubled her dose.  She said she told father what she had done and then called her mother.  She said the father took the phone from her and said to his mother-in-law “I think she has taken a cocktail of medication”.  She said the father told her mother she had taken at least four different types of medication which he knew was untrue.  The mother said she asked her mother to come to Sydney to be with her. She said the father called an ambulance and reported she had threatened to commit suicide.  The ambulance arrived and took the mother to Suburb P Hospital.  She said she was admitted but released in the early hours of the following morning.  Her mother, who had arrived by then, met her at the hospital, took her home and stayed with her. 

6. The father’s version of events was that the family arrived back in Sydney in the late afternoon and the mother went straight to bed.  He said he unpacked the car while caring for the children and then organised the children's dinner.  He said he went into the bedroom and asked the mother to get up to assist him and told her that, if they worked together, they could both go to bed early.  He said the mother got up and went to have a shower because she had a sore back.  She then went back to bed and he again requested that she get up.  He said the mother did eventually get out of bed.  She bathed the children and put Y to bed, then asked if she could go back to bed herself.  He said he offered the mother dinner and asked whether she had prepared milk for Y.  He said the mother began yelling and telling him to leave her alone.  He said she then began repeatedly opening the bedroom door then slamming it shut.  When she came out of the room, he said he tried to have a conversation with her and said “What is wrong with you?”  He said the mother said “You just don’t get it” and began hitting her head against the wall in the lounge room.  She then went into the ensuite bathroom and again hit her head against the wall, causing bruising to her head.  He said she then said “I’ll show you, you'll be sorry” and took out her medication bag.  He said she took medication that had been prescribed for her in 2012, more than four years earlier.  She then refused to say how many tablets she had taken and, feeling concerned for her safety, he called an ambulance and the police.[17]  During his evidence on 18 July 2018 the father said the mother dented the gyprock wall with her head that evening.

   [17] Father’s affidavit filed 5 September 2016 at paragraphs 104 to 110

7. The mother said that, the following day, she tried to have a discussion with the father but said he screamed at her “You are unwell, you need help”.  She said she later tried again to speak to the father, who kept texting on his phone.  She reached over for the phone.  She said the father, who was holding Y, jerked away from her and Y’s head hit the window frame.  The mother went to the kitchen.  She said the father approached her and lunged at her jacket pocket.  He then used his body to push her over.  Once she was on the ground he took her car keys from her pocket and left the house.

8. The mother said the police arrived within a few minutes of the incident and she surmised the father had called them.  She said the police told her that the father had forewarned them she would accuse him of something but that she could not be believed because she had recently been released from a mental health ward.  She said that, once the police left, the father returned to the house and followed her around, pointing at her and making threats.  She said he said things such as “You will get what is coming to you and you will be sorry”.

9. A few hours later the police arrived again, having been called by the father.  The father said he wanted the maternal grandmother out of the house, but the police refused to do anything about that.  The police left without taking any action.  The mother said the father kept coming into the room where she was and stood over her, pointing his fingers at his own eyes, then at her, to indicate he was watching her.

10. The mother said she and her mother were very scared for their safety but did not know whether they were permitted to leave Sydney with the children.  They called the mother’s father who came to Sydney the following day but stayed away from the house so as not to further antagonise the father.

11. Later that day, 10 August 2016, the mother told the father she had a doctor’s appointment.  She said he wanted to attend with her but she insisted on going alone.  She said the father became enraged and said “You are unwell, a nut bag, a crackpot, you need help, you and your mother are out to get me, I will not let you succeed”.  She said the father then began following her around the house, video recording her.

12. The mother said she spoke by telephone to a solicitor in Canberra who advised that she should leave the house if she was afraid for her safety.  She said she later overheard the father in the bedroom talking to someone on the phone and heard him say “I’m going to do it tonight”.  The mother said she became very fearful about this, and insisted to her parents that they all leave immediately.  She said she and her parents left the house with the children, taking nothing other than the mother’s handbag.  They took no food, clothes or nappies for the children.  They drove straight to Canberra, making contact for assistance from the Domestic Violence Crisis Service on the way.[18]

    [18] Mother’s affidavit filed 21 March 2018 paragraphs 99 to 141

13. The maternal grandmother, Ms D, gave evidence in support of her daughter.  Ms D is a public servant in City B and is a mandatory reporter.  Her husband, Mr Q, is a retired public servant.  They live on a small property in Town N, New South Wales, about 16 kilometres from Canberra and City B.

14. Ms D was involved in most of the incidents that occurred at the time of separation.  She said she received a phone call from the father at about 7.30pm on 8 August 2016.  She said he told her that her daughter had overdosed on tablets, had probably taken a cocktail of medication and he did not know what she had taken.  She said she spoke to her daughter who assured her she had not overdosed but had taken more Seroquel than she would normally take.  She said her daughter told her that the doctor had previously told her she could take extra tablets if necessary. 

15. Ms D said both parties were agitated and she could hear them arguing.  She offered to drive to Sydney to be with them and they both agreed.  She did so immediately.  During her cross-examination Ms D was asked what it was about her dealings with the parties that led her to offer to come to Sydney that night.  She said she knew there were difficulties in the relationship and her daughter had told her previously that the father had pushed her.  She said she was worried there could be an altercation between the parties and she wanted to try to stop things escalating.  She said she arrived at about 10.30pm.  Her daughter had, by then, been taken to hospital by ambulance.  She said she and Mr Perras had a quiet conversation and waited for the phone call to go and collect her daughter from hospital.  She said she was released later that night.

16. Ms D said that the following day, 9 August 2006, the father was very agitated.  She said he paced around the house pointing his finger at his wife and saying words to the effect of “You’re crazy, you need help, things are going to get worse”.  Ms D said she felt quite frightened by the father’s aggressive behaviour.  She said that, at one point in the early afternoon, the father was holding Y but jerked him away from the mother which caused the child to hit his head on the window frame.  Y began crying loudly and the father said to his wife “That was your fault”.

17. Ms D said the father called the police at some point that day and then attempted to remove the children from the home but the police agreed it was better the children remain at the house with their mother and maternal grandmother.

18. Ms D said that the following day, 10 August 2016, the father’s behaviour worsened.  She said he continued to point his finger at the mother’s face saying things like “You wait and see how bad things can get”.  During the afternoon she observed the father forcefully take the mother’s car keys from her pocket, causing her to fall over and hit the floor.  She said his behaviour towards her, Ms D, also became intimidating.  She said he generally ignored her attempts to calm him down and, when he did interact with her, he physically stood over her.  She said his behaviour with her daughter had become quite threatening and Ms D was concerned he would physically harm her.

19. Ms D said the father called the police for a second time that day.  She said both she and the mother told the police they were frightened of the father and wanted him to be removed from the home but the police said they did not have the power to do that.  Ms D said she called her husband at 1am and asked him to come to Sydney and stay close by but did not want him to cause an adverse reaction in the father by simply turning up.

20. Ms D said the next morning, 11 August 2016, the parties had an argument about a medical appointment the mother had.  The father wanted to accompany her to the appointment but she wanted to go on her own.  Ms D said the argument became quite heated and she rang her husband and asked him to come.  After he arrived, her daughter made the decision to leave.  She and the children left with the maternal grandparents that day.

21. Ms D was a credible witness and her evidence significantly corroborated the mother’s evidence of the events in the days prior to separation. 

22. After separation the mother and children lived initially with the mother’s parents. The mother enrolled the children in the same family day care service X had previously attended.

23. In November 2016 the mother and children moved into crisis accommodation provided by a domestic violence service.  A year later, in November 2017, they moved into private accommodation in City B.

Incidents following separation

1. The parties’ relationship gradually improved after separation and, by the time the proceedings first came before the Court in October 2016, the parties were considering a reconciliation.  The orders of 31 October 2016 which provided for the children to see their father each weekend were made by consent.  The father said that, although he did not agree with the restraint on him taking the children to see his mother in City M, (because of the distance), he agreed to that measure on a temporary basis, hoping he and the mother would eventually resolve all matters.

2. The father spent time with the children in accordance with the orders of 31 October 2016 until January 2017 when the attempted reconciliation between the parties broke down.  From then, the children spent time with their father every second week. 

3. The mother asserted that, prior to the child dispute conference on 19 January 2017, the parties had agreed to final orders and had signed a document evidencing the agreement. She said the proceedings were a waste of time and money from that point on. The father agreed that he had signed a document but said there were still a few issues to be worked out, including the issue concerning him travelling with the children to City M.  He said he put question marks next to the terms with which he did not agree.  The father was unrepresented at the time.  The mother conceded that the father did put question marks next to particular orders on the document he signed.  I accept the father’s evidence that he was generally in agreement with the orders but that there was some things with which he did not agree.

4. The mother said the relationship between the parties deteriorated significantly once the attempted reconciliation broke down in January 2017 and remained poor thereafter.  She said the father was hostile towards her and, on 9 January 2017, said to her “Go and take a drug overdose or drive into oncoming traffic”.[19]

   [19] Mother’s affidavit filed 21 March 2018 at paragraph 91

5. The mother said she had concerns about the father’s capacity to care for the children, based significantly on events that occurred during the relationship.  The fact that she had entered into consent orders in October 2016 for the children to spend every second weekend with their father suggests she did not think the children would be at an unacceptable risk of harm in his care for a few days.  However, at the time those orders were signed, the parties were attempting a reconciliation of their relationship and she was always present when the father was spending time with the children.

6. The father took X on a helicopter ride in early 2017.  The mother had asked him not to do so and said she thought X would be frightened given he was only three years old.  The father went ahead with the helicopter ride and said X had enjoyed it immensely.  He annexed to an affidavit a photo of him and X in the helicopter and X appears to be excited and happy.   The mother said when X came home that day he was very active but also anxious and burst into tears regularly.

7. The mother alleged that on 11 March 2017, when she arrived at Town K to deliver the children to their father, he was asleep in his car and she had to knock on his window to wake him up.  She said his eyes were red and bloodshot and she could smell alcohol on his breath.  She said the father said “I had a big night”.  The mother said she was concerned about the children travelling with the father in the car but did not know for sure that he was still under the influence of alcohol and felt she had no choice but to let the children go.  The father denied ever being under the influence of alcohol at handover or when the children were in his care.

8. The mother said that, from April 2017, the father kept pressing her to resolve the property proceedings and to sign over her car to him as he had retained it after separation.  An incident occurred at handover on 20 May 2017.  The mother said the father again pressed her to sign the car over to him. When she said she wanted to deal with the property issues through their respective lawyers, the father came up close to her and said “If you want to say I’m violent, I will show you how violent I can be”. She said the father then raised a clenched fist as if he was about to punch her.  She said she instinctively crouched down but the father did not hit her.  He got in his car and drove away. [20] The mother said she was frightened and distressed by this incident and reported it to police.  An interim family violence order was taken out on behalf of the mother and the father was charged with assault and intimidation.  At the hearing in November 2017, the father was acquitted of the charges but a final apprehended violence order was made for 8 months for the protection of the mother.

   [20] Mother’s affidavit filed 21 March 2018 at paragraph 255

9. In the meantime, in July 2017, the mother was charged with stalking, harassing and intimidating the father and with breaching the interim family violence order in place at the time.  The mother said she had been out with a girlfriend until the early hours of the morning and had had too much to drink.  She said she was feeling anxious about the charges against the father and felt the situation between them was getting completely out of control.  She said she wanted to try to talk to the father about resolving matters in a different way.  She said she was hoping to defuse the situation and improve the relationship because, if the charges against him proceeded, it might affect his career.  She was also worried about the long term consequences if he remained angry with her, given she would always have to interact with him in relation to the children.  She said she rang the father and told him she wanted to discuss things with him.  She said he told her he was having problems with his phone and, if it dropped out, she should call back.  She said they had a good conversation which continued for more than an hour.  She said the phone did repeatedly drop out and she called back.  She said that in the morning she regretted calling the father, especially when she realised she had called him approximately 50 times between 3.45am and 5.15am.  The father made a complaint to police and the mother was charged with harassing and intimidating him.  The mother said there was no harassment at all and they were actually having a good conversation.  She said he had manipulated her by engaging with her in the conversation in order to set her up for the charges.

10. The charges against the mother were ultimately dismissed on the basis she had no intention to harass or intimidate the father.  I assume therefore, the mother’s evidence was believed in the criminal case.  The charge of breach of apprehended violence order was also dismissed. 

11. The mother said that from about mid-2017 X began to display aggressive behaviours at day care.  In October 2017 the maternal grandmother sent the mother an email in which she described a conversation with X that day where X said to her without prompting, “Daddy is angry” and “Daddy will hurt mummy and there will be blood”.  He then asked “Is daddy going to hurt me?”[21] 

    [21] Mother’s affidavit filed 21 March 2018 at paragraph 213

1. The mother said that on separate occasions in late October and early November 2017 X said in the car words to the effect of “I’m not allowed to love mummy” and “I’m only allowed to love daddy”.  She said that on 10 December 2017 X said in the mother’s presence to a friend of hers “Daddy is angry at mummy and mummy cries.”[22]

   [22] Ibid at paragraphs 214 to 215

2. The mother said that in late 2017 she overheard X saying to his father on the phone “Daddy shouldn’t be angry at mummy”.  A week later on X’s birthday the father rang to speak to X.  The mother said she tried to encourage X to tell his father what gifts he had received for his birthday.  She said the father said “I didn’t call to speak to mummy” and then ended the call.  She said X asked her “Why is daddy mad?”[23] 

   [23] Ibid at paragraphs 216 to 217

3. The mother said that, from late 2017, the father became very erratic in spending time with the children.  She said that between November 2017 and February 2018 the father cancelled seven of his nine schedule visits with the children and only saw them on one occasion in that three month period.  She said this caused significant problems for her because she worked on Saturdays and, if the father was unavailable or cancelled his time with the children at the last minute, she had to organise someone else to look after the children or take a day off work to care for them herself.  She said that the father was often in the Canberra region anyway but did not request to see the children.

Incidents leading to the re-opened proceedings

1. The father was in a relationship with a woman named Ms R, who lived in Canberra, from an unspecified date in 2018.  Because of this, he often spent time with the children in Canberra rather than taking them back to Sydney.  During the hearing in 2018 the father described Ms R as his ex-girlfriend but he had resumed his relationship with her when the proceedings finished in January 2020. He said they had separated and reconciled many times.

2. When the substantive hearing ended on 6 August 2018, the children were next due to spend time with their father on the weekend of 25 and 26 August 2018 but the father elected not to have them that weekend. He did not tell the mother why.

3. The children spent time with their father on the weekend of 8 and 9 September 2018.

4. On the weekend of 22 and 23 September 2018, a major incident occurred between the parties.  On the Thursday prior to the weekend, the father had sought the mother’s agreement to him having the children from 10am to 3pm on Saturday and Sunday, rather than continuously from Saturday morning to Sunday afternoon.  The mother acceded to this request.  However, on Saturday 22 September, she became unwell and requested by text message that the father keep the children overnight.  The father refused and insisted the mother collect the children.  He said he had an urgent matter to attend to and that he would deliver the children to the mother at McDonald’s at 3pm that day.  When the mother insisted she was too unwell to care for them, the father took the children to the City B Police Station to enlist the support of the police in compelling the mother to take the children back.  A police officer, Constable Mr S, telephoned the mother.  The mother said Constable Mr S told her the father was argumentative and that he, Constable Mr S, was attempting to calm him down.  The mother said she telephoned the father to try to reason with him but he hung up on her.

5. At about 3.30pm that day, the father arrived at the mother’s home with the children.  The mother said this shocked her as she had been careful to keep her address secret from the father as she was scared of him.  She said she heard a loud bang at the front of her house and, when she went to the front porch, she saw the father standing with the children who were distressed and crying.  She said the low wooden gate at the side of the house, which had been bolted shut, had a big crack in it.  She said the top of the gate was bent back and the bolt, which had been securely fastened, was barely attached.  The mother said the father yelled “Fuck you!” and walked away, leaving the children with her.[24]

   [24] Mother's affidavit filed 12 June 2019 at paragraphs 59 to 70 and her statement to Police 8 May 2019        (Exhibit F3 of 14 November 2019) at page 2 of 4

6. The mother said she that, during a conversation with her sister shortly after the incident, she said she did not know how the father found out where she lived.  She said X then told her that his father had given him three dollars to show him where they lived.  The father conceded this during cross-examination. [25]

   [25] Transcript 15 November 2019 at page 293

7. The mother said she sent the father a text message that day to advise him she would be seeking a family violence order, given his behaviour and the damage to the gate.  She said she received a text message in reply from the father which read “I have attended City B police station and reported your threat.  I will vigorously pursue action against you for false report…”[26]

   [26] Mother’s statement to Police 8 May 2019 (Exhibit F3 of 14 November 2019) at page 2 of 4

8. The mother reported the incident to police.  She said she was advised that the father could be charged as a result of the incident and that she could apply for a family violence order.  She said she was unwell and wanted time to think about it.  She did not give a statement that day. She later decided not to press charges.  She said she did not want to cause difficulty for the father’s employment and predicted that making a formal complaint would cause a further deterioration in the parties’ relationship.[27]

   [27] Mother's affidavit filed 12 June 2019 at paragraphs 59 to 72

9. The mother said she subsequently discovered that the father had a social engagement on the Saturday evening, which is why he insisted on returning the children to her.  That was denied by the father.

10. During cross-examination the father was asked about the incident.  He agreed that when the mother sent him a text message to say she was too unwell to have the children returned to her, she also said “I’m sorry, I really understand how hard it is to make arrangements last-minute”.  He said she believed the message was passive-aggressive and sarcastic.[28]

    [28] Transcript 15 November 2019 at page 290

11. The father was asked why he then took the children, aged four and five years, to the police station.  He said:

    I took them to the police station because I knew Ms Perras had been sarcastic and passive-aggressive towards me, and I thought what I have to do is I’ve got to protect myself here, because she has put previous AVOs against me.  She lies, cheats and steals often.  So what I’ve got to do is I’ve got to learn to protect myself.[29]

    [29] Transcript 15 November 2019 at page 290

12. The father denied the children would have heard what he said to police as they were watching a children’s program on his phone nearby.  The father said he was advised by police that he could go to the mother’s home to drop the children off, and he did so.  He said he asked X to show him where he lives and gave him money for giving him that information.  The father conceded that he knew at the time the mother did not want him to know where she lived.[30]

    [30] Ibid at pages 286 to 300

13. The father was asked in cross examination about what occurred when he got to the mother’s home.  Initially, he said he walked the children only to the common area of the four unit complex as he did not know in which of the four units the mother lived.  He said he ensured there were no threats to the children from dogs or cars, said goodbye to the children and walked away as the children approached a particular unit.  When I expressed incredulity that he would leave two young children to make their own way into their home, not even knowing whether or not the mother was present, the father said he heard noises inside and saw the children entering the home.  He said he did not actually see the mother.  It was put to him that it was dangerous and irresponsible to leave the children in such circumstances.  The father then said he saw the silhouette of a person in the home and he knew it was the mother from the way the children reacted.  When asked whether he actually saw the mother he said he made no eye contact with her. He denied breaking the gate or abusing the mother.

14. The father’s account of this incident was inconsistent and utterly un-persuasive. I accept the mother’s evidence about what occurred that day.

15. The children spent the weekend of 6 and 7 October 2018 with their father.  On the Friday evening prior to the weekend, the father requested the changeover occur at City B at 10am on Saturday morning and at Town K on the Sunday afternoon.  The mother responded in a conciliatory manner by sending a text message in which she said “I do not wish to live my life like this, the boys don’t need it.  I am sure you don’t either.  As soon as we can figure out how to co-parent the better.  If you really need me to do a changeover at 10am I will, but please please please don’t let this get bad again”.[31]  At 11.15am on the Sunday the father sought to change the handover point to City B at 3pm instead of 4.30pm at Town K.

    [31] Mother’s statement to Police 8 May 2019 at page 2

16. From early October 2018 the father began pressing the mother to provide to him receipts for the rates and body corporate fees for the C Street, City B property because he wanted to claim a tax deduction.  The mother refused to provide the receipts on the basis that she had paid those expenses and intended to claim the tax deduction herself.  She told the father that it would be tax fraud for him to assert he had made the payments in relation to the property.  This is a matter which the father raised repeatedly in interim proceedings and at the final hearing.  I will return to it later.

17. On the weekend of 20 and 21 October 2018 the father did not spend any time with the children but did not advise the mother that he would not be doing so.  She and the children needlessly travelled to Town K on the Saturday morning and the children became upset when their father did not come.

18. On 23 October 2018 the mother sent the father a text message after X had said to three different people that his father had asked him “What do you think of Ms R’s bottom?”  The mother told the father that X had described the father attempting to engage him in inappropriate conversation with respect to his girlfriend’s body.  She asked him to keep adult conversations away from the boys.  On 30 November 2018 mother was contacted by the Suburb P police after the father made a complaint that she was harassing and abusing him.  The mother said the police officer who spoke to her said he did not believe there was anything in the father’s complaint. 

19. Because the mother is employed by the Employer T, she is required to lodge an incident report in the event she is contacted by any police service for any reason.  She said the father is aware of this and has made six further reports to police since November 2018, which she believes are designed to pressure her.  She said she is now afraid of raising any issue with him for fear of him making further false allegations about her.  She said the police officer suggested she block all communication with the father, which she did in March 2019.

20. During his oral evidence on 14 January 2020 the father was asked about his report to police.  He said he went to police because the mother was making a series of false allegations about him and he felt she was engaging in family violence against him.  When asked for clarification he said she had falsely reported him to police, alleging he had broken her gate, and since then her behaviour had escalated.  After repeated opportunities to explain how the mother had engaged in family violence the father said she sent him messages accusing him of being an absent father and, when he said he was unable to spend time with the children, told him that X had been expecting to see him and that she had to pick up the pieces when the children were hurt or upset by him.  He said the mother also accused him of being a tax fraud by trying to claim a tax deduction for expenses on the C Street, City B property.  Lastly, he said that she harassed him by telling him he should give her sole parental responsibility for the children given he could not spare 20 minutes to speak to the children on the phone when he was on a training course.[32]

    [32] Transcript 14 January 2020 pages 108 to 117

21. The children spent time with their father on the weekends commencing 3 November and 17 November 2018.  On the first of those weekends, the father requested a change to the location of the handovers and the time of one of them.  The mother accommodated those changes. 

22. On the weekend of 17 November 2018, the mother requested a change to the handover arrangement on the Sunday.  The father refused to accommodate her.  The mother arranged for her parents to do the changeover on her behalf.

23. On 18 December 2018 the mother sent the father a text message advising that she would not agree to any further changes to the handover arrangements and would stick strictly to the terms of the parenting orders. 

24. The father was due to see the children on 1 and 2 December 2018.  On the morning of 30 November 2018 he messaged the mother to say he was too unwell to see the children on Saturday and wanted to see them only on Sunday.  On Sunday, 2 December 2018, the father sent a text message to the mother advising that he was in City B.  Shortly after that, the mother saw his car drive past her house.  She said she is certain it was him because the father drives her grandfather’s old car and she knows the registration number, which she saw.  The father denied driving past the mother’s home.

25. The mother said she saw the father drive past her house on other occasions.  Although she did not see the number plate on each occasion, she felt certain it was him because it was the same make and model as her grandfather’s old car.

26. The father spent time with the children in accordance with the orders on the next two relevant weekends in December 2018.

27. As mentioned earlier, the father filed an application in a case on 22 November 2018 seeking orders requiring the mother to make available to him copies of relevant documents related to the C Street, City B property to enable him to claim a tax deduction for the 2018 and 2019 financial years.  In his supporting affidavit, the father deposed that he had the right to seek a tax deduction for both financial years in relation to payments made by him towards the property.  He said he had written to the mother’s solicitors but they no longer acted for her.  He annexed to the affidavit text message exchanges between the parties in which the mother asserted he had paid no expenses for the unit and, therefore, claiming a tax deduction would be tax fraud.  She said she was not prepared to help him do that.

28. On 28 November 2018 the mother responded to the father’s application in a case.  She sought orders requiring the father to pay a particular sum, representing one half his contribution to the council rates and strata fees.  She also sought an order restraining the father from filing any further proceedings without first obtaining leave of the Court.  In her supporting affidavit the mother deposed that the father had failed to comply with the interim orders of 17 August 2017 which required the father to meet half of the expenses associated with the C Street, City B property.  She pointed out that, had the father made the payments, he would have receipts and been able to claim a tax deduction for them.  She confirmed that she had claimed 100 percent of expenses for the financial year ending June 2018 because she made all of the payments.  She said she had not brought any enforcement action because she wanted to get on with her life but, in light of the father’s application, she sought an order that he pay half of the relevant costs as ordered and would then be content for him to claim 50 percent of the deductions.

29. The matter came before the Court on 4 December 2018.  On that date both the application and response were summarily dismissed on the basis that the proceedings had concluded on 6 August 2018 and were awaiting judgment.

30. On 12 January 2019, the mother and children travelled to Town K for handover but the father did not attend.  The children were upset about that.  The mother sent the father a text message to say she would be leaving Town K in 5 minutes.  The father sent a reply saying he was in City B and asked her to facilitate handover at McDonald’s.  The mother refused.  The father then contacted Police and asked them to do a welfare check on the children because he had not spoken to them for a few days.  After speaking with the mother by telephone, the police decided not to do a welfare check.  The mother pointed out that the father’s concerns could not have been genuine because his next opportunity to speak to the children by telephone was 15 January 2019 and he did not call.  He was next due to spend time with the children on the weekend of 26 and 27 January 2019 but did not do so as he was overseas on holiday.

31. The mother said the constant requests to her and to her solicitors to change the handover arrangements continued, despite the mother’s statements that she was not prepared to negotiate about that.  She said each change to the handover arrangements necessitated multiple text messages between the parties, which she felt burdened to the point of feeling harassed.

32. The father spent time with the children on the weekend of 9 and 10 February 2019.  At 8.45pm on the Friday night he requested a change of the handover arrangements and collected the children from City B.  The next morning the father told the mother by text message that he wanted to return the children to her at 4pm in City B rather than 4.30pm at Town K.  The mother agreed to both changes.  At 1pm on the Sunday, the father changed his plans and insisted the mother collect the children immediately.  She refused.  He told her that if she did not collect the children in 10 minutes, he would take them to the City B Police Station.  It is not clear on the evidence whether or not the father actually went to the police station but during cross examination he said he contacted police that day. 

33. On 22 February 2019 the mother sent the father a text message suggesting that they permanently change the handover location to City B as that is where he usually wanted the handover to occur.  The father refused. 

34. On 23 and 24 February 2019 the children spent time with their father and handover occurred at Town K.

35. The children spent time with their father on 9 and 10 March 2019.  At 1.30pm on the Sunday, the father sought to change the handover arrangements for that day to 3pm in City B rather than 4.30pm in Town K.  When the mother refused, the father threatened to report her to police for “domestic violence”.  The mother said she felt overborne because, once the father had the children, she felt she had to do what he wanted concerning the handover because it was the only way she could take the children back safely.

36. On 11 March 2019 the mother wrote to the father and told him that she would be deactivating her mobile phone number and, accordingly, would not be able to negotiate with him about any changes to the handover arrangements.  She confirmed she would be at the handover point in Town K as required by the orders for each time the children were due to spend with him.  The mother then changed her mobile phone number.  The father attempted to contact the mother through her lawyers and then began passing on messages through the maternal grandmother when he wished to vary the arrangements.

37. On the weekend of 23 and 24 March 2019, at the father’s request, he had the children only on the Sunday.

38. The children were due to spend time with their father on 6 and 7 April 2019.  On 2 April 2019 the father wrote to the mother’s lawyers requesting handover occur on Saturday at McDonald’s in City B, rather than at Town K.  The mother said she was advised by her lawyers not to respond and to simply attend at Town K for handover.  After handover at Town K on the Saturday, X ran back to his mother to tell her that changeover would occur in City B on the Sunday.  The mother told the father she was sticking to the orders.  The father rang the maternal grandmother on Saturday and Sunday about his proposed change to the Sunday changeover.  At 3.10pm on Sunday 7 April 2019 the mother received a phone call from City B police asking where she was because the father was at the police station with the children.  The mother was, by then, on her way to Town K for changeover.  She turned around and drove back to City B.  The father said the children remained in the car with his girlfriend, Ms R, for 40 minutes while he was inside the police station.  During his oral evidence on 14 January 2020 the father was asked why he went to the police station.  He said he wanted to document the mother’s behaviour in refusing to collect the children from City B, “because it’s violence”.[33]

    [33] Transcript 14 January 2020 at page 125

1. On 30 August 2016 the wife withdrew $4,153 from the mortgage offset account into which the rental income from the flat was paid.[88]  She said she did this to stop the husband taking the funds.  On 8 September 2016 the husband withdrew the balance of $1,030 from the offset account leaving no funds to pay the next loan instalment.[89] The wife arranged for the account to be locked to prevent any further withdrawals.  The wife said the bank advised her that the husband attempted to redraw funds from the home loan in March 2017 but was prevented from doing so as both parties were required to authorise any redraws.

   [88] Husband’s affidavit filed 28 March 2017 at annexure 2-04

   [89] Ibid

2. At separation the wife and children returned to City B but lived in rental accommodation. The wife said she did not want to return to the property at that time as she did not want the husband to know where she was living. After the incident in September 2018 in which the husband paid X to show him where the mother lived, the benefit of a private address was lost. In the re-opened proceedings in January 2020 the wife sought an order permitting her to move back into the City B property with the children.  She said this would be to her advantage because, while the rental income substantially covered the mortgage, she paid the rates and strata levies without assistance from the husband in addition to her own rent and returning to live in the property would reduce her overall costs.  The husband said on 14 January 2020 that he felt conflicted about the idea because he felt it was the right thing morally but he was worried he may be prejudiced in the property proceedings if that occurred.  Ultimately, he agreed and an interim order granting the wife sole occupation of the property was made by consent on 14 January 2020.[90]

   [90] Transcript 14 January 2020 at page 76

3. The interim consent orders of 17 August 2018 required the parties to pay one half each of the expenses associated with the City B property, including strata levies, council rates and agents’ fees.  The wife was required to provide copies of all notices concerning such expenses to the husband.  An impasse developed between the parties in which the wife refused to provide copies of notices to the husband because he had refused to contribute to the liabilities but wanted to claim a tax deduction for them.  The husband argued that he was continuing to make an indirect contribution to the mortgage through the DHOAS subsidy to the loan account. He said the subsidy was only available because his name was on the account. The wife claimed she was entitled to the subsidy in her own right as a former dependant of a Defence Force employee. Neither party provided evidence that would assist me in determining that issue.

The legal principles in relation to property

1. Section 79(1) of the Family Law Act1975 empowers the Court to make orders altering the property interests of the parties to a marriage.  However, the Court must not make such an order unless it is satisfied that, in the circumstances of the case, it is just and equitable to do so.[91] The requirement is met in this case as the parties no longer enjoy the common use of their property and each asks the Court to make orders altering the current interests in the property. 

   [91] S79(2)

2. In determining what specific orders should be made, the Court must have regard to the following:

   a)First, the contributions of the parties to the acquisition, conservation or improvement of the property and to the welfare of the family as provided in subsections 79(4)(a),(b) and (c) of the Family Law Act; and

   b)Secondly, the matters set out in the remaining subsections of 79(4) which incorporate section 75(2) of the Act. Those matters broadly require a consideration of the financial position and resources of the parties; their age and state of health; their necessary commitments in supporting themselves or any other person; the duration of the marriage and the extent to which it has effected the earning capacity of either party; the effect of any proposed order on the earning capacity of either party and any other fact or circumstance which the justice of the case requires to be taken into account.

3. The first step in the exercise is to ascertain the parties’ legal and equitable interests in the property available for division.

The parties’ property

1. The major asset is the C Street, City B flat owned by the wife prior to the relationship.  The parties agreed it had a value of $240,000 at the time of the trial. The mortgage at that time had been reduced to $196,000,[92] leaving net equity of $44,000.

   [92] Transcript 14 November 2019 at page 71

2. The husband owns the property at Town GG purchased during the relationship. 

3. The husband owns a motorbike worth about $3,000.  The wife’s Motor Vehicle 1 which previously belonged to her grandfather remained in the husband’s possession after separation but was eventually returned to the wife in early 2020.  It has an agreed value of about $6,000. 

4. The wife argued for cash withdrawn by the husband post-separation to be notionally added back to the property pool and characterised as a partial property settlement to the husband. Both parties withdrew money from accounts after separation and both used unspecified amounts to pay legal fees.  In my view all withdrawals of substantial sums should be notionally added back to the property “pool” and treated as a partial property distribution to the relevant party.  The total amount withdrawn by the husband was $76,000 and by the wife $4,750.

5. The wife sought that a MasterCard debt of $2,000 be taken into account as a joint liability.  She said she incurred that debt in 2016 to buy a computer.  As this is a post-separation debt, I will not include it as a joint liability.

6. The parties each have superannuation, the value of which is agreed.  The property pool available for distribution therefore is as follows:

Asset	Ownership	Amount
C Street, City B property - $240,000 less mortgage - $196,000 net value	Joint	$44,000
Town GG Property	Husband	25,000
Motorbike	Husband	3,000
Motor Vehicle 1	Wife	6,000
Funds withdrawn post-separation	Husband	76,000
Funds withdrawn post-separation	Wife	4,750
Total non-superannuation	$158,750
Superannuation
Super Fund MM	Wife	$133,648
Military Super	Husband	136,055
Super Fund NN	Husband	31,112
Total superannuation	$300,815
Total combined assets and superannuation	$459,565

Contributions

1. The husband clearly had assets of greater value than the wife at the commencement of the relationship. Although the wife’s property had no meaningful equity at that time, the wife had purchased and preserved it by paying the mortgage and associated expenses and it provided a home for the family for most of the relationship. She also had household contents of unknown value which were used throughout the relationship and her car which had an agreed value of $6,000 at the time of the trial.

2. The husband had cash assets of $76,000 and a car worth $3,000 at the beginning of the relationship.  His savings were depleted by $25,000 when he bought the Town GG property in 2014 and by a further $25,000 in the same year when he paid that amount towards the mortgage and some minor renovations to the property. The wife had equity of $10,000 when she bought the property and had reduced the mortgage by $13,000 in round terms by the time the husband contributed his funds to it.  Had the property held its value, the wife’s equity would have been about $23,000 at that time.  At that time, both parties had contributed a similar amount to the property.  Both suffered financial loss as a result of the deterioration in its value.

3. Both parties earned an income throughout the relationship.

4. The husband worked throughout the relationship as an Army tradesman and earned approximately $65,000 per annum.

5. At the commencement of the relationship the wife was working full-time for the Employer T.  Her taxable income for the 2013 financial year was a little over $87,000.  In 2013, a month before X was born, she took maternity leave during which she received some income, supplemented by Centrelink payments. In 2014 she returned to work part-time, earning approximately $31,000 per annum.  In 2015 she began full-time shift work and her income increased to $84,000 per annum.  However this work continued for only two months because in 2015, a month prior to Y’s birth, the wife again took maternity leave.  She received some maternity leave payments and government benefits. The parties separated before the wife returned to part-time work.

6. The wife was the primary parent and homemaker during the relationship. Although the husband assisted with the housework and care of the children, he worked full-time and was required to undertake training and exercises away from home for periods of up to a month at a time.

7. Throughout the relationship the wife paid the mortgage from her OO Bank account. She also paid the rates and strata levies, utility bills and home, car and health insurance from her account. The husband paid the groceries and other household expenses from his account. Both parties contributed to their joint account. The wife contributed all of her income to the needs of the family.  The husband did not. He continued to accumulate savings in his personal accounts to which the wife had no access. The wife experienced the husband as controlling in relation to money, especially when she was on maternity leave and was more dependent on him. She said she had to justify all expenditure and the husband often refused to pay for things she wanted or needed.  The wife’s parents frequently paid for things for the wife and children, including food, clothing and medical expenses. They also paid on one occasion to have the husband’s motorbike repaired and serviced. At all times the husband had significant savings and could have paid for these things.

8. The parties stayed with the wife’s parents rent-free for two periods during the relationship. This and the direct expenses paid by the wife’s parents during and after the relationship are an indirect contribution on the part of the wife.

9. The mortgage subsidy payments made by DHOAS during and after the relationship are an indirect contribution on behalf of the husband as they arise from his employment. The amount of the subsidy paid up to March 2018 was $4,442.  There is no evidence of the precise amounts paid after that.  The wife said the payments were $70 a month at the end of the trial in January 2020.  Assuming for the exercise that $70 was paid consistently for the 22 months between March 2018 and January 2020, the total subsidy would have been $5,982.

10. The post-separation contributions by the wife exceeded those of the husband.  By the time the trial ended in January 2020, the parties had been separated for three and a half years, which is as long as the relationship of the parties.  The interim orders required the parties to equally pay the mortgage and associated costs of the C Street, City B property.  Until early 2020 the property was rented out and the rental income largely covered the mortgage payments.  This is a contribution by both parties.  However, during this period the wife was required to pay for private rental accommodation appropriate for the needs of herself and the children and the husband has lived in subsidised accommodation suitable for a single adult. The husband was required to pay for half of the other costs of the property which were primarily the rates and levies. The wife has borne these alone.  She may have received a tax deduction related to them but the quantum is unknown.

11. At the time the trial ended in January 2020 the wife was about to move into the property.  Given the history, she alone would likely be paying the mortgage, rates and levies.  She will have had the advantage of sole use of the property but the property has also accommodated the children.

12. Since separation the wife has borne the financial costs of the children with little assistance from the husband.  The husband pays child support in accordance with the administrative assessment which is modest as the husband’s income is modest. The children have special needs and extra costs, such as for speech therapy and specialist medical care.  These costs have been borne solely by the wife.  She repeatedly requested the husband to assist with the children’s extra costs.  The husband at all times had significant cash reserves and capacity to assist but failed to even acknowledge the wife’s requests. The wife has relied on her parents to assist her financially.  She said intends to repay those sums to them.  The husband seems to willing pay child support in accordance with the administrative assessment but nothing more, regardless of the children’s needs or his capacity.  It is likely on the history that the wife will continue to bear the bulk of the children’s expenses.

13. In November 2017 the wife withdrew $7,800 from her superannuation funds on the grounds of financial hardship. 

14. The wife has also borne the bulk of the children’s practical care since separation with little respite provided by the husband as a result of his inconsistency in spending time with them.

15. In my view, the weight of the husband’s greater initial contributions is significantly offset by the weight of the wife’s contributions during the parties’ short relationship and her greater post-separation contributions. On account of contributions, the property should be divided 45/55 percent in favour of the husband.

Section 75(2) factors

1. The applicant wife is aged 36.  She is employed in an administrative role with the Employer T.  She returned to part-time work in 2017, working 20 hours a week.  At the time the trial ended in January 2020 she was working 25 hours a week from Tuesday to Friday.  She worked shorter hours, 9.30am to 2.30pm, on Tuesdays and Wednesdays to be available to collect X from pre-school and long days, from 7am to 4.30pm, on Thursdays and Fridays, utilising childcare for both children on those days.   She was earning $55,000 per annum inclusive of Centrelink benefits. 

2. The wife earned more than the husband during the relationship, even for some of the time she was working part-time, but that was because she could do shift work which became unviable as a single parent, especially when the husband could not be relied on to care for the children on a regular basis.

3. During the proceedings the wife was studying towards a degree and hoped to complete it by mid-2020.  That was prior to the Covid-19 pandemic and there is no evidence before me about the impact of the pandemic on the wife’s study.  It is reasonable to assume there was some disruption to the children’s schooling and child care which may have impacted on the wife’s capacity to study.

4. The wife has the potential to earn more than the husband over the course of their working lives, especially given her imminent completion of her degree and the husband’s lack of qualifications.  However, at the time of the hearing, her income was significantly less than that of the husband which was about $70,000 per annum with capacity to earn more by engaging in particular military exercises.[93] At the time of the trial the husband was living in subsidised single accommodation on barracks. 

   [93] Transcript 18 July 2018 at page 127

5. X was due to commence school in 2020 and Y in 2021.  The husband put to the wife that there was no reason why she could not then return to full-time work.  The wife did not accept that.  She said that whether or not she could work full-time would depend on the needs of the children. When she last gave evidence in January 2020, she was working Tuesday to Friday, and used each Monday to attend the myriad of appointments required for the children’s medical, dental and developmental needs.  There is no basis for me to conclude these requirements will cease upon the children starting school.  Given the ages of the children and X’s needs, in particular, I accept that the wife may not be able to return to full-time work in 2021 and, if she did, would need to pay for out of school hours care for both children.

6. The wife’s contributions to her superannuation fell along with her income as a result of having the children, taking maternity leave and working part-time. The husband’s superannuation contributions were not adversely impacted by the parties’ decision to have children. The wife has also withdrawn funds from her superannuation since separation to relieve financial stress.

7. At the end of the trial the wife was struggling to pay all of the expenses necessary to support herself and the children. She had outstanding rates and strata levies and a large electricity bill. She had borrowed money from her parents for various purposes including to pay her family law legal fees and was making an effort to repay them over time. She had also withdrawn some of her superannuation funds to defray current expenses.

8. On the last day of the trial, 14 January 2020, the husband said he had $30,000 left from the money he had (and took) at separation and that he had saved an additional $27,000 since separation.[94] I am not confident about these figures given the hedging and lack of clarity in the husband’s evidence about them but do not believe he would have overstated his financial position. 

   [94] Transcript 14 January 2020 at page 101

9. At the time the trial ended, the husband was paying $380 per fortnight to the wife in child support.[95]  It is clear the wife can expect to receive child support in accordance with the administrative assessment but nothing more.

   [95] Transcript 14 January 2020 at page 74

10. Given the young ages of the children, they are going to be dependent on the wife for many more years. Their special needs mean their costs are likely to be higher than otherwise. The practical and financial burden of caring for the children will continue to disproportionately fall to the wife.

11. Taking all of these matters into account and the modest size of the property pool, in my view there should be an adjustment to the wife of 15 percent, resulting in an overall division of the non-superannuation property of 60/40 percent in favour of the wife.

Justice and equity considerations

1. The net value of the non-superannuation property is $158,750.

2. For the wife to take 60 percent, she will take property to a value of $95,250.  The husband’s 40 percent has a value of $63,500.  This division can be achieved by the wife taking the C Street, City B property, her car, retaining the funds she withdrew at separation and receiving a cash payment of $40,500 from the husband.

3. The husband will retain the Town GG property, his motorbike, the funds he withdrew at separation, less a cash payment to the wife of $40,500. 

4. The husband sought that the C Street, City B property be sold and the net proceeds be divided 25/75 percent in favour of the wife and that the parties otherwise retain the property held by them.[96]  This would result in the wife taking non-superannuation property to the value of $43,750 and the husband taking $115,000, a 72/28 per cent division which is neither just nor equitable.

   [96] Husband’s submissions filed 10 March 2020 at pages 4 - 5

5. The distribution I propose gives the wife the opportunity to retain the property and begin to rebuild some financial security.  The distribution can be seen in the table below:

Wife	Value	Husband	Value
C Street, City B property	$44,000	Town GG property	$25,000
Car	6,000	Motorbike	3,000
Retained funds	4,750	Retained funds	76,000
Sub-total	$54,750	Sub-total	$104,000
Plus cash from husband	40,500	Less cash to wife	40,500
Total non-super	$95,250	Total non-super	$63,500
Superannuation	Superannuation
Super Fund MM	$133,648	Military Super	$136,055
Super Fund NN	31,112
Total assets and superannuation	$228,898	Total assets and superannuation	$230,667

1. Neither party sought a superannuation split.  At the time of the trial the husband had total superannuation interests of over $167,000.  His major interest was with the Military Superannuation Benefits Scheme (MSBS).  This is a defined benefits scheme which has advantages over the wife’s accumulation fund.  The wife’s superannuation is of slightly lower value than the husband’s, although she may be able to contribute to it at a higher rate as her income increases.  The superannuation values were not updated when the proceedings were re-opened. Both parties have made further contributions to their funds and the wife has withdrawn some funds since then. If the superannuation interests as agreed are included in the calculations, the overall division between the parties is approximately equal.

2. Each party will take some real property but the wife’s C Street, City B property, being in a metropolitan area, is likely to appreciate to a greater extent over the long-term than the husband’s Town GG property, which is in a remote town.  However, the husband has shown himself to be an astute and prudent manager of money.  He has a greater current capacity to recover from the property settlement than the wife, who will continue to have primary responsibility for the children.  It seems likely the husband will be able to purchase other real property in the future.

3. I am satisfied that the overall property distribution is just and equitable in all the circumstances.

The children’s school fees

1. The wife sought an order that the husband pay half of the children’s school fees at JJ School in City B.  Although on the evidence this seems a good choice of school for X, I am not persuaded I should make the order, primarily because the husband’s income is modest and not likely to increase significantly unless he acquires some tertiary qualifications. His cash reserves will also be depleted as a result of the property orders.  I am not satisfied that requiring him to meet the cost of private schooling is reasonable in the circumstances.  The wife will likely have enrolled X in the school in any event given her indication at the end of the trial. She will have sole parental responsibility and can enrol the children in whatever school she chooses and can afford. She will receive a lump sum of $40,500 as part of the property settlement which is needed to cover many expenses but which would more than cover the costs of both children attending JJ School for the whole of their primary school education if that is what the wife chooses.

I certify that the preceding three hundred and seventy-two (372) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Associate:

Date: 20 November 2020