Snipper and James & Anor
[2018] FamCA 7
•12 January 2018
FAMILY COURT OF AUSTRALIA
| SNIPPER & JAMES AND ANOR | [2018] FamCA 7 |
| FAMILY LAW – CHILDREN – Where final parenting orders were made in 2013 but there is no question that it is in the children’s best interests to change those orders – Where the single expert concluded that there is a high risk of emotional abuse of the children in the husband’s care – Where each of the children has suffered from the current parenting arrangement and there is a need to protect the children – Where interim orders were made in February 2017 decreasing the amount of time the children spend with their father and this change has demonstrated that the best chance of the children having a meaningful relationship with their father is to ease the intensity of the pressure upon them and put some distance between the children and their father – Where there has not been parental alienation by the wife as asserted by the husband – Where the parents currently lack the capacity to work collaboratively and cooperatively together and the husband concedes that an order should be made for the wife to have sole parental responsibility with the wife to keep the husband informed of any decisions made in relation to the children – Where the husband seeks orders for the children to spend equal time with him and the wife – Where the wife fundamentally seeks a continuation of the interim orders made in February 2017 which provides for the children to spend regular time with the husband but less than 50 per cent of the time – Where orders are made as sought by the wife for the children to spend time with the husband each fortnight from Sunday to Monday morning and an order is made that when the children are aged 14 they are able to initiate additional time with the husband in consultation with their therapist – Where orders for supervision are made in relation to the two younger children to continue for 12 months. FAMILY LAW – PROPERTY – Where both parties seek property settlement orders – Where the wife also seeks a child support departure order and a spousal maintenance order – Where the Commissioner of Taxation for the Commonwealth of Australia is an intervenor in the proceedings and seeks that as part of any final property settlement the court take into account the taxation liabilities of the parties – Where the net assets of the parties excluding taxation debts are looked at first to determine what would be a just and equitable distribution between them before considering the competing claims of the wife and the Commissioner – Where the existing net assets before taxation liabilities should be divided between the parties 80/20 in the wife’s favour taking into account the contributions made by the wife – Where an adjustment is made of existing net assets of 15 per cent in favour of the wife taking into account the substantial monies the husband expended on gambling and the parties ongoing liabilities – Where there is no rule of priority as between the Commissioner and the wife and both rights must be balanced and taken into account – Where the Commissioner maintains that the wife along with the husband should bear responsibility for the husband’s taxation debts that were incurred prior to separation and bear some responsibility for the husband’s income tax liabilities incurred post separation – Where the wife argues that the monies lost in gambling by the husband were of such magnitude and the monies she introduced by way of capital into the marriage were of such magnitude that it would not be open to conclude that she received benefit from the husband’s personal exertion income in respect of which tax has not been paid and payments made to her by the husband post separation were her sole source of income – Where the wife’s debt to the Australian Taxation Office is to be paid by her and it is just and equitable that she make a payment towards the husband’s tax debt – Where the husband’s income constitutes a special circumstance and a child support departure order should be made and it is just and equitable for the parties to be responsible for the children’s needs as to 87.6 per cent to the husband and 12.4 per cent to the wife based on their relative income earning capacities – Where the wife’s application for spousal maintenance is dismissed. |
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Income Tax Assessment Act 1936 (Cth)
Taxation Administration Act 1953 (Cth)
Biltoft and Biltoft (1995) FLC 92-614
Chorn and Hopkins (2004) FLC 93-204
Commissioner of Taxation & Worsnop and Anor (2009) FLC 93-392
Deputy Commissioner of Taxation v Kliman & Kliman (2002) FLC 93-113
Ferro & Kopel [2016] FamCA 409
Gollings & Scott (2007) FLC 93-319
Gyselman and Gyselman (1992) FLC 92-279
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Idelsohn & Idelsohn [2017] FamCA 398
L & L [2005] FamCA 335
Marsh & Marsh [2014] FamCA 325
Prince and Prince (1984) FLC 91-501
Puddy & Grossvard & Anor (2010) FLC 93-432
Rowell & Rowell; Deputy Commissioner of Taxation (Intervener) (1989) FLC 92-026
Simpson & Simpson [2012] FamCA 444
Stanford & Stanford (2011) FLC 93-483
Trustee of the Property of G Lemnos, a Bankrupt & Lemnos and Anor (2009) FLC 93-394
Zdravkovic and Zdravkovic (1982) FLC 91-220
| APPLICANT: | Ms Snipper |
| RESPONDENT: | Mr James |
| 2nd RESPONDENT: | Commissioner of Taxation |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Smith |
| FILE NUMBER: | SYC | 1913 | of | 2012 |
| DATE DELIVERED: | 12 January 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 17 - 21 July 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey |
| SOLICITOR FOR THE APPLICANT: | Harris Freidman Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Eardley |
| SOLICITOR FOR THE RESPONDENT: | Self represented |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Kasep |
| SOLICITOR FOR THE 2ND RESPONDENT: | Australian Taxation Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Neville |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parenting
All previous parenting orders be discharged.
The children G born … 2002, B born … 2004 and R born … 2010 (“the children”) live with the wife.
Subject to any other obligation as provided for in these orders the wife shall have sole parental responsibility for making decisions about major long-term issues in respect of the children subject to the wife informing the husband in writing at the earliest opportunity of her decision in respect of the long term care, welfare and development of the children.
The wife shall not change the children’s surnames nor move the children away so that the implementation of the orders for the children to spend time with their father becomes significantly more difficult.
The wife’s exercise of her parental responsibility in relation to non-urgent medium to long term medical decisions and or specialist recommendation, excluding the retaining of therapists for counselling, shall be as follows:
5.1.The wife shall inform the husband in writing of her proposed decision.
5.2.The husband shall within four (4) weeks of receipt of the written notice from the wife provide to the wife in writing his views in respect of such medical decision or specialist recommendation.
5.3.The wife shall thereafter consider the views of the husband prior to making a final decision and thereafter inform the husband of that decision at the earliest opportunity in writing.
The children shall spend time with the husband and communicate with him as follows:
6.1.Each alternate Sunday from 9am to Monday morning before school or 9am Monday on long weekends and school holidays.
6.2.Telephone communication each Wednesday between 6pm and 7pm.
6.3.Telephone communication each other alternate Sunday between 6pm and 7pm (not the Sunday referred to in Order 6.1).
6.4.Communication between the children and the husband by way of telephone, text, electronic and/or social media shall be restricted to the times referred to in Order 6.2 and 6.3 unless instigated by the children.
6.5.For two (2) hours on each of the children’s birthdays and the husband’s birthday as agreed and failing agreement between 5pm and 7pm.
6.6.Upon each of the children attaining the age of fourteen (14) years communication between the husband and that child may occur outside the times referred to in Orders 6.2 and 6.3 but initiated by the child.
6.7.In the event that the children are not available to spend time with the husband in accordance with Order 6.1, due to a prior engagement, then the wife shall notify the husband as soon as is practicable but not less than 14 days prior to the date and provide to the husband three dates when make-up time can occur and the husband shall thereafter notify the wife within seven (7) days of having received such notice which of the nominated alternative dates he accepts.
6.8.Upon each of the children attaining the age of fourteen (14) years that child may with the assistance of their counsellor, and thereafter in consultation with the therapist, inform the husband, should the child so wish, of what additional time they may wish to spend with the husband up to the following:
6.8.1.from completion of school Friday to 9am Monday morning in each alternate weekend.
6.8.2.for one afternoon/evening per week.
6.9.On the eve of Pesach from 4pm until the commencement of school the following morning in the event it is a school day and if not a school day the children shall be delivered to the wife’s residence by 9am each alternate year commencing in 2018.
6.10.On the first day of Pesach from 4pm until the commencement of school the following morning in the event it is a school day and if not a school day the children shall be delivered to the wife’s residence by 9am each alternate year commencing 2019.
6.11.On the eve of Rosh Hashana from 4pm until 10am the following day each alternate year commencing 2018.
6.12.On the first day of Rosh Hashana from 10am until the commencement of school the following day in the event it is a school day and if not a school day the children shall be delivered to the wife’s residence by 9am each alternate year commencing in 2019.
6.13.On Kol Nidre from 4pm until 10am the following day each alternate year commencing in 2019.
6.14.On Yom Kippur from 10am until the commencement of school the following day in the event it is a school day and if not a school day the children shall be delivered to the wife’s residence by 9am each alternate year commencing in 2018.
6.15.Once a child has reached the age of 14 years a child can indicate to their father that they wish to attend a synagogue for a particular period or periods of time during any of the periods of religious observance referred to in order 6.9 to 6.14 and the husband is to facilitate that request.
6.16.In the event that Father’s Day falls on day when the children are not spending time with the husband from 9am on Father’s day to the commencement of school on Monday morning.
In the event that Mother’s Day falls on a day when the children not spending time with the wife, the children will spend time with the wife from 9am on Mother’s Day to the commencement of school on Monday morning.
For the purposes of Order 6.1 so far as they extend to B and R such time shall occur in the presence of either/or the paternal grandmother Ms AA or the husband’s partner Ms T for a period of twelve (12) months from the date of these Orders.
The wife shall ensure that the children attend upon a counsellor in accordance with the recommendations of that counsellor but not less that once in each six (6) month period.
Leave be granted to the Independent Children's Lawyer to provide a copy of these orders to the husband’s partner Ms T and the paternal grandmother Ms AA.
The husband shall continue to attend upon Dr Z for a period of not less than six (6) months or such shorter period as Dr Z considers appropriate.
Leave be granted to the Independent Children's Lawyer to provide a copy of these orders to Dr Z, Ms U and Ms V.
The wife is to hold the children’s passports. In the event that the husband refuses to sign any application for, or renewal of, passport for each or all of the children within seven (7) days of the wife having submitted such passport application to the husband then the wife is permitted to approach the Registrar of the Family Court of Australia to sign on the husband’s behalf.
The husband shall not:
14.1.Question the children regarding their activities or plans in the maternal household or require the children to provide information about the same, beyond general interested enquiry about their life experience.
14.2.Question the children about their loyalty or affection for himself or the wife, or their relative loyalty or affection.
14.3.Challenge or exhort the children to express certain opinions or wishes to any third parties including the wife and their therapists.
14.4.Behave in a verbally aggressive way towards the children.
14.5.Use physical discipline.
14.6.Not push, pull, drag or otherwise use physical force upon the children, or require another person to do the same, unless dealing with an issue of immediate physical safety to the child.
The wife shall not:
15.1.Question the children regarding their activities or plans in the paternal household or require the children to provide information about the same, beyond general interested enquiry about their life experience.
15.2.Question the children about their loyalty or affection for herself or the husband, or their relative loyalty or affection.
15.3.Challenge or exhort the children to express certain opinions or wishes to any third parties including the husband and their therapists.
15.4.Behave in a verbally aggressive way towards the children.
15.5.Use physical discipline.
15.6.Not push, pull, drag or otherwise use physical force upon the children, or require another person to do the same, unless dealing with an issue of immediate physical safety to the child.
Unless the wife authorises it in writing after a direct request to her from a child, the husband be restrained from attending any sporting fixtures of the children or each of them outside the hours the children are to spend with him provided that this order does not apply to G’s two major sporting activities being football in the winter and cricket in the summer. With those exceptions the children are to participate in sporting commitments when they are with the wife without the husband being present.
The husband be restrained from contacting the wife by email, text or telephone other than responding to any inquiry or advice initiated by the wife in respect of the children or either of them other than in respect of any urgent medical incident of the children or either of them in which event the husband shall initiate the communication as soon as practicable, except that the husband can contact the wife if he is running late for changeover at scheduled contact time and if he wishes to invite the wife to consider swapping times the children are with him for a reasonable reason.
The parents will do all things and sign all necessary documents to enable G to travel to overseas in 2018.
Both the husband and wife pay to Legal Aid NSW the sum of $5,379 in respect of the costs of the Independent Children's Lawyer.
Financial
Pursuant to s 79 Family Law Act 1975 (Cth), an order is made in accordance with paragraphs 21 to 29 below.
The wife be declared the sole owner of the property known as D Street, Suburb J (“the Suburb J property”).
Within three (3) months, the wife discharge any responsibility or liability the husband has in respect of the debt secured by way of first mortgage with the Commonwealth Bank of Australia (No. …72) on the Suburb J property.
Within three (3) months, the husband:
23.1.Resign any office bearing position in A Pty Limited (“the company”);
23.2.Prepare and execute in favour of the wife or her nominee, a transfer of the whole of his right, title and interest in his shareholding in the company;
23.3.Assign to the wife any interest that the husband might have in respect of any claim that he might have against the company;
23.4.The wife indemnify and keep indemnified, the husband against the loan the husband has to the company and any other liability the husband might have to the company.
The husband have sole right, title and interest to the loan to Company C, his motor vehicle and his household contents and any other asset which is in his possession or in his name.
The wife have sole right, title and interest to her household contents, her savings with the CBA and any other asset that is in her possession or her name.
The wife indemnify the husband in relation to any liability in respect of any loan to Ms BB Snipper.
Within three (3) months, the wife pay to the 2nd respondent the sum of $113,161 in respect of her outstanding tax liability without prejudice to the ability of the 2nd respondent to claim against the wife any interest that has accrued in respect of that tax after 2 July 2017.
The wife pay to the 2nd respondent an amount of $200,000, which sum will be credited by the 2nd respondent against the current outstanding tax owing by the husband.
Each party is to do all things and sign all necessary documents to implement these orders.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of such party.
Child Support Departure
Pursuant to section 118(1)(a) of the Child Support (Assessment) Act 1989 (Cth), an order is made in relation to the children varying the annual rate of child support payable by the husband to an amount of $101,608 per annum calculated from 12 January 2018.
The payment referred to in order 31 is to be adjusted on 1 January each year in accordance with any change in the consumer price index for Sydney for the preceding calendar year.
The child support payable by the husband pursuant to order 31 hereof in respect of the children is to be credited against the husband’s liability under any assessment issued by the Child Support Agency and is to account for 100 per cent of the annual rate of child support payable to the wife by the husband under any assessment.
Pursuant to section 124 of the Child Support (Assessment) Act 1989 (Cth), the husband shall pay 87.6 per cent and the wife pay 12.4 per cent of the following expenses as and when they fall due:
34.1.all education expenses in respect of the children’s attendance at their present schools and such high schools, including all tuition fees, compulsory building fund contributions, excursion fees, incidentals, sporting costs, uniforms and equipment, all school books, extracurricular activities and additional tuition provided that in the event that the wife chooses to send the children to more expensive schools than the two elder children currently attend, then she will be responsible for the payment of all of the differences in fees and the husband will only be responsible for 87.6 per cent of the costs of the children’s schooling based upon the cost of the current schooling of the two elder children;
34.2.all instalments at the present scale to the private health fund of which the children are presently members, or such other fund as the parents agree upon in writing;
34.3.all private hospital, optical, physiotherapy, dental or medical expenses in respect of the children which are not able to be recovered from the private health fund;
34.4.the children’s therapy.
Spousal maintenance
The wife’s application for spousal maintenance is dismissed.
Notation in relation to a Gett
I note that in evidence given on his oath, the husband was asked what his attitude was to the granting of a Gett to the wife and the husband responded:
…on reflection I think I don’t have any objection to that and I think that will be a good step. It sounds like it’s important to [the wife] and would be a good step for allowing her to move forward and us to move forward in relation to our relationship and the children as well.
Costs of Experts
The husband and the wife each pay one half of all professional fees payable to Dr Y and Mr CC in respect of professional services provided by them in the course of this litigation and reimburse the other party in the event that that other party has already paid more than one half of the costs of the professional services of either of those experts.
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 Snipper & James 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 |
FILE NUMBER: SYC 1913 of 2012
| Ms Snipper |
Applicant
And
| Mr James |
Respondent
And
| Commissioner of Taxation |
2nd Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The proceedings as between the husband and the wife are proceedings for parenting orders, a property settlement order, child support departure, spousal maintenance and an injunctive order in relation to a Gett.
The Commissioner of Taxation for the Commonwealth of Australia (“the Commissioner”) is an intervenor in these proceedings. Broadly stated, the Commissioner seeks that as part of any final property settlement, the court take into account the taxation liabilities of the husband and the wife and make provision in the final orders for the payment of some of those liabilities. The Commissioner seeks to be paid the wife’s tax debt in the sum of $113,161 as at 2 June 2017 and $600,000 towards the husband’s outstanding tax debt. The husband’s tax-related liabilities as at 2 June 2017 are in the sum of $2,013,218.40. The Commissioner also seeks to be heard in relation to the issue of what orders should be made in the wife’s favour against the husband in respect of spousal maintenance as this impacts upon the husband’s ability to reach an arrangement with the Commissioner to pay off his outstanding tax liability over time.
APPLICATIONS
At the commencement of the hearing both the wife and the husband filed case outline documents which contained the orders that they each respectively sought at the commencement of the hearing (Exhibits 29 and 30 respectively).
Parenting
The applications of the parties changed throughout the hearing. The final position of the Independent Children’s Lawyer was provided at the commencement of final submissions (Exhibit 62) and is set out at the end of these Reasons in Schedule 1. Both parents used this document as the starting point when setting out in final submissions the final parenting orders each parent sought the court to make.
The parties agreed to do all things and sign all necessary documents to enable G to travel overseas in late 2018.
The wife adopted the orders sought by the Independent Children’s Lawyer with the following reservations:
6.1.The wife wanted the period of time in order 6(g) to be altered from “not less than eight (8) weeks” to “as soon as practicable but not less than seven days”. The Independent Children’s Lawyer indicated that she did not want to be heard about the precise length of the notice.
6.2.In relation to order 6(i) to (n) it is the wife’s primary position that the children should be with her during all Jewish religious holidays but in the event that the court makes the orders sought by the Independent Children’s Lawyer those orders should be subject to the husband complying with any request made by any of the children to attend a religious event on any of those days.
6.3.In addition the wife sought orders as set out in Exhibit 63 in the following terms:
16. That the Father be restrained from attending any sporting fixtures of the children or each of them outside the times the children are to spend with him other than by direct request from a child or children.
17. That the Father be restrained from contacting the mother by email text or telephone other than responding to any enquiry or advice initiated by the Mother in respect of the children or either of them other than in respect of any urgent medical incident of the children or either of them, in which event the Father shall initiate the communication as soon as practicable.
The husband consented to the orders sought by the Independent Children’s Lawyer in relation to parental responsibility notwithstanding that up until the time he left the witness box he steadfastly maintained that an order for equal shared parental responsibility was in the children’s best interests. Consequently, I took it that the husband was consenting to orders 4 and 5 as sought by the Independent Children’s Lawyer. For reasons that will become obvious later below, had that concession not been made I would have found that it was in the children’s best interests for orders to be made in relation to parental responsibility in the terms of clauses 4 and 5 of Exhibit 62. Those orders are consistent with the final recommendation made by the single expert in oral evidence.
The husband otherwise adopted the orders as sought by the Independent Children’s Lawyer with the following exceptions (Exhibit 64):
8.1.The husband objected to order 6(a) and sought an order for equal time;
8.2.Exhibit 64 alters order 6(h.1) by changing the words “from completion of school Friday to 6pm Sunday” to “from completion of school Friday to 9am Monday”. Counsel for the husband did not announce that as a change in oral submissions but I accept that that was the husband’s final position as to what he wished in order 6(h.1);
8.3.The husband wished to have the benefit of orders 6(k) to (n) one year earlier than as sought by the Independent Children’s Lawyer and the wife;
8.4.The husband sought an order that the children’s time with him on Father’s Day extend until school the following morning;
8.5.The husband sought an order that order 9 be limited to three months, not 12 months;
8.6.The husband opposed orders 16 and 17 as sought in Exhibit 63 but in the event that order 17 was made he wanted further exceptions in relation to contacting the wife if he is running late for a contact time or to change contact days. The husband also wanted a catch all exception for “any reasonable reason”.
Financial
The wife sought a property settlement order so that:
9.1.She became the sole owner of the property at D Street, Suburb J (“the Suburb J property”) and the husband discharge the current mortgage to the Commonwealth Bank of Australia on that property, the effect being that she would take the Suburb J property unencumbered;
9.2.She receive the whole of the husband’s interest in A Pty Limited (“APL”) and that the husband resign any office bearing position in that company and transfer the shares that he had in that company to her or her nominee;
9.3.The husband indemnify her in relation to outstanding liabilities to the Australian Taxation Office and the husband pay to the Australian Taxation Office her outstanding tax bill including any interest and penalties;
The wife also seeks a departure order in respect of child support and a spousal maintenance order. The terms of the orders that she seeks are set out in Schedule 2.
The husband in his case outline document seeks a property settlement order to the effect that the Suburb J property be placed on the market for sale at a reserve price of $1.9 million and that after the payment of sale costs and the discharge of the mortgage to the Commonwealth Bank the whole of the balance be paid to the 2nd respondent to first offset the outstanding tax liability of the wife and for the remainder to be applied to the husband’s tax liability. Further, the husband seeks an order that the wife or her nominee purchase his 33.3 per cent shareholding in APL “for fair value” and that those monies be paid to the 2nd respondent in partial payment of his tax related liabilities.
By way of Amended Response to Initiating Application filed 9 June 2017, the Commissioner seeks orders that as part of any final property settlement and orders between the husband and wife, the court make provision for the payment of the tax related liabilities of both the husband and wife. The Commissioner also seeks consequential orders for the sale of the Suburb J property and after payment of sale expenses and discharge of the first mortgage to the Commonwealth Bank:
12.1.The amount of the wife’s tax-related liabilities as at the date of settlement in a sum of $113,161;
12.2.The amount of $600,000 in partial payment of the husband’s tax-related tax liabilities;
12.3.50 per cent of the proceeds of sale above any reserve price of the Suburb J property (presumably that would be set by a reference to $1.9 million which is the single expert’s valuation) in partial payment of the husband’s tax-related liabilities. The Commissioner did not seek to be heard on how any balance is to be distributed.
By way of further consequential order, the Commissioner also seeks that an order be made that the wife or her nominee purchase the husband’s 33.3 per cent shareholding in APL for a “fair value” and that the proceeds of that sale be paid to the Commissioner in partial payment of the husband’s tax related liabilities.
The Commissioner also seeks to be heard in relation to the application made by the wife for spousal maintenance. Although the Commissioner has not formulated what that order should be, the Commissioner submits that spousal maintenance should not be ordered in the amount sought by the wife and that the court should not make a spousal maintenance order that does not take into account the Commissioner’s ability to recover the husband’s taxation liabilities by entering into an arrangement with the husband for periodic payment of the outstanding balance (after any property order is made in the Commissioner’s favour) over time.
The wife does not concede that the Commissioner should be paid any of the wife’s taxation liability as part of the overall property settlement. The wife opposes the application by the Commissioner to receive $600,000 towards the husband’s tax debt.
DOCUMENTS RELIED UPON
The wife relied upon the following documents:
16.1.Initiating Application filed 3 April 2012
16.2.Affidavit of the wife filed 1 May 2017
16.3.Financial Statement of the wife filed 14 February 2017
16.4.Updated Financial Statement of the wife filed 13 July 2017
The husband relied upon the following documents:
17.1.Affidavit of the husband filed 1 May 2017
17.2.Affidavit of Ms T filed 1 May 2017
17.3.Affidavit of Ms AA filed 1 May 2017
17.4.Affidavit of Ms DD filed 1 May 2017
17.5.Affidavit of Mr DD filed 1 May 2017
17.6.Affidavit of Mr EE filed 1 May 2017
17.7.Affidavit of Ms FF filed 9 June 2017
17.8.Financial Statement of the husband filed 13 July 2017
17.9.Financial Statement of Ms T filed 6 June 2017
17.10.Expert report of Mr CC dated 12 July 2017
17.11.Valuation of property by Mr GG of HH Valuers dated 14 February 2017
Both parties relied upon the single expert report of Dr Y dated 3 December 2016.
The Commissioner relies upon an Amended Response filed 9 June 2017 and an affidavit by Ms FF sworn 9 June 2017.
SHORT HISTORY
The wife was born in 1969 and is currently 48 years old.
The husband was born in 1971 and is currently 46 years of age.
The parties commenced cohabitation in 1990 and were married in 1994.
The parties’ first child, G (“G”), was born in 2002, and is currently aged 15.
The parties’ second child, B (“B”), was born in 2004, and is currently aged 13.
The parties’ third child, R (“R”) was born in 2010, and is currently aged eight.
The parties separated either on 25 November 2011 or 28 November 2011.
The parties were divorced on 3 September 2013.
CREDIT
Wife
The wife gave her evidence in a more straightforward manner than the husband but there were occasions where I found it difficult to accept some of the things the wife said, although I did not form the impression she was setting out to deliberately deceive.
Husband
The husband on the whole wished to qualify most answers that he gave by giving an extensive background that may or may not have been relevant to the question that was actually being asked. On many occasions the husband did not respond directly to a question being asked until it was re-put. I did not accept the husband’s answers on a number of matters as being credible (for example his explanation in respect of the Mother’s Day breakfast (discussed below)) and there were many answers that the husband gave that were the product of his own perceptions and attitudes which coloured his memory as to what had occurred.
DETAILED CHRONOLOGY
The wife was born in 1969 and is currently 48 years old.
The husband was born in 1971 and is currently 46 years of age.
The parties met in 1988.
In 1990 the wife’s parents gave her a motor vehicle and transferred the title to an unencumbered unit at II Street, Suburb JJ (“the Suburb JJ property”) to her.
The parties commenced cohabitation in 1990 in the Suburb JJ property and were married in 1994.
In 1991 the wife started working in her parent’s business, KK Pty Limited (“KKPL”).
In about 1993 the wife’s grandmother gifted her $20,000.
In 1993 the wife sold the Suburb JJ property for about $195,000. She applied the net proceeds of sale towards the purchase of a property at LL Street, Suburb MM (“the Suburb MM property”) which she purchased for about $300,000. The Suburb MM property was registered in the parties’ joint names. They borrowed about $160,000 by way of mortgage from NN Bank.
In 1995 the parties sold the Suburb MM property for about $370,000. After discharging the mortgage, the net proceeds of sale were applied to purchase a property at 1 OO Street, Suburb PP (“the Suburb PP property”) for about $222,000. The parties borrowed about $45,000 by way of mortgage from NN Bank.
In 1996 the parties borrowed $130,000 from NN Bank by way of second mortgage secured over the Suburb PP property. They used those monies to purchase an investment property at 2 OO Street, Suburb PP (“the investment property”) for about $130,500. In that year, the mortgages to NN Bank were discharged and refinanced into one mortgage of $188,000 with RAMS.
In 1998 the parties sold the Suburb PP property for about $320,000. They discharged the RAMS mortgage and applied the net proceeds of sale to purchase a property at QQ Street, Suburb RR (“the Suburb RR property”) for about $595,000. The parties refinanced and combined the mortgage on the Suburb RR property with that of the investment property in the sum of $430,000 with Westpac secured over both properties. The parties took out a further loan with Westpac for $244,000 to undertake renovations to the Suburb RR property.
In September 1999 the wife’s mother gifted the wife $100,000.
In May 2000 the wife ceased working for KKPL after it was sold. The proceeds of sale of the business were placed into a joint bank account with TT Bank in the names of the wife and her mother. The wife’s mother then gifted the wife the proceeds of sale of the business, being $1,716,049.50 into the parties’ joint TT Bank account.
Sometime in 2000 the mortgages on the investment property and the Suburb RR property were discharged. The wife purchased a motor vehicle for $53,000 on 18 August 2000. The parties then invested the sum of $635,340 from the joint TT Bank account into SS Equities share portfolio.
In 2001 the parties both took 12 months off work to travel around the world, costing about $150,000.
In 2001 the parties sold the investment property.
Between 3 January 2002 and 9 August 2004 the wife says the husband transferred funds from the joint TT Bank account into different bank accounts which she did not authorise.
In April 2002 the wife sold shares, previously transferred to her by her mother, for $123,972.02. The proceeds of sale were deposited into the parties’ joint TT Bank account.
The parties’ first child, G, was born in 2002, and is currently aged 15.
In 2003 the parties sold the Suburb RR property for $1,200,000. They applied the net proceeds of sale to purchase a property at SS Street, Suburb UU (“the Suburb UU property”) for $1,600,000. The property was registered in the wife’s sole name. The mortgage was registered in their joint names with AMP for $675,000.
In 2003 the wife established a company called APL. The original capital used to float the company came from the wife’s mother in exchange for a one third share in the company. The wife and her brother in law are directors. The 30 issued shares were issued equally to the wife’s brother in law, the husband and the wife’s mother.
In 2004 the husband arranged to refinance the mortgage with CBA for $750,000. She says he arranged three more mortgages with the CBA: $100,000 on 16 August 2004, $70,000 on 15 September 2004 and $30,000 on 21 October 2004.
The parties’ second child, B, was born in 2004, and is currently aged 13.
In 2005 the husband arranged to refinance the mortgage with NN Bank for $972,000. In September 2005 a further “low doc loan” for $140,000 was taken out from NN Bank in their joint names.
In 2005 the husband established self-managed superannuation funds for the parties.
On 24 April 2006 the Suburb UU property was sold for $1,900,000. The sum of $1,148,500 was paid to NN Bank to discharge the mortgage and $570,000 was paid into the parties’ joint TT Bank account. After its sale, the parties commenced residing in a rental property in Suburb J.
In July 2006 the husband was appointed to a senior position at Company C. The husband nominated the wife as the beneficiary of his interest under the Company Cs Trust.
In 2007 the wife received an inheritance of $96,945 from her grandfather. Those monies were deposited into the parties’ joint bank account.
Sometime in 2007 the wife discovered a bank statement showing large withdrawals at the casino. She confronted the husband and he told her that he was trying to make up for the money they lost on shares by attempting to make money gambling. He handed her his credit cards. The husband told her he had attended eight counselling sessions.
In 2010 the parties purchased the Suburb J property for about $1,250,000 in the wife’s sole name. The wife’s mother wrote the parties a cheque for the deposit. The husband told the wife that he could not organise a loan because he had loans to Company C. The wife suggested that they sell shares and use money in their TT Bank account. The husband advised her that the shares were worthless and there was no cash available. The wife arranged a “low doc loan” with CBA with $300,000 being paid upfront which monies were gifted to her by her mother. At that time the parties set up a joint CBA account which became their everyday account.
The parties’ third child, R, was born in 2010, and is currently aged eight.
The wife says the parties separated on 25 November 2011. The husband says they separated on 28 November 2011. The husband subsequently moved out of the Suburb J property. Nothing turns on the difference in the dates of separation asserted by the parties.
After the parties separated the wife employed live-in students who provided some assistance with the children until late 2015.
After the parties separated, they agreed for the children to spend time with the husband for a few hours on the weekend. In December 2011 he spent time with the children from Sunday morning until Monday morning. In January 2012 or commencing in term 1 in 2012 the children started to spend Sunday nights with the husband (nothing turns on this difference). From June 2012 the children spent an additional Tuesday evening with the husband from 5.30pm to 7.15pm. From term 2 2012 to April 2013 the children spent an additional Wednesday evening overnight with the husband.
In April 2012 the wife went to the US for 10 days in the school holidays during which time the husband cared for the children.
On 3 April 2012 the wife filed an Initiating Application seeking solely financial orders.
On 11 April 2012 orders were made by consent for the husband to pay to the wife by way of financial support the sum of $17,000 per month and for the husband to be restrained from gambling.
On 14 June 2012 an order was made for the husband to pay to the wife by way of spousal maintenance the sum of $8,000 per month and 35 per cent from each profit share and performance bonus paid to the husband by Company C. The husband was made responsible for all mortgage repayments on the Suburb J property. The husband also undertook to pay to the wife $4,500 per month for child support.
In July 2012 the children spent 10 nights in his care while on holidays overseas with his ex-wife, Ms Q.
In August 2012 the husband went overseas for six weeks. Upon his return, he spent each Wednesday night with the children.
On 25 November 2012 the husband says R informed him that the student the wife was paying, had been taken away by police. As a result, he indicated to the wife on 26 November 2012 that he could care for the children until she made appropriate arrangements for the children. The husband nonetheless returned the children to the wife on 26 November 2012.
In December 2012 an incident occurred where the husband did not return the children. The wife insisted the he sign an undertaking which he did on 10 December 2012 stipulating that he could spend time with the children on Sunday and Wednesday evenings as well as certain times over the 2012 Christmas holiday period. The undertaking also stated that the husband was not to communicate with the wife except in the event of an emergency.
The husband spent time with the children in the summer holidays of 2012/2013.
In early 2013 the wife commenced attending upon Ms WW, psychologist.
On 15 January 2013 the husband filed an Amended Response seeking parenting orders.
On 3 April 2013 final orders were made by consent for the children to spend alternate weekends with the husband from the conclusion of school on Thursday until the commencement of school on Monday and half of school holidays. Orders were also made by consent for equal shared parental responsibility and for the children to be permitted to speak to the other parent between 7pm and 7.30pm each day.
A divorce order was made on 3 September 2013 (effective 4 October 2013). The statement in the parties’ joint chronology that they were divorced on 22 July 2013 is incorrect.
Since 2014 Ms U, psychologist, has provided support to B, R and both parents but to the wife on a more ongoing basis.
On 12 March 2014 the wife joined N Solicitors and Company C were joined as parties to the proceedings.
On 20 October 2014 orders were made for the husband to pay to the wife by way of spousal maintenance, $2,657 per week. Those orders also removed the husband’s responsibility to make the mortgage repayments on the Suburb J property.
On 21 November 2014 the wife’s mother paid $81,708 to stop the CBA foreclosing on the mortgage secured over the Suburb J property after the husband stopped making the mortgage repayments.
In December 2014 Ms Q left the husband’s residence.
In mid-2015 the husband commenced a relationship with his current partner, Ms T. He introduced her to the children in July 2015.
In February 2015 a report was made to the child welfare authority that R was reviewed in hospital with an injury to his back.
On 16 February 2015 B reported to police that the husband would drag her by her wrists until she got up and went where he told her to go.
Since April 2015 Mr W, psychologist, has provided support to G.
On 16 July 2015 the family report dated 17 March 2014 was released to the parties. An Independent Children’s Lawyer was appointed on this date. On this date it was noted that the wife no longer wished to proceed with her application against N Solicitors.
On 23 November 2015 an order was made for Dr Y to prepare a Chapter 15 expert report.
In the 2014/2015 school holiday period the husband says the wife withheld R from his care without reason.
On 11 November 2015 at about 6.30pm police arrived at the husband’s house to interview G following a report by the wife. The husband was away for business and so his partner Ms T had collected G who indicated his desire to stay with Ms T as opposed to going with his mother along with B and R. The wife later attended to collect G.
In December 2015 the husband says that the wife did not provide him with information about a camp B attended which he subsequently made alternative arrangements so that she could attend.
On 8 December 2015 orders were made by consent discharging Company C as a party to the proceedings noting that they have charged the amount of $114,738.58 against the husband’s current account with the company in the fiscal year 2013 on account of the costs incurred in Supreme Court of NSW and NSW Court of Appeal proceedings which were proceedings unsuccessful pursued by the wife.
Since 2016 the wife has had the assistance from a student two afternoons a week to assist in taking the children to their extra-curricular activities.
In April 2016 the husband commenced residing with his current partner, Ms T.
On 4 May 2016 FACS closed their case in relation to the children noting that the “identified risk and safety issues for the children have been resolved”. A previous report concerning R was verified as a bite mark that had become infected.
On 29 July 2016 Dr Y conducted interviews for the expert report dated 3 December 2016.
There is no evidence as to when the husband married Ms Q. The joint chronology produced by the parties in the wife’s case outline asserts that they were married in mid 2013 but given that the parties were not divorced until September 2013 I don’t see how that could be accurate. In September 2016 the husband and Ms Q were divorced (according to the joint chronology. However I have no evidence to verify that).
In September 2016 the husband says that the wife did not facilitate G’s attendance at a camp in the school holidays.
In late 2016 the husband says the wife took the children to Queensland without informing him.
On 13 December 2016 Dr Y’s report dated 3 December 2016 was released only to the Independent Children’s Lawyer.
On 16 December 2016 the husband says R and G told him that their surname had been changed to “Snipper”.
In the 2016/2017 Christmas school holidays the husband took the children on a cruise and on a road trip to Melbourne.
On R’s 7th birthday in 2017, the husband says the wife failed to make R available between 3pm to and 7pm.
On 2 February 2017 Dr Y’s report dated 3 December 2016 was released to the parties. On this date an order was made suspending the husband’s time with the children until 4pm 16 February 2017 such suspension not preventing the children from electronically communicating with their father. Orders were made generally restraining both parties to physically discipline the children, be verbally aggressive towards the children or question the children about the activities in each household. A further order was made for the husband to attend upon Dr Z, psychologist.
Despite the orders made on 2 February 2017, the husband attended B’s netball and G’s cricket matches on 9 and 17 February 2017.
On 16 February 2017 the Commissioner was given leave to be joined as a party to the proceedings. They filed an Application on 2 March 2017.
On 17 February 2017 orders were made for the children to spend time with the husband each alternate Sunday from 9am to Monday morning before school and for telecommunication to occur between them each Wednesday between 6pm and 7pm and each other alternate Sunday. Such time was to be in the presence of the husband’s partner, Ms T, or the paternal grandmother. An order was made for the wife to facilitate the children’s attendance on psychologists once every three weeks.
In compliance with the orders made on 17 February 2017, the husband attended upon Dr Z on 13 February 2017, 20 February 2017, 28 February 2017, 7 March 2017, 14 March 2017, 20 March 2017, 29 March 2017, 3 April 2017 and 18 April 2017. On 1 May 2017 he met with Ms U to discuss the treatment of B and R. He has also met with Ms V to discuss G’s sessions.
The wife says that the husband demanded to spend time with the children on 26 February 2017. She says at this time her brother was visiting from the US for the first time in eight years and a party had been arranged for the extended family. The children asked the Independent Children’s Lawyer to request that the husband swap days so that they could attend the party. The husband did not agree and so the children were unable to attend the party.
On 12 March 2017 the children spent time with the husband. On this date the wife says the husband prevented B from attending a “teen Purim function” in instead taking her to watch G’s sporting activity. The wife says that she told the husband that R had been unwell the previous day and may require Panadol. She instructed the husband to drop R back to her if he was not well enough to go to school. On Monday 13 March 2017 the husband sent the wife a text message advising that R was not well enough to go to school and requested the wife to collect him from his house that morning. That morning the wife ended up collecting B and G from Suburb J train station and dropping them to school after the husband had dropped them at Suburb XX station to commute to school. The wife collected R from the husband after that and says he was away from school for the next three days.
The husband spent time with the children on 7 April 2017.
On ANZAC Day in 2017 the husband spent time with G at a sport match following G’s request to do so.
PARENTING
As indicated final parenting orders were made on 3 April 2013. Both parents and the Independent Children’s Lawyer seek that those orders be changed. For reasons which will become obvious in the discussion below, there can be no question that it is in the best interests of the children to change the old orders.
THE HUSBAND’S RELATIONSHIP WITH AND BEHAVIOUR TOWARDS THE CHILDREN
As stated below, Dr Y concluded that there is a high risk of emotional abuse of the children in the husband’s care. Each of the children has suffered from the current parenting arrangement.
As noted above, Dr Y’s report was released to the parties on 2 February 2017. As a result of recommendations made in that report, orders were made suspending the husband’s time with the children until 16 February 2017. On 17 February 2017 orders were made reducing the amount of time the children spent with the husband to each alternate Sunday and for the husband’s partner or paternal grandmother to be present at all times.
The Child G
G has been experiencing tension and a degree of distress. When interviewed by Dr Y in 2016, G found it difficult to criticise either parent, wanting to be “fair to both parents”. G said directly to Dr Y that he felt that his father “puts me in the middle”. G complained to Dr Y that his father enlisted his aid when his father had concluded that his mother was not communicating with him. G further complained, in an intense and strident tone, that his father had asked him when he was going to stand up to his mother. G stated that in a dispute over whether or not the wife had provided uniforms, that his father was “obsessive about uniforms” and in a distressed and exacerbated tone and tense and defensive posture, he told Dr Y “I don’t have access to orders…I can’t read orders…I can’t check”. He later said that he was “trying to make both mum and dad happy at the same time… I try to do it, but it’s just not possible… mostly, I have to try to make dad happy” because “mum “understands me”, whereas with dad “I can’t have a one on one talk with him”.”
On 5 March 2014 the wife’s solicitors sent the husband’s solicitors a letter outlining occasions where the husband’s behaviour had caused G distress (Exhibit 60). The letter indicates that as a result of the incidents described, G told his mother that he wanted to kill himself because he could not cope with the pressure placed on him by his father. The husband agreed that soon after this letter was written G commenced to receive counselling. The husband agreed that he was able to speak to the psychologist upon whom G attended. The husband in cross examination said after receiving this letter he did not modify his behaviour because he did not agree with the contents of the letter. He agreed that he was shocked when he read Dr Y’s report.
Since the orders were made in February 2017 there have been three to six occasions where G has expressed interest in seeing his father over and above the time stipulated in the orders. On those occasions, the wife facilitated G spending time with his father. However, the wife says there has been occasions when the husband requested to spend further additional time with G and G had to push back against the husband and say no which the wife says he finds hard to do. While happy to facilitate additional time, the wife is concerned that the children would be pressured to spend time with the husband. Dr Y agreed that the husband interprets the children’s compliance with his requests as their collaboration.
G spent additional time with his father on Anzac Day in 2017 at an NRL match. The husband complains however that the wife placed restrictions on that time by requiring that she pick G up from the match and drop him at football training despite the fact that the husband was travelling to that training in any event.
The wife says that since the 17 February 2017 orders were made, G is much happier, less anxious and stressed and only becomes stressed when the husband rings and B or R refuse to speak to him.
It is clear that since the orders were changed in February 2017 some of the pressure that G has been feeling has come off to some degree. That is also a function of the husband obtaining some insight from reading the report and from speaking to his therapist about the contributions he was making towards the pressure that the children were feeling.
I find that G is a young man who has been experiencing pressure as a result of his parenting situation and to make an order in accordance with the husband’s proposal, for him to spend equal time with both parents, would seriously jeopardise any gains that have been made since G’s time with his father has been reduced and probably plunge G back into a situation that was far worse than what he was experiencing at the time of the interviews with Dr Y.
The Child B
Similarly, B is going through some difficult times. When she saw Dr Y at the end of July 2016 she reported that the husband is mean to her, screams at her and gets angry for little things. She said sometimes the husband hurts her and told “G to drag me by the hair down the stairs”, that he screams and pokes and spits at her and pushes her around. B could not remember a weekend with her father where he was not angry or screaming. B described stress about getting her schoolwork done when at her father’s home. She said the husband has called her a nerd, an idiot and a bitch. The husband at interview confirmed that he had on at least one occasion torn up B’s homework. The husband in cross examination attempted to minimise that incident by referring to it as a single sheet of a math problem because B had done that homework instead of attending to designated chores. The husband had also threatened B on a number of occasions that she would not be able to go to netball as a consequence for failure to disclose information about her schedule and then implemented that punishment.
The husband confirmed that B was recurrently disobedient and had “tantrums” at his home. B reported that she had “tantrums” at both homes, but that the wife understood her and knew how to handle these, whereas the husband did not.
In the report the husband is quoted as saying he “still probably would” enact such punishment in the future, such as not taking B to her netball game, if B “withheld information”. In cross examination the husband said that he did not make that comment in that form or context but I do not accept that evidence.
The husband said in March 2017, he did not take B to a youth event because they had a family picnic that day. It was put to the husband that they had in fact attended G’s cricket match. The husband conceded that they all had to go to the match due to the supervision requirements of the February 2017 orders.
B complained that her father went through all her messages and emails and if there was one she had not told him about there was “huge punishments”. The husband agreed that he accesses the children’s phones and takes them away. He says he does this to maintain vigilance in relation to cyber bullying. He also says that he on one occasion deleted a photo from B’s phone after he discovered that she had sent a photo of a rash to her mother. He says that he thought that discipline was entirely appropriate.
One occasion when the husband took B’s phone away occurred on 7 April 2017 when B told the husband she wanted to unpack her belongings but he did not allow her to do so. The husband didn’t agree that he and B had a dispute on this occasion but said in the short period of time they had together they had a lot to accomplish and B had not complied with his request. Dr Y opined that the husband taking away B’s phone was symbolic to B of the husband taking away her connection to her mother. The husband did not agree that he had previously removed all of B’s methods of communication with her mother saying that B had other methods of communicating with her mother such as her iPad. B was distressed when speaking to the single expert about her father taking away her phone.
B indicated to Dr Y that as an example of what she saw as a “punishment” was what happened on the Friday before Mother’s Day in 2016. B, who was in year 6 and school captain, was due to go and be with her mother at a Mother’s Day breakfast. In accordance with the orders she had gone from school to her father’s home on the afternoon before the scheduled Mother’s Day breakfast. The husband did not allow B to go to the Mother’s Day breakfast. B’s version to Dr Y was that she wasn’t fully aware as to why her father had prevented her going to that breakfast, her memory being that he told her that “I want to talk for five minutes”. In fact the husband drove B around in the car until about 10.30am when he delivered her back to school. The husband’s explanation was that on Monday that week the wife had forced B to send an email to the Independent Children’s Lawyer in relation to her Bat Mitzvah instead of the wife communicating directly with the husband. The husband could not accept or even contemplate that B had sent the email on her own accord. The husband asserted in the witness box that the reason he kept B away from Mother’s Day breakfast was that he was waiting for a phone call back from B’s therapist, Ms U, to see whether or not he and B could see Ms U for an urgent appointment that morning and while they were waiting he and B drove around. The husband was unable to secure an appointment with Ms U that morning so returned B to school. The husband was unsure when he had received the email but thought it was on Thursday, B having sent the email on Monday. He said he and B had a conversation about the Mother’s Day breakfast on the Thursday night when B was in his care. The husband gave an insufficient explanation as to the need for an urgent appoint with Ms U and why it was so urgent that it took primacy over the need for B to spend time with her mother at the Mother’s Day breakfast. What happened on this day showed a total lack of insight by the husband as to B’s embarrassment and disappointment as school captain of not being able to be at the Mother’s Day breakfast with her mother and was seriously inappropriate parenting.
B told Dr Y that she had formed the view that her father behaved in these ways because he had the view that B treated him differently to how she treated her mother and had formed the view that B loved her mother better (which B told Dr Y she did). B reported that her father gets angry if B is not prepared to say that she loves him and her father says to her, “I just want it to be fair”. B told Dr Y, “[h]e is mean about mum … that makes me upset … he says ‘mum’s the bully … you should be standing up to her’”.
Because of the husband’s history with B, the husband’s ability to effectively discipline B as she grows into adolescence has been compromised. The husband’s previous confiscation and interrogation of B’s mobile telephone means that any deprivation of B’s mobile telephone as a means of discipline is likely to raise in B feelings of resentment including B’s perception that her father is attempting to eliminate her ability to communicate with her mother. The husband indicated in oral evidence that the most effective method of discipline for teenagers is the removal of their mobile phone but said he hadn’t been required to do this in relation to B for a few months.
In updating his evidence, Dr Y spoke of his communications with B’s therapist who informed him about her recent experience with B in therapy where B continued to say she experienced and expressed anger about what she perceived to be abuse by her father. B had written an essay for English where she contrasted her valued experienced with her mother and what she perceived as abusive treatment by her father.
B is an intelligent and feisty 13 year old. Recent comments from her therapist do not give me any basis to believe that there has been a fundamental shift from B’s point of view as to her lived experience in her father’s household.
It is clear that B is a child experiencing pressure and that pressure creates risks for B.
Since the February 2017 orders were put in place the wife has observed B to be more relaxed.
The husband says that expanded orders should be made rather than giving B the opportunity when she is 14 to expand her time with him. That in itself is a tacit admission by the husband that he does not have a great deal of confidence that B left to herself would want to come and spend extra time with him. The husband blames that outcome on the wife alienating B from him. Whilst of course the wife plays a part in the dynamics of the problem, I find that the fundamental problem is the experience that B has had in her father’s household.
Dr Y is of the opinion that to allow the husband additional time with B would be counterproductive in maintaining their relationship given the husband’s parenting capacity and the antipathy B feels towards him.
The Child R
R is also having some difficulties. R’s current therapist describes her need to deal with some angry and fairly hostile reactions from a boy who is eight years of age. She thought it necessary to refer him to Equine Therapy (therapy which involves a horse as well as a therapist).
In cross examination the husband stated that he did not believe that any issues existed in his relationship with R. R told Dr Y a negative narrative about the husband and his time with the husband saying he is rude to the three children and spits at B. He also reported that when he gets into trouble the husband puts him outside and drags him into a corner. The husband agreed he put R outside as a form of discipline but said he could still see him through a glass door.
The wife asserts that B and R share a bed when they stay overnight at the husband’s house. The husband denies that assertion.
The wife reported some concern to the single expert that R had been physically abused by the husband arising from a report R had made. R told teachers at his school that he had been dragged down stairs and injured his leg. A report was made to FACS by R’s school and therapist on 4 May 2016. R told the wife that the husband had told G to drag him down the stairs. The wife subsequently took R to hospital. On 7 February 2017 FACS advised they were closing the case and stated in a letter that “R’s injury was found to be the result of an accidental infection”. The husband says that R’s leg became infected as a result of a bite. R did not say to Dr Y that his father had been physically abusive towards him. G said that R’s report of being asked to drag R down the stairs is not what happened, saying it was a game. The wife agreed that it was determined that R’s leg was infected but says that R and B have continued to assert the same version of events that is, that R was dragged down stairs. Both things could be true but it seems clear that the injury to R’s leg was not due to being dragged down the stairs.
THE PARENTS’ INABILITY TO ACT COLLABORATIVELY TOGETHER
The wife alleged to Dr Y that the husband may be responsible for slashing her tyres. However, there is no evidence to support this contention. Dr Y denied that he had relied upon the wife’s allegation in making the recommendation for orders for the husband not to approach the wife’s home or in a public place saying that it was to provide them with security that the husband would not approach them for example at a sporting game .
The wife says that the husband is inflexible and abusive in his interactions with her. She says all communication he sends her is persistent and abusive. She says he has also denigrated her in front of the children. The wife says that as a result of his continued abuse, she has attended weekly psychological counselling from Dr WW for the past three years.
Dr Y formed the impression that after the parties separated, “there has been a pattern of family violence perpetrated by the husband against the mother” in that the husband has engaged in behaviour “that is coercive, intimidating, disrespectful, and harmful to the mother”. Dr Y had regard to the text and email communications between the parties in this regard saying “these paternal statements are externalising of responsibility, and are manipulative, when considered in the light of the broader content of the paternal communication and the husband’s behaviour. These statements also incorporate denial of paternal coercive and threatening behaviour beneath a veneer of congeniality”. Dr Y stated that the wife’s mechanism of not responding to the husband’s emails while not ideal, was understandable in the context of the husband’s communication. The text of emails, particularly those set out in the wife’s affidavit at paragraph 51, contain language which justify that opinion. The husband in oral evidence agreed that those emails sent by him were born from frustration that the wife was not complying with orders. The husband said that if he had legal representation during that period he probably would have resolved the alleged breaches of orders in a different way. However, as recently as February 2017, the husband continued that tone in correspondence with the wife (exhibit 6 to the wife’s affidavit), although I understand that that email was probably written when the husband was feeling angry about the reduction in the children’s time that had been created by the February 2017 orders. The husband demonstrated by a number of his answers in the witness box, a lack of empathic awareness.
The wife says that over the last five years the parties have been unable to agree on any issue involving the children. She says the only way she has been able to change arrangements to enable the children to attend activities is to provide the husband with additional time. For example, G wished to attend band camp but the camp fell during the time he was supposed to spend with his father. The wife forwent her time with the children to give the husband additional time to ensure they attended school activities such as band camp.
Another example of the husband’s actuarial approach to the children’s time with him was when there was a conflict between the parties about whether or not a date could be changed for the children to participate in a maternal family gathering when the wife’s brother was visiting from the US in February 2017. The husband on the one hand insisted that it was impossible to change his plans and it was important that he saw the children on that weekend because if he didn’t he would not have seen the children for three weeks. The offer was that the Sunday be moved to a Saturday. The children had also asked the Independent Children’s Lawyer to request the husband to swap the days so that they could attend the party. The husband refused. The husband’s understanding was the wife’s brother was in Sydney for a longer period of time. For various reasons given by him, neither he nor supervisors could be available on the Saturday. The husband however in contrast, indicated in an email to the wife on 21 February 2017 that he would be prepared to forego his time with the children on that weekend if he had them on the following Sunday as long as the wife conceded a list of times the children would be with the husband which he had requested prior to the wife making the request in respect of the maternal uncle.
Dr Y was confident that if the children expressed a wish to spend more time with their father, the wife would respect their wishes unless she was concerned that there was a risk.
An example of the parent’s inability to communicate and then reach a decision in relation to the children is what happened at the time of G’s Bar Mitzvah. The husband says that he approached the wife 12 months before the event to have a discussion about how they would manage it. He says the wife wrote to him about five months later indicating that she had booked a date and provided him with limited information. After that time the husband says he tried to engage with the wife in relation to the day but received no response. The wife says she had emailed the husband a group class schedule of dates so that the husband could arrange for G to attend the classes on weekends he spent with him but he did not allow G to attend. The husband denied that assertion. He agreed the wife sent him a list of dates some of which were times that G was to spend time with him. He could only recall one occasion where G did not attend the scheduled class because it coincided with Father’s Day and G’s football grand final which he attended instead. The wife says that she received hundreds of derogatory and abusive emails from the husband indicating that the husband would not move from his position. The parties finally worked with a counsellor and came to an agreement. G told Dr Y that he was relieved when the psychologist sorted it out. The husband agreed that he had asked G to speak to his mother about the situation because he believed he could not meaningfully engage with her. The husband cited this occasion as an example of the parties being able to come to a joint decision but I find overall it was indicative of a dysfunctional parenting relationship.
The husband alleges that the wife has exerted undue influence over the children and has manipulated them. The husband points to a written statement by a teacher at the children’s school, dated 12 September 2013 in which she says the wife approached her classroom visibly upset. In the statement the teacher states that the wife had “desperately expressed her dis-satisfaction of the current situation, her concerns of the children missing out on music opportunities…” The husband asserts that this was an inappropriate attempt by the wife to involve the children’s school in their dispute. After reading all the information about this event I do not accept the husband’s assertion.
There was an incident where the wife contacted the police who conducted a welfare check on G. The wife says the husband’s partner, Ms T, arrived to collect G from tennis. The husband was overseas at the time and agreed he could not remember if he had advised the wife that that was so. The wife did not know who Ms T was and did not have her contact number. The wife says she went to G’s side of the car and told him to get out. The wife denied there were times when she was leaning on Ms T’s car and Ms T could not start the car. She subsequently contacted police to conduct a welfare check on G to ensure he was ok.
The wife says that the husband continues to disparage her in front of the children which upsets them. The wife denied that she made derogatory comments about the husband in front of the children but said that they were aware of the stress that the wife experienced in communicating with the husband.
I am unable to conclude that the wife has deliberately amplified parental conflict or has contributed in any significant way to the negative attitudes that the children hold towards their father. The single expert and the children’s therapists all reject the notion that there has been parental alienation by the wife and all are of the view that what the children are reporting is part of the children’s lived experience.
The parents currently lack the capacity to work collaboratively and cooperatively together. The evidence is replete with examples, including the torturous history of organising G’s Bar Mitzvah; the demands upon the wife to give up time she would have ordinarily spent with G if the husband was to agree for G to go to band camp; discussions about B’s Bat Mitzvah; and attempts to have the children sit entrance exams for high school.
The sorry history of conflict in relation to major decision making was finally acknowledged at the end of the evidence and at the start of the husband’s submissions when he conceded sole parental responsibility to the wife.
ALLEGED BREACH OF ORDERS
In attempting to explain his view that the wife’s behaviour had alienated the children from him, the husband repeatedly referred in his oral evidence to the wife’s breach of orders made on 3 April 2013:
154.1.The husband says that the wife enrolled the children in their current schools without consulting him and did not inform him about their tests for selective schools;
154.2.The husband says the wife has not provided him with details regarding the children’s current activities or consulted with him about their new activities;
154.3.The husband says the wife did not facilitate G’s attendance at a camp in the September 2016 school holidays;
154.4.The husband says the wife has organised psychological assistance for the children without consulting him and has not notified him when the children have been taken to medical appointments;
154.5.The husband says in the 2014/2015 Christmas holiday period, the wife withheld R from his care without reason;
154.6.On R’s birthday in 2017 the husband says the wife refused the husband access between 3pm and 7pm despite being in the Sydney metropolitan area on his birthday;
154.7.The husband says the wife refused to ensure R’s homework was in his bag on the alternate Wednesday/Thursday afternoon;
154.8.The husband says the wife has failed to deliver him school notes on changeover and that since February 2017 he has not received any school notes which has caused him to miss some of the children’s school events;
154.9.The husband says the wife has failed to provide him with the children’s full set of school uniforms;
154.10.The husband says the wife did not comply with the April 2013 orders when she took the children to Queensland in late 2016;
154.11.At various stages since April 2013 the husband says he has been unable to speak to the children and has been prevented from doing so by the wife or her family;
154.12.The husband says that despite repeated requests the wife has failed to provide him with information as to who assists her in caring for the children.
The wife did not respond to these alleged breaches in her affidavit, nor was she cross-examined about them.
The husband, who was unrepresented for parts of the proceedings, took no action in relation to breach of these orders. I accept Dr Y’s opinion that the husband has taken a very actuarial approach to the children’s time with him. Consequently, the husband is acutely aware of and angered by any breach of times the children should be with him pursuant to any orders.
The husband suggested that Dr Y did not appreciate what he had said about the history of the wife’s non-compliance with the 2013 parenting orders. I am satisfied that Dr Y did have details of all complaints that were set out in the various affidavits that the husband had filed and Dr Y had read. In addition, Dr Y had read the husband’s trial affidavit prior to giving his oral evidence.
The husband says that at various times since April 2013 the wife has prevented him from speaking to the children on the telephone. The wife says that the children often do not wish to speak with the husband. Both B and G described to Dr Y “the stress of trying to get [R] to talk long enough on the telephone to satisfy the father’s need for [R] to do so”. B spoke of having resorted to telling her father that R was asleep but on one occasion realised he might check with G so frantically tried to contact G to make sure he didn’t reveal her deception.
The wife says that since the orders made on 17 February 2017 (which provides for the husband to talk to the children each Wednesday and each alternate Sunday) the husband makes further telephone calls, leaves a voicemail or contacts the other children if one of the children do not pick up the telephone. The wife says that the husband contacts G and B on their mobile phones on an almost daily basis, often multiple times a day. She sets out occasions at paragraphs [19] and [20] of her affidavit where she says the husband has been manipulative towards B and R in requesting that the children communicate with him. The husband agreed that notwithstanding the orders made in February 2017 he continued to telephone the children as it was his understanding that the orders didn’t prohibit telephone communication at any other time. The husband said that G regularly contacts him outside of the parameters of the orders. The husband denied that he contacted B on her mobile phone on an almost daily basis and said he would speak to her every Wednesday or Sunday and send her a short text message every couple of days. He said that if the children did not answer the phone he may call back or send the wife a text message asking her to make the children available but denied that he did so excessively. The husband agreed there was one occasion when R did not want to speak to him on the phone.
Whilst complaining about the wife’s breach of orders, the husband clearly breached the order made in February 2017 when he was injuncted from telephoning the children except at certain times and otherwise by agreement between the parties. There was no other agreement between the parties yet the husband read the orders somehow as not prohibiting him from ringing the children every day. The wife in stark contrast to the husband made no complaint about this consistent breach of orders by the husband. In her oral evidence she said that the children were free to contact their father whenever they wished.
THE HUSBAND’S THERAPY SINCE 2017
The husband has been attending upon Dr Z, a psychologist since orders were made in February 2017 for the Independent Children’s Lawyer to appoint a psychologist for the husband to attend upon. He has subsequently attended 13 or 14 sessions. The husband says that his therapy with Dr Z has changed some of the ways that he interacts with the children and in particular how he reacts to things the children tell him.
The husband was shaken by what he read in Dr Y’s report in February 2017. I accept that he has genuinely seen the advantage in attending his therapist and on more than one occasion thanked the Independent Children's Lawyer for making such an appropriate referral for him. I accept he has formed a rapport with his therapist. The husband however slightly exaggerated the benefit and extent of the therapy to date. Dr Y had a conversation with Dr Z. Dr Z informed Dr Y that he felt they had formed a therapeutic relationship and the husband had shown a willingness to engage and discuss what he might do differently. Dr Z confirmed that the husband had attended upon him regularly. Dr Z felt that it was early days in their therapeutic relationship and that there would be value in ongoing work with the husband.
The husband asserts that he doesn’t have the capacity to pay any child support given the level of his expenses. On his income of $11,326 per week he asserts that he pays total income tax in the sum of $5,308. He is renting a property for $975 per week. He asserts that he is paying AB Finance loan repayments of $250 per week. The loan to AB Finance is in the total sum of $11,679.
The husband asserts that his total personal expenditure is $16,174 per week. However, part of that total is the current amount that he’s paying by way of child support assessment and interim spousal maintenance in the sum of $4,308 per week.
At Part N of his Financial Statement the husband asserts that his own weekly expenditure is $4,587 per week. The bulk of that amount is current payment to the Australian Taxation Office of $3,461 per week. That payment is referable to the current debt to the Australian Taxation Office which as dated on the husband’s current Financial Statement is in a sum of in excess of $2 million.
The 2nd respondent did not make any submission that the husband’s responsibility to pay child support should be a lesser priority than payment of tax or indeed that his liability to pay tax should be apportioned with his liability to pay child support.
Some of the other personal expenditure by the husband seems high but when tested in cross examination on some of those amounts in that part of his Financial Statement during cross examination he maintained his assertions.
On the face of the husband’s July 2017 Financial Statement his income was $11,326 and his expenditure was $16,174. However, if the current commitment to child support, spousal maintenance and tax is removed, his expenditure is $8,407 ($16,176 less $4,308 less $3,461). Consequently, if on their face all of the husband’s other figures are accepted as accurate (and as indicated I think some of them are probably inflated) the husband would have a capacity in the sum of $2,919 per week ($11,326 less $8,407 per week) available for the payment of child support.
The husband accordingly has the capacity to pay the amount of $1,954 per week or $101,608 per annum by way of child support. The husband will still have some capacity to pay for the costs of the children when they are with him.
I have no evidence that any of the children have any income earning capacity, property or financial resources.
Section 117(4)(g) of the CSAA requires me to consider any hardship that would be caused to either the husband, the wife or the children as a result of making or refusing to make an order. There is no imbalance in hardship to either of the parents that flows from an order based upon the analysis to date.
Given the nature of the duty of the parents to maintain the children I find that it is otherwise proper to make the orders for child support in the sum of $1,954.
Pursuant to s 124 of the CSAA the parties should make non-periodic child support payments for specified education and health expenses in the same proportions as indicated above (87.6 per cent for the husband and 12.4 per cent for the wife). Because the husband will have the more significant responsibility for the payment of school expenses yet the wife will have sole parental responsibility for choosing schools I will place some ceiling on the amount of school fees by reference to the two elder children’s high school.
SPOUSAL MAINTENANCE
The wife’s application seeks a sum of $3,653 by way of spousal maintenance if her s 79 application is successful (as the husband is required to discharge the mortgage on the Suburb J property) and $9,563 per week if it is not.
The wife has been substantially successful in her s 79 application and received 95 per cent of the overall current net assets of the parties (prior to taxation debts being taken into account). The wife shall be required to pay $213,161 to the Australian Taxation Office.
In the wife’s Updated Financial Statement she lists her personal expenses at $753 per week. As earlier indicated, she also is currently paying the mortgage to the Commonwealth Bank on the Suburb J property in the sum of $1,350 per week and rates in an estimated amount of $90 per week.
Section 75(2) considerations have been discussed above.
The wife has historically received financial support from her mother over the years.
Section 75(2)(ha) of the Act requires the court to take into account when considering any order for spousal maintenance:
the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant
The Commissioner submits that the application made by the wife for spousal maintenance would impact significantly on the Commissioner’s ability to recover the balance of the husband’s outstanding taxation liability in the sum of about $1.8 million, taking into account the order made for the wife to pay the Commissioner $200,000.
The Commissioner submits it would leave the husband with a level of income that was less than what was necessary to be able to enter into a payment arrangement with the Commissioner that the Commissioner would be willing to accept. It would also have a significant impact upon the ability of the Commissioner to recover the husband’s taxation liabilities by garnishee notice.
The Commissioner submits that a spousal maintenance order should not be made as sought by the wife for the following additional reasons:
368.1.The wife is a director of APL. The Commissioner submits that nowhere in the wife’s evidence does she maintain that APL does not have the ability to pay her a wage. Instead at paragraph [118] of her affidavit she simply asserts that she has not “not to withdrawn any income as yet.” The inference is that the wife does have a source of income available to her but has elected not to draw upon it. I have already discussed this issue above and found the wife’s earning capacity to be $52,860 gross per annum.
The Commissioner says that a request was made to the wife to provide in relation to APL, the general ledger, a balance sheet, profit and loss statement and cash flow statement for the financial year ended 30 June 2012 and each subsequent year but the wife has failed to do so. The Commissioner didn’t lead any evidence to corroborate the assertion but on the other hand the wife did not challenge it. I accept that the wife did not give the Commissioner all of the records that the Commissioner requested relating to APL.
The Commissioner submits that due to lack of financial disclosure to the Commissioner, the wife’s control of APL should be seen as a significant financial resource to the wife.
The Commissioner also makes the following submissions in the case outline document in relation to the weekly expenditure identified by the wife in her financial statement:
Thirdly, much of the weekly expenditure identified by the wife in her Financial Statement is so extraordinary it should not be accepted without corroboration. For example: $500.00 on house repairs; $250.00 on clothing and shoes; $100.00 on furnishings and appliances (which only becomes harder to accept given the wife values her household contents at $1,000.00 [although the wife in her oral evidence after this incongruity had been emphasised in cross examination amended that figure to $50,000]); and $1,350 on water rates. The suggestion that the wife spends approximately $70,200 per year on water is so implausible it must be rejected unless the wife can produce receipts to substantiate it.
The reference to $1,350 per week in water rates is a reference to an item on the wife’s Financial Statement sworn 14 February 2017. It was accepted at the hearing that that was an error which was not replicated in her Updated Financial Statement.
This submission by the Commissioner conflates the wife’s claim for expenses for both herself and the children whereas the 2nd respondent’s case outline document only maintains that the application made by the wife for spousal maintenance would impact significantly on the ability of the Commissioner to recovery taxation liabilities from the husband.
I take into account the liability that the husband has to pay child support and the ongoing liability that the husband will have to make periodic payments to the Australian Taxation Office.
The wife bears the onus of establishing that she is unable to support herself adequately. I find that the wife has not established that when her current earning capacity, assets and the financial support that she has historically had available to her from her mother over the years is taken into account that she is not able to adequately support herself. Further, once the husband has paid child support, periodic income tax and most significantly entered into an arrangement with the Australian Taxation Office to repay about $1.8 million in outstanding taxes, the wife has not established that the husband is reasonably able to pay periodic spousal maintenance to her.
APPLICATION BY THE WIFE FOR AN ORDER THAT THE HUSBAND CONSENT TO GIVING HER A GETT
The wife sought an order pursuant to s 114(3) that the husband forthwith:
376.1.Appear, if and when called upon by the wife to do so, before the Sydney Beth Din (Jewish Religious Court) and deliver into the wife’s hand a Gett (Jewish Bill of Divorce);
376.2.If and when the same has been ordered, directed or recommended by the said Religious Court and do all other acts and things as may be required of them to give validity and operation, according to Halakhah (Orthodox Jewish Law) to any such order, direction, recommendation or grant by the said Religious Court for a divorce in accordance with Orthodox Jewish Law.
I raised with counsel for the wife whether or not the court had power to make the order sought (see Berman J in Ferro & Kopel [2016] FamCA 409; Benjamin J in Idelsohn & Idelsohn [2017] FamCA 398).
Counsel for the wife did not satisfy me that power existed to make the order that was sought. In addition, counsel for the wife conceded that the wife had led no written evidence in relation to this issue.
Some oral evidence was given during the hearing about the husband’s unwillingness to grant the wife a Gett, notwithstanding that he had remarried and divorced a second time and was living in a new de facto relationship. During his evidence and cross examination, the husband would not commit to consenting to giving the wife a Gett. Following a conference with his counsel, the husband gave the following evidence in re-examination having been asked what his attitude was to the granting of a Gett to the wife:
…on reflection I think I don’t have any objection to that and I think that will be a good step. It sounds like it’s important to [the wife] and would be a good step for allowing her to move forward and us to move forward in relation to our relationship and the children as well.
I intend to make a notation that the husband has given that evidence on his oath.
COSTS OF EXPERTS
The parties were unable to agree on the responsibility for payment to Dr Y and Mr CC in respect of their professional services which they provided to the parties during the course of this litigation. In her case outline document the wife seeks an order that the husband pay to her a sum of $8,500 which she asserts is 50 per cent of the costs of the single expert report of Dr Y. It is just that each party pay one half of the costs of those services. In the event that one party has paid more than half of the costs of the services to either of those experts then the other party is to reimburse the person who has paid more than half so that each party has incurred an equal amount in relation to payment of services.
I certify that the preceding three hundred and eighty (380) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 12 January 2018.
Associate:
Date: 12 January 2018
SCHEDULE 1 – parenting orders sought by the Independent Children’s Lawyer
That all previous parenting orders be discharged.
That reference to “the children” in these orders shall be a reference to G born …, 2002, B born …, 2004 and R born …, 2010.
That the children live with the mother.
Subject to any other obligation as provided for in these orders the mother shall have sole parental responsibility for the children subject to the mother informing the father in writing at the earliest opportunity of her decision in respect of the long term care, welfare and development of the children.
That the mother’s exercise of her parental responsibility in relation to non urgent medium to long term medical decisions and or specialist recommendation, excluding the retaining of therapists for counselling, shall be as follows:-
(a)The mother shall inform the father in writing of her proposed decision.
(b)The father shall within four (4) weeks of receipt of the written notice from the mother provide to the mother in writing his views in respect of such medical decision or specialist recommendation.
(c)That the mother shall thereafter consider the views of the father prior to making a final decision and thereafter inform the father of that decision at the earliest opportunity in writing.
The children shall spend time with the father and communicate with him as follows:-
(a)Each alternate Sunday from 9 am to Monday morning before school or 9 am Monday on long weekends and school holidays.
(b)Telephone communication each Wednesday between 6 pm and 7 pm;
(c)Telephone communication each other alternate Sunday (not the Sunday referred to in Order 6(a):
(d)That communication between the children and the father by way of telephone, text, electronic and/or social media shall be restricted to the times referred to in Order 6(b) and (c) unless instigated by the children.
(e)For two (2) hours on each of the children’s birthdays and the father’s birthday as agreed and failing agreement between 5 pm and 7 pm.
(f)That upon each of the children attaining the age of fourteen (14) years communication between the father and that child may occur outside the times referred to in Order 6(a) and (b) but initiated by the child.
(g)That in the event that the children are not available to spend time with the father in accordance with Order 6(a), due to a prior engagement, then the mother shall notify the father not less than eight (8) weeks prior to the date and provide to the father three dates when make-up time can occur and the father shall thereafter notify the mother within two (2) weeks of having received such notice which of the nominated alternative dates he accepts.
(h)That upon each of the children attaining the age of fourteen (14) years that child may with the assistance of their counsellor, and thereafter in consultation with the therapist, inform the father, should the child so wish. of what additional time they may wish to spend with the father up to the following:-
(h.1)from completion of school Friday to 6 pm Sunday in each alternate weekend.
(h.2)for one afternoon/evening per week.
(i)On the eve of Pesach from 4 pm until the commencement of school the following morning in the event it is a school day and if not a school day the children shall be delivered to the mother’s residence by 9 am each alternate year commencing in 2018.
(j)On the first day of Pesach from 4 pm until the commencement of school the following morning in the event it is a school day and if not a school day the children shall be delivered to the mother’s residence by 9 am each alternate year commencing 2019.
(k)On the eve of Rosh Hashana from 4 pm until 10 am the following day each alternate year commencing 2018.
(l)On the first day of Rosh Hashana from 10 am until the commencement of school the following day in the event it is a school day and if not a school day the children shall be delivered to the mother’s residence by 9 am each alternate year commencing in 2019.
(m)On Kol Nidre from 4 pm until 10 am the following day each alternate year commencing in 2019.
(n)On Yom Kippur from 10 am until the commencement of school the following day in the event it is a school day and if not a school day the children shall be delivered to the mother’s residence by 9 am each alternate year commencing in 2018.
(o)That in the event that father’s day falls on day when the children are not spending time with the father from 9 am to 5 pm on Father’s day.
That in the event that mother’s day falls on a day when the children not spending time with the mother, such time with the father will be suspended, and in lieu thereof shall occur on the following Sunday.
That the mother shall ensure that the children attend upon a counsellor in accordance with the recommendations of that counsellor but not less that once in each six (6) month period.
That for the purposes of Order 6(a) and (b) so far as they extend to B and R such time shall occur in the presence of either/or the paternal Grandmother Ms AA or the father’s partner Ms T for a period of twelve (12) months from the date of these Orders.
That leave be granted to the ICL to provide a copy of these orders to the father’s partner Ms T and the paternal grandmother Ms AA.
That the father shall continue to attend upon Dr. Z for a period of not less than six (6) months.
That leave be granted to the ICL to provide a copy of these orders to Dr. Z, Ms U and Ms V.
That in the event that the father refuses to sign any application for, or renewal of, passport for each or all of the children within seven (7) days of the mother having submitted such passport application to the father then the mother is permitted to approach the Registrar of the Family Court of Australia to sign on the father’s behalf.
That the father shall not:-
(a)question the children regarding their activities or plans in the maternal household or require the children to provide information about the same, beyond general interested enquiry about their life experience.
(b)question the children about their loyalty or affection for himself or the mother, or their relative loyalty or affection.
(c)Challenge or exhort the children to express certain opinions or wishes to any third parties including the mother and their therapists.
(d)Behave in a verbally aggressive way towards the children.
(e)Use physical discipline
(f)Not push, pull, drag or otherwise use physical force upon the children, or require another person to do the same, unless dealing with an issue of immediate physical safety to the child.
That the mother shall not:-
(a)question the children regarding their activities or plans in the paternal household or require the children to provide information about the same, beyond general interested enquiry about their life experience.
(b)question the children about their loyalty or affection for herself or the father, or their relative loyalty or affection.
(c)Challenge or exhort the children to express certain opinions or wishes to any third parties including the father and their therapists.
(d)Behave in a verbally aggressive way towards the children.
(e)Use physical discipline
(f)Not push, pull, drag or otherwise use physical force upon the children, or require another person to do the same, unless dealing with an issue of immediate physical safety to the child.
SCHEDULE 2 – Orders sought by the wife by way of Child Support Departure and Spousal Maintenance.
The wife seeks the following orders in her outline of case document (Exhibit 29):
SPOUSAL MAINTENANCE
33. That the Husband pay to the Wife by way of Spouse Maintenance:
(a) the sum of $3,653.00 per month, such sum to be paid monthly on the first day of each month by direct deposit to the bank account nominated by the wife:
or in the event the Court does not make Order 25 and/or 26 [for the husband to be responsible for the mortgage on the Suburb J property]:
(b)the sum of $9,503.00 per month, such sum to be paid monthly on the first day of each month by direct deposit to the bank account nominated by the wife.
That in the event that either party refuses or neglects to execute any deed or instrument or do any such thing required to give liberty in effect to these orders, then a Registrar of this court be empowered pursuant to Section 106A of the Family Law Act 1975 to execute such deed instrument or do the thing necessary in the name of the party who were so refused or neglected to comply.
…
CHILD SUPPORT DEPARTURE ORDER
That pursuant to section 116(1)(b) of the Child Support (Assessment) Act 1989 this application be heard contemporaneously with the determination of the pending proceedings between the parties in the matter for parenting and financial orders.
That pursuant to section 117(2)(b) of the Child Support (Assessment) Act, there be a departure from the administrative assessment of child support for the period 17 July 2017 to 17 July 2022 in relation to G born … 2002, B born … 2004 and R born … 2010.
That pursuant to section 118(1) of the Child Support (Assessment) Act, there be a departure from any assessment issued by the Child Support Agency so that the Husband pay or cause to be paid to the Wife or as she directs for the support of the children the sum of $13,953.33 per month payable on the first business day of each month.
That the child support payable by the Husband pursuant to order 37 hereof in respect of the children is to be credited against the Husband’s liability under any assessment issued by the Child Support Agency and is to account for 100 per cent of the annual rate of child support payable to the Wife by the Husband under any assessment.
That pursuant to section 124 of the Child Support (Assessment) Act, the Husband shall pay the following expenses as and when they fall due:
(a) all education expenses in respect of the children’s attendance at their present schools and such high schools as are agreed between the parents, including all tuition fees, compulsory building fund contributions, excursion fees, incidentals, sporting costs, uniforms and equipment, all school books, extracurricular activities and additional tuition;
(b) all instalments at the present scale to the private health fund of which the children are presently members, or such other fund as the parents agree upon in writing; and
(c) all private hospital, optical, physiotherapy, dental or medical expenses in respect of the children which are not able to be recovered from the private health fund.
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