Ambler & Ambler
[2019] FamCA 870
•9 December 2019
FAMILY COURT OF AUSTRALIA
| AMBLER & AMBLER | [2019] FamCA 870 |
| FAMILY LAW – CHILDREN – Parental responsibility –father having sole parental responsibility for children since 2011 – mother having time – mother seeking an order for equal shared parental responsibility and an increase in time – whether an order for the mother to have equal shared parental responsibility and an increase in time in children’s best interests – held, not. FAMILY LAW – PROPERTY – Modest property to be divided – short marriage – two children – majority of financial and non-financial direct and indirect contributions by husband – assets include real and personal property – little evidence adduced in relation to items of property – division of property on the basis of 61.5% to husband 38.5% to wife. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAC, 79, 102NA Transfer of Land Act 1958 (Vic) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Adams v Randall (2011) 46 Fam LR 453 Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 Babcock & Waddell [2019] FamCAFC 129 Bevan & Bevan (2013) 49 Fam LR 387 Blanding v Blanding (2016) 55 Fam LR 218 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Champness & Hanson [2009] FamCAFC 96 Coghlan v Cumberland [1898] 1 Ch 704 Collu v Rinaldo [2010] FamCAFC 53 Commissioner of State Revenue v Kimiora (2016) 309 FLR 277 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Dearman v Dearman (1908) 7 CLR 549 Deutsch v Rodkin & Ors (No 2) [2012] VSC 543 Devriesv Australian National Railways Commission (1993) 177 CLR 472 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Elmi & Munro [2019] FamCAFC 138 Fox v Percy (2003) 214 CLR 118 G & C [2006] FamCA 994 G & G [1985] FLR 894 Galea v Galea (1990) 19 NSWLR 263 Garrety v Steyn [2019] FamCAFC 124 GH v The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3337 (QB) Godfrey & Sanders [2007] FamCA 102 Granada Theatres Ltd v Freehold Investments (Leytonstone) Ltd [1958] 1 WLR 845 Holland v Holland (2017) 57 Fam LR 84 Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269 In the Marriage Mallet (1984) 156 CLR 605 In the Marriage of Ahmad (1994) 18 Fam LR 514 In the Marriage of Bennett (1990) 14 Fam LR 397 In the Marriage of Browne & Green (1999) 25 Fam LR 482 In the Marriage of Clauson (1995) 18 Fam LR 693 In the Marriage of Coghlan (2005) 33 Fam LR 414 In the Marriage of Cordell (1977) 3 Fam LR 11,588 In the Marriage of Dench (1978) 6 Fam LR 105 In the Marriage of Ferraro (1992) 16 Fam LR 1 In the Marriage of Figgins (2002) 29 Fam LR 544 In the Marriage of Fisher (1990) 13 Fam LR 806 In the Marriage of Georgeson (1995) 19 Fam LR 302 In the Marriage of Gill (1984) 9 Fam LR 969 In the Marriage of McLay (1996) 20 Fam LR 239 In the Marriage of McMahon (1995) 19 Fam LR 99 In the Marriage of Mead (1983) 9 Fam LR 193 In the Marriage of Menz (1980) 6 Fam LR 325 In the Marriage of Myerthall (1977) 3 Fam LR 11,324 In the Marriage of P & P (1985) 9 Fam LR 1100 In the Marriage of P (1979) 5 Fam LR 454 In the Marriage of Park (1978) 4 Fam LR 488 In the Marriage of Prestwich (1984) 9 Fam LR 1069 In the Marriage of Scott (1994) 17 Fam LR 420 In the Marriage of Spiteri (2005) 33 Fam LR 109 In the Marriage of Townsend (1994) 18 Fam LR 505 In the Marriage of W (1980) 6 Fam LR 538 In the Marriage of Wardman & Hudson (1978) 5 Fam LR 889 In the Marriage of Waters & Jurek (1995) 20 Fam LR 190 In the Marriage of Waters (1981) 6 Fam LR 871 In the Marriage of Willmore (1988) 12 Fam LR 692 In the Marriage of Zappacosta (1976) 2 Fam LR 11,214 In the Marriage of Zdravkovic (1982) 8 Fam LR 97 In the Marriage of Howes (1981) 7 Fam LR 650 Jones v Hyde (1989) 63 ALJR 349 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Levinge v Director of Custodial Services(1987) 9 NSWLR 546 Lovell v Lovell (1950) 81 CLR 513 M v S (2006) 37 Fam LR 32 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 MRR v GR (2010) 240 CLR 461 Norbis v Norbis (1986) 161 CLR 513 Owners of SS Hontestroom v Owners of SS Sagaporack; SS Hontestroom v SS Durham Castle [1927] AC 37 Palser v Grinling [1948] AC 291 Palumbo & Mandel [2019] FamCAFC 228 Paterson v Paterson (1953) 89 CLR 212 Paxton & Paxton [2016] FCCA 1689 Pell R [2019] VSCA 186 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 Radio 2UE Sydney Pty Ltd v Stereo Fm Pty Ltd(1982) 62 FLR 437 Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517 Re TC & JC (Children Relocation) [2013] EWHC 292 Richter & Richter [2019] FamCA 507 Rochford & Fitzhugh [2019] FamCAFC 218 Secretary, Department of Social Security v Wetter (1993) 40 FCR 22 Stanford v Stanford (2012) 247 CLR 108 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation) (1999) 73 ALJR 306 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 Warren v Coombes (1979) 142 CLR 531 |
| Sir Richard Eggleston, Evidence, Proof and Probability (Weidenfeld and Nicolson, 2nd edition, 1983) 192-193 Thomas Bingham, ‘The Judge as Juror: the Judicial Determination of Factual Issues’ (1985) 38(1) Current Legal Problems |
| APPLICANT: | Mr Ambler |
| RESPONDENT: | Ms Ambler |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 9431 | of | 2011 |
| DATE DELIVERED: | 9 December 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 27, 28 and 29 March, 15 April, 17, 18 and 19 June and 9 September 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms C F Devine |
| SOLICITOR FOR THE APPLICANT: | Southern Family Law |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms A L O’Connell |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Perry Weston Lawyers |
Orders
Order amended pursuant to sub-rule 17.02(1)(h),(g) of the Family Law Rules (2004)
Parenting
The father have sole parental responsibility of B born … 2010 and C born … 2015 (“the children”).
The children live with the father.
The children spend time and communicate with the mother as follows –
(a)during school terms each Wednesday from the conclusion of school (or 3:30pm if a non-school day), until 5pm Saturday;
(b)for three consecutive nights each week during each of the school term and long summer holidays at times to be agreed in writing between the parties, with any such times (or agreed extension of times) not to be discussed with the children prior to agreement being reach and confirmed in writing, and failing agreement from 9am Saturday to 5pm Tuesday
(and on a fortnightly basis at Christmas);(c)in the event that Mother’s Day is not a day that the wife would normally spend time with the children pursuant to these orders, then from 4pm on the eve of Mother’s Day until 4pm Mother’s Day;
(d)from 4pm Christmas Day until 4pm Boxing Day in each year;
(e)by telephone, Skype, Facetime or other electronic mode of communication between 6:30pm and 7pm on Tuesday and alternate Sunday and on each of the children’s birthday and on each of the children’s name days;
(f)by letters and/or cards on each of the children’s birthdays and on each of the children’s name days; and
(g)such further and other times as may be agreed between the parties in writing.
The times set out in paragraph 3 herein be suspended as follows –
(a)from 4pm on the eve of Father’s Day until 4pm on Father’s Day;
(b)from 4pm on Christmas Eve until 4pm on Christmas Day in each year;
(c)for a period of two weeks during the long summer holidays, at times to be agreed in writing, and in default of agreement from 1 January until 14 January; and
(d)on such further and other times as may be agreed between the parties in writing.
The father is at liberty to communicate with the children, whilst they are in the care of the mother on Saturdays between 6:30pm and 7pm by telephone, Facetime, Skype or other electronic mode of communication with the mother to facilitate such communications.
Changeovers are to occur at D School at E Street, Suburb F on school days or at the commencement of time and at the conclusion of time at McDonalds Restaurant G Street, Suburb H, or such other venue as agreed in writing from time to time.
The wife is authorised to receive information from the children’s kindergarten and schools as is normally provided to parents such as newsletters, photo order forms and reports (at her cost, if any) and subject to any direction from the relevant kindergarten/school, the parents be permitted to attend the children’s sports days, concerts and relevant events organised by the kindergarten/school that parents normally attend.
The father and mother forthwith advise the other in writing and keep the other advised in writing as to –
(a)the name and address of any health professional seeing or treating the children or either of them;
(b)except in an emergency, or in the case of the need for urgent treatment, advise the other in advance in writing of any initial medical appointments for the children (as distinct from subsequent appointments) and the purpose of such initial appointments;
(c)authorise and direct the children’s school and nay and all health professionals seeing/treating the children or either of them, to provide any information to either party as requested by them that parents might normally be entitled to receive from time to time, and each party is at liberty to attend upon health professional and educators (electronically if necessary).
The father and mother advise the other as soon as practicable by email, text message, or in the case of an emergency by telephone, upon becoming aware of –
(a) any significant injury or illness affecting the children or either of them;
(b)any illness requiring the provision of any medication prescribed by a medical practitioner; and
(c) any hospital attendance by the children or either of them.
The father and mother keep the other advised in writing as to any changes to their residential address, landline and mobile numbers, Skype and email address, and notify the other of any change to such details within 24 hours of such change.
The father and mother, their servants and/or agents are retrained from –
(a)denigrating the other, and the parties’ family and friends, in the presence and/or hearing of the children or either of them, or allowing any other person to engage in such conduct;
(b)discussing family law matters in the presence and/or hearing of the children or either of them, or allowing any other person to engage in such conduct;
(c)using the internet, social media and other public forum to undertake the conduct prohibited in paragraph 11(a) and 11(b).
The mother is expressly prohibited from taking the children to any medical practitioners, counsellor, psychologist, psychiatrist, and other health professionals including but not limited to dieticians, kinesiologists, chiropractors and osteopaths save an except for a bona fide medical emergency and the details of any such attendance must be provided to the father within 12 hours of any such attendance with all diagnosis and treatment details at which time the husband will assume care of any health issues affecting the children or either of them.
The appointment of the independent children’s lawyer is hereby discharged.
Property
The husband retain the following –
(a) J Street, Suburb K;
(b) L Street, Suburb M;
(c) N Street, Suburb O;
(d) P Street, Suburb Q;
(e) R Street, Suburb S;
(f) furniture and household effects of the home at L Street, Suburb M;
(g) the Motor Vehicle 1;
(h) shares in Company U; and
(i) cash-at-bank in the NAB offset account, account number … .
The wife retain the following –
(a) V Street, Suburb Q;
(b) the Motor Vehicle 2; and
(c) cash-at-bank in the Westpac account, account number … .
The husband and wife each retain their superannuation.
The husband forthwith remove the caveat over the property at V Street, Suburb Q.
Forthwith the husband at his expense do all thing necessary to render the
pay for the insurance on the wife’Motor Vehicle 2so as to render itroad worthy and obtain a roadworthy certificate.The parties do all acts and things and sign all necessary documents to effect the transfer of the Motor Vehicle 2 to the wife.
The husband forthwith assign the proceeds of the insurance claim on the Motor Vehicle 2 to the wife.
Order amended pursuant to sub-rule 17.02(1)(h),(g) of the Family Law Rules (2004)
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ambler & Ambler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9431 of 2011
| MR AMBLER |
Applicant
And
| MS AMBLER |
Respondent
REASONS FOR JUDGMENT
Introduction
Since 2011 when this proceeding was first before this court, the children have lived with the father. The mother has had time with the children on a restricted basis. In 2011 when parenting orders were first made, the mother’s mental health was said to have been unstable. The father has had sole parental responsibility for the children since 2011. The mother now wants equal shared parental responsibility for and equal time with the children. A small amount of property fell for division.
Synopsis
For the reasons that follow I am persuaded that the best interests of the children are promoted by the father continuing to have sole parental responsibility for the children. I am of the view that the mother’s conduct reveals her inability to cooperatively parent. Based on her past behaviour, she will not consult with the father whenever she takes the view he is wrong. The children have thrived under his care. There is no warrant to disturb that.
The children have adapted to a regime for several years by which they live with their father, they spend time with their mother and the father has had sole parental responsibility for their welfare in long-term significant decision making. The hostility between their parents has been epic. It must cease. They must behave like adults.
For the reasons that follow, in my view the assets should be divided as to 61.5% to the husband and as to 38.5% to the wife. I will give the parties the chance to agree on the precise mechanism for that division.
Mother being without legal representation
Shortly after appearances were announced, the mother informed me that she was without legal representation. Despite several allegations of family violence, the provisions of s 102NA of the Family Law Act were not operative when this case was tried. However, the observations of Nicholson CJ in Re F: Litigants in Person Guidelines[1] were applicable so I devoted some little time to explaining to the mother how the case would unfold. The explanation was in the following terms –
[1](2001) 27 Fam LR 517
HIS HONOUR:…Ms Ambler, as litigant in person I must tell you about what the law says in a case called – in Re F: Litigants in Person Guidelines. I’m required to explain it to you about the conduct of this case. Please stop me if you don’t understand any aspect of it. I’m about to tell you the sequence of this trial and how it will unfold. Again, if at any stage you don’t follow what I’m saying ask for some guidance. The first witness will be called by Ms Devine. That witness will enter the witness box and swear up to whatever affidavits that person has sworn to. The document – that’s my practice, anyway, for the affidavit to be separately marked, unless this case goes elsewhere. Unless there are objections of an evidentiary nature, that will stand as the witness’s evidence in-chief, as it’s called. That’s – in other words, that’s that witness’s statement of the evidence in this case. The pendulum will then swing to other persons with an opposite interest in the case to question that witness in whatever way she wishes. That’s called cross-examination. That’s where you come in. Now, there are certain parameters about cross-examination. You have some restraints, even though you’re a litigant in person and may not understand the niceties of evidence. You won’t be permitted to ask inflammatory or insulting questions. You’re required to ask questions which essentially comply with the rules of evidence. You will be given a fair opportunity to put whatever you want to the witness within those boundaries and once we reach the end of that your questioning will stop. I will invite Ms O’Connell to do the same. She may want to tell me that she wants to go before you but, in any event, she will do the same. At the end of the cross-examination process the questioning will return to Ms Devine to pursue what’s called re-examination. There are certain limitations on what is permissible in that phase and so long as the questions arise relevantly out of answers given in cross-examination and otherwise are admissible she will be permitted to ask those. That will be the end of that witness. The same sequence will follow for howsoever other witnesses are called on behalf of Ms Devine until she gets to the end of all the witnesses that represent her case. Throughout that process you and Ms O’Connell will be permitted to question those witnesses in the form of cross-examination in the way that I’ve previously mentioned and, again, at the end of the cross-examination Ms Devine will have the right to re-examination. So pausing there, are you following things so far?
MS AMBLER: Yes, your Honour.
HIS HONOUR: Okay. At the end of the evidence that Ms Devine wishes to lead we will then throw over to the next sequence of events. I often seek guidance from the ICL as to whether the ICLs evidence should be adduced first. What do you say, Ms O’Connell? Shall we move into your evidence or should the – Ms Ambler’s evidence follow?
MS O’CONNELL: The mother’s evidence should be completed before we move to the independent experts.
HIS HONOUR: Okay. Thank you. So then, Ms Ambler, we move to your side of the case. You will, one at a time, produce all the witnesses who will give evidence as part of your case. You will be chief among them. So you will enter the witness box and swear up to your trial affidavit. You will then offer yourself for questioning by Ms Devine and also by Ms O’Connell. At the end of that, given that you’re the witness, I will ask you if there’s anything that you wish to tell me arising out of the cross-examination purely for procedural fairness reasons. That might be the subject of debate. It’s not easy to tell until we hear. You will then leave the witness box and you will then produce your next witness and the process will repeat. That witness will swear up to her or his affidavit. These are in [response to] questions adduced by you. Once you get to the end of your questioning and the affidavit is marked as an exhibit the witness will then be cross-examined relevantly by Ms Devine and by Ms O’Connell. You will have a right to re-examine. We will go through that process until we exhaust your witnesses. Do you follow so far?
MS AMBLER: Yes, your Honour.
HIS HONOUR: Anything arising out of things so far?
MS AMBLER: So do I need to bring an extra copy of my affidavit just ‑ ‑ ‑
HIS HONOUR: Yes, you will.
MS AMBLER: And my annexure booklet? Does that ‑ ‑ ‑
HIS HONOUR: Yes, please.
MS AMBLER: ‑ ‑ ‑ include it? Yes.
HIS HONOUR: So as to the process, have you followed that so far?
MS AMBLER: Yes, your Honour.
HIS HONOUR: Okay. Then we will swing over to Ms O’Connell to adduce evidence on behalf of the ICL. She will invite her witness to enter the witness box. Her witness will swear up to all relevant documents and we will then begin the process of cross-examination in the form that I’ve just mentioned. She will then have the right to ask questions in re-examination. You following so far?
MS AMBLER: Yes.
HIS HONOUR: Now, once we get to the end of that, that will complete the evidence in the case. We then move to the submissions phase of things and that is a time where each party will be invited to tell me what she invites me to draw by way of conclusions, evidentiary findings and whatever else, based on what we’ve heard in the course of the case. Each party will have the opportunity to rely on such legal principles as she wishes to guide me in the direction that she urges me to take. Do you follow that much?
MS AMBLER: Yes, your Honour.[2]
[2] Transcript P 34 – 36
Based on that exchange it seemed to me plain enough that Ms Ambler (who told me she is a professional) understood the process that was about to unfold in the course of the trial. In addition, at various intervals throughout the trial I asked Ms Ambler whether she followed what was occurring because she was a litigant in person. She told me she followed what was going on.
The children
The eldest child is nine years of age. The youngest is four. The eldest attends primary school. The youngest attends day care.
The parents
In these reasons I speak interchangeably of “the mother” or “the wife” to be a reference to the respondent in this case and I refer interchangeably to “the father” or “the husband” to mean the applicant in this case. The mother was born in 1973 and at the trial of this proceeding worked as a professional.
The father was born in 1975 and at the trial of this proceeding worked on a part-time basis as a professional.
They commenced cohabitation in or around 2008, they married in 2010 and they finally separated in mid-2016.
The wife contended that her marriage with the husband was punctuated by volatility. She set out in her affidavits sworn in support of her applications in this case a collection of issues that she said led to the volatile nature of their relationship including the following –
a)the husband’s traditional views about women that caused him to regard women as inferior to men;
b)the husband’s aggressive behaviour towards the wife;
c)the husband’s verbal abuse towards her including his description of her as a “fucking bitch” (her words said to have been uttered by him) and other similar phrases;
d)the husband’s conduct in spitting in the wife’s face; and
e)the husband’s conduct in elbowing the wife in anger.
The wife highlighted difficulties she encountered communicating with the husband. She said her parents had divorced and the husband’s parents had constantly fought. She said she was committed to giving what she said was her utmost to the marriage as a result of which she accommodated the husband’s controlling behaviour.
The wife said she suffered postnatal and antenatal depression in early 2011 soon after the birth of the couple’s eldest child. She said she was admitted to hospital where she and her infant child stayed for seven weeks. The wife said that on or about the date of her returning home following her hospitalisation, the husband’s mother passed away. The wife said that thereafter the husband became increasingly withdrawn.
In 2011 the wife exhibited the first episode of what the husband said was a key basis for his application for sole parental responsibility. The husband said the wife was (and remains) susceptible to influence by destructive personalities. He said that in 2011 the wife was introduced to Mr Y. She admitted that he was a conman who persuaded her to give him $125 000 (which she did) and a car. She later recovered the car and a modest sum, less than $25 000. The wife said Mr Y advised the husband and the wife to move into the home of the wife’s father, which they did. The wife said that in 2011, on the advice of Mr Y, she moved into a motel room with her daughter. She said Mr Y advised her to leave her daughter in a pram for a few hours in a motel room while the wife went out for dinner. Upon returning, the wife said her daughter had been taken by the Department of Human Services which she ascertained from a note left on the bed in the room. The wife stated that Mr Y told her to allow the husband to care for the daughter, to not contest “custody” (as the wife termed it) as a result of which she said she “felt frozen” leading to orders made in this court in February 2012. The wife said that on the convincing of Mr Y, she wrote a letter to solicitors (she did not say who but I infer the husband’s) stating that she never wanted to see her daughter again.
The wife stated that she disentangled herself from Mr Y in early 2012 and had not seen him since.
The wife stated that in early March 2012 the husband refused the wife’s approaches to see their daughter. She said the husband made no effort to enable the wife to demonstrate that leaving her daughter for a few hours in a pram was an aberration and symptomatic of the manner in which her reasoning had been clouded at the time. Shortly thereafter the wife stated she attended upon a psychiatrist for a forensic psychiatric report. She said that report indicated there was no reason why the mother should have no contact with her daughter.
The wife stated that between March 2012 and December 2013 she saw another psychiatrist. She said that the husband refused to permit the mother to see her daughter.
The husband and the wife reconciled in July 2012.
It seemed that their lives assumed a commendable degree of normality between the date on which they reconciled and 2015 upon the birth of their second child. The wife became the primary carer for the couple’s oldest child from July 2012. The pregnancy with their second child was planned, the wife worked at a business from a date in 2014 and at the same time she conducted her own business from home. She said she assumed responsibility for her daughter’s care while the daughter attended four-year-old kindergarten.
In 2015 the couple’s son was born. The wife said she did not suffer any postnatal depression following his birth. Yet said that soon after her son’s birth her relationship with the husband rapidly deteriorated. She said she undertook a course that ran for 18 months and it involved attendance of one full day per month. The course concerned understanding the child.
The wife said she commenced a course to become a health care worker. She said she undertook that course with the same organisation that ran the course about understanding the child. The wife said she commenced the course in 2016 and she qualified as a health care worker in late 2017.
The wife said she wanted the husband to sell their home and to move to the eastern suburbs. She said the husband resisted. She said the husband became increasingly aggressive towards her. She said (yet the husband denied) that the husband threw a chopping knife at her which landed on floor boards, blade embedded, handle upwards. She said she feared the husband would kill her so she went to a family friend’s home then returned to find (so she said) the husband calmly playing video games. In an attempt to discuss the event the next day, the wife said the husband became angry and in the presence of the children spoke of divorce. She said she feared being alone with the husband.
The wife said she and the children moved into the wife’s father’s home in mid-2015. She said events were tense while the wife and the children lived with her father. The wife said those events included –
a)the husband throwing food at the wife in the presence of her father and a family friend;
b)the husband breaking a coffee table;
c)the husband swearing at the wife in the presence of the daughter;
d)the husband’s several episodes of spitting in the wife’s face; and
e)the husband disagreeing with the wife’s mother’s involvement with the children.
The wife and husband sought counselling in 2015. The wife said it was not beneficial.
At the end of 2015 the wife and children returned to the matrimonial home in the western suburbs. She said she did so in an attempt to save her marriage.
In 2016 the husband lost his job, the wife said. She said the husband micro-managed her in her discharge of household activities.
The wife said that the couple finally separated in July 2016. She gave details of the events leading to separation to include the husband spending his spare time on fishing trips.
The wife said the husband informed her that their marriage was over by text message. This, she said, was set against a backdrop in which a few days earlier the husband had, uncharacteristically, offered to cook her breakfast, kissed her on the cheek then said to her in the presence of the children that he had a big surprise for her. On the day of separation the husband told the wife that the children were safe and that she would hear from the husband’s solicitors. The wife described the separation as “carefully and deviously planned” by the husband “in a most cruel and calculating way.” The wife said she was unable to locate the children so she sought assistance from the police. She said she later ascertained that the children had been taken to the home of the husband’s father’s niece, a move the wife described as being carefully planned having regard to the orders made in this court in 2012 pursuant to which the wife’s time with the children was reserved. The wife said she was eventually able to retrieve her personal belongings from the former matrimonial home including certain ongoing work files.
Thus far I have narrated the version of the evidence given by the wife. Some, although not all of it, was controversial in so far as the lead up to the final separation was concerned. The husband commenced this proceeding. Relevant to the trial, he swore an affidavit on 13 July 2018 to which he exhibited a substantial number of documents. The following may fairly be distilled from that affidavit –
a)the husband and wife cohabitated from mid 2008 or thereabouts and they married in 2010;
b)the husband and the wife separated in late 2011 then reconciled in mid-2012, later finally separating in mid 2016;
c)as at the date of the trial of this proceeding, the husband lived in the former matrimonial home in the western suburbs of Melbourne with the two children where he said he intends to live on a long term basis;
d)he has not re-partnered;
e)he currently works on a part-time basis as a professional earning $51 000 per annum;
f)he is firmly of the view that the wife has a long history of mental health issues leading to complications in his co-parenting with the wife;
g)their daughter is nine years old and attends a Catholic primary school where she is making favourable progress;
h)their son attends a kindergarten three days a week as a four year old;
i)Mr Y with whom the mother previously associated controlled and manipulated her;
j)following the execution of a recovery order, their daughter was located in a motel room, the husband said “strapped to a pram”;
k)after a proceeding was commenced in the Children’s Court, the daughter was placed in the father’s care in pursuance of an interim accommodation order;
l)on 15 December 2011 the senior registrar of this court made orders and adjourned the proceeding to 28 February 2012;
m)on the Sunday prior to 28 February 2012, the wife’s solicitors wrote to the husband’s solicitors stating that the wife never wanted to see her daughter again and that the wife relinquished all rights in relation to the daughter;
n)in early March 2012 the wife contacted the husband and said she was homeless so the husband told her to reconnect with her father because, so the husband said, he could not expose his daughter to the risk the daughter encountered when in the wife’s care;
o)the wife’s time thereafter was supervised;
p)the husband and the wife reconciled in mid-2012;
q)after the reconciliation, events deteriorated as the husband and wife were unable to agree on everyday issues;
r)the wife would not acknowledge the impact her mental health had on the family;
s)in 2014 the wife obtained part-time work at Employer BB and the husband continued his work as a professional;
t)in 2014 the wife fell pregnant with their second child in circumstances where, according to the husband, the wife’s mental health was in decline; and
u)upon the birth of their second child, the wife’s mental health further deteriorated, according to the husband.
The husband raised in paragraph 42 of his trial affidavit the involvement of another person the husband said exerted some spiritual influence over the mother. It will be recalled that the first was Mr Y. The husband said the second was a woman of Country CC heritage. The husband said he raised his concerns with the wife about the Country CC woman. The husband said that in the middle of 2015 the Country CC woman began to discuss with the husband his late mother and said the former matrimonial home was cursed. The husband said he attempted to reason with the wife but instead, he said the wife told him to trust the Country CC woman and the Country CC woman’s husband because they would make everything better. The husband said he continues to entertain doubts about the wife’s insight in view of her dealings with and attitude towards the Country CC woman. The husband was the one with the problem, according to the wife, whereas the wife was the one with the problem, according to the husband.
The husband admitted spitting in his wife’s face. He said she spat back. Such disgusting behaviour must stop immediately.
The husband said he did not approve of the wife enrolling in health care work. He said the wife provoked disputation by breaking a washing basket, a wooden spoon and twice striking the husband to the head or by obstructing his path for no reason.
On a date in late July 2016, the husband said he became aware that the wife had unilaterally attempted to enrol their daughter in a primary school in the same suburb as the wife’s father. The husband said the email to the new primary school was evidence of the wife’s intention to relocate with the children and to assume sole care. He said he put some of the wife’s personal belongings in a bag that he delivered to a friend and then terminated the marriage by text message.
On 1 August 2016 husband’s solicitors, at his request, wrote to the wife informing her that the marriage was over. The husband stated in paragraph 79 of his trial affidavit that his actions in ending the marriage so abruptly “were not ideal”. Those were his words. He said he was compelled to act in the way he did so as to ensure the safety and welfare of the children.
Parenting issues in the case
The issues that fell for determination were –
a)which parent was to have parental responsibility, sole on the father’s case and equal on the mother’s case;
b)with which parent the children would live; and
c)how much time would be spent by the children with each parent.
The competing contentions in this case on parenting
One of the biggest controversies in this case was whether the father should have sole parental responsibility for the children or whether both parents should have equal shared parental responsibility.
Before addressing the specific facts and circumstances of this case, it is important to point up the legislative provisions of the Family Law Act in respect of parental responsibility.
The starting point is the presumption embedded in s 61DA to the effect that it is in the best interests of a child for the parents of that child to have equal shared responsibility for that child. Where the court is satisfied that one of the parents has engaged in family violence or that parent has abused the child, then the presumption does not need to be applied.
Here, evidence of family violence does exist. Both parents admitted to spitting in each other’s face during acts of hostility. The wife alleged that the husband threw a kitchen knife at her. He denied the assertion. Further, the wife asserted that the husband was dominating, manipulative and overbearing. The husband denied those assertions. The husband said the wife struck him several times. The wife did not acknowledge any such incidents as alleged.
Other than in relation to admitted acts, in my view the burden of proof of family violence was not discharged on the balance of probabilities. In other words, in view of the denials each gave of specific incidents of physical interaction and the lack of detailed evidence on point I was unable to make a specific finding that, for example, a kitchen knife was thrown at the wife as she alleged or that the wife struck the husband to the head as he alleged.
That said, it is possible to state with a high degree of certainty that over many years between the date of the couple’s marriage in 2010 and their final separation in 2016 a highly charged and toxic relationship prevailed between the two. As recently as June 2018 an intervention order was granted against the wife on the application of the husband. According to the wife the husband does not communicate with her. The husband said he does not trust the wife.
In the passages below I have canvassed the issues of fact to which the legal requirements in s 60CC(3) are directed.
Section 61DA(4) of the Family Law Act provides that the presumption of equal shared parental responsibility may be rebutted by evidence that satisfies the court that it would not be in the best interests of the children for the parents to have equal shared responsibility for the children. It seemed readily apparent to me that the husband and wife disagreed on a large number of issues concerning the children. Those included –
a)where the children should live;
b)the schools each child should attend; and
c)whether the children should attend Country DD school.
There were others.
In addition, the husband adopted a difficult, borderline implacable, attitude towards meeting the costs of the insurance cover for the wife’s car. Without insurance, her car could not be driven by her. That had an obvious detrimental impact upon her ability to adequately care for the children when they were in her care. The husband did not seem to have been at all troubled by that. To my mind, that told strongly of the lack of cooperation between the two.
One of the wife’s ongoing points of concern was the husband’s poor communication with her in the lead up to and aftermath of their final separation in 2016. She said his lack of communication made it difficult to undertake basic tasks when the children have been in her care.
Credibility issues
In this case the veracity of the father and of the mother was in issue, although not on every issue. On some issues one or other of the husband or wife asserted positively that a particular event took place. The person against whom the allegation was made denied the event. It was necessary for me to form certain views about the credit of both the father and mother.
During the course of the trial I had the opportunity of carefully observing the husband and the wife, their demeanour in the witness box especially. The mother and father were cross examined for a number of days. Consequently, I was able to observe not only what they said but how they said what each said. As the trial judge I enjoyed all the benefits to which Kirby ACJ averted in Galea v Galea.[3] There, his Honour held that the advantages enjoyed by the trial judge were as follows –
a)hearing the evidence in its entirety;
b)hearing and seeing all evidence in context, chronologically and logically advanced;
c)having time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence while fresh;
d)hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
e)observing body language, sometimes important for interpreting communication.
[3] (1990) 19 NSWLR 263
It is squarely within the function of the trial judge to form an assessment of the veracity of a witness. Lest authority for that proposition be required, it is found in the decision of High Court in Lovell v Lovell,[4] embraced by the Full Court of this court in In the Marriage of Scott.[5]
[4] (1950) 81 CLR 513
[5] (1994) 17 Fam LR 420
The Court of Appeal of the Supreme Court of Victoria in Pell v R[6] referred to issues of witness credibility and to the leading text book on point. The court said that in his book Evidence, Proof and Probability,[7] Sir Richard Eggleston identified a number of considerations which a judge will typically take into account in the assessment of a witness’s credibility. The relevant passage puts the position as follows –
What are the factors that a judge takes into account when deciding whether a witness is telling the truth? They may be listed as follows –
1)The inherent consistency of the story: if the evidence of the witness contains internal contradictions, it cannot be accepted as a whole. The question may be which part to reject.
2)Consistency with other witnesses: this, of course, involves making an assessment also of the other witnesses, which in turn requires consideration of the factors here set out in relation to those witnesses also.
3)Consistency with undisputed facts: these include documentary evidence (if not subject to attack), facts admitted by the parties, or matters of common knowledge or experience.
4)The ‘credit’ of the witness: in addition to the observation of his performance in the witness-box, this will include ... evidence of bias against a party; or evidence of a general reputation for mendacity.
5)Observation of the witness: this includes physical manifestations of truthfulness or mendacity, or of uncertainty, and also characteristics observable in the witness-box or capable of being tested there (hearing and eyesight, capacity to judge distance or height) ...
6)The inherent probability or improbability of the story.
[6] [2019] VSCA 186
[7] Sir Richard Eggleston, Evidence, Proof and Probability (Weidenfeld and Nicolson, 2nd edition, 1983) 192-193
A test for assessing the truth of a witness’s evidence has also been stated by Gosnell J in GH v The Catholic Child Welfare Society (Diocese of Middlesbrough).[8]There, his Honour said –
[8] [2016] EWHC 3337 (QB)
In his instructive article entitled The Judge as Juror: The Judicial Determination of Factual Issues,[9] published in Current Legal Problems 38, Mr Justice Bingham (as he then was) made this observation –
“The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case –
[9] Thomas Bingham, ‘The Judge as Juror: the Judicial Determination of Factual Issues’ (1985) 38(1) Current Legal Problems
(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness’s evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.”
As to that last point, demeanour, I was also able to observe demeanour of the key witnesses, a fact that provided a considerable advantage as was reflected in an array of cases. Those cases include Coghlan v Cumberland,[10] Dearman v Dearman,[11] Owners of SS Hontestroom v Owners of SS Sagaporack; SS Hontestroom v SS Durham Castle,[12] Paterson v Paterson,[13] Warren v Coombes,[14] Brunskill v Sovereign Marine & General Insurance Co Ltd,[15] Jones v Hyde,[16] Abalos v Australian Postal Commission,[17] Devries v Australian National Railways Commission,[18] State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation),[19] Fox v Percy[20] and Husain v O & S Holdings (Vic) Pty Ltd.[21]
[10] [1898] 1 Ch 704
[11] (1908) 7 CLR 549
[12] [1927] AC 37
[13] (1953) 89 CLR 212
[14] (1979) 142 CLR 531
[15] (1985) 59 ALJR 842
[16] (1989) 63 ALJR 349
[17] (1990) 171 CLR 167
[18] (1993) 177 CLR 472
[19] (1999) 73 ALJR 306
[20] (2003) 214 CLR 118
[21] [2005] VSCA 269
It is important not to give too much credence to demeanour when considering the evidence of a witness. In Fox v Percy, the High Court observed that it can be dangerous to place too much reliance upon the appearance of a witness rather than focusing on more objectively reliable matters.
Demeanour is relevant in assessing witness credibility but I have not relied solely on witness credibility in this case. Even unchallenged evidence may be accepted but if it does not go to a fact in issues then the utility of that unchallenged evidence diminishes. To the extent that unchallenged evidence addresses a fact in issue, it is long established that unchallenged evidence need not be accepted if it is inherently incredible or inherently improbable. Cases that stand for that proposition include Precision Plastics Pty Ltd v Demir,[22] Ellis v Wallsend District Hospital,[23] Levinge v Director of Custodial Services[24] and Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation.[25]
[22] (1975) 132 CLR 362
[23] (1989) 17 NSWLR 553
[24] (1987) 9 NSWLR 546
[25] (1983) 1 NSWLR 1
In Kuhl v Zurich Financial Services Australia Ltd[26] the High Court acknowledged that it was a serious matter to reach the conclusion that a party’s witness had failed to comply with the duty to tell the whole truth to the court. The plurality of the High Court said the following –
…Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was "reluctant" to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness's knowledge for which the question does call).
[26] (2011) 243 CLR 361 at [62]
It was possible for me to state certain observations about each of the husband and the wife. So far as the husband was concerned, I formed the view that he was intelligent yet at times evasive in his answers to questions put to him by the wife, instead answering questions in a manner that best suited his version of events. The trial of this proceeding took place on days in March, April and June with final addresses being made in September of this year. Consequently, even though the wife was not represented during the trial the provisions of s 102NA of the Family Law Act did not apply.
The following serve as illustrations of the husband’s attitude in the witness box that I found unhelpful. These are not exhaustive –
MS AMBLER: How did you expect me to pick up the children without a car?
MR AMBLER: I’m not sure if your father has two cars, but I guess in these instances, I equally understand that we need to, basically, find solutions for our obligations in the same way that I would have arranged a car for myself or that I was imposed to change my working arrangements, child care arrangements and other commitments[27]
[27] Transcript P 74, L 43 – 47
…
MS AMBLER: Do you expect me to pay the insurance claim on the Motor Vehicle 2 for a written-off car that is due next week?
MR AMBLER: My understanding is the – the
HIS HONOUR: The question is do you expect; what’s your expectation?
MR AMBLER: Probably – probably not, because – because the car was insured when the incident occurred, and therefore, that coverage, in my understanding, would apply to that claim.[28]
[28] Transcript P 75, L 17 – 24
…
MS AMBLER: And do you recall that money from the wedding went towards purchasing the Motor Vehicle 3?
MR AMBLER: Well, there was probably a lot of money from a lot of sources, so which money are you referring to?
MS AMBLER: Money ‑ ‑ ‑?
MR AMBLER: For example, there was ‑ ‑ ‑
MS AMBLER: Gifts for our wedding?
MR AMBLER: Yes, so there was money from my dad, money from your dad and money from the guests.
MS AMBLER: Money from all guests, including ‑ ‑ ‑?
MR AMBLER: Yes.
MS AMBLER: ‑ ‑ ‑ our parents and extended family and friends?
MR AMBLER: Yes. And – sorry. The question is?
MS AMBLER: Do you recall that money from the wedding went to purchasing the Motor Vehicle 3?
MR AMBLER: I don’t know if it’s possible to say that because money came from different sources. Some went into your account; some went into my account. And from there, we purchased things as we needed them. So I’m not sure how specific we can be about what money went to what.[29]
[29] Transcript P 78, L 1 – 19
…
MS AMBLER: Mr Ambler, do you think that I have changed from 2011 when I had postnatal, to today, in terms of my capacity to parent, and my decision-making ability?
MR AMBLER: I am open to somebody being in a situation where…
HIS HONOUR: Well, hang on, you – let’s – this is directed to you?
MR AMBLER: Yes.
HIS HONOUR: Try and be a bit more focused in your answer?
MR AMBLER: Yes.
HIS HONOUR: So focus again on the question that’s being asked. If you don’t understand it, I’m sure Ms Ambler will ask it again, but ?
MR AMBLER: I guess my mind there are a lot of – sorry.
HIS HONOUR: No. Just answer the question because we’ve spent a lot of time this morning with speeches and difficulty – questions that were chewing up a lot of time, so let’s be a bit more focused in the answer?
MR AMBLER: So could you repeat the question?[30]
[30] Transcript P 111, L 15 – 29
…
MS AMBLER: Could you clarify then – in the next paragraph, you say that I have the children for three consecutive nights during each of the school terms and longer summer holidays. So even during school holidays, are you saying you don’t want us to have equal shared time with the children during their school term holidays?
MR AMBLER: Excuse me, your Honour, is this a – because you mentioned before, your Honour, that – like proposal matters might be another stage of the process. Is this – is that – is that more relevant to the sort of proposal?
HIS HONOUR: Ms Ambler, your job is to answer questions, not ask me questions. You have very able counsel?[31]
[31] Transcript P 120 and 121, L 45 – 8
…
MR AMBLER: Are you aware that B repeatedly asked me to spend – asks me to spend more time – asks to spend more time with me, Mr Ambler, on a weekly basis?
[long pause]
HIS HONOUR: Do you have an answer to that?
MR AMBLER: Well, Ms Ambler hasn’t mentioned that many times, very much also consistent with times where she has discussed family law matters with B.[32]
[32] Transcript P 137 and 138, L 44 – 3
…
MS AMBLER: At changeover…
MR AMBLER: Right.
MS AMBLER:…would you ever bring C to me so he could kiss his mummy goodbye while you were holding him?
MR AMBLER: I would definitely encourage him to say goodbye to you before leaving. Absolutely. As to whether I’m holding him or not, I think – I think that probably depends on…
HIS HONOUR: No, no. “Do you recall?” is the question?
MR AMBLER: I would say it could have happened.
HIS HONOUR: Well, don’t speculate. Do you recall? If you don’t, tell us?
MR AMBLER: I think maybe at times of peaceful changeover where the mood was
HIS HONOUR: You’re being asked about whether you remember presenting your son to his mother for her to kiss him on the forehead, I presume. Do you recall that? If you don’t, tell us. If you do, say so?
MR AMBLER: I’m sure it could have happened. I will say yes, just for simplicity.[33]
[33] Transcript P 140, L 11 – 27
In my view the father was obsessive in his dislike for the wife. He had no idea the wife suffered from disc bulges in her neck. He was unable to immediately respond to the question about the date of his marriage to the wife. He seemed to me to be harbouring some ongoing fear that the wife was likely to fall under the influence of anyone hereafter including a chiropractor. He openly admitted he had spent in the vicinity of $75 000 in legal fees fighting this litigation when the parties’ cash flow was poor.
On several occasions the father purportedly answered questions by giving a speech rather than by directly responding to the question. I took the view that he was determined to use the opportunity he had in the witness box to do battle with the wife, mostly disputing whatever she put to him.
The husband was not an impressive witness in my view.
That said, his approach towards the children has been favourable, on the whole. He has had sole parental responsibility for them since 2011. The wife took issue with his approach towards certain discrete parenting matters. She put to him that he stopped his daughter’s swimming lessons, despite the fact that (according to the wife) the daughter enjoyed attending swimming classes. The husband said that in his view the swimming lessons were not challenging for her. The wife put to the husband that the daughter snored and ground her teeth in her sleep yet the father had not taken the daughter for expert medical assistance. The husband agreed he had not taken the daughter for expert medical help for the snoring or teeth grinding. The husband said he took the view that the wife micro-managed everything he did and that he was reluctant to communicate with her.
It seemed to me that in different ways both parents were child focused. Each was loving towards the children. Yet they seemed to be unable to do so cooperatively.
Section 65DAC of the Family Law Act provides that, if the court makes an order for equal shared parental responsibility, the court is to be taken as requiring each parent –
a)to consult one another in relation to significant long-term decisions; and
b)to make a genuine effort to arrive at a joint decision about that issue.
To some extent my determination on the likely success of an order for equal shared parental responsibility was informed by my own assessment of the parties in relation to the several matters canvassed in s 60CC(3) of the Family Law Act. To a different extent my determination on that issue was informed by expert evidence given in this case. Several experts gave evidence. In the passages below I have recited some of the more important aspects of their expert evidence.
The expert evidence
Dr FF, a clinical psychologist, gave evidence in the form of an expert report that was admitted into evidence and marked as an exhibit. In reference to the wife, some of Dr FF’s key observations may be relevantly distilled as follows –
a)she was tense, anxious, fierce, focused and determined;
b)she presented to Dr FF as being particularly unreflective in relation to herself and her own approach;
c)she struggled to accept responsibility for her actions and she minimised and explained away her actions;
d)she was not happy living in the western suburbs nor did she want her children growing up in the western suburbs;
e)she lacked insight into her own behaviour with a high degree of rigidity and stubbornness;
f)she exhibited high degrees of impulsivity and she blamed the father for his behaviour despite her own inappropriate behaviour;
g)the mother significantly projected onto the father; and
h)serious concerns were raised about her personality functioning and the extent to which she could co-parent by reason of her personality rigidity.
Dr FF gave his opinion about aspects of the daughter’s circumstances. They may be condensed as follows –
a)the daughter described Country CC school as “horrible”;
b)the daughter spoke positively of her home environment in the western suburbs with the father;
c)the daughter spoke positively about the wife;
d)the daughter stated that her parents hated each other; and
e)the daughter said she loved each of her parents.
So far as the father was concerned, Dr FF made several observations. The following are the more important matters in that regard –
a)the father was focused on the children and their needs;
b)he endeavoured, as far as possible, to avoid conflict with the mother yet, according to the father, the mother initiated the conflict;
c)the father said he (the father) was concerned about the mother’s ability to self-reflect and self-manage;
d)the father’s mental health was sound;
e)the father interacted well with the children; and
f)the children were comfortable and calm with the father.
Dr FF commented on observations by the court-appointed psychiatric assessor, Dr GG. Dr FF referred to Dr FF’s conclusions about the wife to the effect that –
a)the wife did not describe symptoms consistent with a psychiatric condition such as a major depressive illness or a psychotic disorder;
b)the wife scheduled events in a hectic manner; and
c)the wife lacked insight into the needs of the children to have a relationship with both parents.
Dr FF said he was concerned about what he described as a clear indication that the mother behaved in a way that exposed the children to her negative attitudes towards the father so as to potentially establish an alienation type dynamic (his words). He collected together a catalogue of matters that he said underpinned his recommendation for the father to have sole parental responsibility. Those included –
a)the mother’s unrelenting negativity and criticism of the father;
b)her impulsive behaviour towards the father;
c)her lack of insight into her own behaviour in respect of the father;
d)how the daughter had been negatively affected by the mother thereby creating an alienation-type dynamic for both children; and
e)the conclusion that their weekly involvement in Country CC school was unlikely to be helpful to the children and any decision about the children’s participation in it should be made by the father.
The mother contended that Dr FF’s report was incomplete or replete with omissions rendering it unreliable. Before addressing her specific complaints in relation to Dr FF’s report it is necessary to point up that the mother was several times invited to call Dr FF for cross-examination so that any deficiencies in his report could be put to Dr FF by the mother. In response to those invitations the mother told me she did not have funds to meet Dr FF’s fees for his attendance in court for cross-examination. The mother said that in those circumstances she was content to make the points about Dr FF’s report in her submissions. The mother prepared a 44 page document entitled “The Mother’s Final Address”. Between pages 27 and 33 of that document the mother listed a number of points she argued Dr FF omitted from his report. The following is a synthesis of the key points made by the mother between those pages of her final address document –
a)Dr FF’s report was one-sided and lacked neutrality;
b)Dr FF attempted to treat the mother as psychologically abnormal;
c)Dr FF failed to take into account the mother’s evidence about the father locking the mother out of the matrimonial home and the mother not knowing for three months the whereabouts of her children;
d)Dr FF’s report was silent about the mother’s difficulties encountered at changeovers;
e)the mother asserted Dr FF was biased;
f)Dr FF was silent on what the mother described as the “positive things” she did for the children;
g)the mother disputed Dr FF’s construction of events where he said the children were settled in the father’s care;
h)the mother asserted Dr FF was silent about the father’s devious and violent tendencies (her words);
i)the mother asserted that Dr FF’s report omitted any reference to the children’s current sleeping arrangements where both children sleep in one bed with the father;
j)the mother said “the report makes no mention of the strategic manipulation of the legal system that I have had to endure and not had the funds to be on an equal footing in terms of legal representation”;
k)the mother said Dr FF’s report made no mention of the father ignoring the mother;
l)the mother said Dr FF’s report was not supportive of the daughter attending Country CC school;
m)the mother said Dr FF’s report did not address what the mother termed the father’s silencing of her;
n)the mother asserted that Dr FF was “clearly misleading the truth” (her words) when he spoke of the mother’s 2017 presentation and that it raised concerns about the possibility of an underlying depressive or psychotic condition when Dr GG had stated that no psychotic condition existed;
o)the mother asserted that Dr GG was not sympathetic of her position as a mother who had suffered postnatal depression;
p)the mother asserted that Dr FF failed to mention reports of Dr HH and of Dr JJ;
q)the mother asserted that Dr FF failed to mention the conclusions expressed by Dr KK to the effect that the mother was coping adequately given the enormous strain under which the mother was operating;
r)the mother asserted that Dr FF failed to address why the mother said she took better care of her children than the father did;
s)the mother said Dr FF failed to mention the mother’s unwillingness to live in the western suburbs;
t)the mother said Dr FF made no mention of how the father refused to talk to the mother and therefore Dr FF’s report was misleading (her words);
u)the mother said Dr FF made no mention of her qualifications as a health care worker;
v)the mother said Dr FF’s report was silent about the father ending the marriage by text message;
w)the mother said Dr FF’s report said nothing about the father’s lack of care for the daughter;
x)the mother said Dr FF failed to mention how the mother and father attended marriage counselling;
y)the mother said Dr FF was silent on the mother’s love, care and understanding towards her children; and
z)the mother said Dr FF was silent about the father’s ability to care for the children having regard to his violent tendencies, depression, stress and anxiety.
Not all of those matters raised by the mother called for separate treatment by Dr FF. Equally, even if some of those matters raised by the mother in the immediately preceding paragraph were valid, that did not, in and of itself, render Dr FF’s report devoid of probative value. I reject the mother’s assertion that Dr FF was biased. I also reject the mother’s assertion that Dr FF endeavoured to treat the mother as psychologically abnormal. To my mind, in arriving at his conclusions about psychological matters, Dr FF was entitled to weigh up her version of events about the father allegedly locking the mother out of the matrimonial home. In my view his report was consistent with the observations of the High Court in Dasreef Pty Ltd v Hawchar[34] and Dr FF’s qualifications enabled him to express the views he did. At all events in expressing the views he did, Dr FF was not required to prefer any single item of information ahead of other information. He was required to draw on his professional training and skills in order to reach the conclusions he did. Whether he regarded any particular aspect of the mother’s version of events as being relevant, significant or even determinative of any particular conclusion he reached was a matter for him. He was required to evaluate the information available to him. It was then for me to assess the logic and reasoning he applied in arriving at his conclusions and to attribute to his opinion such weight as I ascribed. To the extent that Dr FF’s opinion on any particular point was at odds with the opinion on the same point by another expert in the same filed, I was required to assess the logic and reasoning each gave to his or her opinion and then to express my view about whose opinion I preferred.
[34] (2011) 243 CLR 588
In arriving at my assessment of Dr FF’s evidence I have taken into account the totality of his views as well as the criticisms the mother voiced of Dr FF’s views. In my view the mother was wrong when, for example, she asserted that Dr FF was “clearly misleading the truth”. In reaching his conclusions it was not necessary for Dr FF to be sympathetic towards the mother nor was it necessary for Dr FF to place any particular reliance on the mother’s reluctance at living in the western suburbs. Further, in my view the mother’s contentions were erroneous when she submitted that Dr FF somehow erred in failing to place reliance on her status as a health care worker because that status had no bearing on the best interests of the children, the threshold point for me on the parenting aspect in this case. Whether or not the father ended the marriage by text, or whether or not the father and the mother attended marriage counselling for example, was very low in the range of important matters for my consideration of the best interests of the children. I do not share the mother’s criticisms of Dr FF’s report and I certainly do not regard him as being biased.
Dr GG, consultant psychiatrist prepared a report on 10 September 2018. Dr GG’s report was comprehensive. Neither party required Dr GG’s cross examination. I found Dr GG’s report to have been extremely useful. Dr GG canvassed, among other things, how the mother was inclined to speak over Dr GG in an endeavour to make a point about the children’s welfare or about her concerns about the father’s capacity to properly care for the children or about her deep-seated frustration about not being in control of the children’s lives to the degree she wished. Dr GG mentioned that there was little doubt the mother loved her children and that her commitment to them was unquestionable. Dr GG expressed several opinions of which the more important were as follows –
a)the mother did not describe symptoms consistent with a psychiatric condition;
b)the mother exhibited behaviour that led to Dr GG expressing concerns about her psychological functioning that was indicative of an alienating process;
c)the mother repeatedly indicated she was the preferred parent who could manage the children better and she was highly critical of the father;
d)the mother exhibited high levels of conflict especially at changeover;
e)the mother exhibited hectic scheduling;
f)Dr GG had significant concerns about the mother’s ability to appropriately share her children with the father of whom she was unremittingly critical;
g)a strong alienation dynamic was developing involving the children against the father;
h)Dr GG had reservations about the mother’s psychological functioning, her self-control and any understanding of the children’s needs to have a free interchange with both parents; and
i)Dr GG had considerable reservations about the mother’s lack of insight.
Various other reports were put in evidence in this proceeding. They included one or more expert reports written by –
a)Dr HH, a consultant psychiatrist;
b)Dr JJ, a consultant psychiatrist;
c)Dr KK, a psychologist; and
d)Dr LL, a general practitioner.
The mother relied on the evidence of a consultant psychiatrist, Dr HH. He produced two reports, the first dated 19 April 2012 and the second dated 13 September 2016. Dr HH did not give viva voce evidence as no party required his attendance in court.
Taking first Dr HH’s 19 April 2012 report, he gave seven key opinions. Relevantly paraphrased, they were as follows –
a)the mother suffered postnatal depression or major depressive disorder in the postnatal period;
b)the mother’s behaviour of being influenced by Mr Y resembled a cult type experience to which she was vulnerable at the time by reason of her significantly depressive condition at the time;
c)it was difficult to know whether the mother strayed into the realm of psychosis in terms of her faith in Mr Y but the contact ceased (to interpolate in 2012) and there was no current evidence of psychosis;
d)in the view of Dr HH, the mother’s lack of contact impacted her mental state;
e)no contra-indicators existed for the mother to have contact with her daughter;
f)Dr HH did not see a reason for the mother’s contact with the daughter to be supervised; and
g)Dr HH believed contact between the mother and her daughter should resume as a matter of urgency.
Accepting for the moment that Dr HH’s field of expertise was psychiatry, his opinions as paraphrased above must be construed by reference to his expertise only. In other words, when he stated, for example, that no contra-indicators existed for the mother to have contact with her daughter, that was limited to the expression of his opinion from the point of view of the mother’s psychiatric state. Otherwise, he purported to impermissibly overstep the bounds of his expertise, in the manner canvassed by the High Court in Dasreef Pty Ltd v Hawchar.[35] That said, I drew from the April 2012 report prepared by Dr HH –
a)the mother’s cult like behaviour in following Mr Y may have been in ‘the realm of psychosis” but there was no evidence of psychosis when Dr HH prepared his April 2012 report;
b)in the postnatal period the mother suffered from postnatal depression or a major depressive disorder; and
c)the mother’s mental health was being affected by her lack of contact with her daughter.
[35] (2011) 243 CLR 588
In his report dated 13 September 2016, Dr HH expressed his opinion in 10 numbered paragraphs. The first two were almost identically ordered to the corresponding paragraphs of Dr HH’s earlier report. The gravamen of his second report was Dr HH’s conclusion that no psychiatric basis existed for restricting what he called “access” to the children.
Dr HH’s evidence was given in his capacity as a psychiatrist, to state the obvious. To the extent his views traversed matters that fell for my determination such as his contention (not properly described as an opinion within his field of expertise) in paragraph 10 of his second report, I have considered his second report primarily with an eye attuned to his psychiatric opinion.
Dr MM also gave evidence of a psychiatric nature. His first document dated 29 March 2012 was expressly described as being “not a court report.” Ultimately, Dr MM expressed the view that the mother was at low risk to her child and was fit to have supervised visits with her child. In that letter Dr MM wrote the following –
In her recent two appointments, Ms Ambler reported a bizarre story that she had engaged in a course of spiritual cleansing via a Mr Y from 2011 to 2012. She said that this was on her brother’s suggestion and her mother’s initial support. She claimed that she was under the influence of Mr Y who had made her conduct odd rituals. She claimed that Mr Y had deceived her and had taken her money and car. She said that Mr Y had also advised her to leave her baby while strapped to pram in a motel’s bathroom on 25 February 2012. I understand that police had been involved and the matter had been taken to family court. Consequently, she lost the custody of her child to ex-husband on 28 February 2012. (errors in the original)
It must be acknowledged that Dr MM’s comments were written in 2012 whereas the trial of his proceeding was conducted in 2019, many years after the events that were there described.
Dr JJ, consultant psychiatrist (who appeared to have been the same person whose name was given as Dr MM) provided a letter dated 3 August 2017. That letter was also expressed to be “not a court repot.” Dr JJ said the following –
My impression is that Ms Ambler’s current depressed mood is merely a normal psychological reaction to the recent psychosocial stresses including the marriage break-up, custody dispute, and financial difficulty.
I consider her risk as low at this stage. But I recommend monitoring her risk longitudinally.
I did not start her on any medication today. I believe that she is best managed by seeing clinical psychologist, Dr KK at regular intervals for counselling and psychotherapy. Ms Ambler was agreeable with the same.
The letter from Dr JJ and the letter from Dr MM went into evidence without the doctor entering the witness box.
Similarly, Dr KK provided a letter that went into evidence without protest or her entering the witness box. As with Dr JJ, Dr KK provided no statement on her qualifications, training or past experience. Under her signature on a letter dated 21 April 2018 the words “principal counselling psychological and family therapist” appeared. Beyond those words, no insight was given about her relevant expertise. Dr KK wrote in her letter that the mother presented at the EE Group on 5 September 2016 at which time the mother “was diagnosed as having major depressive disorder comorbid with acute stress disorder” (her words). Dr KK did not state who made that diagnosis. At all events, Dr KK stated in her letter that on 20 February 2018 the mother last attended that practice when she was assessed using the depression anxiety stress scales – 42, the Beck anxiety scales – 11 and the coping self-efficacy scales. Dr KK did not say who conducted that assessment or whether Dr KK had any direct knowledge of the assessment that was conducted. Dr KK did not explain what testing was actually conducted on the mother nor did Dr KK explain the results of any of the testing or assessment undertaken on the mother. It was not possible, therefore, to understand the factual and scientific basis that allegedly underpinned the conclusions expressed in the final two paragraphs of her letter. She too did not enter the witness box.
Dr LL was the mother’s treating general practitioner. He did not enter the witness box. However, a letter dated 18 April 2018 addressed to the ICL went into evidence as an exhibit to the mother’s affidavit made 31 July 2018. He made statements in eight numbered paragraphs, as follows (with errors in the original) –
1.Ms Ambler has totally recovered from her Post Partum depression in 2011.
2.She reconciled with her husband and they had another child, during which time she has shown no Post Partum Depression.
3.In fact, despite her ill treatment by her husband she has functioned as a professional at the highest level
4.She has seen several psychiatrists which have confirmed her excellent mental health
5.I am also the family doctor for her children who I have observed to be in excellent physical and mental health
6.She is a caring, loving, responsible mother and her children are extremely happy around her
7.In view of the circumstances of the separation, I am not in a position to say the same for her husband. I am uncertain if a psychiatric evaluation has been provided for him.
8.It is my opinion that Ms Ambler is an excellent mother with no psychiatric issues, she is a productive member of society, employed as a professional and I see no reason why she should not have the custody of her children.
Nothing in the way of a factual basis was given to substantiate most of the opinions there expressed, especially those beyond his expertise.
It is necessary to draw the threads together in relation to the psychiatric, psychological and medical evidence. In my view Dr HH’s evidence should be accepted to support the conclusion that soon after the birth of the couple’s first child, the mother suffered from postnatal depression or major depressive disorder. No real challenge was made to that conclusion.
One of the more important issues was the mother’s ongoing psychiatric condition as well as her psychological condition. The mother’s treating general practitioner was able to offer limited assistance on those issues. He was not a legally qualified psychiatrist nor was he a qualified psychologist. To the extent that he purported to express a view about the mother’s psychiatric condition or her psychological condition in terms of her capacity to advance and promote the best interests of her children I do not accept that he was qualified to express those views. The mother’s general practitioner did not possess the requisite skills, training or higher learning to enable him to express a view about matters of psychiatry or psychology in terms of the holding of the High Court in Dasreef Pty Ltd v Hawchar. The same must be said of Dr KK. She did not adduce her curriculum vitae by which I could assess her education, skills and higher learning or training to enable her to state the conclusions she purported to express in the second last and final paragraphs of her letter dated 21 April 2018.
The most compelling psychiatric evidence emerged from Dr GG and the most compelling psychological evidence emerged from Dr FF. The more important aspects of their evidence have been extracted above. I shall not repeat those observations.
It became necessary to address one of the mother’s contentions about Dr FF. She urged me to reject Dr FF’s opinions about her psychological condition because, so she said, Dr FF’s opinions were at odds with the views of other psychiatrists and psychologists. It is true that in certain respects Dr FF’s views were at odds with other psychologists. For the reasons canvassed above, I found the evidence adduced on behalf of the wife about her psychological condition to be of lesser persuasion than was the evidence given on the same point by Dr GG and Dr FF. I prefer the evidence of Dr GG and Dr FF to the extent that it is at odds with the evidence given for the mother by Dr HH, Dr JJ (Dr MM), Dr LL and Dr KK.
Of the evidence concerning psychiatric matters, the most up-to-date was the evidence given by Dr GG. Dr GG’s evidence on which Dr FF proceeded has been extracted above. Based on Dr GG’s psychiatric evidence I was not persuaded that the mother presently suffers from depressive or psychotic conditions. However, Dr GG’s evidence went beyond expressing his opinion about whether the mother suffered from depressive or psychotic conditions. It was the most current psychiatric evidence in the case. Neither party indicated a desire to cross-examine Dr GG. I accept his evidence unreservedly. Dr GG was cautious to state that while he took the view that the mother did not suffer from a psychotic or depressive condition, nevertheless the mother –
a)exhibited behaviour indicative of an alienating process;
b)repeatedly indicated she was the preferred parent;
c)exhibited high levels of conflict;
d)exhibited hectic scheduling;
e)caused Dr GG to be concerned about the mother’s ability to share her children;
f)exhibited psychological functioning that caused Dr GG to have reservations about her self-control and her understanding of the children’s need to have a free exchange with both parents; and
g)exhibited matters of concern to Dr GG in relation to her insight.
Some findings based on the expert evidence
Having concluded that the mother does not presently suffer from psychotic or depressive conditions I was nevertheless persuaded about several matters. They include –
a)the mother’s attitude to the father remains toxic and hostile;
b)the mother is not capable of acting and behaving in a cooperative manner when parenting with the father;
c)the mother remains deeply frustrated that she is not in control of the children’s lives in the manner she wishes; and
d)the mother does not possess a developed insight into her psychological functioning, self-control and the children’s needs for a free exchange with both parents.
Section 60CA of the Family Law Act provides that when making a parenting order, the court must consider the best interests of the child. The best interests of the child is the paramount consideration. Section 60CC of the Act sets out a collection of considerations that inform the court about matters thereby enabling the court to determine what is in the best interests of the child. Each consideration is important yet none predominates over another.
Section 60CC introduces two critically important considerations. The first is the benefit of a child having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm or abuse whether in the nature of neglect, family violence or otherwise. In a situation where those two critically important considerations clash, then the need to protect the child from physical or psychological harm takes precedence.
The mother’s behaviour
Abuse takes many mixed and varied forms. It can include exposing the children to denigration by one parent of the other. Ample evidence existed in this case of the mother denigrating the father in the presence of the children or one or other of them.
It is necessary to say something about the evidence obtained through the respondent’s cross-examination. Ms Devine of counsel for the father questioned the mother at length, as Ms Devine was entitled to do. While the cross-examination was lengthy, at no stage did I detect anything but scrupulously fair and proper advocacy by Ms Devine who forcefully represented her client. The mother exhibited throughout her cross-examination the intellectual and emotional wherewithal to respond to all of Ms Devine’s questions. She expressly said she had considerable resilience. At no stage was the mother disadvantaged in her cross-examination. I say that despite the very many gratuitous comments that the mother embedded in her answers to questions that were put to her. For example, on several occasions, in purported response to a question put by Ms Devine the mother stated “that’s cruel”, insinuating that she took offence to the question or the subject matter enquired about. Elsewhere, when pressed to answer a question on a range of the subject matters, the wife volunteered that she did some particular thing “for my children”. She used that phrase as a mantra, always gratuitously, out of context and in a manner designed to legitimise the otherwise questionable conduct of the mother about which Ms Devine was pursuing the mother.
It was agreed by both parties that the property was financed by NAB pursuant to cross-collateral security which included the L Street, Suburb M property. The existence of that cross-collateral security raised an issue that no party explored. By giving another property as cross-collateral security a “contribution” was thereby conferred in my view.
The property has been and remains tenanted in respect of which rental income is applied towards interest-only repayments of the mortgage.
As at September 2018 the property was valued at $425 000. A mortgage to the value of $550 000 was in that husband’s name. The debt exceeded the value of this parcel of land. No details were given of the purchase price and who paid what sum to whom, nor about mortgage payments, their duration, tax amounts deducted, tenant’s payments or much else. In short, there was a large void in the evidence on point.
In the wife’s affidavit sworn 31 July 2018 she stated that the property was registered in the husband’s name for tax purposes. However, she did not say whether she made any payments towards the mortgage or whether she applied her income towards other domestic outgoings as to enable the husband’s income to be applied in reduction of the mortgage debt in relation to this property. The evidence was sparse.
W Street, Suburb PP
Another property located at W Street, Suburb PP was purchased in 2014 during the course of the marriage. Similarly to the P Street, Suburb Q property, it was agreed by the parties that this property was financed with NAB under cross-collateral security taken over the L Street, Suburb M property. The loan was in the husband’s name. The property has always been and remains tenanted. The rental income has been applied towards interest repayments due under the mortgage. No details were given of income received or mortgage payments made.
The property was and remains registered in the husband’s name. In the wife’s affidavit sworn 31 July 2018 she stated that the property was registered in the husband’s name for tax purposes. No details were given of any sums paid by her, if any, not whether she applied her income towards meeting domestic outgoings as to enable the husband’s income to be applied towards the reduction of the mortgage over this property. The evidence in relation to this property was sparse.
The property was valued in September at $460 000. At trial the mortgage over the property stood at $475 000. The debt exceeded the value of this property by $15 000.
Furniture and contents of the property at L Street, Suburb M
The wife asserted that furniture and contents at the property at L Street, Suburb M was to be included in the property to be divided. Inferentially, she thereby characterised the furniture and contents as chattels.
In her affidavit sworn 31 July 2018 the wife alleged that those items were jointly acquired during the marriage. No information was given about the actual pieces of furniture or other items of property that was relevant to this components of her claim. No details were given about the date of acquisition of each or any item of property under this category nor who contributed what sum. It was agreed by the parties that the husband had retained all the chattels in the home.
No independent evidence (or any evidence, for that matter) was led as to the value of the furniture and contents. In the parties’ affidavits the wife attributed a value to the furniture and contents at $20 000 whereas the husband alleged the value was $7 000. No actual evidence of value of this property was given – merely assertions. I was unable to reach a conclusion about what form this property took or the value of the chattels in the face of dispute about value. To the extent that the value given by the parties at $7 000 being a common sum, the sum of $7 000 represents an agreed amount and the difference between that amount and the sum of $20 000 given by the wife ($13 000) was disputed in respect of which no evidence was led. I therefore place an agreed value of $7 000 on chattels. It seemed plain enough that despite particulars on the actual items of furniture or chattels, the parties recognised that those chattels actually existed and had some value, the dispute being one of value. They agreed, or it was common ground, that the value of the items was at least $7 000. There being no other or better science, I am willing to proceed on the basis that $7 000 was uncontested for this item.
Motor Vehicle 2
The property to be divided included a Motor Vehicle 2 purchased in 2014 and registered in the husband’s name. In his affidavit sworn 13 July 2018 the husband stated that the vehicle was purchased for $21 000, using $18 000 from his savings and $3 000 from the wife’s savings.
The value of the vehicle was in issue. The wife alleged that the vehicle was worth $4 000. The husband disputed the wife’s assertion alleging the vehicle was worth $7 000.
No independent valuation was given of that vehicle. It was agreed by the parties that the wife had sole use of the vehicle. In her affidavit sworn 31 July 2018 the wife stated that she had paid the registration, insurance and maintenance since separation. Very early in the wife’s cross-examination she gave evidence that the vehicle was uninsured and, despite repeated requests, the husband failed to pay the insurance. The insurance remains unpaid. For the vehicle to be utile, that sum must be paid. It seemed plain enough from that short recital of the evidence about that vehicle that –
a)the wife applied $3 000 from her savings for its acquisition;
b)she paid registration, insurance and maintenance of the vehicle since separation; and
c)the value of the vehicle was not proved.
Motor Vehicle 1
The property to be divided also included a Motor Vehicle 1 purchased in 2015. In his affidavit sworn 13 July 2018 the husband stated that the vehicle was purchased using a combination of savings, funds from an investment loan and proceeds from the sale of a Motor Vehicle 3 purchased by both the parties in 2010. He did not descend to the detail of exact amounts making up the purchase price. The wife agreed in her affidavit sworn 31 July 2018 that the proceeds of sale from her motor vehicle was used to purchase the Motor Vehicle 1. She did not say how much that was.
It was agreed that the vehicle was registered in the husband’s name. The current valued was disputed. The wife alleged in her affidavit sworn 31 July 2018 that the value of the vehicle was $29 000 whereas the husband alleged in his affidavit sworn 13 July 2018 the vehicle was worth $15 000. No independent valuation was given in evidence about the value of the Motor Vehicle 1.
In relation to both motor vehicles, mere assertions as to the values were made by both parties. No objective evidence demonstrated the price or value. It was plain enough that by the application of the proceeds of sale of the Motor Vehicle 3 vehicle the wife contributed to the acquisition of the Motor Vehicle 1 yet the amount of that contribution was not stated.
No real evidence of the two vehicles’ value
Faced with unsubstantiated competing assertions of the value of each motor vehicle, I was left with such common ground as there was about each vehicle’s value as at the date of trial. The Motor Vehicle 2 was purchased for $21 000, an agreed position. Yet no precision was given about how that purchase price was paid. After the vehicle had been used for a time one party ascribed an unsubstantiated value to it of $7 000 whereas the other ascribed an equally unsubstantiated but lower value to it of $4 000. Implicit in both positions was the recognition that the lion’s share in the vehicle’s value had been lost through wear and tear, depreciation or age and that its current value was between $4 000 and $7 000. With a view to cauterising one only of the weeping sores in this case, I will fix a value of $4 000 to that vehicle, being a common minimum amount although the science of such an approach is mercurial.
The Motor Vehicle 1’s value was likewise unsubstantiated. It may fairly be said that the wife seemed to guess at the figure of $29 000 whereas the husband guessed at a figure of $15 000. Neither figure was supported by documents of purchase or of security. Not even a car dealer’s guide was put into evidence. The difference between the two figures is $14 000. It was common cause that the Motor Vehicle 1 was valued at no less than $15 000 so I will use that as representing the minimum value to be ascribed to the Motor Vehicle 1.
Boat
The ownership and value of the boat was in contention. At trial the wife gave evidence that the husband solely owned the boat. The husband disputed that evidence asserting he had only a one-third interest in the boat (his father owning the other two thirds). No direct evidence was given concerning the value of the boat nor the proportions in which it had been purchased. Ms Devine of counsel argued that the boat fell outside of the property to be divided because no evidence as to value was given nor ownership of the boat although the husband brought the property to the marriage and still retains the property.
Given the dispute as to the value of the boat and the dispute about the equity the husband had in the boat as well as who actually owned it, it was not possible on the evidence before me to attribute a value to the boat or to the equity the husband may hold in that chattel.
Shares
A share portfolio made up of shares in Company SS and shares in Company RR was put in evidence having a value of $32 000. The shares were purchased by the husband prior to the marriage and remain in the husband’s name. That was agreed by both parties. Shares, self-evidently, as choses in action, are property.
Bank accounts – NAB and Westpac
Three bank accounts were relevant. They were –
a)the husband’s NAB offset account number;
b)the wife’s Westpac account number;
c)the NAB account in the name of TT Pty Ltd, being account number operated and controlled by the wife.
At the date of the trial the husband’s NAB offset account had a credit balance of $81 000, as was agreed by both parties.
The wife’s Westpac account recorded in the wife’s financial statement showed $3 000 standing to its credit. However through her cross-examination the wife revealed that the account had funds nearer $11 000. Ms Devine of counsel argued that the account has been solely operated by the wife since separation.
The wife operated a NAB account in the name of TT Pty Ltd. The wife alleged there was no money in that account. However, the husband disputed the assertion. Ms Devine of counsel argued that the actual amount in that account could not be ascertained because the wife failed to disclose all relevant documents regarding her financial circumstances. In the absence of bank records it was not possible to place any amount on funds in that account.
Jewellery collection
In the husband’s material he alleged the wife had a jewellery collection worth $10 000. However, that sum was disputed by the wife. No evidence was led during the course of the trial as to the existence or worth of the jewellery. I was unable to form any assessment of the existence or value of the alleged jewellery.
Superannuation
As agreed by the parties each had superannuation as follows –
a)the husband’s Super Fund 1 account containing $115 000; and
b)the wife’s Super Fund 2 account containing $72 000.
Evidence concerning superannuation has been the subject of observations by the Full Court of this court in two important cases, namely In the Marriage of Coghlan and Palumbo & Mandel[110]. In Coghlan a five member appeal bench (Bryant CJ, Finn, Coleman, Warwick and O’Ryan JJ) made important comments about the issues which a trial judge should address and factual findings to be made by a trial judge in relation to superannuation. They include –
a)contributions to superannuation;
b)the impact of the assessment of those contributions entitlements in determining if any adjustment should be made on account of s 75(2);
c)the real nature of the superannuation interest to be taken into account.
[110] [2019] FamCAFC 228
Here, next to no evidence about superannuation was adduced beyond the total amount held by each as at the date of trial. I recognised that the amounts are modest. However, no evidence was given to explain why those amounts were as modest as they were. It may be that the amounts were so small because the parties diverted their income towards other assets. That may have been the case here because the parties’ incomes were not large and they were not servicing mortgage debts over several parcels of land so it was likely that they were left with little to apply towards superannuation. However, that is mere speculation in my part as no evidence on point was led.
Superannuation and information about it was sparse. The evidence demonstrated the criteria set out in Coghlan’s case as applied in Palumbo & Mandel was in short supply. It was possible to state as a proven fact the amount each party held by way of superannuation as at the date of trial. The evidence did not go so far as to enable me to find with any certainty –
a)whether the modest sum held by the wife in her superannuation was the consequence of, for example, her being required to meet other domestic expenses and in meeting the children’s needs thereby precluding her from amassing a greater superannuation sum;
b)whether the sum lost upon giving it to Mr Y could have been applied towards enhancing the wife’s superannuation fund;
c)about the parties’ respective superannuation positions in order to determine that “the real nature of the superannuation interests is taken into account” beyond finding that each has the amount recorded above and the wife may have had more has she not given Mr Y $125 000; and
d)whether the matters set out in s 75(2) had an impact upon the parties’ future superannuation prospects.
Real properties and other assets in summary
The table set out below represents a summary of the net position of the parties’ property (real and personal).
Property Address
Registered Proprietor
Date of Acquisition
Net Value at Trial
J Street, Suburb KK
Husband
August 1982
$430 000 less mortgage of $200 000
$230 000
L Street, Suburb M
Husband
2002
$710 000
V Street, Suburb Q
Wife
2006
$1 150 000 less mortgage of $490 000
$660 000
N Street, Suburb O
Husband
2010
$500 000 less mortgage of $350 000
$150 000
P Street, Suburb Q
Husband
May 2014
$425 000 less mortgage of $550 000
-$125 000
R Street, Suburb Q
Husband
August 2014
$460 000 less mortgage of $475 000
-$15 000
Furniture and contents of the property at L Street, Suburb M
Not specified but most likely joint
Subsequent to purchase of L Street, Suburb M
Undisputed amount of $7 000
Motor Vehicle 2
Husband ($18 000 from him and $3 000 from her)
2014
Undisputed amount of $4 000
Motor Vehicle 1
Husband
2015
Undisputed amount $15 000
Boat
No evidence
No evidence
No evidence
Shares
Husband
Prior to marriage
$32 000
Cash-at-bank
Husband
No evidence
NAB $81 000
Cash-at-bank
Wife
No evidence
Westpac $11 000
Cash-at-bank
Wife
No evidence
NAB TT Pty Ltd no evidence of amount
Superannuation
Husband
Agreed sum $115 000
Superannuation
Wife
Agreed sum $72 000
Jewellery
No evidence
No evidence
No evidence
Net position of the parties
Based on the foregoing table the propositions set out below emerged.
The property owned by the parties that predated the marriage was as follows –
a)J Street, Suburb K;
b)L Street, Suburb M;
c)V Street, Suburb Q; and
d)Shares amounting to $30 000.
The property acquired during cohabitation or during the marriage was as follow –
a)N Street, Suburb O;
b)P Street, Suburb Q;
c)R Street, Suburb Q;
d)furniture and household effects;
e)the Motor Vehicle 2; and
f)the Motor Vehicle 1.
Very little attention at trial was devoted by Ms Devine or the mother to matters pertinent to superannuation. However, Ms Devine argued that the amount of time the children will continue to have with the father is greater than the amount of time the children will spend with the mother and so, she argued, a significant financial impost will befall the father affecting his earning capacity in view of his care for the children. That contention was not borne out by very much in the way of evidence to support it. Of course I recognise that a parent with daily duties in relation to raising and caring for children bears a particular financial load that may well be more than the load falling upon the parent without the daily duties in relation to raising and caring for children. But in the absence of evidence on point and in the absence of a focused debate on point highlighting the precise financial consequence of having daily care of the children, any conclusion by me is less than reliable.
The value to be attributed to the property to be divided under s 79 was not easily ascertained.
Doing the best I can based on the table set out above, that property is made up of –
a)J Street, Suburb K;
b)L Street, Suburb M;
a)N Street, Suburb O;
b)P Street, Suburb Q;
c)R Street, Suburb Q;
d)V Street, Suburb Q;
e)furniture and household effects;
f)the Motor Vehicle 2;
g)the Motor Vehicle 1;
h)shares;
i)superannuation; and
j)cash-at-bank.
Property orders sought by the wife
The wife sought orders that the property be divided in a manner that she receives equivalent to 40% of the value of property falling for division in this litigation. That percentage was more an ambit claim than any calculation based on s 79 of the Family Law Act. She proposed the following orders –
a)no child support payable by either party;
b)parties have equal shared responsibility to meet educational costs for both children;
c)within 14 days the husband transfer or pay by way of cheque $65 000 the wife;
d)the husband remove the caveat lodged over the Suburb Q property in the wife’s name;
e)the husband co-operate with the insurance claim for the Motor Vehicle 2 registered in his name and either provide the payout money to the wife within seven days of receipt if the vehicle is written off or do all things necessary to transfer ownership of the vehicle within seven days of the insurance claim assessment outcome;
f)there be an equalisation of superannuation entitlements between the husband and wife, causing $21 500 to be transferred to the wife’s Super Fund 2 account; and
g)each party retain all other assets in their respective names.
Property orders sought by the husband
The husband proposed a 75% division of the property in his favour with 25% division in favour of the wife. The husband sought the following orders –
a)within 90 days of orders the wife pays to the husband the sum of $270 000;
b)if the payment is not made by the wife the husband is to be paid interest on that said sum at the rate of 10% per annum from the due date;
c)in the event the wife fails to comply with the payment the wife is to appoint a real estate agent so as to effect the sale of the Suburb Q property in her name for the best price reasonably obtained;
d)upon settlement of the Suburb Q property the proceeds are to be firstly applied to pay all costs and expenses of the sale, secondly to discharge any encumbrances of that property and thirdly to distribute $270 000 to the husband plus the interest and the balance to the wife;
e)pending the transfer or settlement of the Suburb Q property the wife pay all instalments pursuant to the mortgage and all rates, taxes and outgoings as they fall due;
f)the wife is restrained from encumbering or further encumbering the Suburb Q property with the husbands consent;
g)the parties do all things necessary to effect a transfer of the Motor Vehicle 2 to the wife;
h)each party is solely entitled to the exclusion of the other all real estate and personal property in the name and or possession of the party to date;
i)monies standing to the credit of the parties in any bank account is to be the property of the party in whose name the account is held;
j)each party foregoes any claim to superannuation benefit to or owned by the other, the party in whose name the policy exists shall be the owner and beneficiary of the policy to the exclusion of the other;
k)each party is solely for and indemnify the other against any liability encumbering any item of property to which that party is entitled;
l)any joint tenancy in real or personal property is severed; and
m)either party have liberty to apply with respect to the terms and conditions of and execution of sale of the Suburb Q property.
Section 79(4) considerations
As mentioned above, when considering the appropriate orders to be made for the division of property under the Family Law Act the court must look to the statutory principles set out in the Family Law Act and to guidance given in the construction of that legislation first, by the High Court, next by the Full Court of this court and then to decisions of single judges of this court. In accordance with s 79(4) consideration must be given to the parties’ financial contributions made directly or indirectly to the acquisition, conservation or improvement of any property, the parties’ non-financial contributions made directly or indirectly to the acquisition, conservation or improvement of any property and any contribution to the overall welfare of the family, including in the capacity of homemaker or parent.
The court must also take into account the effect of property orders on the parties’ earning capacity.[111] Factors relating to the future needs of party’s to be considered are set out in s 75(2).
[111]Family Law Act 1975, s 79(4)(d)
As mentioned above the evidence adduced in this case about the matters that I needed to address in adjusting property interests under s 79 was significantly less than informative. Important information about dates of acquisition of property (real and personal), amounts involved, documentary proofs, corroborating entries from bank accounts, dates of disposal of property (motor vehicles especially) and the application of funds (especially involving rolled over sums) was poor. As a result, when it fell to me to assess contributions, or even the net value of the property that fell for division, the task was far from straight forward. On many matters, that paucity of evidence actively impeded my ability to make informed factual findings.
Direct financial contributions by the wife
The parties agreed that the wife’s net equity contribution at the commencement of the relationship was agreed by the parties to be approximately $240 000 made up of the following –
a)the land and improvements at V Street, Suburb Q;
b)a Motor Vehicle 4;
c)a savings account; and
d)Shares in Company U.
At the commencement of the relationship until 2009 the wife was employed with XX Pty Ltd. In her affidavit sworn 31 July 2018 the wife stated that she earned approximately $90 000 per annum while working at XX Pty Ltd. Once the wife ceased her employment with XX Pty Ltd in 2009 she commenced her own business which she conducted from the matrimonial home. Evidence of her earnings in this business was poor. No evidence was given at trial nor in the wife’s affidavit stating the amount she contributed from her earnings to meet day-to-day amounts subsequent to cohabitation.
In 2010 after the birth of their first child the wife stated in her affidavit sworn 31 July 2018 that she stopped working so as to care for the child. The husband’s evidence in his affidavit sworn 13 July 2018 conflicted the wife’s evidence as he said the wife continued to work after the birth of their daughter. No cross-examination was directed to the point.
The wife led evidence that since separation she solely pays for the children’s music classes, tuition, Country DD school fees and half of the eldest child’s school fees. It was fair to say that the evidence of the wife’s financial contributions from the date of cohabitation was poor. Whether and if so how much she contributed towards mortgage repayments was not given by her.
It must be recognised that the wife depleted assets. It was agreed by both parties that the wife suffered postnatal depression in 2011. While the wife was ill she conceded that she gave Mr Y $125 000 in cash and her vehicle. She did not say the source of that amount.
The wife issued a proceeding in the County Court and obtained an order pursuant to which she recovered her vehicle plus $25 000 in cash from Mr Y. The sum recovered was disputed by the husband as he claimed the wife only received $10 000.
Direct financial contributions by the husband
The parties agreed that at the commencement of the relationship the husband had equity in real property of approximately $585 000 made up of –
a)the land and improvements at J Street, Suburb K;
b)the land and improvements at L Street, Suburb M;
c)an ANZ account with savings of $40 000;
d)a share portfolio of approximately $15 000; and
e)a share in a boat (although the value of and ownership of his interest in the boat was not proved).
The husband’s evidence of his earnings from the date of cohabitation was similarly vague. Evidence of how he spent his earnings was equally vague. He applied some of his earnings in reduction of various mortgages. Neither party gave particularly useful or informative evidence about their monetary contributions toward the children.
Legal fees incurred by the husband was the subject of complaint by the wife. That said, evidence of the source of those payments was not given.
Indirect financial contributions by the wife
The wife’s submissions did not descend to any consideration of indirect financial contributions. However, it seemed plain enough that she did in fact make indirect financial contributions, mainly as home maker. On her version of the evidence, upon the birth of the first child of the marriage, as mentioned above, she stopped her business and took on the role of primary parent and homemaker. She said the following in her affidavit sworn 31 July 2018 –
I was overjoyed to be a mother and continued the duties of the household (cooking, laundry, cleaning) and also looked after B single-handedly as Mr Ambler as at work during business hours and often also worked from home after hours and I was breastfeeding.
Later, after the first period of separation and subsequent reconciliation the wife resumed caring for the children on a near-fulltime basis. In the passages above I have listed the matters that may properly be taken into account under the rubric of non-financial contributions. In this case the evidence demonstrated that for a time (as it happens, quite some time ago) the wife was at home full-time as a carer for her daughter then later as the carer for the couple’s son as well. That effort must be recognised as a contribution for the purposes of s 79 of the Family Law Act and I do so recognise it in this litigation.
Indirect financial contributions by the husband
Since 2011 when the orders were made for the father to have sole parental responsibility for the children, he has been the children’s primary carer. The evidence revealed that he has been diligent and devoted in that role. The wife was critical of his parenting. However, there can be no denying that the father’s non-financial contributions as home maker and parent have been considerable.
Future needs of the wife
Since separation the wife has worked at the Employer YY part time three days a week as a professional.
In her affidavit sworn 31 July 2018 the wife alleged that she cannot reside in her Suburb Q property and concurrently meet the repayments applicable to it. The wife attributes this partly to her current gross annual salary of only $49 537.
The wife gave evidence at trial of a particular health issue, namely bulging discs in her neck. The wife stated that she receives various treatments in order to cope with the pain. Ms Devine of counsel put to the wife that she had spent $23 687 since separation on alternative therapies. The wife conceded that it was a large proportion of money in comparison to her income. I accept that the wife, while fit and in good health as an accomplished health care worker, has need for funds to meet likely expenses associated with bulges to neck discs. The precise quantum of those financial needs was not given in evidence. It was not possible for me to assess whether the sum of $23 687 expended by the wife since separation was excessive or not. However, proceeding on a date of final separation of mid-2016, that sum was expended in about three years, making the expenditure a little over $7 000 per annum. I accept that some provision must be made in favour of the wife on account of future medical expenses associated neck disc bulges.
A controversy emerged in this case about the wife’s inability to use a vehicle because he husband was not willing to pay on-road costs. The wife needs a motor vehicle. Provision should be made for on-road costs to be paid to allow her to be equipped with a vehicle in order to transport the children.
Future needs of the husband
The husband did not place reliance upon future needs based on health issues but rather the placed reliance on future needs based on his ongoing care for the children and the raising of them. That matter has been canvassed above.
Tying together the threads about property
At the commencement of cohabitation, the husband brought to the relationship the value of two parcels of real estate. They were
a)J Street, Suburb K; and
b)L Street, Suburb M.
At the commencement of the relationship the wife brought the value of one parcel of real estate, namely V Street, Suburb Q.
During the marriage the parties acquired three further parcels of real estate, all registered in the husband’s name and all negatively geared. The evidence revealed that the husband met mortgage instalments in relation to those parcels of real estate. They were –
a)N Street, Suburb O;
b)P Street, Suburb Q;
c)R Street, Suburb Q.
No evidence was adduced to the effect that the wife made any direct financial contributions towards the acquisition or maintenance of the parcels of real estate mentioned the immediately preceding paragraph. That said, it is likely that at least some amount of joint funds was used for the acquisition of those properties, albeit that they were registered solely in the husband’s name. In the absence of details about the amounts applied, it is little more than guess work on my part to try to ascertain the precise sum that was employed to acquire the properties in Suburb O, P Street, Suburb Q and in R Street, Suburb Q. Equally it was little more than guess work to attempt to arrive at amounts that were applied in reduction of the mortgage debts over those properties.
The parties agreed that direct financial contributions were made by both the husband and the wife. The sums differed yet agreement was reached that those direct financial contributions were as follows –
a)by the wife approximately $240 000; and
b)by the husband approximately $585 000.
Applying that arithmetic, Ms Devine said the wife directly financially contributed almost 30% of the value of the property at the commencement of cohabitation.
No percentages were offered by either party about the quantum of the wife’s non-financial contributions. For that matter, no percentages were offered about the quantum of the husband’s non-financial contributions.
However, Ms Devine argued that in the overall, the husband’s direct and indirect contributions, whether financial or non-financial were greater than were those of the wife. She argued that by reason of the husband’s provision of non-financial contributions since 2011, a loading of 10% should be added making the overall percentage assessment at 75% in his favour and 25% in favour of the wife.
The wife made an ambit claim for a division of property in an amount that equated to 40% in her favour. She offered no science in her reasoning nor calculations in her arithmetic in arriving at that figure. Yet curiously, it reasonably closely approximated the figure for which Ms Devine originally advocated which was 65% in favour of the husband and 35% in favour of the wife.
The total assets and liabilities identified produced a pool of property valued at a net amount of $1 947 000 to be divided between the husband and the wife.
If the wife’s contentions were to be preferred and the property were to be divided so that the property was divided in her favour in an amount equivalent to 40% of its value that would result in an amount of $778 800.
If the property were to be divided in the terms Ms Devine contended for in other words 75% in favour of the husband, he would retain $1 460 250 and the wife would retain a mere $486 750. That would require the wife to sell her land in Suburb Q. That would be a manifestly unjust and inequitable.
Neither offered a satisfactory division of the property.
It seemed to me that the initial contributions were closer to a two third contribution by the husband and one third by the wife. The marriage in this case was relatively short. The financial contributions during the marriage were greater by the husband than by the wife. The non-financial contributions were largely equal as home makers.
As Ms Devine argued the husband has had the care of the children for longer and will continue to do so. In my view a loading, although not 10%, is required.
It seemed to me a justifiable logic and fairness underpinned a division of property in this case on a 61.5% basis in favour of the husband and 38.5% basis in favour of the wife. In my view, the justice and equity of the financial circumstances of the parties justifies an order dividing the property in those terms.
The division of property in those terms would allow the wife to keep her property in Suburb Q, a small amount in her Westpac account, the Motor Vehicle 2 and her superannuation. To divide the property so that the wife received any less would be unjust and inequitable. The wife requires a means of transport to facilitate her time with the children.
In the upshot, the property of the parties remains largely as it is. By that I mean that according to the division expressed above –
a)the husband retains the J Street, Suburb K property, L Street, Suburb M property including the furniture and contents, N Street, Suburb O property, P Street, Suburb Q property, R Street, Suburb Q property, the Motor Vehicle 1, the shares and the cash-at-bank in the NAB account; and
b)the wife retains the V Street, Suburb Q property, the Motor Vehicle 2 vehicle and the cash-at-bank in her Westpac account.
Each retains their superannuation.
I certify that the preceding three hundred and twenty-two (322) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 9 December 2019
Associate:
Date: 9 December 2019
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