BANKS & BANKS
[2012] FamCA 158
•22 March 2012
FAMILY COURT OF AUSTRALIA
| BANKS & BANKS | [2012] FamCA 158 |
| FAMILY LAW - CHILDREN – With whom a child lives – with whom a child spends time – with whom a child communicates – allegations of sexual abuse – whether child is at an unacceptable risk in the unsupervised care of the father - order that father spend supervised time with the child during the day increasing to unsupervised time during the day |
| FAMILY LAW - PROPERTY - Contributions - add backs – superannuation |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 60CA, 61DA and 64D Evidence Act 1995 (Cth) s 128 |
| Hartford and Ansilda [2009] FamCA 23 Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 |
| APPLICANT: | Ms Banks |
| RESPONDENT: | Mr Banks |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | SYC | 2941 | f | 2010 |
| DATE DELIVERED: | 22 March 2012 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 12, 13, 14, 15, 16, 19, 20 December 2011 and 24 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Maureen De Vere |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr David Dura |
| SOLICITOR FOR THE RESPONDENT: | McLachlan Thorpe Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Pamela Nash |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Pearson Family Lawyers |
PARENTING
THE COURT ORDERS:
BY WAY OF FINAL ORDER all previous parenting orders in respect of L, born July 2004 (“the child”) are discharged.
BY WAY OF FINAL ORDER Ms Banks (“the mother”) shall have sole parental responsibility for the child.
BY WAY OF FINAL ORDER the mother shall consider the views of Mr Banks also known as Mr Brent (“the father) in relation to parental responsibility and shall endeavour to reach agreement with the father on such issues.
BY WAY OF FINAL ORDER the child shall live with the mother.
PENDING FURTHER ORDER the child spend time with the father as follows:
Stage One – School Terms 1 and 2 - 2012
5.1.During terms 1 and 2, 2012:-
5.1.1.Each Sunday from 9.00 am until 3.00 pm commencing on the first Sunday from the date of these Orders; and the father’s time shall be supervised by Ms T or Ms Q (“the paternal grandmother”).
5.1.2.Each Wednesday from after school until 7.00 pm, with such time to be spent in the Penrith/Blue Mountains area. For the purpose of this order, Mr M, (“the child’s maternal grandfather”), shall supervise the father's time with the child. Changeover at the commencement of the father’s time with the child shall occur at G Primary School, provided that the maternal grandfather is present, and will conclude at 7.00 pm with the child left in the maternal grandfather’s care who shall deliver him to his mother.
5.2.For the purpose of Sunday or weekend time the father shall collect the child (in the presence of Ms T or the paternal grandmother) at the bottom of the maternal grandparent’s driveway at … O Street, Town G at the commencement of his time and the mother shall collect the child from the residence of Ms T at … R Street, Suburb F or if given written notice in advance, the home of the paternal grandmother at the conclusion of time.
Stage 2 – From School Term 2012 and continuing for subsequent terms;
5.3.During term 3, 2012 on an unsupervised basis:-
5.3.1.Each Wednesday from after school until 7.00 pm, with such time to be spent in the Penrith/Blue Mountains area. Changeover at the commencement of the father’s time with the child shall occur at G Primary School, and will conclude at 7.00 pm with the child left with either of the maternal grandparents at the bottom of the driveway at … O Street, Town G; and
5.3.2.Each alternate Sunday from 9.00 am until 3.00 pm commencing on the first Sunday from the start of term 3, 2012.
5.4.During term 4, 2012 and subsequent school terms on an unsupervised basis:-
5.4.1.Each Wednesday from after school until 7.00 pm, with such time to be spent in the Penrith/Blue Mountains area. Changeover at the commencement of the father’s time with the child shall occur at G Primary School, and will conclude at 7.00 pm with the child left with either of the maternal grandparents at the bottom of the driveway of … O Street, Town G; and
5.4.2.Each alternate weekend on Saturday and on Sunday (from 8.00 am until 4.00 pm on each such day) commencing on the first weekend after the start of each term.
5.5.For the purpose of such weekend time the father shall collect the child at the bottom of the maternal grandparent’s driveway at … O Street, Town G at the commencement of his time and the mother shall collect the child from the residence of Ms T at … R Street, Suburb F or, if given notice in writing in advance, the paternal grandmother at the conclusion of time.
School holidays
5.6.During the mid year school holiday in 2012 (i.e. at the end of terms 1, 2 and 3, 2012) for three (3) non consecutive periods from 9.00 am until 3.00 pm during the first week of the school holidays as agreed between the parties and failing agreement on the first Monday, Wednesday and Friday and provided that Ms T or the paternal grandmother supervise the father’s time at the end of terms 1 and 2.
5.7.During the school holiday periods in January 2013 (and over the Christmas/New Year school holiday until further order) for four (4) non consecutive days from 8.00 am until 4.00 pm during the first and third week of the school holidays after New Year 2013 as agreed between the parties and failing agreement on the first Monday, Wednesday, Friday and Sunday.
5.8.From the end of school term 1, 2013 and continuing until further order, for four (4) non consecutive periods from 8.00 am until 4.00 pm during the first week of the school holidays as agreed between the parties and failing agreement on the first Monday, Wednesday, Friday and Sunday.
5.9.For Wednesday time during school term, changeover at the commencement of the father’s time with the child shall occur at G Primary School, and will conclude at 7.00 pm with the child left with either of the maternal grandparents at the bottom of the driveway of … O Street, Town G;
5.10.For the purpose of school holiday time and weekend time the father shall collect the child at the bottom of the maternal grandparent’s driveway at … O Street, Town G at the commencement of his time and the mother shall collect the child from the residence of Ms T at … R Street, Suburb F or, if given written notice in advance, the home of the paternal grandmother at the conclusion of time.
The interim orders made in respect of the father spending time with the child may only be varied to provide substantial change (apart from any agreement in writing between the parties of a minor nature [such as changeover, time and date variations]) by a subsequent order of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
Special occasions
BY WAY OF FINAL ORDER if the child is not otherwise spending time with the father on Father’s Day, the child shall spend time with the father on Father’s Day from 8.00 am until 4.00 pm on Father’s Day 2012 and 2013, with the father to collect and return the child.
BY WAY OF FINAL ORDER if the child is not otherwise spending time with the mother on Mother’s Day, the child shall live with the mother on Mother’s Day.
PENDING FURTHER ORDER and notwithstanding any other of these Orders, the child shall spend time with the father from 4.00 pm on Christmas Eve (24 December) to 4.00 pm on Christmas Day (25 December) 2012, provided he spends the night of Christmas Eve at the home of and with the paternal grandmother.
Telephone
BY WAY OF FINAL ORDER the mother shall encourage and facilitate the child telephoning his father twice a week.
BY WAY OF FINAL ORDER the child shall be encouraged to telephone the other party on each of their birthdays.
Restraints
BY WAY OF FINAL ORDER except as otherwise agreed in writing between the parties or orders by a court exercising jurisdiction under the Family Law Act 1975 (Cth), each party shall be restrained by injunction from taking the child to any counsellor, medical practitioner or health care provider for the purpose of discussing and/or receiving treatment in respect of the alleged assaults by the father upon the child for a period of three (3) years from the date of these Orders.
BY WAY OF FINAL ORDER each of the parties is restrained from denigrating the other parent and any members of that parent’s extended family in the presence or hearing of the child and each party shall use her/his best endeavours to ensure that no other person does so.
BY WAY OF FINAL ORDER the father is restrained by injunction from bathing, showering and/or dressing the child including taking the child to the toilet and bathroom.
Changeovers
For the purposes of facilitating changeovers pursuant to these Orders and unless otherwise provided for above or otherwise agreed in writing between the parties:-
15.1.When the father’s time with the child commences from the conclusion of school then:-
15.1.1.The father is responsible for the collection of the child from school at the commencement of his time and the return of the child to the bottom of the maternal grandparent’s driveway at … O Street, Town G at the conclusion of his time;
15.1.2.If the child is not in attendance at school on a regular school day on a day upon which his time is to commence with the father then:
15.1.2.1.The mother shall inform the father of that in advance of the time by text message;
15.1.2.2.The time the child is to spend with the father shall commence at 3pm on such day with changeover occurring at the bottom of the maternal grandparent’s driveway at … O Street, Town G.
15.2.Changeovers shall occur at the commencement of the father’s time with the father to collect the child at the bottom of the maternal grandparent’s driveway at … O Street, Town G.
15.3.Changeovers shall occur at the conclusion of the father’s time with the Mother to collect the child at the bottom of the father’s driveway at … C Street, Suburb N.
Miscellaneous
BY WAY OF FINAL ORDER each party shall:-
16.1.notify the other party as soon as possible and in any event within twelve (12) hours of any serious injury or serious illness suffered by the child whilst in the care of that party.
16.2.notify the other party, not less than twenty eight (28) days before changing that party's address, of such change.
16.3.notify the other party, not less than seven (7) days before changing that party's telephone number, of such change.
16.4.notify the other party and keep the other party notified of a telephone number where the child may be contacted in the event of an emergency.
16.5.notify the other party of the name, address and telephone number of the child's treating doctor and authorise that doctor in writing to release to the other party particulars of the child's health or treatment at any time requested by the other party.
16.6.within seven (7) days of the date of the making of these Orders supply to the other party an authority to the school attended by the child authorising the other party and the party's parents to obtain from the school particulars of the child's welfare and progress at the school, details of upcoming functions or activities and any other information disseminated by the school to parents of children attending the school.
16.7.return to the other party, at the conclusion of each period the child has spent with that party, all clothing and personal possessions which the child had in his possession at the commencement of such period.
BY WAY OF FINAL ORDER the parties and or their parents shall be at liberty to attend school functions to which parents and or grandparents are invited and permitted to attend.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
A Family Consultant prepare a report pursuant to s 62G, such report not to be commenced and appointments not to be made until after 30 June 2013. The Family Consultant to report upon:-
19.1.The impact of the changed parenting arrangements upon the child;
19.2.Any recommendation as to change to the arrangements for additional time, supervised time, overnight time and /or other time and communication that the child has with the father.
19.3.The nature of the relationship between the child and his parents and any other factor under s 60CC of the Family Law Act 1975 (Cth) which the Family Consultant considers is relevant.
19.4.Each of the parties is to attend at appointments reasonably made by the family consultant and arrange for the child to attend on an appointment or a series of appointments with a family consultant.
Within fourteen (14) days from the date of these orders the Independent Children’s Lawyer will forward to the relevant State Welfare Authorities the following:-
20.1.copy of these Orders;
20.2.A copy of the Reasons upon which theses Orders are based;
20.3.A copy of the Family Consultant’s Children and Parents Issues Assessment dated 27 September 2010.
20.4.A copy of the report of Dr Z dated 7 March 2011.
21. IT IS NOTED that nothing in these orders is intended to neither detract nor diminish any obligation for the father to disclose the findings and/or consequences of the Department of Education and Training investigations that led to his forced resignation as a teacher.
PROPERTY
THE COURT ORDERS
Within fourteen (14) days of these Orders the father and mother do all things necessary to authorise and direct Law Firm 1 of S Street P, NSW to distribute the funds held in their controlled monies account with the Bank of Queensland Ltd, account number … in the following order and priority: -
22.1. $91,308 to the mother;
22.2. $158,942 to the father;
22.3.as to the amount by which that account now exceeds $250,250 such amount to be divided as to 55 per cent to the father and 45 per cent to the mother.
The Court allocate as required by s 90MT(4) of the Family Law Act 1975 (Cth) a base amount of $154,379 of the father’s superannuation benefits as at the date of these Orders, to the mother out of the father’s interests in the State Superannuation Authorities Superannuation Scheme and the State Authorities Non-contributory Superannuation Scheme (“the Super Funds”).
In accordance with s 90MT(1)(a) of the Family Law Act 1975 (Cth) that whenever a splittable payment becomes payable, the trustee of the Super Funds (“the Trustees”):
24.1.Create an entitlement for the mother or her administrators, executors, beneficiaries, heirs or assigns to be paid the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 (Cth); and
24.2.Make a corresponding reduction in the entitlement the father would have had in the Super Fund but for this Order.
The Trustees do all acts and things necessary and sign all documents to:
25.1.Calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth), the entitlement for the mother created by these Orders; and
25.2.Pay the entitlement whenever the Trustees make a splittable payment out of the father’s interest in the Super Funds.
The Trustees will do all acts and things necessary and sign all documents so that, in accordance with the obligations set out under the Family Law Act 1975 (Cth) and Family Law (Superannuation) Regulations 2001 (Cth), the Trustees can calculate the entitlement of, and make payment to, the mother in accordance with these Orders.
The mother do all things necessary, including but not limited to, exercising her request pursuant to rule 7A.07(2) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the payment of the transferable benefits out of the father’s superannuation interest in the Super Funds to the mother in accordance with rule 7A.13 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).
Pursuant to rule 14F of the Family Law (Superannuation) Regulations 2001 (Cth), any payments from the father’s superannuation interest made after the Trustees have rolled over or transferred the transferable benefits to a fund of the mother’s choosing are not splittable payments.
These Orders have effect from the operative time being four (4) days after service of these Orders upon the Trustees.
Having been accorded procedural fairness, these Orders bind the Trustees to observe the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth).
For the purposes of implementing orders 23 to 30 above, any reference to “[Mr Brent]” shall be understood to be a reference to “[Mr Banks], and vice versa, the father being known by both names, and provided that the father’s superannuation interest is identified by either of the two former names and his corresponding member number (…), then the Trustees shall give effect to these Orders.
Leave be given for the parties to apply to the Court in the event that the Trustees are unable to give effect to these Orders. Such leave to be available for three (3) months from the date of this order.
Except as is otherwise provided in these orders;
33.1.Each party be entitled to the exclusion of all others to all property (including choses in action) in the possession or control of such party as at the date of these Orders, including but not limited to furniture, household effects, monies in financial institutions, jewellery and personalty.
33.2.Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.
33.3.All insurance policies are to remain the sole property of the beneficiary named therein.
33.4.Each party be solely liable for and indemnify the other in relation to all liabilities and debts in the name of the party as at the date of these Orders, including but not limited to any credit card liabilities and income tax liabilities.
33.5.Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled, pursuant to these Orders.
33.6.Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
GENERALLY
The property proceedings be removed from the list of cases requiring determination.
The limited parenting proceedings be listed for mention before Benjamin J at 9.30 am on 19 August 2013 at Hobart for the purpose of trial directions in relation to the issue of the child spends with the father.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Banks & Banks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: SYC 2941 of 2010
| Ms Banks |
Applicant
And
| Mr Banks |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings between Ms Banks (“the mother”) and Mr Banks (“the father”) relating to the parenting arrangements for their son L (aged about seven and a half at the date of hearing) and relating to division of their property.
The mother claims that the father abused the child on one or a number of occasions whilst showering with the child at least in the later part of 2008 and the first half of 2009. The mother says that she is unable to trust the father and that any time the child spends the father ought to be supervised for the mid term future. The mother says that, provided it is safe, the child should have a relationship with his father and that any unsupervised time should not commence until after mid 2012. This changed when further submissions were made.
The father claims that the mother has either concocted or exaggerated the disclosures made by the child and is using those false or misleading allegations to exclude him from the child’s life. The father seeks orders that the child primarily live with him.
The parenting proceedings were case managed pursuant to the Family Court’s Magellan protocol and an Independent Children’s Lawyer was appointed to represent the interests of the child. In addition a single expert psychiatric report was commissioned and provided to the Court.
The parties have been unable to resolve property matters and have asked the Court to make a determination as to the division of their matrimonial property. The issues in that respect are primarily the significant difference in initial contribution and future needs.
BACKGROUND
The father was aged 46 years and the mother was aged 36 years at the time of hearing. The parties met in July 2001, married and began cohabitation in August 2002.
The child was born in July 2004.
The parties began marriage counselling in February 2009 and separated in June 2009.
The marriage of the parties overtly commenced to spin towards eventual failure with the delivery of a letter to the father from the Department of Education and Training (“DET”) dated 3 November 2008.[1] In that letter the father was notified that his conduct as a secondary school teacher had been referred to an investigator. The DET investigation related to the father’s alleged improper personal relationship with female students.
[1] Exhibit RLB6 of the mother’s affidavit filed 5 September 2011.
In that November 2008 letter the father was directed to cease working as a face to face teacher and was directed to undertake non-teaching duties within the DET.
The father informed the mother of the allegation but concedes that he told her that the investigation was in relation to him being seen having a cup of coffee with a student, which was misinterpreted. That explanation to the mother was inadequate and misleading.
The mother questioned the father in relation to the investigation and it is clear that the answers she was given did not satisfy her legitimate concerns. Prior to the notification of the investigation the mother had, in January 2008, questioned the father in relation to a large mobile telephone bill with a significant number of telephone calls and text messages to a particular number ending with the digits ‘…’. This was the telephone number of [female student M] whom the father taught and who was one of the students about whom the DET had concerns as to the father’s conduct as a teacher. At that time the father had disingenuously explained to the mother that the electronic communication was to another teacher. It is significant that after that enquiry by the mother the father changed the way he could text [female student M] so that the text messages did not show on his telephone account.
Between June 2008 and separation in June 2009 the mother endeavoured to engage in marriage guidance counselling and tried to secure information from the father and to understand what was happening in the parties’ relationship. The father did not, during that time, provide adequate or frank information to the mother and did not seriously engage in counselling.
In January 2009 the mother undertook some investigations on the father’s computer. She discovered a web site called ‘ referring to communication between pseudonyms ‘[…]’ and ‘[…]’. I find in the context of that account that ‘[…]’ is a pseudonym of the father and ‘[…]’ is the pseudonym for [female student M].
In these reasons I have referred to the father’s relationship with [female student M]. I make it clear that I am in no way critical of [female student M], she is a victim. I have considered the father’s behaviour as a teacher and supervisor of [female student M] (and other students) in the context of this dispute and the parenting determination in regard to the child. The criticism made by me is of the father engaging in an inappropriate relationship with a vulnerable student.
The father had sent a series of inappropriate emails to the student’s mobile telephone number using the “[…]” account (which I determine was that from the 2008 telephone account[2]). By this method the father was able to SMS this student without it appearing on his telephone account and avoiding detection and enquiry by the mother.
[2] Exhibit W3.
During the period from about January 2009 to June 2009 the communication between the parties further deteriorated and the father commenced sleeping in the child’s bedroom (in a separate bed). The mother asserted that one morning she discovered the father in the child’s bedroom where she believed that the father was masturbating and in circumstances where the father could have easily been discovered by the child.
The mother also observed behaviour in the child with regard to an irritable bottom. The mother arranged for medication such as worming tablets. It is clear on the evidence that prior to May 2009 the mother had not concluded that there was any sinister cause in terms of that irritation.
In this period of time the mother had also found sexually explicit photographs of women or girls on the father’s computer, which photographs the mother asserted depicted teenage girls. There is no doubt that some salacious material was found on the computer. There was an issue as to whether it was of teenage girls.
As to [female student M] the mother had found photographs of her in the father’s belongings (which included photographs of other students) labelled with that [female student M]’s name. The father’s explanation in terms of retaining this material was that they were to be used for a school magazine of which he had some responsibility. Having regard to my views of the quality of the father’s evidence and the findings by the DET, that explanation was inherently unbelievable.
The mother asserted that on 5 June 2009 the child made a disclosure to her, which she took as inappropriate behaviour on the part of the father. As a consequence the mother believed that the father had placed his finger into the child’s bottom whilst he and the child were showering together. The mother separated from the father about fourteen days later, and adopted a protective roll over that intervening period and subsequently.
The mother reported her concerns to various authorities, including a general medical practitioner, State welfare authorities and the police. The mother was sure that the behaviour was wrong but was unable to adequately label it. She wished to and did protect the child from that behaviour, however, she sought to maintain the relationship between the child and the father as she believed that it was important for the child.
On 5 July 2009, the mother and father had arranged for the child to go with the father to a relative’s birthday party. The mother’s evidence was that the father had agreed to take the child to his parent’s home for lunch, to a birthday party and then straight back to the mother. The mother asserts that the father agreed that the child would not be taken to the father’s home. The father’s case was that he had no recollection of any such promise and he concedes that he took the child to his home. The mother asserts that the following day the child made a disclosure to her (and apparently to her mother) that the child said he had been to the father’s home and the father had showered with the child, in circumstances where the child had no need of a shower. The father denied that any showering of the child occurred at that time.
From early June 2009 until November 2009 the mother ensured that any time the child spent with the father was supervised. The mother encouraged telephone calls between the child and the father until September 2009. Each night the mother would arrange for the child to telephone the father but after that time the mother invited the father to make the calls himself. She says that the father did not make any or many telephone calls.
It is not in issue that the father was distraught by the breakdown of the marriage and on many occasions after separation requested that the mother reconcile with him. The mother did not and does not wish to reconcile and has made her views abundantly clear to the father. The father did not and does not accept that the relationship has irretrievably broken down and to this day persists in his belief that there should be reconciliation, despite the mother’s regular, clear and unambiguous statements to the contrary.
After the November 2008 letter giving notice to the father of the investigation and the removal of the father from face to face teaching the DET sent a further letter. That next letter, dated November 2009, set out the particulars of the allegations made against the father.[3] The father was invited to respond. By letter dated 20 October 2010[4] the father was informed that there had been a determination that a number of the allegations were sustained and that the father’s conduct as a teacher was such that the investigator was considering a recommendation to the Deputy Director of DET that the father be dismissed from the teaching service or required to resign.
[3] Exhibit RLB7 to the mother’s affidavit filed 5 September 2011.
[4] Exhibit H3.
In December 2010 the findings of misconduct were confirmed and the father was directed to resign effective 17 December 2010. The father’s name has been placed on a list of persons never to be employed in any capacity by DET without reference to the Director of Staffing Services.
The allegations sustained are:-
A.[The father] having approached a student [MB] at school and asking her for her msn details, contacted [MB] via msn messenger on 30 October 2008 and 1 November 2008 and had inappropriate conversations with her in relation to alleged relationship with her friend and classmate [female student M];
B.Asked [MB] to approach [female student M] on his behalf about matters unrelated to schooling.
C.[Not sustained];
D.[The father] developed and maintained an improper personal relationship as opposed to a professional relationship with a female student, namely [female student M] between 2006 and 2008, in that [the father]:
1.on an occasion in 2006 following an excursion to […] requested [female student M]’s mobile telephone number and recorded her telephone number in [the father’s] mobile telephone without the knowledge and approval of her parents and/or the approval of [the father’s] principal;[5]
[5] Sustained but does not constitute misconduct.
2.following this had telephone contact with [female student M] including text messages on numerous occasions from 25 November 2007 to April 2008 (see Appendix A) without the knowledge and approval of her parents and the knowledge and approval of [the father’s] principal about matters unrelated to her schooling;
3.on an occasion during 2007 following a database assignment whereby students included their email address in this assignment, added [female student M]’s email address to [the father’s] msn messenger without the knowledge and approval of [female student M], her parents and/or the knowledge and approval of your principal;[6]
[6] Sustained but does not constitute misconduct.
4.on numerous occasions during 2007 and 2008 contacted [female student M] via msn messenger, about matters unrelated to schooling without the knowledge and approval of her parents and/or the knowledge or approval of [the father’s] principal;
5.[not sustained];
6.on 29 August 2008 [the father] set up a free web based sms account from [the father’s] computer to send messages to [female student M];
7.sent 11 messages to [female student M] from 29 August 2008 to 5 January 2009 about matters unrelated to schooling (see Appendix B);
8.contacted [female student M] via text and/or msn messenger or other messaging services between 25 September 2008 and 1 November 2008, a total of 95 messages about matters unrelated to her schooling (see Appendix C);
9.on 31 October 2008 referred [female student M] to an article entitled “Prostitutes ‘Good option for virgins’” by Emily O’Keefe and said words to the effect of “kinda the idea I was having 4 u” (see Appendix D);
10.on 28 September 2008 and 20 October 2008 requested that [female student M] see [the father] at school (in … during lunchtime and before a lesson) about matters unrelated to her schooling;
11.on numerous Wednesday afternoons during Term 1 & 2 2008 transported [female student M] alone in [the father’s] private motor vehicle to her … classes …, without the knowledge and approval of her parents and/or knowledge or approval of the principal;
12.on numerous Monday and Friday afternoons during 2008 met with [female student M] after school and spent time with her alone in your [the father] car;
13.[not sustained];
14.[not sustained];
(a)permitted and condoned [female student M] to meet with him for coffee, at a shopping centre in Suburb W outside of school hours, without the knowledge and approval of her parents and/or the knowledge and approval of [the father’s] principal and;
(b)during this occasion permitted and condoned [female student M] to hug [the father];
15.on an occasion in 2008;
(a)permitted and condoned M to be with you [the father] for coffee at a shopping centre in Suburb W outside of school hours without the knowledge and approval of her parents and/or the knowledge and approval of [the father’s] principal and;
(b)[not sustained];
16.[not sustained];
E Developed and maintained an improper and personal relationship as opposed to a professional relationship with female students, namely [SH] and [RH] in that [the father]:
1.Contacted [SH] and [RH] outside of school hours via msn messenger about matters unrelated to their schooling.
While employed as a teacher at … [the father] engaged in conduct that may amount to misconduct in that you:[7]
F. [not sustained];
G.Developed and maintained an improper and personal relationship as opposed to a professional relationship with a female student namely, [E] in 1994 and up until she left … in 1996 in that [the father]:
1.on an occasion in 1994 before you [the father] left … requested [E]’s mobile telephone number and recorded her telephone number in [the father’s] mobile telephone without the knowledge and approval of [the father’s] principal;
2.on an occasion in 1995 contacted [E] via telephone and/or txt message and picked her up from her home to go shopping with her for household appliances;
3.during the shopping trip asked [E] if she still liked [the father] and said words to the effect of ‘it’s fine if you do because I like you’:
4.On an occasion in 1996 [the father] met with [E] outside of school and went to the cinema and returned to [the father’s] home.
[7] Sustained but does not constitute misconduct.
These are serious matters which reflect upon the character and behaviour of the father and to which I have had regard in these proceedings.
There was an incident on 18 November 2009 between the mother and father which are detailed later in these reasons. As a consequence of that event the mother sought and obtained an apprehended domestic violence order which after a series of interim orders was made a final order on 1 June 2010. That order lapsed in March 2011.
Following the events on 18 November 2009 the father did not see the child until September 2010. Since that time the father has spent supervised time with the child on a limited basis. Interim orders were made in December 2011 to facilitate more frequent supervised time.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
The provisions in the Family Law Act 1975 (Cth) (“the Family Law Act”) relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-
(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.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.
There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.
If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable. Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.
As to alleged sexual abuse, Brown J summarised the principles in such determinations in Hartford and Ansilda [2009] FamCA 23, where she said:-
19. The core principles are those enunciated by the High Court in M and M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear that the ultimate and paramount issue to be decided in proceedings for what are now called parenting orders is whether the making of the orders sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation of sexual abuse by the parent who seeks residence or time with a child does not alter the paramount and ultimate issue which the court has to determine. The High Court found (at 76) that although findings on the disputed allegation of sexual abuse will have an important, and sometimes a decisive, impact on the resolution of that issue,
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a context between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
20.In a joint judgment in B and B (1993) FLC 92-357 the Full Court (Fogarty, Baker and Purvis JJ) discussed the relevant principles, having regard to the High Court’s decision in M and M and at 79,778 said:
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
21.In Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court (Kay, Holden and O’Ryan JJ) examined the principles applicable in cases involving difficult questions of sexual abuse where the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim, noting the particular difficulties where the victim is young and does not give any direct testimony that can be the subject of forensic testing.
22.The Full Court considered the relevance of the decision in WK v SR (1997) FLC 92 -787. In that case the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said, at 84,691:
26. However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995(Cth), her evidence needed to be very carefully evaluated.
[…]
46.It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
'140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.
The Full Court found that the trial judge had not paid attention to these views, and that unless the rigorous approach set out in WK v SR is taken, in circumstances where the often inevitable result of a positive finding of abuse is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and the child the disastrous effects of a positive finding that is reached in error. The Full Court found that the termination of a worthwhile relationship between the parent and child ought to in most cases be the course of last resort, noting (at 79,217-8):
The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times.
23. The Full Court then referred with approval to the dissenting judgment of Kay J. in K v B (1994) FLC 92-478 where his Honour said, at 80, 972:
In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.' (emphasis in original)
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.
The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.
24.In Re W, the Full Court concluded its analysis of the relevant legal principles by remarking, at 79,218:
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
25.As I have observed before, and with respect to the Full Court, one might as well say that the harm and injustice that flows to both parent and child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of a child. Nevertheless, I am bound by the exposition of principle in the judgment.
26.In W v W (Abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) examined principles relevant to child sexual abuse cases with particular emphasis on what is meant by unacceptable risk, the potential cessation of a significant or meaningful parent/child relationship and the appropriateness or otherwise of supervised contact. As a starting point the Full Court referred to the significant detrimental harm to a child who is sexually abused, noting (at 79,906) the discussion by Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 where His Honour said, at 82,709:
The sexual abuse of a young child by a parent or care giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long term, can be devastating.
27.The Full Court also had regard to Fogarty J’s acknowledgement of the potential for false allegations. Referring to Thomas J’s judgment in S v S [1993] NZFLR 657, Fogarty J said (at 82,711):
Courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception or information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.
28.After considering a number of decisions in which the concept of unacceptable risk was considered, the Full Court in W v W (Abuse allegations: unacceptable risk) concluded (at 79,910):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognized the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty.
A court must assess and determine the relevant facts in issue and in the context of those facts and the non contentious relevant facts, the Court may then conclude whether abuse has or has not been established and/or whether an unacceptable risk of abuse exists into the future.
WITNESSES
The mother
The mother relied upon her affidavit filed 5 September 2011 and her financial statement filed 9 December 2011. At the commencement of the hearing there was a significant debate as to what material ought to be allowed and accepted in affidavits. I made notations on the mother’s affidavit in accordance with evidence not read and rulings made by me.
In addition the mother relied upon an affidavit sworn by her during the hearing in reply to the affidavits of two paid supervisors, which material was filed late. That affidavit[8] was confirmed by the mother in oral evidence.
[8] Exhibit W2.
In her evidence the mother produced telephone accounts,[9] “[…] account”[10] (that account included a copy of the article by Emily O’Keefe forwarded by the father to [female student M]), a series of SMS’s sent by the father to [female student M] between 16 September 2008 and 1 November 2008.[11]
[9] Exhibit W3.
[10] Exhibit W4.
[11] Exhibit W5.
The mother produced salacious photographs of women or girls taken from the father’s computer.[12] I make no determination as to the age of the women or girls depicted in those photographs. I cannot determine whether they are teenagers or young adults.
[12] Exhibit W6.
The mother produced the copy photographs obtained by the father of [female student M][13] and other students.
[13] Exhibit W7.
The mother produced the child’s school report at the end of 2011.[14] The child was in second class and had no absences from school for the second semester. His report was positive.
[14] Exhibit W8.
In regard to the events at supervision, there are some significant issues of fact between the mother’s recollection of events and the two professional supervisors, Ms A and Ms B’s, recollection of events.
In terms of her observations of some of those events, there is some degree of exaggeration and amplification of the events by the mother. There is also indication that the mother’s view of those events was seen in a subjective way.
In terms of the disclosure made to the mother by the child on 5 June 2009 the child did not say to the mother (at least initially) that the father had placed his finger inside the child’s bottom. The mother concluded that this occurred from the description provided by the child.
In cross-examination the mother explained ‘how else could it occur’ or words to that effect. I am satisfied that the mother adopted a child focused approach in relation to the interests of the child, but it is possible, if not likely, she was mistaken in her interpretation.
I am satisfied that the mother genuinely believes that the child was abused by the father and that the mother’s belief in that regard is fixed.
Despite this belief the mother says, and I accept, that it is important that the child have an ongoing relationship with the father and that there is a benefit in the child having such a relationship provided the child is safe.
The mother agreed that it was appropriate for the father to go to functions such as little athletics, soccer and school events. The mother wanted supervisors to be involved with the child for the short and medium term future at least. Her willingness to promote the relationship between the child and the father is genuine.
The mother says that the child needs to be able to express his concerns to some person when he is seeing the father, needs to be grown physically and emotionally when with the father and should be able to meet his own needs such as toileting, food, getting dressed and clothes. The mother still does not trust the father, particularly with regard to toileting and bathing. It is in a broader sense that there is the lack of trust that the mother has with the father. Having regard to the father’s lack of candour about the telephone account, the DET investigation, his relationships with vulnerable students, taking the child to his home in July 2009, his persistence in seeking reconciliation etc, her lack of trust is understandable.
The mother impressed as a frank witness. She made concessions against her interests and was seemingly candid in her approach. I generally accept her evidence, although I am conscious that it is given through the prism of her beliefs.
The father
The father provided evidence contained in his affidavits filed 29 July 2010 and 6 September 2010. He also relied upon his financial statement of 9 December 2011.
He is currently unemployed and has from time to time received financial support from his parents. I find that he is unlikely to obtain employment as a teacher of adolescent students in the future.
The father, through his counsel, objected to material in relation to the DET investigation and surrounding facts being introduced into the evidence. I allowed that evidence to be introduced, it was clearly relevant in the context of this proceeding. I required the father to answer questions in that regard and provided a certificate under s 128 of the Evidence Act 1995 (Cth).
Despite being given that certificate and being directed to answer questions the father employed obfuscation and prevarication when giving evidence.
An example of this was in relation to his assertion that he could not recall [female student M’s] telephone number. It is understandable at some levels, in a modern age; telephone numbers are electronically recorded but not remembered. However, the father was shown his telephone records showing numerous telephone calls, to the telephone number of ‘[her pseudonym]’ and yet still said he could not recall the phone number. He was prevaricating in relation to that evidence and I did not believe him.
The father’s was cross-examined in relation to the SMS messages he sent to [female student M] between 16 September 2008 and 1 November 2008. He claimed ignorance of those messages and initially said that he did not recognise the messages but later acknowledged, begrudgingly, that some may have been sent by him. When pressed in cross-examination by the Independent Children’s Lawyer the father acknowledged many of those messages. He was obfuscating in the giving of that evidence.
The father said he could not recall [female student M’s] age, even when pressed about what year she was in at high school. He had a close relationship with her and knew what years she attended school. I am satisfied that the father was trying to deflect that line of enquiry.
When questioned about his initial disclosure to the mother of the DET investigation (in November 2008) he conceded that he initially disingenuously informed the mother that it ‘related to a cup of coffee with a student and someone must have seen us’. At that time the father well knew that he was in serious difficulties. He had been removed from face to face teaching and had engaged in clandestine text communication in an inappropriate way with a young student. I am satisfied that the father had, at least initially, not made full disclosure to the mother in relation to the DET investigation and that information needed to be drawn out of him by the mother in a piecemeal fashion or discovered by her own independent investigations.
The father acknowledges that he prepared a time line for his psychiatrist, Dr H.[15] In that time line the father endeavoured to shift responsibility for various events in his life to others. He stated that he wants the relationship between himself and the mother to be restored. His oral evidence was likewise clear.
[15] Exhibit H4 pages 86 to 90.
The father still wants the marriage and relationship with the mother to continue. He made it clear that this remains his hope and he continues to wear his wedding ring. He said he does not accept the mother’s decision to separate and end the relationship in June 2009. The father was cross-examined in relation to him wanting physical contact with the mother and his persistence in that demand from June to November 2009. He said that the mother had from time to time asked him to stop having physical contact with her. He said he did stop. I do not believe him and on that issue I prefer the evidence of the mother. The persistence of the father in the second half of 2009 to pursue his relationship with the mother whilst purporting to spend time with the child was focusing on his needs and not that of the child.
The father seems unable to accept the consequences of past events. Despite the serious matters regarding his teaching and the adverse findings he continued to express a priority to get his career back and go back to teaching, when on the information before me that is inherently unlikely that he will be permitted to teach children.
The father was cross-examined in relation to suicidal ideation and said he did not recall discussing those issues with the mother. When asked about his mental health in the first half of 2009, in particular sitting on his own in the dark, the father said he did not recall. I do not believe him.
The father conceded that he from time to time washed the child’s bottom with his hand. He minimised the impact his ‘rough’ washing had on the mother and the child. He was neither responsive, sensitive nor reactive to the child’s nor the mother’s complaints and concerns in that regard.
The father was asked whether he had telephoned the mother on twenty seven occasions in October 2009. He said he could not recall how many calls he made. Whilst he may not recall the precise number, I do not accept that he has no recall as he deposed. He was simply prevaricating.
In terms of the events at the time the mother arranged for the child to spend time with the father on 18 November 2009 these were the subject of cross examination of the father. The father minimised his frightening and controlling behaviour, although, he generally confirmed the mother’s account of that day. I prefer her evidence. The father lacks insight into the impact of his persistent demands or is determined to use those to achieve that which he wants. It is troubling that these demands are made in the presence of the child and I do not accept his explanation for his behaviour was simply to make another date. The regular visits had been arranged in the past and yet he persisted with this behaviour (which can only be described as intimidation) despite the mother asking him to desist and being obviously upset.
The father has engaged well with the professional supervisors and from time to time seeks their assistance in terms of the time he spends with the child. He acknowledges that on occasions the child has been difficult for him and I am satisfied that his response, in the light of the supervision, has been generally appropriate. It will be of benefit to have some evidence of how the time progresses in the absence of such supervision.
There are some indications of manipulation by the father in terms of the time. An example was the father’s complaint that he did not see the child on the child’s birthday when in fact a note was shown to him prior to this and was in circumstances where the father acknowledged that he knew about the planned trip to Queensland. The mother arranged for the father to see the child before the trip on 3 July and after the trip of 13 July 2009.
The father lives in the northern beaches of Sydney and this is about eighty kilometres from the child’s school and home.
In relation to the events on 4 July 2009 the father said he does not remember being told ‘don’t take the child to the home’ and does not recall the mother opposing him taking the child to his home. His alleged behaviour in respect of the child showering with him had some weeks earlier led to separation and the mother informing the father of her concerns and yet the father says, he does not remember that limitation. I do not believe his evidence in that regard. His actions in taking the child to the home were consistent with his self focused approach.
The father’s evidence was significantly impeached. He is not a reliable witness and his evidence is, at times, troubling. The father’s alleged forgetfulness has an air of artifice and he prevaricated and obfuscated when cross examined.
Ms T
Ms T is a teacher and friend of the father and provided an affidavit in support of him. Her affidavit filed 6 September 2011 was read into evidence.
Much of the affidavit was rejected as it was a ‘cheer squad’ type affidavit. However, Ms T did give evidence in relation to her role as a supervisor. To that end, paragraphs 1 to 6, 9, 10, 11 and 20 were read into evidence.
Ms T taught in the same school as the father. Ms T is a mother of three children. Two of her children are aged nine and one is aged eighteen. She has been a teacher for twenty years and is aware that she is a mandatory reporter under the New South Wales State child welfare laws.
She has known the father for about ten years. She has observed some times the child has spent with the father in recent times.
Ms T has been provided with limited information about the father’s interaction with the female student at her school but, for professional reasons, does not want further information.
Ms T is aware of the allegation of abuse by the father with regard to the child. She does not believe the allegations made against the father however; she has not read the DET material. She was cross-examined as to what would happen if she had concerns with regard to the father’s care of the child and she made it very clear that if she saw any issue between the father and the child which caused her concerns, she would intervene.
Ms T was an impressive witness who was clear in her evidence. She gave an undertaking in the event that she was a supervisor and I accept that undertaking.
I am satisfied that she would be protective of the child in the event that she was a supervisor and that she would intervene if necessary.
Ms Q
Ms Q is the child’s paternal grandmother and she gave evidence in accordance with her affidavit of 6 September 2011. That affidavit was read into evidence. She had sworn an affidavit filed 29 July 2010 which had been included in a case outline. However, when enquiry was made of the father’s counsel, that affidavit was not sought to be read into evidence.
This grandmother observed that there is good interaction between the child and the father.
Ms Q has a strong loving relationship with her son and has identified with his cause. She believed he would confide in her bearing in mind there were some things adult children do not wish to tell a parent. Having regard to my observations of the father, I have serious doubts that he would honestly confide with his mother.
Ms Q is a very determined person and was not prepared to criticise the father. She was aware of the DET investigation. In terms of the father’s behaviour with students she believes that the father had entered into a friendship with them and nothing more. Ms Q said she has read the material in respect of the DET investigation and findings and, in the light of that material, her views about the father’s work behaviour remains unchanged. Ms Q is protective of the father. She had no knowledge of any suicide ideation of the father. Part of her evidence was in relation to the father seeing the child on Mother’s Day 2011. The evidence of the supervisor of the child was that he was upset seeing his mother on Mother’s Day, even the father conceded the child was upset and he spoke to the child and reassured the child. Ms Q saw no sign of the child being upset. She is aligned to the father.
In terms of her evidence being closely aligned to the father, I note the evidence of the father, the supervisor and the mother of the child’s distress on seeing the father on Mother’s Day (in circumstances where the child wanted to be with his mother). This witness did not observe any of that concern. It is not unusual for a mother to be protective of a child and to reject adverse assessment of such child. In this case this reflects on the quality of her evidence, which I determine is subjective and partisan.
Ms Q said that she would intervene if she saw inappropriate contact between the father and the child or inappropriate behaviour between the father and the child. I am satisfied that she would not allow any harm to come to the child whilst the child was being supervised by her.
Dr Z
Dr Z is a psychiatrist and prepared a single expert report dated 7 March 2011 which was read into evidence. Dr Z had seen the parties on 14 and/or 15 February 2011. His report set out the material upon which he had regard. Since that time he has read the reports of the professional supervisors Ms B and Ms A contained in affidavits both filed 6 December 2011.
There was no serious challenge to Dr Z’s qualifications. Counsel for the mother cross-examined Dr Z in relation to his experience of allegations of sexual abuse. Dr Z conceded he is not specialised in sexual abuse cases but said it was an integral part of his experience and training both in practice and in his forensic work in the Family Court and the Children’s Court. He confirmed that it is quite common for children to make disclosures to a parent and not to make further disclosures to others. He said further disclosure made by the child seemed to be in words which the child may use.
I am satisfied that Dr Z has the qualifications to provide the expert evidence he has provided. I am satisfied that his evidence was balanced and reported and gave evidence in accordance with the guidelines for expert witnesses in the Family Court.
Dr Z interviewed the mother and the father for a period of about two hours. He saw the parties and the child separately and together the following day. Dr Z read much of the written material. He spoke with the child’s maternal grandparents. He had telephone discussions with a social worker and child counsellor who had met with the child, the father’s psychiatrist, Dr H, and the mother’s counsellor.
Dr Z opined:-[16]
[16] At paragraphs 111 to 117 of Dr Z’s report dated 7 March 2011.
(a)The mother held a strong belief that the child was at risk of abuse in the unsupervised care of the father.
(b)The child had formed a belief that he was unsafe in an unsupervised setting with the father. This was in the context that the child evidently loved the father and wished to maintain contact with him.
(c)The child had expressed a view that he had no wish to extend the time.
(d)If it was extended, initially at least, it would be associated with increased anxiety of the child. This would be exacerbated by the mother’s anxious response.
(e)The father was unable to respect the mother’s experience and established social norms regarding teacher/student boundaries.
(f)The father had experienced symptoms of a Major Depressive Disorder and suicidal ideation precipitated by his experience of separation and loss, in the context of a Personality Disorder, with Narcissistic and Dependent traits.
(g)The father had been unable to acknowledge the inappropriateness of his behaviour (as a teacher) and that he demonstrated an inability to respect the views of others when this was inconsistent with his own perception.
(h)That supervised time continues leading to unsupervised time in the medium term future.
(i)That the father not be responsible for bathing the child.
(j)That the father continues ongoing engagement with his treating psychiatrist.
(k)The child should remain in the primary care of the mother.
I generally accept the underlying facts observed by Dr Z although I have determined, after consideration as set out in these reasons, the move towards more time and unsupervised time should be undertaken in a more cautious way than that proposed by him. I have seen and heard the father’s evidence and I am concerned about the father’s abhorrent behaviour and his [the father’s] failure to have insight into it.
In terms of the mother, Dr Z said that she had a strongly held belief that the child was at risk at the hands of the father. He said that this had developed in the context of a personal experience and psychological vulnerability together with a lack of trust emanating from the complaint preceding the conduct of the DET investigation and the child’s alleged disclosure of abuse.
Dr Z observed that the father had displayed an inability to respect the mother’s experience and establish social norms regarding the importance of teacher/student boundaries and that the father, in spite of denials, had acted in an inappropriate manner with female adolescent students under his care as a teacher.
The father had formed a view or a belief that the mother’s actions (in separating from him and presumably accepting the disclosure by the child) as being ill-informed, misguided and with the correct information she would act otherwise.
Dr Z concluded that this demonstrated the father’s lack of respect for the mother’s experience and that the father was so pre-occupied with such issues at the time of assessment he had difficulty in thinking about the child.
Dr Z opined that the father had experienced symptoms of a major depressive disorder and suicidal ideation precipitated by the experience of separation and loss, in the context of a Personality Disorder, with Narcissistic and dependent traits. He went on to say:-[17]
116.… [The father’s] prominent depressive symptoms had now resolved. [The father’s] chronic feelings in inadequacy have evolved in response to reported adverse like events dating back to his childhood. [The father’s] perceived vulnerability had driven his pursuit of special relationships with adolescent female students. [The father’s] refusal to take responsibility for his inappropriate behaviour was of particular concern. I would support his ongoing engagement in therapeutic intervention with [the father’s] treating psychiatrist.
[17] At paragraph 116 of Dr Z’s report dated 7 March 2011.
Dr Z said in his report:-[18]
117.Given [the child’s] primary attachment to his mother it would be disruptive and inappropriate to consider removal from her care as proposed by the father. He [the child] expressed a clear wish to remain in her care, with limited supervised contact with the father which he evidently enjoyed. Maintenance of such contact will be in [the child’s] best interests.
[18] Ibid at paragraph 117.
In cross-examination Dr Z observed that there was a good relationship between the child and the father, and that the father responded in an appropriate way with the child. I accept that evidence.
Dr Z concluded that the child believes he was abused. At some levels Dr Z was concerned that the mother repeated and reinforced those views and that the mother needs to address her levels of comfort so that the levels of comfort for the child can be promoted.
Dr Z recommended:-[19]
… I would support the maintenance of supervised contact at present. I would recommend this be extended beyond professional supervision for longer periods of day only contact. The father should not be responsible for bathing [the child] given these allegations and should make an undertaking not to do so.
[19] Ibid at paragraph 115.
Dr Z said:-[20]
[The father] acknowledged having a previous relationship with an ex student. She had been thirteen years his junior. He taught her between year 9 and 11 and had established an intimate relationship with her after she completed her schooling. They had a four year de facto relationship, prior to her leaving. Despite my concerns he [the father] had difficulty in understanding there would be any ethical problems associated with this or his subsequent special relationships with students and did not appear to understand the concept of power imbalance.
[20] Ibid at paragraph 57.
This assertion was not challenged. The father continues to deny that he acted in an inappropriate manner with female adolescent students. This is despite the findings of DET, despite the fact that he is prevented from teaching and, in accordance with the words of Dr Z, the father ‘demonstrated an inability to respect the views of others and this was inconsistent of his own perception’.[21]
[21] Ibid at paragraph 14.
Dr Z gave evidence that the father had acted in a manner that was problematic in terms of his behaviour with the students and the view that all others were misguided and that his course was the right course. It could not be excluded that once the father was free of supervision on contact that he would continue with those sorts of views. That is that the father is inflexible in his outcome and is goal orientated irrespective of the distress it may cause to the child (such as the showering) and the impact on others such as the mother’s complaints of the father. It is clear that the father is from time to time unmindful of the experience of others.
Dr Z said that the father had not been frank with his psychiatrist. I accept that evidence and accept that it made it difficult for the psychiatrist to properly treat the father in the absence of the father making full and frank disclosure to him.
It is significant that the father was not open with Dr Z in terms of the initial statement about his loss of employment with DET.
Dr Z concluded that the father’s ability to resolve issues in a direct respectful way was limited and that he failed to take responsibility for his behaviour. This in many ways is part of the traits of narcissistic personality to which Dr Z referred.
I accept the evidence of Dr Z, although the outcome is a matter for me having regard to that and other evidence.
Ms M
Ms M is the child’s maternal grandmother. She is employed in the education industry who lives in the lower Blue Mountains, with the child’s maternal grandfather, Mr M. She provided evidence in an affidavit filed 2 September 2011.
After separation the mother moved to her parent’s home and stayed there for some time until her parents obtained another home in which the mother now lives with the child.
I accept that Ms M has a close relationship with the child.
There was an issue raised during the course of the hearing about a ‘trumpet incident’. A few weeks before the child’s interview with the single expert he had been being taught the trumpet by the maternal grandmother. There had been some interaction which involved a wobbly tooth. The child clearly had a different perception of that event than the maternal grandmother. I accept the evidence of the maternal grandmother.
This was in some levels used as an analogy to the events asserted by the mother on 5 June 2009. I have treated these issues separately. There is no issue, on the evidence before me, in relation to the appropriateness of the maternal grandmother’s care of the child.
Sensibly, the affidavits of the various witnesses have not been shared and the maternal grandmother had not read the mother’s affidavit, the father’s affidavit or Dr Z’s report except in relation to raising the issue about the trumpet.
The maternal grandmother confirmed the child had complained about a sore bottom in the first half of 2009 and assisted the mother in relation to the child’s disclosure in June 2009.
She also heard the child’s disclosure in relation to the issue of the child possibly showering at the father’s home on 4 July 2009.
The maternal grandmother is clearly aligned to the mother but she was a careful and thoughtful witness in giving evidence. I accept her evidence.
Mr M
Mr M is the child’s maternal grandfather. He is professionally employed and provided evidence in accordance with his affidavit filed 2 September 2011. He was careful, straight forward and impressed as a witness. I accept his evidence as being accurate, from his subjective point of view.
He has a close relationship with the child which is, in part, evidenced by him providing supervision for the contact between the child and the father on Father’s Day 2010. This type of assistance is in many ways supportive of the mother and the child’s relationship with the father.
Ms A
Ms A runs a professional supervision service and relied on her affidavit filed 6 December 2011. She gave some evidence being a different version of events to that of the mother. I generally accept her evidence in terms of the accuracy of her recollections.
Ms B
Ms B is a paid supervisor and provided evidence in accordance with her affidavit filed 6 December 2011. Ms B has spent significant time with the child.
In some areas she agrees with the mother and other areas she disagrees. Ms B was a witness who endeavoured to give evidence accurately and I accept her evidence was accurate although some of it was created from limited notes, and as such needs to be considered in that light.
Family Consultant
A family consultant prepared a Childrens and Parents Assessment, dated 27 September 2010. That report was tendered in evidence.[22] The report sets out a generally accurate background and identified a number of key issues, including whether the child was abused and the father’s refusal to accept that the relationship with the mother was over. The family consultant recommended supervised time commence (this in fact happened) and made some recommendations as to future directions, at that time.
[22] Exhibit ICL 2.
I have considered those submissions
The Independent Children’s Lawyer submitted and recommended:-
·The child enjoyed a good relationship with the father.
·After some months of supervised time with his father the child exhibited challenging behaviour during time spent with his father.
·In all the circumstances the allegations of the mother that the child had been sexually assaulted by the father were not established.
·Any time spent by the child with the father be supervised until the conclusion of Term 1, 2012.
·The child spend unsupervised time with the father in Term 2, 2012.
·The child commence to spend unsupervised overnight time with the father from Term 3 in 2012 each alternate weekend commencing on the first Friday from after school until 5.00 pm on the Sunday.
I accept the submissions as to the child’s relationship with the father, and the challenging behaviour exhibited by the child. I have not made and do not intend to make a finding of sexual assault, that is not the test.
The Independent Children’s Lawyer contended that a review prior to the commencement of unsupervised time between the child and the father is likely to expose the child to continuing pressure from either household. I have cautiously adopted that submission except insofar as the rate of change to unsupervised time.
As to a review prior to the commencement of unsupervised time between the child and the father, the Independent Children's Lawyer was content for her appointment to continue until such time and shall interview the child prior to that time for the purpose of ascertaining the child's views and the outcome of the child's supervised time with the father until that time.
In relation to the parenting orders special counsel for the mother, in his written submissions,[38] submitted that the mother generally supported the cautious approach which the Court proposes to take. In relation to the issue of the alleged sexual abuse special counsel for the mother submitted that “the Independent Children’s Lawyer may be justified in stating that in all the circumstances, the allegations of the mother that the child had been sexually assaulted by the father were not established”.[39] Whilst he agreed that it is notoriously difficult for a parent to satisfy a Court to the requisite standard of proof that sexual abuse has occurred, he submitted that none the less, the Court must also consider the issue of unacceptable risk. In this case he submitted that there was substantial evidence upon which such a finding could be made. I have considered the question of unacceptable risk and I have dealt with this elsewhere.
[38] Filed 16 March 2012.
[39] At page 1 of the mother’s written submissions filed 16 March 2012.
In his written submissions filed the 16 March 2012 counsel for the father said the father opposed any orders which would delay the child spending any unsupervised time with him, whether it be overnight or during the daytime only. Further, he submitted that the father also opposed any order being made that would delay the child spending any overnight time with him.
I am concerned about the move to overnight time in the light of the adverse findings I have made in respect of the father and I do not consider that it is viable to make block time at this stage.
I do not intend to order that the mother seek treatment as suggested by Dr Z, as that is a matter for her and although she has been the subject of some criticism, she has at all times been protective of the child.
In the circumstances there will need to be a final order restraining the father from bathing or dressing the child.
Reflecting on the findings I have made elsewhere in these reasons, it is not appropriate nor in the child’s interests for there to be an order that the child spend equal time or significant or substantial time with the father.
I am satisfied, having regard to geographic distance and the findings I have made elsewhere that it is appropriate for me to see the father’s time with the child initially supervised (but not the extent that has been the case for the last twelve months or so) but coming to unsupervised time.
The mother asserts that the father had struggled with his mental health after the commencement of the investigation. She sets out her views of what happened at paragraph 75 through to 79 of her affidavit.[40] I accept her evidence in that regard. The mother was endeavouring to assist the father in relation to his then problems and to share that with his family so that he could be protected. I do not accept that her conversations with his friend and family were other than in a constructive manner.
[40] Filed 5 September 2011.
Because of the determination against the father by DET there could be difficulties in him attending some school functions and some other activities involving the child. It is a matter for the father, if required, to disclose that material to relevant authorities. It should not be seen at any time what the father has with the child would overturn any requirement of a sports authority or a school to be aware of these circumstances. His interaction in these areas will need to be negotiated by the father.
Having regard to facts and factors set out I am satisfied that the orders I have put in place will be in the best interest of the child in these particular circumstances.
When these proceedings came back before me on 24 February 2012 I invited submissions in relation to a number of issues including whether I should make interim parenting orders (which I have done), whether I should order a family report (which I have done) and finally whether I should make an order under s 64D. Section 64D provides:-
(1) Subject to subsection (2), a parenting order in relation to a child is taken to include a provision that the order is subject to a parenting plan that is:
(a) entered into subsequently by the child’s parents; and
(b) agreed to, in writing, by any other person (other than the child) to whom the parenting order applies.
(2) The court may, in exceptional circumstances, include in a parenting order a provision that the parenting order, or a specified provision of the parenting order, may only be varied by a subsequent order of the court (and not by a parenting plan).
(3) Without limiting subsection (2), exceptional circumstances for the purposes of that subsection include the following:
(a) circumstances that give rise to a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(b) the existence of substantial evidence that one of the child’s parents is likely to seek to use coercion or duress to gain the agreement of the other parent to a parenting plan.
Special counsel submitted that the mother agrees that there are exceptional circumstances justifying the making of an order under s 64D(2).
This is a case where there are exceptional circumstances. The father's behaviour and approach, to which I have referred to above, is concerning and the mother has from time to time endeavoured to conciliate to meet the father's needs. I am satisfied that she has done so having regard to the best interests to the child and being protective of the child.
I am concerned that arrangements may be put in place which are not in the best interests of the child (at least in the time that the spend time orders are interim). There may be questions of continuation or cessation of supervision, there are clearly questions of overnight time.
The child believes he was sexually abused by the father and there is a need to protect the child from psychological harm in terms of moving too quickly to the times sought by the father.
There is some evidence, which is substantial, that the father may use the time the child spends with him as a way to coerce the mother to different parenting arrangements including reconciliation. That evidence is substantial having regard to the views of Dr Z.
As such in the interim I will make an order pursuant to s 64D of the Act.
In relation to the question of whether interim parenting orders should be made special counsel for the mother submitted that the mother had concerns about the case automatically being brought back to court given the considerable stress and expense of the proceedings to date and the impact which the continuation of the case may have on the child’s wellbeing. He submitted that if the Court were satisfied that the case of unacceptable risk was made out, then the Court ought to make final orders on the basis of the present evidence that would protect the child from risk. I have had regard to this submission but I do not accept that submission.
Counsel for the father submitted that “the submissions advanced on behalf of each of the parties on 20 December 2011 were for final orders to be made”.[41] He said no party to the proceedings sought an interim or quasi-interim order that resulted in a further Family Report and/or further litigation between the parties.
[41] At page 3 of the father’s written submissions filed 16 March 2012.
He submitted that the Court ought not to adopt an approach that saw the parties and the child, forced to remain in litigation. He said that in the event that the final orders made by the Court resulted in the parties having concerns for the child, then either or both parties could make a further application to the Court seeking a variation of the Orders and a further Family Report, if warranted. He submitted that “this should be at the election of the parties and not something imposed by way of a court order in circumstances where such an order is not sought by either of the parties or the Independent Children’s Lawyer”.[42] I have had regard to theses submissions but I do not accept that submission.
[42] Ibid at page 4.
PROPERTY
In addition to the parenting issues there is an issue as to the division of property. The parties had sold their matrimonial home post separation and the pool of property was limited.
The Relevant Legal Principles to be applied as to the property proceedings between the mother and the father included the identification of property, considering the contributions made by the respective parties to the marriage, the other factors and then determine what, in all the circumstances is just and equitable.
Therefore my task is that as set out in Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143. In that case at 78,386, the Full Court reiterated the preferred approach to the exercise of discretion in property matters, pursuant to s 79:-
39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. 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: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.
40. Section 79, unlike s.78, requires the Court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property. As a consequence of the first step in the preferred approach to the determination of the s.79 proceedings, each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto: Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Weir and Weir (1993) FLC 92-338 and Tate v Tate (2000) FLC 93-047.
In terms of property:-
Pool of assets
Proceeds of sale – former matrimonial home (agreed amount) $250,250
Father’s Ford Falcon motor vehicle $7,000
Mother’s Mazda motor vehicle $8,100
Add-backs – partial distribution of father on
Proceeds of sale $200,000
Partial distribution by the mother $200,000
Total non superannuation assets $665,350
Superannuation: agreed $462,496
For the purpose of these proceedings the parties have agreed that there are no relevant liabilities to take into account including any payments of legal fees or add-backs in relation to legal fees.
In relation to the superannuation the mother’s agreed superannuation comprised of three accumulation funds totalling $53,744 being the AXA account of $43,795, U Super of $7,727 and First State Super $2,222.
The father has superannuation entitlements arising from his membership of the State Authorities Superannuation Scheme. The defined benefit value is agreed at $363,088.54 and the accumulation part is agreed at $45,389.53. The father joined that fund in March 1988 and has been a member for almost 24 years. This must be seen in the context of the cohabitation of the parties commencing in August 2002.
The agreed total of superannuation was $274.39 different from the total of the agreed components.[43]
[43] Subject to the $274.39 difference from the total of the agreed superannuation components
I intend to make a splitting order. However, I will not make a splitting order for seven days after the delivery of reasons in the event that one or other of the parties wishes to make submissions in this respect.
The mother claims an add-back in relation to an amount paid to the father on his termination of employment with DET of $35,000 plus $9,000 tax refund, making a total of $44,000 out of a gross figure of $59,000. This is in issue.
After separation the father was paid a net sum of about $44,000 termination pay with his employment. This arose in respect of outstanding leave etc when he was required to resign. It was agreed that he received two sums, one being $9,000 being a tax refund and the other $35,000 being the net payment to him by DET (after tax).
The mother asserts that this ought to be added back as it was a post separation asset which was received by the father and as such ought to have been distributed.
That approach was opposed by counsel for the father, saying that the money was not wasted it was used in ordinary living expenses particularly having regard to the circumstances of the father, that is that he was unemployed.
That money was spent on legal fees and day to day living expenses at a time when the father had not been in receipt of income.
I do not intend to add-back that sum, however, I do intend to have regard to it in terms of contribution post separation in particular that the father had used these funds for his own purposes after separation.
Each of the parties received $200,000 and each have asked that it be taken into account with information on add-back sums. I intend to adopt their submissions in that regard. It is likely that significant amounts of those funds have been applied in legal fees in relation to the seven day hearing which was conducted before me in these proceedings.
Contribution
In terms of contribution it is not in issue that the father’s contributions were, at the commencement of the relationship, significantly greater than those of the mother. I am satisfied that the father’s initial contributions comprised of real property and personalty with a value of about $650,000 and superannuation with a value of about $63,000. At the same time the mother had property and personalty of about $242,000 and superannuation in the sum of about $10,500.
The father purchased a property at Suburb N in 1992 for $225,000 which was unencumbered when the parties met. The mother had purchased a property at western Sydney and then at Town G prior to the parties meeting.
In June 2003 the father sold the Suburb N property and received about $694,000. The parties used this to buy a home at Suburb FO.
The parties each contributed significantly during the course of the marriage. It was argued that the father’s contributions in the last twelve to eighteen months of the marriage were diminished because of his relationship with [female student M]. The evidence was that the father was not ‘emotionally available’ and the contributions by the mother over that period were greater than those of the father, albeit that he applied finances and some time to the family.
The father had occupation of the former matrimonial home from separation until it was sold. He also had the benefit of the termination payment to which I referred to earlier in these reasons.
The mother claims that the contributions should be treated as generally equal. The father submits that the division ought to be 65 per cent to him and 35 per cent to the mother.
Exercising the broad discretion that I have in such assessment I am satisfied that on a contribution basis the property ought to be divided at to 45 per cent to the mother and 55 per cent to the father.
OTHER FACTORS
The mother has had the primary financial support of the child since separation and that is likely to continue into the future. The father is not likely to earn a significant income, at least as a teacher of students in the primary and secondary system, into the future.
The father submits that in all the circumstances there should be no adjustment in respect of the other factors. The mother submits there ought to be an adjustment so that the property is divided as to 60 per cent to her and 40 per cent to the father and increases of 10 per cent (an overall difference of 20 per cent).
The other factors are somewhat troubling. The father is aged 46. The mother is aged 36. Each of the parties has had some mental health issues in the past but none at the present time.
The mother is trained for employment in the education industry and is able to earn an income (presently with her father’s business and some part time employment). The father is trained as a teacher but is unable to obtain employment as a teacher in the foreseeable future. He is presently unemployed and has endeavoured to obtain employment.
Having regard to the various submissions made by the parties and the circumstances in which they find themselves, I am not satisfied, in all the circumstances that there ought to be any adjustment in respect of the other factors.
JUST AND EQUITABLE
The effect of a 45/55 split for the mother insofar as non superannuation property is concerned would be:-
Car $ 8,100
Partial distribution $200,000
Share of proceeds of sale $ 91,308
Total $299,408
The effect of a 45/55 split for the father insofar as non superannuation property is concerned would be:-
Car $ 7,000
Partial distribution $200,000
Share of proceeds of sale $158,942
Total$365,942
As to the superannuation the total value is $462,496. Forty five percent is $208,123. The mother has funds totalling $53,744. Therefore there will need to be a split of $154,379 to the wife.
Upon consideration and reflection, I am satisfied that this is just and equitable in all of the circumstances.
I certify that the preceding three hundred and forty two (342) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 22 March 2012
Associate:
Date: 22 March 2012
Key Legal Topics
Areas of Law
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Civil Procedure
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Equity & Trusts
Legal Concepts
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Abuse of Process
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Estoppel
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Res Judicata
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Standing
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