POWELL & CHRISTENSEN
[2020] FamCA 944
•13 November 2020
FAMILY COURT OF AUSTRALIA
| POWELL & CHRISTENSEN | [2020] FamCA 944 |
| FAMILY LAW – PARENTING – PROPERTY – family violence – serious assault and deprivation of liberty – long term context of coercion and control – effects of ongoing contact on parenting capacity – where risks erode benefits of meaningful relationship – analogous discretionary context of sentencing – where considerations overlap – considerations not to be viewed in isolation from each other – where factual basis for risk is established – lack of child focus – absence of opinion rule – assessment of expert evidence – assessment of each fact in issue – application of expertise and underlying facts and weight – unequal contributions post separation – unequal future economic position – failure to disclose – valuation of cryptocurrency where failure to disclose – best evidence as to purchase value – just and equitable – consideration of specific effects of orders in determination of what is just and equitable |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 65DAA, 75(2), 79(1), 79(2), 79(4), 75(2), 90SF, 90SF(3)(r), 90SM, 90XT(2)(b), 102NA |
| Bevan v Bevan (2013) 49 FamLR 387 Dickons & Dickons [2012] FamCAFC 154 In the Marriage of Pastrikos (1979) 6 FamLR 497 Kowaliw and Kowaliw (1981) FLC 91-092 M v M (1988) 166 CLR 69 Markarian v The Queen (2005) 215 ALR 213 Marsden & Winch (No 3) (2007) FamCA 1364 N & S and the Separate Representative (1996) FLC 92-655 NHC & RCH [2004] FamCA 633 Stanford v Stanford (2012) 247 CLR 108 Steinbrenner & Steinbrenner [2008] FamCAFC 193 Veen v The Queen (No 2) (1988) 164 CLR 465 Weir v Weir (1992) 16 FamCA 69 Wynona v Friend [2011] FamCAFC 6 |
| APPLICANT: | Ms Powell |
| RESPONDENT: | Mr Christensen |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs McGregor |
| FILE NUMBER: | CAC | 1032 | of | 2018 |
| DATE DELIVERED: | 13 November 2020 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 21-25 October 2019 and 21 October 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Dobinson Davey Clifford Simpson |
| SOLICITOR FOR THE RESPONDENT: | Self-representing |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid, ACT |
Orders
In relation to the children it is ordered that:
Y, born … 2009, and X, born … 2011, ("the children") live with the Mother.
The Mother has sole parental responsibility for the children.
The Father is at liberty to send letters, cards and gifts to the children to Parcel Locker …, 53-73 Alinga Street, Canberra ACT 2601.
Otherwise, there is no order permitting or for time or communication between the Father and the children.
Within 7 days of the making of these orders, the Father shall deliver to the offices of the Mother's solicitors, all of the following documents that are in his possession or control:
a.The children’s passports;
b.The children’s birth certificates;
c.The Mother’s passport; and
d.The Mother’s birth certificate.
The children are permitted to have an Australian travel document and leave the Commonwealth of Australia to travel overseas at the sole discretion of the Mother.
The Mother is permitted to make a sole application to the Department of Foreign Affairs and Trade ("the Australian Passports Office") for the children to be issued with an Australian travel document, without the Respondent's consent and/or his execution of the application form.
To give effect to the above orders:
a.The Mother is permitted to provide to the Australian Passports Office an original or certified copy of these Orders; and
b.Upon sole application by the Mother (and meeting any other administrative requirements), the Australian Passports Office may grant the application for the children's Australian travel document, with the requirement for the Father’s consent or signature to be dispensed with.
Upon the expiry of the children's passports, the Mother is permitted to make an application to the Australian Passports Office to re-new the children's passports at any time, and without the Father’s consent and/or his execution of the application or renewal form.
In relation to the property of the parties it is ordered that:
The Mother retains, to the exclusion of the Father, and is declared the sole beneficial owner of the following:
a.Motor Vehicle 1 (Registration No. …);
b.Recreational vehicle;
c.Funds standing to the credit of bank accounts in her sole name, including but not limited to P Bank Account (x…2l), P Bank Savings Account (x…20) and NAB Savings Account (x…95);
d.Gold and silver held with Company G (the metal holdings);
e.All household contents in her possession; and
f.Her superannuation entitlements with Super Fund 1.
The Father shall, within 7 days of the making of these Orders, sign all documents as may be required to transfer his interest and ownership of the metal holdings to the Mother.
The Father retains, to the exclusion of the Mother, and is declared the sole beneficial owner of the following:
a.Motor Vehicle 2 (Registration No. …);
b.Funds standing to the credit of bank accounts in his sole name;
c.Bitcoin and like cryptocurrencies registered in his sole name;
d.His interest in K Pty Ltd (the Business); and
e.N Pty Ltd.
The Mother shall, within 7 days of the provision of the relevant documents to her by the Father, sign all documents as may be required to transfer her interest and ownership of the motor vehicle to the Father at his sole cost and expense.
Within 28 days of the making of these orders the Father shall do all acts and things at his sole cost and expense, and shall provide to the Mother the necessary documentation for her to execute as are required to:
a.Facilitate the Mother resigning as a director of N Pty Ltd ("the Company") (and in doing so, substitute the Father as sole director and secretary of the entities);
b.Facilitate the Mother transferring her six (6) ordinary shares (being $6.00) in the Company, to the Father (including provision by the Mother of a duly executed Share Transfer in registrable form);
c.Facilitate the removal of the Mother as an appointor and beneficiary of the Christensen Family Trust ("the Trust");
d.Relinquish any and all interest the Mother had, has, or may have in the future, in the Trust (including any and all assets of the Trust) in her capacity as a beneficiary of the Trust.
The Mother shall indemnify the Father, and keep him indemnified, against unpaid liability arising from, or associated with, the following:
a.Any debt or liability in the sole name of the Applicant, including but not limited to her P Bank Personal Loan (x…00).
The Father shall indemnify the Mother, and keep her indemnified, against unpaid liability arising from, or associated with, the following:
a.Any claim, action, suit or demand made against the Mother in relation to the Company or the Business or the Trust, including but not limited to such as may arise against the Mother in her capacity as an employee, shareholder, director, trustee, appointor, beneficiary, creditor, guarantor, debtor or company member;
b.Any debt or liability in the sole name of the Father;
c.Credit cards in the Father’s sole name, including his NAB card (x…07) and American Express card (x…05).
Save as otherwise provided for in these Orders:
a.Each party shall be solely entitled to the exclusion of the other to all property (including chose-in-action) in the possession of such party as at the date of these Orders;
b.Monies standing to the credit of a party in any bank account is to become the property of the party in whose name the account is registered;
c.Each party shall forego any claim or claims the party may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to, or earned by, the other;
d.Insurance policies remain the sole property of the owner named thereon;
e.Each party shall be solely liable for, and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
f.Any joint tenancy of the parties in any real or personal property is hereby expressly severed.
Liberty is granted to the Mother to apply with respect to implementation of these Orders upon seven (7) day's written notice.
Payments
The Father pay to the Mother the sum of $100 000 ("the Payment"), in four instalments of $25 000, to be paid in the following manner:
a.On or before 5 January 2021, the first instalment of $25 000;
b.On or before 5 March 2021, the second instalment of $25 000;
c.On or before 5 May 2021, the third instalment of $25 000; and
d.On or before 5 July 2021, the final instalment of $25 000.
In the event the Father defaults in making the Payment (or any instalments) within the specified period of time, the Father shall pay to the Mother interest at the rate prescribed in the Family Law Rules 2004 from time to time, calculated daily, upon such part of the Payment that remains outstanding.
Other than is otherwise provided for in these Orders, or in order to make the Payment, pending the completion of the Payment, the Father be and is hereby restrained from dealing with, encumbering or disposing of his interest in K Pty Ltd trading as Q Company ("the business").
Superannuation
Noting the Applicant’s compliance with Orders made on 30 March 2020 and noting the Applicant and Respondent will have been accorded procedural fairness as trustees in accordance with those orders in relation to making of the superannuation splitting orders, these Orders bind the Trustees of the Fund.
The next three clauses immediately following this clause of this Order are collectively referred to as “the Splitting Order”.
Orders 25 to 27 (inclusive) have the effect from the operative time and the operative time means the date of these orders.
That a base amount be allocated, as required by s 90XT(4) of the Family Law Act 1975 to the Applicant out of the Respondent’s superannuation interest in the Fund by reference to the following method:
BA = RMB divided by 2
Where:
RMB = The Father’s Member Benefit in the Fund as at 30 June 2020 of $226 116.79
BA = Base Amount.
That in accordance with s 90XT(1)(a) of the Family Law Act 1975:
a.the Mother is entitled, using the base amount allocated in the clause immediately preceding this clause of this Order, to the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
b.The Father’s superannuation entitlement (and the entitlement of any other person to payments out of the Father’s superannuation interest) in the Fund, is correspondingly reduced.
The Trustees do all such acts and things and signed all such documents as may be necessary to:
a.calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Mother in the clause immediately preceding this clause of this Order; and
b.pay the entitlement whenever the Trustee makes a splittable payment out of the Father’s superannuation interest in the Super Fund.
c.To facilitate orders 27a and 27b above, the Trustees will engage J Accountants to complete all work associated with implementation of the super splitting order.
The service of this Order shall be deemed to have occurred on the date of this Order by reason that the Mother and Father are the sole Trustees of the Fund and the Court notes that service will enliven the operating standards under Part 7A of the Superannuation Industry (Supervision) Regulations 1994.
That after service by the Trustee of the payment split notices pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 in accordance with the operating standards under the Superannuation Industry (Supervision) Regulations 1994, the Mother shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising her request pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 (“the Mother’s r.7A.06 Request”) for the transfer of the Transferable Benefits to be transferred to another complying superannuation fund (“the Mother’s New Super Fund”).
That forthwith upon the making of these Orders, the Trustees shall convene a meeting by the recording of minutes and not later than 14 days after receipt of the Mother’s r.7A.06 Request and in that meeting do all such acts and things, and sign all such documents as may be necessary to authorise:
a.the sale of investments to ensure it has sufficient by way of cash to transfer the Transferable Benefits on behalf of the Applicant to the trustee of the Mother’s New Super Fund; and
b.the transfer of the Transferable Benefits (in accordance with the operating standards in r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994).
Pending the transfer of the Transferable Benefits on behalf of the Mother to the trustee of the Mother’s New Super Fund:
a.The Mother and Father be and are hereby restrained from dealing with, charging, encumbering or disposing of any of the investment property of the Super Fund other than in accordance with the terms of this Order; and
b.The Mother and Father shall immediately revoke any binding death benefit nomination already made and each party be, and is hereby, restrained from:
i.making any binding death benefit nomination in favour of a child described in regulation 13 of the Family Law (Superannuation) Regulations 2001;
ii.making any other nomination where the effect of such nomination would be to render any splittable payment not splittable; and
iii.doing any such act or thing which would defeat, extinguish or reduce the entitlement of the Applicant under this Order.
And for the avoidance of doubt, following completion of the transfer of the Transferable Benefits to the trustee of the Mother’s New Super Fund, the Father may attend to his death benefit nomination.
For the purposes of these Orders, any action required of the Trustees may be undertaken by and or satisfied by actions taken by the Mother alone, on condition that the Mother provides to the Father prior written notice of her intention to take that action.
AND IT IS NOTED:
A.The value of the Transferable Benefits to be transferred from the Father’s interest in the Super Fund to the trustee of the Mother’s New Super Fund are calculated in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994; and
B.Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the Father’s interest in the Fund made after the Trustee has transferred the Transferable Benefits from the Respondent to the trustee of the Mother’s New Super Fund are not splittable payments.
Other
The Mother and Father are granted permission to provide copies of any and all financial/property orders made in this matter either in the Federal Circuit Court or in the Family Court of Australia, to the Department of Human Services or their representatives, for the purposes of determining child support.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Powell & Christensen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC1032 of 2018
| Ms Powell |
Applicant
And
| Mr Christensen |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to this matter are Ms Powell, the Applicant Mother, and Mr Christensen, the Respondent Father. The parties commenced a relationship in 2006 and separated on a final basis in May 2017, initially under one roof. There are two children of the relationship, X, born … 2011 (currently aged 8 years) and Y, born … 2009 (currently aged 11 years).
These proceedings concern the parental responsibility and living arrangements of the children as well as the property of the parties.
The Father was prevented by s 102NA of the Family Law Act 1975 from cross-examining the Mother without representation. At the trial he did not have representation, despite there being a scheme funded by the Commonwealth Attorney General to provide representation to persons unable to cross examine by virtue of s 102NA.
What the parties sought
The full orders sought are set out at Annexure A to this judgment. The orders, particularly in relation to the parties’ property changed over the extended course of the proceedings. In particular, the orders in relation to the parties’ superannuation changed when the proceedings were reopened to deal with a shortfall in the evidence in relation to the value of the parties’ superannuation interests.
In general terms, the Mother sought that the children live with her and that she have sole parental responsibility. She sought that the children spend no time with the Father, and that the only contact be through letters, cards and gifts.
The Father sought equal shared parental responsibility and that the children live in a week about shared care arrangement with both parents and share holiday time. He sought that this take place following a loosely defined reintroduction process.
The Independent Children’s Lawyer (the ICL) supported the orders sought by the Mother.
In relation to the property the Mother sought that the pool of property, including a series of notional add-backs be divided 75 – 25 in favour of the Mother.
In relation to the property the Father sought orders that he asserted would divide the non-superannuation assets 60 – 40 in his favour, and asked that the parties retain their current superannuation assets, of which he held the majority.
Material relied upon
In relation to the substantive matter the Mother relied upon the following:
a)Her affidavit filed 14 March 2019;
b)Her financial statement filed 14 March 2019;
c)Her affidavit filed 2 April 2019;
d)Her affidavit filed 9 September 2020.
In relation to the substantive matter the Father relied upon
a)His affidavit filed 10 October 2019;
b)Errata of affidavit of 10 October 2019 of the Father filed on 18 October 2019;
c)His balance sheet filed 18 October 2019;
d)His financial statement filed 18 October 2019;
e)Mr H affidavit filed 17 May 2019;
f)Report of Mr H dated 22 September 2017;
g)Report of Mr H dated 11 October 2018;
h)Affidavit of Ms R, filed 10 October 2019;
i)Business Valuation of K Pty Ltd by Ms R dated 29 March 2019;
j)Report of Ms R dated 17 June 2020;
k)His affidavit filed 9 June 2020;
l)His financial statement filed 9 June 2020.
There was a Family Report prepared by Ms E dated 23 November 2018.
The parties also relied on other material in relation to the reopening.
Approach to the children’s aspect of this case
The paramount consideration in determining what order should be made is, pursuant to s 60CA, the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, but in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
In order to determine what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC. The two primary considerations focus, respectively, upon the benefit to the children of a meaningful relationship with both parents, and the need to protect the children from harm from being subjected or exposed to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence.
In Marsden & Winch (No 3) Warnick and Thackray JJ observed in relation to both the prominence of, and significance of the primary considerations, the following:[1]
[1]Marsden & Winch (No 3) (2007) FamCA 1364 at [77].
It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
They further observed that a primary judge is:[2]
[2] Ibid at [78].
of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
Without disregarding the balance of the considerations, those that dominate and are determinative in this case are the primary considerations, the views of the children, the nature of their relationships with their parents, and the capacity of the parents to provide for the emotional needs of the children.
While other additional considerations are also applicable, (such as whether there has been family violence, family violence orders, and the parties’ attitudes to the responsibilities of parenthood), these are either subsumed or of minor and non-determinative weight compared to the primary and the identified additional considerations.
In this matter there is a serious incident of family violence involving the Father where he bound and gagged the Mother, then apparently attempted to hang himself in front of her while she remained restrained. While this is not the sole significant matter in this hearing, it bears heavily on both the need for the protection of the children, and also on assessing what benefit the children obtain from a meaningful relationship with the Father.
It is convenient to split the analysis of the child related evidence in this case into pre and post separation occurrences.
Care arrangements during the relationship
When the children were babies, the Father states that he did approximately 40 per cent of the work involved in looking after the children and the Mother did the other 60 per cent. The Father says that during the relationship, both himself and the Mother contributed equally as they both read the children books, bathed them, changed, clothed and generally supervised them. The Father says that he was more involved in ‘active things’.[3] The Father said that this equal contribution continued from 2009 until mid-2014 when the parties made a decision that he would focus a bit more on work and the Mother would focus a bit more on the household.[4]
[3] Father’s affidavit filed 10 October 2019 [477].
[4] Father’s affidavit filed 10 October 2019 [478].
He accepts that from the birth of Y, the Mother took 10 months maternity leave before returning to work on a part time basis. The Mother has mostly worked on a part time basis since Y was born.
The Father said that he arranged with his work to have one day at home each week to look after Y from after the Mother returned to work when Y was about 9 months old until Y was about two and a half. He stated that he would spend the whole day with Y.[5]
[5] Father’s affidavit filed 10 October 2019 [497-498].
When the Mother was diagnosed with cancer in August 2011, the Father says that he commenced to work in part from home, conducting his work after hours when the family was asleep. In this way, he was able to provide care for Y and X.
The Father also says that from when he became self-employed, in July 2013, he would work during busy periods in excess of 60 hours per week, seven days per week.
Contrastingly, the Mother says that during the relationship, she was primarily responsible for household duties and caring for the children, even when the Father arranged to work from home during her cancer treatment.[6] The Mother says that she cannot recall a time when the Father performed housework, with the exception of unpacking the dishwasher.[7] The Mother described one instance when she left the children with the Father while she was away interstate in 2017 (with a running sheet of their routine for the Father to follow).[8]
[6] Mother’s affidavit filed 14 March 2019 [179].
[7] Mother’s affidavit filed 14 March 2019 [180].
[8] Mother’s affidavit filed 14 March 2019 [180].
The Mother said that the Father relied on her heavily for emotional reassurance during the relationship.[9]
[9] Mother’s affidavit filed 14 March 2019 [94].
The Father stated that the parties had a cleaner from 2011 until the separation who came weekly or fortnightly. As such, the Father states that the Mother was never unduly burdened in the respect of housework.[10] If this is so, then it would seem neither was the Father.
[10] Father’s affidavit filed 10 October 2019 [480].
The Father said that once the children reached school age, he was often the one helping with their homework and music practice. The Father says that he would work with the children on an online programme about twice per week and practice music with the children several evenings each week.[11]
[11] Father’s affidavit filed 10 October 2019 [487], [490].
The Father said that the parties were equally involved in the children’s medical appointments and he took them to all the appointments, either by himself or with the Mother. He said that he spent the same amount of time as the Mother with Y at the hospital when she had pneumonia.[12]
[12] Father’s affidavit filed 10 October 2019 [496].
The Father states that the Mother is a good mother in terms of meeting the children’s practical needs.[13] Nevertheless, the Father raised the concerns that the Mother is not available emotionally to the children. While the Father stated that he believes the Mother’s approach is to create a ‘safe, accepting loving’ space for them, he stated that sometimes as a parent ‘you need to respond to things that have happened in their lives and discuss them’.[14]
[13] Father’s affidavit filed 10 October 2019 [512].
[14] Father’s affidavit filed 10 October 2019 [513].
The Mother raised concerns that she had about the Father’s parenting before their separation. On 17 February 2017, the Mother said that the Father was “intent” on watching the Aliens movie in the family living room despite the presence of the children.[15] He allegedly dismissed the Mother’s concerns about the “terrifying, gruesome scenes” and Y was “very disturbed by what she had seen. Bedtime became traumatic for her” and Y had difficulties with sleeping.
[15] Mother’s affidavit filed 14 March 2019 [88].
The Mother said that the Father would also let the children watch Air Crash Investigations which the Mother said has disturbed Y and has made her anxious when they fly.[16]
[16] Mother’s affidavit filed 14 March 2019 [89].
The Father explained that any exposure of the girls to such material was incidental and accidental.
In the overall scheme of the issues between the parties this was not a matter of importance.
The Father accepts that there is nothing intrinsically wrong with the Mother’s parenting approach, but feels as though the children are better off if they have access to both parents.[17] The Father alleges that when they were together, he was able to balance some of the Mother’s shortcomings as he thought ahead about their extra-curricular activities, holidays and schoolwork.
[17] Father’s affidavit filed 10 October 2019 [515].
Despite the Father’s assertion as to his level of involvement, with the Mother working part time, and particularly from the time that he started his own business it was the Mother who carried the bulk of the care of the children. It may also be taken that during maternity leave the Mother undertook the bulk of the care of the children.
As noted later by Ms E, the Family Report writer, the Father was competent in providing for the physical care of the children. His claims as to his superiority in dealing with emotional issues for the children is undermined by his conduct post separation which, for reasons identified later, indicate that he is deficient in this area.
The Father’s anger and aggression during the relationship
A far greater differential in parenting capacity between the parties was revealed in the Father’s lack of capacity to restrain himself from aggression, including in the presence of the children. This lack of restraint, whether in front of the children or otherwise undermines the Father’s assertions as to his capacity to emotionally care for the children, either during the relationship or now.
The Mother said that the Father would often call her “dumb” in front of the children, usually saying “you’re dumber than usual today.”[18] She said that the Father has continued this in some of his more recent communications with her.
[18] Mother’s affidavit filed 14 March 2019 [96].
The Father stated that his calling the Mother “dumb” would be “very, very rare”. He then said that he could not recall calling her “dumb” but conceded that in 11 years, he potentially did call her dumb. The Father said that he does not recall saying “you’re dumber than usual today.”[19]
[19] Cross-examination of Father, Final Hearing day 3.
The Father’s shifting answer gives no confidence in his denial.
The Mother described particular instances which she says illustrate the Father’s propensity to become angry in everyday situations.
The Mother recounted an incident in 2010 when the Father was “so angry (with her), he punched a hole in the wall above our bed.”[20] The Mother said that she organised a tradesman to fix the hole before they could rent out the apartment a year later.
[20] Mother’s affidavit filed 14 March 2019 [92].
The Father accepts that this was an accurate account of what occurred.[21]
[21] Cross-examination of Father, Final Hearing day 3.
It should be recognised that this was an act of physical violence resulting in property damage, in close proximity to the Mother, stemming from anger in relation to the Mother. By its nature it is highly intimidating. It does not support the Father’s contentions as to his superior emotional capacity.
The Mother also described an incident on 31 August 2010 when the Father, Mother and Y were driving back from a weekend in Sydney and the Father pulled into a petrol station.[22] When another car pulled into a position in front of the family car, the Father then parked the family car “directly behind the other car”, got out of the car and confronted the driver. The Mother said that the Father became very angry, with “a clenched jaw, and shaking his head”, returned to the family car while swearing and twice rammed the family car into the other car. The Mother said that the back tyres of the family car started to screech as the Father attempted to move the other car. The Father then reversed the family car and sped out of the petrol station despite the Mother’s protests to stop.
[22] Mother’s affidavit filed 14 March 2019 [90].
The Father said that the Mother’s description of the event was almost entirely correct but said that he did not ram but rather just “pushed” the bumper of the other car.[23] Even on the Father’s account this event was one of extreme aggression by him, in the presence of the Mother and Y. The described rage, resulting in using a motor vehicle as a weapon against another vehicle points to a lack of self-control when affronted, spilling into violence.
[23] Cross-examination of the Father, Final Hearing Day 3.
The Mother said that on 19 June 2011 the Father took Y with him to Bunnings but returned with her before he had purchased what he needed as Y had supposedly been complaining and difficult.[24] After arriving home and “clearly in a foul mood, Mr Christensen let out a tirade of abuse on me because he’d found used tissues I’d left in the car”. When the Mother went out to the car to retrieve the tissues, Y followed her saying that she wanted to come. The Mother said that the Father “lunged towards Y, picked her up and threw her back inside saying, “No, you’ll stay the fuck inside!” despite Y being 2 years of age.
[24] Mother’s affidavit filed 14 March 2019 [93].
In cross-examination, the Father stated that he “seriously doubts” that it happened. While the Father stated that it is almost certainly a distortion of something that did happen, he maintained that he had no recollection of anything like that happening.[25] The Father also denied physically handling his children or yelling at them in the manner described by the Mother.[26] Again the Father’s prevarication leads to little confidence in his (partial) denial.
[25] Cross-examination of Father, Final Hearing day 3.
[26] Cross-examination of Father, Final Hearing day 3.
The Mother described an instance in Spring 2014 when the Father took Y to school and was spoken to by another father about the Father’s careless driving in the school carpark.[27] The Mother said that the Father “took offense at the man’s remarks and went up to the man’s car (with Y in tow)” before having a heated altercation with the man. The Father “kicked and damaged the driver’s side door panel” of the man’s car and the man reported the event to the Police.
[27] Mother’s affidavit filed 14 March 2019 [91].
The Father’s response to this description was that it was highly inaccurate as the Mother was not there.[28] The Father said that he had spoken about the incident with the Mother but denied that there was a report made to the Police. The Father said that there was an assault against him, that he had Y with him at the time and that there was dangerous driving by another parent in the carpark. The Father said that there were other people around and that he did kick the other parent’s car, pushing it away from the children. The Father then says that the other parent assaulted him after the Father dropped off Y. The Father said that a different party reported it to the Police and that the Father said he would provide a statement but that the matter was not progressed further (and no charges were pressed). Absent other direct evidence, little is clear about this incident other than the Father resorted to kicking a car.
[28] Cross-examination of the Father, Final Hearing Day 3.
The Mother also recounted the Father punching a hole in 2014 “in the external cladding of the house” when he was similarly “so angry (with me)”. The Mother said that she subsequently organised for a friend’s husband to replace the cladding.[29]
[29] Mother’s affidavit filed 14 March 2019 [92].
The Father says that he made a hole in the external cladding by kicking it. The Father said that he had no idea that the house was so fragile that it would break. The Father described that the reason that he kicked the house was that it was a silly end to a conversation with the Mother that involved frustration with his work.[30] Again, even on the Father’s account, this was an act of violence in the presence of the Mother, and in the context of his conversation with her. The Father’s description is not persuasive that the anger was other than the Mother described, that is, directed to her.
[30] Cross-examination of Father, Final Hearing day 3.
Even just restricting consideration to those matters admitted by the Father, the picture emerges of the Father’s anger spilling out into physically destructive or aggressive acts in front of the Mother and on occasion, Y.
However, the ending of the relationship threw an even darker light upon the Father’s attitudes and conduct. The Mother describes that in May of 2016 she spoke to the Father about separating, and his response was “If you choose to end this relationship, I will be so angry. I’ll probably go postal. That’s not a threat – I just don’t see how I could be any other way.”[31] Similarly, in May 2017 the Mother said that the Father said to her “If you want your own life, that’s selfish – it’s destroying this family. You should be the one to leave. Just go! Fuck you! I will never let my children go. I will go to war with you on this. I will run rings around you – and you know I will. And I will win.”[32]
[31] Mother’s affidavit [103].
[32] Mother’s affidavit [104].
These comments cannot be construed as anything less than threatening, pointing on each occasions to dire consequences for the Mother should she separate, such consequences being grounded in conduct the Father would engage in. In the context of the Father’s previous acts, they are comments that could not be taken as without substance.
Post separation
The parties separated in May 2017 but remained living under the one roof. What occurred between them during this period, and in particular on the evening of 8 June 2017 loomed large in the case in relation to the children. From 9 June 2017 the parties lived in separate residences.
The Father asserts that he handled the sudden announcement by the Mother of the end of the relationship with “appropriate maturity and responsibility from May 16th up until June 8th.”[33] He says however that during this period he became traumatised and “very mentally unwell.” Reflecting on this time he attributes the causes to be:[34]
[33] Father’s affidavit [506].
[34] Father’s affidavit [506].
a)The Mother ‘setting me up,’ having seen a lawyer and commencing recording their conversations;
b)The Mother failing to raise doubts about their relationship at an earlier time; and
c)Suspicion that the Mother had cheated on him.
The Mother recorded a number of the interactions between herself and the Father on 8 June 2017. While such recordings do not necessarily show the complete picture of interactions (as one party is aware of the recordings and can choose what to record, or can interact knowing that the recording is taking place) the recordings were of significant use in establishing the nature of the Father’s interactions with the Mother.
During 8 June 2017 the Father either said to or messaged the Mother in terms of “you don’t deserve a family,” and, later, “I don’t want to talk to you. I want to fucking kill you, but I don’t want to talk to you. You God damn piece of shit.”
When giving oral evidence in chief regarding this communication the Father said that he was sad and depressed, but not angry, for the first three weeks of separation. He says that what changed on 8 June 2017 was that he became angry. He asserted that these comments were not a threat, although conceded that they could be interpreted as a threat.
What the Father said to the Mother by this point cannot be reasonably interpreted as anything less than threatening, and as an apparent expression of his anger at the Mother. The comments that the Mother does not deserve a family, and that he wanted to kill her, threaten her with the removal of her family, and threaten her life. They are opaque as to how the family might be removed from her, or she from the family.
Further, these threats act as the context for the escalating conduct engaged in by the Father as the day progressed. Having threatened her in this manner, the Father accepts that he drove the Mother and children past a number of the homes that they had previously lived in together. The Mother states that he reminisced with the children about the things they had done at those homes and as family and commented about how they could no longer be a family and that it was the Mother’s fault.[35] He accepts the gist of the Mother’s description of what he was saying to the Mother and the children whilst doing so.
[35] Mother’s affidavit, paragraph 47.
This conduct by the Father, both given the threats and then particularly when seen in the light of his later conduct that evening, give good reason for the Mother to be concerned as to what he might do towards the Mother and the children.
Later again, and in the presence of the children, the Father said, amongst other things, “well, we can’t be a family anymore, because mummy doesn’t love me anymore,” “your mummy’s been lying for 11 years and pretending,” “I think your mummy must be evil and have a black heart,” and “mummy doesn’t want us to be together, so I think mummy should just go away.” The Mother describes the children as sobbing during the Father’s comments. While the Father initially hedged at the description that the children were “highly distressed”, he ultimately accepted that this was so.
He accepted that he was, by these comments, communicating to the Mother that he wanted the children to know that she was responsible for the end of the relationship. He also accepted that this conduct was emotionally abusive, but said that it did not constitute a pattern of behaviour. He said that he was moved to this conduct in a moment of anger.
The Father explained that his sense of an injustice being perpetrated upon him had been growing, that he was bitter, that he could not keep it in and that he thought of the Mother as a “succubus” because he thought that she had deceived him.
The Father’s comments continued, but do not need to be recited in detail. The Father accepted that he was not calm, becoming worked up and struggling to control himself. The Mother, at the same time, was quiet in response, while the children cried and said that they did not want the parents to break up.
Later that evening the Father assaulted and restrained the Mother while apparently making attempts to hang himself in front of her, as described below.
The Mother describes the incident in detail in her March 2018 affidavit and at Annexure J of that affidavit. It was also recorded by the Mother on her telephone (Exhibit M1). The Mother produced a transcript that was accepted by the Father.
The Mother describes that the Father appeared suicidal. The Father opened a box of pain medication and subsequently wrote a note shown at Annexure D of the Mother’s affidavit which said:
Sorry my beautiful girls always did my best but it wasn’t enough I love you forever maybe I’ll see you again be true and happy. love dad
It was reasonable for the Mother to infer that this note pointed to the Father threatening to kill himself.
The Father left the home shortly before midnight, returning about half an hour later. The Mother believed that the Father was suicidal and that she had a responsibility to stop his death.
In order to stop the Father killing himself, she remained in his immediate presence despite his protestations. When she would not leave him and, he alleged, threatened to wake the children, he physically forced her to the ground, seeking to bind her with cable ties to her thumbs. The Mother resisted, struggling, with her mouth covered by the Father.
The Mother continued to struggle, and was told “if you wake up the children this is going to get very fucking ugly.”
The Father bound her thumbs with cable ties, after threatening to knock her unconscious unless she ceased resisting his attempts to bind her.
The audio recording made by the Mother demonstrates what might have been inferred from the transcript, being the Mother’s distress at the Father’s conduct.
Having previously told her of his desire to kill her, and that she did not deserve a family, this assault upon the Mother was of a particularly frightening and controlling quality. It constitutes a serious assault upon the Mother.
The Father then gagged and tied the Mother in the seat of their car in the garage, using an electrical cord. He says that she remained restrained in this manner for a couple of hours (although the precise duration of the restraint is not necessary to determine). The Father says that he was able to observe the Mother while she was tied up inside the car.
In front of her he affixed a noose to his neck, secured from above the manhole in the ceiling of the garage, and took the strain on his neck a number of times. On one occasion, he did so until he was red and purple in the face, indicating he was on the cusp of taking his life. Despite his treatment of her, the Mother pleaded with the Father, through the gag, not to kill himself, saying “please don’t do this to your girls,” “don’t do this to your babies,” and telling the Father that his daughters love him, urging him not to leave them.
The Father left the garage and returned, placing the noose around his neck again, again turning red and purple.
The incident was brought to an end by the children coming to the garage door, calling out for their parents. The children sound upset and can be heard on the recording crying out for their parents. The Father, at this stage, released the Mother from her restraints.
Although the garage door was locked, it was the children who unlocked it. The Father asserts, however, that the door was blocked from the inside of the garage by a mat, to try to stop the children gaining entry to the garage despite unlocking the door.
The Father accepted that if the children had found him hanging, and the Mother restrained and gagged, that the consequences would have been severe.
The Father further says that he left the means for the Mother to release herself from the bindings, presumably at a point after he had hung himself. It is unclear whether these means would have enabled the Mother to release herself.
When asked why he had not taken the self-harm steps outside of the home, the Father explained that “for some reason” it was important to do it in his own home. The “some reason” was not explained, nor why the “some reason” was sufficient to expose the children to such an event, nor why it explained the extreme and frightening violence inflicted upon the Mother. Although he denied that his intent was to punish the Mother, it is difficult to accept that this was not his intent, particularly in the light of his subsequent description to the Mother, where, in sms communication with the Mother on 14 June 2017 the Father said:
You really think suicidal impulses are so unusual? They are common. It’s not so common for someone to be hurt getting in the way, but your badgering that night added another level to the pain I was already feeling. Were you kind and warm to me? NO. You followed me around like a prison guard since you would not leave me in peace and you were determined to stop me and wake the kids if I didn’t keep an eye on you, I felt it only fair that you watch…
In response to the proposition that he was torturing the Mother in his conduct, he responded that such an idea was “vanity” as it suggested that his conduct was all about the Mother when it was about him committing suicide. However, the brutality of his actions toward the Mother, the extended restraint of the Mother in a position to watch the Father as he hung himself, and the assertion that he thought this was “fair” lead to the conclusion that there was an element of the Father seeking to harm the Mother through this experience.
The parties continued to communicate by sms following this incident.
On 9 June 2017 the Father messaged the Mother including the following:
It only affected you because you got in the way. I NEVER forgot about the children. Don’t demonise me. You helped create this. You’ve helped undo years of effort to never be in those places again…
…I was consumed, it has passed, they were NEVER in danger and nor were you..
On 14 June 2017 the Father messaged the Mother, saying in part:
You are not much better than me Ms Powell…
…I wronged you badly on that night, but what triggered that in the first place? Are you doing any better now? Or have I just given you a convenient excuse to absolve your responsibility?
On 27 June 2017, in an sms ostensibly for the children but, the Father says, in reality directed to the Mother, the Father said:
Sorry daddy can’t function right now. There is a knife in my chest that mummy wants to twist and twist and twist. Please ask her to take it away and I can be your dad again.
Further on 21 September 2017, in an sms sent by the Father in relation to the skype time he was having with the children, he accused the Mother of, amongst other things:
Fear of being exposed to your children as the real ‘villain’ in this whole affair..
…fear of facing your shortcomings…
…simple self interest..
In a similar vein, at [526] of his affidavit the Father described that
Ms Powell has shown very limited insight into her role in our separation that escalated into a violent event.
Both in his written and oral evidence the Father presented his perspective on his actions, which he, in part, represented as set out below.
At [527] of his affidavit, the Father states
It may not be politically correct to say so, but the fact is Ms Powell’s actions over the preceding three weeks were a contributor to my behaviour that evening. This is not the same as ‘blaming’ Ms Powell for my violent actions. I do not blame her. I regret them. I admitted them immediately and ever since. I never tried to conceal them. I apologised for them profusely in various text messages to her after the event, and also in a letter proved as Annexure AW, left on her bed that she collected on 12 June 2017. My apologies were sincere.
The Father continues to describe at [528]:
However, I do think Ms Powell was rather cold and deceitful way she went about our separation. I think she was unnecessarily neglectful and indifferent when I was struggling mentally and emotionally in the aftermath. I think she has sought to control our children and prevent them from seeing their father.
The Father states at [529]:
If Ms Powell was in fact ‘cheating’, then that is a very significant thing that she has taken no responsibility for.
The Father alleges that since separation, the Mother and her solicitor have catastrophized his behaviour.[36] As an example of this, the Father states at [546] that:
[36] Father’s affidavit filed 10 October 2019 [546].
In Ms Powell’s March Affidavit she does not acknowledge that the events of June 8-9 happened as part of a separation that she initiated several weeks previously. She phrased things in such as a way as to appear that everything happened because of my suicide attempt on 9-Jun.
The Father additionally responds to the Mother’s claim that he minimises his behaviour by stating that the Mother has sought to ‘maximise’ his behaviours and minimise her involvement. The Father claims that he has sought to ‘actualise’ his behaviour. This appeared to be an assertion that he was assessing the circumstances in a more measured manner.
The Father complained in his oral evidence in relation to this incident that “justice judges you on your worst moment.” As may be seen in this judgment, while the incident of 8 June 2017 is of importance, it is not an isolated event, but occurs within a broader context of his conduct.
It is difficult to conceive of the comments by the Father as anything less than an attempt to transfer responsibility to the Mother for his conduct on the evening. Even if his restraint and assault of the Mother were in response to the Mother’s (in his view uncaring) attempts to stop him killing himself, she is not responsible for the Father’s conduct.
Further, the Father’s assertions of his horror at his conduct toward the Mother, when seen in the context of his complaints as to her ‘role’ ring hollow.
The Father asserts in his affidavit that X and Y “were protected from harm as a first priority above all else”[37] during the incident. This assertion, if accepted as genuine, reflects a failure to recognise the consequences of the Father killing himself in the family home in which the children were present, reflects a failure to recognise the risk of the children being unsupervised for a period as the Mother sought to free herself, and disregards any possibility of the children coming upon the scene of the Father hanging from the roof, the Mother bound and gagged in the car.
[37] Father’s affidavit [598].
The assertion that their protection was his first priority reveals that the Father is either unable to recognise risk to his children, or else highly deceitful. If his assertion is believed by him, he lacks insight into the significance of his conduct in its (potential) impacts upon the children.
The Father has not shown either that he adequately accepts responsibility for his actions, or understands the impact or potential impact of his conduct on either the Mother or the children. This deficit is of importance in weighing the various considerations, particularly those that relate to the benefits of meaningful relationship or risk to the children.
Communication post separation
As noted above, the Father has not spent face to face time with the children since this incident. The Mother initially explained to the children that the Father was sad and not coping and so they were not seeing the Father in order to give him some space. More recently she has explained that the Father is not well.
The Mother said that the children had regular Skype calls with the Father from July 2017 to early 2018.
The Father commenced proceedings in relation to the children in July 2018.
Skype calls recommenced from May to November 2018.
The Mother raised reasonable concerns about the Father’s conduct in the Skype calls and other communications. She explains that he has said to the children:
a)“If you ever see me at the shops, you won’t be able to give me a cuddle because that would make me go to gaol. That’s how mean mummy is”;[38]
[38] Mother’s affidavit [15]f.
b)On 25 September 2018 the Father remained silent during the Skype call with the children, eventually telling the children that he was sad because “your mum has all the money now” and “no-one wants me to see you”;
c)In response to a text message regarding her bicycle, to Y “there is a knife in my chest that mummy wants to twist and twist and twist. Please ask her to take it away and I can be your dad again”;
d)In Skype communications on 31 March 2018 Y suggested that “Well I thought, if you just do what mummy wants you to do, then you can see us.” The Father responded that “No. Because she’s a bully. And when someone’s being a bully, you can’t just give in, can you?” [39]
[39] Mother’s affidavit annexure C page 2 (page 41 of bundle).
This Skype contact ceased on 4 December 2018 at the Father’s request.[40]
[40] Father’s affidavit filed 10 October 2019 [594].
The Father complained that the Mother dictated every aspect of his interaction with the children for 28 months. The Father stated that all communication with the children has been via the Mother’s phone or tablet, has been listened in on while it is happening from the next room and the Mother has recorded all his interactions with the children.[41]
[41] Father’s affidavit filed 10 October 2019 [551].
Given the Father’s conduct as identified above it was reasonable for the Mother to monitor the calls. The Father’s comments were of a nature to undermine the children’s confidence in their Mother, embroiled the children in the dispute between the parents, and placed responsibility on the Mother for the limitations in his time with the children.
Steps were taken to progress to supervised face to face time through the AA Contact Centre. The parties both enrolled, however no time subsequently occurred there.
A Family Report in November 2018 suggested that the children spend time with the Father at AA Contact Centre and orders were made for the parties to make enquiries of AA Contact Centre as to availability.
The Father accepted that he did not pursue time at AA Contact Centre after the November 2018 hearing as he anticipated that even if he asked the Mother she would not want the time to occur. That is, despite orders to facilitate the consideration of such time, the Father did not pursue it.
As at the time of the commencement of the trial, the children had not spent time with the Father for more than 18 months.
Prior to commencing proceedings in relation to financial matters in April 2018, the Mother wrote to the Father asking that he provide what she described as cogent evidence as to his mental health in order to progress Y and X’s time to supervised time.
The Father response to this was that he had been “trying to spare you” and that he had been “very patient in 12 years with someone such as yourself.”
It may be observed that such responses were unlikely to alleviate concerns held by the Mother. They do not grapple with the issues that reasonably flow from his conduct in June 2017 as to his mental stability. Rather they form an aggressive attack upon, and are demeaning of, the Mother.
Other communication has also taken place between the parties following separation. A family violence order was in place for the protection of the Mother. It provided for the Father to be able to attend the Mother’s workplace for the purposes of his work. The necessary precursor to the Father’s attendance at the workplace was his prior notification of attendance. He has notified of his intention to attend on 17 occasions. He has attended on only 5 of those.[42] He says that this is explicable as his work arrangements change.
[42] Mother’s affidavit 14 March 2019 [43].
On 23 November 2017 the Father made one of his notifications to the Mother of his intention to attend the workplace, telling the Mother that if she tried to entrap him into breaking the AVO she would be sent to gaol. The Father subsequently did not attend.
the mother’s fear of the father
Unsurprisingly, particularly given the Father’s conduct of 8 June 2017, the Mother says that she holds fears of the Father. She describes those fears as coming from knowing what the Father is capable of if upset. The Mother says that she is afraid of the Father doing both psychological and physical harm to the children, and afraid that he may hurt the girls because of his grievances against the Mother.
The Father sought to counteract the Mother’s account of fear that the Father will enact retribution upon her in his oral evidence. He said that he became accepting of his circumstances on 29 June 2017, and although he has remained frustrated, that has been mostly directed at the legal profession and system rather than at the Mother. This assertion by the Father sat poorly with his communication (as set out above) to the Mother after 29 June 2017.
The Father testified that he has moved on as much as possible, and that he does not seek retribution. The Father also said he has never entertained the idea of harming the children, and that he has never threatened the Mother. In support of this he asserted that his comment about wanting to kill the Mother on 8 June 2017 was not meant as a threat, but was rather the product of confusion and anger.
MR CHRISTENSEN: The first was on the topic of ill will um that that seemed my my interpretation from Ms Powell’s testimony was that was a very significant underlying reason for her fear um and her concerns for herself and the children was that I had ill will towards her. Um so I wanted to say something about that. Um and that is I actually don’t have much ill-will for her whatsoever um that seemed to be very fruitless um from as early as and I can put it to a particular date and its in my testimonies a particular date I kind of got over that on June 29 2017. Um why I don’t know that’s just my testimony that that was kinda the day I accepted everything that was happening um. Now there has been frustration evident in various communications I have had throughout the last two and a half years that’s for sure I can tell you that almost all of that was directed at I’m sorry to say the legal professional or the legal process, not at Ms Powell herself, um most of it anyway. I can think of some times that um I had concerns um anyway that’s my testimony now there’s there’s no ill will, or very little. Um it doesn’t consume me in any way.[43]
[43] Audio transcript 22 October 2019 at 15.45.
On the subject of retribution, well um given that I don’t have ill will because I have basically moved on from this as much as possible given the legal process um yeah I just its not something I seek, its not its not a useful thing to look for. Um I am very glad the the text message was read into evidence before um because while that was an extremely emotional text message it did have a lot of stuff about how I feel about my children that I would never hurt them um and one thing I have said about the event that happened is even in that moment um there was just it it it was never going to be never even a thought that the children would be hurt and in fact it has been my testimony that concerns for them is actually what stopped the whole thing. Um so that I guess covers the retribution.[44]
[44] Audio transcript 22 October 2019 at 15.47.
The Father’s claims as to the level of his ill will are unpersuasive. The terms of his explanation above are qualified, lacking in a display of self insight and sit poorly with the Father’s testimony regarding 8 June 2017 and the level of blame that he continues to attribute to the Mother.
The Father claimed that his insight and empathy had increased through the hearing of the matter, and that he had not had the opportunity for that insight to grow at an earlier stage. At the end of his oral evidence the Father said that he accepted that he had given the Mother reason to be afraid of him, claiming that he could appreciate that more clearly, in the context of having heard the Mother give evidence. He also said that while, on the basis that he would not hurt the children he was resistant to the idea that the Mother might fear that he would, he claimed that he fully accepted that she had cause to think that he might. He said that he accepted that the Mother felt great anxiety in dealing with him, but he believed that it was possible that this could be changed. The Father’s oral assertions as to insight, against the background of his ongoing blame of the Mother were not persuasive.
In the context of her fears the Mother maintains that the girls miss their Father and she would like them to have a relationship with him. The benefits that she identified in the girls having a maintained connection with the Father include knowing that he is still their Father and that he is both interested and cares enough to continue the interaction (supervised time and Skype calls) with them. The Mother did not consider that such should occur in private, that is, without some form of monitoring.
The Mother said that she would facilitate time with the Father (if ordered), but that she would not be “ok” if it was open, unfettered time, and if it was unsupervised. Her view was that the supervision would be required on an ongoing basis, rather than merely introductory. She said that the supervision should occur through a contact centre.
The effect on the Mother of the children even having Skype time with the Father would be distress and anxiousness, although the Mother maintains that she would facilitate such (presumably on the basis that it was ordered by the Court).
The Mother doubted that she would be able to alleviate her anxiety about the Father, despite having been the recipient of counselling since August 2017, shortly after the June 8 incident. She did not expect to be able to communicate regarding major decisions with the Father in a productive fashion, although she acknowledged that it might be able to occur but not without distress.
While the Mother thought that the Father should undertake a psychological assessment, she was not confident that such would progress her underlying concerns in relation to the Father.
The Father’s treating psychologist
The Father obtained a referral to a clinical psychologist, Mr H, shortly after the June 2017 incident. Mr H described that he has been in practice full time since 1984, having commenced psychological counselling work in 1978. He holds a Masters in Applied Psychology.
Mr H administered a battery of psychological tests on the Father. Despite being the subject of a subpoena that should have resulted in Mr H’s production of those tests, they were not produced to the Court, and were not available for the testing of the evidence of Mr H. Mr H explained that he does not produce such tests to the Court on the basis that lawyers are not qualified to assess them. He did, however, explain the tests and the significance that he assigned to them.
Mr H’s first report of 22 September 2017 concluded that “there is no risk of aggression of any kind from Mr Christensen towards Ms Powell or their children.”
In coming to such a conclusion Mr H relied upon an intermediate opinion:
The question of whether he intended to cause harm to Ms Powell when on 8 June 2017 he attempted to hang himself can be confidently answered in the negative.
Similarly, Mr H thought that the Father:
had no intention, nor acted in a way to cause harm to the Mother other than to neutralise her attempts to prevent him attempting to hang himself.
Mr H put the Father’s conduct down to a tendency on the part of the Father to direct aggression toward himself, to an imbalanced relationship with the Mother, connected to her ending of the relationship, and to each party’s conduct on that evening, which he said escalated the risk to both.
Mr H also formed the view that the Father had developed empathy toward the Mother.
In his second report of 11 October 2018, Mr H considered that the Father had then developed greater insight into his conduct and the effect on the Mother. Mr H thought that the Father’s conduct was not caused by characteristics or psychopathologies “resident” in the Father, but were the result of external factors.
Mr H administered a second battery of tests. He noted that the NEO test indicated that the Father is less likely to act aggressively (presumably than other persons), apparently by a comparison of his characteristics matching those characteristics that tend away from aggression.
Mr H’s conclusion on this occasion was that the Father is a “fit and proper person to parent the children and poses no risk to them.” He thought that the Father is at very low risk of attempting to harm himself given the resolution of the relationship with the Mother.
In assessing the weight to be given to such opinion evidence, absent the operation of the opinion rule at s 79 of the Evidence Act 1995 (Cth), it is necessary to first consider the fact in issue that it is directed to. Having identified that fact, the manner in which the evidence addresses that fact can be assessed. Where it is by the offering of an opinion that the fact is addressed, the factual and expertise related underpinnings (or lack thereof) can be assessed to determine weight.
Here, the fact in issue was as to whether the Father, who has seriously assaulted the Mother, in close proximity to the children, while apparently attempting to hang himself, poses a risk to the Mother or the children.
As identified, the ultimate view offered by Mr H was that the Father does not present a risk at all.
In coming to this view Mr H accepted that he received his information from the Father, and was limited by the veracity of that information. When taken through the uncontroversial description of the events of 8 June 2017 it was apparent that the Father had given to Mr H a less than fulsome description, omitting aspects such as:
a)The assertion that he wanted to “fucking kill” the Mother;
b)That the Father had forcibly grabbed and tackled the Mother;
c)That the Mother had fought against the Father;
d)That the Father threatened to knock the Mother out;
e)That the Father bound the Mother by her thumbs;
f)That the Father gagged the Mother against her struggles;
g)That the Mother wailed, sobbed and struggled to be free;
h)That the Mother pleaded with the Father not to kill himself.
Where the assessment is based on self-report, it follows that the lack of candour on the part of the Father points to some caution as to the assessment.
Mr H explained that he thought that the Father was impulsive and that the 8 June 2017 was an event where the Father was not rational, rather than a syndrome of violence. He accepted that he could not say that the Father would not behave impulsively again.
In the context of this reasonable concession, it was unclear how Mr H was able to positively assert that the Father was “no risk.”
In explaining the various tests in his second report, Mr H placed emphasis on the NEO PI-3 (NEO) test, being “a measure of five dimensions of personality.” He explained:
Research suggests that the likelihood for aggression is “most likely” to be associated with high scores on Neuroticism, a predictor of emotional instability, and is “less likely” where there are high scores on Agreeableness…As reported above, Mr Christensen reported a low Neuroticism score and average Agreeableness score (with high “Altruism”) predictive of him being less likely to act aggressively.
Suicidality risk is higher when a patient suffers from a Borderline Personality Disorder, and Mr Christensen’s NEO Interpretive Report states that he is “unlikely to have a Borderline Personality Disorder.”
As may be seen from the above explanation, the testing dealt with likelihoods, both in terms of diagnosis and in terms of future conduct. It was never explained how the likelihoods were converted into the absolute proposition of “no risk.”
In his first report, which concluded with the opinion that the Father holds no risk of aggression “of any kind” towards the Mother or the children, Mr H asserted that it could be “confidently answered in the negative” that the Father intended to cause harm to the Mother on 8 June 2017. He explained that the Father “had no intention, nor acted, in a way to cause harm to his wife other than to neutralise her attempts to prevent his attempting to hang himself. Furthermore, it is clear that every effort was made to ensure the welfare of his children was safeguarded.” It is unclear how this opinion was reached, other than in reliance on the Father’s own description. It is not clear that the opinion is the product of the application of the expertise held by Mr H. To the extent that it was reliant on the Father’s self-report, it should be noted that the Father’s report to Mr H omitted a number of the details of his cruel conduct to the Mother.
I do not accept the assessment that the assault and binding of the Mother, her extended period of captivity, and his steps to hang himself while she was bound, gagged and watching, were without intention to harm the Mother. I do not accept that they were merely neutralising.
Further, contrary to the assertion that “it is clear that every effort was made to ensure the welfare of his children was safeguarded,” such is not clear. The apparent attempt on his own life was at the home where the children were present, it was unclear how efficacious the measures would be to allow the Mother to free herself, and only limited steps were in place to exclude the children from the garage.
In the second report, Mr H offered that the level of distress experienced by the Father on 8 June 2017, “that led to such self-serving actions, arose from an inherent flaw in the de facto relationship rather than from a (sic) characteristics or pathologies present in Mr Christensen.”
It is unclear how the absence of the identification of a pathology or characteristic resident in the Father excludes risk, as opposed to excluding a possible cause of risk in response to adverse circumstances.
In the second report, save for the limited explanation regarding the NEO test, it remained unclear how, or by what criteria, expertise or method Mr H was able to come to the conclusion that the Father does not present a risk in the light of the incident of 8 June 2017. It was not shown that the NEO test established a no risk proposition in an individual, nor how the Father’s previous conduct was explained in the light of the result of that test.
Mr H’s assertion of a lack of intent to harm on the part of the Father should not be accepted as adding anything to the Father’s own assertions. As identified earlier, I do not accept the Father’s assertions on this point.
Mr H’s assertions of “no risk” should not be accepted. Even if it is accepted that Mr H is correct in assessing a lack of pathology or characteristic in the Father that led to his violent behaviour on 8 June 2017, and is correct that it was responsive to the circumstances of the end of the relationship, the assessment of Mr H does not assist in establishing the ongoing level of risk in the context of the Father’s conduct on 8 June 2017. Such assessment, if accepted, merely establishes that a pathology or characteristic is not the explanation for the violent behaviour on 8 June 2017.
In any event, it should also be observed that the tools used by Mr H, on his description of them, do not exclude the relevant characteristics identified by Mr H as pointing to risk. They merely render those characteristics as unlikely.
Accordingly, on rejection of the “no risk” assessment, Mr H’s reports and evidence do not bear significant weight in assessing the degree of risk.
The family consultant
The children and the parties were interviewed, observed and assessed by Ms E, a Regulation 7 Family Consultant with a Masters of Social Work, for her report prepared on 23 November 2018.
In general terms Ms E recommended that the Mother have sole parental responsibility and that the children live with her. She recommended that the Father have professionally supervised time. She further recommended that the Father undertake a Men’s Behavioural Change Program and engage in a psychiatric assessment with a forensic psychiatrist. She recommended that a change from supervised time be contingent upon this assessment, and the Father’s engagement with treatment (if necessary) and following feedback from the behavioural change program.
The Father accepted that, despite the recommendation of the Family Consultant that he undertake a behaviour change program, he has not done so.
The basis for the recommendation of a sole parental responsibility order flowed from her assessment of the qualities of the parties’ relationship meaning that co-parenting communication would not occur “in a context of mutual respect, shared confidence in the other parties’ motivation, or in a balance of power required to make cooperative decisions.” She was further concerned that to force the Mother to communicate with the Father would not be a step promoting her emotional stability, placing her in “a position of coercion and insecurity, whereby her capacity to be emotionally available to (the children) would also be decreased.”
This assessment drew from the Father’s views of the Mother and her personal deficits and the Father’s attribution to the Mother of part responsibility for his conduct on 8 June 2017.
Ms E considered that the views expressed by the Father regarding the Mother accepting (part) responsibility for his actions on 8 June 2017 demonstrated a “distortion of cognition” and “a concerning degree of vulnerability regarding his insight.” She considered that “(j)ustification for his behaviour in the context of Ms Powell not allowing him to suicide offers further indication of his projection of responsibility against Ms Powell.”
Further, in relation to the events of 8 June 2017, Ms E observed:
Whilst Mr Christensen may have felt suicidal on that evening, the dynamics, actions and events of that evening demonstrate behaviours consistent with family violence. Ms Powell’s defencelessness once bound, gagged and restrained demonstrates a serious level of deprivation of her freedom. Furthermore, her physical placement facing Mr Christensen’s alleged suicide attempt is indicative of further emotional trauma, requiring her to watch his claimed attempts to hang. His ongoing verbal commentary of his actions further restricted any opportunity for her to limit any exposure to his actions, particularly given her restrained state. The context of Mr Christensen making statements earlier that day to the effect of Ms Powell ‘not deserving a family’, and him having a desire to ‘kill’ her, further indicates the existence of behaviours consistent with family violence.
The Mother described to Ms E that she feared for her own life, and feared for the children and the potential involvement of them in the Father’s plans.
These attributes of the conduct of the Father on 8 June 2017 were seen by Ms E to fall within a broader context of family violence by the Father toward the Mother. She identified the Father’s view during the relationship that the Mother’s views were inferior to his, of her having limited emotional intelligence, of his blame of the relationship demise almost wholly on the Mother, of his denigration of the Mother, of his “insistent persuasion of others to accept responsibility for his feelings and to align to his opinions” as coercive and controlling. An example of this can be seen in the Father’s own description of conflict with the Mother during the relationship to Ms E:
In time you get frustrated and then there’s conflict. Ms Powell would get surprised because she hasn’t seen the issue.
Frustration in conflict is explained as, ‘usually a form of long draining conversation. Because Ms Powell would shut down, it would feel one-sided and that I was talking at her’. Mr Christensen further explained from his position that, ‘a lot of it was me explaining why it had become an issue. Ms Powell didn’t have that insight. The inability to feedback, to provide any emotional feedback would lead to all this.
The Mother’s corresponding description to Ms E:
During times of conflict within their relationship, Ms Powell reports that Mr Christensen was ‘very forthrightly telling me, criticising me or highlighting any deficiency I may have, and what I haven’t done right according to him’. She described any attempts for her to offer her perspective in disputes as being limited by an unwillingness from Mr Christensen to accept any views outside of his own. In this regard, Ms Powell tended to disengage and consequently, conflict was not loud or overt.
The Mother also described that when she was diagnosed with cancer:
He was still being very critical of how I was behaving and responding; I think he expected me to react in a certain way’. ‘Even at the shittiest time of my life, I felt criticised’.
It should be observed that conflict in a relationship does not necessarily equate to coercion or control. Similarly, a mismatch in communication or conflict resolution does not necessarily equate to coercion or control. Rather, as here, conflict and communication dynamics reflect coercion and control where there is a power imbalance demonstrated in the imposition of the Father’s views and perspectives upon the Mother, aided by criticism, denigration and an insistence that the Father’s viewpoints prevail.
Further concern emerges from Ms Dodd’s recitation of the Father’s attribution of part responsibility upon the Mother for his conduct on 8 June 2017:
[42] Mr Christensen offers acknowledgement of his actions to restrain Ms Powell being inappropriate stating, 'the whole time I've said I shouldn't have done that. My biggest concern is no one has looked at the broader context, no one has. It's not like someone snapping in the moment. It was emotional torture of three weeks I'd describe as cruelty; complete disregard and scorn from her'. He adds, 'I've taken responsibility for my part, but Ms Powell's taken zero. From day one I've said I did it. There's some proof in the recordings because before the incident Ms Powell said she was a bad person. Now, I'm the worst person in the world'. Mr Christensen further adds that between the three weeks of the parties' relationship ending and the incident, 'the vast majority of my behaviour was calm and me doing the best I can. Ms Powell? Come on, let's give it some acknowledgement there was some level of responsibility of hers. My objection is that to date, there's an assumption she has none'.
[43] Communication between the parents since the separation has been obstructed by Ms Powell's unwillingness to negotiate with him or to communicate with Mr Powell directly from his perspective. He offers, 'Ms Powell has not embraced anything with the spirit of cooperation or negotiation. It's very hard to reach any negotiation when it's all characterised as a crazy out of the blue violent event with no context whatsoever. Ms Powell has to accept her responsibility and her part'.
Ms E observes that this represents for the Father a “sustained challenge recognising the impact of his behaviours on others and accepting personal responsibility.” She says of this:
In this context, Mr Christensen’s persistent desire to seek validation of his behaviour in the context of a family separation represents a distortion of cognition and a concerning degree of vulnerability regarding his insight. A sole association of his actions in the context of an alleged suicide attempt, substantially misrepresents the actions of that evening and the gravity of risk therein in regard to family violence. Justification for his behaviour in the context of Ms Powell not allowing him to suicide offers further indication of his projection of responsibility against Ms Powell.
This results in the Mother holding the Motor Vehicle 1, recreational vehicle and added back legal fees at $76 450. Taking into account relevant debt would reduce that to $60 450.
The Father would hold the Motor Vehicle 2, business, add-backs and cryptocurrencies at $181 566. Taking into account relevant debt held by him would reduce that to $178 380.
The parties contested who should receive the gold and silver held at the Company G.
If the Mother were to receive this, her property rises to $111 885.
This would leave the Mother as receiving 38.5 per cent, the Father 61.5 per cent.
The Mother sought from the Father a $100 000 payment, which was opposed by the Father. This amount equates to the amount held in cryptocurrency by the Father.
Should such an adjustment occur, the Mother would receive, in terms of the net non-superannuation pool 73 per cent, the Father 27 per cent.
The parties agreed that the Mother should retain her Super Fund 1 superannuation, and the Father his Super Fund 2. The parties also agreed that the Mother should retain her interests in the SMSF, and that she should roll that into another fund and then relinquish her involvement with the SMSF. The SMSF should then be solely the responsibility of the Father.
The parties contested whether the Father should retain his interest in the SMSF, or whether half of his interests ought to be assigned to the Mother. The Father sought to retain his full interests in the SMSF.
If orders were made in accordance with the Mother’s application in relation to superannuation, she would hold superannuation at $328 596.31, the Father would hold superannuation at $118 903.39.
This would equate to a division of the non-superannuation pool at 73 per cent to the Mother, and 27 per cent to the Father, and a division of the superannuation pool at 73 per cent to the Mother and 27 per cent to the Father.
This falls short of the 75 per cent adjustment to the Mother as sought by her and which, by virtue of an assessment of her contributions and the s 75(2) factors constituted an appropriate adjustment. However, the particular makeup of the pool, and effect of the orders when considered in the light of Wynona v Friend points to the division, in the manner identified above, at 73 per cent – 27 per cent, in accordance with the orders sought by the Mother, as just and equitable rather than a strict 75 per cent – 25 per cent division.
While the Father argued that an adjustment for the superannuation ought not to be made as it would not impact on the Mother’s capacity to care for the children, such a link is not required. The adjustment of the property overall is to meet the various factors as set out in s 90SM as they incorporate s 90SF. It should also be borne in mind that the Mother’s responsibility for the children bears upon her capacity to place her efforts in other spheres that carry with them greater capacity to accumulate superannuation, and so constitutes both a circumstance of which the justice of the case requires consideration and a consideration of the income, property and financial resources of the Mother together with her care and control of the children.
Conclusion
Orders in relation to property should be made generally as sought by the Mother.
I certify that the preceding three-hundred and ninety four (394) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 13 November 2020.
Associate:
Date: 13 November 2020
Annexure A
MINUTE OF FINAL ORDERS SOUGHT BY THE APPLICANT MOTHER
3 April 2019
Final Order - Parenting
The children Y born … 2009 (aged 9 years) and X born … 2011 (aged 7 years) ("the children") live with the Applicant.
The Applicant have sole parental responsibility for the children.
The Respondent be at liberty to send letters, cards and gifts to the children to the following address, Parcel Locker …, 53-73 Alinga Street, Canberra ACT 2601.
Otherwise, there be no order for time or communication between the Respondent and the children.
Within 48 hours, the father deliver to the offices of the mother's solicitors, any passports and birth certificates for the children and the mother.
The children be permitted to have an Australian travel document and leave the Commonwealth of Australia to travel overseas at the sole discretion of the Applicant.
The Applicant be permitted to make a sole application to the Department of Foreign Affairs and Trade ("the Australian Passports Office") for the children to be issued with an Australian travel document, without the Respondent's consent and/or his execution of the application form.
To give effect to paragraph 10 above:
a.The Applicant be permitted to provide to the Australian Passports Office an original or certified copy of these Orders; and
b.Upon sole application by the Applicant (and meeting any other administrative requirements), the Australian Passports Office grant the application for the children's Australian travel document, with the requirement for the Respondent's consent or signature to be dispensed with.
Upon the expiry of the children's passports, the Applicant be permitted to make an application to the Australian Passports Office to re-new the children's passports at any time, and without the Respondent's consent and/or his execution of the application or renewal form.
Final Order - Property
Retention of existing assets
The Applicant retain, to the exclusion of the Respondent, and be declared the sole beneficial owner of the following:
a.Motor Vehicle 1 (Registration No. …);
b.Recreational vehicle;
c.Funds standing to the credit of bank accounts in her sole name, including but not limited to P Bank Account (x…2l), P Bank Bank Savings Account (x…20) and NAB Savings Account (x…95);
d.Gold and silver held with Company G, and the Respondent, within 48 hours of these Orders, sign all documents as may be required to transfer his interest and ownership of the metal holdings to the Applicant;
e.All household contents in her possession; and
f.Her superannuation entitlements with Super Fund 1.
The Respondent retain, to the exclusion of the Applicant, and be declared the sole beneficial owner of the following:
a.Motor Vehicle 2 (Registration No. …), and the Applicant, within 48 hours of these Orders, sign all documents as may be required to transfer her interest and ownership of the motor vehicle to the Respondent at his sole cost and expense;
b.Funds standing to the credit of bank accounts in his sole name;
c.Bitcoin and like cryptocurrencies registered in his sole name;
d.His interest in K Pty Ltd; and
e.His superannuation entitlements with Super Fund 2.
The Payment
The Respondent pay to the Applicant the sum of $100,000 ("the Payment"), in four instalments of $25,000, to be paid in the following manner:
a.On or before 5 June 2019, the first instalment of $25,000;
b.On or before 7 August 2019, the second instalment of $25,000;
c.On or before 2 October 2019, the third instalment of $25,000; and
d.On or before 4 December 2019, the final instalment of $25,000.
In the event the Respondent defaults in making the Payment (or any instalments) within the specified period of time, the Respondent shall pay to the Applicant interest at the rate prescribed in the Family Law Rules 2004 from time to time, calculated daily, upon such part of the Payment that remains outstanding.
Pending the completion of the Payment, the Respondent be and is hereby restrained from dealing with, encumbering or disposing of his interest in K Pty Ltd trading as Q Company ("the business").
…
Applicant's exit from various corporate structures
Subject to each party's compliance with the terms of these Orders, the Applicant and the Respondent do all acts and things and sign all such documents, at the Respondent's sole cost and expense, as are required to:
a. Facilitate the Applicant resigning as a director of each of N Pty Ltd ("the Company") (and in doing so, substitute the husband as sole director and secretary of the entities);
b. Facilitate the wife transferring her six (6) ordinary shares (being $6.00) in the Company, to the Respondent (including provision by the wife of a duly executed Share Transfer in registrable form);
c. Facilitate the removal of the Applicant as an appointor and beneficiary of the Christensen Family Trust ("the Trust");
d. Relinquish any and all interest the Applicant had, has, or may have in the future, in the Trust (including any and all assets of the Trust) in her capacity as a beneficiary of the Trust.
Indemnities
The Applicant indemnify the Respondent, and keep him indemnified, against unpaid liability arising from, or associated with, the following:
a. Any debt or liability in the sole name of the Applicant, including but not limited to her P Bank Personal Loan (x5000).
The Respondent indemnify the Applicant, and keep her indemnified, against unpaid liability arising from, or associated with, the following:
a. Any claim, action, suit or demand made against the Applicant in relation to the Company or the business, including but not limited to such as may arise against the Applicant in her capacity as an employee, shareholder, director, trustee, appointor, beneficiary, creditor, guarantor, debtor or company member;
b. Any debt or liability in the sole name of the Respondent;
c. Credit cards in the husband's sole name, including his NAB card (x…07) and American Express card (x…05).
Qantas Frequent Flyer Points
Within 14 days, the Respondent do all acts and things and sign all such documents as may be required to transfer to a frequent flyer account nominated by the Applicant one half of his points held with American Express account number ending x…05 and Qantas Frequent Flyer Program. In the event that the Respondent is not able to transfer one-half of his frequent flyer and credit card reward points in one single transaction, the Respondent do all acts and things and sign all such documents as may be required to transfer the maximum number of frequent flyer points per annum to the Applicant until such time as the Applicant receives one half of all frequent flyer points held by him as at the date of his first transfer.
Catch-all clause
That save as otherwise provided for in these Orders:
a. Each party shall be solely entitled to the exclusion of the other to all property (including chose-in-action) in the possession of such party as at the date of these Orders;
b. Monies standing to the credit of a party in any bank account is to become the property of the party in whose name the account is registered;
c. Each party shall forego any claim or claims the party may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to, or earned by, the other;
d. Insurance policies remain the sole property of the owner named thereon;
e. Each party shall be solely liable for, an indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
f. Any joint tenancy of the parties in any real or personal property is hereby expressly severed.
Liberty to the Applicant to apply with respect to implementation of these Orders upon seven (7) day's written notice.
The Respondent pay the costs of the Applicant of and associated with her Application in a Case filed on 1 August 2018 in accordance with the Federal Circuit Court Rules and fixed in the sum of $3,480 (and which were reserved to the Final Hearing).
Prepared by DDCS Lawyers on behalf of the Applicant Wife
Date: 2 April 2019
FINAL ORDERS SOUGHT BY THE APPLICANT MOTHER – SUPER SPLITTING ORDERS
21 October 2020
Noting the Applicant’s compliance with Orders made on 30 March 2020 and noting the Applicant and Respondent will have been accorded procedural fairness as trustees in accordance with those orders in relation to making of the superannuation splitting orders, these Orders bind the Trustees of the Fund.
The next three clauses immediately following this clause of this Order are collectively referred to as “the Splitting Order”.
Orders 4 to 6 (inclusive) have the effect from the operative time and the operative time means 30 June 2020.
That a base amount be allocated, as required by section 90 XT (4) of the Family Law Act 1975 to the Applicant out of the Respondent’s superannuation interest in the Fund by reference to the following method:
BA = RMB divided by 2
Where:
RMB = The Respondent’s Member Benefit in the Fund as at 30 June 2020
BA = Base Amount.That in accordance with paragraph 90XT(1)(a) of the Family Law Act 1975:
5.1the Applicant is entitled, using the base amount allocated in the clause immediately preceding this clause of this Order, to the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
5.2The Respondent’s superannuation entitlement (and the entitlement of any other person to payments out of the Respondent’s superannuation interest) in the Fund, is correspondingly reduced.
The Trustees do all such acts and things and signed all such documents as may be necessary to:
6.1calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Applicant in the clause immediately preceding this clause of this Order; and
6.2pay the entitlement whenever the Trustee makes a splittable payment out of the Respondent’s superannuation interest in the Super Fund.
6.3To facilitate orders 6.1 and 6.2 above, the Trustees will engage J Accountants to complete all work associated with implementation of the super splitting order
The service of this Order shall be deemed to have occurred on the date of this Order by reason that the Applicant and Respondent are the sole Trustees of the Fund and the Court notes that service will enliven the operating standards under Part 7A of the Superannuation Industry (Supervision) Regulations 1994.
That after service by the Trustee of the payment split notices pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994 in accordance with the operating standards under the Superannuation Industry (Supervision) Regulations 1994, the Applicant shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising her request pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 (“the Applicant’s r.7A.06 Request”) for the transfer of the Transferable Benefits to be transferred to another complying superannuation fund (“the Applicant’s New Super Fund”).
That forthwith upon the making of these Orders, the Trustees shall convene a meeting by the recording of minutes and not later than 14 days after receipt of the Applicant’s r.7A.06 Request and in that meeting do all such acts and things, and sign all such documents as may be necessary to authorise:
9.1the sale of investments to ensure it has sufficient by way of cash to transfer the Transferable Benefits on behalf of the Applicant to the trustee of the Applicant’s New Super Fund; and
9.2the transfer of the Transferable Benefits (in accordance with the operating standards in r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994).
Pending the transfer of the Transferable Benefits on behalf of the Applicant to the trustee of the Applicant’s New Super Fund:
10.1The Applicant and Respondent be and are hereby restrained from dealing with, charging, encumbering or disposing of any of the investment property of the Super Fund other than in accordance with the terms of this Order; and
10.2The Applicant and Respondent shall immediately revoke any binding death benefit nomination already made and each party be, and is hereby, restrained from:
10.2.1making any binding death benefit nomination in favour of a child described in regulation 13 of the Family Law (Superannuation) Regulations 2001;
10.2.2making any other nomination where the effect of such nomination would be to render any splittable payment not splittable; and
10.2.3doing any such act or thing which would defeat, extinguish or reduce the entitlement of the Applicant under this Order.
And for the avoidance of doubt, following completion of the transfer of the Transferable Benefits to the trustee of the Applicant’s New Super Fund, the Respondent may attend to his death benefit nomination.
For the purposes of these Orders, any action required of the Trustees may be undertaken by and or satisfied by actions taken by the Applicant alone, on condition that the Applicant provides to the Respondent prior written notice of her intention to take that action.
AND IT IS NOTED:
A.The value of the Transferable Benefits to be transferred from the Respondent’s interest in the Super Fund to the trustee of the Applicant’s New Super Fund are calculated in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994; and
B.Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the Respondent’s interest in the Fund made after the Trustee has transferred the Transferable Benefits from the Respondent to the trustee of the Applicant’s New Super Fund are not splittable payments.
FATHER’S ORDERS SOUGHT[106]
[106] Father’s Case Information filed 18 October 2019
18 October 2020
Final Orders – Non-Superannuation Property
Dissolution of Existing Assets – Non-Superannuation
That, within 7 days of these Orders, the parties sign all documents as may be required to close any joint bank or credit card accounts, including but not limited to:
a. NAB Account (x…75).
Retention of Existing Assets – Non-Superannuation
That, there being no current and joint liabilities that also existed at the time of separation, the parties retain their current liabilities, and the non-superannuation assets of the parties be divided, in proportions of approximately 40% to the Applicant and 60% to the Respondent, as follows:
a. The Applicant retain, to the exclusion of the Respondent, and be declared the sole beneficial owner of the following:
i. Motor Vehicle 1 (Registration …);
ii. Recreational Vehicle;
iii. Funds standing to the credit of bank accounts in her sole name, including:
1. P Bank Account (x…21);
2. P Bank Savings Account (x…20); and
3. NAB Savings Account (x…95).
b. The Respondent retain, to the exclusion of the Applicant, and be declared the sole beneficial owner of the following:
iv. Motor Vehicle 2 (Registration …), and the Applicant within 7 days of these orders, sign all documents as may be required to transfer her interest and ownership of the motor vehicle to the Respondent at her sole cost and expense;
v. Gold, silver and cash held with the Company G (x…40) and the Applicant, within 7 days of these Orders, sign all documents as may be required to transfer her interest and ownership to the Respondent at her sole cost and expense;
vi. Bitcoin and like cryptocurrencies;
vii. Funds standing to the credit of bank accounts in his sole name, including:
1. NAB Account (x…82);
2. S Bank Account (x…65);
viii. K Pty Ltd, via Christensen Family Trust, in accordance with Orders 4 to 12 in these Orders.
N Pty Ltd & Christensen Family Trust
That for the purposes of these Orders:
a. References to “the Trust” means the Christensen Family Trust (“the Trust”);
b. References to “the Trustee” means N Pty Ltd (“the Trustee”);
c. The Trustee is currently in an ASIC status of “delisted”;
d. The directors of the Trustee are the Applicant and the Respondent;
e. The Trustee’s sole asset is the company K Pty Ltd, from which the Respondent derives his income.
That, within 7 days of the execution of Order 3(b)(v) of these Orders, the Respondent shall pay the ASIC Reinstatement Fee for N Pty Ltd (“the Reinstatement fee”), estimated by ASIC to be $1201.
That, within 7 days of the execution of Order 5 of these Orders, the Applicant and the Respondent shall do all acts and things and sign all such documents such that the Trustee is relisted with ASIC.
That, within 7 days of the Trustee being relisted, the Respondent shall do all acts and things to determine:
a. whether there are any other outstanding fees, duties, taxes or other liabilities of the Trust and the Trustee (“the Trust’s liabilities”) and provide to the Applicant’s solicitors all documents and information in respect thereof;
b. The cost of complying with Order 9 of these Orders and provide to the Applicant’s solicitors all documents and information in respect thereof.
Upon 7 day’s written notice, liberty to the Respondent to apply to the court with respect to the payment of the Trust’s liabilities.
That, upon compliance with Orders 3 to 7 of these Orders, and with the exception of further applications being made in respect to Order 8 of these Orders, within 7 days, the Applicant and the Respondent shall do all acts and things and sign all such documents as are required to:
a. Facilitate the Applicant resigning as a director of the Trustee and in doing so, substitute the Respondent as sole director and secretary;
b. Facilitate the Applicant transferring her all her ordinary shares in the Trustee, to the Respondent (including provision by the Applicant of a duly executed Share Transfer in registrable form);
c. Facilitate the removal of the Applicant as an appointor and beneficiary of the Trust;
d. Relinquish any and all interest the Applicant had, has, or may have in the future, in the Trust (including any and all assets of the Trust) in her capacity as a beneficiary of the Trust.
That upon completion of Order 9 of these Orders, the Respondent retains K Pty. Ltd. and is declared the sole beneficial owner, to the exclusion of the Applicant.
Indemnities
The Applicant indemnify the Respondent, and keep him indemnified, against unpaid liability arising from, or associated with, the following:
a. Any debt or liability in the sole name of the Applicant, including but not limited to:
i. her P Bank Personal Loan (x…00);
ii. her Amex card (x…01)
iii. her personal loan from Mr M.
The Respondent indemnify the Applicant, and keep her indemnified, against unpaid liability arising from, or associated with, the following:
a. Any debt or liability in the sole name of the Respondent, including but not limited to
i. his NAB Visa card (x…07);
ii. his Child Support payment debt;
iii. his personal loan from K Pty Ltd.
Final Orders –Superannuation
Christensen Superfund
That for the purposes of these Orders:
a. References to “the Fund” means the Christensen Super Fund (“the Fund”);
b. The trustee of the Fund is the Applicant and the Respondent jointly (“the Fund Trustees”); and
c. The Applicant and the Respondent are the members, and the only members, of the Fund.
The Applicant, within 30 days of these Orders:
a. At her sole cost and expense, do all acts and things necessary to make the Fund compliant with the requirements of the Superannuation Industry (Supervision) Act 1993 and other superannuation regulations and relevant tax obligations, including but not limited to lodging annual tax returns, and be liable for, and pay, all associated fees and penalties arising from the Super Fund’s non-compliance, and indemnify the Respondent in relation to those liabilities;
b. Provide to the Respondent:
i. The completed member statements for each member; and
ii. All documents completed and or lodged in compliance with Order (a) above, including but not limited to the financial statements and tax returns of the Fund.
Upon compliance with Order 14 of these Orders, the parties, in their respective capacities as Fund Trustees, do all acts and things and sign all such documents as may be required to:
a. Determine the value of each party’s net member entitlement in the Fund, as at the operative time;
b. Roll out total balance of the Applicant’s member account in the Fund (including the transferrable benefit) to an industry or retail fund of her nomination;
c. Facilitate the Applicant resigning as a director of the Trustee and in doing so, substitute the Respondent as sole trustee,
d. Should Order (c) above not be possible under SMSF legislation, upon 7 day’s written notice, liberty to the Respondent to apply with respect to the Applicant’s disengagement of any role with the Fund.
Retention of Existing Assets –Superannuation
Upon compliance with Orders 14(a)-15(c) of these Orders, and with the exception of further applications being made in respect to Order 15(d) of these Orders:
a. The Applicant retain, to the exclusion of the Applicant, and be declared the sole beneficial owner of the following:
i. Her superannuation entitlements with Super Fund 1;
The Respondent retain, to the exclusion of the Applicant, and be declared the sole beneficial owner of the following:
i. His superannuation entitlements with Super Fund 2;
ii. His superannuation entitlements with Christensen Superfund.
Final Orders – General Property
Costs
All costs applications made by the Applicant be dismissed;
Upon 28 days written notice, liberty to the Respondent to apply for and file evidence for costs orders with respect to:
a. Costs and losses in relation to litigation with the Applicant between incurred between 16-May 2017 and the date of application;
b. Cost and losses in relation to executing these Orders.
Catch-all Clause
That save as otherwise provided for in these Orders:
a. Each party shall be solely entitled to the exclusion of the other to all property (including chose-in-action) in the possession of such party as at the date of these Orders;
b. Monies standing to the credit of a party in any bank account is to become the property of the party in whose name the account is registered;
c. Each party shall forego any claim or claims the party may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to, or earned by, the other;
d. Insurance policies remain the sole property of the owner named thereon;
e. Each party shall be solely liable for, an indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
f. Any joint tenancy of the parties in any real or personal property is hereby expressly severed.
Final Orders – Parenting
That for the purposes of these orders:
a. References to “the children” means Y born … 2009, aged 10 years, and X born … 2011, aged 7 years (“the children”).
b. References to “the parents” means the Applicant and the Respondent (“the parents”).
That immediately:
a. The children shall communicate with the Respondent each Tuesday between 6.00pm and 6.30pm by Skype or other video or audio call;
b. The Respondent be at liberty to send emails, chat or text messages to the children;
c. The Respondent be at liberty to send letters, cards and gifts to the children to the following address, Parcel Locker …, 53-73 Alinga Street, Canberra ACT 2601.
Upon successful completion of the Reintroduction Programme proscribed in these Orders (“the Programme”):
a. The Applicant and Respondent have shared parental responsibility for the children.
b. During ACT primary school weeks ("term") the children will live with their Respondent from every second Monday afternoon to the following Monday morning, unless otherwise agreed by the parents in writing.
c. That during ACT primary school holidays ("holidays"), except Christmas, the children will live with their Respondent for one half of each period, the first half in each even numbered year and the second half in each odd numbered year, unless otherwise agreed by the parents in writing.
d. That during Christmas holidays, the children will live with their Respondent for one half of each period in total, and that the particular weeks will be the opposite of the previous year, unless otherwise agreed by both the Applicant and Respondent in writing.
e. During school term, any changeovers will occur at the children's school, otherwise the parent to whom the children are travelling will collect the children from the residence of the other parent, unless otherwise agreed by both the Applicant and Respondent in writing.
f. That the Respondent should be allowed to seek and to know the children's home address when with their Applicant to facilitate the practical implementation of these orders and their care, over and above the protection order the Applicant has sought and obtained against him.
g. The Respondent may send the children letters, cards and gifts at any time and the Applicant shall give them to the children unless she has reasonable cause to consider that any particular item would be inappropriate for the children to receive, in which case she will notify the Respondent immediately and seek an agreement.
h. That the Applicant shall make the phone available to the children when they are living with her, and the Respondent may communicate with the children at any time in the form of calls, chat, messages or emails.
i. That the children shall not be prevented from communicating with the other parent whenever they wish, provided it is practical for them to do so at that moment.
j. That the children's use of the phone be supervised by the parent they are with, but that the children's communication with the other parent shall be kept private, and not monitored nor recorded, unless there is reasonable cause to review the children's communications, in which case the parent will seek the other parent’s approval to do so but will not do so unless agreed in writing.
k. That any other use or access of the phone or its data, besides communicating with either parent, be agreed by the Applicant and Respondent in writing, including any use or access of the phone by either parent.
l. Each parent shall notify the other of any medical emergency, illness or injury the children suffer while in that parent's care that the parent considers serious enough to require treatment by a health professional and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
m. That the parents shall maintain a shared calendar with the children's significant scheduled activities, and significant unscheduled activities shall also be recorded in the calendar where "Significant activities" includes anything related to the shared and equal parenting responsibility of each parent, including but not limited to, school events outside normal schooling, such as excursions and performances, social events such as birthday parties, shows and play dates, extra-curricular events such as sports and lessons, health and wellbeing events such as medical appointments, any travel more than 50km outside the borders of the ACT, the children being in the care of another adult for any period of time.
n. That the parents shall share any communication provided by the children's school, teachers, instructors or health professionals with the other parent, unless they are confident the other parent received the same information.
o. That the Respondent and Applicant are to be mindful of the conversations they have with the children so as to ensure that the children are not involved or burdened with adult issues or conflict.
p. That the Applicant is restrained from denigrating or criticising the Respondent to the children or allowing any third party to denigrate or criticise the Respondent in their presence.
q. That the Respondent be allowed to communicate directly with the Applicant on any topic to do with the children, over and above the protection order the Applicant has sought and obtained against him.
r. That the Applicant is restrained from moving her place of residence to anywhere outside of the ACT.
s. That the parents are to continue to have the children attend W Primary School unless they agree in writing to enrol the children in a different school.
t. That the Respondent should be allowed to be at the children's school, currently W Primary School, for special events or any other reason to do with the children or their care, and at the same time as the Applicant, over and above the protection order the Applicant has sought and obtained against him.
The Reintroduction Programme
The Programme will be determined a suitably qualified and independent professional, agreed to by all stakeholders (including the parties and the professionals), and shall be designed to:
a. address the concerns of all stakeholders with respect to the safety and well-being of the children, their reintroduction to the Respondent and the ultimate resumption of shared parenting arrangements as per Order 23;
b. be reasonably able to be completed, within a fixed period of its commencement of not less than 6, and not more than 12 months;
c. May include actions and activities to be undertaken individually by the parents and the children, or by both, including but not limited to obtaining a new, updated and independent family report, counselling sessions, supervised visits, consultation with medical and health professionals, mediation sessions and education sessions, psychological or psychiatric assessments.
The Programme shall be defined in a document agreed to by all stakeholders and ordered within 28 days of the execution of these Orders and deemed to have commenced immediately thereupon.
The successful completion of the Programme will be adjudicated by the court or by a designated and fully independent third party agreed by the parents, and its successful completion of the Programme shall, notwithstanding further applications, result in the execution of Order 23.
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Statutory Interpretation
Legal Concepts
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Procedural Fairness
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Expert Evidence
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Remedies
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Fiduciary Duty
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Constructive Trust
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Statutory Construction
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