SANDHAM & DREGO

[2018] FamCA 150

FAMILY COURT OF AUSTRALIA

SANDHAM & DREGO [2018] FamCA 150

FAMILY LAW – CHILDREN – With whom a child spends time – Where the children are not at unacceptably high risk of harm in the father’s care – Concluded the father’s acts of family violence against the mother do not preclude his unsupervised personal interaction with the children – Ordered the mother have sole parental responsibility – Ordered the children shall live with the mother and spend unsupervised time with the father

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the father’s accrued annual leave is no more than a financial resource – Where the mother’s application for an add-back of the father’s post-separation expenditure is rejected – Where the parties agreed the alteration of their existing property interests would be just and equitable – Concluded the just and equitable property division is for the mother to receive 87.4 per cent of the parties’ property – Ordered the father transfer his title in the former matrimonial home to the mother – Ordered the parties retain their own superannuation interests

FAMILY LAW – SPOUSAL MAINTENANCE – Where both parties are medical professionals, with the father earning a high income and the mother currently only working part-time to enable her care of the children – Where the mother will have more time and opportunity to exercise her considerable income-earning potential once the eldest child commences school in 2019 – Ordered the father shall pay the wife $5,629 per month by way of spousal maintenance until June 2019

FAMILY LAW – CHILD SUPPORT – Application for departure order – Where the mother sought an elaborate suite of child support departure orders – Where the mother failed to demonstrate special circumstances – Where the mother may apply administratively to vary the child support assessment – Ordered the mother’s application is dismissed

Child Support (Assessment) Act 1989 (Cth) ss 116, 117
Crimes Act 1900 (NSW) ss 61AA
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10
Evidence Act 1995 (Cth) ss 135
Family Law Act 1975 (Cth) ss 4AB, 60CC, 61C, 61D,61DA, 69ZN, 69ZP, 69ZX, 75, 79
Family Law Rules 2004 (Cth) rr 1.04, 1.06, 1.07, 12.2, 13.1, 13.2, 13.3, 16.04

Bevan & Bevan (2013) 49 Fam LR 387
Britt & Britt [2017] FamCAFC 27
Browne v Dunn (1893) 6 R 67
Carr v Baker (1936) 36 SR (NSW) 301
LC v TC (1998) FLC 92-803
Marriage of Kennon (1997) 22 Fam LR 1
Newlands v Newlands (2007) 37 Fam LR 103
S & S [2003] FamCA 905
Seltsam Pty Ltd v McGuiness & Anor (2000) 49 NSWLR 262
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Ms Sandham

RESPONDENT: Mr Drego

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Gosford

FILE NUMBER: SYC 5147 of 2016

DATE DELIVERED: 12 March 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 30-31 January  & 1-2 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Connor

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Gosford

Orders

Parenting orders

1. All former orders in respect of the following children are discharged:

   (a)B, born on … 2013; and

   (b)C, born on … 2015.

2. The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.

3. The children shall live with the mother.

4. The parties shall take all reasonable steps to ensure the children spend time with the father as follows:

   (a)       Until the commencement of the first school term in 2019:

   (i)Each alternate weekend from 9.30 am Saturday until 4.30 pm Sunday, commencing on the first Saturday after these orders;

   (ii)For three extra consecutive days in April 2018, on condition the father notifies the mother in writing of the selected dates no less than 14 days prior to commencement;

   (iii)For three extra consecutive days in July 2018, on condition the father notifies the mother in writing of the selected dates no less than 14 days prior to commencement;

   (iv)For three extra consecutive days in October 2018, on condition the father notifies the mother in writing of the selected dates no less than 14 days prior to commencement;

   (v)On 24 December 2018, from 12.00 noon until 6.00 pm; and

   (vi)For five extra consecutive days in January 2019 (with such days to conclude on 26 January 2019 at latest), on condition the father notifies the mother in writing of the selected dates by no later than 30 September 2018.

   (b)       From the commencement of the first school term in 2019 and thereafter:

   (i)During school terms, each alternate weekend from 9.00 am Saturday until 6.00 pm Sunday, commencing on the first Saturday of each term;

   (ii)During the Autumn, Winter, and Spring school holidays, from 9.00 am on the first Saturday until 6.00 pm on the next Saturday; and

   (iii)During the Summer school holidays:

   (A)When the holidays commence in an odd numbered year, from 12.00 noon on 25 December until 6.00 pm on 4 January; and

   (B)When the holidays commence in an even numbered year, from 12.00 noon on 1 January until 6.00 pm on 12 January.

5. Orders 3 and 4 are suspended between 10.00 am and 6.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

6. For the purposes of implementing Orders 3, 4 and 5, the parties shall respectively ensure the children’s collection from and return to Suburb D Shopping Centre.

7. From the commencement of the eldest child’s attendance at infant’s school, the parties shall take all reasonable steps to ensure both children communicate privately by telephone with:

   (a)The father each Wednesday at 6.00 pm when the children are living with the mother, for which purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure the children are able to receive the father’s calls on that number at that time.

   (b)The mother each Wednesday at 6.00 pm when the children are spending time with the father, for which purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure the children are able to receive the mother’s calls on that number at that time.

   (c)The parent with whom they are not then staying, on the children’s birthdays at 6.00 pm, for which purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent and the parent with whom the children are staying shall ensure the children are able to receive the other parent’s calls on that number at that time.

8. Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of the children from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the name of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s name on that Watch List for a period of three years.

9. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

10. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

11. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

12. Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate and each party is at liberty to attend those events to the extent ordinarily permitted by the school or other sporting or cultural organisation.

13. The mother shall authorise and request the principal of any school attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.

14. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

15. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

16. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

Property settlement orders

1. The mother is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising the property commonly known as E Street, Suburb F, NSW, and the father shall forthwith do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the mother, free of any encumbrance.

2. Otherwise:

   (a)Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders and, for that purpose, bank accounts are deemed to be in the possession of the account holder and superannuation entitlements are deemed to be in the possession of the superannuant.

   (b)Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession and any debts in their respective sole names.

Spousal maintenance orders

1. Order 9 made on 10 October 2016 is discharged on 31 March 2018.

2. All other subsisting interim orders made under Parts VIII and XIV of the Family Law Act are discharged.

3. The father shall pay to the wife the sum of $5,629 per month by way of spousal maintenance upon the following conditions:

   (a)The first payment is due on the first day of each calendar month, commencing on 1 April 2018;

   (b)The last payment is due on 1 June 2019; and

   (c)Payments shall be made by way of direct deposit to the wife’s account held with the Commonwealth Bank, as nominated by her to the father in writing not less than seven days prior to the first payment.

Procedural orders

1. In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act.

2. Costs are reserved for 28 days.

3. Any and all other outstanding applications are 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 Sandham & Drego 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 NEWCASTLE

FILE NUMBER: SYC 5147 of 2016

Ms Sandham 

Applicant

And

Mr Drego

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings comprise multiple disputes between the applicant mother and respondent father over their two young children, the division of their property, the payment of spousal maintenance, and the departure from administratively assessed child support payable in respect of the children.

2. The parties are both highly-intelligent medical professionals, but their attitudes to each other and their manner of conduct of this litigation belied their insight and intelligence. In relation to at least the parenting dispute, the second Family Consultant appointed in the proceedings astutely observed of the parties:[1]

   Both parents have very strong personalities and sense of their own entitlements. Sadly, it appears unlikely that there will be substantial change in their attitudes to the co-parenting relationship.

   [1] Family Report, paras 28, 40

3. The parties’ disputes seemed, in large measure, to be motivated by their personality clash. They were intent on prevailing over the other, which tended to obscure their appreciation of the real issues requiring judicial determination between them. Despite their mutual consternation at the Court’s failure to unquestioningly accept the correctness of their respective evidence and proposals, neither was entirely vindicated and the orders now pronounced will perhaps, in some respects, disappoint them both.

Short history

1. The parties are both of Indian descent and met on a matrimonial website in October 2004. The mother was then living in Australia, but the father was living in India. The father travelled to Australia on a tourist visa and the parties met in person in December 2004. They engaged to marry and, after a short return visit to India, the father returned to live and work in Australia on a business visa. The parties married in India in 2005, but have always lived in Australia. They are both Australian citizens.

2. Their two children were born in 2013 and 2015. At the time of trial they were respectively aged four and two years.

3. The parties separated in July 2016, at which point the children remained living with the mother. After the parties’ separation, the mother and children moved from the former matrimonial home in G Town to live temporarily with the maternal grandparents in Sydney. She filed these proceedings in the Sydney registry in August 2016.

4. The proceedings were listed before Le Poer Trench J for interim hearing in September 2016, at which time numerous interim orders were made – some by consent and some not. Consensually, it was ordered that the children live with the mother, she re-establish the children’s residence in the former matrimonial home in G Town, she have exclusive occupation of that home, the children not be removed from Australia, and the proceedings be transferred to the Newcastle registry.[2] The children were not then spending any time with the father and the parties disputed whether orders should be made to permit it, so Le Poer Trench J additionally ordered that the father spend time with both children at their day-care centre each Monday for a couple of hours and, separately, with the eldest child at the same day-care centre each Tuesday for up to three hours.[3]

   [2] Orders 2 and 6 made on 5 September 2016

   [3] Orders 3-5 made on 5 September 2016

5. It was apparently intended those orders would only bind the parties until they could secure another date within the Newcastle registry to agitate their interim applications at greater length, which occurred in October 2016. On that occasion it was ordered that the children live with the mother, the children spend time with the father each Saturday, the children not be removed from Australia, the father pay the mother spousal maintenance of $1,000 per week, and the father pay the mother the sum of $50,000 by way of interim property settlement.[4] Despite some minor level of prevarication by both parties, those orders were largely the subject of compliance.

   [4] Orders made on 10 October 2016

6. In February 2017, some minor amendments were made to the orders, requiring the children to be exchanged at a contact centre.[5]

   [5] Orders made on 3 February 2017 and 23 February 2017

7. The Family Report was prepared and released to the parties in September 2017 and the proceedings were then listed for trial in respect of all disputes in January 2018.

Evidence

1. The mother relied upon:

   (a)Her affidavit filed on 15 December 2017, together with an exhibit folder which was separately tendered;[6]

   (b)Her financial statement filed on 25 January 2018;

   (c)The affidavit of the maternal grandmother filed on 15 December 2017; and

   (d)The affidavit of Ms H, a licensed private investigator, filed on 15 December 2017 (though paragraph 3 thereof and the exhibit referred to therein were rejected in accordance with the objection of the Independent Children’s Lawyer).

   [6] Exhibit M1

2. The objection to that portion of Ms H’s evidence was sustained because it comprised about 1.5 hours of video footage and the mother did not seriously contest the proposition that Ms H’s written reports, which were already admitted into evidence, satisfactorily summarised the content of the video footage. In effect, accepting the video footage into evidence and then watching it would add nothing meaningful to the evidence which could not already be gleaned from reading the reports. The mother’s counsel submitted additional inferences might be drawn from watching the video footage which could not be drawn from reading the reports, but that was a bare submission devoid of any real merit. First, the additional benefit of the video footage as evidence was only posited as a possibility, and second, no attempt was made to explain or elaborate the precise nature of the extra probative value the video footage could possibly offer.

3. The mother only intended to adduce the video footage in evidence to prove three things – the father’s consumption of alcohol in breach of an interim injunction on two (or perhaps three) occasions, his allegedly neglectful supervision of one child on a balcony on one occasion, and his disobedience of a carpark sign on one occasion. Each of those facts, even if proven on the balance of probabilities, were of quite limited probative value in the ultimate exercise of discretionary power to make parenting orders but, even so, each of those facts were already proven by the written reports of Ms H. The video footage was rejected because the mere possibility of its limited additional probative value was substantially outweighed by the danger that the time spent viewing it would be unduly wasted (s 135(c) of the Evidence Act 1995 (Cth)).

4. The father relied upon:

   (a)His affidavit filed on 5 December 2017;

   (b)His financial statement filed on 5 December 2017; and

   (c)The affidavit of his partner, Ms J, filed on 5 December 2017.

5. The parties and Independent Children’s Lawyer also relied upon:

   (a)The Memorandum prepared by the first Family Consultant on 9 November 2016; and

   (b)The Family Report prepared by the second Family Consultant on 7 September 2017.

6. The mother’s counsel wanted to cross-examine the father at greater length than he was allowed, but the time restriction was imposed pursuant to the power vested in the Court by ss 69ZN(4), 69ZP(a), and 69ZX(2)(i) of the Family Law Act 1975 (Cth) (“the Act”) and rr 1.04, 1.06(e), 1.06(f), 1.07(a), 1.07(c), 16.04(a)(vii), and 16.04(b) of the Family Law Rules 2004 (Cth) (“the Rules”). If any more time was afforded to the mother’s counsel, the trial was at risk of not being completed within the allotted four days, which would have meant a delay of months before the part-heard trial could be resumed. As it was, the mother’s counsel was allowed about five hours to cross-examine the father. In imposing the time restriction, the Court was entitled to assume the mother’s counsel prioritised the contested issues and cross-examined the father about the most important issues first. Even with the imposed limitation the trial was barely completed within the allotted time.

Parenting dispute

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Parties’ proposals

1. The mother sought the parenting orders set out within her Amended Application filed on 5 October 2017. In essence, she sought sole parental responsibility for the children, for the children to live with her, and for the children to only ever spend time with the father under professional supervision at a contact centre on three Saturdays of every month. Presumably, her additional applications for the restraint of the father’s consumption of alcohol and the restraint of his removal of the children from Australia would only have practical application if the children were ordered to spend time with him outside the confines of a contact centre.

2. The father sought a modified form of the orders set out within his Amended Response filed on 16 October 2017. He had always conceded the children should remain living with the mother and he eventually sensibly capitulated to the joint application of the mother and Independent Children’s Lawyer for the mother to have sole parental responsibility for the children. However, he maintained his application for the children to spend time with him on alternate Saturdays and also on the intervening weekends (Saturday morning to Sunday afternoon), in which event the children would be with him every Saturday and every second Saturday night and Sunday. He additionally wanted the children with him for half of all school holiday periods and on other special occasions. He opposed any restriction upon his consumption of alcohol or his removal of the children from Australia for international holidays. He wanted orders permitting his electronic communication with the children twice each week, but not until they are of school age.

3. The Independent Children’s Lawyer tendered the minute of orders proposed just prior to final submissions,[7] which final proposal revised the provisional proposal foreshadowed in the Case Outline. Although the mother’s counsel repeatedly complained about the change, the Independent Children’s Lawyer’s approach was entirely orthodox. The mother’s counsel accepted the mother was not deprived of procedural fairness, so his complaint was groundless. The Independent Children’s Lawyer’s ultimate proposal entailed the mother having sole parental responsibility for the children, the children living with her, and the children spending unsupervised time with the father on alternate weekends, for gradually increasing intermittent block periods of time, and on other special occasions.

   [7] Exhibit ICL4

4. Accordingly, the essential disputes concerned the frequency and duration of the children’s visits with the father and whether those visits should be the subject of professional supervision.

Children’s best interests – primary considerations (s 60CC(2))

1. When the family conferred with the first Family Consultant in November 2016, she found the children to have meaningful relationships with both parties. The children had good attachment relationships with the mother, who was their primary carer, and they were affectionate with the father.

2. When the family conferred with the second Family Consultant in August 2017, there was no discernible difference. Both children continued to enjoy positive relationships with both parties.

3. The father’s acceptance that the children should continue to live with the mother manifests his acceptance of the importance of the relationships between the children and the mother.

4. In cross-examination, the mother conceded the eldest child (who was then being discussed) loved both parents and, although the concession did not explicitly include the youngest child, it did so implicitly.

5. It must follow from the evidence that the children have meaningful relationships with both parties, from which they derive substantial benefit. The orders should ensure there is no disturbance to that balance, unless warranted by the need to preserve the children’s physical or emotional safety.

6. While the father contended the children were completely safe in the care of both parties, the mother contended the children were at risk of either physical or psychological harm in the father’s care by reason of the chance of their subjection or exposure by him to family violence, abuse, or neglect. For ease of analysis, each of those contentions should be considered separately, albeit the asserted risk arose from an amalgamation of those features of the evidence.

7. For clarity, the Independent Children’s Lawyer contended the father may pose some risk to the children, but maintained it was not unacceptably high and did not warrant the imposition of any temporary or permanent supervision, as the mother had advocated. The Independent Children’s Lawyer also contended the mother’s conduct, at least in some respects, posed a risk of emotional harm to the children, but that was relevantly for reasons under s 60CC(3) of the Act.

Family violence

1. The mother contended the father acted violently and oppressively towards her throughout their relationship, which conduct entailed frank physical violence, threats of harm, and his exertion of control over her. If her evidence was accepted uncritically then her perception was undoubtedly correct. However, the father denied most of the mother’s allegations which fell within the wide definition of “family violence” (s 4AB).

2. Each party was tested to some limited degree in cross-examination on the issue and, while the mother’s evidence seemed exaggerated to some extent and the father’s evidence seemed minimised to some extent, neither party’s credibility was impugned to the point that the totality of their evidence on the issue should be rejected as inherently unreliable. Most likely, the divergence between their evidence on the topic was, at least in part, explained by their different opinions about what constitutes violent conduct and their different thresholds of tolerance to disharmony in their relationship. Most probably the father is indeed more prone to irascibility than the mother and he probably was more assertive and dictatorial than her during their marriage, but the possession of a dominant and more demonstrative personality does not of itself mean the person is violent and commits “family violence”.

3. In effect, the mother’s counsel ultimately submitted the mother’s evidence on the topic of family violence must be accepted in preference to the father’s evidence because the father and Independent Children’s Lawyer each failed to challenge the mother, as required by the rule in Browne v Dunn (1893) 6 R 67. However, the implicit error in the submission was the failure to acknowledge the procedural rule is applied flexibly, not technically and rigidly. That is particularly so in this jurisdiction where evidence is revealed in advance of trial by filed and served affidavits, the parties do not bear any onus of proof in their respective applications for parenting orders, and the Court exercises broad discretion.

4. As the Full Court has observed (see LC v TC (1998) FLC 92-803 at [38]-[39]):

   …the rule in Browne v Dunn does not apply where the witness is on notice that the witness’ version of events is in contest. That notice may come from the pleadings or the other side’s evidence, or the other side’s opening; it may even come from the general manner in which the case is conducted. In general, however, this exception to the rule should only operate where the issue is a fairly clear and obvious one.

5. Each party was clearly aware of the other’s allegations and contentions about the issue of family violence in this case. Neither was surprised to learn their respective allegations and denials were in dispute. There mere fact the father and Independent Children’s Lawyer either did not challenge the mother at all, or exercised some forensic judgment to limit the extent of the challenge, in relation to the evidence she adduced about family violence did not oblige the Court’s acceptance of the mother’s evidence and the concomitant rejection of the father’s evidence.

6. To the extent that any findings about past family violence are needed to resolve the proceedings, it is better to rely primarily upon evidence which was uncontroversial, if it fairly suffices for the purpose, as it does in this instance. Such uncontroversial evidence proved the father did perpetrate family violence upon the mother in the past, in which event the only controversy pertained to the severity of the violence. That was an arid contest because, even if the mother’s evidence was accepted in entirety, it hardly now justified an order for indefinite supervision of the children when in the father’s care. The important evidence may be fairly summarised as follows.

7. In 2006, following a confrontation between the parties and the intervention of police, the father was charged with assaulting the mother and a provisional family violence order was made against him for her protection. The provisional order was later converted to a final order of two years duration. Although the father was not formally convicted on the assault charge, he admitted his guilt and he was placed on a good behaviour bond for nine months.[8]

   [8] Exhibit ICL3

8. In 2008, the father was again arrested and charged for his assault of the mother and his breach of the existing family violence order. The assault charge was withdrawn and dismissed, but his contravention of the family violence order was proven. Although not formally convicted of that offence, the father was placed on a good behaviour bond for 12 months.[9]

   [9] Exhibit ICL3

9. The decisions of the State courts to abstain from recording any conviction against the father in 2006 and 2008 reflects those courts’ conclusions that the offences should be treated leniently because of the father’s character, the trivial nature of the offences, the extenuating circumstances of the offences, or for some other like consideration (s 10(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).

10. There was no evidence of any further direct physical violence between the parties after 2008 until shortly prior to their final separation in July 2016.

11. Following an argument in March 2016, another provisional family violence order was made against the father for the mother’s protection, though it expired a month later in April 2016 without any further action.

12. Then, during separate arguments in the days just prior to final separation, the mother alleged the father twisted her finger, tossed a rolled-up nappy at her chest, and pulled her arm. The mother contacted the police on 12 July 2016 in relation to the incidents over the preceding days, which precipitated the parties’ final separation on 13 July 2016. The father was charged with assaulting and intimidating the mother, but he later successfully defended the charges. Both charges were dismissed.[10] The mother wrongly reported to the second Family Consultant the father was convicted of the assault charge. Another provisional family violence order was taken out against the father for the mother’s protection and it was later converted into an interim and then a final order, which is now due to expire in March 2018. The terms of the order are in evidence.[11] The father continues to be compliant with the order.

    [10] Exhibits ICL3, F3

    [11] Mother’s affidavit, para 261; Exhibit M1 (pages 242-244); Family Report (para 9)

13. Even if the father did assault the mother as she alleged on those occasions in 2016, such behaviour does not preclude his unsupervised personal interaction with the children. Implicitly, that seemed to be the mother’s contention. It is important to record that this Court does not punish parents for their proven misconduct. Rather, any misconduct is only taken into account to inform the orders that should be made to promote the children’s best interests. Not uncommonly, children’s best interests still sometimes requires their continuing unconstrained interaction with a parent who is found to have treated the other parent violently or disrespectfully. Not all parents are paragons of respectability and virtue.

14. The mother also complained the father was “financially controlling” and therefore committed “family violence” in more crafty ways, but the evidence did not sufficiently bear out that complaint. The parties gave contradictory evidence about the circumstances in which the mother was deprived of the use of a credit card for some weeks in about April 2016 but, regardless of the truth of the situation, there were other considerations which demonstrated the mother’s autonomy. She otherwise had unfettered access to banking accounts and she even withdrew $10,000 cash with her supplementary credit card at the time of separation. In addition, the father continued to voluntarily pay the rates and other utilities associated with her exclusive use of the former matrimonial home after her return to G Town from Sydney. She also had her own car, so her mobility was not impeded either.

15. The first Family Consultant found the father’s behaviour in November 2016 to be consistent with the mother’s reports of his oppressive behaviour, because he was voluble, assertive, and dismissive. That may be so, but her observations in that context do not offer the mother much corroboration on the issue of family violence. The litigation was then in its infancy, the father was agitated about the restriction of his access to the children, and the meeting with the first Family Consultant was only a preliminary discussion to illuminate contentious issues between the parties. During cross-examination, the first Family Consultant repeatedly stated the limitations of the conference. She confirmed it was not a comprehensive assessment, was insufficient to enable any long-term predictions, and was not designed to assess the parties’ overall parental capacity.

16. Importantly, there has been no interaction at all between the parties since their separation in July 2016 and, consequently, no further family violence has occurred. An adult intermediary initially exchanged the children between them after interim orders were first made in October 2016 and, after the further interim orders were made in February 2017, they exchanged the children at a contact centre. The vexation of their disintegrating marriage has now passed and, apart from the contested evidence about the physicality of their arguments during that period of disintegration, even on the mother’s case, there has been no overt violence between them since 2008.

17. The father is now happy in his new relationship. He cohabits with his new partner and they envisage a long-term relationship. She confirmed there had not been any family violence within their relationship.

18. Provided the opportunity for inter-personal contact between the parties is minimised, the prospect of their engagement in family violence (and consequently the children’s exposure to it) continues to gradually recede with the passage of time. The parties are now well into the second year of their separation and their individual lives are now back in order.

19. On the whole, there is no need to take any measures to protect the children from physical or psychological harm they may suffer from being either subjected or exposed by the father to family violence.

Physical abuse

1. The mother submitted the father physically abused the children and they remain at risk of such abuse by him. Her submissions sprang both from her observations during the marriage and reports made to her since separation by the eldest child.

2. As to her own observations, the mother deposed she saw the father slap the eldest child twice within a week in April 2016.[12] She said in cross-examination she had never seen him do so before. The mother’s counsel prevaricated when asked whether the mother contended those episodes were evidence of physical abuse or just instances of physical discipline, but he eventually settled on the former. Despite the father’s denial of having done so, he probably did smack the eldest child as the mother alleged. However, the mother admonished him for the practice and she never saw him do it again. The mother said in cross-examination she reported the incidents to police, but they rejected her report because the father did not slap the child “above the neck”. Inferentially, the police did not act on the report because they realised the father could credibly contend he only administered modest physical discipline to the child. Such discipline is falling out of public favour, but it is still not unlawful “abuse” if it meets certain conditions (s 61AA of the Crimes Act 1900 (NSW)).

   [12] Mother’s affidavit, paras 131, 133

3. Since separation, the mother has not witnessed the children’s interaction with the father so she is entirely reliant upon reports made to her to by the eldest child to form her opinions and conclusions about what happens between them. The mother deposed the eldest child reported to her at various times that the father struck both children, which she suspected caused the children to sustain bruising on their backs. Even if the eldest child did make reports of that kind to the mother, there were several impediments to acceptance of the truth and accuracy of the child’s reports.

4. First, the eldest child is still only very young. The mother expressly conceded to the first Family Consultant that the information gleaned from such a young child is unlikely to be reliable.[13] Given the concession, her insistence at trial on the acceptance of the validity of all criticisms made by the child about the father was surprising. There were several examples in the evidence of the eldest child’s reports probably being unreliable. For example:

   (a)The mother said in cross-examination that she was once told by the eldest child, following her return from a visit to the father, that he was “asleep all day”. Self-evidently, it is most improbable that was literally correct, though the mother seemed to unquestioningly believe it.

   (b)In September 2017, the mother noticed a red mark on the eldest child’s back and, when she asked her about its cause, the eldest child replied the father hit her on the back. The mother took the child to a doctor for assessment, who reported the mark was only heat rash, so the cause of it could not have been a blow by the father. The child therefore probably fabricated her explanation for the mark.[14]

   (c)In October 2017, the eldest child informed the mother that the father told her he wants to kill the mother and throw her in the ocean.[15] Given her young age, it is improbable the father said such bizarre things to her.

   (d)In November 2017, the eldest child told the mother she “sank under water in the [father’s] pool” and led the mother to believe he may have been inside the house at the time, not diligently supervising the children. The mother was alarmed and sent an email to the father about the incident, demanding an explanation.[16] The father and his partner both confirmed no such incident occurred. They credibly contended the children were always supervised carefully in and around the pool and, in any event, the pool is only neck-deep for the eldest child. Most probably the eldest child’s report to the mother about the incident was not factually correct, or alternatively, the mother misinterpreted her story.

   [13] Memorandum (para 43)

   [14] Mother’s affidavit, para 331

   [15] Mother’s affidavit, paras 340, 341

   [16] Father’s affidavit, page 15

1. Second, there is considerable doubt about whether either child was bruised on the back at all, or if they were, whether it was due to being struck by the father. That is because:

   (a)The mother alleged she saw bruises on the youngest child’s back in March 2017, which were inspected by a doctor,[17] but the doctor stated in her written report she was uncertain whether the marks were bruises at all. She wanted to review the child in 7-10 days to confirm whether or not they were,[18] but there was no evidence the child was ever taken back to that doctor for review. Instead, the mother took the youngest child to the maternal grandmother’s general practitioner months later in August 2017 for review, at which time the doctor reported both “pigmented spots” and “fingermark spots” on his back.[19] Presumably, the mother adduced the evidence to prove the marks on the child’s back caused by father’s blow were still visible months later. If so, they could not have been bruises because they would have resolved and disappeared within days or weeks and so the father must not have caused those injuries as alleged. The only logical alternative is that the marks were not bruises at all, but rather pigmented spots which were confused with bruises, in which case the mother’s attribution of the marks to physical abuse by the father was histrionic at best and deceitful at worst.

   (b)The mother said the eldest child complained of being hit by the father on the back in April 2017 and, when she checked her back, she saw bruising.[20] She took the child to a doctor for assessment, but the doctor reported that “follow up [was] required” because he/she was unsure whether the bruising was due to “NAI [non-accidental injury]”.[21]

   (c)The mother took both children to her regular general practitioner some days later in April 2017, apparently for second opinions about the marks on both children’s backs. That doctor reported he/she considered the bruises were “suspicious”, but nothing more.[22]

   (d)The mother was impelled to concede in cross-examination that the various doctors whom she retained to examine the children in March, April, and August 2017 reported nothing more than the possibility the children sustained bruising as a consequence of being intentionally struck by the father, though she insisted they privately informed her of a more positive diagnosis. If they did, perhaps it was because they were aware of her eagerness for evidence to inculpate the father and were willing to tell her what she wanted to hear. Importantly though, the doctors were careful not to report any positive diagnosis in writing, since they must have known their written reports were being sought by the mother as evidence and they realised their written opinions needed to be justifiable. They were not merely engaged for therapeutic purposes because there was nothing they could usefully do to treat bruises.

   [17] Mother’s affidavit, paras 253, 262

   [18] Exhibit M1 (page 246)

   [19] Exhibit M1 (page 250)

   [20] Mother’s affidavit, para 265

   [21] Exhibit M1 (page 247)

   [22] Exhibit M1 (pages 248, 249)

2. Third, even though the mother expressly contended in these proceedings for findings to be made about the children’s physical abuse by the father, she knows her reports of abuse have not been acted upon by the police. She reported her allegations to police and/or the child welfare authority,[23] and the police then interviewed the eldest child, but she did not allege being hit by the father even when shown photographs of the alleged bruising. The child welfare authority determined no further action should be taken in respect of the complaint.[24] It must follow that the police and child welfare authority staff were not satisfied the evidence was sufficiently strong to support the mother’s allegations.

   [23] Mother’s affidavit, paras 266, 270, 271, 332

   [24] Family Report (para 65)

3. Fourth, the eldest child told the second Family Consultant in August 2017 that the mother wanted her to tell the Family Consultant the father had smacked her on the back, and further, the mother informed her of other misdeeds planned by the father.[25] The evidence had a distinct undertone of the mother using the eldest child for tactical advantage in the proceedings. Even though the mother may not have coached the child to fabricate allegations, she plausibly created an environment in which the eldest child felt encouraged to make allegations of misconduct against the father.

   [25] Family Report (para 47)

4. The evidence is insufficiently persuasive of the need to take any measures to protect the children from physical or psychological harm they may suffer from being either subjected or exposed by the father to physical abuse.

Neglect

1. The mother told the first Family Consultant the children were routinely returned to her by the father dirty, dishevelled, hungry, thirsty, and tired. She also told the second Family Consultant the father does not supervise the children adequately, fearing they are exposed to the risk of injury.

2. The evidence was replete with examples of her complaints, including the following:

   (a)In October 2016, she contended the children were sent back to her exhausted, dirty, food stained, and with heavy nappies.

   (b)In November 2016, she contended the eldest child was naked below the waist when she was returned (but the father told the first Family Consultant the children had become wet when playing in a shopping centre fountain[26]).

   (c)In November 2016, she contended the children were returned very thirsty.

   (d)In November 2016, she contended the children were returned thirsty and the eldest child’s feet were soiled.

   (e)In February 2017, she contended the youngest child was very lethargic and had a wound on his leg and a split lip when he returned.

   (f)In March 2017, she contended the youngest child was over-clothed when returned.

   (g)In March 2017, the youngest child was returned to her with an injury to his eye. The mother had the child reviewed by a consultant paediatrician, who confirmed there was no orbital fracture and no scan was needed (the father instructed the contact centre staff to explain the accidental injury to the mother and he deposed in evidence to how it occurred[27]).

   (h)In May 2017, she contended the father left the eldest child unattended on a balcony (it transpired the balcony was fenced, the child was alone on the balcony for only about 42 seconds, and the father was only a couple of metres away watching her from immediately inside the doorway to the balcony).

   (i)In August 2017, she contended the youngest child returned with nappy rash and the eldest child complained of a headache.

   (j)In November 2017, she contended the youngest child was returned with scratches on his face and leg (again, the father instructed the contact centre staff to explain the accidental injury to the mother and he deposed in evidence to how it occurred[28]).

   [26] Memorandum (para 46)

   [27] Father’s affidavit, para 27

   [28] Father’s affidavit, para 27

3. The mother apparently adduced evidence of those incidents to prove her contention about the father’s lax supervision and failure to meet the children’s physical needs. In reality, her complaints were generally an over-reaction to relatively minor incidents.

4. The mother confirmed the children fall ill with fevers, pneumonia, and diarrhoea when in her care.[29] She conceded in cross-examination that young children commonly suffer minor injury through misadventure and, more specifically, admitted the children also accidentally sustain “lumps, bruises, and scratches” when in her care. In the face of such concessions it was surprising she maintained her allegations about the father’s inattention to the children’s physical needs and his derelict supervision of them.

   [29] Mother’s affidavit, paras 346-348

5. Perhaps the mother does attend to the child’s physical needs more meticulously and supervise them more fastidiously than the father, but just because the standard of his care is inferior to hers does not mean the standard of his care is unsatisfactory. The standard of care provided to them by the father is good enough to sustain their unsupervised visits with him.

6. The evidence is insufficiently persuasive of the need to take any measures to protect the children from physical or psychological harm they may suffer from being either subjected or exposed by the father to neglect.

Children’s best interests – additional considerations (s 60CC(3))

1. Few of the factors prescribed by s 60CC(3) of the Act were ultimately asserted to be influential in the outcome of the dispute, for which reason they are not all slavishly addressed. It is only necessary to comment briefly upon the significance of the father’s partner in the family milieu (s 60CC(3)(b)(ii)), the parties’ parenting capacity and attitudes to the responsibilities of parenthood (ss 60CC(3)(f), 60CC(3)(i)) and the current family violence order (s 60CC(3)(k)).

2. The father’s partner gave evidence and was cross-examined briefly. She was a modest, engaging, and credible witness, so it is easy to understand why the children have already forged close relationships with her. She and the father apparently intend that their current cohabitation should continue permanently, in which event she will be a valuable back-stop for him when the children are in his care. Her intended enduring presence in his life should furnish the mother with considerable comfort that the children’s physical and emotional needs will be satisfactorily met when they visit him.

3. The parties adopt quite disparate individual approaches to parenting and the disparity is an irritant to both. The mother despairs her impression of the father’s casual lack of diligence, whereas he resents her attempts to control his relationships with the children and being pestered by her frequent complaints about his alleged shortcomings. Neither is sufficiently tolerant of the other and whilst ever they are unable to compromise and bridge the gap between them, effective co-operation to raise the children will remain elusive.

4. The mother maintained her complaints about the father’s alleged misuse of alcohol, but the evidence was scant. She alleged he drank to excess during their marriage, but that is more likely her subjective impression than objective fact. She appeared intolerant of anything other than minimal consumption. When pressed in cross-examination, she said she could not say how much alcohol consumption was too much. The father is a medical professional and is often on call. His professional commitments do not reasonably admit of his freedom to misuse alcohol. Despite the mother’s impression about the father’s misuse of alcohol during the marriage, there were no outward indicia of any current misuse. He has not attracted police attention for alcohol-related offences or misconduct, his work has not been affected, and his current partner disavows his excessive use of alcohol.

5. The interim injunction restraining the father’s use of alcohol prior to and during the children’s visits was previously made to assuage the mother’s asserted concern about his alcohol consumption, prior to the evidence being tested at trial. The evidence at trial now reveals there is no need to perpetuate the injunction. It will be discharged.

6. However, before passing from the topic of the interim injunction restraining the father’s use of alcohol, it should be noted the father disdainfully disregarded the injunction by consuming alcohol on at least two occasions witnessed by Ms H, in March and May 2017. The father apologised for the breaches, but the value of his apology was diminished by his attempt to trivialise his misconduct. His cavalier attitude only serves to exacerbate the mother’s distrust of him and raise questions about his future compliance with other Court orders.

7. The family violence order which currently protects the mother from the father will prevail until 27 March 2018. The order requires the father to desist from assaulting, threatening, stalking, harassing, or intimidating her and to otherwise comply with orders of this Court. There is no inconsistency between the family violence order and the parenting orders now made.

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because the evidence proves the father perpetrated family violence upon the mother, at least in 2006 and 2008 (s 61DA(2)). Eventually the father recognised it was impossible for the parties to share parental responsibility for the children and so he acceded to an order investing the mother with sole parental responsibility; at least in relation to “major long-term issues” affecting the children. The parties should maintain their individual parental responsibility for the children in so far as it relates to all other minor aspects of their daily care (see ss 61C and 61D; Newlands v Newlands (2007) 37 Fam LR 103 at [89]-[91]).

2. The orders proposed by the Independent Children’s Lawyer to condition the mother’s exclusive exercise of parental responsibility are not made. They would likely only be productive of more conflict between the parties about whether there had been sufficient compliance.

3. As already noted, the parties always agreed the children should continue to live with the mother. The orders so provide.

4. The evidence does not bear out the mother’s concerns for the children’s welfare when in the father’s care. They are not at unacceptable risk of either physical or psychological harm by reason of any act or omission on his part. The Independent Children’s Lawyer concurred with that conclusion. There is no need for the time spent by the children with the father to be supervised – either temporarily or permanently. The Independent Children’s Lawyer also agreed with that conclusion.

5. The mother’s concerns about the father’s competence were not objectively verifiable. In cross-examination, she said the children must be supervised when in the father’s care and she did not believe the professional supervision should be relaxed for at least another three to four years. She was also unable to say for how long the children should be precluded from spending any overnight time with him. While she may honestly feel that way, her beliefs about the need for the children’s protection are incongruent with the evidence.

6. For those reasons, the time spent by the children with the father need not be as confined as proposed by the mother. On the other hand, the facts did not justify the large leap from the current regime of interaction between the father and the children to that proposed by the father. While he loves the children and wants to frequently spend time with them, other interests in his life compete for his attention. He is professionally driven and his career is very important to him. He has no desire to impinge his professional commitments by prioritising the children’s visits with him. He envisages the children’s visits being scheduled around his work where possible. In addition, his new domestic relationship is important and he and his new partner have taken several recent international holidays, which meant he squandered several occasions on which the children should have spent time with him under the interim orders.

7. The father contended the children needed to see him every weekend in order to maintain their loving relationships with him, but the contention is rejected. The children’s relationships with him are warm and loving despite past interruptions to their interaction of weeks and months duration. A balance needs to be struck between the frequency and duration of the visits, which the Independent Children’s Lawyer correctly contended should be alternate weekends (Saturday mornings to Sunday afternoons), together with a gradual build-up of block time, working towards more substantial school holiday visits. That proposal dovetailed with the second Family Consultant’s evidence in cross-examination.

8. The orders make special arrangements for Mother’s Day and Father’s Day, as was mutually sought. However, no special arrangements are made for the children’s or the parties’ birthdays, as they are unnecessary for the children’s best interests. The children interact frequently enough with the parties without fragmenting and complicating the regime any further. Nor is any special provision made for religious celebrations. The mother was opposed to it and the father seemed ambivalent. From 2019, the children will only spend every second Christmas Day with the father to avoid multiple changeovers in the Summer holidays. In his Amended Response, the father only sought an order for the children to spend one-half of the Summer holidays with him. He did not seek any special provision for Christmas Days.

9. Since the contact centre will be abandoned as a changeover venue, another public venue is chosen for exchanges of the children. The venue proposed by the Independent Children’s Lawyer was expressly adopted by the father. The mother did not engage with that issue as she steadfastly adhered to her application for the imposition of indefinite professional supervision.

10. The mother wanted the children’s names retained on the Airport Watch List because of her fear the father might abduct the children from Australia and take them to India, from where it would be very difficult (or perhaps impossible) to procure their return. Her fear arose from past threats made by the father to take and not return the children, which threats he denied. The Independent Children’s Lawyer took a neutral position on the issue. The injunction restraining the children’s removal from Australia will be continued for the next few years. If, as the father said, he has no intention of abducting the children then he suffers little prejudice from such a finite injunction. It only temporarily precludes international holidays for the children.

11. An order is made allowing the children to have telephone communication with the father (and with the mother when they stay with the father) once the eldest child begins school, which will likely be in 2019. A modified order to that general effect was sought by the father in final submissions and was not opposed by the mother or the Independent Children’s Lawyer.

12. An injunction is made to restrain the children’s administration with corporal punishment, which will appease the mother and not affect the father, since he disavows the use of such disciplinary measures.

13. The Independent Children’s Lawyer sought an injunction restraining the mother from having the father “surveilled”, as she did in the past. The order is not made. Apart from the difficulty in fashioning a sufficiently prescriptive order, the factual premise for the proposal was unconvincing. If the father was unaware of the surveillance, it is unlikely the children would be aware of it and, even if they were, it is unlikely they would attribute it to the mother. The assertion the order was necessary to ensure the children were not emotionally harmed by such knowledge was unduly speculative.

14. The Independent Children’s Lawyer sought costs orders against both parties. While the father was willing to consent, the mother’s counsel did not signify the mother’s consent. The question of costs will therefore be reserved for 28 days.

15. The other orders made under Part VII of the Act are self-explanatory and could not be the subject of reasonable objection.

Property settlement dispute

Legal principles

1. Orders under s 79 of the Act altering the property interests of parties may only be made if the Court is first satisfied, pursuant to s 79(2), it is just and equitable to make such orders. The Act then identifies in s 79(4) the matters the Court must take into account in considering what order, if any, should be made (see Stanford v Stanford (2012) 247 CLR 108 at [22], [35]). While those two inquiries are not to be conflated (see Stanford at [35], [40], [51]), the factors within s 79(4) permissibly inform the inquiry under s 79(2) (see Bevan & Bevan (2013) 49 Fam LR 387 at [83]-[89], [163], [169], [171]-[172]).

1. It is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying the existing legal and equitable property interests of the parties. It must not be assumed that the parties’ rights to or interests in marital property are or should be different from those that then exist or that a party has the right to have the parties’ property divided by reference to considerations set out in s 79(4) of the Act (see Stanford at [37]-[40], [50]). Commonly, however, it will be just and equitable for the parties’ property rights to be altered because the breakdown in their relationship will end their fiscal unity and deprive them of common use of their property (see Stanford at [42]; Bevan & Bevan at [68]-[70], [82], [164]-[165]).

2. If and once determined it is just and equitable for the property interests of the parties to be altered, the process of evaluating the proper orders to make is dictated by the factors enumerated within s 79(4) of the Act. The court must necessarily identify and assess the parties’ contributions within the meaning of ss 79(4)(a)-(c) and then take account of the relevant matters referred to in ss 79(4)(d)-(g) and 75(2).

Existing property interests

1. Findings about the parties’ existing assets, liabilities, and superannuation interests are drawn from their financial statements and their oral evidence in cross-examination and re-examination.

2. The mother’s existing assets, liabilities, and superannuation interests comprise:

No.	Assets	Value	Total
CBA Acc #...96	375
CBA Acc #...47	699
CBA Acc #...27	105
Motor vehicle 1 (33 per cent)	17,000
Shares in CBA & Telstra	24,000
Sub-total	42,179	42,179
Liabilities
Maternal grandparents	20,000
CBA mastercard	18,633
Sub-total	38,633	38,633
Superannuation
First State Super	118,000	118,000
Net assets and superannuation	121,546

1. The parties expressly acknowledged the correctness of that schedule in final submissions.

2. The father’s existing assets, liabilities, and superannuation interests comprise:

No.	Assets	Value	Total
Former matrimonial home	680,000
CBA Acc #...51	80,295
CBA Acc #...16	3,457
CBA Acc #...00	27,077
Motor vehicle 2 car	35,000
Sub-total	825,829	825,829
Liabilities
ATO	41,500
BAS	nil
Mastercard	5,461
American Express	273
Sub-total	47,234	47,234
Superannuation
First State Super	185,037	185,037
Net assets and superannuation	963,632

1. The father acknowledged the correctness of that schedule in final submissions and, while the mother did not agree, her dispute related to only two issues: the inclusion in the schedule of an asserted add-back of $573,827 and also an unquantified amount of annual leave accrued by the father.

2. As to the father’s accrued annual leave, the evidence was unsatisfactorily vague. During cross-examination the father contended he had about 7 weeks of accrued annual leave, the value of which he computed to be about $15,000. However, his recent payslip disclosed he had accrued annual leave of 963.543 hours,[30] which would compute to much more than 7 weeks and have a much higher value. It was speculated on those figures that the accrued leave could be worth around $80,000. As recently as September 2017, the father emailed the health authority’s administration staff requesting that his accrued annual leave be paid out in cash, but that the payment be delayed until after the anticipated completion of these proceedings.[31]

   [30] Exhibit M9

   [31] Exhibit M10

3. Despite the mother’s contrary contention, the father’s accrued annual leave is not counted as a property interest. Its value is still unascertained and the likelihood of its payment out to him in cash form is still far from certain, since the father asserted he expected the health authority would probably expect him to take the leave in specie. The parties both tendered the health authority policy directive on the topic,[32] but it did not elucidate the issue. The accrued leave is no more than a financial resource and is relevant to the application of ss 79(4)(d)-(g) and 75(2) of the Act.

   [32] Exhibits F2, M13

4. As to the contended add-back, at the time of separation on 13 July 2016, the father’s CBA Acc #...51 contained a credit balance of $573,827.[33] Even though the account still contains a credit balance of $80,295, the mother contended the whole of the $573,827 should be added back as a notional asset of the father. Her argument is rejected.

   [33] Mother’s affidavit, paras 172, 174; Exhibit M1 (page 163)

5. The mother submitted the father’s failure to explain his post-separation expenditure from the account was reason alone for the notional add-back, but the submission was misconceived. Neither the Act nor the Rules requires parties to explain to one another their expenditure of every cent after their marital separation. That would be an intolerable forensic burden. Had the mother wanted a better explanation than he gave in cross-examination, she could have interrogated him under Part 13.3 of the Rules so he could have provided comprehensive answers by reference to source documents in his possession. In any event, the mother was provided with the father’s bank account statements and she was therefore able to trace the movement of funds between his accounts.

6. When cross-examined about the expenditure from that account, the father explained much of it was used to pay legal fees (incurred in his successful defence of the criminal charges with which he was prosecuted in 2016) and income tax. He said he owed a tax instalment of about $205,000 at that time, which tallied with the withdrawal of $216,000 from the account in August 2016.[34] The evidence was credible because, in early July 2016, he made another withdrawal of $213,000 for payment of tax in relation to the prior financial year.[35]

   [34] Exhibit M1 (page 164)

   [35] Exhibit M1 (page 163)

7. As the father correctly pointed out in submissions, by October 2016, the credit balance of the account was only $256,290[36] and the withdrawals which depleted the funds in the account in the months between July and October 2016 were all transfers to his other bank account (#...16), the account statements for which were also in the mother’s possession. The father correctly contended the money did not vanish. It was not hidden from the mother, as her counsel insinuated. There was no proper basis upon which to add back any amount of cash withdrawn from the father’s bank accounts as his notional asset, because the evidence did not prove it was prematurely distributed to or wasted by him.

   [36] Exhibit M1 (page 164)

8. The mother’s counsel repeatedly complained about the father’s alleged dereliction of his duty to provide full and frank disclosure of his financial circumstances but, at least in the way the submission was articulated, it did not materially advance the mother’s case.

9. True it is, the father failed to provide timely disclosure of documents to verify his financial circumstances. That is why, on the mother’s application, procedural orders were made months before the trial allowing her to issue subpoenae to the father, his accountant, his banks, and the hospitals at which he works.[37] The mother acted on that permission and issued the subpoenae, but she did not subsequently move the Court for any orders to enforce any subpoena for alleged dilatory or incomplete production. Inferentially, she obtained the documents she wanted.

   [37] Order 5 made on 22 June 2017

10. The mother issued a subpoena to the father in July 2017, which he answered, though she was dissatisfied with the documents he produced.[38] She also served him with a Notice to Produce.[39] The father’s cross-examination revealed he did indeed have in his custody or control relevant financial documents which he had failed to produce. His three most recent BAS returns were an example, but he procured them from his accountant during the trial and they were tendered in evidence.[40] However, in respect of any other documents sought by the mother which remain unproduced by the father, the explanation is most likely one or more of the following:

    (a)The father does not have the document to produce. Numerous documents fell within that category. For example, the mother sought documents related to a private corporation, but the father asserted he did not conduct his business via any corporation and therefore had no such documents. He could have been easily contradicted by an ASIC search, but he was not, so his evidence must have been correct.

    (b)The documents were in the possession of his accountant and the accountant produced them in response to the separate subpoena served upon him by the mother, so she was seized of them by another means.

    (c)The documents fell outside the scope of those that need to be disclosed under Parts 12.2, 13.1, and 13.2 of the Rules.

    [38] Mother’s affidavit, paras 310, 315, 362, 363, 367

    [39] Exhibits M2, M3, M4

    [40] Exhibits M6, M7, M8

11. The father deposed his business is a combination of both employment and self-employment in the public and private health systems. In so far as he is self-employed, he practices as an individual and has his own ABN. His income from the provision of private and public health care services is deposited into two of his three bank accounts.[41] He disclosed the totality of his assets in his financial statement. The veracity of that evidence was not disturbed.

    [41] Father’s affidavit, paras 9, 33, 34, 35, 36

12. Most probably, the mother was eventually furnished with all relevant records related to the father’s financial circumstances, so her only legitimate grievance distilled to the lateness of his provision of such documents. But, by the end of the trial, the mother’s counsel did not contend there was a single document related to the father’s financial affairs which should have been produced, but had not been.

Section 79(2)

1. The parties agreed an alteration of their existing property interests would be just and equitable. It is inequitable that the father presently holds 99.55 per cent of the parties’ net assets. Property settlement orders should be made.

Sections 79(4) & 75(2)

1. Upon marriage and the commencement of cohabitation in 2005, the mother brought cash of some $50,000 into the relationship. That fact was not disputed by the father. The mother deposed she does not know what assets the father brought into the relationship and he did not say. Both parties were then qualified and worked as health professionals in Sydney.

2. In 2009, the father was offered and accepted employment in G Town. The mother remained in Sydney and they took turns travelling between G Town and Sydney to see one another. That arrangement prevailed until 2011.

3. During 2011, the mother was offered employment in two Sydney hospitals, but she rejected the offers when the father made it plain he would prefer her to live with him in G Town. She moved to G Town and obtained alternate employment in a G Town hospital.

4. In late 2011, the father purchased the former matrimonial home in G Town in his sole name. The purchase was facilitated by a mortgaged loan, but was otherwise financed by the father. The mother made no financial contribution to its acquisition or to the loan repayments. The loan was discharged by 2015.

5. The mother worked until the birth of the eldest child in 2013. She cut her maternity leave short in 2014 in order to complete her training in Sydney, which necessitated her and the eldest child staying in Sydney for part of each week for a period of time.

6. The second child was born in 2015 and the mother took about 10 months maternity leave before returning to part-time work in about April 2016. Since then she has worked mostly one day per fortnight on days when the children attend day-care. Presently, the children both attend the day-care centre on Thursdays and Fridays of each week.

7. The mother contended, without challenge, she was the primary carer for the children. That was undoubtedly so. The father was working long hours and was focussed upon his career progression. His earnings were escalating sharply and, using rounded amounts, were:

   (a)$632,000 (gross) for the 2014/2015 financial year; and

   (b)$1,014,000 (gross) for the 2015/2016 financial year.

8. The parties separated in July 2016 and, during the 2016/2017 financial year, the father’s income decreased markedly. In cross-examination he explained that was due to his emotional turmoil created by the marital separation and the confinement of his interaction with the children. His income for the 2016/2017 financial year dipped back to $612,000 (gross), but he confirmed he now has renewed vigour, his income is increasing again, and by June 2018 he expects his income to again exceed $1,000,000 (gross) per annum. He expects to earn income of that magnitude into the foreseeable future.

9. Pursuant to the interim orders made in October 2016, the father paid $50,000 to the mother by way of interim property settlement and he has also paid her periodic spousal maintenance. He was obliged to pay her $1,000 per week, but he instead paid her $4,000 per month, which resulted in a small shortfall because there are more than four weeks in each month.

10. The mother is now 39 years of age. She is a medical profession. She presently works one day per fortnight.

11. The father is now 42 years of age. He is a medical professional. He works full-time in both public and private practice, servicing various hospitals. He is on-call some evenings and some weekends.

Conclusions and orders

1. In aggregation, the parties’ net assets are worth $782,141.

2. The mother sought 80 per cent of the parties’ assets by way of property settlement, which equates to $625,713.

3. Until final submissions, the father had maintained the parties’ assets should be divided in equal proportions, but in final submissions he volunteered that his transfer of the former matrimonial home to the mother to provide her and the children with a stable base would represent a just and equitable outcome. If the mother keeps her existing net assets ($3,546) and the former matrimonial home is transferred to her as the father proposed ($680,000) then her net assets would be worth $683,546. In effect then, the father conceded the mother should have even more property than she sought, the irony of which seemed to escape him.

4. The mother tried to construct an argument to vindicate her entitlement to 80 per cent of the parties’ assets on the basis of her greater contributions (60 per cent) and a moderate adjustment for her future needs (20 per cent). She contended her greater contributions (10 per cent) were manifest in two discrete features of the evidence: her career sacrifice in 2011, when she moved from Sydney to G Town, and her past violent and disrespectful treatment by the father, which made her contributions more arduous and meritorious (for which proposition she relied upon Marriage of Kennon (1997) 22 Fam LR 1 and Britt & Britt [2017] FamCAFC 27).

5. Given the father’s final property settlement proposal, which was even more beneficial to the mother than her own application, it is now unnecessary to analyse her argument in depth because, however the result is achieved, the parties acknowledge the mother should have at least 80 per cent of their net assets. Nevertheless, in deference to the mother’s submission, the following points should be made. There was no evidence to reasonably establish that the mother suffered any impaired state of emotional health. Her simple melancholy in an unhappy marriage is not enough. Even if she did suffer from an impaired state of emotional health, the causal link between her condition and the father’s alleged violent conduct was not proven. The absence of such a causal link is critical, if not fatal (see Kennon at [18]; S & S [2003] FamCA 905 at [41]-[48]). Even if the causal link could be established, there was still no satisfactory proof her contributions were rendered qualitatively greater because of the adversity. There must be evidence as to how the father’s conduct and the mother’s consequential condition had some “discernible impact” upon her contributions, thereby rendering them qualitatively greater (see Kennon at [24]). Those facts must all be proven, either directly or by inference, not just be the product of speculation or conjecture (Britt at [74]-[77]).

6. Conjecture is simply the contemplation of possibilities, whereas inferences are deductions of probabilities that spring from proven facts, though sometimes it may be difficult to discern the difference. The test is whether it is reasonable to draw the inference on the basis of the primary facts (see Seltsam Pty Ltd v McGuiness & Anor (2000) 49 NSWLR 262 at [275]-[278]; Carr v Baker (1936) 36 SR (NSW) 301 at [306]-[307]). In this instance, the Kennon conclusions urged by the mother were not reasonably available on the evidence. Without trivialising the serious repercussions of family violence, the mother had to do more than merely allege her victimisation by the father and imply her sadness about it before her contributions are accorded greater weight under Part VIII of the Act. Any acute episodes of violence around the time of the parties’ separation in July 2016 do not bring the case within the rubric of the Kennon guidelines because conduct related to the breakdown of the marriage would not have had sufficient duration for it to influence the value of contributions (see Kennon at [24]).

7. The stronger and less controversial explanation for the mother’s receipt of more than 80 per cent of the parties’ net assets is that their financial and non-financial contributions were broadly equivalent, but the substantial disparity between their future needs warrants substantial adjustment.

8. The father’s future income-earning capacity is enormous. He stands the realistic prospect of earning in excess of $1,000,000 (gross) per annum for another 20+ years. The mother will remain the primary carer for the children, with consequent restriction upon her capacity for employment, but her income-earning capacity will be even more tightly restricted over the next few years until the children are of school age. The eldest child should begin school in 2019, but the youngest child probably will not start school until 2021.

9. Presently, the mother’s annual income from her part-time work is $26,000 (gross). As the father contended, there probably is some scope for her to immediately increase her workload and income, but the potential is more limited than he expressed or implied. The mother currently works one day (sometimes two days) per fortnight, even though the children attend day-care four days per fortnight. Her professional skill and the public demand for it probably enables her to obtain up to four days’ work each fortnight when the children are in day-care but, even if she exerted herself to the fullest extent by juggling extra paid employment with her child care responsibilities, her income would still only be a small fraction of the father’s income.

10. The issue of the parties’ superannuation interests was not directly addressed. Neither sought superannuation splitting orders, so they will each retain their existing interests. In her Amended Application the mother proposed that she receive 80 per cent of the combined value of the parties’ assets and superannuation,[42] but that was not the way in which she appeared to pitch her case in final submissions. In any event, the difference between the mother’s receipt of 80 per cent of the net assets and superannuation ($868,142) and her retention of her own superannuation interest and her receipt of 87.4 per cent of the net assets ($801,546) is $66,596. That differential is more than the net cash with which the father would be left, after payment of his debts. It would not be a just and equitable outcome for the father to be left with nothing but debt, aside from his superannuation interest.

    [42] Amended Application filed 5/10/17, Orders 11-12

1. To achieve a just and equitable result, the father will be ordered to transfer title in the former matrimonial home exclusively to the mother, free of any encumbrance. Otherwise, they will retain their own assets and superannuation interests and be liable for their own debts. That result will leave the mother with 87.4 per cent of the parties’ property (or 73.9 per cent of net assets and superannuation interests combined) and will leave the father with net cash of about $60,000, which he can use to defray the quarterly GST and tax payments he must make to the ATO. Those payments presently amount to about $57,000 per quarter,[43] so the cash with which he is left will only be sufficient to meet his next instalment due in early April 2018.

   [43] Exhibits M6, M7, M8, F4

Spousal maintenance

1. Implementation of the property settlement orders will ensure the mother owns and lives in her own home with the children. Her other assets are meagre and her superannuation interest is presently modest. She will only work part-time for the next couple of years.

2. The mother’s income is presently about $26,000 (gross) per annum. She deposed to substantial weekly living expenses in her financial statement and, while she was not challenged about the validity of the estimated quantum of those various expenses, her estimates are obviously very liberal. But even if pared back substantially, her expenses still outstrip her income, in which event she is unable to adequately support herself. That inability stems from her having the care and control of the two young children of the marriage, which crystallises her entitlement to spousal maintenance (s 72(1)(a)).

3. The father contended the mother could conceivably work five days each fortnight, comprising the four days the children attend day-care and an extra day on the weekend when the children spend time with him, in which event she was capable of earning up to $150,000 (gross) per annum. While he might genuinely believe it, his bare belief carries little probative weight. Most probably, the mother would already be working to earn greater income if she believed it was feasible and worthwhile. Most likely, she would have to practicably earn much more than her current income before her need for spousal maintenance would be extinguished.

4. Turning to the father’s capacity to pay spousal maintenance, little need be said. He has high income, he also liberally estimated his living expenses and, even with such extravagant expenses, he was still able to comfortably meet the interim spousal order made in October 2016, albeit that he paid at the slightly lower rate of $4,000 per month instead of $1,000 per week.

5. In debating the mother’s entitlement to spousal maintenance, neither party directly addressed the factors the Court is obliged to consider (s 75). The plainly relevant features of the evidence are the parties’ ages and state of health (ss 75(2)(a), 75(2)(n)(i)); their income, their property interests after the property settlement orders are made, and the mother’s capacity for extra employment (s 75(2)(b)); the mother’s continuing role as primary carer of the parties’ young children (ss 75(2)(c), 75(2)(l)); the father’s child support liability (ss 75(2)(d), 75(2)(na)); the need to ensure the mother’s standard of living is not unduly disproportionate to the father’s (s 75(2)(g)); and the extent to which the mother contributed to the high earning capacity of the father by taking principal responsibility for the care of their children while he developed his career and by sacrificing career opportunities in Sydney (s 75(2)(j)).

6. The mother was able to adequately support herself by reliance upon the spousal maintenance paid to her by the father under the interim spousal maintenance order made in October 2016 (which maintenance supplemented her own income and the Centrelink income she receives). That inference is strong because the mother did not contend otherwise at trial. However, the mother’s application at trial was for the husband’s payment of spousal maintenance in the increased sum of $1,300 per week.[44] While she did not explain the calculation, at least inferentially, it approximates continuation of the current spousal maintenance order of $1,000 per week, together with an extra $300 per week to replace her Centrelink income, which must be ignored (s 75(3)). In simple terms, the mother has demonstrable need for financial support quantified at $1,300 per week and the father undoubtedly has sufficient surplus income to ensure her need is fulfilled.

   [44] Amended Application filed 5/10/17, Order 13

7. In cross-examination, the father said he paid the current spousal maintenance in advance early each month, so the order will now require his payment on the first day of each month. The quantum of the maintenance is fixed at $5,629 per month, which is the monthly computation of $1,300 per week.

8. The mother sought that her payment of spousal maintenance continue for the next 104 weeks (two years), but she did not explain in either the evidence or submissions how she fixed that period. Devoid of any explanation, the duration of the period is liable to be, or at least appear, arbitrary. Obviously, by proposing a finite period of payment, the mother understands the spousal maintenance order cannot realistically be indefinite since, in addition to the considerations which influence her entitlement to spousal maintenance (s 75(2)), the Act also stipulates in Part VIII that, as far as practicable, the financial relationships between the parties should be finally determined (s 81).

9. The eldest child is due to commence school in 2019. The youngest child will then be another year older and probably better able to cope with an extra day or two each week at day-care. That means the mother will or should have more time and opportunity to exercise her considerable income-earning potential as a medical professional. The days and hours she will be then able to work will still be limited, but not so limited as currently. Accordingly, the spousal maintenance order will cover the period up to 30 June 2019, which is about 16 months instead of two years hence. That period is fixed because it will allow the mother the first half of 2019 within which to settle the eldest child at school and to make the necessary arrangements for the youngest child’s additional day-care attendance to free up more time for her to work.

Child support departure orders

1. The mother sought an elaborate suite of orders representing departure from the administrative assessment of child support payable by the father.[45]

   [45] Amended Application filed 5/10/17, Orders 15-16

2. Applications for child support departure orders are governed by Division 4 of Part 7 of the Child Support (Assessment) Act 1989 (“the Assessment Act”), the provisions of which require the Court to be satisfied the application is properly instituted and the statutory criteria are fulfilled. In summary, the grounds for the mother’s application are not made out for several reasons.

3. First, the mother did not demonstrate that there were special circumstances in this case that warranted her application being entertained (ss 116(1), 117(1)(a)). The Assessment Act deliberately sets up an administrative scheme rather than a judicial process for child support to be calculated and paid. There is already a child support assessment in existence, issued as recently as 18 January 2018.[46] There was no evidence that, in the 18 months or so that have elapsed since separation, the mother applied for the Child Support Registrar to make child support departure orders under Part 6A of the Assessment Act. In any event, the current administrative assessment requires the father to pay child support of $657.82 per week and the proposed departure order requires the payment of an indexed amount of $800 per week. The difference is modest. The application for the father to also cover other incidental expenses only seeks to formalise his obligation to make payments he has often made voluntarily in the past.

   [46] Exhibit M11

4. Second, the Court is not satisfied it is in the interest of the father, as the parent liable to pay child support, to consider whether child support departure orders should be made in the context of these proceedings (s 116(1)(b)(ii)). Unlike the mother, he was not legally represented and was at clear disadvantage in appreciating the technicality of the law, the evidence germane to the mother’s application, and the forensic procedure of challenging her case to best effect.

5. Third, although the mother contended grounds for the child support departure order existed (s 117(1)(b)(i)), in that the administrative assessment provided an unjust and inequitable level of financial support for the children in light of the father’s current income (s 117(2)(c)(ia)), her submission fails because of the failure to satisfy the embedded requirement for the demonstration of special circumstances. The current assessment was calculated by reference to the father’s 2016/2017 adjusted taxable income of $622,000,[47] which is less than his current income. The father’s income has been building back up during the second half of 2017, but that anomaly is easily rectified. The mother need only seek an administrative variation of the assessment based the father’s current income. To do so, she need only inform the Child Support Registrar of:

   (a)The father’s admission in his most recent financial statement of his current income of $17,400 (gross) per week,[48] which equates to about $905,000 (gross) per annum; and

   (b)The father’s admission in cross-examination (verified by the transcript if necessary) to the general effect that his gross annual income is expected to exceed $1,000,000 by 30 June 2018 and to remain at that level for the foreseeable future.

   [47] Exhibit M11

   [48] Father’s financial statement, para 9

6. Lastly, the mother failed to explain why it would be just and equitable and otherwise proper for child support departure orders to be made (ss 117(1)(b)(ii), 117(4), 117(5)). The father alleged in cross-examination, without contradiction, that he paid the children’s day-care fees in addition to child support in the past. That arrangement ceased in September 2017, when the mother apparently withdrew the children from day-care. Now they have resumed attending day-care two days each week the father may be willing to restore his voluntary payment of the fees. The parties did not apparently discuss that option in advance of the trial. The father said he would pay for the children to attend day-care on four days each week if he did not have to pay spousal maintenance, but the order requiring him to pay spousal maintenance does not foreclose the prospect of his willingness to resume payment for the children’s attendance at day-care on only two days each week.

7. The mother’s application under the Assessment Act is therefore dismissed.

I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 12 March, 2018.

Associate: 

Date:  12 March, 2018