Pickford & Pickford (No 2)
[2024] FedCFamC1F 500
•26 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pickford & Pickford (No 2) [2024] FedCFamC1F 500
File number(s): SYC 3365 of 2019 Judgment of: ALTOBELLI J Date of judgment: 26 July 2024 Catchwords: FAMILY LAW – PARENTING – Where there are allegations of family violence – Where the father seeks equal time with the children and the mother seeks three nights per fortnight – Where both parties seek sole parental responsibility – The Court finds the father has engaged in behaviour that is coercive and controlling towards the mother – Where the children have been impacted by the parties’ conflict and the family violence perpetrated by the father – Order for the mother to have sole parental responsibility – Order for the children to live with the mother and spend four nights per fortnight with the father – Order prohibiting the father from causing surveillance of the mother.
FAMILY LAW – PROPERTY – Where the father seeks an 80:20 adjustment in his favour and the mother seeks a 65:35 adjustment in her favour – Where there was a relatively short marriage – Where the father made far greater initial contributions and greater post-separation contributions – Where the father has a greater earning capacity and the mother has greater future needs – Order for a 55:45 division of property in favour of the father.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 75, 79 Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
EB v CT (No. 2) [2008] QSC 306
F v M [2021] EWFC 4
Gambetto & Farrelli (No 2) [2023] FedCFamC1F 863
Helbig & Rowe and Ors [2016] FamCAFC 117
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Illgen & Yike [2018] FamCA 17
In the Marriage of Quinn (1979) FLC 90-677; [1979] FamCA 86
El Kalza & El Kalza (1982) FLC 91-200; [1981] FamCA 82
Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Pickford & Pickford [2020] FamCA 656
Ramzi & Moussa [2022] FedCFamC2F 1473
Reagan & Reagan (Re-opening) [2013] FamCA 167
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Suell & Suell (Re-Opening) [2009] FamCA 55
Suffolk v Suffolk [2007] FamCA 797
Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365
Trask & Westlake (2015) FLC 93-662; [2015] FamCAFC 160
Division: Division 1 First Instance Number of paragraphs: 280 Date of last submission/s: 10 July 2024 Date of hearing: 13–16 February 2023; 13–16 November 2023; 8–9 January 2024; 2 February 2024 Place: Sydney Counsel for the Applicant: Ms Kaiti Solicitor for the Applicant: Thornton + King Lawyers on 13–16 February 2023 and 13–16 November 2023; Long Saad Woodbridge on 8–9 January 2024 and 2 February 2024 Counsel for the Respondent: Mr Sansom SC Solicitor for the Respondent: ATW Family Law Solicitor for the Independent Children's Lawyer: Mr MacDiarmid ORDERS
SYC 3365 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PICKFORD
Applicant
AND: MR PICKFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
26 JULY 2024
THE COURT ORDERS THAT:
1.All previous orders are discharged.
2.The Respondent Father’s (“the father”) Application in a Proceeding filed 7 June 2024 be dismissed.
PARENTING
Parental responsibility
3.The Applicant Mother (“the mother”) have sole parental responsibility for X born 2015 and Y born 2017 (“the children”).
4.Other than in the case of a medical emergency, in the event a decision is required as to major long-term issues concerning either or both of the children, the mother shall:
(a)Advise the father in writing as soon as possible of the decision intended to be made as well as notice of any date by which the decision is to be made;
(b)Seek the father’s written response in relation to the decision, which is to be provided within seven days (or as soon as reasonably practicable if the decision is required urgently);
(c)Consider by reference to the best interests of the children any such response prior to the making of any such decision; and
(d)Advise the father in writing of her decision no later than 48 hours after the decision has been made.
Live with and spend time with
5.The children shall live with the mother.
6.The children shall spend time with the father during school terms each alternate week from 3.00 pm or the conclusion of school on Thursday to 9.00 am or the commencement of school on Monday.
7.The children shall spend time with the father during the Terms 1, 2 and 3 school holidays for one half of the school holiday period as agreed between the parties, or in the absence of agreement, for the first half of each school holiday period in even years and for the second half of each school holiday period in odd years.
8.The children shall spend time with the father during the Christmas school holiday period as agreed between the parties, or in the absence of agreement, for the first half of the school holiday period in even numbered years and for the second half of the school holiday period in odd numbered years.
9.For the purpose of the school holidays as referred to in Orders 7 and 8, the following will apply:
(a)Each school holiday period shall commence at the conclusion of school on the last day of required school attendance of the children and shall conclude at the commencement of school on the first day of required school attendance of the children;
(b)Changeover is to occur at 5.00 pm on the mid-point day between the first and last day of the defined school holiday period and shall, where applicable, include public holidays and pupil free days; and
(c)In the event that there are two consecutive mid-point days, then changeover is to occur at 5.00 pm on the first of those two mid-point days.
10.Notwithstanding any other orders:
(a)The children shall spend time with the father from 8.30 am on Christmas Eve until 3.00 pm on Christmas Day and with the mother from 3.00 pm on Christmas Day until 6.00 pm on Boxing Day in even numbered years.
(b)The children shall spend time with the mother from 8.30 am on Christmas Eve until 3.00 pm on Christmas Day and with the father from 3.00 pm on Christmas Day until 6.00 pm on Boxing Day in odd numbered years.
(c)In the event that the children are not already in the care of the mother on Mother’s Day, then the children shall spend time with the mother from 8.30 am until 6.00 pm on Mother’s Day.
(d)In the event that the children are not already in the care of the father on Father’s Day, then the children shall spend time with the father from 8.30 am until 6.00 pm on Father’s Day.
(e)The children shall spend time with the mother from 8.30 am on Good Friday until 2.00 pm on Easter Saturday in odd numbered years and from 2.00 pm on Easter Saturday until 5.00 pm on Easter Monday in even numbered years.
(f)The children shall spend time with the father from 8.30 am on Good Friday until 2.00 pm on Easter Saturday in even numbered years and from 2.00 pm on Easter Saturday until 5.00 pm on Easter Monday in odd numbered years.
(g)The children shall spend time with the father on their birthdays if they are not already in his care, from after school until 6.00 pm if it falls on a school day, or from 2.00 pm until 6.00 pm if it falls on a weekend or public holiday.
(h)The children shall spend time with the mother on their birthdays if they are not already in her care from after school until 6.00 pm if it falls on a school day, or from 2.00 pm until 6.00 pm if it falls on a weekend or public holiday.
(i)The children shall spend time with the father on his birthday if they are not already in his care, from after school until 6.00 pm if it falls on a school day, or from 2.00 pm until 6.00 pm if it falls on a weekend or public holiday.
(j)The children shall spend time with the mother on her birthday if they are not already in her care, from after school until 6.00 pm if it falls on a school day, or from 2.00 pm until 6.00 pm if it falls on a weekend or public holiday.
Changeover
11.Changeovers shall occur at the children’s school/s on school days.
12.Changeovers that do not occur at the children’s school/s shall occur as agreed between the parties and failing agreement the father shall collect the children from the mother’s home at the commencement of their time with him and the mother shall collect the children from the father’s home at the conclusion of that time, and both parties shall ensure that during changeovers:
(a)Neither party will enter the other’s home;
(b)Each party will behave in a civil and courteous manner to the other party and any other person who may be present;
(c)Each party will conduct themselves in a child focused manner;
(d)Each party will limit their conversation to matters that specifically pertain to immediate matters of the children passing from one party’s care to the other; and
(e)Neither party will discuss issues of any controversy between them.
Communication
13.The children are at liberty to contact the other party at all reasonable times and both parties shall ensure that if one or both of the children wish to communicate with the other party that they are given access to a phone or electronic device to allow such communication to occur.
14.The children will be given privacy to communicate with the other party and the communications will not be monitored.
15.The party who does not have the children in their care is at liberty to contact the children once every second day the children are in the care of the other party, either by phone or electronic message/video and the party with the care of the children shall not block such communications.
Restraints
16.The father is restrained from causing (either directly or via any agent or third party, including, without limitation, any private investigator or other surveillance provider) the children, the mother and her residence, to be under any form of surveillance.
17.The mother is restrained from attending either of the children’s schools at any time proximate to the time when the children will go into, or are already in, the care of the father pursuant to these orders.
18.Both parties are additionally restrained from:
(a)Physically disciplining the children or permitting any other person to do so;
(b)Questioning or interrogating the children about the time they have spent with the other party and each party shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the children;
(c)Denigrating the other party, the other party’s extended family, or a person with whom the other party has a relationship, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other party, the other party’s extended family, or person with whom the other party is in a relationship, with the party’s knowledge or in their presence;
(d)Discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence;
(e)Permitting the children having access to any of the documents filed in these proceedings;
(f)Communicating any information intended for the other party through the children; and
(g)Causing the children to be a medium in any way between the parties or between the parties and any other person.
Travel
19.Either party is permitted to remove the children from the Commonwealth of Australia for the purposes of overseas travel subject to the following:
(a)The travelling party provide the non-travelling party no less than 60 days written notice prior to the proposed travel, including dates of departure from and return to Australia;
(b)The travelling party provide the non-travelling party with the following details 30 days before the date of departure:
(i)A copy of the itinerary provided by a travel agent or airline;
(ii)Accommodation details and copies of any bookings for accommodation including the names, addresses, telephone and email contact details of where and with whom the children will be staying;
(iii)Contact details for the travelling party whilst they are away; and
(iv)A copy of the children’s travel insurance certificates, which include, as a minimum, hospital and emergency medical cover, being private insurance apart from free public health care provided in the relevant country.
(c)In the event that overseas travel proposed by the travelling party falls within that party’s time and does not impact the non-travelling party’s time, consent is not required, but in the event that overseas travel proposed will impact upon the non-travelling party’s time, then written consent of the non-travelling party is required and such consent shall not be reasonably withheld;
(d)The travelling party will confirm a contact phone number for the purpose of the non-travelling party having phone or video messaging (such as Skype, FaceTime or WhatsApp communication) with the children while they are away; and
(e)In the event that the travelling party’s overseas travel falls during the non‑travelling party’s time with the children, the non-travelling party shall have make-up time for the equivalent period, as agreed between the parties in writing.
20.The children’s passports shall be retained by the mother except for any time that the father is travelling overseas with the children in which case the mother shall provide the children’s passports to the father for the time they are travelling overseas with him.
21.The parties shall do all acts and things and sign all documents necessary to renew each of the children’s passports not less than six months before the relevant date of expiry.
22.The parties shall pay equally all costs associated with the issue and renewal of a passport in the name of each child.
Miscellaneous
23.Both parties shall keep the other advised at all times of their residential and email addresses and contact telephone number and shall advise the other party within 48 hours of any change to either their residential and email addresses and telephone contact number.
24.Notwithstanding Orders 3–4, both parties are at liberty to take the children to a GP for any routine check-ups and ordinary attendances, or in the case of any emergency, without requiring the consent of the other party.
25.Each party shall keep the other advised of the names and contact details of all of the children’s treating medical practitioners, dentists and allied health professionals.
26.Each party shall notify the other within 24 hours if either or both of the children develop any illness or medical condition, any absences from school of more than one day, or the details of any attendances with any medical or healthcare practitioner, including the name and address of such practitioner.
27.Each party shall provide all authorities necessary to any medical practitioner or health professional to enable that medical practitioner or health professional to release to both parties any information or documents in relation to the children’s treatment, assessment results and other matters concerning the children’s health.
28.Each party shall notify the other if they are contacted by the children’s school/s regarding any matter and requested to collect the children due to illness or any other matter.
29.Each party shall be permitted to communicate directly with the children’s school/s, sporting bodies, and extra-curricular organisations to obtain any necessary information and/or documents about the children’s progress and this order shall constitute sufficient authority for such communication.
30.Without detracting from the restraint imposed on the mother by Order 17, each party is entitled to attend all school events and extra-curricular activities that a parent would ordinarily be invited to attend.
31.Each party shall do all reasonable things necessary to ensure that they facilitate the children participating in their scheduled extra-curricular activities during such periods that the children are spending time with them.
32.Pursuant to s 68L(2) of the Family Law Act 1975, X born 2015 and Y born 2017 be independently represented for a period of 12 months AND IT IS REQUESTED that the Legal Aid Commission of NSW arrange such independent representation and:
(a)Forthwith upon appointment by the Legal Aid Commission of NSW, the Independent Children’s Lawyer file a notice of address for service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children’s Lawyer copies of these orders and these reasons for judgment dated 26 July 2024; and
(c)The Independent Children’s Lawyer meet with the children to explain these orders; and
(d)For a period of 12 months, the Independent Children’s Lawyer monitor and assist with the implementation of these orders in a child focused way.
33.Leave is granted to the Independent Children’s Lawyer to apply to relist the proceedings on seven days’ notice regarding the interpretation, implementation and/or enforcement of the parenting orders, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
PROPERTY
34.Within 60 days of the date of these orders, the parties shall sign all documents and do all things and provide all PEXA identification and authority requirements necessary to transfer from the mother to the father her right, title and interest in the property located at E Street, Suburb F NSW (“the Suburb F property”).
35.Within 60 days of the date of these orders, the mother shall do all things necessary to discharge and refinance into her sole name the mortgage secured by the Commonwealth Bank of Australia (“CBA”) over the property located at G Street Suburb H NSW (“the Suburb H property) (“the mortgage”), and for this purpose:
(a)The balance available in the CBA Offset Account #...99 (“the CBA Offset Account”) as at the date of these orders is to be forthwith retained by the mother;
(b)The father is to pay the mother a cash sum of $160,362.41 in order to implement a 55:45 division of property in favour of the father; and
(c)If Orders 35(a) and (b) above are not sufficient for the mother to be able to discharge and refinance the mortgage into her sole name, the mother shall do all things necessary to obtain a loan to facilitate the implementation of this order.
36.If the mother is successful in discharging and refinancing the mortgage into her sole name within 60 days of the date of these orders, the parties shall do all acts and things necessary to sign all documents and do all things and provide all PEXA identification authority requirements necessary to transfer from the father to the mother his right, title and interest in the Suburb H property.
37.If the mother is unsuccessful in discharging and refinancing the mortgage into her sole name within 60 days of the date of these orders, the father shall have 60 days from the date he is informed by the mother that she is unable to discharge and refinance the mortgage, or on the expiry of time in Order 35 (whichever is sooner), to discharge and refinance the mortgage into his sole name.
38.If the father is able to discharge and refinance the mortgage into his sole name within the time stipulated in these orders, he shall pay the mother a further cash sum of $1,350,388 to implement the 55:45 division of property.
39.Should both parties be unable discharge and refinance the mortgage into their sole names within the time stipulated in these orders the parties shall do all things necessary and sign all documents necessary to place the Suburb H property on the market to be sold and the following shall apply:
(a)The father shall nominate three real estate agents local to the Suburb H area and within seven days thereafter the mother shall pick one to be retained to sell the Suburb H property;
(b)The list price of the property shall be such amount as agreed between the parties and failing agreement within 14 days of the date of appointment of the real estate agent the list price will be as nominated by the real estate agent;
(c)The sale price of the property shall be such amount as agreed between the parties and failing agreement any offer to buy the property that is at least 80 per cent of the list price shall be accepted by the parties as the sale price;
(d)The parties shall cooperate in every way with the real estate agent in relation to the marketing of the property for sale including making a key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(e)Upon agreement being reached for the sale of the property, the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;
(f)The contract of sale shall provide for completion within 30 days of the date of the contract;
(g)The proceeds of sale of the property shall be paid in the following manner and priority:
(i)To discharge the mortgage secured by the CBA over the Suburb H property;
(ii)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
(iii)Payment of the legal costs and outlays relating to the sale; and
(iv)The balance to be distributed to the mother, such that she receives 45 per cent of the net asset pool, with the remainder to be distributed to the father.
40.Pending Orders 35 to 39, the direct debits drawn from the CBA Offset Account pursuant to the orders made on 1 July 2019 shall continue.
41.Upon compliance with Orders 35 to 39 and settlement of the transfer or sale of the Suburb H property, Order 40 shall be discharged and the mother shall retain the balance of the funds in the CBA Offset Account in accordance with Order 35(a).
42.Subject to the preceding orders, the father be declared to have the sole right, title and interest in:
(a)All bank accounts and credit cards in his sole name;
(b)His interests in J Pty Ltd, Pickford Holdings Limited, Pickford Family Trust, K Pty Ltd, K Trust and Pickford (No 2) Family Trust;
(c)Any chattels, goods, furnishing and other property which are at the date hereof in his possession;
(d)All motor vehicles registered in his name; and
(e)Any monies, debentures, shares, superannuation entitlements, rollover funds or insurance policies which stand in his sole name respectively at the date hereof.
43.Subject to the preceding orders, the mother be declared to have the sole right, title and interest in:
(a)All bank accounts and credit cards in her sole name;
(b)Any chattels, goods, furnishing and other property which are at the date hereof in her possession;
(c)All motor vehicles registered in her name; and
(d)Any monies, debentures, shares, superannuation entitlements, rollover funds or insurance policies which stand in her sole name respectively at the date hereof.
44.Each party is solely liable for their own capital gains tax liability (if any) and in that regard shall pay, at any time each may be assessed to pay in the future, such capital gains tax liability as might arise from any asset already owned by a party individually, or of which a party is to be sole owner pursuant to the terms of these orders.
45.In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s 106A, a registrar of the Federal Circuit and Family Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
46.Leave is granted to the parties to apply to relist the proceedings on 14 days’ notice to deal with the interpretation, implementation and/or enforcement of the property orders, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
47.Any future application that may be filed by either party is to first be listed before Justice Altobelli if his Honour is reasonably available, subject to any recusal application.
THE COURT NOTES THAT:
A.An Independent Children’s Lawyer has been appointed for the following reasons:
a.To meet with the children and explain these orders to them;
b.To assist with the implementation of these orders in a child focused way; and
c.To monitor the implementation of these orders.
B.The Legal Aid Commission of NSW has been given access to this file via the Commonwealth Courts Portal (“CCP”) and is granted leave to view copies of documents available on the CCP.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pickford & Pickford has been approved pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders the Court has made in a dispute between two parents about the parenting of their children and about the division of their property.
BACKGROUND
The mother is the applicant in this matter (“the mother”). She is 48 years old and is currently employed as a manager at an organisation (on secondment from another organisation). The father is the respondent in this matter (“the father”). He is a 50-year-old finance professional and a Partner and Director of a financial services firm. He is also the current chairman of the firm’s Finance Committee. The parties met in late 2012, commenced cohabitation in early 2013 or 2014 and married in 2014. They separated in late 2018 and divorced in 2020.
There are two children of the marriage, X who is nine years old (“X”) and Y who is six years old (“Y”) (“the children”). Pursuant to consent orders made on 7 June 2021 the children spend time with the father each alternate weekend from 2.00 pm or the conclusion of school on Friday to the start of school on Monday, and each alternate Thursday night from 2.00 pm or the conclusion of school on Thursday to the start of school on Friday, with additional time during school holidays. Orders were made by consent on day four of the final hearing (16 February 2023), specifically regarding the children’s time with the father in the Term 1 2023 April school holiday period.
There are two properties from the relationship including G Street, Suburb H (“the Suburb H property”) and E Street, Suburb F (“the Suburb F property”). Updating valuations for these properties were conducted prior to the recommencement of the final hearing in November 2023. There are further assets made up of cash, shares, trust interests, vehicles and other household or personal items.
This matter has been before the Court since July 2019. Interim parenting orders were made by a Senior Registrar on 29 July 2019, and varied on 20 May 2020. The parties then came before Rees J for an interim hearing on 30 July 2020, and her Honour’s reasons for judgment were delivered, and interim parenting orders made, on 11 August 2020 (Pickford & Pickford [2020] FamCA 656). These orders were amended in chambers by a Registrar by consent on 15 December 2020, and then again amended in chambers by Ainslie-Wallace J by consent on 7 June 2021, which are the operative interim orders outlined above at [3].
The final hearing of this matter came before me for 11 days from 13–16 February 2023, 13‑16 November 2023, 8–9 January 2024 and 2 February 2024. Closing submissions proceeded by way of written submissions to avoid the matter becoming part-heard for the fourth time. The mother was represented by counsel and the father was represented by senior counsel, and the Independent Children’s Lawyer was an experienced family law solicitor. The Court notes that there was a change in the mother’s legal representation over the course of the proceedings in this Court – once in January 2022 and once in November 2023 after the second tranche of the final hearing and prior to its recommencement in January 2024.
On 4 March 2024, the mother filed an Application in a Proceeding seeking to receive a partial property settlement. In his Response to an Application in a Proceeding filed 7 March 2024, the father opposed the mother receiving the full amount requested, sought to discharge the Independent Children’s Lawyer, and sought to reopen the proceedings by having the single joint expert interview the children as to their views and their attachments to the parties. On 8 March 2024 the Court made orders in accordance with the mother’s Application in a Proceeding, which will be discussed later in these reasons for judgment. The father thereafter did not press the remainder of the orders sought in his Response.
The Independent Children’s Lawyer was discharged on 12 April 2024 with the consent of all parties. It was agreed that the Independent Children’s Lawyer’s written submissions filed 27 February 2024 would still be read by the Court.
On 7 June 2024, the father filed an urgent Application in a Proceeding seeking to reopen the proceedings to adduce further evidence, alleging that since the conclusion of the final hearing the mother has been breaching the orders in place. The matter once again came before me on 10 July 2024 to deal with this issue, where senior counsel for the father and counsel for the mother both made submissions and I reserved my judgment. The father’s application will be dismissed, and reasons will be provided later in these reasons for judgment. The Court will nevertheless consider the evidence contained in the father’s affidavit filed 7 June 2024 as it is relevant to the issues before the Court. The mother had the opportunity to respond to this material and filed her own affidavit on 1 July 2024 and the Court will similarly consider this evidence. Despite submissions by the father’s senior counsel to the contrary, this is the appropriate way to proceed in the circumstances of this long-running case, as will be explained later in these reasons for judgment.
In the interests of full transparency, another event is noted by the Court. In late June 2024, a law clerk from ATW Family Lawyers, the law firm representing the father in this matter, joined my chambers as a legal associate (“the Legal Associate”). To avoid any conflict, an information barrier has been put in place between the Legal Associate and this matter. All discussion, communication and correspondence about this matter has occurred in the absence and without the input of the Legal Associate. The physical files pertaining to this matter were moved to a separate room. The Legal Associate was instructed not to open or view any email, electronic file or document pertaining to this matter. By late June 2024 an advanced draft of these reasons had already been prepared. The Legal Associate had no input into this document. The Court is confident that this recent event will not prejudice either party.
THE PARENTING PROCEEDINGS
The competing proposals
In her amended Minute of Order received on 8 January 2024 (Exhibit A7), the mother proposes that all previous orders and injunctions be dismissed, for herself to have sole parental responsibility (with provisions to consult the father), and for the children to live with her and spend time with the father each alternate weekend from 2.00 pm or the conclusion of school on Friday until 9.00 am or the start of school on Monday, and half of school holidays. During cross-examination, the mother explained that another overnight mid-week in the alternate week would be disruptive, but conceded that if this were added to the weekend block period, the children could spend four nights with the father and it would not be as disruptive (Transcript 13 November 2023, p.45 lines 40–46). She also seeks an order restraining the father from causing the mother and her residence to be under any form of surveillance, as well as other restraints against the parties and third parties regarding denigration, physical discipline, and discussing these proceedings or the mother’s friend Mr B (“Mr B”). There are additional orders regarding special occasions, changeover, communication and travel.
This proposal differs to the mother’s original Minute of Order dated 15 February 2023, where she sought equal shared parental responsibility (except in relation to medical issues), and that the children live with her and spend time with the father each alternate weekend with an additional overnight in the other week.
In his amended Minute of Order received on 8 November 2023, the father proposed equal shared parental responsibility and for week-about time with the children, including half of each school holiday period, with additional time on special occasions. However, in his further updating affidavit filed on the first day of the second tranche of the final hearing, the father indicated that he is now seeking an order for sole parental responsibility (the father’s affidavit filed 13 November 2023, paragraph 16), which is reflected in his further amended Minute of Order received 8 January 2024 (Exhibit R19). The Court views the father’s earlier proposal for equal shared parental responsibility as unfeasible in the circumstances of this case and questions his pursuit of these orders well into the final hearing. He seeks orders restraining physical discipline of the children and restraining either party discussing Mr B with the children. He further proposes that the mother be restrained from permitting Mr B communicating with or being in the presence of the children or permitting him to attend the Suburb H property. He also proposes that X attend an interview at M School (“M School”) in 2024, and for Y to attend any interview at L School (“L School”) required for the purposes of the application for enrolment. A notation was made on 16 November 2023 indicating that the mother consented to the father doing all things necessary at his own cost to facilitate the children’s enrolment applications, but she did not consent to the children attending any interviews, although an order was later made by consent on 21 December 2023 indicating that the mother agreed for X to attend an interview at M School.
In the Independent Children’s Lawyer’s proposed Minute of Order received on 2 February 2024, he proposes that the mother have sole parental responsibility for the children, with provisions to consult the father. He proposes that the children live with the mother and spend time with the father in Week 1 from after school or 3.00 pm on Thursday until the commencement of school or 9.00 am on Monday, and in Week 2 from after school or 3.00 pm on Thursday until the commencement of school or 9.00 am on Friday, as well as half of school holidays and additional time on special occasions. He further proposes that both parties contact a separate registered psychologist with experience in dealing with high conflict family law matters, to participate in therapeutic counselling. There are additional orders regarding passports, overseas travel, communication and standard restraints.
The evidence before the Court
In support of her case, the mother relied upon the following material:
(a)Outline of Case Document filed 10 February 2023;
(b)Amended Initiating Application filed 5 December 2022;
(c)Her affidavit filed 3 February 2023;
(d)Her updating affidavit filed 16 October 2023;
(e)Her further updating affidavit filed 10 November 2023;
(f)Her affidavit filed 14 November 2023;
(g)Her affidavit filed 4 March 2024;
(h)Her affidavit filed 1 July 2024;
(i)Affidavit of Mr B filed 2 February 2023;
(j)Affidavit of Ms N filed 2 February 2023;
(k)Affidavit of Ms N filed 10 November 2023;
(l)Affidavit of Ms O filed 2 February 2023;
(m)Financial Statement filed 10 February 2023;
(n)Written submissions filed 26 March 2024; and
(o)Various documents tendered during the proceedings and marked as Exhibits A1–A34.
In support of his case, the father relied upon the following material:
(a)Outline of Case Document filed 8 February 2023;
(b)Response to Initiating Application filed 1 July 2019;
(c)His affidavit filed 2 February 2023;
(d)His updating affidavit filed 27 October 2023;
(e)His further updating affidavit filed 13 November 2023;
(f)His affidavit filed 7 March 2024;
(g)His affidavit filed 10 April 2024;
(h)His affidavit filed 7 June 2024;
(i)Affidavit of Ms P filed 1 February 2023;
(j)Affidavit of Ms Q filed 1 February 2023;
(k)Affidavit of Ms Q filed 27 October 2023;
(l)Affidavit of Mr R filed 1 February 2023;
(m)Financial Statement filed 2 February 2023;
(n)Written submissions filed 10 April 2024; and
(o)Various documents tendered during the proceedings and marked as Exhibits R1–R32.
In support of his case, the Independent Children’s Lawyer relied upon the following material:
(a)Single Joint Expert Report of Dr C dated 28 April 2020;
(b)Proposed Minute of Order dated 12 February 2023; and
(c)Written submissions dated 26 February 2024.
The parties tendered three joint balance sheets during the proceedings which were marked as Exhibits C1–C3. During the final hearing, the parties’ legal representatives were told that any document referred to during cross-examination would be considered to be tendered. These documents, which have subsequently been referred to in these reasons for judgment, have been marked as Exhibits C4–C13.
Those required for cross-examination included the mother, the father, and the single expert Dr C (“Dr C”). The mother’s witness Mr B was cross-examined, as well as the father’s witnesses, Mr R (“Mr R”), Ms P (“Ms P”) and Ms Q (“Ms Q”). On the second day of the hearing in February 2023 the mother’s solicitor, Mr S, was cross-examined regarding whether the mother had agreed to a particular version of orders that was sent to the other parties and this was taken to be evidence in the father’s case.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
There are allegations of behaviour that coerces and controls in this matter. The words “coerces” and “controls” can be found in the definition of family violence as set out in s 4AB(1) of the Act. However, these words are not defined in the Act.
There have been a number of authorities, both in Australia and in comparable jurisdictions, in which these words have been considered both separately and in combination (see, for example, Illgen & Yike [2018] FamCA 17; Ramzi & Moussa [2022] FedCFamC2F 1473; and F v M [2021] EWFC 4).
It is clear from these authorities that context is important. As stated by McClelland DCJ and Campton J in Carter & Wilson (2023) FLC 94-129 (“Carter & Wilson”) at [17]:
The mere fact that [a party’s conduct] could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence within that subsection.
(Emphasis in original)
The combination of the wide definition set out in s 4AB(1) and the non-exhaustive list in s 4AB(2) conveys the legislative intention of a broad category of potentially unacceptable conduct (Carter & Wilson at [75]). These wide terms catch behaviour that could be seen as either undesirable or necessary, depending on the context (Carter & Wilson at [71]). Therefore, findings of fact need to be made and evidence evaluated in order to contextualise the conduct of the perpetrator (Carter & Wilson at [71] and [84]). A finding that a party has engaged in coercive and/or controlling behaviour will generally require a description of what was said and done and the context in which that conduct occurred (Helbig & Rowe and Ors [2016] FamCAFC 117 at [91]). The more subtle or ambiguous the behaviour is, the more detailed such an enquiry and evaluation must be (Carter & Wilson at [84]).
It must also be stated that an intention on the part of the perpetrator is not a necessary component of coercive or controlling behaviour under s 4AB of the Act (Carter & Wilson at [80]).
In parenting matters, allegations of coercive and controlling violence, or any other forms of violence, have particular significance for decision-making. The focus is not only on the conduct outlined in s 4AB and described above, but also on the impact of that conduct on the child/ren. The definition of family violence, which includes behaviour that coerces or controls, is explicitly referred to in s 60CC(3)(j) and (k) of the Act as part of the additional considerations for the Court to consider when determining what is in a child’s best interests. However, it is also relevant when assessing other considerations including the nature of the parents’ relationship with the child (s 60CC(3)(b)), the extent to which the parents have taken or failed to take the opportunity to participate in making major long-term decisions about the child, or spend time and communicate with the child (s 60CC(3)(c)), the capacity of each parent or any other person to provide for the needs of the child (s 60CC(3)(f)), and the parents’ attitude to the child and to the responsibilities of parenthood (s 60CC(3)(i)). Coercive and controlling violence can be a lens through which to assess the above considerations and consider the conduct and attitude of the parents in a more nuanced way. However, the Court must also keep in mind the flow-on effects that coercive and controlling violence can have on children, the impact of which can be considerable, ongoing and long-lasting. Judicial experience teaches that, often, family violence casts a giant shadow such that its impacts are experienced long after the conduct in question. The shadow is cast over the children, as well as the victim.
Important observations
Both parties were frequently unresponsive during cross-examination. Both gave many vague and unresponsive answers. Counsel had to re-ask questions multiple times to get a clear answer from both parties who often had to be reminded to simply listen to the question and answer the question that was asked. Both appeared frustrated and exasperated at times. Sometimes the mother found it hard to recall precise details, especially in relation to financial issues and the drafting of legal documents in her case, even in the relatively recent past. The father was a vocal advocate in his own cause. He was frequently combative and rarely conceded to propositions put to him by the mother’s counsel. He regularly found it difficult to directly answer a question and often wanted to expand his responses with more context. However, the father was better able to recall details and facts than the mother and provide an accurate chronology of events. The Court acknowledges that this final hearing would have escalated both parties’ emotions and the tension between them, and that both may have begun to experience fatigue throughout their examinations. Nonetheless, there is no doubt that the manner in which each party gave evidence contributed to the length of this hearing.
The evidence before the Court established unequivocally that the parties in this matter are in a relationship characterised by a lack of trust, ineffective communication, high conflict, and a power struggle. Curiously, at paragraph 23 of his written submissions the father contends that this matter should not be described as being one of “high conflict”. He sets out reasons for this, including that “there is a lack of any real evidence of difficulties at changeover and of detriment to the children” (paragraph 307), “‘behind the scenes’ the parents are successfully dealing with each other on a day to day basis in relation to the children” (paragraph 311), disagreement does not equate to high conflict (paragraph 311), and that the mother is purposely creating a narrative of disputation even when the facts say otherwise (paragraph 140). The Court disagrees with the father’s contention, and views this as an example of the father’s lack of insight into, and minimisation of, the salient issues in this matter. This litigation commenced in May 2019 and will conclude (at least for the time being) with these reasons for judgment delivered over five years later. There were 30 Court events involving an appearance by or on behalf of the parties. Seven Applications in a Proceeding were filed. Four interim hearings were held (including the two that occurred after the conclusion of the final hearing). Thirty-seven orders of this Court were made. The father filed an Application for Review on 20 July 2020 (in which Rees J increased the time he spent with the children, referred to at paragraph 29(d) of the father’s written submissions) and a Notice of Appeal on 8 September 2020 (which was resolved via consent orders on 7 June 2021). The final hearing was part-heard on three occasions. The matter was originally listed for final hearing with an estimated hearing time of four days. The parties’ trial plan received on 7 November 2023 indicated that the second tranche of the hearing could be contained within four days, including closing submissions. In reality, an additional three days were required on top of this. The matter ran for 11 days in total. After the conclusion of the final hearing, the mother filed an Application in a Proceeding on 4 March 2024 for a partial property settlement. In his Response to an Application in a Proceeding filed 7 March 2024, the father opposed the mother’s application and sought orders to effectively reopen the evidence seeking for Dr C to interview the children to obtain their views and assess their attachments to the parties. This proposal was later abandoned. On 7 June 2024 the father filed an Application in a Proceeding seeking to reopen the proceedings to adduce further evidence regarding the mother’s alleged recent breaches of orders. As stated above at [9], this application has been dismissed. The parties’ last Costs Notices indicated total expenditure of $630,385.29 by the mother and approximately $770,000 by the father. And yet, there was no particular complexity associated with the issues raised by the parties in this case. By their behaviour, including how they conducted this litigation, both the mother and the father manifested attributes of high, indeed intractable, conflict. The Court acknowledges, however, that other factors contributed to this protracted litigation including the late filing of documents (especially by the mother), and inevitable Court delays outside the control of the parties.
Dr C, in his report dated 28 April 2020 (“the Report”), explained that the mother is of the view that the father is “still an overbearing, controlling person who has limited familiarity with the children” and the father is “still strongly of the view that [the mother] is emotionally vulnerable”. Apart from the mother’s contention that the father has limited familiarity with the children, the observations of Dr C are consistent with the Court’s view after hearing all the evidence.
There were significant inconsistencies in some of the mother’s evidence between the first and second tranche of the hearing, which alludes to the mother’s continued negative perception of the father. For example, when speaking about the father in the first tranche of the hearing the mother said, “I think he’s a good parent” (Transcript 13 February 2023, p.17 line 46). However, in the second tranche of the hearing she said, “he is a poor parent” and she was just being “polite” and “nice” when she called him a good parent (Transcript 13 November 2023, p.45 lines 5–26). This demonstrates the mother’s declining goodwill towards the father, as well as the worsening relationship between them, since the commencement of these proceedings. This does not bode well in terms of a future civil co-parenting relationship.
Dr C in the Report described the father as having “problems with seeing things disproportionately” which “reflects a quite self-absorbed and dominating aspect to his personality”, while the mother was described as vulnerable to overbearing people which “may extend to her perceiving bullying when none was intended”. This too is consistent with the Court’s view after hearing all the evidence. In the case of the father, these characteristics inexorably contributed to a significant lack of insight into the needs of the children, and of how his actions have the potential to adversely affect them. In the case of the mother, the Court’s findings below about the father’s coercive and controlling behaviour may also provide a context in which to better understand the manner in which she gave her evidence, especially in cross-examination.
In the Report, Dr C expressed that the children have not been exposed to harm other than that arising directly from the parties’ mutual distrust, and that the parties’ relationship is not going to “be repaired to a reasonable level of trust all that easily”. The Court agrees – indeed this was palpably obvious during the hearing – but with the caveat that the parties’ mutual distrust and poor relationship occurred in the context of the father’s coercive and controlling behaviour towards the mother, examined below. The parental conflict must be conceptualised within that paradigm. This parental conflict is in fact the greatest risk of harm to the children, indeed more than any other issue raised by the parties. There is no doubt that the children have been negatively impacted by the parties’ conduct. This context provides a lens through which to understand the parties’ behaviour, proposals and evidence.
The witnesses’ evidence
Both parties called witnesses in support of their case.
Ms P, the mother’s cousin, gave evidence in the father’s case. The Court does not have the same confidence in her ability to recollect historical events as she seemed to have herself. Any evidence she contributes to the “slap” incident (in which it is alleged Mr B slapped X) is second hand. The Court notes her evidence but ultimately it does not assist the Court in deciding this case.
Ms Q, the father’s neighbour, was the final witness in the father’s case. She enjoys a good relationship with the children and is a great support to them while they are spending time with the father. The Court formed the impression that Ms Q regards herself as an advocate for the children. She agreed with the mother’s counsel’s proposition that she feels that it is important to advocate for X. However, Ms Q failed to recognise that she is, in effect, advocating for the father’s case. She may have minimised the extent to which the father has discussed these proceedings with her, and it is likely that she has unwittingly accepted the father’s narrative about the mother.
Ms Q’s cross-examination about X’s story about a sporting incident is insightful. In her affidavit filed 1 February 2023, Ms Q described a conversation between her and X where X told her he is “retired” from the sport because he had an accident at a competition where he “cut his head open” and “there was blood everywhere”. This is concerning for two reasons. Firstly, Ms Q appears to have believed this story unequivocally, with no discernment or attempt to reality-test the story. However, the Court acknowledges that in response to the proposition put to her by the mother’s counsel that the incident is simply not true, Ms Q said “if it’s not true then it’s not true, but I feel it would be wrong of me, for a child to tell me they have been hurt and to not say anything to a parent about it” (Transcript 16 November 2023, p.285 lines 23–24). Secondly, it suggests that X can readily create stories which have little factual basis. Indeed, this incident is not referred to in either parties’ evidence. If X felt as though he could fabricate a story such as this and tell it to a person who he perceived to be aligned to the father’s case, that is, someone who he perceives is receptive to hearing a negative story about the mother, this could suggest he is far more embroiled in this litigation than the Court previously thought. The father was cross-examined about his discussions with Ms Q about the sporting incident, and his independent knowledge about it. The Court found his answers to be evasive and was left with a clear impression that he knew far more about this than he disclosed.
Mr R also gave evidence in the father’s case, and Mr B gave evidence in the mother’s case. Their evidence will be discussed below in relation to the issue of whether Mr B poses a risk of harm to the children and whether an order for an injunction restraining contact between the children and Mr B is necessary.
The single joint expert’s evidence
Dr C made a number of recommendations in the Report, although the Court notes that the Report was approximately four years old at the time of the final hearing. Dr C recommended, bearing in mind the parties’ entrenched mutual distrust, the children’s strong attachment to the mother and her unimpaired parenting, and X’s sensitivity to tension between the parties, that a modified version of the mother’s proposal (as at April 2020) would be most suitable. This would involve the children spending time with the father gradually increasing over a period of about one year to a three- or four-night block each alternate weekend with an overnight in the other week, and half of school holidays. He further recommended orders to the effect that Mr B have nothing to do with the children and that there be an injunction preventing him from visiting the mother’s home where she resides with the children at any time, including when the children are elsewhere. He also recommended that the mother continue with her current therapies to keep the impact of her mental health on the children to an absolute minimum.
Dr C was cross-examined on 9 January 2024 and 2 February 2024. He frankly acknowledged the limitations of his expert evidence because of the age of the Report. He did not have the ability to meet with the parties and the children and to observe their interactions. He did not have the opportunity to interview the key witnesses in the parties’ cases. He explained in cross‑examination that it was unusual that he was not asked to prepare an updated report. He suspected, and the Court tends to agree, that the extreme cost of these proceedings to both parties, and the extreme difficulties they encounter in reaching agreement, may explain the absence of an update. Nonetheless, there is no doubt that Dr C had been briefed with all of the relevant contemporary documents, as well as the transcripts of the evidence before he himself gave evidence.
In his written submissions filed 10 April 2024, the father submitted that the Report is “useful at a point in time but its utility becomes more and more limited as time and the parties’ history moves on and the children develop” (paragraph 137). Significant caveats to the Report included not only its antiquity, but also the fact that the children’s views and wishes have not been put before the Court and that “there were certain matters only ‘to the forefront of his mind’, to which his Report was essentially directed as those were the matters which presented as most relevant at that early time” including the mother’s mental health, and the issues of domestic violence and Mr B. The father submitted that the Court will need to be “quite guarded” about some of Dr C’s evidence as “a number of aspects of his evidence as (sic) just clearly incorrect or misguided”, such as the assumption that the protracted proceedings reflect the level of disputation between the parties, and his opinion about the evidence of Ms Q in circumstances where he has not met or spoken to her. Regarding the latter complaint, Dr C acknowledged that it is a matter for the Court to consider Ms Q’s evidence and whether to accept it.
Despite submissions made on behalf of the father to the contrary and acknowledging the inherent shortfalls of a dated single joint expert report, the Court finds that the evidence of Dr C was sufficiently insightful, useful and persuasive. Relevant observations will be referred to in these reasons for judgment.
Discussion
Has there been family violence in this case? Is so, what were the consequences of this on the children, and on the parent/victim?
In his written submissions filed 10 April 2024, the father suggests that “family violence is fortunately not one which will trouble the Court”. The Court, respectfully, disagrees. The mother alleges that there has been considerable family violence in the form of coercive control, emotional abuse, litigation abuse, financial control, and one instance of physical abuse. There are a multitude of allegations and examples referred to in the mother’s affidavit, but the Court will primarily confine itself to discussing the allegations contained in the mother’s written submissions filed 26 March 2024, making reference to affidavits where relevant. The father denies all allegations of family violence and puts forward various explanations and justifications to refute these allegations. This issue clearly requires the Court’s consideration and the allegations will be discussed below.
The mother describes being subjected to one incident of physical abuse in late 2018. There was an altercation between the parties where the father asked the mother for a spare key to their house, and she refused to provide it and attempted to shut the bedroom door. The father prevented this by putting his foot between the door and the door frame and attempted to push the door open while the mother pushed back against the door. This allegedly caused bruising to the mother. The father was charged and a provisional Apprehended Violence Order (“AVO”) was issued in late 2018, but the charge and AVO were dismissed in early 2019 after criminal proceedings at the local court. It was the magistrate’s view that it was not in the father’s mind to formally inflict violence, and that the injury had been caused by both parties pushing forcefully on the door for different reasons. The magistrate stated that “[the] evidence contained in these proceedings does not relate to” a fear of immediate or continued violence (Exhibit C4). The Court notes that during cross-examination the father stated that the magistrate’s findings were “not correct” and that “he’s wrong” and explained instead that the mother “was throwing herself into a door” (Transcript 8 January 2024, p.361 lines 6–38). The father’s inability to concede that both parties may be mutually responsible for this incident after receiving the magistrate’s findings resonates with Dr C’s observation of him being overbearing and controlling and provides yet another example of his lack of insight. While there was a physical altercation between the parties, the Court cannot find, based on the outcome of those criminal proceedings and the evidence before it, that the mother has been subject to physical abuse by the father. Even so, the mother’s experience of this event must not be minimised as, from her perspective, it was yet another event of violent and abusive behaviour. The fact that there was no crime, and that the AVO was dismissed, does not detract from the mother’s experience.
The mother alleges that the father has been emotionally abusive by infantilising her. In her written submissions filed 26 March 2024, the mother says that this is evident “in the way [the father] controlled” her, as well as the father continuing to control her by seeking an injunction “barring her from having contact with her friend, over 18 years, [Mr B]”. The Court notes that the issue of emotional abuse was not raised in any of the mother’s written or oral evidence, nor the cross-examination of the father. The father asserts that this allegation “goes far beyond any view of the evidence” (the father’s written submissions, paragraph 361). The Court cannot find, based on the mother’s vague assertions and the limited evidence before it, that the father has been emotionally abusive. All the Court can do, however, is to once again recognise that this is an assertion as to how the mother experienced the father, irrespective of whether her concerns were framed in a particular manner in the evidence in her case.
The mother alleges that the father was financially controlling during their relationship. She states that he took “complete control of our financial affairs” (the mother’s affidavit filed 3 February 2023, paragraph 146). For example, on their honeymoon he insisted on “carrying all the cash and cards” which meant she had to ask him for money to buy anything (the mother’s affidavit filed 3 February 2023, paragraph 147). She asserts that the father said she should sell the Suburb T property and contribute the entire proceeds of sale to the purchase of the Suburb H property, while refusing to sell the Suburb F property, meaning that she had “disposed of all of [her] pre-marital assets as they were now intermingled with the joint marital assets, but his were not” (the mother’s affidavit filed 3 February 2023, paragraph 152). She describes the father checking the credit and debit card transactions every night and questioning her about what had been bought (the mother’s affidavit filed 3 February 2023, paragraph 161). The Court notes that little to no other evidence was put before it on this issue, including in cross‑examination. The father in his written submissions drew attention to the fact that the mother had access to the Commonwealth Bank of Australia offset account (“the CBA offset account”) during the marriage, joint financial decisions were made, and they held joint accounts (paragraph 144).
The Court does not accept that the father was financially controlling during the relationship. It seems more likely that the parties mutually agreed that the father would be responsible for managing the family’s financial affairs. Further, simply because the mother says she was not always informed about every transaction or did not “know necessarily everything” (Transcript 16 February 2023, p.233 lines 6–15), it does not mean that the father was being financially controlling. Nonetheless, the Court again recognises that the mother’s evidence provides insight into how she experienced the father and his conduct, irrespective of whether such conduct can be characterised as controlling or coercive.
The Court finds that the parties made equal, albeit different, contributions during the marriage. The inferences drawn from the father’s submissions improperly elevate his greater financial contributions and his non-financial contributions over the financial and non-financial contributions made by the mother.
Post-separation contributions
There is no dispute that the mother has had the primary care of the children since separation, with the children spending four nights per fortnight and half of school holidays with the father.
Post-separation, the mother continued to live in the Suburb H property with the children after being granted exclusive occupation of the property pursuant to interim consent orders made on 1 July 2019, with the mortgage continuing to be paid from the CBA offset account. The father began residing in the Suburb F property. In late June 2019, the mother cancelled the direct debit from the CBA offset account for the payment of the rates for the Suburb F property, without notice or discussion with the father. The father has since been responsible for meeting this cost from his own income. The father submits that while the benefit to the mother of occupation of the Suburb H property is not capable of a specific separate calculation, it is in and of itself substantial. The Court agrees that this has been of benefit to the mother (especially when the father has been making payments for the Suburb F property from his own funds), but also recognises that it was a decision made by consent between the parties presumably because they considered it just and equitable and in the best interests of the children.
The father submits that he has made substantial post-separation contributions through the CBA offset account, as its funds have continued to be withdrawn from the account in accordance with orders made on 1 July 2019, as well as for additional expenses as agreed between the parties, for the post-separation welfare of the mother and the children. The mother contends that she sometimes uses her own funds to “care for the children and provide them their basic needs” as the father “does not always consent to the expenses” being met from the CBA offset account. The father asserts that the funds in the CBA offset account were depleted by $931,834.88 between December 2018 and the end of the final hearing in February 2024, and that this account is likely to be almost completely exhausted by the time this judgment is delivered. As stated above at [222], the Court has been informed that the current balance of the CBA offset account is $319,905.62. The father incorrectly characterises the figure of $931,834.88 as a post-separation contribution. In circumstances where the father stopped making payments to the CBA offset account at separation, payments made from the account were for the care of the children or the mortgages and utilities relating to jointly owned properties, where both parties contributed funds to the account, and where this amount has already been accounted for as a contribution during the marriage, the Court does not view this as a “substantial” post-separation contribution made by the father. The Court does, however, acknowledge the father’s greater financial contribution to the CBA offset account during the marriage with the consequent benefit to the family after separation.
The father concedes that he stopped making payments into the CBA offset account at separation and instead contributed his income and share dividends into the J Pty Ltd bank account, including a CBA term deposit in its name. He submits this is a “very significant introduction of an asset onto the balance sheet, un-matched by the wife”. At paragraph 162 of his affidavit filed 27 October 2023, he deposes that the total deposits into that account amount to $225,971.58. This value is now $252,804 (item 9 on the balance sheet). The value of the CBA term deposit is currently $1,100,000 (item 9A on the balance sheet). The father also made post-separation contributions to his superannuation in the amount of $362,446 (the father’s written submissions, paragraph 445). There was no challenge that the father made these post‑separation contributions.
The issue for present purposes is how the father’s post-separation financial contributions should be assessed having regard to the financial and non-financial contribution the mother has made in the post-separation period. In assessing contribution, the capacity of one spouse to receive post-separation income needs to be placed in context. In Trask & Westlake (2015) FLC 93-662 at [15] the Full Court stated:
Central to his Honour’s assessment of the parties’ respective post-separation contributions are the findings to the effect that the husband had arrived at his position with Company E by dint of his talents, dedication and hard work but also by dint of the contributions made by the wife across the years preceding that employment. The years of cohabitation had embraced roles for the parties agreed between them that had led them to the point where one of them, the husband, received tangible recognition of, as his Honour put it, the “experience, knowledge and opportunities he had obtained in his earlier employment” (at [84]). The contributions of the wife are much less tangible. The lack of tangible recognition, or the fact that they are not susceptible to a dollar calculation, does not render them less important.
The Court accepts that this principle must also recognise that it was a short relationship and thus the mother’s contribution in this regard was arguably less given that the father’s skills were established by the time they met. Nonetheless, a reasonable inference on the facts of this case is that the mother’s non-financial contribution as, for example, homemaker and parent, enabled the father to continue to exercise and develop the professional skills that he already had.
The Court finds that the father made a significant post-separation financial contribution of $1,352,804 (items 9 and 9A of the balance sheet), as well as contributions to his superannuation of $362,466 and an incidental and incalculable contribution in the form of the mother having the exclusive occupation of the Suburb H property. He also made a post-separation non‑financial contribution by caring for the children four nights per fortnight. Conversely, the mother made a relatively minor financial contribution by occasionally using her own funds to provide for the children’s needs, but a significant non-financial contribution in having the primary care of the children.
In essence, the diverse contributions of the parties before and after separation were similar and they continued to adopt the roles they assumed during the marriage – the father made a greater financial contribution, and the mother made a greater non-financial contribution by continuing to be the primary carer of the children. Any logical rationale for assessing the father’s contribution in the post-separation period as being greater than the mother’s post-separation contribution entails placing a greater value on his contribution as compared to the mother. There is danger in doing so as it might elevate his financial contribution over her financial and non-financial contribution. This is, however, inevitable in this case because of the significant amounts involved and their presence on the balance sheet. The father’s contribution in the post‑separation period will thus be assessed as being higher than that of the mother.
Overall assessment of contributions
The mother’s submissions about contributions were confusing, vague and quite unhelpful. In her Outline of Case Document filed 10 February 2024, she stated her contribution to be 10 per cent, and the father’s to be zero per cent. The Court infers this to mean that her contribution is 10 per cent greater than that of the father. However, she goes on to state that there should be a 15 per cent adjustment in her favour for future needs, and an overall division of 60:40 in her favour. These percentages do not make sense when taken together. Her written submissions did not provide any clarity, other than to say that there should be an overall adjustment of 15 per cent in her favour. Similarly, her amended Minute of Order dated 8 January 2024 proposes that the father pay her a cash sum which would see her receive 65 per cent of the net asset pool. However, it is not clear whether these percentages relate to her contribution, or an adjustment sought under s 75(2). This makes the Court’s consideration of the mother’s proposal difficult, but the Court will do the best it can on the evidence before it.
In his Outline of Case Document filed 8 February 2024, the father stated his contribution to be 65 to 70 per cent, compared to the mother’s contribution of 30 to 35 per cent, which is also reflected in his Minute of Order dated 8 January 2024. In his written submissions, however, the father asserts that contributions should be assessed as 85:15 in his favour, justified by the evidence and cross-examination of both parties, and considered against the backdrop of their short marriage and the size of the asset pool.
The mere fact that this was a relatively short relationship does not necessarily exclude the application of a holistic approach to the assessment of contribution. The father’s identifiable, quantifiable financial contributions have the potential to obscure the not-so-easily identifiable non-financial contributions of the mother. The Court accepts that it is clear the father made a greater initial financial contribution, and accepts that, viewed in totality, he made a greater financial contribution during the marriage and post-separation. The mother, on the other hand, made an undeniably greater non-financial contribution during the marriage and post-separation. While the Court acknowledges the father’s greater initial and post-separation financial contributions, a conclusion of equality of contribution during the marriage remains because of the mother’s financial and non-financial, direct and indirect contributions.
The Court notes the mother’s argument at paragraph 134 of her written submissions that her contributions during the marriage and post-separation were made more arduous, necessitating a greater property adjustment in her favour (see Kennon & Kennon (1997) FLC 92-757). This argument was not raised in any of the mother’s written or oral evidence, and no fulsome explanation was provided in her written submissions. The Court declines to make any adjustment in its assessment of contributions based on this claim.
Given the Court’s findings above, and the modified approach taken by the Court towards the division of property in short marriages where “such a sum by one party at the outset has much more significance than it would have in the case of a marriage of long duration” (ElKalza & El Kalza (1982) FLC 91-200 at 77,055), the Court recognises the father’s significantly greater initial financial contribution, his greater post-separation financial contribution, and the parties’ equal contributions during the marriage, and assesses contribution as 70:30 in the father’s favour.
An adjustment under s 75(2)?
Based on the above at [253], the Court assumes that the mother submits she should receive a 15 per cent adjustment under s 75(2). She submits that she has the primary care of the children, she will have additional expenses if she cannot retain the Suburb H property, the father is in a superior financial position, and she works part-time and is unlikely to return to full-time work in the near future while the children are still young. Curiously, while she maintained throughout the proceedings that her mental health is under control and not a salient issue, she also submits that she “has a vulnerability if she suffers a relapse in her mental health that will impact on her future earning capacity”. In cross-examination Dr C accepted that Dr Wilson did not think the mother had suffered from a relapse for a long period but did not rule out the risk of relapse in the future (Transcript 2 February 2024, p.513 lines 32–38). Dr C was of the opinion that the mother manages her mental health well, and that if she does ever suffer a relapse “it will be very brief, she will bring herself for very early treatment, treatment response will be almost immediate…” (the Report, p.53). The Court accepts the evidence of Dr C and rejects the mother’s contention that a future mental health relapse will impact her earning capacity and is of the view that the mother has both the physical and mental capacity to maintain appropriate gainful employment.
In contrast, the father submits that the mother should receive only a 5 per cent adjustment. He argues that both parties have the capacity for gainful employment and the mother has the capacity to return to full-time work but concedes his ability to earn a far greater income than the mother. He caveats this by explaining he must retire from his financial services firm at the age of 60 (he is currently aged 50), and he will thereafter not have the capacity to earn the same high income. The Court takes this into account. He points to the fact that the mother has re‑partnered but has not disclosed the circumstances, financial or otherwise, of their relationship. He also pays child support assessed at $1,643 per month.
The Court would have been greatly assisted by receiving more information about the mother’s new partner. It is accepted that they have been in a relationship for “a couple years” and that they have gone on holidays together with the children (Transcript 16 February 2023, p.216 lines 24–27). The mother stated that the children know her partner as her boyfriend, but that they have not “discussed long term” (Transcript 16 February 2023, p.216 lines 38–40). She denied that she has not discussed the long term due to concerns as to what it might mean in these proceedings (Transcript 16 February 2023, p.216 lines 42–44). She explained that when they go on holidays together, they equally share the costs (Transcript 16 February 2023, p.214 lines 33–35). It is unclear whether her partner provides her with any financial support, or whether they intend on continuing their relationship long-term. The Court surmises that her partner could potentially provide her with financial support in the future but can make no concrete findings that would alter the assessment of future needs.
The Court recognises in a general sense as a s 75(2) factor that there is some uncertainty about whether, and if so in what amount, the father may incur taxation or other imposts arising from how he has structured assets and income distributions either during the marriage, after separation, or in implementing these orders. This is duly considered, noting that the uncertainty is self-imposed.
The parties’ proposals are diametrically opposed, being an overall split of the asset pool of 65:35 in the mother’s favour or 80:20 in the father’s favour.
A significant issue under s 75(2) is the disparity between the father’s and the mother’s earning capacity. The father has a very significant earning capacity and there is nothing in the evidence that would lead the Court to conclude that he will not continue to earn a considerable income. The Court calculates the father’s total yearly income from all sources to be $1,040,000, being a yearly salary of $290,000 (Transcript 8 January 2024, p.368 line 41) and income from his entities amounting to approximately $750,000 (the father’s written submissions, page 95), although the Court accepts the latter figure may fluctuate depending on the performance of the financial services firm (Transcript 8 January 2024, p.368 lines 40–44). The Court accepts the mother’s current yearly taxable income as being $98,013 (the father’s written submissions, page 98), and accepts she may earn more in the future if she chooses to work full-time, which she implied she may do when the children are older. The Court was not provided with much evidence of the mother’s current or future income. Regardless, this is an enormous disparity in earning capacity.
The Court observes that the net asset pool is relatively small compared to the father’s yearly income and overall earning capacity. The Court has found that the parties have a pool of assets including superannuation of $5,574,415.62, and a pool excluding superannuation of $4,689,168.62. This includes $6,550,050.62 in assets, $330,000 in addbacks and $2,190,882 in liabilities. This is in comparison to the father’s yearly income (from multiple sources) which is just over $1 million. Upon finalisation of these proceedings, the father will have ample opportunity to generate income given his far greater earning capacity. The Court accepts, as stated above, that this income is likely to ebb and flow and that his income will likely reduce after he retires from the financial services firm at the age of 60. Even so, the father’s proposal of a five per cent adjustment ($278,720.78) would equate to 27 per cent of only one year’s gross income. The proposed 15 per cent adjustment ($836,162.34) is still only 80 per cent of his total gross annual income.
The father indicated that to effect his proposal to retain both the Suburb H property and the Suburb F property, he will need to sell the shares held by Pickford Family Holdings Pty Ltd and withdraw cash from J Pty Ltd, which will trigger a capital gains event on the sale of the shares and a tax liability on the dividend he will need to declare in J Pty Ltd, and the subsequent distribution to the Pickford (No 2) Family Trust, which he will receive personally as there is no other beneficiary to receive that distribution (the father’s affidavit filed 2 February 2023, paragraph 705). These liabilities are reflected at items 29 and 30 of the parties’ joint balance sheet (Exhibit C3), but have been disallowed by the Court and not included on the Court’s final balance sheet (see [224]–[226]). The Court recognises that these may be significant expenses incurred by the father if the above scenario eventuates and takes this into account in a general sense under s 75(2) in circumstances where this is a hypothetical liability, the quantification of which has not been supported by any admissible evidence from the father.
Based on the above findings, and considering that the Court will make orders for the children to continue to live with the mother and spend time with the father for four nights per fortnight, the young ages of the children (and thus the considerable time they will remain in the mother’s care), and the stark difference in the parties’ current and future earning potential (even if the mother eventually returns to full-time work), the Court will make an adjustment of 15 per cent in the mother’s favour. The Court sees this as being an appropriate adjustment that the father will be able to manage without any serious hardship over time.
The total net asset pool will therefore be divided 55:45 in the father’s favour.
Neither party proposed superannuation splitting orders, so the parties’ superannuation interests will remain where they lie.
A just and equitable order
The implementation of the above orders would see the father receiving $3,065,928.59 and the mother receiving $2,508,487.03. The disparity is self-evident and acknowledged. It is the mother’s preference to retain the Suburb H property, which would result in the following division of property:
Mother Father Description Value Description Value ASSETS 1 G Street, Suburb H as per valuation report of BB Valuations dated 04.10.23
Wife owns 99% share and Husband owns 1% share as tenants in common.$2,650,000 2 E Street, Suburb F as per valuation report of BB Valuations dated 04.10.23
(Joint Tenants)$1,050,000 3 Bank Ac CBA BSB … Ac …99
(“Offset account”) (W’s value as at 03.07.24)$319,905.62 4 Bank Ac NAB BSB … Ac …42 (@17.01.24) $8,409 5 Bank Ac CC Bank BSB … Ac …14 (W’s value from statement for 01.07.23 to 03.10.23) $0 6 Bank Ac CBA BSB … Ac …36 (W’s value screenshot as at 17.01.24) $1,159 7 Bank Ac DD Bank BSB … Ac …62 $21,754 8 Pickford Family Trust
- Bank Ac DD Bank BSB … Acc # …95
- Shares (value as at 9.11.23)
o … $65,100
o … $33,450
o … $73,000
o … $99,659
o … $225080
Bank account $200
Shares $494,4689 J Pty Ltd
Bank Ac BSB … Ac …37$252,804 9A CBA Term Deposit #...82 $1,100,000 10 K Trust Ac BSB … Ac …76 $200 11 CBA Share Scheme (@ 18.01.24) $9,200 12 Westpac Shares (@ 17.01.24) $10,992 13 EE Capital $550,000 14 Shares - (1000) $3,280 15 E2 Shares EE Group Holdings Limited $1,000 16 Motor Vehicle 1 $20,000 17 Motor Vehicle 2 $31,679 18 Jewellery/Personal Effects $5,000 19 Household Furniture and Effects $10,000 20 Household Furniture and Effects $10,000 Total $3,034,665.62 Total $3,515,385 ADDBACKS 21 Interim distribution
$50,000 (7 November 2019)
$100,000 (29 July 2019)$150,000 22 Partial property - $100,000 (12 January 2024) $100,000 23 Interim distribution (29 July 2019) NIL 23A Partial property settlement (8 March 2024) $80,000 Total $330,000 Total $0 LIAIBILITES 24 CBA Mortgage x…12 Suburb H (W's value as at 23.01.24) $1,299,612 25 CBA Mortgage x…69 Suburb F (W's value as at 21.01.23) $341,270 26 NAB Credit card x…86 (W's value as at 23.01.24) NIL 27 CBA MasterCard x…46 (W's value as at 23.01.24) NIL 28 DD Bank Credit card x…44 NIL 29 Tax payable on distribution from J Pty Ltd to pay Wife NIL 30 CGT Liability embedded (Pickford Family Trust) $NIL 31 FF Bank Facility – E Capital contribution $550,000 Total $1,299,612 Total $891,270 SUPERANNUATION 32 Superannuation Fund 1 Member No. …51 as at 18 Jan 2024 $283,071 33 Superannuation Fund 2 Member No. …68 $602,176 Total $283,071 Total $602,176 TOTAL $2,348,124.62 TOTAL $3,226,291
If the mother retains the Suburb H property (including the mortgage and the CBA offset account), and the father retains the Suburb F property and the mortgage, and they otherwise retain any property and interests in their own names, the mother will receive $2,348,124.62 and the father will receive $3,226,291. This means that the father will need to pay the mother the sum of $160,362.41.
Even if the mother applied the sum of $160,362.41 to the mortgage of the Suburb H property, she would still have an outstanding mortgage of $1,139,249.59. She gave evidence that GG Finance offered her a loan of $530,000, but she would in reality only be able to maintain a loan of approximately $200,000 (Transcript 13 November 2023, p.52 lines 33–36). Therefore, on her own evidence she is unable to afford refinancing the Suburb H property into her sole name. In her Minute of Order dated 8 January 2024, the mother proposes that if she is not able to refinance the Suburb H property, it should be sold. It is the Court’s view that she should be given the opportunity to retain the home within a reasonable timeframe if she so desires.
In his Minute of Order dated 8 January 2024, the father proposes that both the Suburb H property and the Suburb F property are transferred to him. To implement his proposal he will raise funds through the process outlined at [265], including selling shares and withdrawing cash. If the mother is unsuccessful in obtaining the necessary financing and the father retains the Suburb H property (with the CBA offset account retained by the mother), it will result in the following division of property:
Mother Father Description Value Description Value ASSETS 1 G Street, Suburb H as per valuation report of BB Valuations dated 04.10.23
Wife owns 99% share and Husband owns 1% share as tenants in common.$2,650,000 2 E Street, Suburb F as per valuation report of BB Valuations dated 04.10.23
(Joint Tenants)$1,050,000 3 Bank Ac CBA BSB … Ac …99
(“Offset account”) (W’s value as at 03.07.24)$319,905.62 4 Bank Ac NAB BSB … Ac …42 (@17.01.24) $8,409 5 Bank Ac CC Bank BSB … Ac …14 (W’s value from statement for 01.07.23 to 03.10.23) $0 6 Bank Ac CBA BSB … Ac …36 (W’s value screenshot as at 17.01.24) $1,159 7 Bank Ac DD Bank BSB … Ac …62 $21,754 8 Pickford Family Trust
- Bank Ac DD Bank BSB … Acc # …95
- Shares (value as at 9.11.23)
o … $65,100
o … $33,450
o … $73,000
o … $99,659
o … $225080
Bank account $200
Shares $494,4689 J Pty Ltd
Bank Ac BSB … Ac …37$252,804 9A CBA Term Deposit #...82 $1,100,000 10 K Trust Ac BSB … Ac …76 $200 11 CBA Share Scheme (@ 18.01.24) $9,200 12 Westpac Shares (@ 17.01.24) $10,992 13 EE Capital $550,000 14 Shares - (1000) $3,280 15 E2 Shares EE Group Holdings Limited $1,000 16 Motor Vehicle 1 $20,000 17 Motor Vehicle 2 $31,679 18 Jewellery/Personal Effects $5,000 19 Household Furniture and Effects $10,000 20 Household Furniture and Effects $10,000 Total $384,665.62 Total $6,165,385 ADDBACKS 21 Interim distribution
$50,000 (7 November 2019)
$100,000 (29 July 2019)$150,000 22 Partial property - $100,000 (12 January 2024) $100,000 23 Interim distribution (29 July 2019) NIL 23A Partial property settlement (8 March 2024) $80,000 Total $330,000 Total $0 LIAIBILITES 24 CBA Mortgage x…12 Suburb H (W's value as at 23.01.24) $1,299,612 25 CBA Mortgage x…69 Suburb F (W's value as at 21.01.23) $341,270 26 NAB Credit card x…86 (W's value as at 23.01.24) NIL 27 CBA MasterCard x…46 (W's value as at 23.01.24) NIL 28 DD Bank Credit card x…44 NIL 29 Tax payable on distribution from J Pty Ltd to pay Wife NIL 30 CGT Liability embedded (Pickford Family Trust) NIL 31 FF Bank Facility – E Capital contribution $550,000 Total $0 Total $2,190,882 SUPERANNUATION 32 Superannuation Fund 1 Member No. …51 as at 18 Jan 2024 $283,071 33 Superannuation Fund 2 Member No. …68 $602,176 Total $283,071 Total $602,176 TOTAL $997,736.62 TOTAL $4,576,679
If the father retains both the Suburb H property (including the mortgage but excluding the CBA offset account) and the Suburb F property as he proposes, he would also need to pay the mother the sum of $1,510,750.41 to implement the 55:45 division of property. This payment will assist her in relocating with the children into a new family home.
While the father did not provide exact figures in relation to implementing his proposal, the Court accepts that it may be possible for him to refinance both properties into his own name, even after paying the mother the above sum. If the mother cannot obtain the necessary financing to acquire the father’s interest in the Suburb H property within a reasonable time, he will be given the opportunity to retain both properties. This will provide the children with some stability, as they will continue to be able to live, at least some of the time, in the family home. If he is unable to successfully refinance the Suburb H property, it is to be sold, with the proceeds of sale to be distributed to effect the 55:45 division of property.
The Court notes that the mother also sought in her Minute of Order dated 8 January 2024 that the father resign as trustee of the X Testamentary Trust. The father opposed this order. The Court declines to make this order in circumstances where there was a lack of evidence suggesting its necessity, and there were no written submissions addressing the issue.
The Court is satisfied to the extent that the evidence permits, and on the basis of the reasons given above, the orders proposed are just and equitable to both parties.
Reasons for judgment regarding the mother’s Application in a Proceeding filed 4 March 2024
As explained earlier in these reasons for judgment at [56], the mother’s Application in a Proceeding filed 4 March 2024 came before me on 8 March 2024, where I made the order sought by the mother for her to receive a partial property settlement of $80,000. In his Response to an Application in a proceeding filed 7 March 2024, the father sought for the mother to be permitted to receive only $42,000 by way of partial property settlement in circumstances where a reduction in the funds in the CBA offset account would increase mortgage repayments; the mother’s contentions in her Financial Statement and affidavit were exaggerated and in parts false; there were concerns about the mother’s disclosure of the loans to Mr B and Ms N; and that the funds required for the up-front payment of her counsel is “a breach of the Bar Rules”. During the mention before me on 7 March 2024, counsel for the husband conceded that if the mother received $80,000, she would not be receiving more than the husband, but maintained that the mother should only receive funds to cover the fees of Dr C and her legal representatives.
There was no compelling reason for the father to oppose the mother’s request for a partial property settlement, when there were sufficient funds to implement the request and where it would make no difference to the money the father is entitled to, or the property orders made in these reasons for judgment. I therefore made orders in the terms proposed by the mother.
The orders
The mother will be given the opportunity to retain the Suburb H property by acquiring the father’s interest in the property, and she will have 60 days to do so. She will also forthwith have the benefit of the funds in the CBA offset account, subject to the obligation to continue the payments therefrom until settlement of the transfer or sale of the property as contemplated by these orders. This arrangement will allow for various expenses to be met after these orders are made and before any transfer or sale is implemented. Thereafter, the mother is permitted to use whatever funds remain in the CBA offset account as she so chooses. If she is unsuccessful in acquiring the father’s interest in the property, the father will then be given 60 days to acquire the mother’s interest in the property. If neither party is able to refinance the Suburb H property into their sole names within the required timeframe, the property is to be sold, with the net proceeds of sale to be distributed to effect the 55:45 distribution of property in the father’s favour. Each party is to otherwise retain any property and superannuation in their names.
The Court also recognises that these orders contemplate multiple scenarios each of which are dependent on extraneous factors not fully known to the Court, such as for example, each party’s ability to borrow not just in the amount needed, but in a timely fashion. Because of this, leave will be granted to the parties to relist on 14 days’ notice in relation to the interpretation, implementation or enforcement of the orders altering property interests. This, of course, is subject to any application the parties may make about my continued involvement in this case.
I certify that the preceding two hundred and eighty (280) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 26 July 2024
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