Arman & Arman

FAMILY COURT OF AUSTRALIA

ARMAN & ARMAN

[2008] FamCA 923

FAMILY LAW – CHILDREN – Parenting orders – best interests of the child – Impact of a family violence order where party consent with a denial of liability – rebuttal of presumption of equal shared parental responsibility

FAMILY LAW – PROPERTY – Contributions – Add-back where evidence vague and money received subsequent to separation – Just and equitable division.

Crimes (Family Violence) Act 1987 (Vic)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Godfrey & Sanders (2007) 208 FLR 287
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Mazorski & Albright (2008) 37 Fam LR 518
Pierce v Pierce (1999) FLC 92-844

APPLICANT:

Mr Arman

RESPONDENT:

Ms Arman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

3450

2007

DATE DELIVERED:

31 October 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

14, 15 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR WERNER

SOLICITOR FOR THE APPLICANT:

RIGOLI & ASSOCIATES

COUNSEL FOR THE RESPONDENT:

MS PHELAN

SOLICITOR FOR THE RESPONDENT:

HARWOOD ANDREWS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR EIDELSEN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

WESTMINSTER LAWYERS

Orders

That paragraph 1 of the minutes attached to the orders made by me on 8 May 2008, paragraphs 3 and 4 of the minutes attached the orders made on 31 March 2008 and paragraphs 2 to 7 of the minutes attached to the orders made 13 December 2007 are discharged.
That the wife have sole parental responsibility for major long-term issues relating to the care, welfare and development about the education and health of the children G born … November 1995 and E born … June 1998 but that otherwise, the parties have equal shared parental responsibility for the children.
For the purposes of paragraph 2 of these orders, the wife advise the husband of all decisions that fall within the definition of major long-term issues and which she has made in relation to the health and education of the children.
In respect of major long-term issues other than health and education, the parties are to communicate in writing about decisions to be made and in the event that after so doing, there is no agreement, the wife shall be responsible for making the decision.
That the children shall live with the wife.
That the husband spend time with the children as follows:
(a)from 4.30 pm until 7.30 pm on each Friday and Saturday except for the last Friday and Saturday of each calendar month when the same times shall occur but the days will be Thursday and Friday; and
(b)from 4.30 pm until 7.30 pm on Christmas Day in each year.
That the husband communicate with the children by telephone on each Tuesday between 6.30 pm and 7.00 pm with the husband telephoning the children and the wife facilitating the children receiving those calls.
That the husband be and is hereby restrained from consuming any alcohol for a period of 12 hours prior to the commencement of any of his time with the children under these orders and from consuming any alcohol when he has the children with him.
That for the purposes of these orders, the wife deliver the children to the husband at the commencement of any period at the carpark of the W Police Station and the husband return the children to the wife at the conclusion of such period of time to the same location.
That the wife enable the attendance of E at any counselling appointment recommended by the school authorities at the school E attends.
That the husband be entitled to receive from any school at which the children attend:
(a)newsletters;
(b)academic progress reports; and
(c)photographs,
and to the extent that it is necessary for her to do so, the wife authorise the school to provide such information at the cost of the husband.
That the husband be entitled to attend at any school at which the children attend for the purposes of participating in:
(a)any parent-teacher meeting;
(b)any meeting required by the principal or other school authority;
(c)any school speech night or valedictory dinner;
(d)any sporting or school event at which the children are participating; and
(e)any other event at which parents are expected to attend.
That the wife advise the husband of any serious illness or injury affecting the children and the details of the health professionals involved and to the extent that it is necessary to say so, the husband is entitled to attend upon and/or telephone those health professionals and be provided with information about the children.
That pursuant to s 65DA(2) and S 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
That by 4 pm on 14 November 2008 and at a time arranged with the wife, the husband attend upon the home at B Street (“the [B Street] property”) and collect for his retention:
(a)the air compressor;
(b)the vice;
(c)the orbital sander;
(d)the car jacks;
(e)the axle stands;
(f)the car ramps;
(g)the under-car crawler;
(h)the rivet gun; and
(i)the socket set,
but that otherwise, the wife retain and be the sole owner of all other chattels in and at the B Street property.
For the purposes of these orders, “the pool” is defined as follows:
(a)the proceeds of the sale of the B Street property after the discharge of the mortgage encumbering the B Street property and the real property at T Street (“the [T Street] property”) and all costs and expenses of the sale of the B Street property;
(b)the T Street property with a specified value of $195,000;
(c)the husband’s car with a specified value of $3,000; and
(d)the wife’s car with a specified value of $600.
That the pool be divided as to 65% to the wife and 35% to the husband.
That for the purposes of the pool, by 4 pm on 14 November 2008, the husband and the wife do all acts and things and sign any necessary document to place the B Street property on the market for sale and the proceeds of the sale be applied as follows:
(a)first, to discharge the mortgage encumbering the B Street property and the T Street property;
(b)secondly, to pay all costs, commissions and expenses of the sale; and
(c)thirdly, to divide the balance so as the wife receives 65% of the pool and the husband 35% of the pool.
For the purposes of paragraph 18 hereof, at the settlement of the sale of the B Street property and prior to the distribution of any funds to either party, the charges giving rise to caveats lodged on the titles to the B Street property and the T Street property by the respective lawyers for the parties in relation to their professional costs shall be satisfied by a payment to those caveators but only up to the extent of the entitlement of the parties as set out in paragraphs 17 and 18 hereof.
That any costs due to the parties’ respective lawyers which are in excess of the entitlement of the parties shall be an issue between the lawyer and client and any shortfall shall not be a basis for the lawyer not to withdraw the relevant caveat at the settlement of the sale of the B Street property or the transfer of the T Street property.
That as part of the entitlement of the wife, the husband transfer to the wife, at her expense, all of his interest in the T Street property.
That pending the sale of the B Street property:
(a)the wife have the sole right to occupy the B Street property;
(b)the husband have the sole right to occupy the T Street property;
(c)the parties hold their respective interests in the said properties on trust pursuant to these orders; and
(d)neither party further encumber the said properties.
That notwithstanding paragraph 22 hereof, 7 days prior to the settlement of the sale of the B Street property, the husband vacate the T Street property and thereafter, the wife have the exclusive right to occupy the T Street property.
That for the purposes of the sale of the B Street property, in default of the parties’ agreement by 4 pm on 14 November 2008 as to the real estate agent, the conveyancing solicitor or conveyancing company and the terms and conditions of any sale, the parties have liberty to apply to me on short notice for such matters to be determined on application supported by appropriate affidavit material.
That each party otherwise retain and the other relinquish any interest in, all other property in the possession of such person as at this date.
Any joint tenancy in any real or personal property is forthwith expressly severed.
It is certified that it was appropriate to brief counsel to attend and appear at the hearing.
Any and all questions of costs arising out of these orders are reserved to be determined on written submissions. If any party desires to make such a submission, it shall be filed with my Associate and served on any other party by 4 pm on 14 November 2008 and any reply thereto shall be similarly filed and served by 4 pm on 21 November 2008.

IT IS NOTED that publication of this judgment under the pseudonym Arman & Arman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3450 of 2007

MR ARMAN

Applicant

And

MS ARMAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

These are proceedings between the husband and the wife in relation to parenting orders and property settlement.
The parenting proceedings involve their two children G who was born in November 1995 and who is therefore not far away from 13 years of age and E who was born in June 1998 and who is therefore 10 years of age.
The parenting orders relate to questions of how much time each parent spends with those children. The positions provide a stark contrast. The husband seeks that the children live with him on a week about basis and the wife seeks to limit the children’s time with their father to three hours on each of two days per week.
Until the final hearing began, there was little dispute between the parties that orders should be made for them to have equal shared parental responsibility. That position changed on the first day. Like the time issue, the question of decision making and responsibility for the children is equally stark. The husband wants equal shared parental responsibility whilst the wife wants to have sole responsibility.
The property proceedings in dispute are modest. The parties have equity of just over $400,000 in two main assets. The issue is about the division of those assets. The husband wants an equal division whilst the wife opened her case on the basis of 65 per cent but closed it at 70 per cent in her favour. In the mix of that dispute, there is an argument about who should have which of the two real properties. One of those properties is the matrimonial home which is unencumbered and the other is an investment property in which the husband is living which is encumbered. Both parties have executed charges in relation to their legal fees and it was common ground that whilst those fees had to be paid out of the respective entitlements of the parties, orders were needed that upon the sale of the otherwise unencumbered property, those fees were to be paid as part of discharging any liabilities.
It is also the husband’s case that he wanted to retain the property in which he was living leaving the wife and children to find alternative accommodation. For reasons which I shall set out in this judgment, I do not see that as a sensible solution for the benefit of the parties let alone the children.
Throughout these reasons for judgment, I shall refer to the parties as husband and wife. Unless otherwise indicated, statements as to events amount to findings of fact.
The standard of proof is set out in s 140 of the Evidence Act 1995 (Cth). It is the balance of probability. All of my findings have been determined according to that standard.
Over three days, I have had the advantage of watching the parties and listening to their evidence.
The husband was the applicant and therefore gave evidence before the wife. He is a garrulous man who found difficulty in containing himself. He insisted on explaining things as he saw them notwithstanding his evidence on that topic may not have been relevant. About what is right or wrong, he was adamant. Invariably, it was the wife who was wrong. Counsel for the husband cross-examined the wife on the basis that a number of statements that she made were simply lies. Based on the assumption that that cross-examination was under instructions from the husband, I conclude that that was the husband’s view. His demeanour in court whilst giving evidence as well as when he was in the body of the court during the cross-examination by his counsel of the wife reinforced my view that he would accept no other view than his own about parenting. When evidence was put to him that did not sit comfortably with his version of facts, he either said there was a misunderstanding about what he was saying to other people or that he had told his lawyers and they had not been interested in putting the material before the court. He has a low opinion of the wife viewing her as mentally unstable and in his words, being schizophrenic. He adamantly suggested that in relation to statements made by his children, or acts that they had undertaken, they were either mouthing what their mother had told them or were acting upon her instructions. Because of a number of factors, his demeanour and lack of responsiveness, I do not accept much of what he said as truthful. As I have indicated, statements of fact set out in this judgment are based upon findings of fact. Where there is a conflict in the evidence between that of the husband and the wife, I prefer the evidence of the wife.
The wife also gave evidence. She was cross-examined at length by counsel for the husband but not at all by counsel for the Independent Children’s Lawyer. The wife had the benefit of an interpreter sitting with her in the witness box but only for the purposes of clarifying and interpreting concepts and statements. Ironically, the husband said in his affidavit that the wife had not made an effort to learn English and integrate herself into Australian society. He said:
She has not bothered to properly or formally learn to speak, read and write English, despite the fact that she has ongoing difficulties with day to day matters.
There could be no better testament to the nonsense of that statement than to hear the wife’s evidence. Her English was excellent. There were very few times she had to turn to the interpreter but when she did, it related to concepts which on one occasion had even the interpreter confused having regard to the sentence involved. For a woman who did not speak English when she arrived in Australia 14 years ago, if her evidence is any guide, she has an excellent grasp of not only the language but of concepts such as schooling for the children, sporting activities and dealing with the court system. Ms F who was the single expert in the proceedings described the wife as a pleasant 35 year old woman. She said that the wife was accompanied to the interview by her maternal cousin who acted as an interpreter during the interview. The extent of the need for an interpreter in that interview was not clear but I had no difficulty understanding what she said.
The wife is a softly spoken woman who was responsive to questions and adamant about being truthful. When she was asked to explain something that she said had occurred, she was able to sequentially describe the events. Her evidence was plausible. Her views about the husband’s role in the lives of the children were sensible as well as plausible.
In so far as it was suggested by the husband that his wife had some mental illness or strange behavioural traits, they were certainly not evident in the witness box. It goes without saying therefore that I accept her evidence generally.
The husband is 44 years of age. He was born in Lebanon but has been living in Australia since the 1980s. He is a driver by occupation although he only works on a part-time basis.
The wife is 36 years of age. She was born in Lebanon and only came to Australia as a result of the marriage. The parties met through a family arrangement whilst the husband was in Lebanon.
The parties married in April 1993 in Lebanon and later that year came to live permanently in Australia. At that time, the wife did not speak English.
The separation between the parties occurred on 25 December 2006. The parties made an application for a divorce which was granted on 8 May 2008.
The husband and wife have been litigating since not long after separation. The wife obtained an intervention order in the Sunshine Magistrates Court.
Almost immediately after the orders were made in the Sunshine Magistrates Court, the husband filed an application seeking parenting orders and an injunction precluding the wife from taking the children out of Australia. On the same day that the application was made, Carter J granted injunctions on an ex parte basis.
On 26 April 2007, the parties came before Senior Registrar FitzGibbon at which time, orders were made that the husband spend time with the children three days each week. It has always been the husband’s position that the children should be shared on an equal basis. On the basis of the evidence in this case, I could not find that it would be in the best interests of these two children for their parents to share not only the time with them but also to have equal shared parental responsibility for decisions.
The husband sought orders for the week about arrangement and equal shared parental responsibility. In addition, he sought that the children spend time with him on special occasions and similarly, with the wife on her special occasions. He sought orders that each party be at liberty to telephone the children when they were in the other person’s care and that those calls be placed by landline. Other orders included that each party inform the other of any medical condition affecting the children and any medical treatment administered and generally that there be non-denigration orders.
The wife sought orders that she have sole responsibility for the care of the children and that they live with her. She proposed that the husband spend time with the children between 4.30pm and 7.30pm each Friday and Saturday and that there be telephone communication between 6.30pm and 7.00pm each Tuesday. Underpinning those orders however, the wife sought an order that the husband attend upon Mr H to address family relationship issues and that if Mr H thought it appropriate, she and the children also attend.
I do not propose to make any order that the husband attend upon Mr H. Whilst the wife’s position throughout the case was that the husband needed to sort out the problems associated with his relationship with the children and that that could only be done through some expert such as Mr H, after the evidence I have heard, I find it would be pointless. The husband does not take criticism lightly nor I suspect, advice. He has had ample time after reading the first report of Ms F to take a different course and pursue a relationship with his children but has chosen not to do so. In a poignant moment, he was asked by his own counsel how he would feel if the Court did not give him the orders that he sought and he said he would simply appeal. Leaving aside any issues of law and rights, that answer was consistent with my view that only the husband was right and he would not accept anything other than his own position. To therefore send him to a counsellor or psychologist to be dissuaded from that position would be pointless.

A significant feature of this case revolves around the respective views about alcohol use. The wife alleged that it was a problem during the marriage. Her concern principally was about the husband’s capacity as a parent to care for the children because of his alcohol use. She decried his use of it during the marriage and claimed it continued to be a problem subsequent to separation including subsequent to the making of court orders. In her words, she said that the children made repeated comment to her that their father continued to consume alcohol and that he frequently got drunk. She said that the consequence of that was that their father did not feed them adequately and if he did provide them food, they did not like what he gave them.
The husband maintained stoically that he had not drunk alcohol during the period of time that he had the care of the children as a result of orders. I reject that.
In her evidence, the wife said that their relationship was affected by problems with alcohol which was the impetus for the breakdown of the relationship.
In one incident to which the wife referred, she said she awoke to find the husband had urinated in a drunken stupor over E. E was four months old and on the following morning, the husband could not remember the incident. The wife filed her trial affidavit on 11 July 2008 and the husband on 1 August 2008. The husband made no mention of this allegation by the wife. No evidence was led initially about the matter when the husband entered the witness box. However, counsel for the husband put to the wife that the allegation was not only absurd but not relevant. I indicated I had some concerns if for no other reason than if I accepted the wife’s version generally, it indicated consistently with her statement that there had been problems with alcohol right through the relationship. I permitted counsel for the husband to recall the husband to give evidence about that assertion. The husband not only denied the assertion but said it was offensive. I accept the evidence of the wife.
More importantly however the husband in his affidavit said that he denied any allegations that he had a drinking problem. He said there were no prior complaints about his alleged drinking problem by the wife or even by any other family members or friends.
The wife’s affidavit material was littered with allegations of alcohol abuse by the husband. She said that he drank regularly to excess and became violent throwing kitchen utensils at her, threatening her with a knife and throwing her outside of the house and locking the door. Just prior to separation, when the wife was collected by the husband at the Melbourne airport after she flew back from Sydney, she said she could smell the scent of alcohol and when they returned home, he “grabbed his alcohol and started to drink”.
In that setting, it is significant to point to what the parties themselves did in the various court proceedings. On 26 April 2007, before Senior Registrar FitzGibbon, whilst the husband was represented by counsel, he consented to an order that read:
That until further order the husband is not to drink alcohol 12 hours prior to spending time with the children or during any time that he spends with the children.
The problem of alcohol did not go away. In October 2007, Ms F pursuant to an appointment of the Court, saw the parties. She said that the husband told her:
I do not deny that I enjoy a drink, I’m a heavy drinker. I have four cans of beer just before I go to bed. I have always had a problem with insomnia, I never drink during the day.
When the proceedings returned to the Court on 22 October 2007 before Senior Registrar FitzGibbon, the husband was again represented by counsel. This time, presumably armed with the report of Ms F, the husband consented to the following order:
The husband undertake such assessment and/or education in respect of alcohol use as directed by the Independent Children’s Lawyer and provide proof of completion and attendance of same to the Independent Children’s Lawyer.
I digress momentarily to also add that in the same hearing, the husband consented to an order that he attend an anger management course and provide proof of its completion. He did that and provided a certificate. He attended six counselling sessions but I am not convinced that it has made much difference.
The husband attended upon Ms B who described herself in a report dated 13 February 2008, as an AOD counsellor. She wrote a report that the husband annexed to his affidavit saying that the husband had attended three counselling sessions and engaged extremely well. She said she believed he did not require further treatment. She said he reported use of alcohol at a reasonable “safe” level and did not drink daily. Importantly, she reported that he stated that when he did drink alcohol, it was generally after his children had gone to bed to aid as a relaxation tool.
The husband was challenged about this statement bearing in mind that there was an order of the court that he not drink at all when he had the children. His response was that he was referring to the period prior to separation. That was a very odd statement. It certainly did not sit comfortably with Ms B’s report that said that it was only when he was with his friends in a social situation that the husband might drink a slightly higher level of alcohol and only if his children were in an alternative/safe care. Again, the husband would have me accept that he was referring to a period prior to separation. I do not accept that. Of serious concern was that when challenged about that report, the husband said that Ms B had telephoned his solicitor asking what was to be in the report because he was such a delightful person. Hopefully that is not what occurred but if it did, it gives little credence to Ms B’s report.
On any view however, by October 2007, the husband was aware that alcohol was a serious concern of not only the wife and the Independent Children’s Lawyer but also the Court.
On 16 November 2007, an incident occurred. There are two ramifications of this night. The first relates to the question of whether or not the husband used alcohol when he had the children and the second relates to the question of whether he overheld them anyway.
The wife’s evidence was that on Friday 16 November 2007, she received a telephone call from the child G saying that he was scared and that his father was not going to return them home by 7.30pm. She said that G asked could the wife help him including calling the police. When 7.30pm came and the children had not been returned, she went to the W Police Station but was unsuccessful because their view was that it was a family law matter. She then telephoned the 000 number and a member of the police force called the husband. Her evidence was that the husband told them that he would be returning the children at 6.30pm on Sunday. The police advised the wife that they were not able to assist.
The wife’s evidence went further and said that she then made contact with the husband and he bluntly told her to “piss off”.
The husband’s version was that the wife had telephone seven times. Initially coy about whether the children could have heard these telephone conversations, he ultimately conceded that they would have done so.
The parties had no witnesses other than themselves. Each filed an affidavit. A cursory glance at the affidavit and particularly that of the husband will show significant deletions either because matters were not admissible or issues were no longer relevant and therefore removed.
Counsel for the Independent Children’s Lawyer said at the outset that he had serious concerns based upon the evidence in the reports about the position adopted by the husband. He said that he would be arguing that the wishes of the children should be treated as sincere and well-founded and that as a consequence, there were protective concerns. Those protective concerns he said, needed mechanisms put in place for physical and emotional protection of the children. The concern of the Independent Children’s Lawyer related to not only the alcohol consumption of the husband but also his verbal abuse and anti-social behaviour.
The position adopted by the Independent Children’s Lawyer therefore was that the time that the husband spent with the children should be limited and certainly not extended to overnight, but otherwise as requested by the children. The one positive prospect for the future, according to the Independent Children’s Lawyer, was that the husband could do some work on his position to try and establish a confident relationship with the children overcome their concerns. The difficulty, however, is that the husband was told that by Ms F in 2007. The husband rejected then, and still rejects now, the expert’s view that there is a problem. According to the Independent Children’s Lawyer, the proposal put by the husband was bizarre having regard to the husband’s position saying that the wife had brainwashed the children and that she was mentally unstable.
The husband’s evidence was that he was actively involved in the care of the children right from their birth. He was integrally involved in changing nappies, feeding the children, bathing them and putting them to bed. He said he was involved in all events and milestones in the children’s lives from their first day at school and attended every parent/teacher conference and major event at school. He pointed to the fact that that was necessary because of the fact that the wife did not speak English and in addition to which, she was working and playing bingo. Because of the wife’s absences, the husband said he was solely responsible for the children’s care and that the wife had no hesitation in leaving them with him for extended periods of time.
The wife was cross-examined at some length about the role of the husband. She was adamant that the husband was not a significant participant in the care of the children in their early years. In relation to her attendances at bingo, she pointed to the fact that the bingo hall was next door to the husband’s mother’s home and she took the children to the mother’s home and then took the mother to the bingo. During that time, the husband’s brother and sister looked after the children along with the husband. I am satisfied that that is the correct version and the husband’s role was limited.
The husband said that he was involved in umpiring football games for the children. The wife was cross-examined about that and she indicated that that was so. It appears that no-one else was prepared to be the umpire for one year so to ensure that the games occurred, the husband participated. However, having given the husband credit for that, the wife then said that it only occurred for the one year. That comment had a ring of reality about it.
Not surprisingly in this case, there is a significant dispute between the parties about the role that each party played. As an example, the husband said that when G was a baby, he “advised” the wife that he would be taking G to visit his parents but the wife objected. His own words then set out what happened:
We argued briefly and I told the wife how insulted my parents would be if I arrived at their home without their grandchild. I left with [G] anyway, advising the wife that I would return in a couple of hours.
That quote clearly indicates to me the view that the husband takes about the wife’s role in parenting. It was not an isolated incident. It is consistent with the evidence that I heard from the husband in the witness box. It clearly indicates to me that there is no prospect that these parties could sit down and focus on the needs of their children and come up with an agreed position in respect of decisions needed for the children’s future.
In the earlier days when G was diagnosed with speech problems, the husband said it was he who was involved in his speech therapy. In addition, he was the one who undertook the assistance of the children with their homework and all activities outside of the school.
The wife’s evidence was that she was the person responsible for all of the needs of the children including taking them to school, assisting them with their homework and generally providing for their needs. She said that following the birth of G, the husband was not able to cope with G’s crying during the night and she therefore moved into the bedroom with G. Similar problems arose when E was born.
The wife alleged that the relationship was characterised by frequent violence. The wife attributed some of that to the fact that the husband had a problem with alcohol and used drugs including marijuana “in the past”.
The wife maintained, as I have earlier mentioned, that the husband had a drinking problem. She pointed to the fact that on several occasions he, having drunk to excess, urinated and vomited in various locations throughout the home. This has been a problem since the time the parties’ were married. She referred specifically to an incident in early 2006 when the husband raped her. She said that he was often threatening if she refused to drink alcohol with him. She went further and said that he asked her to leave the house to enable him to drink with his friends and to smoke marijuana.
In a very general allegation, the wife said that the husband had thrown kitchen utensils at her, threatened her with a knife and thrown her outside of the house locking the door. She said it was the children who let her back inside the home.
Apart from the incident in relation to urinating on E when affected by alcohol, the wife’s evidence was not seriously tested in cross-examination notwithstanding the husband denied the various assertions. Having regard to the husband’s general attitude as indicated in his evidence and my findings about his abuse of alcohol, I accept the evidence of the wife in relation to the incidents of violence.
On the day after Christmas Day 2006, the husband assaulted the wife hitting her and pulling her hair. This occurred in the presence of G who attempted to stop the husband. E telephoned the police, who then attended. That incident gave rise to the police applying for an intervention order in which the wife and the children were named as aggrieved family members.
This incident was the subject of considerable cross-examination. Counsel for the wife put to the husband that what she had described in paragraph 37 of her trial affidavit was what occurred. The husband’s response was that it was a complete and utter lie and that it was the wife who went to the police rather than them coming to her. He said the police did not come to the property at all. He said she drove the car to the police station. Neither party chose to produce any records (if they exist) of the police in relation to this incident. Whether the wife went to the police or vice versa matters little as the real issue was the violence at home. I accept the wife’s version as to what occurred at the home. What happened at the police station seems to me to be irrelevant.
The intervention order gave rise to the separation between the parties. It was made on 27 December 2006.
The husband’s version of the same incident at separation was simple. He said that the wife was yelling, complaining and abusing him and trying to make him “snap”. He said he tried to avoid the wife but she followed him and threw shoes at him. He said that the wife told E to call the police and tell them that he had hit her. The husband said that he had not hit the wife at all.
The husband said that E had spoken to him on a number of times about it and on each occasion apologised to his father saying that his mother had forced him to lie to the police.
I do not accept the evidence of the husband in respect of that issue. I accept the evidence of the wife.
The interim intervention order was returnable at the Sunshine Magistrates Court on 13 March 2007. The husband said that he attended unrepresented that day and was advised by the duty lawyer to consent to an interim intervention order in favour of the wife. He said he did so in an attempt to address the wife’s concerns so that he could see the children. He said that he consented without admission for the necessity for it. He made the point in his affidavit that it was not until later that he realised the repercussions of agreeing to those orders.
The intervention order was to last for 12 months. It was tendered in evidence. It is to be noted that the husband was present and agreed to the order albeit without admission of the allegations in the complaint.
When I turn to the matters set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), one of the considerations is whether there is a family violence order that applies to the child or a member of the child’s family if the order is final or was contested. A ‘family violence order’ is defined in s 4 as an order made under a prescribed law of a state or territory to protect a person from family violence.
Apart from the consideration of family violence in s 60CC, the presumption of equal shared parental responsibility is rebutted under s 61DA(2) if there are reasonable grounds to believe that a parent of a child has engaged in family violence.
Thus, the questions of family violence and family violence orders are very important in parenting cases.
Section 4 of the Crimes (Family Violence) Act 1987 (Vic) says that a court may make an intervention order if satisfied on the balance of probabilities that the person against whom the order is to be made has assaulted a family member and is likely to assault the family member again. However, there are other bases for making orders.
Section 5(2) of the same Act says that before making an intervention order restricting a persons access to premises, the court must take into account:
(a)the need to ensure that the aggrieved family member is protected from violence; and
(b)the welfare of any children who may be affected by the order; and
(c)the accommodation needs of all persons who may be affected by the order –
and give paramount consideration to the matters in paragraph (a)
Section 14 of the same Act provides that a court may make an intervention order without being satisfied as to the matters referred to in s 4, and whether or not the person against whom the order is made admits to all or any of the particulars of the complaint, if the parties to the proceeding consent to the making of the order.
Section 14(2) of the same Act says that before making an intervention order with the consent of the parties to the proceeding, the court may conduct a hearing in relation to the particular of the complaint if it is of the opinion that the interests of justice require it to do so.
There is clearly great benefit to the administration of justice in permitting intervention orders to be made by consent, leaving the determination through the court process as a last resort. For example the parliamentary readings in relation to the Crimes (Family Violence) (Amendment) Bill 2003 referred to statistics during the period of 1 July 2001 to 7 June 2002 that some 6029 intervention orders were entered into in the State of Victoria by consent.[1] The practical reality of such a statistic is that the judicial officers are significantly aided by the ability of parties to consent by themselves, with no admission as to facts, to such orders. The impact that this ability has on the Act, however, is somewhat unclear.
[1] Crimes (Stalking and Family Violence) Bill Second Reading p 2093 04.06.03 Legislative Assembly
Section 60CC(3)(k) which is one of the additional considerations, requires the Court to consider any family violence order that applies to the child or a member of the child’s family if:
(a)the order is a final order; or
(b)the making of the order was contested by a person.
The relevance of the distinction between the two bases for the orders is not clear. If an order is final, it seems to matter little whether it was consented to or contested. The relevance of the making of an order which is contested in the state magistrates court must have something to do with the fact that an order could be made on contested material and notwithstanding principles of res judicata, the defendant to the order should be given an opportunity in this Court in a parenting dispute, to maintain his or her innocence because of the impact of the family violence order.

The explanatory memorandum to s 60CC(3)(k) said that the intention of the amendment was to:
Ensure that the court does not take account of uncontested or interim family violence orders. This should address a perception that violence allegations are taken into account without proven foundation in some family law proceedings.
That does not address final orders to which a consent is given without admitting the facts. I see no reason to read into the legislation a suggestion that a consent order without admission should be treated differently from a final order whether contested or not.
Accordingly, the husband’s assertion that he only consented in an attempt to address the wife’s concerns so that he could see the children does little to assist him. The order was final and it was not contested.
The first order of the Court subsequent to the making of the intervention order was that made on 26 April 2007 by Senior Registrar FitzGibbon. The Senior Registrar ordered that the children spend time with their father for three hours on each of Monday and Tuesday and every alternate Sunday from 1.00pm to 7.30pm. It is to be noted that that was not an order to which the husband consented.
Leading up to the orders of the Senior Registrar, notwithstanding the interim intervention orders were still in place, the husband tried to talk to the children when they and the wife were out walking. A week later the same sort of thing happened and the husband asked G to sit with him but G refused. Some days later on 10 February 2007, the husband appeared at the basketball for the children and according to the wife, they went to her and were scared and shaking.
Of this particular period, the husband’s evidence was simple. He said that the wife withheld them “without reason or cause”. I reject that evidence. The husband’s behaviour had given rise to the making of the family violence order regardless of his statement to the Sunshine Magistrates Court that he did not admit the complaint and I accept the evidence of the wife in relation to the period leading up to the making of the intervention order about the husband’s approaches to her and the children. That was certainly the basis upon which the Senior Registrar made the orders that he did which were inconsistent with what the husband sought.
The orders of the Senior Registrar were quite explicit. He was to collect the children from the front gate of the home of the wife and return them there. That order was consistent with the order of the Sunshine Magistrates Court which otherwise required the husband not to knowingly be at or within the premises of the former matrimonial home other than in the company of a police officer.
The husband ignored the orders of both courts.
The husband did however see the children over the ensuing weeks. The wife said that they returned stressed and unhappy and that they were confused because of things that their father had told them. One of the issues of concern was the fact that they had not done their homework.
The next event before this Court occurred on 5 June 2007. Before that hearing date, however, according to the wife, the husband made statements to the children indicating that the orders were of no significance. In addition, he attended at times outside of the order. On Sunday 27 May 2007, G returned home. According to the wife, he was upset because his father had said that his mother was silly. He criticised the wife for seeing a lawyer and wasting money. Again according to the wife, G told her that his father had said that his mother was having an affair and used abusive language to the children when talking about her. That evidence is plausible and I accept it. When he was cross-examined about his behaviour relating to the children, the husband made clear his disdain for the wife saying that he and she should have sorted out the problems amongst themselves and not reverted to lawyers. He said he showed the children the offers of settlement in relation to property matters and explained those offers to the children. He said he discussed with the children the fact that divorce was common so that they would not feel guilty. He said that he explained that the courts had taken the children away from him over an incident between he and the wife and made him a stranger in circumstances where he had never “touched” his children. He conceded in cross-examination by the counsel for the Independent Children’s Lawyer that he might have used the expression “piss off” to the wife in the presence of the children.
All of this gave rise to a question about whether he thought the children had been affected by the conflict between he and the wife. He said that in the beginning that was so but over the last 18 months, the children have accepted what has happened and it was not as emotionally draining. He attributed that in part to the fact that he had explained to them what was going on and that they had accepted that divorce did happen.
It is clear therefore that the husband has little insight as to the impact of his behaviour on the children and particularly, his denigration of the wife.
When the parties returned to the Court on 5 June 2007, Dessau J made orders that each party be restrained from denigrating the other within the presence and hearing of the children. Her Honour also restrained the parties from discussing the proceedings within the presence or hearing of the children. Having regard to the evidence of the wife as to what had occurred subsequent to the making of the orders by Senior Registrar FitzGibbon, that order was understandable.
Her Honour then went on to make an order that the parties and children attend upon a psychologist for the purposes of a family report. That is how Ms F became involved in the proceedings.
The parties did not see Ms F until 2 October 2007. Between June and October, things seemed calm.
When Ms F interviewed the parties, she found the wife a pleasant woman who was willing to participate in the interview process. She observed the wife with the children and described her as demonstrating warmth and leadership in her parenting responding to the requests and questions of the children with interest and enthusiasm. She complemented her on her discipline.
Ms F found the husband was willing to participate in the process but he could not restrain himself from making derisory comments about the wife. She was critical of him for conceding that he had read the court papers to the children, but observed that otherwise the husband appeared appropriately concerned for the welfare of the children and set out in some detail, his involvement with them.
When Ms F spoke to the two children, she found G corroborated the wife’s version of assaults on her by the husband. According to Ms F, G showed interest in seeing his father and was of sufficient maturity to be able to make a decision as to how that was to occur. E on the other hand, corroborated his mother’s version of the Christmas incident and in respect of time with the husband, he effectively wanted to choose. Importantly, E said that he would feel very upset if he lived with his father. In relation to the interaction between father and children, Ms F said the children responded warmly to their father but there was a demonstrable anxiety. She said the children were most securely attached to their father but otherwise anxious at times about his responses.
Ms F suggested at the conclusion of her report that the husband would benefit from parenting education particularly about managing boundaries of adult-related issues.
During the adjournment break between August and October 2008, the Independent Children’s Lawyer subpoenaed the Victoria Police records of the attendance on the night of 16 November 2007. That is the night to which I have already referred in which the husband overheld the children. The evidence of what actually happened later that night is uncontroversial. At the request of the police, the wife attended the premises of the husband to find the children outside of the house. The husband was asleep and had to be woken by the police. There is a controversial side of the story however. The wife alleged that the children had contacted the police and they had attended to find the husband asleep. The children alleged that the husband had been drinking and had fallen asleep. The husband denied that he had been drinking. He said that he had been consuming a non-alcoholic drink but was accompanied by a companion who drank beer. There was evidence in the house of beer bottles.
The subpoena to the Victoria Police produced the notes of the attending officer. The Exhibit ICL1 is a copy taken from the police officer’s notes which corroborates the wife’s version.
The wife therefore says that the children told her that the husband was drinking and had passed out and that is consistent with what the police say. The husband’s version was that he had had a friend around who drank beers but he did not touch any alcohol at all. The husband did not call as a witness the friend who attended that night. Counsel for the husband suggested that I should not infer anything from the husband’s failure to call this witness because during the intervening period, because he was under cross-examination, the husband had not spoken to his lawyers. The difficulty with that is that the husband said that he told his lawyers about the friend and during cross-examination of him prior to the adjournment period, he made no mention of this person. The husband pointed to the fact that if he had been drinking, the police would have breathalized him. I am not sure what the significance of that comment was having regard to the fact that there was no suggestion that he was driving a motor car.
When the husband was cross-examined about why the children would say to the police that he had been drinking, he said that they had been put up to it by the wife.
It goes without saying that I reject the husband’s version of what happened that night in respect of all of the matters to which he has referred. I prefer the version of the wife. The husband failed as a parent that particular night and the children were placed at risk. His attitude to the wife was to be criticised but I find that it was consistent with his general approach to which I have earlier referred.
The matter returned to court on 13 December 2007. Again, the husband was represented by counsel and consented to orders but this time his time with the children was conditional upon:
[him] not consuming any alcohol whatsoever and complying in full with paragraph 3 of the order made 26 April 2007.
The husband was adamant that that clause in the orders could only refer to the fact that he was not to drink alcohol when he had the children. The fact that this was the third time there had been reference in an order to alcohol and the fact that it was different to the previous orders seemed lost on the husband. The fact that the order used the word “whatsoever” and that it occurred just after the incident on the Friday night of 16 November 2007, was also something about which I am not confident he saw the significance. Importantly, he said that if it was the intention of the court order that he not drink alcohol at all, it was a matter of confusion and he did not realise that that was what was intended. He said he certainly did not think that was the object of the order and that if it was, not only had he misunderstood it but he had misread it. As he said, he was not sure that that sort of order could be made.
Combined with the series of events over the 12 month period through the courts, the incident with the police on the night of 16 November 2007, the quote that Ms F made in her report of October 2007 and the husband’s own alcohol counsellor, I have no doubt in finding that he did drink alcohol on the night of 16 November 2007 and that he had scant regard for the orders of the court. I reject any suggestion that the wife put the children up to lying about such an issue and I reject that the husband did not understand what his obligations were.
In his affidavit, the husband set out that he was aware that the wife was alleging that he had a drinking problem. He was clear in his denial. He admitted having a beer in the evening and occasionally a glass of whisky but he said he did not drink to excess or become abusive or aggressive. Even on this subject, the husband varied his position from that which was in his own documents and in the report of others. In his affidavit, the husband used the word “whisky” as one of his drinks. However, he said that he did not drink whisky but drank bourbon. When it was put to him that they were the same, he said he didn’t know but he was adamant that he did not drink whisky but rather bourbon. It was a word which he had used in his affidavit material on at least two occasions. It is hard to imagine that a person taking instructions from the husband would misunderstand that if he was adamant that he did not drink whisky.
Having regard to the husband’s current attitude to court orders and his wife, I could not have confidence that any condition placed in an order would be met.
Another issue that gave rise to the suspension of overnight time in interim proceedings was G’s complaint to his mother that the husband “regularly” made comments to about him reaching puberty and his readiness for sex. From the wife’s perspective, this was inappropriate. She said that these comments related to G but E had disclosed that on occasion, the husband had reached down the back of his pants and patted him on the bottom making him very uncomfortable.
The husband’s response was to deny that the children were in any way uncomfortable about any discussion that he had with them particularly about their bodies and development. He said that he had tapped the children on the bottom over their clothes in fun and explained to G that his penis would get bigger. He said he discussed the matter as a joke to alleviate the embarrassment of the children, and that they had taken it well. Importantly, he said that he was disgusted and deeply hurt that the wife would allege that he would abuse the children.
The subject of this touching was carefully dealt with in cross-examination. The husband was emphatic that the allegations made by the wife were malicious. He said it was wrong to say that he had put his hands down the pants of E. In explaining his position, he said that with Lebanese culture, there is nothing wrong with discussing sexuality in the way that he had. He said that fathers did not do it with girls and it was the father’s responsibility in relation to boys.
What could otherwise be innocent behaviour, if not appropriate sexual education, could easily be misconstrued where there is no communication between parents. In addition, where there is a lack of trust, sensitivities are heightened.
Having regard to the cultural issue as well as to the husband’s demeanour when describing what had occurred, I say that I am satisfied that there was nothing improper in what the husband was doing. Whilst he may be insensitive to some of the matters that might embarrass his children, I do not see his behaviour as something that warrants criticism, concern or as being a matter to be taken into account in determining his time with the children.
Another issue of concern related to the fact that notwithstanding orders being made to the contrary, the wife said that the husband denigrated her in the presence of the children and had continued to abuse and swear at her. She pointed to an incident on 28 October 2007 when she collected the children and he made vulgar statements to her in the Arabic language in the presence of his mother and sister as well as the children. She said that the children did not understand the language but by virtue of his tone and demeanour, the children would have understood that the comments were derogatory. She pointed to an incident on 20 November 2007 when he did much the same.
The husband however said that at the changeovers, he and the wife did not speak. He said the children said their goodbyes in his car and then went straight to her car. E as late as May 2008 reported to Ms F that his father had been saying rude things about his mother.
In my view, there is enough evidence to justify a conclusion that with the husband’s low opinion of the wife and his disdain for the involvement of the court orders regulating his life with the children, it is probable that he has been denigrating the wife to the children or certainly not controlling his reaction in their presence. Evidence of what happened on the Friday night that he overheld the children is a good example of that. It follows therefore that I find that the husband has been denigrating the wife at changeovers and accordingly, I reject the husband’s version of those changeovers.
Part VII of the Act provides the structure for the determination of any parenting dispute.
Section 60B(1) of the Act provides as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount but not the only consideration.
Section 60CC(1), provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Sections 60CC(2)(a) and (b), provide as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this case, leaving aside any question of s 60CC(2)(b), the husband seeks nothing less than equal time with the children on the basis that that is what the children need and also that it is some sort of right for that to happen. Inferentially, if it is otherwise, there will be no meaningful relationship with his children.
There is no legislative definition of “meaningful relationship”.
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In Mazorski & Albright (2008) 37 Fam LR 518 Brown J said about a meaningful relationship:
“meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In Godfrey & Sanders (2007) 208 FLR 287 Kay J said:
what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

It is important to consider from the respective proposals of the parties, how the children will benefit from having a meaningful relationship as it has been defined above.
In this case, for the children to benefit from a meaningful relationship with both their father and their mother, they need their parents to lead by example about things like self-discipline. They need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents one day. If one parent is destructive of the other’s relationship with the children, there is a risk that the children will not have a meaningful relationship with that other parent.
It is a responsibility of parenthood to give children a chance to be a part of a family, albeit in two households, where they have a feeling of being wanted and appreciated. I find that the wife is doing all of those things and that there is no evidence about which criticism could be levelled at her. There was some concern expressed by Ms F about the wife’s capacity to assist in the fostering of the children’s relationship with their father. Counsel for the Independent Children’s Lawyer asked whether Ms F was critical of the wife for giving “mixed signals” to the children but Ms F said that “critical” was a harsh word. She took the view that the wife needed “assistance” through counselling.
The husband does not offer an appropriate role model for the children in respect of areas of discipline, respect and consideration for others. He seemed to make light of the fact that he could encourage his children to be aggressive and his views about the wife were not hidden from the children.
It is hard to see how the children can benefit from a meaningful relationship with their father in the sense that the legislation intended when all of those matters are considered. It is significant that the husband was offered some direction by Ms F in late 2007 to endeavour to rectify the position but there is little evidence of any change in his direction. As the evidence stands, the husband is deliberately being destructive of the mother’s relationship with the children. If that continues, the children may lose the secure attachment that Ms F says they have with their mother. They would not then benefit from a meaningful relationship with her.
The issue of equal shared parental responsibility is integrally bound up in the consideration of what is in the best interests of the children. The presumption as the starting point cannot be realistically examined until a determination is made of what is in the best interests of the children.
I have already set out the views of Ms F that were considered as part of the interim orders. Ms F saw the parties again in April 2008. She referred back to her 2007 recommendations noting that the husband’s time with the children had since diminished because of the allegations of inappropriate adult behaviour.
She noted that the husband continued to propose that the children live with him on a week about basis and that he could see no other alternative.
The wife’s position according to Ms F was that she would support whatever the children wanted relating to the time with their father.
Ms F said that the high level of conflict continued and that the children appeared to be caught in the “emotional turbulence” of their parents. That in turn was giving rise to the conflict of loyalty that she had earlier noted and which now seemed more entrenched. She said the children were vocal in their refusal to spend time with their father. She said they explained that position by reference to a list of parental failings as well as anxiety about their father’s reliability and protectiveness. She did however note that there was a level of warm attachment and familiarity with him albeit with anxiety, particularly by E.
The husband expressed frustration about the wife’s behaviour. He was agitated and unhappy about having to be involved in the reporting process with Ms F. That was something that he repeated in the witness box maintaining that after the first report of Ms F, he wanted her changed. That was in an environment in which Ms F was recommending that he have time with the children much less than she recommended in her second report. It is clear however that the husband saw the views of Ms F as being inconsistent with his views and therefore unacceptable.
Notwithstanding the husband’s reticence about returning to Ms F, he did so. He said that in relation to a complaint by G about teasing at school, he had encouraged him to fight back and not to worry about getting “community service”. The husband did not see any problem with that parental approach.
Contrary to the position adopted by the husband, the wife presented to Ms F as calm, thoughtful and child-focussed.
Ms F’s observations of the interaction between the husband and the children were enlightening. She said that the husband presented himself as an involved and concerned parent asking the children questions about development and behaviour management. G responded appropriately but E demonstrated anxiety.
Having spoken to both husband and wife, Ms F said that she thought the wife would benefit from some time for limited counselling to assist in the development of appropriate strategies that would enable her to encourage the children to re-establish the relationship with their father. Of the husband however, Ms F said that he still seemed unable to control his emotional reactivity towards the wife and her role in the whole process.
Ms F said that the children did not experience their father as a reliably safe and protective parent nor as providing a secure emotional base.
As to G, Ms F said that he was articulately and poignantly able to express a preference not to spend time with his father based upon a pessimistic view about the potential for positive change. She said that if that experience of change occurred, so would G’s view. Ms F said that G was securely attached to his mother whom he saw as reliable and protective.
Similar sentiments were expressed in relation to E except that E had now become more anxious about his father’s reliability and was starting to demonstrate overt symptoms of trauma. Ms F’s view was that E needs professional help.
Ms F was cross-examined at some length. Her evidence was concise, forthright and confidently given. I accept that evidence.
In relation to specific issues, Ms F said:
(a)as to the husband’s allegations of brainwashing, she could not find any justification;
(b)the children’s wishes were clear;
(c)G spoke his mind spontaneously and with strong feelings;
(d)the children did not fear their father;
(e)the children were aware of the intense conflict between husband and wife;
(f)E’s level of anxiety about the separation from his mother was very high; and
(g)the husband brought derogatory comments about the wife at every opportunity.
The husband’s counsel asked whether the children’s statements could be fabricated. Ms F said they were not.
The assessment undertaken by Ms F and her consequent evidence portrayed the husband and the wife in the same light as they gave their evidence.
Having regard to the matters that I have just set out, I do not intend to further canvass the issues set out in s 60CC(2)(a).
It is, however, important to acknowledge that one of the primary considerations is the need to protect these children from the physical or psychological harm in being subjected to or exposed to, abuse, neglect or family violence.
Family violence is defined in s 4 of the Act as conduct, whether actual or threatened, by a person towards a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for or reasonably to be apprehensive about his or her personal wellbeing or safety. It is a question of reasonableness.
I am quite satisfied on the evidence that I have heard, that the husband has been violent towards the wife and has threatened her.
Section 60CC(2) is not just confined to protecting children from the harm of being exposed to or subjected to family violence. It also includes abuse. However abuse within the meaning of s 4 of the Act only relates to an assault in relation to a child which is an offence under the law of the State. Section 60CC(2) does not confine the abuse to that of a child. The section refers to abuse generally. It goes without saying that the provision requires a court to protect children from the psychological harm of being exposed to the abuse by one parent of another even though that may not fall within the strict definition of family violence. In this case, I am quite satisfied on the evidence that the husband has been abusive to the wife in the presence of the children which has a destructive effect upon the children. The children reported concerns, about their father’s behaviour towards their mother, to Ms F. Ms F reported the anxiety of E in particular and commented upon the fact that the continuation of the uncertainty about his relationship with his father had the prospect of having an impact upon his secure attachment to his mother. All of that seems to me to stem from the things that the children witnessed and about which I have made findings.
Section 60CC(3) sets out a number of additional considerations. I consider those in the following paragraphs.
I have considered the views expressed by both children taking into account their level of maturity and understanding. According to the expert evidence, these children have a very good understanding of what they want to see in their family life and they do not want to have the sort of relationship with their father that he wants to have with them. Those views are strongly and articulately put. Section 60CC requires that I give such weight to those views as I think appropriate having regard to things such as their level of maturity. Ironically, it is the husband in this case who says that these children are capable of understanding about issues of divorce, to some degree sexual education and concepts of financial fairness. It seems to me that if the husband believes that the children are capable of understanding those matters, he must be of the view that they are mature enough to have a voice in what happens in their lives. This is a case in which I propose to listen carefully to the views of the children and to give them significant weight.
The next consideration is the nature of the relationship of the children with each of the parents. I have already found on the evidence that the mother has a close and loving relationship with the children and that it is important that they benefit from an ongoing meaningful relationship with her uninhibited by the poor parenting of the husband. The children’s views as expressed to Ms F mirror my understanding of the nature of the relationship between the husband and the children. Whilst the children have a desire to have a good and loving relationship with their father, they are hesitant and strongly desire that he change his ways to make them feel more comfortable. As between the parents therefore, the wife has a much stronger relationship with the children and it is important that that be fostered.
Section 60CC requires that I consider the willingness and ability of each of the parents to facilitate and encourage the relationship between the parents and the children. It is clear on the evidence that the husband has done little to encourage the children to respect their mother. He has shown by his actions to which I have already referred that he proposes to make decisions and for the wife to abide by them. On the other hand, the wife has shown by her conduct that she has encouraged the children to continue to respect and desire a relationship with their father. If there is any concern about the wife’s enthusiasm for that task, Ms F’s evidence convinces me that the wife needs to have that enthusiasm reinforced by counselling to ensure that the ongoing relationship between the children and their father is treated as important. I have little doubt on the evidence that I have heard that she will continue to act appropriately.
Section 60CC also requires that I consider the likely effect of any change in the children’s circumstances. In respect of that, the children have had little contact on a face to face basis with their father in recent months and it is not attributable to the court orders as the father argued. The reality is that the children have “turned off” from their father as a result of his conduct. It seems that in the circumstances, the separation of the children from their father is not something which will have any adverse effects.
There is no practical difficulty in relation to the children seeing their father even on the limited bases that I am intending.
Section 60CC also requires that I consider the capacity of each of the children’s parents to provide for the needs of the children including emotional and intellectual needs. G has made it very clear that he has concerns about his father’s lack of concern about his homework. The attitude of the husband in relation to the emotional needs of the children is sadly lacking having regard to his attitude about persisting with a view that the wife has manipulated the children against him. I have already found on the evidence that that is not so. On the other hand, the wife has shown by her evidence and the observations of Ms F that she has the capacity to provide for all of the needs of the children including the emotional ones. There is a very strong and clear attachment by the children to their mother.
Section 60CC also requires that I consider the question of the culture of the children amongst other things. The husband maintained that the issue of sexual education was a cultural thing. I accept that. I do not have any other evidence to show that the parties have a strong desire to include in their lives and therefore their children’s lives, any particular cultural attributes.
Section 60CC also requires that I consider the attitude to the children and to the responsibilities of parenthood demonstrated by each of the child’s parents. It will be obvious from what I have said and the findings that I have made that I have found the husband not to have taken a responsible attitude towards the role of parenthood. That is clear from his abuse of the wife and his persistent complaints about her manipulation of the children. The husband has taken every opportunity to treat the wife with disdain when he has had the children and that cannot be good for the ongoing relationship between the children and their mother. The wife on the other hand has shown that she has adopted a responsible attitude towards the care of the children particularly in relation to encouraging their relationship with their father. She has fulfilled all of the other responsibilities as a primary carer of the children and I have not any evidence to show that she has been other than diligent in relation to fulfilling the day to day needs of the children.
Section 60CC also requires that I consider the questions of family violence and the family violence orders. I have dealt with those matters. The evidence in my view, points to the fact that the husband has considered his own needs rather than those of his children in relation to the impact upon them of witnessing the family violence. It is clear that the family violence order, although entered into without admission as to the facts, was one which extended not only to the wife but also to the children.
Section 60CC also requires that I consider whether it would be preferable to make a final order or test some other course of action. Having regard to the ages of these children, it seems to me they need some certainty in their lives so that the litigation that has been going on between the parties now for over a year can come to an end.
Section 60CC(4) requires that the Court consider the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent in a number of particular ways. I am satisfied that the husband has not involved the wife in an appropriate way in parenting decisions nor is there any prospect in the future that I can see, where he will be prepared to be inclusive so that decisions can be made jointly for the long term care, welfare and development of the children.
I am not satisfied that the wife has done anything for which I could criticise her about facilitating the relationship between the children and their father.
I have taken into account the matters in s 60CC(4A). The events subsequent to separation and in particular, the events that gave rise to the separation have not been beneficial to the children. A significant period of time has now passed since that separation and the recurring theme is that the husband blames the wife for all of the ills and sees little damage that he is doing to his own children.
It is therefore in the best interests of the children that the time that they spend with their father be limited.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that is in the best interests of the children for the parents to have equal shared parental responsibility for them. As I earlier indicated, when the case began, the wife’s position was that it should no longer be a shared responsibility. She seeks sole responsibility.
That desire does not eliminate the responsibility of the Court to apply the presumption.
Section 61DA(2) however, says that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of another member of the child’s household or family violence. In this case, for the reasons that I have earlier set out, I am satisfied that the presumption does not apply. Similarly, s 61DA(4) says that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In this case, there is little doubt that the parents cannot talk to one another in a civil way and I attribute the blame for that entirely at the feet of the husband. It is not possible for these parents to have a civil conversation about their children. Evidence of that can be seen as recently as the handover late in 2007 when the husband mouthed obscenities to the wife. It would therefore not be in the best interests of the children for their parents to have equal shared parental responsibility in respect of the major issues concerning the health and education of the children.
There are other issues of parental responsibility including cultural matters and religion that do require a combined effort to make decisions for what is best for the children. They are not as pressing as matters associated with education and health. Those sorts of issues can be resolved by correspondence between the parties if they cannot speak to one another on a face to face basis. I propose to make an order that the parties have equal shared parental responsibility in respect of those issues but if the parties cannot sort those matters out on a civilized basis, the wife will have the responsibility for making those decisions.

Property

The parties have the following assets:
·    B Street;
·    T Street; and
·    two motor cars.
There was discussion at the commencement of the case about furniture and “add-backs”.
Of furniture, there is a dispute about specific items rather than values. Of add-backs, the wife wanted $10,000 added back to the pool for money received by the husband after separation from the sale of an interest in some Lebanese land.
The husband sought the following orders:
(a)the sale of B Street by auction with a reserve of $300,000 and after payment of sale costs and outstanding school fees, the balance be divided so that the wife receive 50 per cent of the total pool of assets;
(b)that there be specific furniture and chattel distributions; and
(c)that the husband retain the property at T Street.

The wife sought the following orders:
(a)That the wife have T Street and that it be transferred to her by the husband;
(b)B Street be sold, the mortgage on T Street be paid out and after payment of the outstanding school fees, the proceeds be divided so that the wife received 65 per cent of the net pool of assets.
It is agreed that both parties have charged their interests in B Street in favour of their respective practitioners for legal costs. Those amounts will be adjusted in the sale.
The husband’s evidence was that he purchased B Street for $70,000 in 1998 using his parents’ home as security but obtaining a loan of $78,000 through Citibank. The extra was used for costs and fees. That was subsequently refinanced in 1991 with the ANZ Bank thereby removing his parents’ property as any form of security. He said the loan secured by the B Street property was eventually paid off. He said that at the time of the marriage, B Street was valued at approximately $110,000 and the mortgage had been decreased solely by him to $54,000 leaving an equity of $56,000.
Objection was not taken to the evidence of the husband about the value of $110,000. The evidence was, however, disputed but not seriously challenged in cross-examination.
Objection was not taken to evidence that at the time of the marriage, the husband’s parents offered their N property as security for the purchase of B Street and that it was agreed that if that property was sold, the parents would be paid 10 per cent of its value in consideration of what they had done for the husband. When I queried what relevance this evidence had and whether that argument was still being pursued having regard to the fact that no specific orders were sought in relation to it, I was told that that issue was no longer of any relevance.
The wife’s evidence was that she moved into the B Street property after marriage. She said the husband had purchased the property for $70,000 paying a deposit and borrowing the sum of $63,000 by way of mortgage to achieve that.
Neither party produced any documents in relation to these assertions. That is of some significance having regard to the assertion of each about the purchase price. I do not intend to guess the equity at the time of the commencement of the relationship. The onus for proving a particular assertion falls on the person seeking to establish the benefit they wish to receive from the evidence. The husband fails to do that here. He did annex a letter from a solicitor to which no objection was taken but that simply said that the conveyancing records had been destroyed and the solicitor had no recollection of the individual transaction.
The wife gave evidence of the acquisition of the T Street property. She said this was purchased in 2002. She said the purchase price was $120,000 and apart from a deposit, which must have been raised from the parties’ own resources, the balance of the purchase price was obtained by mortgage over the property. She asserted that she believed the mortgage currently amounted to $73,000 but that it was $56,000 at the time of separation. The husband was not challenged about what had happened. At the time that separation occurred, the husband moved into the T Street property and that is where he has lived until now. Up until the time of separation, the property was rented.
The more important issue arose in respect of contributions generally. The husband said he had been in employment as a driver for 11 years other than when he purchased and worked in a fast food business for 12 months. He said the business was unsuccessful and sold for a significant loss which he subsequently conceded was between $48,000 and $50,000. He said the business was purchased for approximately $50,000.
In respect of the same issue, the wife said that the husband wanted to buy the fast food shop, and to fund its purchase the matrimonial home mortgage was extended, taking the debt out to about $95,000. The wife was candid in conceding she did not know precisely what amount was borrowed. She said the parties worked together in the shop for about 13 months.
These issues had obviously not been canvassed by the parties in any detail in any discovery and it is not appropriate that I guess at the particular details. The wife said that whilst the parties were working in the fast food business, the husband would start drinking in the afternoon and when he arrived home, he would be drunk. When the business was sold at the end of about 1997, the loss was not only significant but also obvious. The wife conceded in her affidavit that she did not know exactly what amount of money was lost.
Even if there could be an argument by the husband about an initial contribution by him, the securing of the loan to acquire the fast food business against the former matrimonial home must have significantly diminished the equity that the husband brought in. As I have earlier expressed, it is not a matter about which I need to be concerned because the parties have not produced any evidence as to the precise details of the initial equity.
In respect of other contributions of a general financial and non-financial nature, the husband said that between 1998 and 1999, significant improvements were made to the T Street property. He set out those details. That was in contrast to the wife’s evidence in which she said that the T Street property was only purchased in 2002. The husband was not challenged about this evidence in cross-examination so I am not entirely sure what the correct version is.
Subsequent to separation, the husband maintained all of the mortgage payments on the T Street property whilst the wife lived in the home. The husband seemed to be saying that that should be a contribution of some significance on his part, however, when I come to deal with the position as each party put it in opening, it will be seen that it makes no difference. Clearly, the husband had access to the property which had otherwise been a rental property for the benefit of the husband and wife.
The husband also said that he made significant improvements to the B Street property by himself. He pointed out that whilst the wife and children were overseas, he laid tiles, did landscaping, tailored curtains, polished floorboards, replaced windows, erected a new fence and replaced the guttering and water pipes. The husband also said that in respect of this same property, which he left at separation for the reasons I have earlier set out, the wife had failed to maintain the property or allowed him to maintain the property and therefore it had deteriorated as had its value. No objection was taken to that evidence but there is no admissible evidence as to the impact of either assertion on the otherwise agreed value of the property.
Similarly, in respect of the T Street property, notwithstanding the work done by the husband, there is no evidence before me as to how those personal contributions translate into the particular value of the property.
The wife said that when she came to Australia, she worked on a farm until she fell pregnant with G. She conceded that when the parties acquired the fast food business they both worked very long hours as well as her looking after the children and doing housework. The wife said that when E was about two years old, the husband asked her to return to work and obtained for her a job in a retail shop where she worked for about five weeks until it turned out that the husband was not capable of caring for E so she stopped. She said that in 2003 she returned to work for three years in another shop, a job arranged by the husband.
The parties opened their cases in respect of an add-back issue. The husband’s evidence was that he had an interest in a property in Lebanon with his brother. He transferred the interest to his brother and was paid $10,000. When questioned about that sum, he conceded that the sums were brought in by cash payments over a period of time. He maintained that the payment to him was a fair value. There was no evidence as to market value. The wife’s evidence was that in 1999, the husband’s father came to the home with papers in Lebanese. She said that they were the title deeds to a house and land in Lebanon which had been given to the husband and his brother. She said that she thought that the land was sold in March 2007 and the husband received the sum of $7000.
Counsel for the wife conceded that there was no other evidence that she could present.
When asked what happened to the money, the husband said that he needed it for furniture when he moved to the T Street property. He set out in some detail in oral evidence, although not in his affidavit, what items he had purchased and why they were necessary. This evidence was given just prior to the luncheon adjournment of the first day and I was unable to sit during the afternoon of that particular day. I suggested that perhaps the husband might like to go and get the receipts or go to the stores to establish that what he was saying was corroborated by documents, but the following morning no documents were produced.
Counsel for the wife simply ask that I add back to the pool the sum of $10,000.
There is also a dispute between the parties over chattels. The husband sought a comprehensive list of items. In cross-examination, he said that he had asked for the items because he simply wanted them. This evidence was largely unhelpful because he conceded that he already had acquired a household of furniture from the money to which I have just referred. The wife’s evidence was that subsequent to separation, the husband came to the home in the company of the police to remove documents and personal papers as well as a variety of other things. She said he took his tools and contents of the garage as well as clothing, personal items, paperwork, jewellery and all of his DVDs. The husband strongly disputes that. In cross-examination, the wife conceded that the husband had his tools in the garage most of which was “car stuff”. She was asked about the chain saw and she said that she bought that for herself. She said that in relation to gardening tools, the husband did not work in the garden as it was her responsibility. As far as the garage itself was concerned, she conceded that she had not touched anything there. When asked whether she objected to the husband keeping his tools, she said he could have them. In relation to matters in the house however, of the items that the husband wanted, she said that she used them all of the time for the children.
The division of chattels outside of the house can be determined on the basis of their particular need and use. In relation to the matters inside the house, having regard to what I have already said about the husband having acquired many things for himself already, it is hard to understand why he would want to remove items that the children use. The evidence is that those items are in daily use. Accordingly, I have made orders on the basis of the practical division of chattels. There is no valuation issue here as neither party presented any evidence to that effect. Accordingly, I have divided the items on the basis of what I think is fair in the circumstances.
There is no corroborating evidence either way of what happened to those items and what was taken and in any event, there is no dispute between the parties about values in respect of these items.
Some of the items sought were not being used in any significant way by the children such as the piano that the husband asserted had been given to him. I propose to make an adjustment of items about which there is little or no dispute.
What was common ground was that I should follow the four step process. I propose to do that.
That is the process set out by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at 78,386 where the Full Court said:
Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
The first step therefore is to determine the pool of assets.
The pool of assets therefore is as follows:
B Street  $300,000
T Street  $195,000
Less     $ 74,631
$120,369
Husband’s car  $3,000
Wife’s car  $600
(but that appears to be affected
although not necessarily
encumbered by a debt to the extent
of approximately $400)
Total:  $423,969
I do not propose to add back the Lebanese money because of two things:
(a)the money seems largely to have gone towards furniture and the furniture that has mostly been retained by the husband should be offset against the bulk of the furniture which the wife will retain;
(b)That the money came in very late in the piece and in this case, I accept that it was a contribution subsequent to separation so to that extent having regard to the amount involved, it would have marginal impact on the outcome of these proceedings.
In respect of contribution, the Full Court in Pierce v Pierce (1999) FLC 92-844 at page 85,881 said:
28. In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution
…
30. There is an obligation on a trial judge not only to identify the relevant contributions but also to assess them.
I have assessed the contributions in the earlier part of these reasons. As I also indicated, when the case commenced, counsel for the husband said in his opening statement that the husband’s contribution should be assessed at 55 per cent in his favour because of the initial contributions by bringing in the B Street equity and that otherwise the contributions between the parties had been equal. Counsel for the wife said that there was a significant dispute about the initial equity but in any event there was the significant loss on the fast food business. She said that the contributions should otherwise be equal.
In final address, counsel for the wife said that the contribution should be found to be equal. I agree with that position. In my view having assessed and given weight to each of the contributions set out by the parties in their evidence, I am unable to distinguish between either of them. As such, I find that the parties have contributed equally.
The third step relates to the matters set out in s 75(2) of the Act. For the purposes of s 79, I am obliged to take into account those factors.
The husband said that since separation, he had continued to work but as a result of his anxiety issues, he could not work for extended times, and at best was only capable of completing a driving shift of approximately six hours. He said his earning capacity was significantly limited. He otherwise relied upon minimal government benefits.
The husband also said that G told him that since separation the wife had sent thousands of dollars through bank transfer to her relatives in Sydney and did so without his knowledge or consent. That evidence had no probative value notwithstanding it was not objected to and there was certainly no cross-examination of the wife that would elicit answers to suggest that it was right. In addition, the husband made reference to the fact that he had endeavoured to obtain the banking records of the Commonwealth Bank, to which he had driven his wife to do her banking during the marriage, but that ultimately showed that there were no accounts at that bank. That issue was of little assistance to me in the end as I was unable to make any finding to establish that what the husband was saying was right.
The wife’s position in respect of the future was simple. She said that the husband did not pay significant child support for the children notwithstanding that he was employed as a driver. She was not able to obtain any information that might provide any light on what exactly the husband was earning. The best she could do was say that she believed that he was earning more than what he was disclosing. The wife for her own part, had a limited income and earning capacity as a result of her background as well as the responsibilities for the care of the children.
For the purposes of these proceedings, I am satisfied that there is little difference between the income, property and financial resources of either party. Whist the wife is limited by virtue of her responsibilities to which I have just referred, there is no evidence that the husband’s earning capacity is anything other than that which he asserted. There is also no evidence that either party has financial resources or property other than those to which I have referred as part of the pool to be divided between them. This is clearly a very small pool of assets.
One of the significant matters required to be contemplated in s 75(2) of the Act is the responsibility that either parent has for the care of children. As a result of the parenting orders that I propose to make, a far greater burden will fall upon the wife not only because of the time element involved in the care of these children but also the responsibilities as a result of the lack of support that she has and will receive from the husband. These children are still young and therefore there is a long period of time ahead of her during which she will shoulder the significant burden for the physical care of the children.
Neither party has the responsibility to support any other person nor is there any person currently supporting either of the parties themselves.
I have contemplated the standard of living of each party and it is clear from the evidence that the parties have lived a modest lifestyle notwithstanding they had the benefit of owning an investment property. Sadly, those assets cannot remain in their current form having regard to the fact that neither party is in a position to buy out the interests of the other.
The wife will have the responsibility for the significant care of the children.
Section 75(2)(na) requires me to take into account the child support under the relevant legislation that a party is providing or might be liable to provide for the future in respect of the children. Having regard to the husband’s earning capacity as it would appear on the record, there is very little prospect that the husband will be paying much child support in the future. Whilst that may very well be the effect of the legislative formula, that does not alleviate the need for children to be adequately supported and provided for in the circumstances arising out of the breakup of the marriage. The husband showed no inclination to be generous towards the support of the wife and the children and that is a matter that I shall take into account.
Pursuant to s 75(2)(n) I am obliged to take into account the terms of any order. That particular provision refers specifically to the quantum of the pool of assets. Obviously in a small pool, a percentage point has very little significance whereas in a large pool, it can make a substantial difference to the outcome.

Ultimately, what I am obliged to do is to make a decision which is just and equitable to both parties in the circumstances. It is not the percentage division which must be just and equitable but the underlying value of what each party receives.
There is little doubt in my mind that this is a case having regard to the size of the pool where there ought to be a loading in favour of the wife of 15 per cent. Giving her 65 per cent still is a modest sum but is otherwise in my view, just and equitable to both parties.
Sixty five per cent of $423,969 is $275,580.
The only asset that the wife is to retain out of the pool which is not contentious is her motor car which is in the pool at $600. Accordingly she has to receive a further $274,980.
I have earlier set out that the home is worth $300,000. There is no encumbrance on that property. However, both parties have charged the property with the liability they have to their respective lawyers. The sale of that property and the payment out to the lawyers of all of those costs will mean that there will not be sufficient funds to pay out the wife the sum of $274,980.
A significant issue in this case is that the wife and husband both want the T Street property. The wife’s position is simple. She says that B Street has to be sold to enable all of these expenses to be paid and therefore she will be without a home for herself and the children. The husband has the capacity to move much more easily than does the wife and in my view, it is appropriate that she have the T Street property and that the B Street property be therefore sold. The T Street mortgage can be paid out of the sale of B Street. If that was to occur, depending upon the sale price of B Street, the wife will leave her with cash of about $79,980. Then the husband will therefore be left with cash of $145,389 or thereabouts.
I have made provision in the orders for the costs of the lawyers to be paid out at the settlement of B Street. It may be that there is not sufficient funds in each parties’ entitlement for the lawyers to be paid in full. I propose to order that the caveats be otherwise withdrawn and if there is any shortfall, the lawyers can sort that issue out with their respective clients. It is not appropriate that the other party be paying as part of the settlement proceeds for the other party’s lawyer.
The just and equitable outcome in my view is that the wife have the T Street home unencumbered, which means that she would then otherwise be entitled to a further $79,980 but out of that, she has to pay her legal fees.
In my view, that is an appropriate division in this case.

I certify that the preceding Two Hundred and Twenty One (221) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 28 October 2008

[2008] FamCA 923

31 October 2008

Key Legal Topics

Areas of Law

Family Law

Property Law

Equity & Trusts

Legal Concepts

Costs

Remedies