RUSKIN & BONNER

FAMILY COURT OF AUSTRALIA

RUSKIN & BONNER

[2018] FamCA 459

FAMILY LAW – PARENTING – Where the mother of two children makes a series of serious allegations against the father but at trial offers equal time – Where father alleges mother has borderline personality disorder with paranoid feathers – Where two psychiatrists disagree about diagnosis – Where all other aspects of parenting indicate equal sharing is best for the children.

FAMILY LAW – PROPERTY – Where overwhelming contributions made by husband.

FAMILY LAW – SPOUSAL MAINTENANCE – Where entitlement of wife is not in issue but quantum is – Reasonableness of need considered.

FAMILY LAW – CHILD SUPPORT – Departure application – Where matter should be dealt with on basis of assessment.

Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

In the Marriage of McMahon [1977] 3 FamLN12
M v M [1988] HCA 68; 166 CLR 69
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; [2001] 52 NSWLR 705
Nutting v Nutting (1978) FLC 90-410
Wilson and Wilson (1989) FLC 92-033

APPLICANT:

Mr Ruskin

RESPONDENT:

Ms Bonner

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

2646

2016

DATE DELIVERED:

19 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

24, 26, 27 April 2018; 1, 2, 22, 23, 24 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Vohra SC with Ms Carter

SOLICITOR FOR THE APPLICANT:

Gadens Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Brown QC with Mr Matta

SOLICITOR FOR THE RESPONDENT:

Adrian Abrahams Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That all extant parenting orders are discharged.
That the husband have sole parental responsibility for major long term decisions relating to:
(a) Medical and psychological treatment; and
(b) Education,
of the children V born … 2011 and E born … 2014.
That the children live with the parents on a rotating basis, commencing as soon as practicable with the husband having five days followed by the wife having five days, followed by the husband having two days and the wife having two days and the cycle thereafter continue indefinitely.
That in respect of school holiday periods (which shall include crèche and kindergarten) and special occasions, in default of agreement between the parties, all time be shared equally.
To the extent that the parties require that such holidays and special occasions be reduced to formal orders, they have until 31 July 2018 to produce a draft and if there is no agreement, the matter be relisted for determination by the court on that issue.
That each of the parties be restrained from removing the children V (a female) born … 2011 and E (a female) born … 2014 or either of them from the Commonwealth of Australia until 1 July 2023.
AND IT IS REQUESTED
That the Australian Federal Police give effect to the preceding Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for the period specified in Paragraph (6) and in default for a period of five years from the date of these orders.
That the husband be at liberty to provide to all medical practitioners, allied health professionals, all kindergartens, crèches and school principals relevant to these children, a copy of these orders.
That the wife, be restrained by injunction from taking the children to any medical practitioner or health professional except with the written consent of the husband.
The date and time by which things are to be done under these orders is 4 pm on 1 August 2018 unless the parties agree otherwise.
The husband pay to the wife $900,000.
The wife transfer to the husband, at his expense, all of her interest in 7 A Street, Suburb K (Certificate of Title Volume … Folio …) and the husband provide to her a release from any liability with respect to any mortgage encumbering that property.
The husband transfer to the wife, at her expense, all of his interest in 6 A Street, Suburb K (Certificate of Title Volume … Folio …) and the husband provide to her a discharge of any liability she may have for any mortgage or other encumbrance affecting that property.
The wife provide to the husband a document in registrable form confirming the withdrawal of the caveat lodged by solicitors G Lawyers on any real property.
The husband sign any necessary document provided to him by the wife to enable the transfer to the wife, the ownership and entitlement to,:
(a)Commonwealth Bank Of Australia Streamline Bank Account number …28; and
(b)Commonwealth Bank of Australia Netbank Savers Bank account number …74.
Pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth), the amount of $155,000 is allocated as the base amount to be deducted from the interest of the husband in the H Superannuation Fund (the Superannuation Fund) and whenever a splittable payment becomes payable out of the interest of the husband in the superannuation fund, the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made but for these orders and this order shall have effect forthwith.
The wife:
(a)roll out her entitlement (as adjusted) in the superannuation fund to a fund of her choice;
(b)Sign any document enabling the husband to her remove her from any banking authority of K Pty Ltd;
(c)Sign any document enabling the husband to her remove her from the superannuation fund;
(d)Sign any transfer to the husband or his nominee her shareholding in K Pty Ltd and thereafter resign as a director thereof.
The wife resign as a director of K Pty Ltd and the husband indemnify her for any liability arising out of the conduct of K Pty Ltd and obtain for her a release of any covenant or guarantee she has given to date.
The husband sign any transfer document provided by the wife to transfer to her, the registration of the 4WD motor vehicle in her possession.
The wife sign any document provided by the husband, and prepared at his expense, to:
(a)transfer to him or his nominee any interest she may have in the assets of The Ruskin Investment Trust 2 and L Pty Ltd (the entities);
(b)remove her as a beneficiary of the said trust including any acknowledgment that she will not be considered for distributions of capital and income; and
(c)assign to him or his nominee any loan accounts in which money is owed to the wife in the entities.
Notwithstanding paragraph 9, from this date onwards, the husband keep the wife indemnified in respect of all liabilities with respect to the entities.
Each party shall otherwise retain, to the exclusion of the other and that other party shall relinquish any interest in, any other property held by that party as at the date of these orders.
Forthwith, any joint tenancy of the parties in the real property at 7 A Street, Suburb K is severed and each party shall hold their interests in that property subject to these orders.
Any extant spousal maintenance order is forthwith discharged and, as and from the date that the husband would next pay the wife a payment under the discharged orders, he pay her $1,285 per week and the last of such payments shall be made on the day that he would otherwise have made a payment after 31 December 2020.
That save as to any issues of costs, all extant applications are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ruskin & Bonner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2646 of 2016

Mr Ruskin

Applicant

And

Ms Bonner

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The proceedings between Mr Ruskin (“the husband”) and Ms Bonner (“the wife”) concerned their parenting and property disputes, the wife’s claim for spousal maintenance and her application for departure from the administrative assessment of child support.
Despite the husband initiating the proceedings, the wife became the applicant and the husband was the respondent. The court had the assistance of an Independent Children’s Lawyer.
The parenting proceedings concerned the parties’ two children V aged 7 years and E aged 3 years. The wife’s proposal was that the parties should share the time of the children equally; the husband’s proposal was that the children should live with him for ten nights out of 14 and then the wife the remaining period of four nights broken up into three nights and one night in the fortnight.
There were also ancillary orders sought by the husband in particular relating to parental responsibility to which I shall return but much of the hearing revolved around an argument as to whether or not the wife had been correctly diagnosed with borderline personality disorder with paranoid features.
For the reasons that follow, I am more concerned about the wife’s behaviour and an explanation of why it occurred, and depending upon that, whether there is an unacceptable risk of harm to the children of a repetition of that behaviour.
The property proceedings concern two houses one of which was owned by the husband prior to the parties’ marriage and the other acquired in 2014 but which has since increased substantially in value. The assessment of the respective contributions is not difficult because of the relatively short relationship of the parties; they undoubtedly favour the husband. The wife’s counsel did not dispute that. However, with the husband’s very significant income as a health professional, and the wife’s lack of present income, it was argued on behalf of the wife that the court should divide the property (at least most of it) as to 65 per cent to the wife and 35 per cent to the husband.
The wife’s counsel acknowledged that the husband owned 6 A Street, Suburb K at the commencement of the relationship although it was then asserted that the husband’s debt positon was not clear. I do not accept that latter point. The husband’s evidence was not seriously challenged. The wife also acknowledged that the husband owned shares of approximately $300,000 in value.
It is the wife’s property case that she made significant “initial non-financial” contributions by supporting the husband in the establishment of his business whilst she undertook the role of homemaker and primary carer of the two children and otherwise, their contributions were equal. The parties agree that they are dividing equity in assets of $12,868,000.
The husband’s counsel submitted that the acknowledged contributions of the husband were a springboard for the current wealth of the parties and had to be afforded significant weight. In respect of the wife’s argument that her non-financial contribution was significant during the marriage, counsel for the husband observed that the wife had mental health issues affecting her functioning during the marriage but largely, the husband’s contribution at least to separation, was associated with financial matters.
In addition to a property settlement, the wife also sought spousal maintenance. The husband agreed to support her but the contentious issue is quantum and duration.
The wife proposed that she be paid $5419 per week without any “sundown” clause in the orders. The husband proposed the sum be $1250 per week but only until 31 December 2019. To some extent, the two questions about spousal maintenance depend on where the children live but the husband’s submission was that the wife’s claim was unreasonable even with his substantial income as a health professional.
The final issue related to child support. There is currently a child support assessment from which the wife has sought a departure. She sought $2016 per week per child as against the current assessment of $2695 per calendar month for each child.
The wife’s final written submission in respect of child support was that the assessment:
Grossly under-estimates the actual cost to the wife of raising the children whilst in her care including the cost of food (including maintaining a Kosher diet), clothing, activities and holidays, as an example. Further, the husband’s proposal does not recognise that the wife has no income and will be unable to engage in meaningful employment until such time as she completes her post-graduate qualifications…As such, it is submitted that it would be just and equitable and otherwise proper to depart from the periodic administrative assessment.
The husband’s final submission relating to child support was that it was neither just and equitable, nor otherwise proper, to depart from the assessment. The basis of that submission was that the husband had agreed to continue to pay, and has always paid, considerable expenses for the children including school fees and ancillary expenses as well as their extra-curricular expenses. The husband also agreed to pay all medical expenses, medical insurance and dental expenses. His position is that he is already providing an appropriate level of financial support outside of the assessment and on that basis it was not proper to depart from the assessment itself.
As part of the parenting dispute, there is also a request by the husband for the children to be placed on the Airport Watch List indefinitely. That is, he desires an order in the form of an injunction precluding the children leaving Australia until they attain the age of 18 years. The wife opposes that order indicating that there is no evidence that she is a “flight risk” but in any event, she submits that she comes from a European cultural heritage and has a desire to travel to Europe with the children who are entitled to share not only in that heritage but also to meet all of the extended family in that country. For the reasons that follow, I consider there is a risk to the stability of the children at their present ages because of the wife’s past behaviour. I reject her counsel’s submission. However there is no basis to make an order for the entire childhood of these children. I consider five years as adequate taking into account that by then, V will be 12 years and E eight and a half years of age. In addition, time will tell whether the wife’s behaviour to which I later refer is a result of mental illness or malevolence.
A further minor issue arises out of an order that was made on 8 November 2016 that $100,000 of money paid by the husband to the wife be “characterised appropriately” at trial. It is questionable whether those types of order should be made even by consent. The court either has the power to make such an order, and the parties should identify what it is that the court is doing, or alternatively, the order should not be made. The dilemma arises out of the court being asked to examine with hindsight whether the amount of money was spent on living expenses, unreasonably incurred items or indeed legal fees. That was the case here where the wife submitted that the money was used on living expenses and therefore should be ignored. Large sums of money have been spent here and the wife’s evidence about having used it for living expenses gives rise to a question of whether that was reasonable and whether there was an overlap in respect of repaying money her family lent to her for legal expenses and/or day to day living.
The husband’s view was that the money had to be brought to account because in addition to the $100,000, the wife also had received from him $725,000 all of which it appears, has been spent on legal expenses. It was submitted by the husband, and accepted by the wife, that the $725,000 should be included in the “divisible assets” because they were spent on legal fees.
In my view, because the wife was on notice that she had to justify the $100,000, I reject that there is adequate evidence to enable me to find she spent it on necessary living expenses. It should also be included with the $725,000.

Background

The parties met in the UK in 2008 where the husband had just completed his training as a health professional and was about to move to another position. The wife, who is European by birth, was in her second year as an employee of M Ltd.
As the evidence unfolded, it remained unclear when the parties actually began living together but in any event, they married in 2009 in a civil ceremony in Europe which a month later was celebrated in Australia according to Jewish custom and law. The parties had moved back to Australia in 2009.
V was born in 2011. Between the return to Australia in 2009 and V’s birth, the wife did not have paid employment and the husband was setting up his business. In her evidence, the wife described her role as a bookkeeper whilst the husband described her as his office manager. Either way, I find the role was limited in time and tasks.
At the time that the relationship commenced, the husband already owned 6 A Street, Suburb K and in 2014, the parties, as tenants in common in equal shares, purchased 7 A Street. The purchase price for that property was approximately $5.3 million for which a mortgage of $3.3 million was obtained over both houses as security. The mortgage is an interest only mortgage and the quantum remains the same but it is common ground that 7 A Street is now worth $10.8 million.
Much of this case revolves the parenting issue and in particular, the wife’s mental health. In July 2014, she began seeing a psychologist. The court record shows significant involvement with health professionals since that time.
In 2014, E was born. In March 2016 the parties separated on a final basis. It will be seen therefore that upon the parents separating, V was not quite five years of age and E not quite 18 months of age. Since the separation, apart from proceedings in the Federal Circuit Court which were ultimately transferred to this court, there have been intervention order proceedings, involvement of various health professionals, interviews by the Victoria Police Sexual Offences Unit and intervention by the Department of Health and Human Services. In addition, a court appointed expert, Ms S, a psychologist, has undertaken four separate reports into the children’s lives and a forensic psychiatrist Dr T, undertook two assessments. The lives of these children have been in turmoil since the parents separated and there is little prospect of a change. That is particularly worrying when both V’s school and also Ms S have both noticed a significant deterioration in her happiness in the last 12 months.

The husband’s financial position

As a health professional, the husband produced his most recent tax returns and he expects to earn between $1.6 million and $1.7 million per year. After expenses are paid, depending upon what he has to pay the wife in terms of a settlement, he has approximately $8000 per week available to him. I accept however that he has a mortgage which is “interest only” which is not being reduced.

The wife’s financial position

According to her financial statement completed in August 2017, the wife receives $1000 per week from the husband but she currently estimates that she would need to spend $9500 per week for her support and that of the two children. That issue is considered under the rubric of the application for spousal maintenance but in my view, that sort of expenditure is not reasonable in the circumstances.

The parties as witnesses

Each parent was wedded to their position but I found the husband more focussed and a more reliable historian. The wife was anything but a reliable historian as cross-examination showed. She was dismissive of counsel’s probing questions constantly returning to her mantra that she had moved on and that both she and the husband needed to have significant roles in the lives of their children. That mantra is inconsistent with her past attitude and conduct.
The husband’s evidence was that the wife’s statement was unreliable and he pointed not just to the past events but also the wife’s changing parenting proposals. There is much to be said for his concern which was acknowledged by the wife’s senior counsel in final address. What had happened was not good for the children or the husband and his extended family.

May 2017 to May 2018

I return to the history below but it would not be unreasonable to say that in the period from December 2016 through to May 2017, the wife’s behaviour as a parent created enormous difficulties for the children let alone the husband. She made allegations of sexual abuse and physical abuse relating to the children which extended to the husband’s parents and involved everyone in some extraordinary stressful events. As the May 2018 hearing approached, the wife adopted a remarkably different position indicating that there should be a shared care arrangement for the children. Notwithstanding what had occurred up until May 2017, this was to be a significant involvement of the husband in the care of the children.
Since May 2017, calm appears to have descended. The wife, and indeed counsel for the independent children’s lawyer, pointed to that to indicate that whatever the problems were of the past, this was a new beginning. The husband rejects that. I find there is substance to the husband’s concerns and do not accept that the calm means there will be no further upheaval.

The parenting matter

The current position is that the husband has the children every Wednesday night and three weekends out of four. On those weekends, he has the children from Friday through to Monday. Mathematically, that is 13 nights out of 28. His proposal is that the major care arrangements be reversed and that on a fortnightly basis, he have ten nights. His proposal that the wife have four nights would be broken up into one weekend of three nights and one overnight in the other week.
As indicated, the wife’s proposal is an equal sharing arrangement with what was described as a five nights with one parent followed by five nights with the other and then two nights with one parent and two nights with the other rotating on a fortnightly basis.
The Independent Children’s Lawyer’s position was to support equality of time but vary the existing arrangement slightly to bring the numbers up to 14 out of 28. That arrangement would give the husband most of the weekend time. I do not consider that necessary or appropriate.

The wife’s final submissions

Senior counsel for the wife submitted that the competing proposals only amounted to a dispute about three nights per fortnight. Mathematically, that is obvious but the distinction between the two proposals lies in the major role that the husband’s sees for himself as against the equality of sharing as perceived by the wife.
Senior counsel for the wife submitted that the husband’s case was “entirely informed” by a belief that a reduction of three nights out of 14 would somehow safeguard the children from risk of harm. That is, if harm was done by the wife during her period of time, the husband hoped that the ten nights he had with the children would be sufficient to undo the damage.
There is no evidence here of physical harm but the husband’s case was that the risk to the children lay in exposing them to the wife’s behaviour arising from a diagnosis of borderline personality disorder. Senior counsel for the wife criticised the husband’s position because he submitted:
(a)There was no diagnosis of borderline personality disorder; and
(b)The basis for the husband’s concern was that past behaviour was a predictor of the future and the last 12 months had shown that the husband’s relationship with the children was unremarkable and uninterrupted.
It was submitted on behalf of the wife that there were two critical aspects in the evidence that did not support the orders sought by the husband. They were, it was said:
(a)The wife never made sexual abuse allegations against the husband nor had ever reached the conclusion that V had been sexually abused. Whatever she had said arose out of her belief arising from what V had repeatedly said and although she now accepted she had mishandled the situation, many of the statements of V were “not insidious and (had been) misinterpreted”; and
(b)The corner stone of the husband’s case was the borderline personality disorder with paranoid feature diagnosis which was not supported by the evidence.
The wife’s case is that there is no diagnostic evidence of borderline personality disorder and that her evidence ought to be accepted that, with the abating of conflict over the last 12 months, the court should find that she wanted to end the conflict.
It was submitted that the husband’s own evidence was that the wife was a good mother with whom the children had a good relationship and from which they were benefitting.

The husband’s submissions

Senior counsel for the husband submitted that the relevant orders to be made had to balance the harm to the children with their right to have a meaningful relationship with the wife.
Senior counsel for the husband was critical of the position taken by the Independent Children’s Lawyer and also the wife which, it was asserted, focussed on the fact that the wife had not breached orders made on 3 May 2017. That, it was said, was not indicative or sufficient, to establish change. It was submitted that the wife’s position was untenable because she had continued to breach orders in other respects. Counsel pointed to the fact that despite orders,
(a)The wife had not obtained prior consent to taking of the children to a doctor;
(b)The wife had not trusted the husband because she had had him followed by a private investigator during a Queensland holiday; and
(c)There was an examination by a doctor in which the wife said that E’s enlarged vaginal orifice” needed an examination which was either indicative of paranoia or a search for sexual abuse evidence.
It was submitted therefore that whilst the contact under the orders may have taken place, it could not be said that the wife had had “any epiphany” or change of mind regarding the husband and his family in relation to the risk to the children.
In respect of parental responsibility issues, senior counsel for the husband submitted that there was no basis to make an order for equal shared parental responsibility here because:
(a)The parties did not communicate;
(b)The wife’s mental health issues could not be in the children’s best interests;
(c)The wife had made decisions adverse to the children’s interests in the recent past as well as unilateral decisions relating to E’s enrolment at a crèche;
(d)The wife had failed to tell the husband of E’s hospitalisation in Europe; and
(e)The wife’s behaviours had focussed on the husband and his family and were entirely irrational.
It was submitted therefore that the requirements in s 65DAC of the Act could not be met.
In respect of the borderline personality disorder question, senior counsel for the husband submitted that because of the warped view, the children were exposed to harm. The husband wanted to protect the children.

The position of the Independent Children’s Lawyer

Counsel for the Independent Children’s Lawyer submitted that the court should focus on what it knew, not what it did not. He acknowledged that the actions of the wife were concerning and they did not present the wife in a good light prior to 3 May 2017. He submitted that it should be remembered that at the hearing on 3 May 2017, the Independent Children’s Lawyer had promoted a change of residence of the children to the husband but it was indeed the parents who had put in place the present arrangement. In the view of the Independent Children’s Lawyer, the present arrangement had been successful “in large measure”.
The Independent Children’s Lawyer acknowledged that the wife’s evidence was unsatisfactory but that these children were involved in a “cold war” from which there was no escape. However, the significance for the Independent Children’s Lawyer lay in the fact that Dr T, the psychiatrist to whose evidence I turn in a moment, had little faith 12 months ago that the wife could maintain what she was then expressing as her newfound convictions of a shared parenting arrangement but in reality, when told of the fact that there had been compliance, Dr T thought that was significant. Thus, it was the submission of the Independent Children’s Lawyer that the past 12 months showed that there was no longer a risk to the children.
In respect of the diagnosis of Dr T of borderline personality disorder, it was submitted that Dr T had relied upon his experience rather than any diagnostic assessment and that that approach was “dangerous” because the criteria in the DSM V were there for a purpose. I disagree with that submission.

The approach

In the light of those submissions, the focus of the court can be very targeted. The issues are clear and defined. Findings need to be made about the risk to these children of exposure to psychological harm by repetition of the wife’s acknowledged behaviour. The sexual abuse issues and those of physical abuse require consideration in themselves in the light of the question of risk of psychological harm from that in the future. As can be seen, the position of the husband is that the risk remains and it is unacceptable.
One of the husband’s concerns giving rise to his lack of trust of the wife which is what gave rise to the Independent Children’s Lawyer’s submission that there was a “cold war”, lay in the fact that he said that the wife kept changing her position. That is a good starting point to the examination to which I have referred.

Background of the litigation

The proceedings were begun by the husband in 2016 and on 30 March 2016 Judge Riley of the Federal Circuit Court restrained the movement of the children from the Commonwealth of Australia by the mother.
On 14 April 2016, when both parties appeared and were represented by counsel, an order was made that V spend time with the husband on alternate Fridays from 3.30 pm until 5.00pm on the Saturday and then for four hours on each alternate Saturday and each Wednesday. E who was then only 18 months old, was to spend time with the husband for four hours on each Saturday and six hours on each Wednesday. That arrangement must reflect the fact that E in particular, was too young to be removed from her mother and indeed one order, to which both parties consented, was that the children live with the wife.
At the hearing on 14 April 2016, the parties were sufficiently concerned about mental health issues for the court to order that both attend upon psychiatrist Dr T for the preparation of a psychiatric assessment and also attend upon psychologist S for the preparation of a family report.
The complexity of the proceeding must have then been self-evident because the parties agreed that the matter should be transferred to this court. Judge Riley noted that the orders were to be holding orders pending full consideration before this court.
The first appearance before this court was on 13 May 2016 so it may be presumed that the case was dealt with expeditiously.
The dispute between the parties over the husband’s time with the children remained controversial and was argued before Johns J on 6 September 2016 resulting in orders. One order which remained consistently a consensual arrangement was that the children live with the wife. Her Honour had to deal with the husband’s time which was determined to be five hours on certain days outside of which the parties’ agreement that the husband have V for more extensive time than for E.
In November 2016, the parties were again before Johns J but this time they came to an agreement resulting in consent orders. It is unnecessary for me to detail the precise times in those orders but I have inferred that by virtue of their consensual nature, they were not controversial. It is significant however that an order was made that the wife be at liberty to take the children on a holiday to Europe for up to four weeks commencing on 25 December 2016. This particular trip was undertaken with the two children and it became controversial for the reasons that follow.
The wife did not return to Australia until the end of January 2017 so the husband had not had the opportunity to even see the children for approximately six weeks. On 28 February 2017, before Senior Registrar FitzGibbon at which both parties were represented by Queen’s Counsel, a variety of procedural orders were made including the appointment of an Independent Children’s Lawyer. The hearing then came back before the court on 9 March 2017 when the Senior Registrar ordered the resumption of the husband’s time with the children but that was an enforcement of the September 2016 orders.
Also on 9 March 2017, orders were made by the court (and not by consent) that neither party attend upon any treating health professional without the prior written consent of the other and the Independent Children’s Lawyer. I am satisfied the wife subsequently ignored that.
These orders led to a further hearing before Johns J on 3 May 2017 at which time, her Honour was convinced to set the matter down for a final hearing as a five day matter before Cleary J at the end of October 2017. Unfortunately, that hearing did not take place because Cleary J ran out of time but she undertook some form of negotiations with the parties to try and resolve the matter and was unsuccessful.
The matter was then ultimately set down for trial.
It is trite to say that the various adjournments and interim hearings have extended what was otherwise intended to be a conclusion of all parenting matters let alone financial matters in 2017. However, that same delay has given the court an opportunity to examine whether there has been a change of attitude by the wife.

The wife’s history of proposals

One of the issues giving rise to the husband’s lack of trust in the wife is that he asserts that she is not consistent. Bearing in mind her argument that the past 12 months has indicated no problems with compliance, at least with his time with the children, can the court draw some comfort from the fact that she is now proposing an equal sharing arrangement?
In April 2016, (see judgment of Cleary J 2 November 2017) the husband was proposing a week about arrangement. The wife’s position was that the husband’s time be much more limited.
By June 2016 when the parties attended upon Ms S, the wife’s lack of trust in the husband can be seen in that she was proposing that the husband’s time with the children was only to occur with the attendance of the paternal grandfather.
In September 2016 when the matter was before Johns J, her Honour noted that there should be a gradual extension of V’s weekend time but there was no suggestion of anywhere near equality. In November 2016 when the parties attended Ms S, the psychologist noted that the wife was critical of the husband and “his lack of interest in the children”. The wife insisted that there be a gradual transition of time but she was starting from a low base.
It will then be remembered that the parties reached agreement that the wife could return to Europe for a holiday and that culminated in the children being absent from the husband for at least six weeks. Eventually, in March 2017, the husband’s time resumed but when the parties attended upon Ms S in September 2017, the wife had filed a Notice of Risk of harm to the children relating to serious allegations made against the husband and his family. The wife’s proposal, which the psychologist noted had been in a document filed 18 August 2017, was that the children spend time with the husband on alternate weekends from after school on Friday to the beginning of school on the following Monday and overnight on each alternate Wednesday through to the Thursday morning. It will be self-evident that this position had moved on from the earlier argument of the wife about the children not being comfortable being away from her overnight but that did not explain the need for the husband to have his father in attendance.
As the trial of the proceedings loomed before Cleary J in October 2017, the wife filed an Outline of Case document indicating that her proposal was that the husband have four nights per fortnight.
In December 2017 before me, when pressed as to what the wife’s position was, she repeated what had been said in her October outline.
The parties attended Ms S in April 2018 for the purposes of this trial and Ms S noted:
(The wife) proposes primary care be granted to her and the children spend each alternate weekend from Friday after school until Sunday evening with their father. She opposes overnight time during the school week but is open to the children seeing their father for a short time after school.
That attendance on Ms S was only two weeks prior to the commencement of the trial yet two weeks later the mother proposed the equal sharing arrangement.

The mother’s conduct

Before examining the controversial issue of the wife’s mental health, the following matters are those that form part of the evidence. The fact that these events occurred is largely uncontroversial. What they mean is something open to conjecture.
Cross-examination of the wife began with the general inquiry as to whether or not she believed the allegations that had been made against the husband and his family were true. Her answer was that she did not know everything but that she thought most were not true. She made allegations of family violence particularly emanating from statements made by V and when asked about the truth of those things, the wife evaded the question and said that she had apologised for hurting the husband’s feelings. Her evidence remained that V made the complaints but when pressed, she acknowledged that she did not think that the husband had done anything of the type asserted.
One specific allegation made which caused so much concern because of its nature was that both the husband and the paternal grandfather had touched V in the genital area. The wife was asked what she thought of that allegation as she reflected upon it in April 2018 and her answer was that in a certain way, she thought it was genuine but in any event, she said that is what V told her. When pressed as to whether she thought that it had happened, she said she was sure it had not. As evidence, the message from the wife was very mixed.
In relation to allegations that the husband and/or his parents had physically harmed the children, the wife was pressed as to why she would think that bearing in mind she did not observe it and she was relying upon what V said. She responded by saying that she saw violence between the two children and she did not know if it was them just fighting or whether the husband had told them to behave like that. She said she had never seen it other than at times when they came back from visiting their father. Albeit that the allegation is a serious one and the wife now seems to accept that it had no foundation, the critical question is why she did not raise it with the husband. When asked why she presumed the worst, she conceded she should have read things differently.
A particularly bizarre and disconcerting allegation was that V said that she had been locked in her bedroom. The wife said she was concerned to hear this particularly as on one night, the temperature was very high. This particular allegation had appeared in court documents along with others and in particular, appeared in a Notice of Risk document filed with the court. When asked about why she filed that document, the wife said she regretted it.

Another serious allegation made was that V told her that the husband had said he would kill V. The wife said that in her car with V, the child used those words. This particular allegation was part of a Notice to Admit document served upon the wife and her response to it was that she could not admit its truth, that is, as to whether or not the husband had ever said it but she added that it could have been said. The vagueness of her responses and reliance upon what the children said without reality-testing those statements remains concerning.
V is said to have told her mother that the grandparents made her eat off the floor like a dog. Asked about the reality of that, the wife said she “hoped” it had not happened. She said she had no idea how to assess the situation but when pressed as to whether she seriously believed such a thing would have happened, she responded they would never do that but again, added the mantra that V told her.
Another statement that V was said to have made was that the grandparents had put water out of the reach of the children. The wife said that that is what she was told. Again when asked whether she seriously believed that it was done deliberately, the wife’s position remained that V told her that. The unchallenged evidence of the extended family would have made any reasonable person question the meaning of any such statement by a child but the wife did not do so.
When the wife was asked whether she believed there was any risk to the children, her response was that her only concern related to injury from falling down a staircase. She was reticent to talk about the things she has said and when challenged about understanding the husband’s position that she might do it again, she said that she would not do so because that was why she was proposing an equal sharing of the time of the children. That is, that she had faith in the husband. I am not quite so confident.
To the extent that it is said that this case is an example of a conflictual relationship between the parents, a position certainly adopted by the Independent Children’s Lawyer, it is hard to know how to define the word “conflict”. The history shows a number of serious allegations subsequent to separation. In so far as the issue of conflict is concerned, I would not find there is any particular problem emanating from, or caused by, the husband. Since May 2017, there has been little communication between the parties other than electronically. When pressed about his view of the conflict, the husband certainly conceded that it was there but he gave an example of where he brought the children back and the wife slammed the door in his face and threw invoices at him. In family violence terms, I could not find on the evidence that this is a high conflict family. The issue for me is more in relation to the wife’s conduct in behaving as she did.
Explaining the wife’s behaviour is the subject of conjecture and dispute between a variety of experts. The wife conceded that she had suffered anxiety and stress but that was her nature well before the separation. She described it as a being in her “nature”. She has had attendances upon psychological help for therapy consistently since 2011. That indicates that the wife does have psychological problems. However, she seemed to explain it as marriage counselling. The absence of the attendance of the husband to the same extent as the wife belies that. Her expert forensic psychiatrist Dr J proffered an explanation that her mental health could be explained as an adjustment disorder resulting from having come to Australia as a migrant. The wife did not suggest in evidence that it was the cause of her anguish or difficulties within the marriage relationship and raising children. Her anxiety and stress was part of her nature.
In March 2012, her therapist wrote to her general medical practitioner indicating that the problem was related to anxiety, mood swings and insecurity about the relationship. This therapist was Mr N. There was much conjecture as to this expert’s qualifications. In my view it does not matter because the wife was content to see him and be treated by him consistently on a recommendation from her general medical practitioner. Whether he had the qualifications to make a formal diagnosis does not matter. It seems that Mr N was one of the first to suggest to the wife that she had borderline personality disorder or at least the traits thereof. It is timely to remember that the strict rules of evidence do not apply in a parenting proceeding and the wife did not dispute that she had attended numerous times upon Mr N for therapeutic purposes. His belief as to what was wrong with her is more important than any particular diagnosis. Indeed, the wife herself said it was up to the professionals to see if they could come up with a solution to what she saw as the problem.
When the wife was attending Mr N in 2012, she wrote pages of what her perception was of the husband and his family. The inference I have drawn from the document is that the wife had no difficulty with the husband but was very concerned about the fact that his family was trying to distance husband and wife. She wrote a more vivid letter later to another psychologist in which the same sentiments were expressed. Her behaviour began to show which gave rise to suggestions of paranoid features. The wife was writing that her mother-in-law was interfering in the marriage including writing emails in the husband’s name. An examination of the relevant emails show that an innocuous issue such as being picked up from the airport was seen by the wife as some form of problem being created for her. She made reference to the fact that the husband had to stop listening to everyone “and their gossips (sic) and their lies”. Despite that, and this was January 2013, she indicated that she missed the husband very much.
In 2014, the wife’s psychiatrist noted that she had seen other psychologists previously. One psychologist noted that the wife told her that she had been diagnosed with borderline personality disorder. The wife denied having said that and the psychologist was not called. As the therapy continued, the psychologist wrote notes (presumably for herself or her file) indicating that the wife’s “paranoia” was getting worse and that the wife suspected that her mother-in-law was bugging her mobile phone, landline and computer. It does not matter whether that statement in the notes was recorded accurately or otherwise because the wife’s own evidence was that around this time, she was having difficulty with her phone which she said was explained by a virus. That said, she engaged a security company to provide a program which told her when her calls were being monitored. The psychologist thought this was paranoia and that it was getting worse.
Whether or not the psychologist was making a diagnosis or not, I am unable to say because of the absence of the testing of that proposition but she wrote for the period between June and September 2015:
People similar to (the wife) that suffer from an obsession with jealousy, tend to choose people like (the husband) because he is safe; however, they then may find them boring. She then starts to invent all kinds of stories about him to make him more interesting again. Individuals with pathological jealousy are paranoid.
I stress again that that is not a finding that I make either about the wife or indeed that that diagnosis was made. However, the wife’s behaviour around that time is certainly consistent with her making up stories about the husband and his family. There is no doubt that by 2015, the marriage relationship was deteriorating.
As time went by, the husband found a device in his car presumably to track where he had been. It was put to the wife that she had put it there. Her first response was that the husband was coming home late, was not interested in her and the children and that friends were asking where he was. She said she did not know why he was keeping his distance from her and did not want to sleep with her or talk to her. Counsel then put to the wife that that amounted to a concession that she had put the device in the husband’s car. She denied that. I find she did monitor the husband for the reasons she gave for her concerns about what the husband was doing.
It was put to the wife that a listening device was also found in 2014 in a cupboard at the home. The wife explained that as being connected with her intended university studies. She denied that she acquired it for any other purpose than study. Having regard to the fact that the likelihood of her starting her studies at that time seems unlikely, notwithstanding the payment of the $35,000 fees, I accept it as more likely than not that the device was purchased to track the husband.
In December 2015, the wife told her medical practitioners that her parents-in-law had turned on a stove to make her look bad. This otherwise innocuous incident places some focus on the paranoia issue. According to the wife, the parents-in-law were in the house when she and the husband had gone out and they called her to come back because the oven was on. But the wife’s response was that it was done to make her look bad because she had not cooked that day and the dinner that night was in the refrigerator. She was confident that nothing was left on when she left the home. There are a number of possible explanations. One is that the wife was mistaken or another is the more sinister that someone had deliberately done it to create difficulty for her. At this particular time, she was having therapy and it is certainly consistent with the statements made to the psychologist about the concerns she had about the landline, mobile telephone and computer. I find it is more likely that it was an oversight on the part of the wife but had not been done by the parents to make her look bad.

The Europe trip

In 2016, the wife went overseas with the children and whilst in Europe, had difficulties with her credit card facility. She accused the husband of having done it deliberately. She said she was consistently asking him to book her ticket home. She went to the police in Europe and made a complaint that the husband was refusing to book the ticket. In hindsight, with the role that the husband now seeks in the lives of the children, that action on his part would be very odd. There is no doubt that the wife convinced the police that there was a problem but they took her complaint as one of the husband neglecting the responsibility for his children. Magistrates were then involved and not just peripherally. There were investigators and ATM machines were tested to see if the cards worked. These people were to be called as witnesses. All of this was directed to show the husband had cut off her funding. When asked why the husband would do something like that, her response was that maybe he wanted “to be boss”.
At the time that all this was happening, the wife had money in the bank and when asked why she had not used it in circumstances where she had taken a police investigator to various ATM machines, she responded that she had to keep the money because of the divorce. She said the police knew this. For a relatively innocuous event, all of this was bizarre. There was much more evidence than I have just set out but I consider the overall picture shows the wife’s relationship with the husband was in turmoil but there were elements of paranoia which arose because of her poor communication with the husband.
The wife returned to Australia but then separation occurred. She described the husband as “angry and storming”. Despite that, she said she had no concern for her own physical safety.
The parties were living virtually across the road from each other by this stage and she accused the husband of removing light bulbs. When pressed about that however, she said that was what she was told by a man who came to change the house locks. An examination of the report of that particular person makes no mention of the removal of light bulbs. He certainly mentioned the need for security lights. None of that would have justified an accusation that the husband had done something such as removing light bulbs. This type of statement does not sit comfortably with her mantra that her concerns arose out of what V told her had occurred. There was much more involved.
On 30 March 2016, the wife attended upon a police officer to seek an intervention order against the husband. The complaint giving rise to the application is in evidence. The wife accused the husband of becoming “increasingly more aggressive towards her although no violence/threats of violence has occurred”. The complaint went on to refer to financial issues and the fact that she had requested police to apply for a “full intervention order” because she believed that the husband might kidnap the children.
It was put to the wife that she demanded the children be on the intervention order. It seems that the police officer had declined to do so. It was alleged by senior counsel for the husband that the wife had undertaken that step to try and stop the husband having any contact with the children. She denied that and there is no objective evidence to confirm that that was her intention. It is hard to understand exactly what the intervention order was all about in the circumstances that were going on at that time.
In this same period, the wife went to her general medical practitioner. This was April 2016 so it was just after the application for the intervention order was made. V was described as having a “sore vulva”. The doctor thought that it was a matter of hygiene and prescribed cream. However, the wife then raised an interesting question with the medical practitioner. She asked whether she could obtain a copy of medications that have been prescribed for her because she found a bottle of Stilnox in her name that had not been prescribed and she had never taken. The doctor inquired who had prescribed them on the medication package and she said that it was the husband. This then led to advice from the doctor that she should contact Medicare. Nothing in the evidence before the court indicated there was any substance to this allegation and it was certainly not put to the husband that he had taken such a fraudulent step. The inference I draw is that this was indicative of the state of mind of the wife at the time. Whether or not it was paranoia, I cannot say. My view is that this was malevolent.
In the same consultation with the doctor, the wife asked about drug testing through hair samples. The doctor indicated that that was not her expertise but the wife told her that she thought her husband had cut her hair whilst she was asleep. She added that “my daughter told me”. This had something to do with the wife thinking that the husband was endeavouring to show that she was using drugs. In other words, that she would be given the Stilnox, have a hair sample taken whilst she was asleep to show that she was using the drug. The logic behind it all seemed very odd. Again, none of this was put to the husband so I have presumed it had no foundation. However, with the husband being a health practitioner, an enormous amount of damage could have followed.
Only some days later, the wife saw a different doctor who was made aware of what was described in her notes as accusation “re her mental health”. The doctor noted that the wife was a good historian, had appropriate affect and speech, was fully oriented, seemed reasonable and sensible in her assessment of the situation. She described her as calm, and that there was no evidence of mood disorder.
The curious thing about those observations is that at that time, the wife was first being assessed by psychiatrist Dr T.
In 2016, the wife had engaged private investigators to monitor cars and people in the street where the parties lived because there had been a lot of activity and the wife described it as unusual. It seems that she spoke to her father in Europe who paid for the inquiry to be undertaken. The evidence of the inquiry agent took the matter nowhere but the wife was asked whether she believed that the husband had the house under surveillance. She said she could not remember or did not know. This was all directed to the issue of paranoia.
When all of the issues associated with the cutting of the hair (bearing in mind it was something the child told her), the removal of the light bulb and the unusual street activity, it is hardly surprising that one might question the behaviour as being paranoid unless there was some particular reason why it might be associated with the breakdown of the relationship in some way. Nothing was put to the husband to indicate that he had done any of these activities. However, one allegation made by the wife was really concerning. She accused the husband of interfering with the brakes on her car. She said that there was a problem with the brakes and that the husband told her to go to a particular garage in Suburb O. It seems the first mechanic found nothing and whilst she was uncomfortable about that, she went to a different one in Suburb P who did find problems with the brakes. It was put to the wife that she was asserting that the garage proprietor in Suburb O had conspired with the husband to cause a problem with the brakes. Her response was that the garage proprietor had emailed and said that he had found nothing wrong with her brakes. I concluded from that that she was saying that the proprietor in Suburb P had. The absence of the sources of this conflict make it hard to decide whether this was sinister or paranoia. By reference to all of the other matters to which I have referred, it clearly indicates more than just mistrust.
Even when the husband was entitled to time away in Queensland with the children, the wife had a private investigator follow him. She received a report from the private investigator about the husband and the children at the airport. The wife was unable to explain why that was necessary.
The wife accused one of the psychologists of having been influenced by the husband’s family. Holistically, there is no other explanation as I reject any suggestion that this was situational arising out of the breakdown of the relationship. Nothing in the evidence indicates that the husband was endeavouring to take the children from the wife or indeed to harm her. Nothing in the evidence of the husband’s parents would indicate that they were as negative about the wife and the marriage as she would have the court accept. The wife’s own evidence was that she had suffered stress and anxiety prior to the marriage. This was either malevolence or mental illness.

The Europe trip after separation and sexual abuse allegation

I have already mentioned the orders that entitled the wife to take the children to Europe. Those orders were slightly altered by agreement between the parties. Whilst she was in Europe, the wife was supposed to have arranged for there to be electronic communication between the husband and the children. The wife told the husband that the computer connection was not working. His response was that she did not need a connection because the data in the mobile telephone would have sufficed. Other avenues such as using her mother’s phone could also have sufficed. I am satisfied that the wife made no endeavour at that time to have the children participate in electronic communication with their father.
On 3 January 2017, the wife said that V told her that the husband had sexually touched her. The wife thought that when the statement was made, she was in a ski resort. Despite the horrendous nature of the allegation, she said that the children went skiing immediately after. The wife seemed very confused as to where exactly this incident occurred and who was present such that I could not find any consistency in her story. Significantly, she attended a psychiatrist on 4 January, 5 January, 11 January and 18 January 2017. The first of those visits would have been the day after these allegations were made. According to Professor C, (Exhibit H15) the wife requested an evaluation of her mental and psychiatric state “within the context of divorce proceedings”. He had met the wife a year earlier for the purposes of forming “a psychiatric opinion at her request”. At that time he had not found any psychiatric disorder.

Professor C undertook the examination. His detail was elaborate. He was looking for the symptoms that might give rise to a borderline personality diagnosis. Remarkably, notwithstanding what happened according to the wife on 3 January 2017, he made no mention of any allegation of sexual impropriety when he saw the wife on the day after the wife said V told her.
It was the wife’s evidence that this allegation by V had so upset and distressed her at the time as one would well imagine because this was the first time such an allegation had been made. When she was asked as to why the subject was not raised with the psychiatrist, she said she did not know or she could not remember. Her response to an allegation put by senior counsel for the husband that this never happened, was that Professor C did not write everything down. However, this was a critical day in the life of both V and the wife. I would have expected a note of Professor C as to the state of mind and health of the wife on 4 January 2017. He described her as having “appropriate emotions” and not displaying any “impulsiveness”. He said in respect of the “criteria” pertaining to mood, anxiety and psychopathic disorders, they were absent. He found no cognitive, emotional or affective disorders. For someone who the previous day had been told of an horrendous event which distressed her, the absence of such a statement to a psychiatrist examining her for borderline personality disorder, is quite remarkable. I am satisfied the allegation was never made by V in the first place. The holiday in Europe continued and the wife and children should have returned to Australia but E was hospitalised with a gastric problem. She was there a few days. The wife did not telephone the husband but asked her mother to do so. When asked why she did not take the step herself, she said she did not think about it at the time. I found that remarkable. The husband should have known of the illness that required hospitalisation.

V commences school

The wife did return to Australia at the end of January 2017 because V was to start school for the first time. Despite having returned from Europe, the wife avoided the husband. He contacted her and she told him that he could not see the children because they were jet lagged. This behaviour is indicative of malevolence. Because of that jet lag, the school was advised that V would not be starting on the first day but she did not tell the husband that. She acknowledged she should have told him. When he asked to see the children on 1 February, she declined because she said she was “in discussion with her lawyers”. A remarkable set of events occurred on 2 February 2017.
V started school. On that morning, the wife sent the husband by text message, a photograph of the two children with V dressed in her school uniform. It might be described as a “happy snap” and looks innocuous. Some time that day, the wife’s lawyers wrote to the husband’s lawyers:
We are instructed that our client has grave concerns for the safety and welfare of the children resulting from significant disclosures by the eldest child revealing that the children have been subjected to abuse and violence perpetrated by your client, and his parents.
This was written after V had arrived at school for her very first day of school. The intake record of the Department of Human Services shows a call was made at 4.40pm on that day and allegations were extensive including not just the matters to which I have already referred but now sexual abuse. The Department interviewed the school teacher who told her what the wife had said to her but the teacher also indicated that the wife’s conversation was difficult to follow and certainly V had not shown any unusual feature. On the afternoon of 3 February 2017, an interview with V took place and “no disclosures were made” by V who said she enjoyed being with both parents. A remarkable feature about that was that V had not seen her father for some weeks.
The wife’s position now is that the allegations had no foundation. I find that V never made any statement that could be construed as inappropriate conduct by the husband or his family. I find the husband had been involved in normal parenting activities with V. Nothing untoward could be said to have been done by him and notwithstanding the views of the wife about her reservations concerning his parents, the evidence would not support any conclusion that they have done anything wrong of the nature described earlier.
A significant problem however is that the husband maintains that he is now viewed by the parents at school as a pariah. Serious allegations have been made against him and his parents all of which have no foundation. The wife brushes that aside saying they now have to parent together. Counsel for the Independent Children’s Lawyer described the relationship as being akin to a cold war. To the extent that suggested complicity or involvement of the husband, I reject it. These allegations were serious, damaging and unfounded. Paranoia cannot explain or justify them. I am satisfied this was irresponsible parenting on the part of the wife. The critical question remains whether or not those allegations are likely to occur again.
To compound matters, the allegations, vague as they were in the solicitor’s letter meant that the husband was excluded from having time with the children. That happened again culminating in the husband having his relationship with the two children disturbed until it was resumed by court order.
However it would not be correct to conclude that after the rejection by police and the Department of any impropriety on the part of the husband that matters resumed simply. In March 2017, orders were made by the court. In the same month, the wife went to her medical practitioner but this time she was in the company of a friend Ms Q who had children.
Ms Q gave evidence. She said that in the waiting room, V volunteered that her father smacked her and E and that she was locked in the room on two occasions. The wife had been asked why this medical appointment had been made. She said she could not remember but that otherwise it had something to do with the fact that V had had a lot of “tummy pains”. It was put to the wife that this was really endeavouring to get V to tell the doctor about sexual abuse in circumstances where “no disclosures had been made to the relevant authorities”. Although denied by the wife, consistent with the timing of the allegations to the Department which came to nothing, I found that is what the wife was doing.

Dr R

Dr R was the medical practitioner who saw the wife in March 2017. She recalled that V was brought by her mother after school and that various “disclosures” were made by V. It is not necessary that I deal with those in detail at all because it is clear from Dr R’s view that she was told various things by the wife and she then in turn, put them to V in a very leading way and confirmed them.
Dr R was not aware that V had been interviewed by the police at that stage. She did not undertake any physical examination because there was no recent injury and in her view, having regard to the nature of the allegation, any injury would not have shown up. In addition, she said she did not think she was required to undertake any examination. She was aware that the medical practice notes showed that there was a problem with V’s vulva in 2016 for which cream had been prescribed.
Dr R was asked a number of questions about the use of the words by V and specifically which anatomical parts the child was referring to. Dr R candidly conceded that she did not have the expertise to deal with a problem of sexual abuse. The evidence of Dr R would not satisfy me that, in the light of the position now adopted by the wife, it corroborates anything. The purpose of the evidence, when filed, no doubt was to prove that V had made the allegations. That position is consistent with the wife’s explanations that she was only acting on V’s words. Having considered the evidence carefully here, I am satisfied that the wife took V to the doctor specifically to endeavour to have her statements given credence having regard to what happened with the independent evaluation by the Department and the police.
The wife subsequently had her friend Ms Q leave her children while she, Ms Q, walked V to school whereupon the allegations of V were again repeated to Ms Q. No explanation was really given as to why that arrangement was made and when Ms Q gave evidence, she had a poor memory of what had taken place a year before. All she remembered was that V had made reference to her genitals being touched. When pressed about her memory, she said that the accusation was not against the husband but against the grandparents.
Ms Q had little independent memory and her evidence was of little probative value. I find that she was undoubtedly trying to assist the wife at that time and as she said, on the walk to school, she wanted to find out more about what was going on.

Borderline personality disorder?

Borderline personality disorder is recognised as a mental illness which affects a person’s thoughts and feelings about themselves and others. It is recognised in the DSM V.
The unchallenged evidence of Ms S contained in her affidavit filed on 5 August 2016 said this:
[48]BPD can include among other things, unpredictable behaviours, mixed messages and mood swings…this can interfere with a child’s sense of safety and trust. The parent’s distortions exacerbated by paranoia can create significant distress for young children who believe their parents are always right. Long term, the child is at serious risk of doubting his/her own perceptions. They live with the anticipatory anxiety of a parent who can be fun one minute but threatening and shift into rage with little warning. BPD can interfere with a child’s development of attachment where they may develop insecure or indiscriminate attachment.

Dr T

Dr T is a consultant psychiatrist who commenced private practice as such in 1986. His expertise as a psychiatrist was not challenged. His methodology certainly was.
Dr T saw both parties but particularly the wife in June 2016. He diagnosed the wife with borderline personality disorder with paranoid features. In his opinion, the wife was a person driven by emotions and a deep inner need for love, affection and attention which, when not met, resulted in a deep sense of anger and hurt with accompanying volatility and disappointment. He found the wife having a child-like quality with a tendency to see the world in black and white terms.
On 20 July 2016, the solicitors then acting for the wife wrote to Dr T and asked him whether he had had regard to the diagnostic criteria in DMS V when making the diagnosis to which I have referred. It seems that no formal response was given to that.
In 2017 Dr T did a reassessment. There was no challenge to the observations that Dr T had made of the reactions of the wife when he discussed various matters with her. For example, when he took her through the husband’s affidavit filed on 28 April 2017, he said she became noticeably more tense. This was about her retaining the children longer than the previous orders had provided and then the aftermath to which I have also referred earlier. The wife told Dr T that she was in a very difficult position because the children were telling her things “which were of concern” and she confirmed that she withheld them because of that concern. She told Dr T that she withheld the children on legal advice and had done so on the basis that V had described various things that had occurred to which I have also earlier referred. In her view, she had no option but to act by withholding the children for their safety. She told Dr T that no disclosures were made to the authorities and his impression was that she was still concerned about the allegations.
Dr T noted that the wife was not withdrawn nor was she desperate or overwhelmed. When asked whether she was anxious for the girls’ wellbeing, she said that whilst she was concerned for them, she was never worried and prided herself on a capacity to find solutions in life. She then added that her final position was that at the end of the day, she wanted to settle down and co-parent with the husband. This interview took place in June 2017 but to the extent that it was a suggestion of co-parenting in an equal way, having regard to the chronology of her positions as earlier set out, that could not have been what she intended.
Dr T found the wife was guarded in her approach to the interview but there were no unusual ideas or notions or any evidence of thought disorder or delusional beliefs. He said there were certainly anxious themes.
Dr T reiterated his diagnosis of borderline personality disorder with paranoid features. He said:
It is, has been and remains my view that (the wife) is disturbed in regard to her personality functioning, lacks insight as to the true nature of the driving elements of that dysfunction and hence remains a risk to the children’s wellbeing, particularly in respect of her capacity to maintain their relationship with their father.
In cross-examination, Dr T was asked by what criteria he had made his determination. His response was that the wife had a vulnerable personality in that she related in a superficial manner and that she showed Cluster “B” personality style. He said he did not use the DSM V. When asked whether he therefore relied on his perceptions, he said that it was his clinical judgment that made him give the diagnosis. He agreed that he may or may not be accurate and having sat through the evidence of psychiatrist Dr J, he was asked whether he thought that doctor’s evidence was correct and he responded “unlikely”. He was asked to comment when he began his evidence about adjustment disorder. He said that he did not think it applied to the wife and having interviewed her twice, he felt she was not a person who was having a problem adjusting as a result of a particular issue. Dr T thought this was long standing. He thought that Dr J’s opinion should not be given any cogency and indeed, added that he thought it was dangerous.
In cross-examination, Dr T was pressed again about the criteria he used. He maintained that it was his clinical experience rather than some shopping list. He had seen the wife twice and had read all of the material including what had been put to Dr J. When asked about her behaviour, Dr T said that it was her presentation and the absence of treatment that concerned him such that she was either disturbed or she was lying. He said she was attempting to deny the symptoms of psychiatric illness and disavowed herself of blame because of legal advice. He said he doubted whether that legal advice had been given.
Dr T was disorganised when called as a witness because his notes were not all available and unfortunately, his evidence was interrupted by another court hearing. However, none of that affected his credibility; it may have affected his memory but that is hardly surprising given the time elapsed and the number of people he no doubt saw.
He was aware that the wife had made a commitment to make things work with the husband in respect of the children and he was surprised to hear that it had been successful. Dr T was aware of the reference to three psychologists (or possibly two depending upon Mr N’s qualifications) in which there was discussion about borderline personality disorder. He could not remember who had first told him about that diagnosis (if that is what it was) but it may have been the husband. He had little doubt about the diagnosis of those treating professionals. He was asked whether he drew some comfort from the fact that other people had that view and he indicated that he did not because what they were looking at was the same sense that he had of the wife. He said when he read those reports, something fitted in.
There was an unashamed suggestion to Dr T that he had simply followed the previous assessments and had been influenced by the husband. He rejected that. I do not accept Dr T was influenced by anyone. Indeed, he was at pains to point out that he made his own observations to determine his diagnosis.
It was put to Dr T that the absence of a diagnosis based on the DSM V or, for that matter any other assessment tool, undermined his assessment. He denied that too indicating that his assessment was of the people as he found them. It was bluntly put to him that this was the “vibe” but he denied that indicating that he worked off the history.
Finally it was put to Dr T that despite his pessimism about the second assessment and what the wife told him, it was significant that she had complied with orders. She had complied with orders in relation to time between the husband and the children but I have doubts as to whether I could find that there was compliance in relation to other things such as attendances on doctors. If I was to contemplate the wife’s actions as breaches of the orders, I would have to take into account her obvious confusion as to whether she had understood the absolute nature of that obligation. I am not sure about that even accepting she was pursuing evidence when she attended the doctors. That makes the question to Dr T of limited value.
There is no reason for me to doubt that Dr T did his assessment properly. Nothing was put to Dr T to say that his professional body requires the use of the DSM V or the ICD 10. I turn to the legal issues next but as I have already indicated, an explanation of the behaviour rather than some professional diagnosis of mental condition, assists me more.
Dr T’s evidence was therefore helpful in so far as he made it clear that there was a problem and from his perspective, it was untreated.

Dr J

Dr J is a forensic psychiatrist. His qualifications were not an issue of dispute. He became involved on behalf of the wife after the assessment by Dr T. Dr J does not agree with Dr T as to the diagnosis of the wife.
Dr J read various documents prepared for the 2017 anticipated hearing. He took a history from the wife who told him that she had never been diagnosed with a psychiatric illness but had attended psychologists and counsellors.
Dr J applied the criteria for borderline personality disorder under DSM V. He noted that there were still some practitioners in Melbourne amongst his peers who utilised DSM IV so he did that as well.
Dr J critiqued the June 2017 report of Dr T. He found there was no diagnosis of “mental health issues” from any past psychiatric assessment nor did he find any evidence of pathological jealousy despite what a psychologist had previously observed about the wife having come from that background.
Dr J said that after ten hours of observations of the wife and taking into account the DSM IV and DSM V, the essential criteria for borderline personality disorder which were impairment in personality function and the presence of pathological personality traits, were missing. He set out the five broad domains to be satisfied and from what the wife told him, none of those had been experienced.
Specifically, relating to the allegations against the wife, and the diagnosis of paranoid features, Dr J thought that she was making
increasingly wild and bizarre allegations against the [Ruskin] family in a desperate bid to characterise (the husband) and the wider family as unsuitable carers of her children.
That statement gave rise to the question of whether, if the wife was not suffering any mental illness, her behaviour was inappropriate. One of the assessments for the court is parental responsibility in the care of children. If Dr J was right about the “increasingly wild and bizarre allegations” and the wife was not affected by a mental illness, the only conclusion open was that she was not so much protecting her children but endeavouring to destroy the relationship between them and in particular the husband. That evidence confirms my earlier finding of malevolence.

This particular case revolves around the question of the adequacy which is the reference in s 72 of the Act. In Nutting v Nutting (1978) FLC 90-410 Lindenmayer J said that adequately imports a standard of living which is reasonable in the circumstances. It certainly does not mean subsistence level.
The standard of living depends upon the particular circumstances of the case. Whilst the wife maintained that she had become accustomed to an expensive lifestyle and she pointed to the husband’s holidays as an example of his views, I find there were certainly arguments about excessive expenditure including on such things as nannies. Whilst the affluence of the parties is almost self-evident, the important thing here is not to permit the husband to enjoy a substantially higher standard of living than the wife. It is not the law that one can presume that the previous standard of living should be continued nor that a person is entitled to live in luxury just because the other person is wealthy. (See In the Marriage of McMahon [1977] 3 FamLN12).
As was observed in Wilson and Wilson (1989) FLC 92-033, the maintenance should be at a level sufficient to enable the wife to support herself adequately because an order below that level, would not remove the need for maintenance as indicated in s 72 of the Act.
In s 74, the legislation uses the word “proper”. In Wilson, Kay J observed that the meaning of word “proper” was that set out in the dictionary namely “fit, apt, suitable, fitting, be fitting, appropriate to the circumstances, or right”. The wife’s evidence as to what is an adequate need can be seen in the way she set out her list of expenses which totals $5419 per week.
What all of that shows is that the decision is highly discretionary.
Counsel for the husband cross-examined the wife at length about most of the expenses that she had set out in her financial statement in 2017. A good comparison however, absent specific evidence, is the amount of money that the husband spends on similar items. For example, the wife said that she spent $500 per week on herself for food but then, so did the husband. The wife said that her household supplies amounted to $105 per week but the husband spends $210. The wife claimed housecleaning of $550 per week whereas the husband claimed $150. That was under some scrutiny by counsel for the husband and the distinction related to the extent to which the cleaner was used.
In my view taking into account all of the expenses claimed and how each was scrutinised in cross-examination, I can find that the following are reasonable in all of the circumstances and in particular, I have reduced some of the expenses on the basis that although recurring, they should be seen as items to be paid out of capital rather than a revenue stream. One such example is clothing. In the case of the wife, she said she spent $600 per week or $30,000 per year whereas the husband spent $80 per week or $4000 per year. No evidence was presented to indicate that there was any particular reason why such high expenditure was necessary and in the circumstances, I consider that I am at large to exercise my discretion based upon the answers given by the wife and the evidence presented by the husband. To the extent that I exclude items or reduce the quantum sought by the wife, I have done so on the basis that I consider that some of those items are not associated with the adequacy of support but rather as a desire to have items or expenditure because one can.
The items are therefore as follows:
Health insurance   $11
Motor vehicle insurance  19
Household supplies and food  150
Gas and electricity   100
Telephone 165
Vehicle costs   100
Clothing80
Medical expenses  200
Holidays 160
Education costs  50
Chemists50
Cleaning 100
Hairdressing  100
Total$1285
The wife should not have to pay those items out of her capital and they are sufficient in my view to enable her to attend to her own educational needs with the course and also participating activities with the children that she would have to cover because they were not covered by child support.
The husband’s final suggestion of $1000 is therefore inadequate as is his suggestion of $1250. I find the reasonable spousal maintenance sum in the circumstances is $1285. That however must continue until 31 December 2020.
I have excluded many items from the wife’s list including accounting and legal expenses on the basis that if there are those items, they should be paid out of capital rather than income. To the extent that there are repairs to the house, having regard to its value, the wife can also dispose of that property if she considers that she needs to have other funds at her disposal.

Child Support

The principal object of the child support legislation is to ensure that children receive a proper level of financial support from their parents (s 4 Child Support (Assessment) Act 1989 (Cth)). As the husband’s submission stands, he says that there is no basis for an order in circumstances where he has been, and is, meeting significant expenses outside of what might be described as normal living expenses.
The wife’s submission is that the assessment does not reflect all of the costs associated with raising the children.
The wife’s application did not set out the ground upon which she was relying but then again, the husband, who had been paying his assessed sum, did not seek to depart from the assessment of the ground that it did not accurately reflect what is, and has been, and will be, happening for these children.
The assessment issued on 15 February 2018 for the period 1 July 2017 to 31 August 2018. The wife did not say what assessment period she wanted covered by the proposed orders but unless that issue is contemplated, the variation of future child support falls to litigation. Equally, unless it is addressed for a specific period, the Registrar must assume that it covers the childhood period. One of the stated objects of the legislation is that the level of financial support to be provided for the children should be readily determined without the need to resort to court proceedings. Absent some consensus here, it is probable that there will be litigation again.
The current assessment is $572.92 per week total. The wife seeks $4,032 per week total.
The assessment is based on three things which, having heard the evidence, are now erroneous or at least out of date. They are:
(a)It assumes that the wife has V for 86 per cent of the time and E 93 per cent of the time;
(b)It assumes that the wife had an income of $46,000 (which was probably correct in 2016) but that the husband had an income of $1.9 million; and
(c)That the costs of caring for the children were assessed under the relevant formula at $17,200 per annum for each child; a total of $34,400.
The wife’s financial statement was filed in August 2017 and Part N of that document showed her estimated expenses of keeping the children at that point. She said it cost her $4,031 per week. $1,000 of that sum was estimated to be their anticipated overseas annual travel with her. That will not be happening at least for some time. In addition, she said that they cost her $180 per week for “Legal, accounting & Financial advisor (planning) fees”. With the conclusion of these proceedings, even if those sorts of costs incurred by the wife were apportioned amongst the children, which I do not accept, that should not be a problem in the future.
In reality therefore, what the wife could anticipate is $2,851 per week. However, that is not the test to be applied.
The relevant Act provides that the level of financial support to be provided by parents for their children is determined according to their capacity to provide it. There can be no dispute here that the husband is the primary if not sole source of that funding at the moment. Another object is that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children. Hence, if the wife’s estimates and calculations were correct and only the husband had any capacity, the right amount would be $2,851 per week. But of course, that could only be the cost in the wife’s household. The husband has now a significant role in the care of the children and that could not be ignored. Nor could the various expenses he otherwise meets be ignored relating to the joint decision to have both children educated privately.
The legislation also has an object that children share in changes in the standard of living of both their parents. On the evidence before me, these children want for nothing. Whilst the wife might indicate that the circumstances here are different from the majority of Australians by virtue of the affluent lifestyle and wealth of the parents and the high earning capacity of the husband, it is important to recognise that the parliament said that:
It is the intention of the Parliament that this Act should be construed, to the greatest extent consistent with the attainment of its objects:
(a)to permit parents to make private arrangements for the financial support of their children; and
(b)to limit interferences with the privacy of persons.
All of these philosophical matters must be kept in mind in assessing whether an order should be made.
It is not disputed that because of s 18 of the child support legislation, it applies to the two children.
Having mentioned the fact that the assessment is based on matters inconsistent with the evidence, it should also be noted that because of s 34A, the Registrar is to assess the annual rate of child support payable in cases subject to the formula assessment if the taxation assessment is made. It must mean therefore that with the husband’s 2017 returns pending, a new assessment will soon be applicable. If the husband’s evidence before the Court is seen in his tax return, it might be assumed that the assessment will be less that the current one save that the wife’s income is now apparently nil. I am unable therefore to speculate what a new assessment will look like.
Section 35A provides that if the formula is applied (and that is the desired approach to avoid litigation but also reflect community standards), various factors such as the costs of children as assessed by government authorities are to be taken into account where parents such as here have significant income. With children under 12 years, the costs are 10 per cent. That could not be seen as applicable to a family with the husband’s earning capacity.
The child support legislation (s 99) gives the courts a role and jurisdiction is conferred on this Court. Once that jurisdiction is enlivened, s 114 provides as an object which is additional to those earlier mentioned that:
(a)children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
(b)parents share equitably in the support of their children.
Section 116 provides that, relevantly here, the wife, may apply to a court for an order in relation to the children in the special circumstances of the case if both of the following apply:
(i)the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case.
It will be important to return to those matters to see what are the special circumstance so of this case. There is no dispute that the parties have been litigating and all of their respective financial circumstances have been exposed as they may not have been had the Registrar had to undertake a review or assessment.
Section 117 of the legislation provides that there are certain matters about which the court must be satisfied before an order can be made. They are that the court is satisfied that a ground for departure exists and that it would be just and equitable as regards the children, the “carer” entitled to child support (in this case the wife) and the liable parent (in this case the husband). It must also be “proper” for the court to make an order.
The wife’s submission was that the departure was based on the fact that the amount paid by the husband “grossly underestimates (sic) the actual costs to the wife of raising the children whilst in her care including the cost of food (including maintaining a Kosher diet), clothing, activities and holidays as an example”. It is not clear how I should interpret that other than by reference to the wife’s financial statement upon which she relied as I have already mentioned. That is, her calculations in Part N of that document.
I have concluded that what the wife means is that the costs of raising the children are much higher than the assessment.
The grounds for departure to which s 117 refers and which I interpret the wife to be relying upon are that in the special circumstances of the case, the costs are significantly affected because the children are being cared for, educated or trained in the manner that was expected by their parents (s 117(2)(b)(ii)). That is, that the assessed formula table of the costs of the children is inadequate.
Another ground which I interpret is the wife’s case is that in the special circumstances of the case, the administrative assessment would result in an unjust and inequitable determination of the level of financial support to be provided by the husband because of the earning capacity of the husband. That goes back to the provision that makes reference to lifestyle. Here, the two factors relevant to that consideration are that the husband has a significant caring role in their lives and is already committed to significant costs associated with the education and training of the children.
Section 117 also provides that when assessing justice and equity, the court must have regard to, relevantly:
(a)the nature of the duty of a parent to maintain the children and their proper needs;
(b)the income, property and financial resources of each parent and their respective earning capacities;
(c)the commitments of each parent that are necessary to enable them to support themselves;
(d)the direct and indirect costs incurred by the wife in providing care for the children;
(e)any hardship that would be caused to the children and the wife by the refusal to make the order and to the husband by making it.
There is no dispute about (a) above. The difficulty lies is assessing what are the proper needs of the children and to that I turn below.
Whilst the husband will for most of the future years of his children’s childhood earn more than the wife, the court is obliged to take into account property as well. The wife will have an unencumbered home and some cash.
The wife’s commitments to support herself are high by community standards but on any view, she cannot afford to support the children financially unless she sells assets. I find in the circumstances, only the husband can presently afford the relevant support.
A refusal to make the order will cause some change of lifestyle but I could not find that means hardship in any sense of the word. There is no prospect I can see that the husband cannot afford on his current earnings to make provision for the needs of the children whilst looking after his own needs and commitments.
As for what is proper, s 117(5) provides the court must have regard to the duty of the parents to provide the support and about that, there is no argument. There are no revenue issues in this case.
As to what are proper needs, s 117(6) provides the court must have regard to the manner in which the children are being, and in which the parents expected them to be, cared for, educated or trained. Both parents want the best for these children and I accept that is why the husband willingly accepts the education and medical costs.
The Court is also obliged to consider the earning capacity of both parents and here, I accept that the wife will be able to earn something but not immediately. Because of that doubt, I consider that any departure order should be limited to the same period as the period I have determined is reasonable for the husband to pay spousal maintenance.
Examining what the wife says are proper costs for the children, I return to her financial statement but factor in the significant change in the structure of the sharing arrangement.
Until now, the husband’s time with the children has been on weekends and one overnight during each week. The reframing of the arrangement will mathematically mean a little more time but the structure will be substantially different. There will be less leisure time on weekends for the husband but one weekend more for the wife. There will be a greater focus for the husband on weekday expenses such as hairdressing and children’s activities outside of school and kindergarten and the wife will have less of that time. There would be no obvious reason for the wife to have child minding during the weekdays but perhaps more on weekends. The changed structure creates a difficulty in assessing whether the costs anticipated by the wife when she completed her financial statement in 2017 are still relevant. In my view, although neither party addressed it, I foresee the husband in a greater role in managing things that the wife currently undertakes.
At paragraph [58] of the husband’s trial affidavit, he set out the expenses he intended to pay regardless of where the children lived. Those included the costs of the involvement of the children in extra-curricular activities. That will reduce the cost to the wife.
The comparison of the parties’ respective financial expenditure on the children is the best way to assess whether the wife’s claim for expenditure on them is reasonable. Having heard the cross-examination of the wife about her own expenditure, I do not consider that to be reasonable. For example, the overseas holidays will not occur for some years and if that time is spent locally or in Australia, the main cost will be airfares as hotel accommodation would be incurred anyway. Food costs would still have to be met.
I assess the main needs of the children as will be borne by the wife to be:
·Food and household supplies         $300
·Gas and electricity  50
·Car expenses  60
·Clothing  100
·Holidays  100
·Gifts  50
·Hairdressing and grooming                 50
·Total  $710
Of course, there are many other costs incurred by parents such as those in providing accommodation, the maintenance of a telephone and gifts for children at celebratory times of the year and both parties will have those costs. Child support is designed to share child costs but in an equitable way having regard to the respective incomes of the parents.
On the assumption that the husband is carrying similar expenses, a child support order (as distinct from an amended assessment using the formula) means that he is paying all of the children’s costs. However, the legislation requires that the level of financial support to be provided by parents for their children is to be determined according to their capacity to provide it. The wife currently has not cash money to do so but that is not an end to the matter. It would not be right to assume that because the assessment formula process is income-based that a consideration of the husband’s income is the only requirement. As s 114 notes, once an application is made to the court, the consideration focuses on the income, earning capacity, property and financial resources of both parents and that both parents share equitably in the support of their children.

Under the property orders, the wife will have an unencumbered home and a significant amount of cash. Those assets must be taken into account because of s 114 albeit that it is self-evident that the husband is still in a much stronger financial position than the wife.
I find it would not be just and equitable to have the husband pay all of the expenses of the care of the children and the wife should contribute something. The financial evidence is limited to what the parties have provided and doing the best I can, I consider what the husband is currently paying (albeit he has not sought a departure from the assessment notwithstanding the inaccuracies to which I have referred) is a proper contribution to the care of the children when I factor in all of the other non-core daily expenses which, for these children, make up a large amount of their costs.
The wife’s application for a departure order fails.

I certify that the preceding three hundred and twenty-two (322) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 June 2018.

Associate:

Date: 19 June 2018

[2018] FamCA 459

19 June 2018

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Property Law

Legal Concepts

Injunction

Remedies

Costs

Constructive Trust

Fiduciary Duty