Prantage and Prantage

FAMILY COURT OF AUSTRALIA

PRANTAGE & PRANTAGE

[2010] FamCA 1198

FAMILY LAW – CHILDREN – Parenting proceedings – Accusations of parental alienation – Interim orders to try and resume relationship of mother and children
FAMILY LAW – PROPERTY – Contribution arguments
FAMILY LAW – CHILD SUPPORT – Departure where wife has an interest in a discretionary trust but is also joint trustee and decision made not to make distributions

Family Law Act 1975 (Cth)

APPLICANT:

Ms Prantage

RESPONDENT:

Mr Prantage

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:

MLC

11263

2008

DATE DELIVERED:

24 December 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

19, 20, 21, 22, 23, 26, 27, 30 JULY 2010; 30, 31 AUGUST 2010; 1 SEPTEMBER 2010

WRITTEN SUBMISSIONS Last filed 18 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS SMALLWOOD

SOLICITOR FOR THE APPLICANT:

LAMPE FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT:

MR NORTH SC WITH MS BENJAMIN

SOLICITOR FOR THE RESPONDENT:

GADENS LAWYERS

COUNSEL FOR THE RESPONDENT:

MR KIERNAN

SOLICITOR FOR THE RESPONDENT:

T J MULVANY & CO

Orders

That all outstanding parenting proceedings be adjourned for mention at 10.00am on 6 December 2011 for the purposes of:
(a) hearing evidence as to the events subsequent to these orders;
(b)submissions as to what (if any) final parenting orders should be made.
That all existing parenting orders are discharged.
That until further order, the husband and the wife attend upon and at the direction of, either Ms … or Ms … (“the counsellor”) for the purposes of endeavouring to establish a relationship between the wife and the children M born … December 1998 and D born … June 2002.
For the purposes of paragraph 3, the husband deliver the children to such appointments with the counsellor as may be required and directed by that counsellor.
That the costs of such appointments be borne equally between the parties but be subject to review in any future proceedings.
That from Sunday 16 January 2011 and until further order, the wife spend time with the children on each Sunday from 12 noon until 6.00pm and for that purpose, the husband deliver the children to and collect them from, the outside of the wife’s residence.
That until further order, the husband have responsibility for making major long term decisions concerning the children’s health and education provided that at all times, he notify the wife of such decisions in writing.
That the Independent Children’s Lawyer and Ms G if the Independent Children’s Lawyer and Ms G feel it is appropriate, advise the children in age-appropriate language of the following:
(a)the Court’s finding in respect of the incident that occurred on 16 November 2008;
(b)the Court’s direction that there will be an endeavour made with the assistance of the counsellor to develop a relationship between the wife and the children;
(c)the Court’s order that the husband is required to attend the counsellor and deliver the children there;
(d)the Court’s finding that supervision of the wife and the children was unnecessary, and the order that there will be no more such supervision;
(e)that in the event that the endeavour referred to is unsuccessful, the Court will determine whether in the future, the children will live with their mother or their father and what time (if any) they will spend with the other parent;
(f)that the husband has been ordered by the Court notwithstanding his expressed perception of the wife to the contrary, to encourage the children to have a positive relationship with their mother;
(g)the order that everything that is said by the counsellor and to the counsellor by any person including the children and any observations as to the behaviour of such persons including the children, will be reportable to the Court for consideration at any adjourned hearing.
That until further order, the children live with the husband.
That all parties have liberty to apply upon formal application.
The counsellor will assist the parties as to the appropriate time to be spent by them with the children for religious, cultural, educational and secular events and to the extent that there is disagreement by a party, the counsellor shall make such direction as is necessary consistent with the progress of the program referred to in paragraph (3) of these orders.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That by way of departure from the administrative assessment of child support, I direct the Registrar of Child Support to add $36,000 to the taxable income disclosed by the wife for the purposes of determining her child support income for the financial years ended 30 June 2010, 2011 and 2012.
That the husband provide a copy of these orders to the Child Support Agency.
That the wife pay to the husband $140,700 such sum to be paid by agreement and failing agreement by 28 February 2011.
That upon production by the husband of a transfer of land in registrable form, the wife do all acts and things and sign any necessary document to transfer to the husband at his expense, all of her interest in the P property.
That the wife retain and the husband relinquish any interest in:
(a)       The E property;
(b)       New South Wales taxi cab licence … licence number …; and
(c)       The National Australia Bank shares.
That the husband retain and the wife relinquish any interest in:
(a) the Telstra shares; and
(b) the Commonwealth Bank Streamline account.
That each party retain their superannuation and the other party relinquish any interest in the superannuation interests of the other.
That the husband do all things required to transfer to the wife, at her expense, any interests he may have in V Pty Ltd and sign any document to relinquish any corporate responsibility for that entity.
That the wife pay and indemnify the husband against any taxation liability arising from the activities of V Pty Ltd.
That all property applications be otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11263 of 2008

MS PRANTAGE

Applicant

And

MR PRANTAGE

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Until an incident occurred on 16 November 2008, M (then aged nine years but now 11) and her brother D (then aged six years but now eight) lived with their parents in what was an argumentative and unhappy marriage. Despite the difficulties between their parents, both children appeared happy and enjoyed a comfortable and protected childhood. They were well looked after by their mother who was their primary carer and well financially supported by their father who was engaged in full-time employment. They enjoyed the benefits of their Greek cultural heritage and importantly, shared in its traditional family activities of the relatives of both sides of the family.
On 16 November 2008, on one view everything went wrong.
An alternate view is that the relationship was always dysfunctional and that this day was the catalyst for change. In my view, the separation of the parties was inevitable but their parenting roles and relationships with the children were never so bad as to give rise to what is now sadly very clear.
Subsequent to November 2008, the children had no time with their mother for five weeks. As I will find, when their relationship with their mother resumed, all outward signs of love, affection and security were still present. As I will further find however, from the end of January 2009 the relationship changed so dramatically to the extent that 18 months later there was constant behaviour of the children towards their mother which could only be described as that of very disturbed children.

Critical evidence of Mr O

This case raised argument about parent alienation but also parental rejection by children. The evidence of psychologist Mr O is important. Over two days, he canvassed the latest thinking of social scientists. I shall deal with that in some detail below.
Whilst this case is about the best interests of the children in the future, the history leading up to and including the events to which I have just referred, very much affects the capacity of the Court with its limited legal powers, to do anything to enable these children to enjoy the benefits to which the legislation aspires for all children. These findings and reasons are to support interim orders under s 69ZR of the Family Law Act 1975 (Cth) (“the Act”) for the purposes of endeavouring to assist in the determination of the dispute.

Social Science research

I have also had the opportunity to read the research about which the paper provided by Mr O and mentioned later in these reasons, was based.
It is helpful to look at some of the various behavioural descriptions in the research whilst at the same time, contemplating the evidence before the Court. Relevantly, those categories are:
·Alignments. This is where a child reacts to the specific circumstances of the divorce but they are usually time-limited;
·Enmeshment. Enmeshment is a relationship in which the psychological boundaries between the parent and child are blurred and their identities are merged. A child can become highly attuned to and assume the responsibility for protecting the parent;
·Realistic estrangement. Realistic estrangement is where a child is estranged from a parent as a result of observing violence including to themselves;
·Alienation. Alienation is defined as where a child persistently expresses strong negative feelings and beliefs that appear to be irrational and distorted and exaggerated disproportionately to the actual experience with the parent.
In the midst of those diagnoses is a view that there are hybrid cases.
Researchers Johnston and Goldman (2010) 48(1) FCR 112 set out their treatment of the various problems as including remedying the child’s developmental deficits; transforming the child’s distorted “good/bad” views and polarised feelings towards both parents into more realistic ones; restoring appropriate co-parental, parenting roles in the family; and establishing the kind of parent-child contact that benefits the child and matches the parents’ capabilities to provide.
Whilst findings need to be made about events that enable categorisation of the parental behaviour that may explain the children’s behaviour, the litigation process needs to initially end to allow the therapeutic reconstruction of relationships to begin. At the same time, orders need to be in place about which there is no basis for dispute. It is a veritable Sword of Damocles hanging over the parents’ heads. The reconstruction process in this case is as much about the relationship of the husband and wife as it is about that of the wife and the children. It will, on any view, be a slow and painful process but one which must be attempted if these children are to enjoy any of the benefits of their entitlements as set out in s 60B of the Family Law Act. If this fails, the Court has lost its chance to achieve that. At that point, the legislative options are very limited.

The cases of the parties

Both parties conducted their cases on the basis that the explanation for the dramatic turn of events was the conduct of the other. In the case of the wife, her stance was that the husband had deliberately alienated the children in the most horrendous way. The husband’s view was and is, the wife has a mental illness and her conduct which was witnessed by the children on 16 November 2008 has created a fear and anger in them which is unabated. The husband told the most recent supervisor that the wife had hurt the children “so much” but that it was a matter of safety both emotional and physical. The husband has never wavered from that position.
The wife’s proposition in evidence was that given time and professional help away from the influence of their father, her relationship as primary carer could be repaired. She acknowledged the difficulties that she would face but was prepared to undertake them. The husband’s view was that his wife and the children should engage in therapy and that any contact should be under very controlled and limited conditions. He too was quick to say that he doubted whether he could get the children to voluntarily participate or even attend either therapeutic counselling or the restricted and supervised contact environment of a contact centre.
Having said that, in their final submission, counsel for the husband said that the therapeutic process as recommended by Mr O was the appropriate course of action. However, the submission was put on the basis of final orders being made. I am not confident that such an approach would lead to a resolution. The research is clear that orders are necessary but the therapeutic process must be in a less-adversarial environment. Accordingly, I propose to endeavour to make interim orders in respect of the parenting matters.
With some reluctance, it is important in this case to make findings of fact in respect of all of the evidence that may assist the parties in the therapeutic process. The facts in this case are not simple. Some of the evidence about events defies logic. The polarised positions of the parties has not helped. The adversarial approach of the court system has contributed to the dilemma not because of the hearing but because of the way the parties approached the matter crying out for legislative solutions at a time when the real answer probably lay with social scientists.
The husband’s present view is that the children would attend whatever was ordered because this Court was a “higher authority”. The Court cannot make children change their behaviours nor parents become responsible adults. All the Court can do is give the parents an opportunity to promote the welfare of the children and allow the social scientists and medical practitioners to give the children a chance to enjoy the benefits that all children should have.
In the midst of this parenting dispute lies a property dispute and a child support departure application. Despite having limited property and clear income streams, the parties could not bring themselves to resolve those issues either.
These reasons are unfortunately lengthy. I have read all of the written submissions of the parties’ counsel and taken them into account even though those submissions may not necessarily have been explicitly mentioned in the reasons.

Findings generally

Unless I otherwise set out, what follows as statements of fact are indeed findings of fact.

Parental responsibility

Both parents sought parenting orders. Both parents sought an order for equal shared parental responsibility. Equal shared parental responsibility is not defined in the Family Law Act. Parental responsibility is defined. It means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children (s 61B). It is hard to imagine in this case a sharing of those activities as defined but as the parties have sought those orders, I see no reason to interfere.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. That mandatory presumption is rebutted if a court is satisfied that there are reasonable grounds to believe that a parent has engaged in abuse or family violence. For reasons which hopefully will be clear below, that situation applies in this case in respect of the wife. There is no doubt that an intervention order was made against her.
The rebuttal of the presumption might be seen as an end to the matter but again, both parties seek equal shared parental responsibility.
Section 65DAA(1) of the Act provides that if a parenting order says that the parties are to have equal shared parental responsibility the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the child’s best interests; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable.
In this case, for reasons to which I shall turn, I must find that it is not in the best interests of these children to spend equal time with their parents nor having regard to the nature of the relationship between the parties, is it reasonably practicable.
Section 65DAA(2) provides that if equal time is rejected, the Court must consider substantial and significant time between the parents and the children. For the same reasons that equal time must be rejected in this case, substantial and significant time must also be rejected. I shall deal with those matters in some detail below.
Neither party sought exemption from the obligations under s 65DAC which requires that if parties are to share parental responsibility under an order relating to major long term issues relating to the children, the order is taken to require the decision to be made jointly by those persons. Despite this apparent conciliatory approach of the parties to decision-making about their children, their personal relationship is such that they could not agree on any sharing of time. The husband requires professional intervention to solve the problem of the children having any relationship with their mother. The wife’s position was to remove the children from the husband’s care. This case is therefore about attempting to solve the fractured relationship of not only the parents but also the children.

Credit of the parties

All findings of fact in this case have been determined according to the standard of proof applicable under s 140 of the Evidence Act 1995 (Cth) namely the balance of probabilities. Where a serious allegation has been made, I have given consideration to the matters set out in s 140(2) of the Evidence Act.
The wife was an excitable person but intelligent and articulate. She was candid in cross-examination when she conceded that at times she was angry and screaming and rambling on and on. She otherwise appeared an accurate historian. However, in respect of financial matters, she was evasive to the point that her professed ignorance was implausible.
The husband had obviously been through a frustrating marriage and simply avoided confrontation. However, his way of avoiding it was to simply stare at his wife. In the witness box, he was quick to swear on his life that he was truthful. Sadly, I have to find that he had embellished much of the evidence relating to the incident that brought about the separation. When faced with incontrovertible evidence, he fell back to the position that everyone else was lying or manipulating the situation to his disadvantage.
I shall refer to incidents which expanded as the husband was cross-examined where his explanations were that others had just got it wrong or had not recorded what he said properly. It is also troubling that in 2000, the husband told a psychiatrist that he had lied about “going to Olympics”. He was quick to accuse the wife of being a liar and of being manipulative. There were too many examples of his evidence clashing with that of others to the extent that on the balance of probabilities, unless I otherwise specifically find, I would prefer the version of other people before that of the husband. This is a case where inferences should be drawn from the failure of the husband to call evidence that would have corroborated his position (see Jones v Dunkel (1959) 101 CLR 298).

Witnesses generally

Many witnesses were called in this case to support the polarised parties. Various professional witnesses were called to explain the endeavours of the parties to solve their relationship problems during the marriage.

Background of the parties

The wife is 40 years of age and works on a very limited part-time basis as a teacher. She has tertiary qualifications. Her espoused income is limited but as I shall set out below, I do not accept her bona fides in respect of that because there is a family trust over which she has control jointly with her sister and no plausible explanation was given as to why distributions were manipulated in the way they were.
The husband is 44 years of age and employed with a multi-national corporation. He earns in excess of $100,000 a year.
The parties commenced living together and married in 1997. Each is very much entrenched in their rich Greek culture. The husband’s parents are alive. They have a significant role in the lives of the children. The husband is an only child.
The wife has a sister who is married and has children of her own. The sister is employed as a social worker. The wife’s parents are still alive and gave evidence in the proceedings. Sadly, they too have been excluded by their grand-children in the same way as the wife.
The dramatic end to the relationship between the husband and wife to which I have referred has also meant a dramatic end to their relationship with not only their maternal grandparents but also their cousins and friends on the wife’s side. The fractured family in this case has meant a significant fracturing of the rights of the children to enjoy a very significant part of their cultural identity. That is very sad because the children were all very close. The polarisation of the adults has brought about a cessation unnecessarily of what was otherwise a close relationship of cousins just weeks after the events of November 2008.

The separation incident of 16 November 2008

On 16 November 2008, the husband went to play golf despite the protestations of the wife. The children remained with her in the home. During the course of that day, the wife received a message that a relative of the husband by marriage had been murdered in Adelaide. The wife contacted the husband whilst he was playing golf and his response was to indicate that he would be home at the appointed time of 2.00pm. He was.
To use the wife’s words, she shouted at him indicating that he was not listening to her. He was just staring at her. She said she went “on and on and on”. So frustrated was the wife that in evidence, she could not recall the words she actually said. She acknowledged that she was crying and then yelling.
While the argument continued, D was in his bedroom. The husband and M went to the piano at the front of the house and began to play. The wife went to the piano and continued her diatribe of complaints about the husband. Unfortunately, all of what occurred there and immediately thereafter, was in the presence of M but certainly not D.
As the argument at the piano escalated, the wife walked to a bedroom where she sat on the bed and the husband followed with M not far behind. There, with the wife still crying, she took off her thongs and threw them at the husband. Although the wife endeavoured to say that she dropped her thongs on the floor, I do not accept that occurred. She threw them at the husband. During the argument, the wife said that she could have put rat poison in the husband’s food and he would not have known the difference and that she would be a triple murderer that day. I accept the wife did use those sorts of expressions.
In an effort to calm the wife, he apologised to her saying that they could go for the carpet but the wife’s response was that it was too late. He said that the wife then said:
I’ll find a way to do it some day, I’ll find a way. In fact I’m going to do this now.
The last quote looks innocuous enough but when cross-examined about it, the husband said that the wife was referring to killing him and the children. Having regard to the totality of the evidence and the conversations I have heard, I do not accept that the wife intended the comment to be understood as a threat.
The “triple murderer” could have only referred to killing the husband and the children. She said that if she had a gun, there would be a mass murder and she “would not have hesitated”. All of this was in the context of the wife being extremely distressed and M watching.
I accept that the husband endeavoured to calm the situation by suggesting to the wife that they go to look at buying carpet as had previously been planned. The wife’s response was to say that it was too late that day.
The wife then walked towards the kitchen. Her version was that she began cleaning up in the kitchen. The husband and M were at the front of the house and with keys in hand, started to go out the front door. Why that was so is unclear. D was still in his bedroom. The argument had subsided. As the husband and M went to the door, the wife appeared in the corridor leading to the front door although it was some distance away, holding a black handled knife in one hand and a tea towel in the other. Consistently with her agitated state, she was waving her arms up and down.
The husband’s version was the wife then walked towards the kitchen at which point, M grabbed the husband’s keys and he grabbed those of the wife. He said he was walking towards the front door to leave with the children when he heard his daughter yell “Dad, quick open the door. Mum’s got a knife. She’s going to kill us”.
I accept that the husband and M interpreted the wife’s actions as some form of threatening behaviour having regard to what had previously gone on. M became distressed.
D heard the husband leaving and ran out beneath the wife at the point in time at which she was waving her arms around. I accept the husband’s version that that too would have been seen by him but not D as a threatening act towards D. I do not accept D witnessed any such threatening behaviour.
No reference was made in any of the husband’s material, nor in the statement that he made to the police, that D was still in his bedroom and had to run past the wife.
To Mr O, the husband said that when D ran past his mother, she “swished” at him with the knife. No reference was made in any statement of the husband to the effect that the wife also had a tea towel in her hand. The wife said that she did and when cross-examined about that, the husband conceded that that was so. He would not however accept that having that towel was consistent with cleaning up the kitchen.
It was put to the husband that at no stage did D mention the wife plunging a knife at him. The husband’s response was that the child had “repressed memory”. No explanation was given as to what that meant.
The wife’s version was that D said “wait for me guys” at a point in time when he would have heard what the wife heard which was they keys rattling at the front door. To that, the husband simply described the wife as a liar. The wife’s version seems logical if D was otherwise unaware that the husband was leaving.
The husband said that he saw the wife swipe at D as he was attempting to get the door open. A police statement made only hours after this incident occurred made no mention of that incident. Having regard to the fact that the husband would have me infer that the wife made an attempt on D’s life, I found it odd that he would not have mentioned something as serious as that to the police. When he was challenged about that, the husband said that he did tell the police officer. Similarly, when the husband was asked about the fact that he made no reference to D being in his room and therefore running past the wife, he said he also told the policeman that.
Only days after this event, the husband spoke to psychologist Ms G who recorded that the wife had run at him whilst he was at the door. The husband conceded that that was not correct. Subsequently, the husband told Dr B that he had to run for his life and whilst that may be seen as a figure of speech, it certainly dramatises the incident more than that which he told the police only hours after it occurred.
When asked why these things were not in the affidavits, the husband said that he could not say everything because his affidavit would be many pages long. He was very adamant that regardless of what the documents said, what he was telling me was the way the incident happened.
The husband’s position about the statement to the police was that he was in a daze yet I accept that later that same night, he sent a text message to the wife’s sister asking for a fuel card and Telstra mobile telephone to be returned to him. I found that rather odd.
The wife’s version was that there was then some dialogue in which she made reference to the husband being “fucking dysfunctional” because he was leaving to go shopping without a shopping list. That was not a statement of an irrational person. The wife conceded that she used that language and that the children were present. The husband immediately went to the home of a friend and ultimately to the police.
The wife’s version was that she nonchalantly returned to the kitchen to complete the cleaning up presuming that the husband and the children had gone shopping.
Whilst the wife conceded she was rambling, angry and screaming, and thereby not a reliable historian in respect of that incident, I find the husband has embellished what occurred as time has gone by.
Having heard all of the evidence and the various witnesses, I am satisfied that the wife would never have killed the children even if the husband and M perceived that by virtue of the agitated state of the wife at the time.
This relatively innocuous event seen through different eyes gave rise to two different perceptions.

The police involvement

Some hours later, the police arrived and quizzed the wife about the events. According to the wife and I accept this, the kitchen was cleaned and there was no apparent indication of any drama. No evidence was led by any party as to the reaction of the police at the time that they arrived at the former matrimonial home.
In the meantime, the husband had made a statement to the police as to his perception of what occurred whereupon an officer obtained a warrant for the apprehension of the wife on the basis of a complaint for an intervention order. It is not clear on the evidence how that happened and neither party was able to assist.
The police arrived at the parties’ home and told the wife to pack some things because she was required to leave. However, the intervention order was dated the following day so it is unclear upon what basis the police were acting. It matters little because the wife accepted what they told her and she went with them to the police station. No evidence was led as to what occurred in the record of interview and no transcript or tape was provided as to any admissions made by the wife. The wife was asked questions by the police based upon the statement that the husband had made. I accept the wife was emphatic in her denials of having been a threat to the husband or the children.
The exclusion of the wife from the home meant that the husband and children could return but that did not happen for some days during which the children’s distress and no doubt confusion, continued. That exacerbated the fear of their mother.

The intervention order

Only days after the incident, the parties were required to attend the State Magistrates Court. The husband was represented by a lawyer and the wife was not. Whilst at the court, the wife wrote a letter to the husband on note paper in which she said she was “gravely remorseful beyond any imagination”. She said that she was very sorry. She acknowledged having been arrested, humiliated and the police could charge her with more charges. She wrote of her behaviour being a way of “getting close” so that they could have some “intimacy/connection”. The wife acknowledged that D’s behaviour changes had added to the “family stress”. The wife wrote that she saw her attempts to rejuvenate the relationship as being rejected by the husband. She described her “outburst” as having happened and that everyone made “mistakes”. She acknowledged being on medication and that she was seeing a psychologist for strategies on “stress/anger management”. She wrote that she had hit rock bottom and that only the husband could help her and she was “offering an olive branch”. She pleaded for the husband to help her not “crucify” her and she was “begging” at his feet.
Despite her plea, the intervention order at the State Magistrates Court was made on 18 November 2008 to last for one year. The wife consented, without admission of the allegations in the complaint. Importantly, the order prohibited the wife from approaching, telephoning or contacting the husband or the children except for participation in mediation by agreement or to arrange or enable the children to spend time with the wife by agreement or court order. The order excluded the wife from being within 200 metres of the former matrimonial home or the school of the children.
All of these extraordinary events meant a dramatic change to the routine of the children.

The hiatus between separation and the first contact

The parties obtained legal advice and proceedings were commenced in the Federal Magistrates Court where orders for the wife to spend time with the children under strict supervision were made.
On 22 December 2008, O’Sullivan FM made orders for the wife to spend time with the children pending an adjourned date on 19 January 2009. The wife’s time was to be in the presence of her sister and her friend Ms S.

The first and subsequent contact periods

The husband’s evidence was that the children did not want to go to see their mother. The first contact was to be on Christmas Day 2008. Two important pieces of evidence other than that of the husband conflict with the evidence of the wife. Only days after the separation, the children were taken to psychologist Ms G. That was on a referral from psychologist Ms E who had been seeing the husband immediately after the separation. The two psychologists are in the same practice. Notwithstanding considerable disquiet expressed by counsel for the wife about the lack of objectivity of that referral and the consequent treatment by Ms G of the children, I find that Ms G was professional in her dealings with the husband and the children. The dealings with the husband related primarily to obtaining information and debriefing the husband as to the position of the children. However, the approach of Ms G in believing everything she was told by the children without reality testing it, has exacerbated the relationship problem of the children with their mother.
When Ms G first met the children, the knife incident had occurred only 12 days before. She made detailed notes from conversation with the husband whilst the children waited in the waiting room.
When telling her version, M told Ms G that her mother chased the family to the front door and said that she would kill them. That of course was inconsistent with the precise words used by the husband to the police just before 6.00pm on the night of 16 November. Those concepts might be interpreted by the child but there is no suggestion that the words that the mother would kill them were actually reported by the husband to the police.
M was recorded by Ms G as being very upset with her mother. She did not want to see her and Ms G said that there was a sense of guilt and shame. The guilt arose from having to say she did not want to see her mother. She was in tears and appeared overwhelmed. There is significance in this statement. I find this to indicate confusion in M’s mind and not any indication of a desire to end any relationship with her mother. That position is consistent with what occurred over the Christmas period.
M went on to say that her mother had previously used expressions about using rat poisoning. That certainly was an expression used by the wife on 16 November 2008 and one which M would have heard. There is no evidence that it was commonly used as an expression in the household.
However, M told Ms G that her mother had once hurt D a lot using a belt buckle in the bath and she had called for help. M said she was scared that her mother may have been at the school and might try to talk to her.
Ms G provided M with a plan of strategies to help her release her diagnosed anger. She gave an example of doing a drawing and then tearing it up or punching a pillow.
Ms G also had a diagnostic process under which the child set out how fearful she was to assist in her counselling. Whilst this may have been an appropriate professional tool, there was no apparent reality testing of the basis for the fear.
D on the other hand, explained his story as something that really did not happen to him. Ms G described it as if it had happened to someone else but he said that his mother came at him in a stabbing motion. He said that he thought that his mother was going to kill him and he made reference to her saying that if she had a gun she would shoot him. D was able to draw the incident which Ms G described as signifying that the wife was very angry and the children and the husband were going out the door. M’s drawing showed the wife with a straight mouth and D running towards her with her mother holding a knife and her father with keys in his hand.
Ms G said that M was very distressed and she had no reason to disbelieve her. As for D, she thought that M may have inspired him but in any event, he was upset and angry. Both children used age-based language. She felt particularly that M was very genuine.
On 12 December 2008, Ms G saw the children again at which point, in response to a question, D said that he did not remember whether he went “under the knife” or not. This was still less than one month after the incident.
Ms G described D as having difficulties getting into his own bed and was anxious and worried so she provided him with a strategy to write down how he felt. Noticeably, D wrote that he was worried that “it will thunder”. She said that he used the phrase that he was worried that his mother would “tell the police”. He also said that he was worried that his mother would kill the children.
As part of the therapy, Ms G had D do a letter which was a process similar to grieving. Ms G was of the view that the child was genuine in writing what he wrote and it was a release of his emotions.
M on the same day said she was not scared of her mother but D was. She went on to describe a bath incident where her mother hit D and another in which her mother had said that she would drive them off a cliff. She said that D thought he was going to die in the bath that day. Ms G described M as very distressed but at the same time, wishing the incident had not happened.
Having regard to the observations of Ms G as to the position of the children, one would have expected reticence if not fear on the part of the children on Christmas Day. I find that was not the case.
Before dealing with what happened on Christmas Day, there was a second piece of evidence in a diary prepared by M ostensibly around this time. The exact date is uncertain.
Ms G said that one of the therapeutic strategies for children with high levels of anxiety was to get them to write a daily diary. She said it was her suggestion and when M returned a fortnight later, it had been prepared and together they read it and discussed the issues. Albeit that the diary has clear writing and articulate thoughts, Ms G said that what she read was very age appropriate and she thought that M was a very bright and articulate girl. M made clear she was not happy about going to see her mother.
In the notes of 28 November 2008 recording the conversation between Ms G and the husband, the problem was emerging. The husband described the wife’s sister as “crafty” noting that she worked for “DHS”. By this stage, there were court orders that the wife’s sister was to be the supervisor. It was abundantly clear that the husband was unhappy about the sister’s involvement. Despite that, the evidence of what happened on Christmas Day strongly suggests that if the husband was endeavouring to alienate them from their mother, he had not succeeded.

The husband told Ms G of a suicide attempt by the wife. He described D’s behaviour at that time as very aggressive. He referred to the wife holding “knives” to the husband but she thought that that was referring to a previous incident. This evidence and that relating to the suicide attempt were set out comprehensively in the husband’s affidavit material. Ms G said the husband did not specify the number of occasions that this involved.
Ms G was aware that there was an intervention order for 12 months and she presumed that there was to be no contact with the children by the mother for 12 months. That was a curious response having regard to the fact that at the time that the husband was telling Ms G all of the details about the history, he was also involved in the litigation process in the Federal Magistrates Court where orders were being made for the children to see their mother. Ms G was certainly not being given comprehensive details and I find that that compounded the problem of her not being in a position to reality test a lot of what the children were telling her.
In the diary, M observed as to Christmas Day that she hated hearing her mother say that she loved them because she knew it was all “lies”. M referred to the adults trying to separate D from her so that they could ask each of them questions and that she and D were so scared of what was going to happen to them. She said they both screamed “No”. M recorded that the adults told them that just because their father and mother did not live together did not mean that they did not love each other and that the wife’s extended family still loved the husband and his extended family. M recorded all this as being lies. Other comments were noted in the diary but M recorded that she was very happy for the contact to come to an end and to be back with her father. She recorded D as being so upset that he could not stop swearing.
In that setting, one would have expected to find that the first contact periods were anything but successful.
In contrast, the wife’s evidence which I accept, shows the children as not frightened albeit there may have been some reticence.
From the wife’s perspective, her time with the children under supervision was successful and she produced photographs and video footage of what could only be described as loving and normal parental/child activity. From the husband’s perspective however, despite an admission by his counsel that it was accepted that the video footage was filmed during the period asserted by the wife, he did not accept that to be the case when he gave evidence.

The first contact

The first time that the wife saw the children after 16 November 2008 was on Christmas Day 2008 where she spent from 2.00pm to 7.00pm with them. The husband delivered the children to the wife’s sister’s home. The wife described the children as initially a little reserved.
The wife described Christmas Day as it would have happened in almost any household. The children laughed and played and she described D as joking, hugging and kissing her. She said she saw M holding hands with her cousins and in addition to celebrating Christmas, they celebrated D’s “name day” which had occurred earlier in December and M’s birthday in mid December as well as the maternal grandfather’s birthday.
The wife described that at the conclusion of the period at 7.00pm, the children hugged her and said goodbye.
At the request of the parties, I viewed film footage of that day. In addition, annexed to the affidavit of the wife’s brother-in-law, was a series of photographs. Although the husband might want the Court to accept otherwise, there was no evidence that the footage or photographs were contrived. One of the photographs showed the wife engaged in activities with the children. Some photographs were taken in 2007 with the children and the maternal grandparents. A year later, the pictures showed the same happy relationship.
Even if there was reticence on the part of the children prior to Christmas Day, I could not find that that was the case on Christmas Day.
The husband said that when he collected the children, M stated that she did not want to go back again and appeared to complain that the wife had continually hugged her. He said D was saying that his mother had loved them every 10 to 15 minutes or so but did not otherwise talk with them. I view that response with deep suspicion.
The children had a second period of time with their mother on Saturday 27 December 2008 again for the same number of hours. Again, the time was supervised by the wife’s sister. The husband delivered the children a little early but were not permitted by the husband to enter the wife’s care until right on 2.00pm.
The wife’s version of what happened on 27 December 2008 was that the children were enthusiastic in greeting her and they hugged their cousins. Nothing untoward appeared to occur. Nothing in the husband’s evidence indicated that there was a similar reaction to that on Christmas Day save that in his evidence, he said that after the first period of contact the children had returned unsettled. He said that in the beginning they would have temper tantrums and D in particular was very angry.
The husband’s evidence was that at the conclusion of this time, the children were “very upset” to the extent that M was so distressed she was “hyperventilating”. He said that when she got into the car, she started crying to the point that she could not talk through her tears.
In his evidence, the husband said that D would “often state” “why do I have to see fucking mum?” He said that his response was to say that he had to see his mother. The child’s statement is curious. I shall turn to an incident below in which the husband taped D and M after a visit shortly after that. D can be heard on the tape using the word “fucking”. Nothing in the husband’s affidavit in relation to D’s complaint about seeing his mother nor on the taped conversation, is the husband heard admonishing the child from using the language that he did. This is an eight year old boy who then was aged seven.
I see no reason to disbelieve the wife’s evidence about the contact on 27 December 2008.
On Thursday 1 January 2009, a similar period to the last two occurred. The wife described the activities of the children and said there was much laughter and good natured teasing. Nothing untoward was reported by the wife save that she noticed a rectangular object in the front left hand pocket of the jeans of M and when she was asked what it was, she appeared uncomfortable and said it was something that her father had given her.
On 3 January 2009, the children spent time with their mother under the same circumstances as previously. This day however, the wife and her sister took the children to the beach at Port Melbourne. This incident too was filmed and M can be seen sitting on some play equipment literally in the arms of her mother without dissent. D was filmed playing with his cousin. To all intents and purposes, everything seemed normal. I accept that the film was taken on 3 January 2009.
When the husband was cross-examined about this incident, he was asked how he explained that the film showed dialogue between Mrs K and her daughter who is his niece. He was asked how he explained that the child said she was commencing school in the coming year. He acknowledged that was certainly not the previous year which would have been prior to the separation of the parties. He explained the fact that in the same segment, M was shown sitting in the lap of her mother. His response was to say that those particular clothes did not fit her in January 2009 and when I asked him about how he explained the inconsistency, he said there were two pieces of film. I do not accept the husband’s evidence in respect of that. Again, this was a picture inconsistent with what the husband wanted to believe. This sort of explanation became a regular occurrence in the hearing.
None of this point about two pieces of film was put to the wife in cross-examination. I reject the husband’s version.
I accept that the children showed no hesitancy about being close to or having contact with their mother or the wife’s extended family.
The next period occurred on 8 January 2009 and this time, the children went to a circus. Again, pictures were taken which I accept to be an accurate reflection of what occurred. Subsequent to the circus visit, film was taken of the children participating in a circus play at the home of the wife’s sister. Interaction between the wife and the children can be heard and again, the children played with a cousin and there was no suggestion of any reticence on the part of either child.
The next visit occurred on Saturday 10 January 2009. According to the husband, on the day before, M said that if she had to live with her mother, she would rather kill herself. The husband said that there were many other examples of those sorts of comments. This in turn led the husband to organise an appointment with Ms G.
At the beach on Saturday 10 January 2009, there were other people present including Ms L to whose evidence I shall refer below. The wife said that whilst the other children were undressing to swim, M said that she did not want to go in the water and D immediately followed suit. Ms S who was the supervisor saw an object in M’s pocket and asked her what music she had on it because she thought it was an iPod. According to the wife, M refused to answer and attempted to cover the pocket by pulling down her tshirt.
The next incident occurred on 15 January 2009 and became known as the incident at the Swimming Centre. This was to have been a normal contact period and it was to be supervised by Ms S. The children were taken to the Swimming Centre. According to the evidence of the wife, the children changed into their bathers and then played for several hours in the pool. The wife produced photographs of everyone in the pool. The husband disputed that these photographs were taken at that time. In his affidavit, the husband said that the children told him that they did not swim at the Swimming Centre. I accept the wife’s version of what occurred that day. It is curious that the children would tell their father something that was just completely untrue. Equally odd however is the fact that I would have expected it to be more than apparent that the children had been swimming having regard to the nature of their clothing and other swimming apparel. Having heard all of the evidence of the parties, I am satisfied that the photographs were taken at the Swimming Centre on 15 January 2009. The wife’s evidence was that when the husband appeared to collect the children, they became “downcast and sullen and withdrawn”. According to the wife, this was the first time that had occurred. I accept that was the case.
The husband’s version was that the children did attend the Swimming Centre but did not go swimming. When shown an earlier affidavit, he conceded that he had used the word “swimming” but he said he did not mean that. He said that the children did go in the pool but did not swim. He used the words “jump back into the water” and explained that as meaning that M jumped into the water to get away from the adults because she was being intimidated when she was cornered. All of this was dependent upon any explanation given to him by the children being correct.
What created the dilemma was that when the husband was first shown photographs of the pool incident by psychiatrist Dr H. Dr H asked the husband how he explained the apparent inconsistency. The husband’s response was to say that the photographs were not right. Consequently, Dr H asked the wife to “authenticate” them as a result of which, the wife subsequently produced photographs with the relevant date marked on them. The husband’s position was that to date them was impossible and he had intended to get witnesses of an expert nature to prove his point. He said he was deterred from doing that by the Independent Children’s Lawyer. I do not accept his explanation. It is implausible if he knew the significance of the issue in terms of the credit to be attached to the evidence. The husband did not assist his own cause however by adding gratuitously that the future of his children being relied upon a few photographs was “a joke”. He was there referring to some photographs in relation to Christmas Day but consistently with his view that anything that showed his position in a poor light, was rejected as having been somehow orchestrated.
In his evidence, the husband said that when the photos “were allegedly taken”, the wife was seen shopping at a northern suburbs Shopping Centre and also seen using a photo printing machine. A strict reading of the sentence makes it clear that the husband was saying that at the time that the photos were taken on 15 January 2009, the wife was far away from the Swimming Centre at the northern suburbs Shopping Centre. In relation to that inconsistency, the husband said that what he was referring to was a period “around that time”. The strange feature of the inconsistency was that the photographs were not produced to Dr H with dates embossed upon them until after June 2009. Importantly, no witness was produced to confirm seeing the wife using the photo printing machine.
The pictures at the Swimming Centre show M dressed in a bathing suit. The husband’s evidence was that the photographs were taken two years earlier. He was adamant about that because he said a ten year old girl could not have baby fat on her cheeks. When asked about the fact that the bathers were the same, his response was that M “didn’t grow much”.
The husband’s view about the photographs was that he had reservations about them and that particularly, the Swimming Centre day had been a forgery. I reject not only that the photographs were not taken at the pool on the day asserted by the wife but also that the husband did not believe them to be so taken.
Much was made by the husband of the fact that amongst the photographs shown to him at the rooms of Dr H was a photograph of a baby bearing the same date as the pool photographs. The husband said that this showed that photographs were “doctored” because he recognised the child YX who was much older on that day whereas the photograph pictured a very young baby. The wife was cross-examined about the photograph and said that she was present when it was taken. The photograph depicted AX who is apparently the sister of Y. The wife said it was taken at the home of Ms T who had taken the pool photographs. The best she could say was that she remembered Ms T with the camera and trying to get the child to smile. It is of some significance that the wife said that this was in the bundle of photographs that were taken to Dr H. I accept the wife’s evidence that these were all taken by the same person.
Much of this information was volunteered by the wife and it had a ring of truthful reality about it. Importantly, the wife said that the child was born in November 2008 just before the parties’ separation. The husband must have known all of this because of the nature of the community within which all of these people lived. If he did not, he was hanging on to a hope that his explanation for the photograph would be plausible. It was not.
The same must be said of the film footage. The husband distanced himself from the footage of Christmas Day explaining his absence from the pictures on the basis that it may have been the previous year when he was at one family home and the wife and the children were at the other. I do not accept that.
I return then to the evidence of Ms G which shows that in this period the children were saying something entirely different about how the contact was going with their mother.
As the therapy went on, Ms G saw the children on 9 January 2009. At this stage, D was angry and swearing and wanting to know why he had to go to his mother. He said things like that he wanted his mother to hit him so they would get into trouble and his aunt would then not be able to supervise. This is an interesting comment because at that point in time, the Federal Magistrates Court had ordered that there be contact under supervision and the supervisor be the wife’s sister. It will be also remembered that the husband told Ms G about the wife’s sister and her involvement with “DHS”. The husband was clearly unhappy about the sister’s involvement. D was recorded by Ms G as being particularly aggressive and very angry. Ms G’s view was that these were the views of the children unaffected by manipulation and the children were certainly frightened. M on the other hand was tested on a diagnostic scale and showed good to normal self-esteem and moderate to severe depression. D was asked to draw his family and he immediately said he would but not his mother.
On 23 January 2009, the children were complaining that their mother did not care, that she was not sad and that the “stare” of the wife was “back”. Ms G described that stare as an angry hostile look.
M described her mother and her mother’s family as pretending to play but to then provoke D by pinching him. This was reported as an event that occurred in the presence of not only the family but also the supervisors.
D said that he hated when his mother expressed love for him and he told her to “shut up”.
In the same period, M’s diary recorded that she and D were frightened and did not want to go and see their mother. She recorded that they were asked did they want to go to the play area at the beach and she told her mother that she did not want to go because D had a cold. She recorded her aunt telling her that it was her mother’s choice as to what should happen because it was her time and in the diary, M recorded that she said “No! No! No!”. She recorded that they were told that they did not have choice. Importantly, she recorded an argument with her mother about what was in the child’s pocket and that her mother and the extended family were making her father out to be a bad person which she wrote was so untrue and that she was “so upset”. She also recorded that she did not like her mother telling her every 15 minutes that she loved her.
I do not accept that M’s diary is an accurate record of what happened. Why it was written that way, I am unable to say. The evidence clearly points to loving interaction between mother and daughter until separation. I have watched the video a number of times and there is clearly no reticence on the part of M on that day.

Contact on 25 January 2009 and the husband tapes the conversation thereafter.

At the conclusion of the contact period on 25 January 2009, the husband collected the children and taped the conversation in his car because it was his view was that no-one believed how distressed his children were.
The husband relied upon what he described as a transcript of a Dictaphone recording of the children in the car. In reality, the document was his transcription with commentary. All parties listened to the original recording and requested I do so as well. It was played in open court and then tendered by the wife. It is an interesting recording.
The “transcript” is accurate but what was happening was less clear.
M was the main character recorded. D was in the car and added commentary. The husband’s father was also in the car and said little.
The husband’s commentary suggested very distressed children. Mr O was provided with a copy.
Mr O listened to the tape recording in the witness box. In cross-examination he said that parts of it indicated that one of the children at least was distressed in part.
In the context of what happened on 25 January 2009 and particularly having regard to the fact that all the other evidence indicated that there was no problem that day, it is difficult to isolate this recording and obtain any meaning from it. However, my impression was that much of M’s hysteria was contrived.

I find that the behaviour of M was not hysterical nor that of a distressed child but rather, misbehaviour that should have been stopped by the husband. D too misbehaved using inappropriate language. When cross-examined about the circumstances, the husband said he was concentrating on driving. Having watched his demeanour and in particular, his reactive responses in cross-examination, I find he was not acting as a responsible parent. It may have been that he had every reason to be calm as he appeared because he knew the children were being taped. Why this incident was taped specifically and others of more graphic distress were not, I found perplexing.
M was heard in an hysterical voice saying that she had been “sprung”. This was a reference to her mother ascertaining she was carrying a mobile telephone. She said she “almost had to call the cops”. A number of times, M said that she had screamed or “almost screamed”. The husband could be heard calmly responding “well, that’s a bit unfortunate”. There is a very confused dialogue in which M was heard to say that she could not use her mobile telephone because she did not have it but had she, she would have called “the cops”. Again, the husband calmly responded “why”. M in turn responded with a statement that she “forced them to give it back”.
The day on which this incident was recorded, the wife noticed the child’s mobile telephone fall from her clothing and having picked it up, M grabbed it back. On the tape, M was heard to say that her mother thought the mobile was being used to “tape everything they say”. Rather than respond with something like “don’t be ridiculous” which should have calmed M, the husband responded with “what else is happening”. The husband’s “transcript” commentary adds words such as that the child was crying and hyperventilating. He also said to the children that apart from what they had described, “your day was good, was it”. The husband knew the tape was recording and I do not accept he was responsible nor that the children were genuinely distressed. The husband was unashamedly evidence-gathering.
M said that it was her aunt who took the mobile and also put her hand over the child’s mouth. M said that she bit her aunt’s hand and then began screaming.
The histrionic statement about the wife taking the mobile telephone, the mouth covering and the hand-biting needs to be contrasted with the evidence of the wife and her extended family members. In her evidence, the wife calmly described the incident and I accept her version of what occurred. The evidence of the aunt was equally plausible. When discussing the hand-biting incident, the aunt volunteered that if that had happened, she would have gone to a doctor.
Apart from the taped recording, diary notes and conversations with Ms G, there was no evidence that the wife or her family confiscated M’s mobile telephone.
D seemed distant to the problem of his sister on the taped conversation until he volunteered “Oh, for God’s sake shut up you fucking bastard”. This was a strange comment. It followed his sister’s crying. I could not discern whether D’s comment was directed at M. The husband had no doubt about the remark because in his commentary, he said it was “comment directed at his mother”. He discerned that because he said that D raised his finger in his mother’s direction. He said he noticed this by looking in the mirror whilst he was driving. He made no effort to discipline D for raising his finger at his mother’s direction or for the language used, whether it was to his sister or his mother. Later, D was swearing again. The husband said that D did not use that sort of language and in any event, he would not tolerate it. He failed in his parental responsibility on this day. If the taped conversation was designed to prove the distress of the children about having to have a relationship with their mother, it failed to do so.
The incident referred to by M seemed to precipitate the husband’s action to remove the wife’s family members as supervisors. Not only was that unnecessary in hindsight but more importantly, it empowered the children in the sense that they felt that they had some control over the situation. That should never have happened.
The observations of the first professional supervisor Mr Z during this period were also part of the jigsaw puzzle. Whilst I shall deal with Mr Z in some more detail below, I accept his evidence as to this critical period in January and February 2009.
Mr Z is a retired minister of religion who was employed by a professional supervision company as one of the supervisors at various times after the parties separated.
Supervision by Mr Z began on 22 January 2009. On that day, Mr Z described D as relaxed and responding easily. He said he happily opened a new jigsaw and started to work on it with the wife. M was initially reticent but did become involved by sitting on a couch and watching. A subsequent trip to a park saw the wife pushing D on the swing. The exuberance of the wife in pushing D up higher and higher caused him to shout at her and when he was off the equipment, he said he was frightened. Despite that, D did interact with the wife. Later that night, the children and the wife had an evening meal and he described the children as talking happily and M was relaxed and talking freely. Subsequent to the meal, the maternal grandparents attended and there was great affection from the children.
The observations of Mr Z in respect of that day were not challenged and they are consistent with what I observed on the film relating to Christmas Day and January. They are in marked contrast with the events of the subsequent months.
On 27 January 2009, the children were at contact and joined by some cousins. D and the cousins interacted well. Mr Z noticed that it was M who began to withdraw. She was sitting on a couch watching television whilst D and the wife were playing. Even when the grandparents attended, M maintained her distance. He noticed her looking at her watch regularly and commenting upon how long it was until she went home.
The observations on the video and the observations of Mr Z about D are consistent with the evidence of Mr O on the impact of the November incident on that child.
In contrast, M was reticent about contact. Mr Z said that on 27 January 2009 M asked him whether he would take her mobile telephone away from her saying that it had happened on the previous Sunday by a different supervisor. He said that M told him that her aunt had held her and covered her mouth and she had bitten her aunt on the hand.
In the conversation between Mr Z and M, he recorded that D joined in confirming M’s story. The aunt was described as a “bitch”. It was M who said to Mr Z that it was all her mother’s fault because she had tried to kill them. The wife was present and responded that the children needed to talk about this but it was not the appropriate time because the contact was concluding. M responded saying that her mother would be talking to a wall.
By 29 January 2009 Mr Z noticed that the children were distant. He said they moved physically to separate themselves from their mother and indicated that they did not want her close to them. Despite that, there was verbal interaction but it appears limited.
Mr Z noticed that the children from time to time showed interest in what was happening but retreated quickly if any interest was shown in them. He noticed D interacting well with the wife.
On this particular day, family friends of the wife arrived. There were two children other than M and D and Mr Z noticed them talking happily altogether. All of them sat together and ate and talked. At a bowling alley later that day, everyone participated but Mr Z noticed that M was distancing herself. D seemed to be enjoying himself. At the end of the day, there was interaction between the children and the maternal grandparents. Mr Z did not notice any reticence there but he noticed the children backing away from saying goodbye to their mother.
Mr Z supervised another period on 1 February 2009. D was observed showing interest in what his mother was doing and M seemed to follow.
Things became heated on 1 February when the inquisitive children were rebuffed by the wife over a simple matter making D respond that it was the wife who had tried to kill them. This incident seemed to provoke an angry response from D who began using language that became apparent as the weeks went by.
Despite the apparent confrontation between D and his mother on 1 February 2009, matters were still civil and there was certainly no evidence of fear in the children. D was provocative but I bear in mind his age.
On that same day, M appears to have removed a photograph of herself from the shelf that was a particular favourite of the maternal grandmother. It was noticed missing and found under the couch. The only inference open is that M put it there. When challenged by the wife, M said that she wanted to take the photograph. That could have been the catalyst for a deterioration in the relationship between M and the wife but Mr Z then went on to say that the children allowed their mother to play with them. To all intents and purposes, the activities appeared normal.
At the end of that visit, the wife spoke to the children about her disappointment in relation to their behaviour because it had upset the grandmother. This evidence was not challenged and on the face of it, appears to be proper parenting discipline of a child. That is particularly poignant when I consider the evidence of Mr O who expressed concern that matters had been allowed to drift. The lack of parental control and discipline by both parties empowered the children to effectively do what they wished.
By 3 February 2009, Mr Z noted some resistance by the children to the directions of the wife but it was not unpleasant. M was communicative but barely so. D who at that stage was six years of age was boisterous and disruptive. During a meal, D seemed to be directing M to misbehave but Mr Z noted that the child kept on talking and eating and then finished her dinner. That is in marked contrast to the severe deterioration that followed.
By 5 February 2009, D’s behaviour can only be described as bad. M’s behaviour was that of a non-responsive child. Resistance was apparent but despite that, there were signs that the children were still recognising the wife as their mother and were interested in her activities. The wife was seen to be acting appropriately in disciplinary terms.
On 8 February 2009 when the husband delivered the children to Mr Z, he told them that they were to behave and there was not to be any swearing. The evidence does not indicate to me why it was necessary for him to say that other than perhaps he had been told by the children what they had done. By this stage, the children were showing more non-responsive behaviour but now included the maternal grandmother in that.
A week later, Mr Z noticed when the children’s cousins attended along with other children that they all played happily together.
By 17 February 2009, Mr Z recorded what could only be described as M becoming critically vocal. She started to tell her mother to “shut up” and then refered to the fact that the wife tried to kill them. Only weeks later at the next contact visit D described the wife as a murderer. Some of those statements and the apparent misbehaviour particularly of D was in the immediate vicinity of the husband when he arrived to collect the children at the conclusion of the contact. There is no evidence to suggest the children were corrected or disciplined.
The relationship between the wife and the children after that time dramatically altered. The behaviour of D and at times M went from bad to what is now the position namely that of non-responsive behaviour.
The dilemma is how to undo that damage if that is at all possible. As Mr O said, much depends upon what findings I make in relation to the period prior to separation and whether the incident on 16 November 2008 was isolated.
Mr O’s evidence to which I shall refer in some detail later said that he could not accept such a rapid deterioration in the relationship between the children and their mother without a significant history of dysfunction. I therefore turn to the evidence.

The relationship problem between the parties

The relationship between the parties over a number of years had been difficult. Simply put, the wife was a perfectionist and demanded more of the husband in respect of his contribution towards domestic responsibilities. The wife was at home caring for the children on a full-time basis apart from a relatively modest position subsequent to the birth of D when she was working as a sandwich hand.
Such was the level of discontent between the husband and the wife that I accept that the wife suffered anxiety and panic attacks and was involved in frustrating arguments with the husband about him not doing things that she saw were important to her in their domestic relationship. For his part, the husband effectively shut down and either ignored her or gave her the “silent stare” treatment.

Allegations of the wife attempting suicide

A significant amount of time was spent on allegations by the husband that the wife had endeavoured to commit suicide prior to the marriage. The relevance of this was said to be part of the explanation for the wife’s conduct that brought about the end of the relationship and the consequent risk to the children. It was the husband’s evidence that the wife had told him that she had endeavoured to commit suicide once by hanging herself with a sheet and another occasion by carbon monoxide poisoning. In cross-examination of the husband, he referred to a third occasion but did not elaborate. For the first of those occasions, the husband relied entirely upon what he said the wife told him. The second time would have been when the husband was present but it was early in the marriage. He said he found the wife sitting in the car in the garage with the doors closed and the engine running. For her part, the wife denied emphatically that she had ever attempted suicide. In his 2008 affidavit, the husband said the gassing occurred when she was pregnant with D. He mentioned 2002. Subsequently however, he said it was 1998 when the wife was pregnant with M. He said the first reference was a mistake. Remarkably, he said no medical attention was sought because the wife did not want it. This was to have been the parties’ first child. I find the husband’s attitude remarkable. Importantly, because there was a conflict in the evidence, I would have normally accepted the evidence of the wife. However, it became clear in the evidence that it was a subject of some discussion when the parties attended Dr R.

Psychiatrist Dr R

Dr R is a psychiatrist who saw the parties ten years ago. Dr R produced her notes from that period of time but despite valiant cross-examination by senior counsel for the husband, she was unable to remember the events of the consultations and could only interpret her notes as best she could.
Dr R was pressed to confirm that when the husband asserted in a consultation that the wife had told him about the attempted suicides, the doctor’s notes showed no dissent by the wife. What seems clear is that the note of Dr R was made in June 2000.
The wife had been referred to Dr R by her general practitioner Dr U. Some weeks after the consultation but before June 2000, Dr R wrote to Dr U indicating there was no suicidal ideation. Despite the fact that the subsequent discussion occurred between the husband and the wife and Dr U about attempted suicides, there was no letter in Dr R’s files nor could she remember anything which indicated that she had subsequently written to Dr U confirming a change in her view about the wife. I asked Dr R whether the statement by one or both of the parties about the dramatic events surrounding an attempted suicide might have made her vigilant because of their dramatic nature but Dr R did not see that as a significant issue.
The wife was cross-examined about the fact that she had spoken to Dr R in February 1999 about suicide and at times felt suicidal. At that time, the wife was not pregnant with M. M was only a few months old. The records of Dr R put a different slant on things. There is clearly a distinction between feeling suicidal and making an attempt. The wife’s mother and father were asked about their knowledge or any attempts of suicide by the wife and each denied any such event ever occurred.
The best explanation that the wife could give for the fact that she used the word “suicidal” was the fact that she said it in English but in the Greek language, the word has a different connotation in the sense of someone being at the end of their tether. Although she said the word in English, she said she sometimes thought in Greek.
I do not find on the balance of probabilities that the wife ever attempted to commit suicide.
I do find that the wife said that at times she felt suicidal. The wife was adamant that she had only said that on one occasion. It was put to her that she had said it more often. I find she did say it but do not find that the wife was ever a serious prospect of attempting to commit suicide during the marriage. Importantly, no recent suggestion of suicide was raised.
In her evidence, Dr R said that she examined the wife on a number of occasions between August 2009 and April 2010. She wrote that the wife did not have a psychiatric disorder and did not require medication. She said she did have a low self-esteem and was experiencing marital conflict which required relationship counselling. She also found the wife to have some anxiety symptoms but that did not limit her capacity to function. That appears to be the case now.

The DVD player incident

The husband said that on 21 December 2000, he purchased a DVD player for the family. He said it has been discussed with the wife who did not want it bought. When he went ahead and brought it home, he said the wife’s complaint was that he had bought it behind her back. He said the wife took the player out of his hands and threw it on the concrete, breaking it. He said that some months later, he arranged for it to be exchanged for a new one by going to the store and whilst he waited in the car, the wife and his mother went to exchange it. He said that the wife did not talk to him for some time. In another affidavit, the husband expanded on this to say that the wife did not talk to him for months.
In cross-examination, the husband’s attention was drawn to notes of psychiatrist Dr H in which he said that the wife did not speak to him for the weekend. Bearing in mind the husband’s evidence about the date of the purchase being just before Christmas, there was some significance between a weekend and for months.
The same notes of Dr H showed the husband reporting that the wife had tried to throw the DVD player “in a bin”. A report of Mr O referred to there being no consultation between husband and wife before the purchase and of course, that would clash with the husband’s evidence. The husband said of Mr O’s report that he could not remember what he told him but if that was accurately recorded, it was not true.
In his trial affidavit when referring to the exchange of the DVD player, the husband said that whilst the wife and his mother attended the store, he and the “children” waited in the car. This of course could not have been true because only M was born at that time. Had not his mother’s affidavit repeated the same mistake, the husband could be forgiven for the slip. These little embellishments significantly damaged his credibility.

The lock-out incident

In his evidence, the husband referred to an argument in October 2003 during which he said the wife was throwing objects at him. He said it started over money and she started hitting him with her fists. He said he went outside and the wife locked him out of the home. He then could not get in and without shoes, walked to the home of his parents approximately three kilometres away. He said he telephoned the wife later and found her crying and apologising, begging him to return home.

As a separate pool, there is superannuation as follows:
(a)      as to the husband  $214,962
(b)      as to the wife  26,395
Total  $241,357
In her final submissions, counsel for the wife referred to the taxi loan as $44,165. I think that was an error because all of the evidence suggested it was $144,165.
The second step is to look at what the parties have done. It would be a mistake to confine the question to one of how they acquired, conserved or improved the property that they have because s 79 also refers quite distinctly to the contributions each party has made to the welfare of the family (s 79(4)). It also refers to:
·The matters in s 75(2) in so far as they are relevant;
·Any other order under the Act affecting a party of child; and
·Any assessed or ordered child support a party is to provide or might be liable to provide in the future.
In Mallet and Mallet (1984) FLC 91-507 Gibbs CJ said that the Act had not required equality of division nor that the various aspects of s 79 should be deemed to be equal. His Honour said that the respective values of the contributions made by the parties had to depend on the circumstances of the case.
In Norbis v Norbis (1986) FLC 91-712 Mason and Deane JJ at 75,165 said that the order to be made was discretionary because it depended on the application of a very general standard. That standard was what was just and equitable. Their Honours said that to assess what was just and equitable called for an “overall” assessment in the light of the factors mentioned in s 79(4), each of which in turn called for an assessment of circumstances. Later, their Honours said (at 75,166):
The point of preserving the width of the discretion which parliament has created is that it maximises the possibility of doing justice in every case.
Their Honours went on to say (75,167) that the discretion was not unlimited as its exercise was conditioned by the requirement that it was just and equitable to make the order. That latter observation came from s 79(2) of the Act which requires that the Court not make any order until it is satisfied that it is just and equitable to make it. Justice and equity as a concept applies to both parties. Thus, what has often been described as the exercise in the fourth step must also be contemplated in each of the assessments.
The dilemma however relates to how the various assessments are undertaken in that process. Murphy J succinctly described it in described it Hayton and Bendle [2010] FamCA 592 where his Honour (at para 155) said:
The assessment of contributions is not a mathematical or accounting exercise; the process is “a matter of judgment and not of computation” (In the Marriage of Garrett (1984) FLC 91-539 at 79,372; see also Norbis, above). It is important not to “overvalue” some contributions merely because they can be measured in money as much as it is important not to “undervalue” indirect contributions or contributions to the family because they cannot be (adequately) measured in money. (As to the latter see Mallett v Mallett above) In functioning marriages, there is a symbiosis between the two; that is the essence (in the absence of vitiating behaviours) of long-standing marriage partnerships.
Murphy J also referred to an exercise of examining the nature, form, characteristics and origins of property. These criteria enable a court to examine the whole of the relationship to see what the parties did, how they did it and what they did with what they received. The exercise enables an examination of their respective contributions within the nature of the relationship that the parties themselves chose to conduct. In the pool of assets above, there is reference to a one half interest of the wife in the OS Family Trust.
I accept the evidence of the wife’s father that he relinquished control of the trust to the wife and her sister in 2001 and subsequent to that date, taxation returns disclosed that distributions were made to the wife. In the normal course of events in a marriage, where the wife was not engaged in employment outside of the home but fulfilling the homemaker and parent role, distributions from a family trust on an annual basis would have to be seen as a significant financial contribution to the family. In this case however, despite the fact that the wife set out those distributions in her affidavit, it turned out to be common ground between the parties that not only did the wife not receive the money but neither the husband nor the wife obtained any direct benefit from it during the relationship.
During the trial, the wife was recalled on an issue and senior counsel for the husband returned to a subject upon which he had previously undertaken little cross-examination. He took the wife to a variety of taxation returns and financial documents. Whilst it was apparent on the evidence that direct distributions from the trust had not been made to the wife during the marriage, no explanation was given by her nor her sister as to what happened to the accrued profits retained in the trust. Vague explanations were given by the wife’s witnesses that there were various expenses associated with the trust. All of those were recorded in the Profit and Loss Statements. There was clearly a profit declared on the documents prepared by the accountants for the trust. In the years prior to separation, distributions were declared in the name of the wife presumably because she was not earning an income despite the fact that those payments were not in fact made to her. When challenged about why distributions were not made subsequent to separation, the closest I got to any plausible explanation from any of the witnesses of the wife was that she was being assisted financially by her family. The only inference open to me is that as the wife did not receive the declared distributions and distributions are not being made. These funds were being used to assist the wife but how remains a mystery. If there were accrued loan accounts, it was not a matter pursued by the husband in final submissions because the value put into the pool was the one half value of the trust regulated by the real estate value. Any loan account would have to be satisfied anyway out of the assets of the trust.
There was no evidence however upon which I could say that for the purposes of s 79(4) of the Act, the wife still has the trust money in her care or control. The appropriate course of action is to treat the issue as relating to contribution.
The property in the trust was conceded by the wife as being half hers notwithstanding anything else that may have been said in the trust deed. Those entitlements clearly came from the wife’s father. For whatever reason, presumably for tax minimisation purposes, the wife was used as a vehicle for distributions. Having regard to the nature, form and origin of the interest in the trust as a beneficiary, the family did not enjoy the benefits of it during the relationship but the wife is now by virtue of her family supporting her, entitled to pursue a share of the income. A beneficiary only has a right to the due administration of the trust. Here however, the wife and her sister are the trustees. The wife and her family were prepared to acknowledge a one half ownership of the property of the trust. The wife otherwise maintained ignorance about the operation of the trust. I find that the concession by the wife means that, despite the form of the asset, one half of it really belongs to the wife and that includes the ongoing capacity to earn income.
A second dispute between the parties related to the question of what each of them had when they married and commenced living together in 1988.
The husband said and it was not disputed by the wife, he owned the property at P. Five years before the marriage, he purchased it for $135,000 with a mortgage of $80,000. The wife was the only one who really provided any evidence as to the value of the property at or after the time of the marriage. She said that she believed the house and land to be estimated at $200,000 but there was a mortgage of $35,000 meaning an equity of $165,000 (referred to as $175,000 in her affidavit). Mr North of Senior Counsel on behalf of the husband asserted that that was an admission against interest. I accept that as it is the only evidence I have.
Apart from the house, the husband also had a motor car which was subsequently of little value. He also had superannuation interests which totalled about $35,000.
The wife’s evidence was that she had savings of $35,000 and after the marriage, used those funds to reduce the mortgage encumbering the P property. The husband disputed the $35,000 saying that it was $25,000. No evidence was produced to me to clarify the issue and it probably does not matter in any significant way having regard to the size of the pool of assets that I am asked to divide. Needless to say however because of my general view that the wife was a better historian and more reliable, I accept the evidence of the wife.
The wife’s evidence also was that she had a motor car of modest value and about $8000 in superannuation. That was not disputed.
It will be seen therefore that at the time that the marriage commenced, the husband had interests of about $165,000 in the home and about $35,000 in superannuation. The wife had $35,000 in savings and about $8000 in superannuation. Thus, the husband’s contribution at the start of the marriage was much greater than that of the wife.
The next controversial issue related to the funds provided by the wife’s family subsequent to the marriage. In July 2004, N Pty Ltd which was the trustee of the parents’ family trust, provided to the wife $300,000. That money was largely retained. In 2005, the husband and wife decided to rebuild the P property because the house was too small. The existing house was then sold for $600,000 leaving the land vacant and during the rebuilding program period, the husband and the wife lived with the husband’s parents.
The cost of the construction of the new home came from a further payment of $100,000 from N Pty Ltd, the husband’s accrued savings at that time and what was otherwise required came from the 2004 money provided to the wife by N Pty Ltd. The parties’ respective versions however differed markedly thereafter.
The wife said that the balance of the unused N Pty Ltd money had grown to $268,000 by October 2006. The husband’s version was that $40,000 of the original N Pty Ltd money went into the house but as to the balance, he was unable to say what happened to it. The wife then said that in 2007, a corporate entity known as V Pty Ltd as the trustee for the Prantage Family Trust bought a NSW taxi licence for $365,000 plus costs and stamp duty. It was common ground that $100,000 was borrowed from the Commonwealth Bank. That was secured against the E property to which I shall refer in a moment which had been given to the wife by her parents. Thus, about $265,000 had been accounted for.
The wife’s version was that it came from the money left over from the house renovation. This must have been the money the husband said he could not account for. The husband’s version was that $200,000 came from N Pty Ltd but he said that he gave that back to his father-in-law from cash that was kept in a safe at the former matrimonial home. Thus, if the husband’s version was correct, the trust controlled by the wife and her sister provided the $200,000 in the first place and rather than pay the trust back, the husband provided the money to his father-in-law. He explained this as having something to do with Centrelink or tax. He said this amount of money was paid in small amounts of $10,000 or thereabouts.
There are two possible inferences open. First, there was money left over from the house. The husband could not explain what happened to it. The wife proffered a plausible explanation. The alternative inference is that small sums were paid but none of these details appeared in the husband’s affidavit nor was the wife’s father who was called as a witness for her, cross-examined about it. The husband confirmed that he had had access to bank statements but there was no suggestion made by him that he had had not had an adequate opportunity to pursue discovery. On the balance of probabilities therefore the husband’s evidence is implausible and I accept that of the wife.
The wife also gave evidence that her parents had sold a property and ultimately, she received the tenanted property at E. That issue was not disputed.
The NSW taxi licence has been operated since its purchase by a corporate entity. The rental from the taxi licence has been used to repay the $100,000 loan to the Commonwealth Bank. There is a small amount accrued in the V Pty Ltd bank account.
It was common ground throughout the marriage that the husband had been the main financial provider but by the same token, the wife had been the major carer of the children and manager of the household. Whilst the husband was somewhat reticent about acknowledging the value of the wife’s contribution by comparison to the contribution that he made by his earnings, I could not on the evidence distinguish between the parties’ respective contributions during the marriage other than those to which I shall now turn.
It is quite clear on the evidence and not disputed by the husband that significant sums of money were provided by the wife’s parents. She received the property at E and that had never been financially or non-financially contributed to by the parties during the time that they were together.
I have already set out in some detail the money that the wife received for the benefit of both the husband and the wife from N Pty Ltd. I find that the money from N Pty Ltd went into the reconstruction of the home and then ultimately into the taxi licence.
Whilst the husband’s contribution at the start of the relationship outweighed that of the wife, her subsequent contributions through the assistance of the family trust far outweighed those of the husband at the start.
This is a case in which the assessment could be done on either a global approach or on an asset by asset basis. To do it on an asset by asset basis would mean the exclusion of E property from the trust. To do that however would not do justice to the parties because the cash sat initially in a bank account and was ultimately used to significantly improve the value of the home when the P property was rebuilt. Furthermore, the value of the taxi licence has increased in value since its purchase albeit in a modest sum.
In my view, this is a case in which the global approach is the more appropriate one to achieve a just and equitable outcome for the parties. Part of the assessment and weighting of the contributions requires a court to look at the gap between the assessed proportions attributed to each party. It is not essential that the assessment be done in percentage terms but the assessment must reflect the proportional weight given to each party’s contribution.
In this case, the contribution of the wife can be seen in the E property, the trust assets and a significant portion of the taxi licence. In my view, an assessment in favour of the wife as to 65 per cent of that total pool is a proper assessment of the parties’ contributions. That is, the wife should be entitled to almost twice that assessed in favour of the husband.
The third step requires a court to examine each of the matters as set out in s 75(2) of the Act as they apply to each party.
The matters required for consideration are set out in s 75(2) of the Act. I shall not repeat them here.
In this case, both parties as a result of these proceedings will have property. The wife has financial resources in that she is a joint trustee with her sister in a family trust and she also has an investment property. She also has the limited capacity to work and I accept that she will not be able to earn what the husband can. That situation has been very much affected by her role throughout the marriage as a homemaker. Even with the proper use of the financial resources of the family trust, the wife’s income will not match that of the husband.
The husband is working and despite his psychological problems and the responsibilities for the care of the children, he continues to earn that good income. He also appears to have security of tenure.
At least for the foreseeable future, the husband’s responsibilities for the two children will continue. I cannot see an immediate change of the caring roles having regard to the state of the evidence. That imposes a financial and physical burden upon the husband which must restrict his capacity to advance his financial resources by working longer hours.
The commitments of each of the parties are modest. The wife is living with family who are very supportive of her whilst the husband is carrying the burden of the children.
Neither party has repartnered to the extent that there are responsibilities for any other person.
I have taken into account that the parties led a comfortable lifestyle together but the separation as with many, has caused a substantial change in those arrangements. It is no longer reasonable for them to have the same standard of living that they had before.
The husband has indicated his wish to continue his role as the parent of the children but he also has the assistance of his parents to provide care for the children subsequent to school hours until he arrives home. Extended family in those circumstances make a significant contribution to their grandchildren.
I also take into account in this case that as a result of the contribution assessment which I have just set out above and which I have found to be fair, the wife will receive more assets than will the husband. That is a matter that the Court should take into account having regard to their respective future economic circumstances.
I am perplexed about the child support contribution that the wife has indicated she will make. The assessment to date has been an artificial one based on her current declared taxable position but the care of children goes on and is generally carried by the primary carer if the system can be manipulated as I find it is here. Whilst the wife might argue that she would pay whatever assessment she receives, that does little to financially assist the children. Whatever may have occurred as between the parties and importantly, whatever crises occurred that gave rise to the husband being responsible for them, the children have the entitlement to the financial support of both parties and I take that into account.
I have also mentioned earlier the question of the wife’s control of the family trust. Whatever may have happened in the past, it would appear that those funds are now required to be used by the wife for her own support having regard to her separation from the husband. I have therefore inferred that her future circumstances will be much tighter if she becomes responsible for her own financial management and is obliged to pay child support.
When all of those matters are weighed, looking at it from a justice and equity perspective, the husband will have the greater earning capacity and income. However, the wife will also have the greater capital asset and a reasonable amount of income if the trust is operated properly. In the circumstances, the disparity between the parties justifies an adjustment in favour of the husband at 5 per cent.
The non-superannuation assets should therefore be adjusted as to 55 per cent to the wife and 45 per cent to the husband.

Superannuation

In opening the wife’s case, Ms Smallwood on behalf of the wife indicated to me that the wife was content for the superannuation to be left as it was. That was not what she sought at the end. She pursued a splitting order. No indication was given that the trustee had been accorded natural justice.

I have already set out the interests of the parties in their respective superannuation funds as disclosed in the balance sheet.
At the commencement of the relationship the husband’s superannuation was significantly greater than that of the wife.
The contribution that each party made during the marriage should also be reflected in the superannuation. In this case, the husband’s superannuation came about predominantly by virtue of the fact that he was employed and the wife similarly but for the limited period of time that she was in the workforce. Each party has otherwise benefited from the fact that the superannuation entitlements have grown because of market forces. One could conclude in those circumstances that what the parties had at the start of their relationship was effectively seed capital. During the marriage, the contributions were equal. No argument was put about the period subsequent to separation. Overall, the contributions favour the husband as to 55 per cent.
I have taken into account the s 75(2) factors as they apply to each party but predominantly, neither of the parties will benefit from the superannuation for some years to come. Each needs the benefit of assets now. Some adjustment must be made in favour of the wife because of the disparity of contribution by the husband and the disparity of current entitlement of the wife. The adjustment is not simple because of what the entitlement is worth to the respective parties today. The ultimate overall outcome for the purposes of s 79(2) must be just and equitable. For superannuation adjustment purposes, a superannuation splitting order would not achieve that because of the current needs of both parties. The best way to achieve that result is a cash adjustment in favour of the wife for the disparity in superannuation and I fix that sum at $60,000. However, as the wife is obliged to pay the husband money from the non-superannuation assets, I propose to offset one against the other.
The pool of non-superannuation assets totals $3,098,767. Of that, the wife is entitled to 60 per cent.
The wife’s entitlement is therefore $1,859,260. That is made up of:
·E property with mortgage  $660,835
·V Pty Ltd and the taxi licence  391,900
·National Bank shares  14,224
·OS family trust  975,000
Total  $2,041,959
The wife would be obliged to pay the husband $182,700. Against that must be offset the $60,000 for superannuation. Thus the wife must pay the husband $122,700. In my view, that adjustment is a just and equitable division.
Orders were made by the Court on 22 December 2008 and 6 March 2009 requiring contributions to be made towards the costs of Mr O, Dr W, the supervisors’ costs and the attendances of the children upon Ms G. Notwithstanding all of the findings I have made which may be seen as a criticism of Ms G and criticism of the supervisors, I see no reason why the husband should bear those costs alone. In the circumstances, the wife shall contribute one half of those costs which sum I fix at $18,000. The wife must therefore pay the husband $140,700.

Child Support

As part of his application, the husband sought a departure from administrative assessment of child support.
In the final orders attached to the submissions of counsel for the husband, he proposed that the Court order that for the period from 1 August 2009 to 31 October 2010 the annual rate of child support be set at $8832 and that for the period from 1 November 2010 until 30 June 2012, a similar amount be fixed.
The evidence of the wife not disputed by the husband was that she was paying $29.67 per month.
The basis of the husband’s application was that the wife is the joint appointor with her sister as well as the beneficiary of the OS Family Trust, a situation that has continued since December 2001. Subsequent to separation, for reasons to which I have already referred, income was not distributed to the wife by the trust.
The husband’s case was that despite receiving income from the trust and rental from the property at E, the wife had not paid child support other than that to which I have just referred. The wife receives $470 per week by way of rental from E property and it is on that sum that she is dependent for living expenses. It was not argued that the wife who became a registered teacher in 2009 was not exercising her proper earning capacity. Even if that was the case, any future earning capacity will be picked up by the Agency though lodging tax returns.
In essence therefore, the husband’s case was that the wife has the capacity to obtain income from the trust but had chosen not to do so to avoid child support obligations.
Much of the evidence in relation to this issue emerged when the wife was cross-examined. She conceded she received $490 per week from the rental of the E property and expected to get $2400 per month from the taxi licence which is mentioned in the pool of assets above assuming she retains it. That income must satisfy a loan commitment but that is only $700 per month. The wife conceded that she had therefore $1700 per month at her disposal.
The wife also will retain the property at E and it was suggested to her that she could draw income from that property. Her response was that she would have to move there to live presumably on the basis that she has no longer the capacity or the desire to remain dependent upon relatives and friends.
Senior counsel in cross-examination then turned to the question of the distributions from the wife’s family trust. The wife confirmed that she had not received them. She confirmed that she and her sister controlled the trust. When asked who received the income, the best she could do was to say the income was assigned to the day to day running of the company. She confirmed she signed the cheques and what little was over was distributed. She was unable to explain what the daily expenses of the company were.
It became evidence that initially after separation there was a child support assessment of $736 per month based on a taxable income of $62,000 per year. That was picked up from the income tax return of the wife because although the funds were not paid to her by the trust, they were in fact notionally distributed to her. The distributions after that ceased. That has some significance having regard to the fact that both the wife and her sister were the persons responsible for making the decision.
It was put to the wife that what she was doing was manipulating her income. She denied that but then added that she needed to pay her legal fees and her family was helping out. As I have earlier mentioned in the property part of these reasons, I presumed that that meant that any entitlements from the trust were being subsumed by the family retaining the distributions to cover the wife’s expenses.
The wife confirmed that she was living with her parents and had never at any stage suggested she was moving in to live at the investment property. She also confirmed that she only paid rent to her parents when she was able to do so.
As for her teaching career, she confirmed that she was not teaching on a full-time basis and not seeking such a position because of what had happened to her family. She said her priority was her children and she was “running all over Melbourne” to get help. She therefore said it was difficult to work.
Later in the proceedings, the income tax returns of the OS Family Trust were tendered. For the year ended 30 June 2006, the wife received $23,989 out of a net distributable profit of $35,789. In 2007, the wife was paid $35,812.76 and in 2008 $39,833. Remarkably in 2009 the distribution from the trust ceased. However, the wife received a gross income of $5094 from dividends and rental and had a total income of $16,720.
Pursuant to s 116 of the Child Support (Assessment) Act 1989 (Cth) (“CSAA”) a carer entitled to child support may apply to a court having jurisdiction under the CSAA for an order in relation to child support in the special circumstances of the case if, relevantly, both parties are parties to an application pending in the court and the court is satisfied that it would be in the interests of them for the court to consider whether an order should be made departing from the assessment in the special circumstances of the case.
Pursuant to s 117 of the CSAA a court may make a departure order upon an application as set out above if satisfied that one or more of the grounds for departure set out exists and that it would be just and equitable as regards the child, the carer entitled to child support and the liable parent and otherwise proper, to make the order. This particular provision was the subject of much scrutiny in Gyselman and Gyselman (1991) FamCA 93. In that case, the Full Court (Nicholson CJ, Fogarty and Nygh JJ) said:
Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds is prefaced by the words, “in the special circumstances of the case”. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary.
What is unusual or special about this case is the fact that even on the wife’s evidence, she is not contributing in any significant way to the support of these children and by virtue of her position as a trustee, able to manipulate a position with her sister while at the same time amass assets which she treats as her own in conjunction with her sister under the guise of them being held in a discretionary trust. The child support assessment process makes it difficult to treat that sort of situation as part of its normal assessment. In the circumstances, I find there are special reasons to treat this case as one warranting the consideration of the Court.
In Gyselman, the Full Court went on to say:
The structure of (s 117) is that s 117(1)(b) identifies concisely the matters about which the court must be satisfied and those components are then expanded in sub-sections (2)to (9). Section 117(1)(b) identifies a clear three step process:
1.Whether one or more grounds of departure in s 117(2) is established.
If so,:
2.Whether it is “just and equitable” within the meaning of s 117(4) to make a particular order.
3.Whether it is “otherwise proper” within the meaning o f s 117(5) to make a particular order.
Before turning to those issues, it is helpful to look at the purpose behind the legislation. Section 3 of CSAA sets out that parents of children have a primary duty to maintain them and that duty is a priority over all commitments of the parents other than those necessary to enable the parent to support himself or herself.
The objects of the CSAA are set out in s 4. The primary object is to ensure that children receive a proper level of financial support from their parents. The Act sets out its objectives in relation to endeavouring to have all children treated in the same way by a formula approach. At the same time, parliament has decreed that the Act should be construed to permit parents to make private arrangements and limit interference with the privacy of person. In circumstances such as this case, none of those objectives is being met.
The Act applies to children who are eligible. There is no dispute in this case that not only are the children eligible but that the wife is a person responsible for the payment of child support by way of an assessment.
The administrative assessment is designed around formulae using an annual rate of child support for a particular child support period. Various components are put into the formulae.
Although complicated, the Act sets out the various bases upon which parents can work out their annual rates of child support using the income of both parents.
One of the elements of the formula is set out in s 41 which indicates how the assessment works out a parent’s child support income. That includes a formula under which the parent’s adjusted taxable income is assessed.
Section 55J says that a parent’s taxable income is generally the amount of taxable income assessed under the Income Tax Assessment Act. That is the simplified version.
To depart from the assessment, the three steps above have to be followed. If that process is followed, then orders may be made pursuant to s 118 of the CSAA. That provision allows the Court to vary the annual rate of child support, the cost percentage to be contributed by a parent, the child support income of a parent and a variety of other determinations.
In this case, the husband urged the Court to make an order for an annual rate of child support. Nothing was said that would indicate its reference to the calculations in the formulae and more importantly, how that meets the objectives of the Act.
I turn then to the three steps. Is there a ground for departure? I find there is on the basis that in the special circumstances of this case, the application of the assessment results in an unjust and inequitable determination at the level of financial support to be provided by the wife for the children because of the income, property and financial resources of the wife.
Having so found a ground, the question is whether it is just and equitable within the meaning of s 117(4) to make a particular order. Section 117(4) provides that a court must have regard to, relevantly in this case, the nature of a duty of the parent to maintain the children, their proper needs, the income, property and financial resources of both parents, the earning capacity of each parent, the commitments of each parent necessary to enable them to support themselves, and any hardship that would be caused to the child and in this case, the husband by not making an order and in this case, to the wife by making an order.
I have already set out what the duty is. It is not being met by the wife. The needs of the children are being met but entirely by the husband and there was no evidence to suggest that there was anything unusual about those expenses. The husband referred to music lessons and Greek cultural education. All of those are part of the normal incidence of parental expenses. I have set out in some detail the income, property and financial resources of the wife and more importantly, what her future entitlements will be now that a property settlement has been resolved. I have taken into account the earning capacity of the wife only in so far as it is clear she can earn more money if she wishes to do so notwithstanding that is not a ground upon which the husband pursued the departure order. I have also taken into account that the wife has limited expenses for living at the moment by virtue of the fact that she is residing with her parents. Having regard to the expenses that the husband incurs in caring for the children, it would be a hardship for him and the children if some contribution was not made by the wife in a meaningful way but no hardship to the wife if she were not required to make such a contribution.
I find therefore in the circumstances that it is just and equitable to make an order.
The third step is to look at the question of whether or not it is proper in the circumstances. There are no social security or taxation implications involved in this case such that the public purse would be affected. In those circumstances, it is proper to make the order.
For the reasons outlined, I am not comfortable in making an order which fixes the child support having regard to the complexities of the formula. It is clear as I have set out above however that from 2006 until recently, the wife was obtaining trust distributions. I find there is no reason why she cannot continue to receive those distributions but if she chooses not to, there are other property and financial resources upon which she can rely to pay child support. In addition to any taxable income pursuant to the Income Tax Assessment Act, the appropriate method for the next two years to assess her child support obligation is to presume that the wife could receive from the OS Family Trust a distribution of between $35,800 and $39,800. I fix $36,000 as an appropriate sum in the circumstances and I direct that the Registrar in child support add that sum to the taxable income of the wife for the period of 12 months ended 30 June 2010, 30 June 2011 and 30 June 2012.

I certify that the preceding Five Hundred and Fifty Five (555) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 24 December 2010

[2010] FamCA 1198

24 December 2010

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Family Law

Equity & Trusts

Property Law

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