Shah and Duras & Anor

[2018] FamCA 854

FAMILY COURT OF AUSTRALIA

SHAH & DURAS AND ANOR [2018] FamCA 854

FAMILY LAW – PROPERTY – Undefended – where the husband has chosen not to participate in hearings – where the intervener is the sole registered proprietor of the property – where the property was purchased on behalf of the husband and the wife – where the husband and the wife paid for the property – where the husband made the intervener sign a Deed of Trust that declared the property as held on trust for the husband only – where the husband has made minimal contributions to the property – where the parties had no significant assets at the commencement of the relationship – where the wife and the intervener seek the sale of the property – where the wife seeks to be sole recipient of excess funds from the sale of the property.

FAMILY LAW – PARENTING – Undefended – where the husband has chosen not to participate in hearings – where the husband has not seen the children in two years – where the wife has been the primary carer of the children – where the wife deposes family violence – where the husband’s violence made the wife’s parenting contributions more arduous – where the husband has chosen not to have a meaningful relationship with the children – where violence has made the facilitation of a relationship with the children more difficult.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Shah

RESPONDENT: Mr Duras

INTERVENER: Ms Sharif

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 5169 of 2017

DATE DELIVERED: 24 October 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 17 October 2018

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No Appearance

SOLICITOR FOR THE INTERVENER: Benjamin & Robinson

THE INDEPENDENT CHILDREN’S LAWYER: No Appearance

Orders

IT IS ORDERED

PARENTING

1. That the children X born … 2001 and Y born … 2011 (“the children”) live with the wife.

   (2)         That the wife have sole parental responsibility for the children.

   (3)         That the children be removed from the Airport Watch List.

2. That the wife be permitted to apply for passports on behalf of the children and the Commonwealth authorities are requested to give the wife every assistance in this regard.

3. That the wife be permitted to travel outside the Commonwealth of Australia with the children.

4. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

   PROPERTY

PROPERTY ORDERS IN RELATION TO THE SALE OF F STREET

1. A Declaration that the Intervener, Ms Sharif, (hereinafter “the Intervener”) holds the property known as F Street Suburb C, in the State of NSW, better described as Lot … in Deposited Plan … (hereinafter referred to as “the Suburb C Property”) as trustee for the Applicant and Respondent.

2. An Order that the Order of Court made on 22 February 2017 by McDougall J in the Supreme Court of New South Wales in Proceedings 2017/00051267 be discharged and within 14 days the Register General be directed to remove dealing AM179792 and AK878018.

3. Within 14 days of these Orders the Respondent must do all things necessary to provide Benjamin & Robinson with a Withdrawal of Caveat in registrable form for Caveat AK878018.

4. Within 14 days of these Orders the Applicant must do all things necessary to provide Benjamin & Robinson with a Withdrawal of Caveat in registrable form for Caveat AM557662.

5. Within 14 days of these Orders the Intervener shall lodge an initial land tax return for the Suburb C Property.

6. The Intervener shall do all such acts and things as may be necessary to sell the Suburb C Property and that sale shall be conducted as follows:

   (a)Within 28 days of these Orders the Suburb C Property be forthwith listed for sale with D Real Estate at Suburb C (hereinafter the Listing Agent), with the auction to occur four (4) months from the date of these Orders, if not sold prior with the Applicant’s consent;

   (b)The reserve price at the auction shall be such amount as is agreed between the Applicant and the Listing Agent;

   (c)In the event that the Suburb C Property is not sold by auction or private negotiation at the auction or within fourteen (14) days of the said auction date, a second auction shall take place within a further twenty-eight (28) days of the expiry of the said fourteen (14) day period with the reserve price to be as determined by the auctioneer;

   (d)The Applicant must vacate and remove all items not included in the sale and ensure that the property is left in a clean and tidy condition the day before the Completion Date on the Contract of Sale for the Suburb C Property;

   (e)Benjamin & Robinson shall act for the Intervener on the sale of the Suburb C Property;

   (f)Upon completion of the sale of the Suburb C Property, the proceeds of sale shall be applied as follows:

(i)     Payment of the Listing Agent’s commission and advertising expenses and legal expenses of the sale;

(ii)    Payment of any money due and owing to the mortgagee and adjustments of all rates, water sewerage and drainage services, land tax and all other periodic outgoings;

(iii)   Payment of $13,350.00 to the Intervener as reimbursement for expenses on the Suburb C Property;

(iv)   Payment of $10,000.00 to the Applicant as an interim property distribution;

(v)     Payment of $8,537.55 to Benjamin & Robinson Solicitors;

(vi)   The net balance remaining to be invested by Benjamin & Robinson Solicitors in a controlled monies trust account, and must not be released until Orders 13, 14 and 15 below are compiled with.

1. Before 14 July 2019 the Intervener shall do all such acts and things as may be necessary Mr E to lodge a trust tax return in relation to the sale of the Suburb C Property pursuant to the trust described in Order 1.

2. The Intervener must promptly provide the trust tax assessment notice to the Applicant. The tax assessment amount and the accountant’s fees for the preparation of the trust tax return referred to in the above Order must be paid from monies held in the controlled monies trust account.

3. Only after the tax assessment amount (if any) referred to in the preceding Order has been paid in full is the balance of the controlled monies, including any interest, to be paid to the Applicant.

4. In the event that any party refuses or neglects to comply with any provision of these orders:

   (a) A Registrar of the Family Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these orders;
   (b) For the purpose of Order 10 hereof, an affidavit setting out the defaulting party’s failure to comply with the orders shall be sufficient evidence of neglect and default.

5. That the Deed dated 14 August 2017 between the wife and the intervener be set aside and is of no effect.

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 Shah & Duras and Anor 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 SYDNEY

FILE NUMBER: SYC 5169 of 2017

Ms Shah

Applicant

And

Mr Duras

Respondent

And

Ms Sharif
Intervener

REASONS FOR JUDGMENT

1. Ms Shah (“the wife”) and Mr Duras (“the husband”) married in 2000 and have two children, X born in 2001 and Y born in 2011 (“the children”).

2. Ms Sharif, the intervener in the proceedings (“the intervener”), is the wife’s sister.

3. The wife’s applications in relation to parenting and to property settlement were not contested by the husband.

4. An Independent Children’s Lawyer (“ICL”) had been appointed for the children. Unfortunately, the ICL did not appear at the hearing so the Court was denied the independent perspective she might have brought to the issue of final parenting orders.

5. As between the wife and the intervener, there was agreement and consent orders were tendered. In summary, they agreed that the former matrimonial home be sold, that the intervener be reimbursed for certain outgoings and that any assessed capital gains tax be paid before the balance of the proceeds of sale be paid to the wife. They ask for machinery orders to facilitate the sale and an order setting aside a Deed entered into by the wife and the intervener in 2017.

6. The husband did not appear when the matter was listed for hearing before me on 17 October 2018.

7. The Court file indicates that on 28 August 2017 when the husband was present in Court, orders were made for the husband to file a response and an affidavit and financial statement. Further orders for the husband to file material were made in the absence of the husband on 31 January 2018 and 28 March 2018. The husband was advised of those orders. No material has been filed by the husband.

8. On 29 May 2018, the husband did not appear when the matter was listed before the Registrar and directions were made to list the matter as undefended.

9. The husband was advised by letter from the Registrar of the listing of the matter on 17 October 2018.

10. I am satisfied that he is aware that the matter is being heard and has chosen not to participate.

11. Accordingly, the hearing proceeded on the unchallenged evidence of the wife and the intervener.

12. In order to determine whether it was just and equitable to make the financial orders sought by the wife and the intervener, and to determine whether the parenting orders sought by the wife were in the best interests of the children, it is necessary to set out the history of the marriage.

HISTORY

1. After the marriage in Country B, the husband and the wife lived with the husband’s family for about six months before coming to Australia to live with the wife’s family in Sydney. The wife’s family provided significant financial support for the husband and the wife, as neither the husband nor the wife was in employment. The wife was in receipt of Centrelink benefits.

2. In about July 2001, the husband found casual employment. The wife continued to receive Centrelink benefits.

3. X was born in 2001.

4. In early 2002 the husband and the wife and X moved to rented accommodation, independently of the wife’s family. The wife paid the rent from her Centrelink payment.

5. In 2005 or 2006, while in Country B, both the husband and the wife were injured in a motor vehicle accident. They both lodged a claim for compensation.

6. In 2007, the family moved to Melbourne and lived in rented accommodation. The husband worked in shops owned by his family members. He was secretive about his earnings and hid cash about the house. He told the wife that he was sending money to his parents in Country B.

7. In 2008, they returned to Sydney and rented a unit. The wife paid the rent from her Centrelink benefits. The husband was not working.

8. The insurance claim from the motor vehicle accident was paid, the wife receiving $35,000 and the husband $15,000. All of those funds were given by the husband to his uncle to invest.

9. In 2009, the husband was employed. The wife continued to receive Centrelink benefits and to pay their rent and living expenses with assistance from her family. On occasions, the husband bought food.

10. In 2009, the husband purchased a property in Country B.

11. In 2012 the husband asked his parents in Country B to return the money he had sent to them. They sent about $50,000 or $60,000.

12. In September 2012, the parties purchased a property at Suburb C for $517,000. They paid a ten per cent deposit, using the money that had been received from Country B. The balance was raised by way of mortgage.

13. The registered proprietor of the Suburb C house was the intervener. She deposed that she did not really understand the transaction but that she was told by the husband and other family members that she would be helping the husband and the wife. She signed the documents that were prepared by the husband’s solicitors without understanding what she was signing.

14. To facilitate the purchase, the husband deposited $57,000 into the intervener’s account. The intervener made no contribution to the purchase price.

15. After the purchase was completed, the intervener signed a further document prepared on the husband’s instructions. She did not read the document. Neither the wife nor the intervener was given a copy of the document which was a Deed of trust whereby the intervener declared that she held the Suburb C property on trust for the husband alone.

16. The husband and the wife moved into the Suburb C house. The wife deposed that she paid the mortgage payments from her Centrelink benefits.

17. The wife deposed that the husband refused to spend any money on maintenance of the house saying “It’s not my house, why should I fix it?”

18. Y was born in 2011.

19. In 2015 the mortgage was renegotiated and converted to an interest only loan.

20. In 2016, the intervener drew down $57,000 on the mortgage and used that sum to obtain a construction loan so that she could build on land she owned.

21. The wife deposed that there were multiple separations throughout the marriage. They obtained a religious divorce in 2015 but resumed cohabitation in September 2015. They finally separated in May 2016.

22. After the separation, the husband did not financially support either the wife or the children. She continued to receive Centrelink benefits and financial support from her family.

23. In about September 2016, the intervener, her mother and her younger sister moved into the Suburb C property with the wife and the children and contributed to the outgoings. The intervener estimates that she contributed some $24,400 including the costs of installing a new kitchen.

24. In October 2016, the husband lodged a caveat on the Suburb C property and told the wife that he intended to have the property transferred to himself.

25. The husband instituted proceedings in the Supreme Court of New South Wales which were ultimately transferred to the Family Court of Australia.

26. The wife and the intervener seek the sale of the Suburb C property, the discharge of the mortgage, the payment of any capital gains tax arising from the sale, payment of the intervener’s costs and the payment of the balance to the wife.

27. They estimate the value of the Suburb C house to be about $675,000 and the mortgage to be about $480,000. If orders are made as sought by the wife and the intervener, the wife will receive about $150,000 after allowance for agent’s commission and costs of sale.

FAMILY VIOLENCE

1. The wife deposed to a long history of family violence against her and against each of the children.

2. The wife deposed at paragraph 16 of her affidavit affirmed 19 June 2018:

   There have been many occasions in which I recall the respondent has assaulted me. I will depose some of these occasions in more detail below. On most occasions, the respondent would hit me with a closed fist all over my body. The respondent has on occasion choked me and kicked me to my head. He has also thrown objects at me including a chair, a TV, and a table. Most objects thrown at me were furniture items however; there were many occasions where small items were thrown at me. The respondent would generally throw anything that was near him, directly at me. He has spat at me on more occasions than what I can recall. He has called me Arabic words to the effect of ‘slut’, ‘bitch’, ‘whore’, ‘piece of shit’, ‘fuck your mum’, ‘son of a whore’, ‘son of a bitch’. The children witnessed most of the violence except when they were at school. Assaults involving myself and the children occurred on a daily basis. Each day, at least one or three assaults would occur at the home. Because of the frequency of the violence perpetrated against myself and the children, I find it hard to recall each occasion and will recall some of the more severe incidents in this Affidavit. The respondent would argue with me on almost anything and everything. Minor things such as an item being out of place would trigger his anger and violence against me and the children.

3. The wife, at paragraph 18, deposed that on occasions when she and the husband left the house together:

   He would, for no apparent reason, become cold and distant, he would then grab the back of my neck as though he was hugging me, or holding me in a loving way, he would then squeeze or pinch me very hard. This happened on almost each occasion I went out of the house with him. I do not know and cannot explain why the respondent would do this.

4. The wife deposed that the husband was financially controlling. When the wife suggested that she undergo a hairdressing course so that she could work as a hairdresser, the husband refused saying “No you don’t need to work, we don’t have women who work in this family.”

5. At other times, the husband said to the wife “You can’t even take care of the children properly, let alone go to work”.

6. The wife deposed that in 2010, she underwent a medical procedure. As the husband drove her home from the hospital she asked him to slow down and he replied “Just shut up. You are always complaining. Nothing will happen, you will be alright”. When the wife got out of the vehicle, the husband drove towards her pinning her between the vehicle and the brick wall of the house. She screamed and he reversed out of the driveway and drove off without stopping to help her.

7. The wife deposed that assaults on the children commenced when they were babies. In the relation to the assaults on the children, the wife deposed:

   84. When [Y] was a baby the respondent would squeeze his face and hold shut his mouth if he was crying. There was more than one occasion where he squeezed his face. The first occasion that the respondent stuck [Y] was when he was a little under 1 year old. I recall [Y] was sitting in his baby bouncer. [Y] was attempting to reach out and touch objects on the table. The respondent slapped his face. Shortly after this first assault, the respondent would hit [Y] on almost every occasion which he cried. The respondent would hit him on his face with an open hand or slap his buttocks. He would also grab his shoe or his rubber slipper and strike him with it. He would also pull his ears or slap his shoulder. He would shove him to the floor. Assaults of this nature continued throughout [Y’s] life …

   85. The respondent would also regularly assault [X]. Assaults on [X] commenced from the time she was a toddler and ended only after Police intervention in late 2016. The respondent would refer to [X] as a “slut”. He would say “You’re a slut like your mum”. I have also observed him to say “One day, she’ll be bringing home boys and you’ll be standing by her side because you’re a slut”. He made this comment in [X’s] presence. As far as I can remember he made this comment in or about 2016, during an argument in which I was defending [X].

   86. On one occasion in 2016, [X] went to the park with [Y] and the respondent. When [X] arrived home she said “Dad got angry with [Y] so he picked a branch off the tree started to bash him with it at the park in front of all the people.” I said “Didn’t anyone tell him to stop?” She said “No, he didn’t stop, and he didn’t care that there were people watching”.

   87. On one occasion in or about 2015, Y had been playing with the i-Pad. I understand that he lost at the game that he was playing so he threw the i-Pad. The i-Pad screen was broken on impact with the floor. When the respondent saw this, he immediately commenced slapping [Y] on his face incessantly. He then lifted him by his shirt and started kicking him all over his legs. I could not stop the respondent because he was so angry and he was too strong for me to stop him. The next day, I witnessed bruising to [Y’s] leg. I recall [Y] saying “mum, why do my legs hurt?” I said “I don’t know. They will be okay soon.”

   88. In late 2015, I recall one occasion when I arrived home from doing my grocery shopping at Coles. At the time [Y] was with me and [X] was with the respondent. I had left the house for about 1 hour. When I arrived home, [X] came outside to help me carry the groceries. I observed bruising and redness on her face. I asked “What’s this what happened”. The respondent had come to assist with the groceries at this point and so [X] looked towards him and said nothing. When we went inside [X] said “It was Dad. He punched me”. When I asked her “Why, what happened?” She said “Over something”. I approached the respondent and asked “why did you hit our daughter?” An argument erupted and he said “She’s not listening she needs to learn”. Noting my disapproval of his action, the respondent then started to swear at me calling myself and [X] “sluts”. I recall him saying something to the effect “When she grows up, she’s going to be bringing home men and she’s going to be a slut, just like you, you slut”. He then grabbed my head and pushed my face into the couch. He held me down as he punched me at least 10 times to the back of the head. I felt extremely dizzy and cannot recall exactly what he was saying or what I was doing at this point. I recall the children screaming and crying in the background. When the respondent stopped punching me, [X] ran to me with an ice pack in her hand. Both [Y] and [X] stood by my side as I cried uncontrollably. It is not the first occasion that [X] has run to the fridge to get me an ice pack. She has done so on many occasions after the witnessing an assault on me by the respondent.

   89. In or about 2015, [Y] had been playing with his ball in the backyard. [Y] accidently kicked his ball too high and it landed on the roof of our property. The respondent ran up to [Y], grabbed him by his shirt and lifted him off the ground. He then commenced kicking him on his lower body. [Y] was crying very loudly calling out “Daddy I’m sorry! It was an accident! I’m sorry! Please stop!” The respondent eventually let him go.

1. The wife deposed that in January 2016, the husband threw a toy cash register at Y saying “he wasn’t listening to me and he was jumping on the couch”. The husband then lifted Y by his ears.

2. The wife deposed:

   91. On 12 March 2016 I had been outside in the garden cleaning the house when I heard the respondent yelling very loudly. I walked into the house and observed [X] crying. I asked [X] “what happened?” [X] refused to say anything. She then said “We had a fight”. I then asked the respondent “What happened? What did you do to [X]?” The respondent yelled “NOTHING!” I went back and asked [X] “What’s wrong? What happened?” She said “he hit me and pushed me to the ground”. She was crying uncontrollably and she also said “I can’t move my arm! I can’t move my arm!”

   92. I again approached the respondent. I said “[X] can’t move her arm. What did you do to her arm. I’m going to take her to hospital”. The respondent said “No, she doesn’t need a hospital she will be okay. They never need a hospital”. I eventually managed to convince him that [X] needed to go to Hospital. The respondent said “Okay, but YOU will not take her. I will take her.” He then took [X] to the hospital by himself. By this time, I observed [X’s] arm had to be swollen.

   93. When [X] arrived home from hospital, she said “I had to get an X-ray done because they said it could be broken. Dad told me not to tell anyone what happened.” I asked “And what did you do?” she said “I didn’t tell anyone”. The same day, I asked the respondent “Is there any way that you can discipline the children without hitting them?” He said “If your mum had taught you by hitting you then you would have been a good wife by now”.

3. The wife’s evidence in relation to family violence is unchallenged and I accept that the husband behaved as she alleged.

4. I also accept that the cumulative effect of the husband’s violence was to make her parenting contribution more arduous.

THE ASSET POOL

1. The Suburb C property has a net equity of about $195,000 subject to claims by the intervener totalling some $22,000 and making an allowance for agent’s commission and costs of sale.

2. The wife has no significant assets.

3. The husband has not filed a financial statement. There is no evidence of his income, assets or liabilities. He is the owner of property in Country B but there is no evidence of its value or any encumbrance. I accept the evidence of the wife that the property owned by the husband is a house with two bedrooms and two bathrooms. She estimates its value to be $US133,000.

4. I can make no finding as to the value of the total asset pool.

CONTRIBUTIONS

1. The parties had no significant assets at the commencement of the relationship.

2. The husband worked from time to time. I accept the uncontested evidence of the wife that he did not contribute the whole or even the majority of his earnings to the family but rather diverted his earnings to Country B.

3. I accept that the wife’s home making and, particularly, parenting contributions were made more arduous by the violent conduct of the husband. I also accept that her contributions continue to be more arduous because of the behaviours of the children, particularly Y.

4. Although the evidence does not allow me to make a finding that the husband’s violence towards the children is the cause of Y’s present behavioural difficulties and X’s medical problems, nevertheless, whatever may be the cause of the children’s difficulties, it is the wife who has to manage them on a day to day basis.

5. Apart from paying X’s school fees for a period of time, now ceased, the husband has made no financial contribution to the costs of the children or to the costs of maintaining the Suburb C property since separation.

6. Since separation, apart from the period when the husband retained Y, the wife has been the sole parent of the children.

7. The wife’s contributions exceed those of the husband.

NON-DISCLOSURE BY THE HUSBAND

1. Despite his being ordered on a number of occasions to file a financial statement and affidavit evidence, the husband has failed to do so and has chosen not to participate in the hearing.

2. Thus there is no evidence of the husband’s assets or liabilities.

3. Further, the husband has remained silent in the face of the wife’s allegations that he diverted a significant portion of his income to Country B, either for the benefit of his parents or for them to facilitate investment on his behalf.

4. I am unable to make any findings as to the net asset pool in light of the husband’s complete failure to make full disclosure as is his obligation.

5. The consequence of the position that the husband has adopted is that the Court need not be unduly cautious in exercising its discretion in favour of the wife.

CONCLUSION

1. The orders which are proposed by the wife and the intervener are appropriate.

2. The wife will retain the net proceeds of the sale of the Suburb C property after payment of the encumbrances including the intervener’s out of pocket expenses.

3. The husband will retain his property in Country B and whatever other assets he may have accumulated.

PARENTING

1. The wife has been the children’s primary carer and they have not seen the husband since separation over two years ago.

2. In October 2016, the wife travelled overseas leaving the children in the former matrimonial home in the care of their maternal grandmother and their two maternal aunts. The husband called X and asked her to pack clothes for Y. The husband attended at Y’s childcare and removed Y. The wife asked the husband to return Y to the care of his maternal grandmother but the husband refused.

3. The wife deposed that during the time Y was with the respondent, X’s mental health deteriorated dramatically and X would call the wife saying “I’m going to kill myself. Please bring [Y] back.”

4. On her return to Australia, the wife sought the assistance of the police, but because there were no orders in place, the police were unable to retrieve Y.

5. On 7 December 2016, the wife found X unconscious with a packet of her maternal grandmother’s tablets on the bedside table. The wife was unable to rouse X and called an ambulance. X was taken to hospital having overdosed on sleeping tablets.

6. When X regained consciousness she was questioned by hospital staff and disclosed the violence perpetrated against her, Y and the wife. Hospital staff referred the matter to police and the Department of Family and Community Services. The children were interviewed and statements taken. The respondent was then charged with five counts of assault occasioning actual bodily harm and one count of using a weapon to commit an indictable offence. The prosecution did not proceed but an Apprehended Violence Order was made for the protection of the wife and the children. The children and the wife have been referred to counselling through the Department of Family and Community Services.

7. The wife deposed that X requires ongoing care and treatment following a diagnosis in 2015 of Turner Syndrome and Hypertension. The wife deposed “[X] has been traumatized by the respondent’s behavior [sic] towards her and the family. [X] has said ‘I hate him so much mum. I don’t want to ever see him again’.”

8. In relation to Y, the wife deposed that on two occasions in 2017, Y curled up into a foetal position and hid. When asked why he was doing that, Y said “I thought I saw dad’s car”.

9. The wife deposed:

   In 2016 and 2017, I observed [Y’s] behavior [sic] to be heavily impacted by the respondent’s behavior [sic]. I have observed [Y] to yell at me and [X]. He would pick up his shoe and hit me, [X] and his aunties with it. If [Y] wants something from someone, he will simply assault the person and obtain the item by force. In 2017, I observed him to hit [X] on at least 30 occasions. I have observed him to hit me on at least 20 occasions. Recently in May or June 2017, [Y] argued over something with my sister … [she] refused to give him the item and so he grabbed her by the hair. [Y] has also been displaying aggressive behaviour towards animals. On 12 February 2017 I observed him to take his pet bird by his legs and tie his leg to the cord attached to the vertical blinds. The bird was left hanging upside down and was struggling to break free. [Y] started to laugh at this …

10. The wife deposed that in 2017, Y became extremely anxious and commenced wetting his bed. He would wait during the night and ask her to sleep with him or to hold his hand until he fell asleep. At the beginning of 2017, Y had such difficultly falling asleep during the night that he missed many days of school. The wife has sought counselling help for Y.

11. The children have not seen their father since separation.

12. On one occasion in 2018, X told the wife that children at school were saying her father was sick and that she wanted to contact him and check on him. X attempted to call the husband on a number of occasions but he blocked her calls.

13. The wife instructed her solicitor to write to the husband offering him time with the children and advising him that X wanted to see him but he did not respond.

14. The husband has chosen not to have a meaningful relationship with the children and, having regard to the episodes of physical violence perpetrated by him upon the children, it is difficult to see how such a relationship can be facilitated.

15. In those circumstances it is unnecessary to give additional consideration set out in section 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”).

16. I am satisfied that the children wish to live in the care of their mother and that she has done everything in her power to foster their best interests in exercising her responsibilities for their care.

17. The presumptions in the Act in favour of equal shared parental responsibility are rebutted by the evidence of the husband’s acts of family violence towards the wife and towards the children and orders should be made allowing her to have the sole parental responsibility for them.

18. The wife also applies for an order that the children be removed from the Airport Watch List and that she be permitted to apply for passports on their behalf and to travel with the children outside of Australia. The children were born in Australia and there is no evidence to suggest that the wife will remove the children from the jurisdiction permanently. They have family in Country B and ought to be permitted to travel to see their extended family.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 24 October 2018.

Associate:

Date:  24/10/2018