Wigfield and Dempsey
[2014] FCCA 195
•28 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WIGFIELD & DEMPSEY | [2014] FCCA 195 |
| Catchwords: FAMILY LAW – Parenting and property – issues about parental responsibility and time – family violence – child’s views – balance sheet issues – correct approach to alteration of property interests – assessment of contribution and future needs. |
| Legislation: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s.13(1) |
| Bevan & Bevan (2013) FamCAFC 116 Stanford & Stanford (2012) HCA 52 West & Green (1993) FLC 92-395 C & C [2005] FLC 93 |
| Applicant: | MS WIGFIELD |
| Respondent: | MR DEMPSEY |
| File Number: | SYC 3744 of 2011 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 17 October 2013 |
| Date of Last Submission: | 22 November 2013 |
| Delivered at: | Wollongong |
| Delivered on: | 28 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harper |
| Solicitors for the Applicant: | DGB Layers |
| Counsel for the Respondent: | Mr Millar |
| Solicitors for the Respondent: | Elliott Tuthill Solicitors |
| Counsel for the Independent Children’s Lawyer: | Mr Ladopoulos |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
PARENTING ORDERS
The mother is to have sole parental responsibility for the X born (omitted) 2001 (hereinafter referred to as “the child”) subject to the following:
(a)Except in the event of an emergency the mother is to undertake the following prior to implementing a decision about a major long-term issue concerning the child:
(i)provide the father with all relevant information pertaining to the major long-term issue which is in the possession of the mother;
(ii)attempt to contact the father for the purpose of ascertaining the father’s views in relation to the issue;
(iii)allow the father a period of seven (7) days to provide his views on the issue;
(iv)give the father’s views proper consideration.
(b)The mother is to inform the father of each decision about a major long-term issue concerning the child made by the mother as soon as practicable after the decision is made.
The child is to live with the mother at all times when the child is not living with the father or spending time with the father in accordance with these Orders.
The child is to spend the following time with the father:
During the New South Wales school terms:
(a)From the conclusion of school each alternate Friday until the commencement of school on the following Tuesday (“weekend time”).
(b)For the purpose of this Order the child will always spend weekend time with the father on the weekend at the end of week 1 of each school term and on each alternate weekend falling in the school term thereafter.
During the New South Wales gazetted school holidays at the end of the first, second and third terms in each school year:
(c)For the first half of the NSW School Holiday period at the end of Terms 1,2 and 3 commencing at the conclusion of school on the last day of the school term and concluding at 5:00 pm on the second Saturday of the school holiday period.
During the New South Wales summer school holiday period between the end of one school year and the beginning of the following school year:
(d)As agreed between the parties but failing agreement between the parties as follows:
(i)from 5.00pm 21 December until 1.30pm 25 December each year, and
(ii)from 5.00pm 3 January until 5.00pm 17 January each year.
On special occasions:
(e)On 20 August each year when the father does not have the child in his care overnight on the particular date for a minimum of three (3) hours commencing at a time agreed between the parties but failing agreement between the parties from 3.00pm until 6.00pm if the relevant date is a school day and from 10.00am until 2.00pm if the relevant date is not a school day;
(f)on 21 October each year when the father does not have the child in his care overnight on the particular date for a minimum of five (5) hours commencing at a time agreed between the parties but failing agreement between the parties from 3.00pm until 8.00pm if the relevant date is a school day and from 10.00am until 5.00pm if the relevant date is not a school day;
(g)from 5.00pm on the Saturday preceding Father’s Day until the commencement of school on the Monday immediately following Father’s Day.
Generally:
(h)At such other times as may be agreed between the parties in writing, with such writing to include text message or email, from time to time.
Unless otherwise agreed by the parties the child is to live with the mother at the following times and any other Order providing for time contrary to this Order is suspended to facilitate this Order:
(a)On 20 August each year when the mother does not have the child in her care overnight on the particular date for a minimum of three (3) hours commencing at a time agreed between the parties but failing agreement between the parties from 3.00pm until 6.00pm if the relevant date is a school day and from 10.00am until 2.00pm if the relevant date is not a school day;
(b)On 19 December each year when the mother does not have the child in her care overnight on the particular date for a minimum of five (5) hours commencing at a time agreed between the parties but failing agreement between the parties from 3.00pm until 8.00pm if the relevant date is a school day and from 10.00am until 5.00pm if the relevant date is not a school day;
(c)From 5.00pm on the Saturday preceding Mother’s Day until the commencement of school on the Monday immediately following Mother’s Day.
If any Order herein provides for a party’s time with the child to conclude at the commencement of school and the relevant day is not a school day the parent’s time with the child is to conclude at 5.00 pm on the relevant day.
If any Order herein provides for time with the child to commence at the conclusion of school and the relevant day is not a school day the parent’s time with the child is to commence at 5.00 pm on the relevant day.
Unless otherwise expressly stated in these Orders changeovers (where such changeovers do not take place at the child’s school) are to occur with the father or his nominee meeting the mother or her nominee at the McDonalds Restaurant in (omitted) and both parties must leave this venue immediately after the changeover has occurred.
The time the father is to spend with the child pursuant to Order 3(a) herein is suspended for the duration of each New South Wales school holiday period and recommences on the Friday in the first week of each New South Wales school term.
For the purpose of these Orders each New South Wales school holiday period is deemed to:
(a)commence at the conclusion of school on the last day of the school term; and
(b)conclude at the commencement of school on the first day of the following school term.
Each parent is entitled to attend all events at which the child is present that allow for parental attendance or participation, including but not limited to:-
(a)sporting fixtures;
(b)extra-curricular activities;
(c)school functions and events; and
provided that:
(i)the father is not to approach the mother at any such events; and
(ii)the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at that activity, including the child’s transportation to and from the event unless otherwise agreed upon between the parents.
Each party will facilitate the child communicating with the other parent by telephone by using the child’s mobile telephone at all times when the child is in the party’s care.
Unless otherwise agreed to in writing, the Mother and Father are to ensure that the child continues to attend upon her Counsellor Ms F as recommended by Ms F.
The father may request the mother to initiate a mental health review or therapy for the child.
If the father makes a request to the mother pursuant to Order 13 herein, the mother is obliged to initiate a mental health review or therapy for the child.
Notwithstanding Orders 13 and 14 herein the mother will maintain sole parental responsibility in relation to any mental health review or therapy for the child including but not limited to, the co-ordination of the mental health review or therapy and the nature of the mental health review or therapy subject to the following Order.
The mother is to facilitate the father attending an appointment with the relevant therapist if the father wishes to do so.
The mother is hereby authorised to release a copy of Dr P’s report dated 2 May 2013 to a treating practitioner engaged with the child.
Unless otherwise agreed between the parties in writing (with writing to include text message or email) the parties are to communicate by email or by text message to exchange information on any matters relevant to the child’s care, welfare or development except in the case of an emergency in which case the parties will communicate by telephone.
For the purpose of Order 18 herein the mother’s email address is (omitted) unless the father is otherwise advised in writing by the mother or on the mother’s behalf and the father’s email address is (omitted) unless the mother is otherwise advised in writing by the father or on the father’s behalf.
Each party is authorised by this Order to receive directly from the child’s school a copy of school reports for the child, school photos (at the cost of the party requesting the photos), school newsletters and other documents normally provided to parents.
Each party is to keep the other party informed of his or her residential address and notify the other party of any change to the residential address at least fourteen (14) days in advance of any change.
Each party is to keep the other party informed of a contact telephone number and notify the other party of any change to the contact telephone number at least forty-eight (48) hours in advance of the change.
For the purpose of the preceding Order the mother’s mobile telephone number is (omitted) until such time as the father is advised otherwise in writing by the mother or on the mother’s behalf and the father’s mobile telephone number is (omitted) until such time as the mother is advised otherwise in writing by the father or on the father’s behalf.
Each party is to keep the other party informed at all times of the names and address of any treating medical practitioner or other health professionals who treat the child and authorise those practitioners to provide the other party with information that they are lawfully able to provide about the child and communicate with the other party in relation to the treatment of the child and/or the child’s requirements.
Each party is to inform the other party as soon as reasonably practicable of:
(a)any medication prescribed for the child while the child is in the party’s care; and
(b)any medical, dental or health appointment which is scheduled to occur for the child while the child is in the party’s care.
Each party is to inform the other party as soon as is reasonably practicable if the child is hospitalised at any time or is required to attend with a medical professional to seek emergency medical treatment.
If the child is admitted to hospital each party is to facilitate the other party visiting with the child during the period of the child’s admission in hospital.
If the child is admitted to hospital and a parent is permitted to stay overnight at the hospital with the child the party who normally has the care of the child for the relevant overnight period will have the first option to stay overnight with the child and the other party will only be permitted to stay overnight with the child if this is agreed to in writing by the party who normally has the care of the child for the relevant overnight period.
Without admissions each party is hereby restrained from denigrating, belittling, insulting the other party, persons who the other party is in a domestic relationship with, or members of the other party’s family in the presence or hearing of the child and each party must use their best endeavours to ensure that no other person denigrates or insults the other party, persons who the other party is in a domestic relationship with or members of the other party’s family in the presence or hearing of the child.
Save for the purpose of complying with these Orders the father is restrained by injunction from approaching, or entering upon any premises at which the mother may be from time to time including, but not limited to, residential premises, schools and places of employment.
The father is restrained by injunction from assaulting, molesting, harassing, or otherwise intimidating the mother.
Orders 30 and 31 herein are injunctive Orders for personal protection pursuant to Section 68B of the Family Law Act 1975 to which a power of arrest without warrant attaches pursuant to the provisions of Section 68C of the Family Law Act 1975.
Each party is to take all reasonable steps to ensure the child’s passport remains current and is not due to expire less than six (6) months after the end of any proposed period of overseas travel including signing and returning any document required to renew the passport within seven (7) days of the other party delivering the document to the party.
Within forty-eight (48) hours of the father receiving any passport issued in respect of the child the father is to deliver the passport to the mother.
Each party must provide the other party with a written itinerary of any overseas travel proposed for the child including the date of departure from Australia, the date of return to Australia, the addresses and telephone contact details for accommodation while overseas at least sixty (60) days prior to the date of departure from Australia.
Each party must provide the other party with a telephone number which the other party may use to contact the child while they are overseas at least sixty (60) days prior to the date of departure from Australia.
Each party is restrained from taking or keeping the child overseas outside of the dates specified in the written itinerary provided to the other party unless this is agreed to in writing (with such writing to include text message or email) by the other party.
The mother is to deliver the child’s passport to the father no less than twenty one (21) days before it is proposed the child depart Australia with the father.
Within forty-eight (48) hours of the father returning to Australia after overseas travel with the child the father is to deliver the child’s passport to the mother.
In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
PROPERTY ORDERS
Property S property
Within forty-two (42) days after the date of this Order the wife is to do all things necessary to transfer all of her interest in the property situate at and known as Property S, New South Wales (hereinafter referred to as "the Property S property") to the husband.
Unless otherwise specified in these Orders from the date of this Order the husband is to be solely responsible for the payment of all expenses due and payable in respect of the Property S property, including, but not limited to, all payments due in relation to the following:
(a)Council rates;
(b)utility expenses;
(c)insurance premiums; and
(d)water rates
and the husband will hereby indemnify and keep indemnified the wife in respect of all such payments.
The Property E property
The parties must forthwith do all acts and things to cause the unit situate at and known as Property E, New South Wales (hereinafter referred to as "the Property E property") to be sold by private treaty at the earliest possible date at a price to be agreed upon between the parties.
If the parties are not able to agree on the real estate agent to act in relation to the sale of the Property E property within fourteen (14) days from the date of this Order, the wife must forthwith nominate in writing to the husband three (3) potential real estate agents and the husband must select one (1) out of the three (3) nominees and notify the wife of the selection in writing within seven (7) days of receiving the nominations.
If the parties are not able to agree on the solicitor to act in relation to the sale of the Property E property within fourteen (14) days from the date of this Order, the wife must forthwith nominate in writing to the husband three (3) potential solicitors and the husband must select one (1) out of the three (3) nominees and notify the wife of the selection in writing within seven (7) days of receiving the nominations.
In the event the Property E property is not sold by private treaty within a period of three (3) months after the date of these Orders and unless otherwise agreed between the parties, the parties must forthwith do all acts and things necessary to cause the Property E property to be sold by public auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing agreement between the parties at a reserve price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee.
In the event the Property E property is listed for sale by public auction the parties must do all acts and things necessary to procure the sale of the property. In particular the parties must:
(a)place the property with the auctioneer for sale by public auction at the earliest possible date;
(b)execute all documents requested by the auctioneer;
(c)instruct the auctioneer that the reserve price, unless otherwise agreed, is to be no less than the value as determined by any valuation;
(d)pay to the auctioneer any sums requested for advertising expenses in relation to the auction in equal shares;
(e)give such instructions to the solicitor for the preparation of an appropriate Contract and other documents as are necessary for the sale of the property by auction;
(f)attend at the auction sale of the property and negotiate with the highest bidder in the event that the reserve price is not reached; and
(g)accept the advice of the auctioneer as to the acceptance of a price less than the reserve price.
The parties must do all acts and things necessary to facilitate the sale of the Property E property including, but not limited to, making the key(s) available, allowing inspection of the property at all times requested by the selling agent or the auctioneer and ensuring that the property is in a neat and clean condition at all times of inspection.
If an offer is made to purchase the Property E property during the period the property is listed on the market for sale for private treaty and the parties do not agree as to rejecting or accepting the offer to purchase within seven (7) days after the date the offer to purchase is made, the parties must rely on the latest valuation for the property commissioned by the parties jointly.
If the market value of the Property E property as assessed by the valuation:
(a)is less than or equal to the offer to purchase the property, the parties must forthwith do all things and sign all documents necessary to accept the offer to purchase;
(b)is greater than the offer to purchase, the parties must forthwith do all things and sign all documents necessary to decline the offer to purchase unless the parties otherwise agree in writing to accept the offer to purchase.
Upon the parties accepting an offer to purchase the Property E property or upon the sale of the Property E property by public auction the parties must forthwith do all acts and things necessary to complete the sale of the property and to disburse the proceeds of the said sale in the following manner and priority:
(a)payment to the (omitted) Bank (hereinafter referred to as "(omitted) Bank") in the total amount required to effect a discharge of the mortgage to the (omitted) Bank ((omitted));
(b)payment of agent's commission and advertising expenses and legal expenses in relation to the sale of the Property E property;
(c)payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee;
(d)payment of the balance then remaining as follows:
(i)payment to the wife as to 55% less $397,753.35;
(ii)the balance then remaining to the husband.
From the date of this Order and pending the sale of the Property E property, the wife and the husband will equally contribute to the payment of all expenses due and payable in relation to the property, including but not limited to, all Council rates, strata fees, insurance premiums, water rates, as and when such payments fall due and the wife and the husband will hereby indemnify and keep indemnified each other in respect of her/his half share of such payments.
If either party fails to make payment of his/her share of the expenses payable in relation to the Property E property in accordance with these Orders and the other party pays for his/her share of the expenses, the defaulting party is to reimburse the other party for the amount of his/her default from his/her share of the proceeds of sale from the Property E property.
From the date of this Order and pending the sale of the Property E property, the parties be entitled to any proceeds from the rental of the Property E property in proportion of 55% to the wife, 45% to the husband, subject to the payment of any mortgage and each party is to do all acts and things to ensure that the managing real estate agent for the property remits payment of any proceeds from the rental of the property to them in accordance with these Orders.
In the event of a short fall between the amount the wife receives and is obliged to pay pursuant to Order (51) above, the balance is payable to the husband within 30 days of settlement, failing which interest will accrue as calculated under the Family Law Act, its Rules and Regulations
General Orders
As between the parties, and subject to the above Orders, the wife and the husband shall each respectively retain all interest in and entitlements to:
(a)all personal property now in his/her respective possession or control;
(b)all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively; and
(c)all interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
Unless otherwise expressly stated in these Orders, each party is to be liable for the payment of any debt incurred in their sole name or jointly with any other person or encumbering any property retained by that party in accordance with these Orders and is to indemnify and keep indemnified the other party in relation thereto.
The parties are to do all things necessary to give effect to these Orders in the time period prescribed.
If either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
Liberty to relist on 7 days’ notice as regards interpretation, implementation or enforcement of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Wigfield & Dempsey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYC 3744 of 2011
| MS WIGFIELD |
Applicant
And
| MR DEMPSEY |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the orders that the Court has made in the dispute between the applicant and the respondent. The applicant will be described as the mother, the respondent as the father. The mother is 52 years old. The father is 53 years old. They started living together in 1996, married that year and separated in March of 2010. They have one child, X, born (omitted) 2001. X is 12 years old. There is a dispute between the parents about parental responsibility in relation to X and how much time she should spend with her father. There is also a dispute between the parents about dividing their property and finances. Part A of these reasons for judgment will deal with the parenting dispute, and Part B, the property and financial dispute.
Part A – Parenting dispute
The parents were able to reach agreement in relation to most aspects about X. The remaining issues, however, were quite bitterly contested. The Court needed to adjudicate on whether there should be an order for sole parental responsibility, as sought by the mother, or shared parental responsibility, as sought by the father. In addition, the Court needed to adjudicate about whether, during the school term, X should spend time with her father only each alternate weekend from after school Friday until before school Tuesday (as proposed by the mother) or have an additional overnight in the alternate week from after school Monday until before school Tuesday (as proposed by the father). There were a number of other differences between the proposals which were of limited practical significance but which will be discussed as relevant.
The detailed proposal of the mother, father and Independent Children’s Lawyer are reproduced in the first schedule to these reasons. As will be apparent, the order proposed by the Independent Children’s Lawyer was that there be equal shared parental responsibility but that in the event that a shared decision cannot be made, the mother make the decision and notify the father accordingly.
The evidence led in this case was as follows:
a)Mother's Amended Initiating Application filed 19 September 2013;
b)Mother's Affidavit filed 19 September 2013;
c)Mother’s Financial Statement filed 19 September 2013;
d)Father's Further Amended Response filed 17 September 2013;
e)Father’s Financial Statement filed 18 September 2013;
f)Father’s Affidavit filed 19 September 2013;
g)Affidavit of Ms B filed 18 September 2013;
h)Affidavit of Mr J filed 18 September 2013;
i)Affidavit of Ms P filed 18 September 2013;
j)Expert Report of Dr P, dated 2 May 2013.
The Independent Children’s Lawyer’s outline of case document included a comprehensive chronology which is reproduced in the second schedule to these reasons. The chronology captures the different contentions made by each party about relevant events. Even a cursory examination of this chronology reveals that, despite the limited and discrete issues before the Court, the breakdown of this relationship and the subsequent post-separation period was very intense and emotional for both parents.
The expert evidence in this case was given by Dr P, a consultant child, adolescent and family psychiatrist. His report is dated 2 May 2013 and was released 6 May 2013. The focus of the present discussion of the report will be limited to the issues for determination by the court.
One of the issues for the Court was determining whether the evidence given by the parents on certain issues was truthful or not. As it turns out, adverse credit findings will be made against each parent but as regards specific issues and not their evidence in general. Paragraphs 48-52 of Dr P’s report are relevant in this regard because of the consistency between his observation of the presentation of the father and the Court’s own observations in this regard. Dr P states:
The father presented as tense, vigilant and self-conscious, in trying to project a casual or nonchalant sense of self. At times, he modelled a casual hand gesture, but with some awkwardness and stiffness of his shoulders and arm, or gave a brief, high-pitched “nervous laugh”. An example of the latter was when I asked him what he enjoyed, and he said, “Well, I’m the only guy there so… housework [laugh, and gesture]”.
When asked about challenging matters such as his placing the tracking device in the mother’s car, or the attempts at mediation with Mr D, or his decision to put aside my advice and transport the child to my rooms himself, the father became more restrained in affect, more cautious and evasive in his responses.
At times, he made a firm, but generalised statement that signalled his intention to speak no further on a subject. In doing so, I felt that he was seeking to disrupt the flow of the conversation, and to shut off certain lines of enquiry.
For example when I asked what had made the father so concerned about the mother’s suicide risk [that this motivated his placing the tracking device], he said, “I forget what they are, there were indicators of suicide”. When asked the specific question whether the device was placed when the mother was clearly saying that she had ended the marital relationship, or when she was expressing a desire to get back together, he said, “It’s quite a while ago now”, and did not give a reply. When asked about the reasoning behind his decision to drive the child to the interviews himself, he gave a non-specific response about returning late from the weekend away. When asked the specific question about whether he had been aware that it was my advice that the child attend the interviews in the company of the mother, he shifted tone from the evasive to the aggressive and made a firm statement that as far as he was aware, advice that I might have given didn’t over-ride court orders. When asked about whether he had been contacted by Unifam and declined consent for the child’s involvement in counselling, he said, “to the best of my recollection, I didn’t”. He said to me with earnest sadness, “[the child] sees a counsellor, but I’m cut out of things” .When I challenged him with the counsellor’s record of having offered to see him, the father shifted to his more clipped, withholding tone and persona, and said, “No, I haven’t contacted her yet. I discussed it with my lawyer”.
I observed that when I stayed with a line of enquiry despite the father’s shift to a more firm, clipped tone and more tense, wary body language [as I did with regard to the tracking device] the father escalated in his body tension and combative stance. If I retreated in response to the signal, and shifted to a new line of enquiry, I was rewarded with an instant return to the father’s dominant affable, personable, conversational and [I will term it] pseudo-open stance.
As will be discussed in further detail below, the father’s evidence about family violence issues and, in particular, his evidence about placing a tracking device in the mother’s car represents the nadir of the father’s case. Dr P described the father’s evidence in this regard as “more cautious and evasive” and that is precisely the finding the Court makes in relation to him. In the same way as Dr P observed the father to seek “to disrupt the flow of the conversation and to shut off certain lines of inquiry”, the Court finds the father to be frequently unresponsive, uncooperative and evasive in cross-examination.
The mother’s case portrayed the father as an angry person in the context of her broader contention that he was violent, controlling and abusive. Dr P reported that X often described her father as being angry and of fear of his anger. One example of this is at paragraphs 99 and 100 of his report, where he states:
In the early stages, the child was saying that she didn’t want to go to the father’s home, because she was scared of his anger. Also, the paternal grandmother, had told the child when the child was eating too much cheese, “that’s why you’re fat, X”. But, the child had reported more recently that the father is in a new relationship, and his anger and irritability are less.
The child talked about the father getting quickly angry when things didn’t go his way. Ms F and the child have referred to this as his “knee jerk anger”, and have discussed strategies for the child to use when this occurs. The child applied these strategies to good effect, these being to answer questions the father might be asking, but to walk away when she could, to change the channel in her mind, to think about things she likes.
Another example of this is found at paragraphs 159-165 inclusive, a record of the discussion between Dr P, the father and X about options for X’s high school. All that needs to be extracted for relevant purposes is the last two paragraphs:
The child began to settle in bodily tension as she talked about things. It got awkward when I asked about school. She thought, “he’s probably thinking, mum told me to say this stuff. But mum… she lets me think what I think… the truth is best. I try to tell it mostly.”, and “dad’s talked about high school. I try not to. You don’t know what he’s gunna do. It depends what mood he’s in. He gets annoyed, or angry, like you should agree with him”.
In my view, the coercive and projective elements of the father-child relationship were seen in the events surrounding the discussion of who would bring the child to the March appointments.
A number of relevant observations are made by Dr P in the context of reporting on the father’s mental state. This is set out at paragraphs 229-235 inclusive:
In my view, the father does not have a personality disorder. But, he does have some personality vulnerabilities which can disrupt his interpersonal and parenting capacity. The father has some narcissistic personality traits. He has a need for a special or idealised role in relationships, requires excessive admiration and is overly sensitive to perceived disrespect within those relationships, and lacks empathic awareness. He has a sense of entitlement, and can be interpersonally exploitative.
If the court finds it likely (which I think possible) that the father was intrusive, aggressive, cruel and deceitful in his actions towards the mother in recent years, then he also shows evidence of antisocial personality traits, with unlawful behaviours, deceitfulness, irritability and aggression, irresponsibility and lack of remorse. These traits may have contributed to his interpersonal difficulties in the (employer omitted).
Specifically, my interviews with the father, the paternal grandmother, the mother and Mr D do not support the assertion that he installed the tracking device in the mother’s car out of concern for her mental health or risk of suicide. The father was not able to articulate to me the nature of such concerns, or how a tracking device might have allayed such concerns. Mr D had not been aware of the father having any such concerns, and was very aware of him having a need to monitor and prove aspects of the mother’s behaviour. The paternal grandmother said, “he felt he didn’t have the full truth of what she’d been up to… he needed the full truth.”
My concern is in part that the father engaged in such a degree of monitoring and coercion during the separation period. But my greater concern in terms of matters relevant to the father’s parenting capacity and capacity for respectful parental collaboration, is that the father has a profound lack of insight into the coercive element of his relational style, a corresponding extremely distorted and exaggerated view of the mother’s degree of psychopathology and culpability, and an unwillingness or inability to reflect on his own role in the difficulties at the time.
On interview with me, the father expressed no remorse for any element of his behaviour towards the mother, including the use of the tracking device. He had misunderstood the laws, and thought that it was legal at the time. He stood by his assertion that it was placed out of concern for the mother’s mental health and the child’s safety.
I am concerned that some of the father’s “running down” of the mother, for example his assertion to me that the mother showed no or little interest in seeing the child for the first 4 months after separation because she was “out having fun”, goes beyond a distorted perspective based on a narcissistic need for a superior/inferior dyadic relationship, to a deliberate attempt to mislead.I found the father to be cautious and withholding in talking about challenging matters, and coercive in interpersonal style, in terms of his rapid shifts between jovial and aggressive nonverbal stance in response to my following desired or undesired lines of enquiry. I could understand how the child might need to work with Ms F to develop strategies to deal with the father’s anger when things don’t go his way.
As it is, and for the reasons that will be discussed below, the Court finds that the father was indeed “intrusive, aggressive, cruel and deceitful in his actions towards the mother”.
Dr P then specifically deals with the issue of X’s exposure to family violence. He states that, in his view, the relationship between the parents prior to separation was not one of family violence. However, he asserts that the separation “sparked off an intense, intrusive, coercive and aggressive response in the father that in my view did escalate into a pattern of family violence” (paragraph 251). He explains further at paragraphs 252-255 as follows:
It is important to note that in using the term “family violence” I am not suggesting that the father has necessarily been physically violent to the mother. I am using this term as it is commonly used in clinical practice and in the clinical and social sciences literature (interchangeably with the term “domestic violence”) to denote a pattern of behaviour within a family relationship that is coercive, intimidating, disrespectful, and harmful to the other.
Since marital separation, the father has demonstrated attitudes and behaviours typical of family violence perpetrators, these being Superiority, Entitlement, Control, Possessiveness, Externalisation of Responsibility, Selfishness and Self-Centredness, Denial, minimization and victim-blaming, Manipulativeness, Contradictory statements and behaviours, and Confusion of Love and Abuse. [Reference: List based on a literature review in Bancroft L, Silverman J & Ritchie D (2012) The Batterer as Parent 2nd Edn. SAGE: Los Angeles. I am not aware of him having the attribute on the list: serial battering].
Of concern with regard to the matters before the court, the father was willing to put the child at the centre of his pattern of coercion, and to maintain situations of uncertainty and change with regard to arrangements for her care, despite the efforts of the mother and Mr D. This was clearly against the interests of the child, in terms of her wellbeing and adjustment to the separation.
In my view, the mother’s desire for protection from and some distance between herself and the father is not disproportionate to what she has experienced in terms of his intrusive, coercive, aggressive and disrespectful behaviour towards her.
For the reasons that will be explained below, the Court will indeed find that the father was violent in the manner described by Dr P but that this did include physical violence at times.
All of the above matters go to the issue of parental responsibility. The Court confirms in these reasons for judgment what it indicated to the parties during the hearing and indeed put to Dr P and that is that no weight would be placed on any evidence or representations made, or purported to be made, by or on behalf of Mr D who appears to have been involved with the parties in some therapeutic or dispute resolution capacity in the past. Indeed, Dr P indicated to the Court that his findings and recommendations would stand quite independently of any input from Mr D. The same applies in relation to the Court’s findings.
Notwithstanding the matters that have been set out above, Dr P found that there was a good relationship between X and her father. Indeed, this is surely apparent from the mother’s own proposal about X’s time with her father. Dr P’s one concern was that X “has developed an anxious-avoidant attachment style of relating to both parents over the years that was present to some degree pre-separation, then became more prominent during the upheaval of separation and is now persisting to some degree in particular with regard to her relationship with her father” (paragraph 107). Nonetheless, relationships with both parents were found to be positive. The mother’s role appears to have undergone a gradual shift in focus over the years from career and adult relationships to a greater focus on the parental role and her parent-child relationship (paragraph 119).
From X’s perspective according to Dr P, the differences in her relationship with each parent was about the extent to which the mother was willing to listen to her, whereas the father was less inclined. With the mother, X felt that she “can be myself” (paragraph 132) in relation to the father whilst prior to separation, X looked to him for empathy and assistance with life changes. As she is moving towards adolescence, Dr P found that she was turning to her mother to meet those needs. Dr P had no hesitation in suggesting that if the father was the only parent available, he would be able to meet X’s needs adequately.
Because of X’s age and apparent maturity, her views are relevant particularly on the issue of how much time she spends with her father. Dr P deals with this at paragraphs 259-264 of his report where he states:
I told the child that the parents and the court would decide how much time the children would spend with mum and how much with dad. The child didn’t have to decide, but the court are interested in what she thinks and how she feels. The child appeared to understand this. I asked the child whether she is glad that she doesn’t have to choose, or whether she would prefer it if she could make the decision.
The child appeared thoughtful and measured in her response. She said that she would prefer to choose, because she should speak up. But, she could understand some kids preferring the courts to decide. For her, saying what she wants, she doesn’t want to offend dad, or be in trouble with dad, because he has his ups and downs.
I asked whether the child was afraid, of dad’s reaction. She paused, and said, “no… he used to call me names, but that’s stopped. He’s never hit me though”.
I asked whether if the child had a magic wand, she would get the parents back together, or keep them separate, and if separate, what arrangement she would seek.
The child said that she would keep them separate, because if they were together, they would fight. With regard to what arrangements she would seek, she said, “I like this arrangement. But, I don’t like having Mondays on both weeks with dad. It would be nice to have a Monday with mum… maybe, it would be good to have more time with mum”. The child then said, “I try not to worry about it.. its not too big… I try to think about other things… the rest of life is good”.
I feel that the child’s more conciliatory/ peacekeeping statements such as “I like this arrangement” should not be taken at face value, and we should listen to her “but…”. I feel that the child’s wish for a solid “home base” with the mother should be respected in terms of “time with”, and her expressed view that the mother “listens” better in terms of her desires and needs should be respected in terms of parenting responsibility.
Dr P’s final recommendations are set out at paragraphs 266-276 inclusive. He states as follows:
These recommendations are based on the observations and impressions outlined above, and may alter should the court come to different conclusions to those outlined above.
The mother and father make a good faith attempt to consult with each other and endeavour to reach agreement about major long term decisions in relation to the education, health and religion of the child.Should the mother and father fail to reach agreement in relation to major long term issues, the mother have sole parental responsibility for making such decisions. That in the exercise of such responsibility the mother keep the father informed of the decision made and ensure the father is provided with all relevant information pertaining to that decision.
Each parent be responsible for the day-to-day care of the child including such matters as involvement in extracurricular activities whilst the child is in their care.
The child live with the mother.
The child spend time with the father that is less than 50% of the time. The majority of the time should be with the mother. I feel that as the child is heading into adolescence, two changeovers rather than four in the fortnight may be ideal, to reduce the stress associated with shifting contexts, particularly where there is not good collaboration or connection between contexts.
An example of the above would be to keep the current arrangement for the child to spend Friday after school to Tuesday morning with the father on a fortnightly basis, but to drop the Monday on the alternate week.
I do not recommend that the court order mental health review or therapy for the child, but do recommend that:1. Either parent be able to initiate mental health review or therapy for or with the child. That if they do so, the therapist receive a copy of this report, and the other parent be informed so that they can make their own appointment to see that therapist if they so wish.
2. If the mother has parental responsibility as I have recommended, the mother would be obliged to commence some form of therapy if the father sought the same, but she would maintain responsibility in terms of the nature of that therapy.
3. This order would include the mother being able to continue the child’s current therapy with Ms F, and to provide her with a copy of this report.
I do not recommend that the court order mental health review or therapy for either parent, but do recommend that:
1. Either parent be able to initiate such therapy if they feel the need, and be able to provide a copy of this report to the therapist if they wish to do so.
2. Orders include a personal protection order for the mother that includes any aspects the court considers appropriate and that are sought by the mother.
Each party be restrained from making critical or derogatory remarks about the other in the presence or hearing of the children.
Dr P’s recommendations about parental responsibility are reflected in the Independent Children’s Lawyers proposed order.
Dr P was cross-examined by counsel for the Independent Children’s Lawyer and for the mother and father. There is nothing he said that detracted from the Court accepting his recommendations in general terms, save for one issue that will be discussed below. He emphasised the need to have very clear orders which left minimal room for disputation between the parents. He agreed that even on his suggested approach for parental responsibility, there was the scope for disputes arising. Indeed, Dr P described this as a “significant risk of disagreement”.
He also agreed with counsel for the mother that the mother clearly had the capacity to make child-focused decisions about X, but there was reason to have reservations about the father’s capacity. Counsel for the father robustly challenged Dr P about his recommendations, both in relation to parental responsibility and time with the father. Even the meticulous cross-examination of Mr Miller was not able to bring Dr P around. Indeed, he painted quite a pessimistic picture of the parents’ ability to change their current communication difficulty, particularly as regards the father who he described as having limited reflective ability. He acknowledged that the parents had managed to reach agreement in the course of the proceedings about contentious issues in relation to counselling for X and where she would go to school in 2014, but he maintained the view that this did not demonstrate any change in what he described as the father’s “coercive interpersonal style”. He mentioned the possibility that as X progresses through adolescence and becomes more independent and autonomous, that this increases the risk of disputation about decision-making. Indeed, he opined that an order for sole parental responsibility might actually “take the pressure off” X’s relationship with her father. Whilst acknowledging that X would inevitably find out that her mother had sole parental responsibility (if that is the Court’s order), Dr P thought that X would simply interpret this as a decision that her mother is better able to make decisions about her, rather than something negative about her father. He maintained the view that there should be a single block of time between X and her father in order to minimise changeovers, but this should not be extended by increasing the time as that was not consistent with X’s desire.
As will be discussed below, the Court will make clear findings against the father about family violence that will lead it to not apply any presumption of equal shared parental responsibility. The Court had the benefit of evidence in relation to this issue that Dr P did not. Apart from his recommendations about parental responsibility, however, the Court accepts his evidence. Indeed, on the issue of the additional night and the alternate week from after school Monday until before school Tuesday (as proposed by the father), there is no evidence that was given by the mother or father which would detract from Dr P’s evidence. In any event, from the Court’s perspective, the most compelling consideration is X’s views. She does not want this additional overnight and the Court regards it is not in her best interests for this to occur, having regard to all of her evidence, including that of her views.
The issue of parental responsibility involves a consideration of the mother’s allegations of and the father’s denials of violence.
Both the mother and the father depose to matters relating to family violence in their respective affidavits. Both were extensively cross-examined about this evidence. Before examining the evidence in detail, a number of preliminary observations may be made. Evidence about family violence in the father’s affidavit, whether perpetrated by him or by the mother, is dealt with in a minimalist fashion. There is little detail. By contrast, evidence about family violence in the mother’s affidavit is dealt with in considerable detail. The impression the Court formed of the father as he was being cross-examined about family violence was that he was insincere, trivialised and minimised the significance of his actions, attempted to externalise responsibility for his actions and was plainly dishonest at times. By contrast, the mother handled the meticulous cross-examination of Mr Miller on this topic exceptionally well. She was thoroughly convincing on this topic at all times.
Curiously and because he did not consider it relevant, the father did not disclose to the Court that an apprehended domestic violence order sought by the mother against him in June 2010 was resolved on the basis of him making certain undertakings. In light of his subsequent actions, it is instructive to set out the terms of the undertaking he gave:
I, Mr Dempsey, undertake to comply with the following conditions –
(a)not to assault, molest, harass, threaten or otherwise interfere with the protected person or a person with whom the protected person has a domestic relationship;
(b)not to engage in any conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship;
(c)not stalk the protected person or a person with whom the protected person has a domestic relationship.
The written undertaking appears to be signed by the father and is dated 10 June 2010.
Just over six months later, the father was served with another apprehended domestic violence application. He deals with this at paragraphs 91-93 of his affidavit sworn 13 September 2013. This evidence gives insight into the father’s perspective about this issue:
91. In or about January 2011 I was served with another application for an apprehended domestic violence order and after considerable expense to me it was concluded in or about November 2011 by the making of an Order.
92. At the same time I was charged under Section 9 of the Surveillance Devices Act 2007 and, on appeal, I received a Section 10 of the Crimes (Sentencing Procedure) Act. The cost of my dealing with these matters was extreme and has imposed a harsh burden upon me.
93. I accept that I should not have taken the steps which lead to the taking out of the apprehended violence order. At the time, I was concerned by Ms Wigfield’s erratic behaviour but I now recognise that I should not have acted in the way I did.
Of concern is the emphasis that the father places on the expense to him of the apprehended violence and subsequent criminal proceedings. He refers in paragraph 92 to the “harsh burden” imposed on him. Even the very limited expression of contrition (which probably puts the matter far higher than what it really is) at paragraph 93 makes no reference to the impact of this incident on the mother.
Curiously, in light of his evidence at paragraphs 91-93, it is the father himself who annexes to his affidavit (annexure D) the New South Wales Police fact sheet dealing with the offences that he was charged with. He was charged with Stalk/intimidate intend fear/physical etcetera harm under the Crimes (Domestic and Personal Violence) Act 2007 section 13(1) and also with Install/use tracking device to find person no consent Surveillance Devices Act 2007 section 9, subsection (1A). But the context in which he annexes this evidence is set out at paragraph 76 of his affidavit where he says:
Annexed hereto and marked with a letter D is a copy of the police fact sheet in relation to my apprehended violence order in which Ms Wigfield is described as being “paranoid and delusional”.
The Court draws the inference that the purpose of the father annexing the fact sheet was not, primarily to make disclosure of what he had done, but rather to raise issues about the mother’s mental health. Indeed in the last paragraph on page 6 of a 7 page fact sheet, there occurs this sentence:
As a result of the accused actions, the victim is being treated by a clinical psychologist, as she has become delusional and paranoid she is continually being stalked by the accused.
Before turning to the facts contained in the fact sheet and bearing in mind that they formed the basis of his conviction, the Court notes the stunning dissonance, irony and indeed lack of logic that is apparent in the father’s deeply flawed thinking about the incident in question. One of his major complaints was the cost to him of having to defend the proceedings – which of course were precipitated by his own illegal actions. Moreover, the father uses one sentence in a 7 page fact sheet to cast aspersions about the mother’s mental health in the context where any such mental issue were caused by his illegal actions.
In any event, what becomes apparent from the fact sheet is that the father purchased the tracking system on 1 September 2010, at considerable expense and then had it installed on 3 September 2010.
Based on the facts in the fact sheet to which the father pleaded guilty, he must have had a key to the mother’s car – there is simply no other way of interpreting the fact sheet. In cross-examination, however, the father insisted that the mother’s car was unlocked at the time and that, if he had found the vehicle locked at the time he had gone to install the tracking device with the person who supplied it to him, he would have come back on another day. The Court does not accept his evidence in this regard. The most likely scenario the Court finds, is that the father had at all relevant times in the post-separation period, a key to the mother’s car which he used on or about 3 September 2010 to unlock the mother’s vehicle in order to facilitate the placement of a tracking system into her car. Certainly as from on or about 3 September 2010 until January 2011, the father was able to track the movements of the mother’s car.
The father says that his motive for doing this was that, “I was concerned by Ms Wigfield’s erratic behaviour” (paragraph 93 of his affidavit). In cross-examination, he expanded upon this by including for example, reference to concerns about X arising from his concerns about the mother’s mental health. Indeed, he thought the mother might be suicidal. Notwithstanding this and even though his concerns were so serious that he would take in this Court’s opinion, the extreme actions he took in installing the tracking device, the father did not consider initiating proceedings. The Court regards the father’s purported concerns about the mother’s health as both disingenuous and manipulative.
The mother’s evidence about family violence commences from paragraph 137 of her affidavit sworn 18 September 2013. At paragraphs 139-141, the mother deposes to receiving text messages from a public payphone which she believes were sent by the father. The father denies this. There is no evidence to suggest the father sent these text messages and indeed the content of the messages contraindicate him being the sender.
The mother then deposes to a number of other incidents which she attributes to the father but which he denies. The incidents include having the tyres on her car deflated on 20 May 2010 (paragraph 142), the loss of her personal diary on 26 April 2010 (paragraph 143), the father kicking her on 30 April 2010 (paragraph 144), the lock on the front door of her key being filled with super glue or some other adhesive substance on 4 May 2010 (paragraph 145), the removal of the book from her car on 8 May 2010 (paragraph 146), the removal of a digital camera from her car on 15 May 2010 (paragraph 147) and the receipt of a text message on 23 May 2010 (paragraph 148).
In relation to the text message again denied by the father, there is no evidence the Court finds to link this to him and indeed, the content of the message contra-indicates him being the sender. The father denied all of the other incidents referred to above.
At paragraph 149, the mother sets out details of an incident that led to her taking out an apprehended domestic violence order which resulted in the father offering the undertaking that he did on 10 June 2010. The Court infers that the father would not have offered the undertaking unless there was at least some substance to some of the allegations made by the mother.
The mother refers in her affidavit to further incidents, e.g., someone entering her home and removing some of her garments whilst she was in (country omitted) on a holiday in May/June 2010 (paragraph 151), an incident in October 2010 in which the father returned certain personal belongings to her including clothes that had been slashed (paragraph 153) and then on 7 November 2010, the father providing her a bag of belongings which included broken picture frame and ripped up wedding photos (paragraph 154). The father denied these allegations.
The mother then gives some evidence about certain events that occurred between September 2010 and January 2011. These matters are deposed to at paragraphs 155-165 of the mother’s affidavit. These are matters all denied by the father and yet, it is clear that these events all took place during the period when the tracking device that he had placed in the mother’s vehicle had been activated.
The father’s denial about these matters is plainly unconvincing. The court finds that the father was stalking the mother during this period. When the mother expressed concerns to him that this was happening, he denied the same. Because the father was tracking the mother’s movement whenever she used her car, he knew when she was not at yoga (paragraph 156), he knew that she was not at home on 24 September 2010 when she was visiting her boyfriend, Mr B, he knew that her car was at (omitted) railway station on 1 November 2010 and that gave him the opportunity of going through documents left in the car.
He knew on 13 November 2010 that the mother was at her boyfriend’s home in (omitted) (paragraph 160), he knew on 12 January 2011 that the mother was in (omitted) (paragraph 162) and he knew when the mother was away for six days in January 2011 and had opportunity to go through her personal papers, initially removing her briefcase and then returning it (paragraphs 164-165).
The father’s denials about these incidents are plainly unconvincing. Indeed, such are the concerns that the Court has about the credibility of the father’s evidence where he denies matters of family violence, that the Court finds, having regard to all of the evidence and on the balance of probabilities, that apart from the text messages, the vast majority of the incidents the mother has referred to were in fact, perpetrated by the father.
What is particularly heinous is that he so clearly stalked the mother after giving an undertaking to the Court on 10 June 2010 that he would not. He then systematically denied to her and the Court that he did the things he in fact did. Moreover, when as a result of the discovery of the tracking device the mother sought an apprehended domestic violence order and the police laid charges against him, his response was to take out an apprehended violence order against the mother.
At paragraph 94 of his affidavit, he says that he then withdrew the Apprehended Violence Order:
After reflection upon the effect it would have on our relationship and our dealing with X.
Even this evidence is disingenuous. The COPS entry of 2 February 2011 relating to the father’s complaint makes his motive very clear:
The victim did not express any fears for his safety and believed an AVO may assist him with past problems he had with the PN.
The COPS entry then goes on to note that:
Police determined there were insufficient grounds for an AVO application.
The more likely scenario is that the police declined to act on the father’s complaint rather than him reflecting on the inappropriateness of his actions.
The context of the above discussion about family violence is what sort of order should be made in relation to parental responsibility, having regard to the competing proposals of the mother, father and Independent Children’s Lawyer. Section 61DA of the Family Law Act 1975 refers to the presumption of equal shared parental responsibility in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(2) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(3) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The mother asserts that the evidence establishes family violence for the purposes of section 61DA, subsection (2). Family violence is defined in section 4AB of the Act in the following terms:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.The Court finds based on all the evidence before it that the father has engaged in family violence and accordingly, the presumption of equal shared parental responsibility does not apply. Indeed, it would be a mockery of s.61DA to ignore such clear evidence of family violence on the facts of this case.
The focus then turns to the precise wording of the parenting orders. Apart from the issue of parental responsibility, there is little difference between the orders submitted by the mother and those submitted by the Independent Children’s Lawyer. The Court prefers those submitted by the mother. The distinction is often not significant, but there is a slightly greater attention to detail and clearer drafting which, the Court accepts, means there should be less scope for difference of opinion between the parents as to what the orders actually mean.
The Court also accepts the matters raised in the mother’s submissions about special days such as Father’s Day and Mother’s Day, long weekends. In addition, the protective orders sought by the mother are entirely appropriate, having regard to the Court’s findings about family violence.
Orders will therefore be made in accordance with the minute of order proposed by the mother.
Part B – Property and finances
The orders sought by the mother are contained in the mother’s submissions filed by her counsel. For ease of reference, the orders sought by the mother in relation to financial matters are reproduced in the third schedule to these reasons.
The orders sought by the father in relation to financial matters are set out in his further amended response filed 17 September 2013. These too are reproduced in the third schedule.
There is a very significant difference in approach adopted by the parties. Whereas both agree that the Property S family home should be transferred to the father, the mother proposes that Property E be sold, whereas the father proposes that the mother have the Property E property. The mother proposes they otherwise each keep what they have, except to the extent to bring up her total entitlement to 60 per cent of the asset pool consisting of superannuation and non-superannuation, whereas he contends that she should pay him $750,000.
The differences in approach, as will become apparent below, flow from different perceptions about assessment of contributions, assessment of future needs and a fundamental and conceptual difference in approach to the alteration of property interests exercise. In many respects, however, the factual issues are not significantly in dispute.
The Balance Sheet
It is convenient to start with the balance sheet that was attached to the mother’s outline of case document 11 October 2013, a document that is reproduced below:
ASSETS Ownership Description Wife’s value Husband’s value 1 Joint Property S 630,000 630,000 2 Joint Property E 750,000 750,000 3 Wife Property L 500,000 500,000 4 Husband (omitted) bank account E 6,000 E 6,000 5 Husband (omitted) Managed Fund 27,000 6 Husband (omitted) shares E11,001 E 11,001 7 Husband (omitted) shares E22,146 E 22,146 8 Husband (omitted) shares E 1,927 E 1,927 9 Husband (omitted) shares E 8,793 E 8,793 10 Husband Subaru motor vehicle 6,000 6,000 11 Husband Motorbike E 600 E 600 12 Joint H’hold furniture & contents in Property S property 5,000 5,000 13 Wife Household furniture and contents in wife’s possession 500 1,000 14 Wife Toyota motor vehicle 5,000 5,000 15 Wife (omitted) Bank term deposit 300,000 300,000 16 Wife (omitted) Bank account 2,198 2,198 17 Wife (omitted) bank account 50,001 50,001 18 Wife (omitted) shares 60,532 60,532 19 Wife Monies owed to the wife from wife’s mother 120,000 120,000 Total $ 2,506,698 $ 2,480,198 ADDBACKS Ownership Description Wife’s value Husband’s value 20 Wife Funds expended on legal fees (approx.) 86,349 86,409 21 Wife Funds expended on legal fees – Local Court matters (approx.) 4,000 22 Husband Funds expended on legal fees 75,832 75,832 Total $ 162,181 $ 166,241 LIABILITIES Ownership Description Wife’s value Husband’s value 23 Husband (omitted) investment loan 74,540 74,540 24 Husband Husband’s debt to husband’s mother 10,000 25 Wife (omitted) home loan 299,133 299,133 26 Wife Tax payable for 2012/2013 E 51,855 E 51,855 27 Wife PAYG liability for 2012/2013 3,174 3,174 28 Husband Husband’s PAYG debt 2,000 2,000 Total $ 430,702 $ 440,702 SUPERANNUATION Member Name of Fund Type of interest Wife’s value Husband’s value 29 Wife (omitted) Bank Super 1,445,982 1,445,982 30 Husband (omitted) Super Scheme 1,117,000 1,117,000 31 Husband (omitted) Super Plan 37,000 37,000 Total $ 2,599,982 $ 2,599,982 FINANCIAL RESOURCES Ownership Description Wife’s value Husband’s value 32 33 34 35 Total $ 0 $ 0
A number of issues arise.
It seems to have been conceded by the parties, by the end of the evidence, that item 2, the jointly owned Property E property would need to be sold in circumstances where the mother was not interested in retaining it. It was acknowledged that there would be capital gains tax issues that might arise in relation to the sale.
The quantification of capital gains tax was not possible, but it was not submitted by either party that the Court needs to make orders about the payment of tax, as each of the parties would attend to this, as they are statutorily required in due course, and their respective liability would be assessed by reference to their individual financial circumstances. The Court accepts this.
For present purposes, however, the agreed value of $750,000 will be as noted at item 2 of the balance sheet, recognising the possibility of a sale at a higher or lower price.
There is an issue about item 3, the interests that the mother has a property at Property L, together with her boyfriend/partner, Mr B. The mother concedes that she spent $530,000 to acquire her interest in the property and that, even though she is a joint and several debtor and mortgagor to the bank that provided the finance to complete the purchase, it was Mr B who used the amount borrowed to contribute his share of the property and it is he who is servicing the loan.
In these circumstances it would be unjust and inequitable to the father not to bring into account the $530,000 that represents the mother’s financial contribution to the Property L property. Accordingly, the value of item 3 should be $530,000.
There was an issue up until closing submissions, about whether the father conceded that he had a beneficial interest in the (omitted) Bank managed fund represented at item 5. On behalf of the father this was conceded and quite properly so having regard to the evidence before the Court. There is a dispute about the value of the personal property at item 13. In the absence of any expert evidence, the value attributed by the mother of $500 will be accepted as an admission against interest.
There is an issue in relation to the legal fees expended by both parties and noted at items 20-22 of the balance sheet. The father seeks an add back; the mother proposes that these amounts be ignored. Whilst recognising that these fees were actually paid and for the purposes noted in the balance sheet, the Court declines to include these in the balance sheet whether as add backs or otherwise. There are a number of reasons for doing so.
The first issue is that the Full Court’s recent decision in Bevan v Bevan (2013) FamCAFC 116, which considered the High Court’s decision in Stanford v Stanford (2012) HCA 52, seems to have cast doubt about add backs because the money expended is property that once existed but no longer does. The Full Court in Bevan suggested that whilst this “disposed of” property may still be significant, it needs to be considered as part of the history of the marriage, as well as possibly as a s.75(2)(o) consideration. Thus, treating it as notional property is not the correct approach as a matter of law.
Secondly, the reasons in this case why these amounts should not be taken into account include the inconsequential difference in amounts expended by each party (having regard to the size of the pool) and the fact that so much time has elapsed since the date of separation with each party continuing to earn their own incomes from diverse sources since then. For these reasons, items 20 to 22 should not appear on the balance sheet.
The (omitted) Bank Home Loan at item 25 should also not appear on the balance sheet because according to the mother’s own evidence, this home loan represents the equity of her partner in the Property L property and is a loan that he himself is repaying. In these circumstances, to include the liability in the balance sheet would grossly distort it from the father’s perspective. The Court accepts that it is at least notionally a liability for which the mother might be jointly and severally liable in the event that her partner does not pay and the home is sold for less than what she contributed to it.
There is a dispute about item 24, a debt the father owes to his mother relating to legal fees. Having regard to the Court’s findings about legal fees above, item 24 should likewise be removed from the balance sheet. The only other issue on the balance sheet in respect of which there was contention was item 30, the father’s (employer omitted) superannuation entitlement. The Court accepts that the value of his entitlement as at 15 October 2013 is $1,129,048, in accordance with the affidavit of Mr S affirmed 16 October 2013 and the oral evidence he gave on 17 October 2013.
Counsel for the mother Mr Harper, argued in his written submissions that a higher value should be attributed to the father’s superannuation because it was in effect (and here the Court greatly simplifies his submissions), was worth more to him than just $1,129,048. Mr Harper’s submissions in this regard are interesting but they are at most (a matter he himself conceded) a section 75(2)(o) consideration rather than a matter going to valuation.
The only and best evidence before the Court about the value of the father’s superannuation entitlement is the evidence of Mr S. Accordingly, the value at item 30 should be $1,129,048.
Having regard to all of the above, the final balance sheet will be:
| Assets | |||
| Ownership | Description | Value | |
| 1 | J | Property S | 630,000 |
| 2 | J | Property E | 750,000 |
| 3 | M | Property L | 530,000 |
| 4 | F | (omitted) bank account | E 6000 |
| 5 | F | (omitted) Managed Fund | 27,000 |
| 6 | F | (omitted) Shares | E 11,001 |
| 7 | F | (omitted) Shares | E 22,146 |
| 8 | F | (omitted) Shares | E 1,927 |
| 9 | F | (omitted) Shares | E 8,793 |
| 10 | F | Subaru (omitted) motor vehicle | 6,000 |
| 11 | F | Motorbike | E 600 |
| 12 | J | Household furniture & contents in Property S property | 5,000 |
| 13 | M | Household furniture & contents in mother’s possession | 500 |
| 14 | M | Toyota (omitted) motor vehicle | 5,000 |
| 15 | M | (omitted) Bank term deposit (omitted) | 300,000 |
| 16 | M | (omitted) bank account (omitted) | 2,198 |
| 17 | M | (omitted) Bank Account (omitted) | 50,001 |
| 18 | M | (omitted) shares (omitted) | 60,532 |
| 19 | M | Monies owed to the mother from the mother’s mother | 120,000 |
| Total | $2,536,698 | ||
| Liabilities | |||
| 23 | F | (omitted) investment loan | 74,540 |
| 26 | M | Tax payable for 2012/2013 | E 51,855 |
| 27 | M | PAYG liability for 2012/2013 | 3,174 |
| 28 | F | Father’s PAYG debt | 2,000 |
| Total | $131,569 | ||
Net non-superannuation pool $2,405,129
| Superannuation | |||
| 29 | M | (omitted) Bank Super | 1,445,982 |
| 30 | F | (omitted) Superannuation Scheme | 1,129,048 |
| 31 | F | (omitted) Super Plan | 37,000 |
| Total superannuation pool | $2,612,030 | ||
Approach to alteration of property interests
It is convenient to deal with this issue at this particular point in the reasons. Mr Harper, on behalf of the mother, submitted that the present case was one where the High Court’s decision in Stanford had a “real practical application” (para.77 written submissions) because the parents had not conducted their financial affairs on some shared expectation of community of property.
He submits that the evidence indicates that not only did the parents bring their own property into the marriage, but each was at pains to maintain separate finances and where they did acquire joint property they did so clearly evidencing an intention not to own the property jointly but equally. He submits, therefore, that the existing ownership of the property of the parties reflects the arrangements made by them, as well as their expectations. Thus on this approach, each would retain their existing superannuation entitlements and the real estate would simply be divided equally between them.
That the child is to spend time with the Mother as follows:
a)in the event that the child is not living with the Mother on Mother's Day, the child is to spend time with the Mother from 5:00 pm on the Saturday before Mother's Day until 5:00 pm on Mother's Day;
b)in the event that the child is not living with the Mother on the child's birthday, the child is to spend time with the Mother from 3:00 pm until 6:00 pm if on a school day and from 10:00 am until 2:00 pm if the child's birthday falls on a non-school day;
c)in the event that the child is not living with the Mother on the Mother's birthday, from 3:00 pm until 8:00 pm on the Mother's birthday if on a school day and from 10:00 am until 4:00 pm on the Mother's birthday if on a non-school day.
Unless otherwise expressly stated in these Orders or by agreement in writing, changeovers (where changeovers do not take place at the child's school) are to occur at the McDonald's Restaurant (omitted).
Order 9(a) is suspended during all NSW school holiday periods and shall recommence on the first Friday of each school term.
That each parent be entitled to attend all events at which the child is present that allow for parental attendance or participation, including but not limited to:-
a)sporting fixtures;
b)extra-curricular activities;
c)school functions and events; and
d)the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at that activity, including the child’s transportation to and from the event unless otherwise agreed upon between the parents.
The Mother is to keep the Father advised of:-
a)any serious medical problems or illnesses suffered by the child whilst in her care;
b)any occasion that the child is due to be hospitalised or has been hospitalised;
c)any medication that has been prescribed for the child that will need to be taken during any period that the child is due to spend time with the father;
d)details of any appointments made with any Treating Practitioner for the child;
e)any changes to her residential address and particulars of any other person who may be residing with the child from time to time; and
f)any change to her telephone contact number and E-Mail address.
The Father is to keep the Mother advised of:-
a)any serious medical problems or illnesses suffered by the child whilst in his care;
b)any occasion that the child is due to be hospitalised or has been hospitalised;
c)any medication that has been prescribed for the child,
d)any changes to his residential address and particulars of any other person who may be residing with the child from time to time; and
e)any change to his telephone contact number and E-Mail address.
The Mother and Father are to communicate via email (except in the case of an emergency which may be by SMS) so as to exchange information on any matters relevant to the child’s care, welfare or development and both parties are restrained by injunction from abusing, belittling, rebuking, or otherwise denigrating the other parent (or a member of the other parent’s household) in their communications with each other.
For the purpose of the preceding Order, the Mother’s email address is (omitted) unless the Father is otherwise advised in writing by the Mother or on the Mother’s behalf and the Father’s email address is (omitted) unless the Mother is otherwise advised in writing by the Father or on the Father’s behalf.
The Mother is hereby authorised to release a copy of Dr P's Report dated 2 May 2013 to the child's Counsellor Ms F.
Unless otherwise agreed to in writing, the Mother and Father are to ensure that the child continues to attend upon her Counsellor Ms F as recommended by Ms F.
Each parent is restrained from making any critical or derogatory remarks in relation to the other parent in the presence or within hearing of the child.
Each parent is to use his or her best endeavours to prevent any third party from making any critical or derogatory remarks in relation to the other parent in the presence or within hearing of the child.
The Father is restrained by injunction from approaching or entering upon any premises at which the Mother may from time to time reside or work.
Schedule Two
Chronology
| DATE | EVENT | SOURCE |
| (omitted) 1960 | Father is born | |
| (omitted) 1961 | Mother is born | |
| In or around 1979 | Father is employed as a (omitted) | P 7 #F |
| (omitted) 1988 | Mother commences employment at (omitted). | P 9 #M |
| (omitted) 1993 | Parties meet | P 4 #M |
| July 1996 | Parties begin living together | P 4 #M P 3 #F |
| (omitted) 1996 | Parties marry | |
| In or around 1998 | Mother says to the Father "I was sexually abused from the age of 5 – 12 by my mother's brother". | P 75 #F |
| May 2001 | Father is placed on stress leave from the (employer omitted) | P 7 #F |
| (omitted) 2001 | X born | |
| August 2001 until August 2002 | Mother is on Maternity Leave | P 8 #F |
| August 2002 | Mother returns to full time work as a (omitted). She leaves home at 6:30 am and returns at approximately 7:00 pm, 5 days per week. Quite often towards the end of the financial year she would not return home until at least 8:30pm | P 9 (c) #F |
| August 2002 – October 2005 | Mother works from home 1 day each month. Mother cares for X on these occasions. | P 16 #M |
| August 2002 – January 2007 | X stays with the Maternal Grandparents Wednesday morning until Thursday evening in 1 week and then with the Paternal Grandparents Wednesday morning until Thursday evening in the alternate week. | P 12 #M |
| After August 2004 | X attends preschool each Monday at (omitted) and each Tuesday at (omitted) from 9:00 am until 3:00 pm. X also attends play group each Friday from 9:00 am until 12:00 pm. | P 14 #M |
| April 2005 | Father is medically discharged from the (employer omitted). | P 10 #M |
| In or around April 2005 | Father is declared medically unfit to work and is placed on a pension. Father asserts that since this time, he has been available for X the whole time of X's life because he has not been employed | P 10 #F P 11 #F |
| 2007 | X commences kindergarten at (omitted) Public School. | P 7 #M |
| October 2009 | Mother has a romantic liaison with Mr B | P 138 #M |
| December 2009 | Mother accepts voluntary redundancy from her role as (omitted) at (employer omitted). | P 9 #M |
| Before March 2010 | Father asserts that for a number of years before separation, the Mother had been seeing a local nurse counsellor. Mother says to the Father words to the effect, "I have been bullied at work by 3 senior executives and I am a victim. I want to leave a paper trail for later when I intend to sue (“employer omitted)". | P 77 #F |
| March 2010 | Mother commences relationship with Mr B. | P 138 #M |
| (omitted) March 2010 | Mother receives a text message from the Father "Leave my luvvy alone u married slut" | P 139 #M |
| (omitted) March 2010 | Parties separate. After separation, Mother moves to rental accommodation at (omitted). X remains living with the Father in the family home at Property S. | P 4 #F P 20-24 #M |
| March 2010 until July 2010 | Father maintains that the Mother has irregular contact with X because she is staying at her boyfriend's home. X spends each alternate weekend with her Mother from after school Friday until before school Monday and from after school Wednesday until approximately 8:30 pm. | P 12 #F P 16 #F |
| After March 2010 | Since separation Mother has regularly tried to engage in conversations in relation to suicide and murder suicides. Father does not engage with her on these topics. | Para 78 #F |
| (omitted) March – (omitted) September 2010 | X spends a total of 46 of 158 nights with the Mother. The arrangements are managed by the Father on a day to day basis. The overnight times mostly coincide with weekends and school holiday periods. During this time the Father repeatedly says to the Mother "it will be too disruptive for X if she stays with you during the week". The arrangements are managed by father on day to day basis. The Mother finds it difficult to plan her time with X. | P 22 #M |
| March – September 2010 | On three separate occasions Father says to the Mother that he might as well go down stairs and blow his brains out. Mother understands he is referring to the garage downstairs where he stores his guns. Mother tells Dr A. | P 49 #M |
| After March 2010 | X mentions to her Mother that the Father puts bath oil on her when they are in the shower numerous times. | P 93 M |
| April 2010 | Mother contacts the Family Relationships Centre to arrange for a FDR. | P 25 #M |
| (omitted) April 2010 | Mother receives a text message stating "has he asked you for anal yet?" | P 140 #M |
| (omitted) April 2010 | Mother receives a text message from a public payphone stating "hey you cunt I fucked (omitted) tonight you didn't". | P 141 #M |
| (omitted) April 2010 | Father kicks the Mother in her backside. X is standing at the bottom of the stairs. | P 144 #M |
| May 2010 | Mother shoves Father with open hands on the chest. | P 95 (a) #F |
| In or around May 2010 | The Mother says to the Father that she wants to return to the marriage and withdraw the AVO. | P 88 #F |
| (omitted) May 2010 | Father calls the Mother on her mobile while the Mother is at Mr B’s home. The Father asks where she is. She tells him she is at home and the Father says to her "Are you sure?". | P 157 #M |
| (omitted) May 2010 | Mother is unable to enter her home through the front door. Superglue or some other form of adhesive has been inserted into the lock. | P 145 #M |
| (omitted) May 2010 | A book on (omitted) is removed from the Mother's car. No signs of forced entry. | P 146 #M |
| (omitted) May 2010 | Mother say to the Father "I am entitled to joint custody of X. She wants to spend more time with me. If you do not agree I will take action". Father appears to become angry and locks the door of the family home. The Father shouts at the Mother for some time. The Mother does not leave until the Father calms down. | P 26 #M |
| (omitted) May 2010 | Mother's digital camera is stolen from her car. No signs of forced entry | P 147 #M |
| (omitted) May 2010 | Father says to the Mother "I won't agree to a Parenting Plan before visiting the mediation people. X needs stability for the time being and cannot stay with you during the week". | P 28 #M |
| (omitted) May 2010 | Mother attends upon her Doctor and sees the Father outside. She notices that one of her tyres is deflated and the other 3 are partially deflated. | P 142 #M |
| (omitted) May 2010 | Mother receives a text message stating "who is luvvy with tonight? Not you". | P 148 #M |
| (omitted) May 2010 | Mother attends the family home to sign some paper work. The Mother and Father argue. The Father screams at the Mother and throws her car keys. X is inside the house. | P 149 #M |
| (omitted) May 2010 | Mother makes a report to the police. | P 150 #M |
| (omitted) May 2010 | Police apply for an AVO. | P 150 Annexure "Z" #M |
| May 2010 – June 2010 | Mother goes to (country omitted) for a holiday. | P 151 #M |
| (omitted) May 2010 | Mother telephones the Father from (country omitted) on several occasions. She is often yelling, crying uncontrollably and screaming hysterically. | P 21 #F P 84 #F |
| (omitted) June 2010 | Upon Mother's return from (country omitted), she discovers that somebody has entered the interior of her unit and garage whilst away and her camera is back in her car which is in the garage. Some of her underwear is missing from her drawers and somebody has urinated in her toilet and has left the toilet lid up. While Mother is in (country omitted), she telephones the Father's mobile and landline each day to speak with X. Her calls are not answered. | P 151 #M |
| In or around early June 2010 | Upon Mothers return from (country omitted), the Mother removes X from an indoor rock climbing venue without informing the father. | P 22 #F |
| After June 2010 | Father has a conversation with the Mother. The Mother says to the Father "I have had a massive fight with my boyfriend the whole time I actually away that is why I was hysterical on the phone. He treated me very badly and has been very abusive and we have decided to break up". | P 87 #F |
| In or around early June 2010 | Mother takes out an Apprehended Violence Order against the Father and then withdraws it. She says to the Father "I want to give our marriage another try". | P 23 #F |
| After June 2010 | The Mother says to the Father "I want to return to the marriage and I will attend the court and withdraw the AVO". | P 88 #F |
| June 2010 | Mother pushes and punches the Father in the chest and attempts to kick him. | P 95(b) #F |
| June 2010 | Mother kicks the Father, pinches him and attempts to head butt him. He suffers injury. | P 95(c) #F |
| (omitted) June 2010 | AVO application is withdrawn. Over coffee Mother says to the Father " I want to give our marriage another try" | P 89 #F |
| (omitted) June 2010 | Father agrees to undertakings at Wollongong Local Court instead of an AVO. | P 152 Annexure "P2" #M |
| (omitted) June 2010 | The Father tells the Mother that she can only have X on weekends until formal arrangements are put in place. | P 32 #M |
| (omitted) June 2010 | Mother attends the family home because she has not been able to reach the Father on his landline or mobile for the previous 3 days. The Father's Mother (Ms B) answers the door. X is behind Ms B and tries to come towards the Mother. Ms B physically restrains X and blocks X from getting to the door. The Mother observes the phone being off the hook. Mother tells her that she has been trying to call. Ms B tells her that she doesn’t understand how the phone works. The Mother later finds out that the Father has been away hunting. | M P #33 |
| (omitted) June 2010 | The Mother takes X to see a band at the (omitted). The Father screams at her and he head buts her. The Mother tells her general practitioner Dr A at (omitted) Medical Practice of this incident when she next sees her. | P 34 #M |
| July 2010 | Mother receives a phone call from Mr D ((omitted) that married the parents). Mr D tells her that after running into the Father at the supermarket he wanted to phone and check to see if she was okay because he was concerned about the Father's behaviour. The Mother arranges to meet with Mr D to discuss issues about the Father. | P 35 #M |
| July 2010 until July 2010 | Father's travels to (country omitted). X travels with the Father. | P 207(a) #M |
| August 2010 | Mother attempts to strike Father with a boot which she has removed. | P 95(d) #F |
| (omitted) August 2010 | Father says to Mother "I fully understand how people kill their kids and then themselves." | P 36 #M |
| (omitted) August 2010 | Parties participate in FDR at the FRC in (omitted). | P 37 #M |
| August 2010 | The Father reluctantly agrees for X to spend equal time with the Mother. The pattern agreed is from Wednesday to Sunday in 1 week and from Wednesday to Thursday in the second week. This is disputed by the mother who maintains that this agreement was negotiated at the meeting with Mr D on 1 September 2010; not in August 2010. | P 17 #F |
| August 2010 | After the parties participate in FDR the Father says to the Mother "I will not agree to anything because I know that there is a financial implication to me agreeing to a Parenting Plan". Mother tells the Father that she does not put a price on having access to X. | P 38 #M |
| September 2010 | Mother commences attending upon Ms R, Psychologist | P 210 #M |
| (omitted) September 2010 | Father and Mother meet with Mr D. This is their 3rd meeting. The Mother agrees to attempt to reconcile with the Father and the Father agrees to follow the Parenting Plan negotiated at the FDR in August. | P 39 #M |
| (omitted) September 2010 until (omitted) September 2010 | Mother becomes increasingly concerned about the Father's behaviour. | P 42 #M |
| (omitted) September 2010 | The parties attempt to follow a Parenting Plan which provides that X spends equal time with each parent. | P 40 #M & P 41 Annexure "A1" #M |
| September 2010 until November 2012 | Arrangements for X's care are in accordance with the Parenting Plan the parties negotiate in August 2010. | P 59 #M |
| (omitted) September 2010 | Mother is concerned about the Father's "very depressed mood". She speaks to Dr A of (omitted) Medical Practice about this. The doctor recommends that the Mother contacts the Father's psychiatrist. Mother understands this to be Dr K. She contacts this office and is told that the Father is not a patient. | P 43 #M |
| (omitted) September 2010 | Mother attends a Trivia Night, the Father is also there and as she is leaving he abuses her and attempts to restrain her. | P 44 #M |
| (omitted) September 2010 | Father tells the Mother that he destroyed her wedding dress after he was served with the AVO. | P 45 #M |
| (omitted) September 2010 | Mother phones Mr D and says to him. "I am really concerned about Mr Dempsey's behaviour". | P 46 #M |
| (omitted) September 2010 | Mother speaks with Mr D. She says to him, "It's over with Mr Dempsey but I don't want to tell him because I am concerned about his reaction. I don't want the arrangements for X to revert back to how they were previously". He suggests to the Mother to wait to tell the Father until she returns from her holiday in (omitted) with X. | P 47 #M |
| (omitted) September 2010 | The Father follows the Mother to (omitted). She tells the Father that the relationship is over. | P 48 #M |
| (omitted) September 2010 | Mother alleges that the Father follows her and observes her with her partner | P 158 #M |
| October 2010 | The Father returns 3 garbage bags of clothes to the Mother. The Mother discovers that clothes are slashed. | P 153 #M |
| November 2010 | Mother tries to physically force herself into the Father's home. | P 95(e) #F |
| November 2010 | Mother shoves the Father in the back. | P 95(f) #F |
| (omitted) November 2010 | Mother parks her car at (omitted) railway station and travels to Sydney. Upon return to her car, Mother sees the Father sitting in his car which is parked next to hers. The Mother notices the Father is going through the notes she had prepared for the financial settlement. When she had left that morning, the notes were stored in the boot of her car. The Mother asks the Father what he is doing and he says, "I am looking for any indication that we could get back together' The Mother becomes upset and screams at the Father. When the Mother asks the Father how he knew her car would be at the railways station, the Father says to her, 'I was dropping a friend at the railway and noticed your car.' | P 159 #M |
| (omitted) November 2010 | The Father returns a bag of the Mother's belongings. The contents include broken picture frames. The frames had wedding pictures which were removed. The Mother later finds these ripped up. | P 154 #M |
| (omitted) December 2010 | X is with the Father. Mother repeatedly tries to reach X by telephone. She leaves messages on the family home landline and on the Father's mobile. Mother does not get to speak to X. | P 51 #M |
| End of 2010 | X says to the Mother "I want to talk to someone to tell them my story". | P 61 #M |
| In or around 2010 | Mother says to Father "Mr B is an alcoholic but a functioning one". | P 43 #F |
| In or around 2010 | X says to Father about Mr B "Dad I don't really like him". | P 46 #F |
| January 2011 | The Father is served with an Application AVO. After considerable expense, it is concluded in or around November 2011 by the making of an Order. | P 91 #F |
| January 2011 | Father also charged under s.9 of the Surveillance Devices Act 2007. On Appeal Father receives a s.10 of the Crimes (Sentencing Procedure) Act. The cost of the Father dealing with these matters is extreme and imposes a harsh burden on the Father. | P 91 #F |
| (omitted) January 2011 | Dr A refers X to Ms F, clinical psychologist at the Child and Adolescent Psychology Service (omitted). | P 62 Annexure "E1" #M |
| After January 2011 | Within the first 2 months attending upon Ms F. Ms F says to the Mother "I am teaching X strategies and techniques to deal with Mr Dempsey's behaviour including his outbursts so as to protect X from his abuse". | P 64 #M |
| (omitted) January 2011 | Mother returns home after being away for 6 days. She notices all of her paperwork relating to the property settlement is missing. The paperwork was in a brief case beside her bed. Mother stays at Mr B's for the night. | P 164 #M |
| (omitted) January 2011 | Mother comes to her home with Mr B. They search the unit and are unable to locate the missing documents. The Mother reports the matter to the Police. Police create Event Number (omitted). | P 164 #M |
| (omitted) January 2011 | Mother walks into her bedroom and finds her brief case with her property documents beside her bed. There is no sign of forced entry. | P 165 #M |
| (omitted) January 2011 | Mother and Mr B take the Mother's car to an Auto Electrician. A tracking device is discovered. They drive to (omitted) Police Station. | P 166 #M |
| (omitted) January 2011 | Mother provides a statement to (omitted) Police. | P 167 Annexure "Q2" #M |
| (omitted) January 2011 | X is due to return to her Mother. On this day the Father is served with an AVO. The Police also search the Father's home and remove the Father's computer. They remove 11 guns from the family home and from the paternal grandmother's home in (omitted). X is with the Father when they travel to (omitted). | P 169 #M |
| (omitted) January 2011 | X is not returned to the Mother. The Mother seeks assistance from her solicitors. | P 170 #M |
| (omitted) January 2011 | X is returned to the Mother with the assistance of mutual friends. | P 173 #M |
| January 2011 | Father collects X from school. X tells him she is not wearing the new shoes her Mother bought her because the new shoes are to only be worn on days that her Mother has her. X says to the Father "I feel embarrassed because some of the children have teased me about the shoes". Father buys X a new pair of shoes and consults a podiatrist in relation to X's rolling of her feet. The podiatrist supplies orthotics which the Father inserts into X's shoes. | P 41 #F |
| (omitted) February 2011 | Interim AVO made. | P 174 Annexure "U2" #M |
| (omitted) February 2011 until (omitted) February 2011 | Father travels to (country omitted). | P 207b #M |
| (omitted) February 2011 | Father goes overseas and does not tell the Mother. He leaves X with the Paternal Grandmother Ms B. | P 52 #M |
| (omitted) February 2011 | Mother is informed by the Paternal Grandmother Ms B that the Father is overseas and that X is with her and that she will not be spending time with the Mother. Correspondence is sent to the Father's Solicitor. | P 52 Annexure "B" #M |
| (omitted) February 2011 | Mother's solicitor writes to the Father's solicitor requesting that X participate in the Supporting Children after Separation run by Unifam through the FRC (omitted). | P52 Annexure "B1" #M |
| (omitted) February 2011 | Parties attend further mediation with Mr D. The mediation is terminated. Mr D says "I am terminating this mediation; Mr Dempsey is not prepared and has come with the wrong attitude". | P 54 #M |
| (omitted) March 2011 | Mother is served with an Application for an AVO naming the Father as the protected person. | P 175 Annexure "V2" #M |
| In or around March 2011 | X says to the Father "Mummy is taking me to a new (omitted) in (country omitted)". X appears very excited and looking forward to the trip. Mother does not advise Father of travel plans. | P 25 #F |
| In or around April 2011 | Mother says to the Father "You are looking after X for a month". X does not travel with the Mother and X appears extremely disappointed. After X recovers, she appears happy and relaxed in the Father's company for the balance of the time. X says to the Father "I would rather be with you". | P 26 #F |
| (omitted) April 2011 until (omitted) May 2011 | Mother travels to (country omitted). | P 208(b) #M |
| June 2011 | The Mother contacts the FRC to arrange counselling for X. She is later informed that the Father does not consent to counselling. She is provided with correspondence dated (omitted) June 2011. | P 76 Annexure "N1" #M |
| (omitted) August 2011 | Mother participates in the Talking to Kids about Separation Program at the Family Relationships Centre in (omitted). | P 77 #M |
| (omitted) August 2011 | X says to her Mother "Mum, I don't like it when Dad makes me stay in bed until 8 in the morning. I wake up earlier and get up but he makes me stay in bed with him. I don't want this day to end, I don't want to have to go back to Dad's". | P 91 #M |
| From September 2011 | Mother asserts that a pattern develops for X where each time she has to go to her Father's that on the night before she says to her "I am going to miss you. I don't want to go, I want to stay with you" and "I don't want to go to Dad's. It takes a whole day to get over leaving you". This pattern continues until Interim Orders are made. | P 79 #M |
| After September 2011 | X tells her Mother that she still sleeps in the bed with her Father. | P 92 #M |
| (omitted) September 2011 | Parties Divorce becomes final | P 5 #M |
| (omitted) October until (omitted) October 2011 | The Mother travels to (country omitted). | P 208 (c) #M |
| (omitted) November 2011 | Father is sentenced at Wollongong Local Court in relation to a charge under s.9 of the Surveillance Devices Act 2007 "Prohibition on installation, use and maintenance of tacking devices" Police do not proceed with charge under s.13 of the Crimes (domestic and personal violence) Act 2007 "stalking or intimidation with intend to cause fear or physical or mental harm". The Father enters a guilty plea to the charge. The Father withdraws his personal application for an Apprehended Domestic Violence Order in relation to the Mother. | P 178 & 178 #M |
| The Father is convicted and fined $2,000.00. | P 179 Annexure "X2" #M | |
| (omitted) November 2011 | Final AVO made protecting the Mother. | P 18 Annexure "Y2" #M |
| Late 2011 | X says to the Mother "I am sick of Dad telling me that you are a horrible person. When I turn 15 I am going to tell him off". | P 80 #M |
| (omitted) December 2011 until (omitted) January 2012 | Father travels to (country omitted). X travels with her Father. | P 207(c) #M |
| (omitted) January 2012 | Mother returns home after being away for 6 days. She notices that all her paperwork relating to the property settlement is missing. | P 164 #M |
| (omitted) January 2012 | Mother reports to the Police that her property paperwork is missing | P 164 #M |
| (omitted) February 2012 | Father's charge is listed for Appeal in the District Court. Father's charge is dismissed under s. 10 of the Crimes (Sentencing procedure) Act. | P 181 Annexure "Z2" #M |
| 16 March 2012 | X's Counsellor Ms F says to the Mother "You need to tell X your routine when you are leaving her so that she won't feel anxious when she is leaving you". | P 66 #M |
| (omitted) April 2012 | X returns to her Mother's care after spending Easter Sunday with her Father. X is sick during this time. She throws up into a bucket but misses. She tells her Mother, "Dad was really mad at me... he said the F word to me 100 times". | P 97 #M |
| (omitted) April 2012 | X cries the whole way on the way to school. She says to her Mother "I don't want to go back with Dad". | P 83 #M |
| (omitted) May 2012 | Mother contacts the Domestic Violence Unit at (omitted) Police Station about the Father intimidating the Mother at the (omitted). | P 185 #M |
| (omitted) May 2012 | X's counsellor Ms F says to the Mother "I will be very surprised if X does not end up with an eating disorder as a teenager given the comments her Father makes to her about being a 'fatty' or a 'guts". | P 67 #M |
| (omitted) May 2012 | X says to her Mother "Why do men lick women's private parts?" When questioned by her Mother, X says "Dad's special photos on the computer. I see Dad looking at them". | P 89 #M |
| (omitted) May 2012 | Mother tells her psychologist, Ms R about her conversation with X on (omitted) May 2012.She advises her to make a report to DOCS. | P 90 #M |
| (omitted) May 2012 | The Mother's solicitor writes to the Father's solicitor raising concerns that X has seen pornographic photos on her Father's computer, concerns that X may be sleeping in the Father's bed and concerns that the Father is regularly showering with X. | P 94 Annexure "O1" #M |
| Mid 2012 until November 2012 | Mother notices X's eczema to flare up more frequently. During this same period. X is wetting her bed during the night approximately once per fortnight. | P 96 #M |
| (omitted) June 2012 | On the way to changeover, X tells her Mother that she does not want to go to (country omitted) with her Father because she does not want to see (omitted), her cousin because she is mean to her and there will be nobody to look after her at the party because everyone will be drunk. | P 84 #M |
| (omitted) June 2012 until (omitted) June 2012 | Father travels to (country omitted). X travels with her Father. | P 207(d) #M |
| (omitted) June 2012 | Mother speaks with X's teacher Ms A at a Parent Teacher Interview. Ms A tells her that X is only upset on the mornings when the Mother drops her off. | P 87 #M |
| June 2012 | X does not attend any soccer games during periods she spends time with her Mother. She also does not attend soccer training. | P 67 #F |
| (omitted) July 2012 | On the way to changeover, X says to her Mother "I feel sick and overwhelmed". She also says "I love you and I don’t want to go back to Dad's". | P 85 #M |
| (omitted) August 2012 | On the way to the Mother dropping X off to her Father, X says to the Mother "Mum, I am going to miss you. I never miss Dad when I am away from him". X cries on and off during the trip and the Mother sees her continuing to cry after she leaves her with the Father. | P 100 #M |
| (omitted) August 2012 | Mother files Initiating Application seeking orders for shared parental responsibility. She also seeks orders for the child to live with her and to spend time with the Father from after school Friday until the commencement of school Monday in one week and then from after school Thursday until the commencement of school Friday in the alternate week. The Mother also proposes that the child spend half of all the school holiday periods with the Father. She proposes the same Interim Orders. | P 55 #M |
| (omitted) August 2012 | Mother files Notice of Child Abuse, Family Violence or Risk of Family Violence. | |
| (omitted) September 2012 | Father files Response seeking Orders for shared parental responsibility. He also seeks orders for the chid to live with him and to spend time with the Mother each alternate week from after school Friday until before school Monday and from after school Wednesday until 8.30pm each week. The Father also proposes that the child spend half of each school holiday period with the Mother. | ?????? |
| (omitted) September 2012 | X is ill and has a day off school. The maternal grandmother spends the day with X because X is due to spend time with her Father that afternoon, her Mother takes her to the school on the way X says "I want to stay with you longer". After the Mother and maternal grandmother drop X off the Mother sees X crying. | P 101 #M |
| 17 September 2012 | Matter is listed and the parties are ordered to attend a Child Inclusive Conference on 24 September 2012 at 9:00 am. The parties are directed to facilitate the attendance of X. | |
| (omitted) September 2012 until (omitted) September 2012 | X attends a school camp. X's eczema flares up during this time. She tells her Mother that her Father didn’t pack any of her oils or creams to take to camp. | P 102 #M |
| 24 September 2012 | Parties attend upon Family Consultant Ms O. X also participates. | |
| 28 September 2012 | Order made for an ICL. | |
| (omitted) October 2012 | X is due to go to her Father's at 6:00 pm. From about 4:30 pm X becomes increasingly upset. She says to her Mother "I don't want to go to Dad's. I will miss you too much and I love you". | P 103 #M |
| (omitted)October 2012 until (omitted) October 2012 | Mother travels to (country omitted). | P 208 (d) #M |
| (omitted) October 2012 | X tells her Mother that her Father asks her what she wants to do regarding the time she spends with both parents. X says she tells her Father that she wants to spend more time with her Mother because of the puberty thing. | P 104 #M |
| (omitted) October 2012 | Mother makes a statement to (omitted) Police. In this statement at Paragraph 4, Mother reports finding a plastic bag containing some green leaf in a front pocket and another plastic bag with green leaf in the bag. Mother suspects the green leaf is marijuana and that someone has placed it there to cause problems for her when she travels to (country omitted). | P 187 #M Annexure "A3" |
| (omitted) October 2012 | The Mother collects X from school. X is upset. She tells her Mother that he Father has spoken to his friend Ms T about being brought up by her Dad and apparently the Father told X that Ms T was okay with the puberty stuff. X is upset by this. | P 105 #M |
| 12 November 2012 | Father files Amended Response. Father seeks final orders for shared parental responsibility. He also seeks orders for the child to live with him and to spend time with the mother from after school Friday until before school Monday each alternate week and from after school Wednesday until 8.30pm each Wednesday. | |
| 13 November 2012 | Interim Orders are made by consent which provide for X to live with her Mother and to spend each alternate weekend with her Father from after school Friday until the commencement of school Tuesday commencing on 16 November 2012. In the alternate week X is to spend time with her Father from the conclusion of school Monday until the commencement of school Tuesday, commencing on 26 November 2012. In addition, Orders are made for X to spend half of all NSW School Holidays with the Father. | |
| 23 November 2012 | Ms F contacts the Mother to ask if X can attend an appointment with her and the Father. X refuses and tells her Mother that when her Father drove her to meet the ICL that he kept going on in the car about the break up. | P 106 #M |
| (omitted) November 2012 | Mother is contacted by (omitted) Police tells Mother that he had the contents of the 2 bags analysed and tested for fingerprints. The leaf was marijuana but no fingerprints could be found. The Detective tells the mother he has a theory as to how the bags got there but there was clearly no evidence. He tells her he will have a chat with the Father. | P 188 #M |
| (omitted) November 2012 | (omitted) Police telephones the Mother and tells her that the Father seemed to be expecting him and that he had already obtained legal advice. | P 189 #M |
| During 2012 | There are a number of occasions when X says to the Mother "Dad doesn't give me any privacy, he even walks in on me when I am in on the toilet. I am worried what will happen when I get my things". | P 88 #M |
| During 2012 | X repeatedly says to the Mother "Dad is not a good person. He calls me a liar and throws my things out and says bad things about you. I don’t like it". | P 99 #M |
| 4 December 2012 | The parties enter into Interim Consent Orders for the appointment of Dr P as the Single Expert. | |
| (omitted) December 2012 | Mother takes X for a holiday. | P 107 #M |
| December 2012 | Mother takes X on a holiday to the (omitted) with Mr B, Mr B's uncle and his cousins. | P 220 #M |
| (omitted) February 2013 | The Mother and X attend upon Dr P. The Mother is asked to return on another day because the Father does not attend. X tells her Mother that she doesn’t want to have to come back with her Father. She asks if her Mother can bring her. The Mother advises Dr P. | P 117 #M |
| (omitted) March 2013 | Further appointments are scheduled with Dr P. Prior to this, parties exchange correspondence regarding whether or not the Father or Mother should take X to the appointment with Dr P. X attends the appointment with her Father. X travels home with her Mother. | P 129 #M |
| (omitted) May 2013 | Expert Report of Dr P released to the parties. | |
| (omitted) May 2013 | X says to the Mother "Dad asked me what did I want? Did I want the same arrangements or just one of the Monday's.... I do not want to be honest with him because he will get upset or cranky with me". X tells her Mother that she avoids the conversation because she didn’t want her Father to hit her. The Mother reassures X that her Father would not hit her. | P 191(a) #M |
| 22 May 2013 | The matter is set down for a Hearing allocating 3 days plus on parenting and property matters commencing on 15 October 2013. | |
| (omitted) May 2013 | X is very upset because her Father has not submitted an application form for her entitled "Writing for Fun". The Mother tells her that she will sort it out. | P 191(b) #M |
| (omitted) June 2013 | X tells her Mother that she is upset with her Father because her Father has shown a text from the Mother to Ms P. | P 191(c) #M |
| (omitted) July 2013 | A house Mother has purchased jointly with Mr B settles on this day. The house is at Property L. | P 212 #M |
| (omitted) July 2013 | Matter is listed and trial directions are made. Hearing dates are confirmed. | |
| (omitted) July 2013 | Father delivers X's passport to DGB Lawyers. | P 209 #M |
| (omitted) July 2013 | X says to the Father "I don't want to stop seeing you every Monday night. I do not want this to happen". | P 50 #F |
| (omitted) July 2013 | Father says to X "would you like to go skiing in (country omitted) and visit our family over there?". X says to the Father "that would be really great. It really will be fun". | P 99 #F |
| (omitted) July 2013 | Father sees X's psychologist to ascertain X's progress. X's psychologist says to the Father "please ring me after each of X's visits. Father says to the Psychologist "where do you think this is going for her?". Psychologist says to the Father "I see my role as easing her way into high school". | P 35 #F |
| (omitted) July 2013 | Mother collects X from soccer training. When she gets in the car she is upset. She says to her Mother "Dad just keeps asking me about (country omitted) and I worried that he will just take me on the weekend when he has me". | P 194 #M |
| In or around August 2013 | X says to the Father "I want to play soccer with my team next year". | P 69 #F |
| (omitted) August 2013 | When the Mother drops X off at school X cries and says "Dad will just keep asking me about the trip from the time he picks me up from school until I go to (omitted) Camp at 7:30 pm... I hate Dad". | P 199(d) #M |
| (omitted) August 2013 | X tells her Mother that she is upset with her Father after he met with Ms F. The Father is upset with X about what she had said to Ms F. In particular that she had told Ms F that her grandmother called her a "piggie". X is worried that her grandmother will start screaming at her. X also tells her Mother that her Father went on about (country omitted) from Sunday night until that morning. She says that she did not want to see him. | P191(e) #M |
| (omitted) August 2013 | Mother takes her to her soccer game at (omitted) at 10.30 am. She discovers that the game is already at half time and that they are one player down. When she enquires as to why other parents knew of the change, she is told that they had received a text from the Father the previous night regarding the change. | P 195 #M |
| After the soccer game X runs to the car and says to her Mother "I don't want to be trapped by Dad". | P 196 #M | |
| (omitted) August 2013 | X tells her Mother that she does not want to go back to her Father's because she does not want to face her grandma. | 191(g) #M |
| (omitted) August 2013 | When Mother collects X from school, X tells her that her Father went on about Court stuff and (country omitted). The Father was disappointed with X because she hadn't told the truth and he knew that she couldn’t because she was being controlled by somebody else. X tells her Mother that she no longer wants to see her Father on Monday's. She also tells her Mother that she is glad to be home and that it is hard to be at Father's when he is so emotional. She says to her Mother "if he is sad he is so hard to be around and when he is angry, he is cranky with me and doesn’t treat me very well. I think Dad is trying to make me feel sorry for him and if he loved me this could all be finalised now but he is just trying to manipulate me". | P 191h #M |
| (omitted) August 2013 | Mother receives letter from (omitted) High School of the Performing Arts advising that X has been accepted and to commence at the school on 29 January 2014. | P 211 #M |
| 17 September 2013 | Father files a Further Amended Response seeking final orders for shared parental responsibility. He also seeks orders for the child to live with the Mother and to spend time with him from after school Friday until before school Tuesday in one week (4 nights) and from after school Monday until before school Tuesday in the alternate week (1 night). He also seeks orders for half of all school holidays at the end of terms 1,2 & 3 and from the 3 January until 17 January each year. | |
| 19 September 2013 | Mother files Amended Initiating Application. The Mother seeks final orders for sole parental responsibility. She also seeks orders for the child live with her and for the child to spend time with her Father from after school Friday until before school Tuesday each alternate week. The mother proposes that the child spend half of all school holidays at the end of terms 1,2 & 3 and from the conclusion of school at the end of term 4 until the 1.30pm 25 December and then from the 8 January until the 18 January each year. |
Schedule Three
Mother’s Property Orders Sought
Property S property
Within forty-two (42) days after the date of this Order the wife is to do all things necessary to transfer all of her interest in the property situate at and known as Property S, New South Wales (hereinafter referred to as "the Property S property") to the husband.
Unless otherwise specified in these Orders from the date of this Order the husband is to be solely responsible for the payment of all expenses due and payable in respect of the Property S property, including, but not limited to, all payments due in relation to the following:
a)Council rates;
b)utility expenses;
c)insurance premiums; and
d)water rates
and the husband will hereby indemnify and keep indemnified the wife in respect of all such payments.
The Property E property
The parties must forthwith do all acts and things to cause the unit situate at and known as Property E, New South Wales (hereinafter referred to as "the Property E property") to be sold by private treaty at the earliest possible date at a price to be agreed upon between the parties.
If the parties are not able to agree on the real estate agent to act in relation to the sale of the Property E property within fourteen (14) days from the date of this Order the wife must forthwith nominate in writing to the husband three (3) potential real estate agents and the husband must select one (1) out of the three (3) nominees and notify the wife of the selection in writing within seven (7) days of receiving the nominations.
If the parties are not able to agree on the solicitor to act in relation to the sale of the Property E property within fourteen (14) days from the date of this Order the wife must forthwith nominate in writing to the husband three (3) potential solicitors and the husband must select one (1) out of the three (3) nominees and notify the wife of the selection in writing within seven (7) days of receiving the nominations.
In the event the Property E property is not sold by private treaty within a period of three (3) months after the date of these Orders and unless otherwise agreed between the parties, the parties must forthwith do all acts and things necessary to cause the Property E property to be sold by public auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing agreement between the parties at a reserve price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee.
In the event the Property E property is listed for sale by public auction the parties must do all acts and things necessary to procure the sale of the property. In particular the parties must:
a)place the property with the auctioneer for sale by public auction at the earliest possible date;
b)execute all documents requested by the auctioneer;
c)instruct the auctioneer that the reserve price, unless otherwise agreed, is to be no less than the value as determined by any valuation;
d)pay to the auctioneer any sums requested for advertising expenses in relation to the auction in equal shares;
e)give such instructions to the solicitor for the preparation of an appropriate Contract and other documents as are necessary for the sale of the property by auction;
f)attend at the auction sale of the property and negotiate with the highest bidder in the event that the reserve price is not reached; and
g)accept the advice of the auctioneer as to the acceptance of a price less than the reserve price.
The parties must do all acts and things necessary to facilitate the sale of the Property E property including, but not limited to, making the key(s) available, allowing inspection of the property at all times requested by the selling agent or the auctioneer and ensuring that the property is in a neat and clean condition at all times of inspection.
If an offer is made to purchase the Property E property during the period the property is listed on the market for sale for private treaty and the parties do not agree as to rejecting or accepting the offer to purchase within seven (7) days after the date the offer to purchase is made the parties must rely on the latest valuation for the property commissioned by the parties jointly.
If the market value of the Property E property as assessed by the valuation:
a)is less than or equal to the offer to purchase the property, the parties must forthwith do all things and sign all documents necessary to accept the offer to purchase;
b)is greater than the offer to purchase, the parties must forthwith do all things and sign all documents necessary to decline the offer to purchase unless the parties otherwise agree in writing to accept the offer to purchase.
Upon the parties accepting an offer to purchase the Property E property or upon the sale of the Property E property by public auction the parties must forthwith do all acts and things necessary to complete the sale of the property and to disburse the proceeds of the said sale in the following manner and priority:
a)payment to the (omitted) Bank (hereinafter referred to as "(omitted) Bank") in the total amount required to effect a discharge of the mortgage to the (omitted) Bank (omitted);
b)payment of agent's commission and advertising expenses and legal expenses in relation to the sale of the Property E property;
c)payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee;
d)payment of the balance then remaining as follows:
i)payment to the wife in such sum calculated so that the wife receives 50% of the net sale of the Property E property as if the payment in 49(a) had not been made (the effect of which is that the husband in fact “pays” that amount from what would otherwise be his 50% share of the net sale proceeds) ;
ii)the balance then remaining to the husband.
From the date of this Order and pending the sale of the Property E property the wife and the husband will equally contribute to the payment of all expenses due and payable in relation to the property, including, but not limited to, all Council rates, strata fees, insurance premiums, water rates, as and when such payments fall due and the wife and the husband will hereby indemnify and keep indemnified each other in respect of her/his half share of such payments.
If either party fails to make payment of his/her share of the expenses payable in relation to the Property E property in accordance with Order 50 herein and the other party pays for his/her share of the expenses the defaulting party is to reimburse the other party for the amount of his/her default from his/her share of the proceeds of sale from the Property E property.
From the date of this Order and pending the sale of the Property E property the wife is to be solely entitled to any proceeds from the rental of the Property E property and each party is to do all acts and things to ensure that the managing real estate agent for the property remits payment of any proceeds from the rental of the property to the wife.
General Orders
As between the parties, and subject to the above Orders, the wife and the husband shall each respectively retain all interest in and entitlements to:
a)all personal property now in his/her respective possession or control;
b)all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively; and
c)all interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
Unless otherwise expressly stated in these Orders each party is to be liable for the payment of any debt incurred in their sole name or jointly with any other person or encumbering any property retained by that party in accordance with these Orders and is to indemnify and keep indemnified the other party in relation thereto.
The parties are to do all things necessary to give effect to these Orders in the time period prescribed.
If either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
The husband is to pay the wife’s costs of and incidental to these proceedings.
Father’s Property Orders Sought
Transfer of Property
That within 21 days of the date of these Orders the parties do all such acts and things and sign all necessary documents to cause the property situate at and known as Property E (hereinafter referred to as “the Property E property”) being the whole of the land more particularly described in Certificate of Title Folio Identified (omitted) to be transferred to the Wife.
That simultaneously with Order 1.1. the Husband do all such acts and things and sign all such documents to discharge his mortgage over his interest as tenant in common in the Property E property.
That within 21 days of the date of these Orders the parties do all such acts and things and sign all necessary documents to cause the property situate at and known as Property S (hereinafter referred to as “the Property S property”) being the whole of the land more particularly described in Certificate of Title Folio Identifier (omitted) to be transferred to the Husband.
Payment Sum
That within 7 days of the date of these Orders the Wife pay to the Husband the sum of $750,000.
Division of Chattels
That unless otherwise specified in the Orders –
a)Each party be solely entitled to the exclusion of the other party to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
Section 106A (Registrar to sign transfer)
In default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Sydney be appointed pursuant to s.106A to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Injunction
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Costs
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Remedies
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Jurisdiction
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