BATKIN & BATKIN
[2011] FamCA 913
•18 November 2011
FAMILY COURT OF AUSTRALIA
| BATKIN & BATKIN | [2011] FamCA 913 |
| FAMILY LAW – CHILDREN – where the father has not spent time with the three children for four years – where there are allegations of domestic violence by both the father and the mother – whether it is in the best interests of the children to have contact with their father – where minutes of consent provided at the conclusion of the trial – where the minutes proposed contact between the father and the children in a therapeutic context with a view to re-establishing the relationship – where the proposed orders are in the best interests of the children – where orders made by consent. FAMILY LAW – PROPERTY – where initial real property contribution by the wife – where that property increased in value during the relationship and now forms the majority of the pool – where a “one pool” approach was adopted (Coghlan & Coghlan (2005) FLC 93-220) – where the parties’ property and superannuation is included in that pool – where an inheritance received by the husband post-separation is treated as a separate pool (Bonnici & Bonnici (1992) FLC 92-272) – where the wife made greater contributions post-separation – where the wife is primarily responsible for the parties’ three children – where the property should be distributed such that the wife receives 75 per cent of the pool. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Bonnici & Bonnici (1992) FLC 92-272 Hickey & Hickey (2003) FLC 93-143 Coghlan & Coghlan (2005) FLC 93-220 |
| APPLICANT: | Ms Batkin |
| RESPONDENT: | Mr Batkin |
| INDEPENDENT CHILDREN’S LAWYER: | Ms B. Fox |
| FILE NUMBER: | LEC | 196 | of | 2008 |
| DATE DELIVERED: | 18 November 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 16 & 17 November 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gordon |
| SOLICITOR FOR THE APPLICANT: | Crane Paskins Law |
| SOLICITOR FOR THE RESPONDENT: | Mr Boys of MPB Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Hodges |
| INDEPENDENT CHILDREN’S LAWYER | Barbara Fox Solicitor |
Orders
IT IS ORDERED BY CONSENT AND UNTIL FURTHER ORDER THAT
Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.
IT IS ORDERED THAT
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS DIRECTED THAT
The Minutes of Consent remain upon the Court file.
IT IS FURTHER ORDERED THAT:
Each of the parties be declared to hold all right, title and interest, to the exclusion of any right, title, interest or claim by the other, in each and all property of whatever type or description currently in their respective possession which such property shall be deemed to include, but not necessarily be limited to:
(a)In the case of the husband: plant and farming equipment agreed to be valued at $11,875; the motor vehicle referred to in these proceedings as “the yellow car” agreed to be valued at $4,000; the Toyota motor vehicle agreed to be valued at $4,800; and the boat agreed to be valued at $4,000; and
(b)In the case of the wife: a Toyota motor vehicle agreed to be valued at $7,500; cattle agreed to be valued at $12,500; and plant and farm equipment agreed to be valued at $21,000.
Each of the parties be declared to hold all right, title and interest, to the exclusion of any right, title, interest or claim by the other, in their respective superannuation interests.
The wife shall raise and pay to the husband the sum of $150,000 within 42 days of the date of these Orders.
Contemporaneously with the payment of the said sum of $150,000:
(a)the husband shall transfer to the wife all of his right, title and interest in and to the real property situated at E Street, C Town;
(b)the husband shall transfer to the wife all of his right, title and interest in and to the parcels of real property together known as F Street, C Town; and
(c)the wife shall release the mortgage to the Commonwealth Bank so as to discharge the husband from any liability in respect of same.
By not later than 30 days from the date of these Orders each of the parties shall do all such things, sign all such documents and pay all such reasonable fees as might be required to effect each and all of the transfers, establish title or ownership, or discharge liability, as the case may be, to, or in respect of, each and all of the property referred to in the preceding paragraphs of these Orders.
Contemporaneously with, or before, the payment of the sum of $150,000 by the wife to the husband, each of the husband and wife shall exchange all such documents as might be necessary so as to establish ownership and/or title to the property to which each is entitled pursuant to these Orders and so as to have the wife indemnify the husband in respect of any liability in respect of the mortgage to the Commonwealth Bank of Australia over the real property known as F Street.
IT IS FURTHER ORDERED THAT:
All material produced pursuant to subpoenae issued for the production of documents be returned to their respective providers after the time for appeal has lapsed.
MINUTES OF CONSENT
IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:
That the children B (DOB …2001), N (DOB …2002) and J (DOB …2004) live with the Mother.
That the Mother have sole parental responsibility for the children’s long term welfare care and development.
That the children spend time with and communicate with the Father at all times as agreed between the parties but failing agreement at least;
a. That the parties will engage with Ms P, Therapist, or if she is unavailable such other Therapist as recommended by Mr D with a view to re-establishing a relationship between the children and their Father and that each party will pay one half of all costs associated with the therapy
b. That within seven days of this order the Father is to write a letter to the children addressed to the Independent Children’s Lawyer with such letter to be sent to the Independent Children’s Lawyer for on forwarding to the Therapist
c. The Independent Children’s Lawyer will thereafter contact Ms P with a view to her reading the letter to the children and assisting them in a response to the Father and send such letter to the Father
d. That upon receipt by the Father of the children’s letter referred to in the preceding Order, the Father shall write a second letter to the children addressed to the Independent Children’s Lawyer
e. The provisions of Orders 3 (c) shall apply
f. Ms P will thereafter meet with the children and the Father and Mother (if considered by the Therapist as necessary) for three one monthly sessions to facilitate the children spending time with their Father.
g. The Mother and the Father will at all times follow any direction given to them by the therapist in relation to this process.
h. That thereafter for a period of six (6) months the children spend supervised time with the Father on a fortnightly basis at the Town C Contact Centre or such other Contact Centre as agreed to by the parties in writing or as nominated by the Independent Children’s Lawyer.
i. That the parties forthwith take all steps and sign all documents necessary as directed by the Contact Centre in order to facilitate the children spending time with the Father at such Contact Centre.
j. That the Mother and Father share equally the cost of the supervised contact at the Contact Centre.
k. That the Independent Children’s Lawyer be permitted to discuss the progress of Ms P’s involvement with the children with her and to obtain a reportable Report.
That the Father keep the Mother appraised of his current contact details such as:
a. Mobile telephone number
b. Land line telephone number
c. Residential address
That the Mother forward to the Father as soon as possible after receiving same the following:
a. The Children’s school progress reports
b. Notification of any school awards or awards relating to extra curricular activities
c. School photographs
That the Mother and the Father attend and complete a Parenting Orders Program within six (6) months from the date of these Orders, conducted by G Family Support (Telephone…) and thereafter provide a copy of their Certificate of Attainment to the other party and the Independent Children’s Lawyer
That the Mother advise the Father immediately should any of the children require emergency medical treatment of a life threatening nature
That the Father not denigrate the Mother in any telephone conversation with the children nor in any written communication with the children
That the Mother not denigrate the Father to or in the presence of the children
That neither party discuss these court proceedings to or in the presence of the children.
That the Order for the appointment of the Independent Children’s Lawyer not be discharged until 12 months from the date of Order
That the Independent Children’s Lawyer have liberty to apply on short notice to the parties.
That the matter be relisted by the Independent Children’s Lawyer before Murphy J if possible or such other Judge if he is unavailable at the conclusion of the supervised time referred to in Order 3(h) herein.
IT IS NOTED that publication of this judgment under the pseudonym Batkin & Batkin 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 BRISBANE |
FILE NUMBER: LEC 196 of 2008
| MS BATKIN |
Applicant
And
| MR BATKIN |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
When the parenting component of these proceedings started the father sought, somewhat remarkably it might be thought, an order that the mother vacate for six months the matrimonial home that had been the home for she and the children for all of the children’s lives. He proposed that during that six months he would move into the home and that the mother would be excluded from the children’s lives. He further proposed that, thereafter, he would vacate the home, and the mother would return to the home, the children would live with her and he would see the children on a regular fortnightly basis.
The mother sought in her application at the commencement of the proceedings an order for sole parental responsibility and an order that the children live with her, and that the father be permitted to communicate by cards and letters. That is, she sought orders that had the effect of there being no face-to-face time between the children and their father and no communication other than by cards and letters.
The children, the subject of these proceedings, are B, born in 2001, N, born in 2002, and J, born in 2004. It is common ground that the children have not seen their father, nor effectively communicated with him, for a period of about four years.
At the conclusion of the trial the Independent Children’s Lawyer handed up minutes of proposed order to the Court. It was contended by counsel for the Independent Children’s Lawyer that interim orders should be made. The terms of the orders proposed will be referred to in more detail in a moment.
Subsequent to the handing up of those orders by the Independent Children’s Lawyer it emerged through the successive submissions of counsel for the mother and the solicitor for the father that each of the parties joined with the Independent Children’s Lawyer in seeking orders in those terms and, in particular, having the Court make interim orders.
Thus, although the minutes are not so expressed and although they were not presented as consent orders, that was the effect of the submissions made.
A number of issues nevertheless emerge.
First, allegations are made by the mother that the father has perpetrated violence upon her.
It might be pointed out, the father also alleges that the mother has been violent to him. The mother alleges that the father has been violent to the children saying in oral evidence that he had “punched and kicked them regularly” before later changing that evidence to the effect that such behaviour may not have been “regular”.
It is axiomatic that this Court takes allegations of violence and, all the more so, allegations of violence against children, very seriously indeed. It is neither sufficient nor appropriate for the court to, in effect, “rubber stamp” orders said to be agreed by all the parties in circumstances where allegations of violence and, in particular, allegations of violence towards children, are made.
So much indeed is made plain by the Family Law Rules 2004 and, in particular, rule 10.15A. Moreover, so much is made clear by the Court’s independent obligation to make orders only if they are in the children’s best interests.
The primary place of violence in the statutory considerations mandated as the manner by which the Court arrives at findings of best interests plainly place assertions of violence and abuse at the very centre of the matters that the Court must consider in arriving at orders that best meet the best interests of these particular children in their particular circumstances.
As I have mentioned, the father in these proceedings last saw his three children over four years ago in October 2007. The mother says the children are frightened of their father, do not want to see him and, in effect, do not want to communicate with him in any way. This, she says, is a result of two things.
First is his violent behaviour towards her and them. The second, she says, is his disinterest in them manifest, she says, by his failure to make any meaningful attempts to see them in the immediate post-separation period. I should say that it is not immediately clear to me how those two separate assertions sit comfortably together.
The allegations of family violence to which I have alluded have a factual context which includes the following:
a)The children have not seen or effectively heard from their father for four years. The mother has a visceral dislike of the father. She sees there being “no value” in a relationship between the children and their father;
b)The mother said in evidence that even if ordered she could not guarantee that she would facilitate even supervised time because, she says, the children would be overtly adamant in their refusal to go;
c)The mother says that although she “doesn’t go out of her way” to say negative things about the father “she can’t discount the possibility” that the children have “overheard phone calls, conversations” or the like;
d)Allegations of violence and reports to police of violence have come from both parties;
e)There have been an extraordinary number of complaints to the police by the parties numbering some 18 or so over an approximate 15-month period (Exhibit ICL2). Those complaints have, as I have said, included complaints by both parties in respect of violence of the other. Overwhelmingly, however, those complaints have been about what might be described as minor property issues.
The allegations of violence also have a further legal context. When the extraordinarily serious allegation that a parent has sexually abused a child is made the central question for determination by the Court is not whether abuse or specific incidents of abuse have occurred, but rather whether the parenting orders sought (or, indeed, any parenting orders) present an “unacceptable risk to the children” (see M v M (1988) 166 CLR 69 and the numerous decisions of the Full Court consequent upon it.) So, too, in my view, when the serious allegation is made that family violence has occurred and, indeed, has dominated intra-familial relationships the issue in parenting proceedings is similarly what parenting orders might best promote the best interests of the child and whether the “family violence” (used in its broadest sense) presents an unacceptable risk to the children.
That is all the more so where there has been a complete absence of one parent from the children’s lives for a lengthy period, including during what might be seen as important developmental stages of the children’s lives. The children here were nine, eight and six approximately when they last saw their father, and they are now each four years older. In that respect it is to be noted that B is now about 13, and his younger brother is now about 12.
Those two factors and the broader context to which I have just referred raise a number of other considerations as being highly important.
They include, for example, the nature of the relationship between the children and their father, the views of the children, the effect of any changes that any orders made by the Court might facilitate and the impact they may have on the children, and the attitude to the responsibilities of parenthood exhibited by each of the parties to the children. All of those matters are mandated as matters which must be considered by the Court in ultimately arriving at a decision about best interests.
Within the matrix of factors earlier referred to, account must also be taken of the fact that, in seeking to make central factual findings about alleged violence, there are a plethora of allegations and counter-allegations. There are accounts to the police that differ from accounts given on affidavit; allegations of violence by each party are mixed with allegations involving property; and, fundamentally, each party’s accounts are, as I find, informed by feelings of animosity toward the other that can be described as visceral and about which the word hatred, I think, is not too strong a word.
I consider that each of the father and the mother are highly immature individuals who conflate their feelings of animosity toward the other with the reality of the other. They have each, in my view, allowed perception to become reality.
A reporting psychologist, Mr D, says in the first of two reports prepared by him as follows:
18. What the writer has been able to discern through this assessment is that the adult issues have substantially overridden the needs of the children. Whether they be [the father’s] claims that he feared [the mother’s] capacity to make life difficult for him by making assertions and allegations about him; [the mother’s] claims that [the father] represents a threat to the stability of the family; the concerns the parties have about what constitutes a fair and reasonable outcome regarding the property; and all the associated feelings of suspicion and distrust; the outcome has been that the children have not had a relationship with their father for several years or “one-third of their lives” as assessed by [the father].
21. The writer’s concern is that as interesting and as emotionally engaging as all these issues are to become overly caught up in the wise and the wherefores of the past distracts from the wheretos of the future. This should include some thought and effort to repairing damaged relationships for the children’s sake.
I respectfully agree with each and all of the sentiments expressed in those paragraphs.
In particular, based on my reading of the evidence and the observations of each of the parties in the witness box, I completely agree that “the adult issues have substantially overridden the needs of the children”.
I also completely agree that the “where tos” are much more important than the whys and wherefores embraced by the plethora of allegations and counter-allegations by each of the parties. In that respect, it is interesting and, in my view important, to note that the Act now specifically mandates the means by which parenting proceedings are to take place. Included among the matters set out in division 12A of the Act, section 69ZN imposes upon the Court a number of principles to which the Court “must give effect” in the conduct of parenting proceedings.
Significantly, in the context of these proceedings, made acute by what Mr D has to say in paragraph 21 to which reference has just been made, is that the Act requires the Court to “consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings” (section 69ZN(3)).
The section goes on to say – and again this is important in the current context – that the Court is obliged to “actively direct, control and manage the conduct of the proceedings (section 69ZN(4)).
Finally, I make mention of a further mandatory obligation on the Court which is that “the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible”.
Plainly enough, it seems to me that the latter requirement must be seen in the context of ensuring that the parties receive natural justice and that findings about serious matters are not made without there being a proper evidentiary foundation for them, (notwithstanding the provisions of section 69ZT of the Act).
It is against that background that I excluded from the proceedings three affidavits filed by the mother and one affidavit filed by the father. Each of those affidavits, as it seems to me, referred to specific incidents of family violence and did not assist me in arriving at ultimate findings about the appropriate place that allegations or counter-allegations of family violence had within these proceedings. Moreover, reference to each of those affidavits will reveal that each contained matters that might otherwise be inadmissible, but for section 69ZT and might, in any event, significantly affect the weight that might be attached to any such evidence.
Here, and crucially, I accept that the parties’ relationship was marked by conflict, aggression and emotional abuse. I accept that the parties’ relationship was marked by family violence. Indeed, each of the parties appear to admit as much.
I find that each party engaged in emotional abuse of the other and in family violence. Again, each party effectively admits as much.
I find that that emotional abuse and that family violence occurred in front of the children.
Having made those findings, I observe that the father is a relatively large and, I consider, imposing man. Indeed, he accepted this description in the witness box. Whilst it might be true to say (as the husband effectively alleges) that the mother “gave as good as she got”, I consider that such an approach takes no account of what I consider to be the plainly domineering presence presented by the father.
Whilst overt behaviour by the mother may be described as “meeting like with like”, I accept that, as she says, she found the episodes frightening. I also accept that the children would find them frightening. I find it quite extraordinary that the father was not prepared to accept that proposition when I put it to him in the witness box.
I have no difficulty in finding (the father’s rejection of the proposition notwithstanding) that the children might also have perceived the father as frightening (as distinct from a perception of the mother) irrespective of who may or may not have been “at fault” during those emotional interchanges or who may or may not have instigated those interchanges or contributed to them more or less than the other.
I also accept, as the father alleges, that the mother was at times the instigator of those emotionally charged events. But I cannot see how that is any more or less relevant than him being the instigator of those events. Moreover, neither that fact, or any fact like it, affects my finding that the incidents, however they started and whoever might be seen to be more “to blame” than the other, would have been perceived as frightening by the children, would have been harmful to the children. It seems to me wholly unsurprising that the children might say to a counsellor that, firstly they experienced fear and, secondly, that they perceived their father as frightening.
I also find, however, that the mother has exaggerated her evidence and, crucially, in respect of violence perpetrated by the father upon the children.
The mother alleged in oral evidence that central to the children’s asserted fear of the father is that he has “punched and kicked them.” I pause to observe that I cannot see how any mother witnessing a child being “punched and kicked” by a large and imposing man would have (and indeed should have) regarded any such incident as one of profound seriousness. Initially the mother said that the father had punched and kicked the children “regularly.” Later, the mother sought to withdraw the latter aspect of the allegation.
Notwithstanding that this mother, or indeed any mother would, as I find, perceive that any such behaviour as being of the most serious kind, other evidence suggests that it was not so treated.
In my view, the evidence, as a whole, points to the mother being a loving and caring mother toward the children. I cannot conceive that had she seen the father perpetrate “punching and kicking” to the children that it would not have formed the subject of a complaint. It is frequently said, and I accept, that reasons of fear and the like often stand in the way of people, in particular women, reporting allegations of violence to appropriate authorities. But that is not what occurred here.
Indeed, the mother was the complainant in a criminal charge as against the father (of which he was convicted, but later acquitted, I gather, on appeal). It is abundantly plain that the mother had no hesitations whatsoever in going to the police in respect of a miscellaneous collection of complaints including complaints which I regard as being of a relatively minor nature relating to property. Yet, in that context, the evidence reveals no allegation ever being made at any time by the mother (to the police or anyone else in authority) that violence had been perpetrated by the father on the children.
No mention whatsoever of any such incident or incidents occurs in the mother’s affidavit. The mother said in the witness box that it may have been left out of the final version, but was in a draft. No draft affidavit was put to the mother in re-examination nor was that answer addressed in any questions in re-examination. It should be recorded that the mother spends (appropriately) a number of pages and paragraphs within her affidavit dealing with the issue of violence towards her. One of those paragraphs refers to alleged violence perpetrated by the father on a dog. Yet, in the midst of all of that evidence, no mention whatsoever is made of any violence of the type or description to which I have just made reference perpetrated by the father upon the children.
Reference to exhibit ICL2 will reveal the nature and extent of not only the number of complaints made by each of the parties including the mother to the police – she was no stranger to them – but also the extent of the detail provided by each of the parties upon those complaints. Again, exhibit ICL2 reveals no statement whatsoever by the mother that suggests violence toward the children by the father of the type to which she has referred. Importantly, none of the children have ever said to either of the two report writers – each of whom are psychologists and each of whom have provided reports to the Court – anything to suggest that the father has perpetrated violence upon them let alone having “punched and kicked” them as the mother alleges.
I think it highly likely that the mother’s specific allegation that the father has “punched and kicked the children” is false. In any event, I consider it highly likely that the mother has exaggerated direct behaviour by the father toward the children.
In making those findings, I do not in any way, shape or form downplay what I regard as the very significant seriousness of family violence perpetrated by alleged adults upon each other in the presence of the children. I have absolutely no doubt that such behaviour impacts, and impacts significantly, upon children. It is abhorrent behaviour and should not be engaged in by either parent.
So much also applies with respect to emotional abuse. Children are undoubtedly harmed by having their primary loved objects yell abuse at each other. Whether one parent likes it or not, children love, desire and need their parents in their lives.
I have found that the relationship between the parties was marked by family violence; and that each of the parties have engaged in family violence. I also find that it is likely that the father has given a false account of violence perpetrated by him upon the mother.
An example is the incident which occurred in October 2010 where the mother says that the father elbowed her and where he says that his actions were solely confined to restraining the mother. I do not accept his evidence.
I think it is highly likely that the children have witnessed violent incidents between the mother and the father. I think it highly likely that, whatever her overt behaviours, the mother has felt intimidated and frightened by the father. I consider it likely that he has behaved from time to time in a way that both the mother and the children would regard as being intimidating and frightening.
I do not accept the mother’s evidence that the father has perpetrated violence of the “punching and kicking” to which she referred in her evidence. I consider, however, that the general tenor of the parties’ interrelationship during the course of their cohabitation is likely to have had an impact upon the children, and I find it unsurprising that the children would talk about fear, at least in broad terms, when speaking about their father to the report writers.
I also find very troubling the evidence in respect of the perception of the father in the mother’s household. This is the man who this woman chose to live with and have three children with. That she now considers that a mistake – and a big mistake – is not a reason for denying to these children the only father that they will ever have. I found the mother’s evidence that she “hasn’t gone out of her way” to inculcate negative attitudes in the children to be troubling; it is troubling in my view more for what it doesn’t say than for what it says.
I consider that the mother’s demeanour, and indeed, the words used in her evidence comprise barely concealed hatred for the father. She has told report writers, and indeed, the Court that she considers there is “no value” in a relationship between the children and the only father that they will ever have.
She has said to report writers, and indeed, to the Court words to the effect of that she thinks that the father has nothing to offer these children. She may think she is right, but one of the things that is central to the proper development of children is that they have the right to, at some point, make that decision for themselves. The essence is protection of them whilst they do so.
The barely concealed hatred – and I use the word advisedly – of the mother toward the father was obvious, in my view, for all to see in the courtroom, but is also plain from her evidence. I find it inconceivable that, consciously or unconsciously, those feelings would not manifest to the children. I find it unlikely that the mother has not, from time to time, made those feelings abundantly clear to the children. I find that, whether she has intended it or not, her feelings have had an impact upon the attitude of the children toward their father.
Perhaps as the best example emerging from the evidence – although I emphasise, it is but one example among many – the mother said in the witness box that she considered that the only reason that the father was pressing for parenting orders in these proceedings was related to the property component of them. She said, in answer to a question whether she considered that the father was “only in it for the money”, “Yes.”
There was, she said, nothing whatsoever good to say about the father. She has, in my view, utter contempt for him, and I repeat that I find it inconceivable that that attitude – that barely concealed hatred of him – would not have filtered through to the children whether she intended it to or not. That this should occur, it needs to be said loudly, is harmful to children.
But, amongst all of the issues to which I have just referred, the voices of the children emerge. The voices of children (as distinct from their wishes determinative of proceedings) need to be heard in proceedings about them. The appropriate manner for their voices to be heard is through the avenue of expert evidence that is designed, at least in theory, to allow their voices to be heard untrammelled by influences that might otherwise exist in respect of them.
The contrast between what the children said initially to each of Mr S and Mr D and what they subsequently said to him, and what each of the experts perceived as being the children’s underlying feelings is important.
As an example, paragraph 19 of the report of Mr S, who saw the children in early 2010, says this:
The children knew they were there to see the consultant to talk about seeing their father, and when asked what they thought, all very quickly voiced their opinion that, “We don’t like our father,” and that, “He is a bad person.” When asked what it was that he did that made him bad, the boys all jointly explained the same things: “He took our boat”, “he stole stuff”, “he took other things from Mum”, and “he broke our cars by putting stuff in the engines”. When asked if their father had done anything mean to them, all three boys did not give any examples of times their father had acted inappropriately with them, but all instead said that “he has been mean to Mum”. When asked how, they again said, “He takes her stuff.” The boys all said that they didn’t want to see their father again, and they didn’t care if he didn’t call or if they didn’t get presents from him for their birthdays or Christmas.
Later, as might be expected, Mr S saw each of the children separately. He says that when he interviewed B separately, B:
…showed more of an open mind about seeing his father, and scores he gave out of 10 for how interested he was lifted from zero to three out of 10. [B] appeared to have more memory of the time that his parents were together, and talked briefly about them “fighting and hitting each other when they were together”. [B] said that he knew that his father had been the one who damaged their cars, as, “Who else would do it? It had to be him.” [B] was particularly upset that his father had taken their boat, thinking that, “The only reason must be he doesn’t want us to have fun or to have a boat.” He said that he knew his father had “stolen a generator” amongst other things, and that, “This is what makes me know he is bad and that I don’t like him.”
N was also seen independently. Mr S reports:
[N] was less able to articulate his memories or ideas for the future regarding his father. When asked in a variety of ways, he did not have any clear memories or negative experiences with his father, and he also appeared very reluctant to discuss any good experiences. He seemed to rely upon a repeated response that, “I don’t really want to see my father,” but with very little explanation of his reasons why. [N] also seemed quite devoid of emotion around the topic and quiet nonplussed at the attempts to ask more about what he remembered or thought about his father…
J, who, of course, was quite tiny when seen by Mr S, is reported as follows:
[J] talked about his father “doing some fun stuff, like fishing and riding horses”, and that “he is big and really tall”. At another stage, he said he was “nice”, but he also relied heavily upon a repeated statement that he did not want to see his father. He was easily distracted by games, and it was difficult to have him stay on topics. [J] also did not have any examples of times that he could remember of his father being mean or doing anything he didn’t like, despite being asked in a variety of ways …
In that report, Mr S flagged concerns arising from what the children had had to say to him. He was prepared to say at that time that he would “strongly recommend that the children begin to see their father in a contact centre, and that the matter be reviewed after a suitable number of visits”. This recommendation will be seen to be important in light of the orders sought by the Independent Children’s Lawyer to which I will shortly refer.
One of the concerns flagged by Mr S was that there appeared to be:
…a very strong family alliance in [the rejection of the father], and it is not possible to predict whether this will break down with positive experiences with their father, or if it will remain and even lead the boys to further refusal at the contact centre…
Mr D, in his first report, some months after Mr S’s report had been prepared, said that:
(8) The dominant narrative in [the mother’s] household regarding the children’s father is that he is “mean”, “scary” and “does bad things”. These are terms used by the children. [The mother] and [her current partner] had more strident language for [the father], which essentially casts him in the role of villain with [the mother] occupying dual roles of victim and protector…
Mr D goes on to say that “all three boys stated they did not want to see their father”. Interestingly, however, B said that he “…did not know why he did not want to see his father; ‘I just don’t want to.’” When Mr D asked him why he thought he was seeing him, B said that it was:
…about his father being “a bad dad”. He then went straight into how his father removed the wheel nuts off one car, stole their boat and horse float, and his father hit his mother, giving her two black eyes.
Mr D goes on to say:
[J], who is only six, told the report writer he was seeing the writer “because we don’t want to see Dad because he punched Mum in the eye”, and went on to tell me that he remembered this and said he was about three at the time.
I interpose that it is interesting that J apparently had no such memory when seen by Mr S some months earlier. N told Mr D:
…he did not know why he was seeing the writer. He said he does not know how he feels about his parents not being together, but also commented that it is not like his father, and described him as “mean”, because he was mean to his mother.
In a passage of Mr D’s report that I consider has profound resonance in this case, and indeed, I might say, in so many parenting cases in this Court, he says this:
The parties can become absorbed in the need to convince the listener or the reader of the integrity of their personal recollection of events, with this need being stronger the more emotional content the incidents may have. Under these circumstances, the issue is likely to degenerate into who or what is right at the expense of being effective. There is also the potential for parents to characterise each other in fairly one-dimensional ways, such as being “all bad”. Once these gross one-dimensional characterisations are adopted, they are sustained through processes such as confirmatory bias and expectancy effect; that is, there is a tendency to notice and interpret information in a way that confirms an existing position or belief, and the holding of a particular view creates an expectation regarding the outcome. In other words, expecting the worst can invite the worst.
(29) Children caught in the cross-fire of parents’ negative perceptions of each other are unlikely to be able to have optimal experiences of their parents. The awareness of conflict, even in the absence of direct experiences, can result in children experiencing uncomfortable psychological arousal. It is the writer’s assessment that [B], [N] and [J] have been impacted by the conflict. They are aligned strongly with their mother, and this is a normal and understandable reaction to the current situation.
Their father’s disappearance from their lives arguably triggers feelings of abandonment and rejection, and aligning strongly with their mother is a survival mechanism. His reappearance is likely to be confusing and confronting for them, raising conflicting emotions and concerns about loyalty to their mother. To go against their mother’s wishes and feelings by expressing anything positive about their father could risk rejection by her, and this is something that would be untenable … They need to know that their mother can tolerate, and indeed, support them spending time with their father for them to be able to let go of their concerns for her feelings.
Those same sentiments and opinions can be seen to have been expressed during oral evidence given by Mr S under cross-examination during the hearing.
Again, in light of the orders that all parties apparently now seek from the Court, it is important to note that in Mr D’s report, he proposed (at paragraphs 40 and following) what might be described as a conservative means by which the children could be encouraged to see their father and to, ultimately, deal with their perceptions of him. He proposed some letter-writing to commence that process, with the intervention of a therapist, and some supervised time thereafter at a contact centre.
As will be seen, those recommendations form the basis of the orders sought by the Independent Children’s Lawyer.
Before dealing with those orders in specific detail, however, it is necessary to mention a couple of other matters. First, for reasons which are not entirely clear, it seems that no determination, either of an interim or final sort, occurred shortly after the initial report prepared by Mr D in the middle of 2010. It seems that this may have arisen because the matter was transferred from the Federal Magistrates Court to the Family Court, and that there were some difficulties in having the property component of the proceedings readied for trial and, understandably, it was accepted by both parties that both components of the proceedings should proceed together.
What that has resulted in, as counsel for the mother pointed out during submissions, is that the recommendations made by Mr D – and it might be added, earlier recommendations made by Mr S – have, in fact, never been carried out. In short, there has never been an opportunity for the process that each of those psychologists independently recommended take place so as to avail the children of the benefits to which each of those psychologists refer.
I do not need to deal in detail in these reasons with the father’s initial proposal with respect to the block of six months time. I asked Mr D of his view about that; Mr D requested permission to be “frank”, which was given. Mr D said it was “a knuckle-headed idea”. Mr D, in my view, expresses it accurately, if a little colourfully.
One of the issues that troubled me was whether I should visit upon the father a proposal which I consider is so utterly lacking in parental insight as to be troubling. Parental insight in the sense in which I refer to it is directly relevant to an additional consideration; namely, the attitude to the responsibilities of parenthood.
In the end, I think the father’s true position was the one which he sought to emphasise in the witness box, and which can be seen as being entirely consistent with that voiced to Mr D in particular, and probably also to Mr S; that is, he “just wants to see his kids”.
That he should put forward a proposal so utterly lacking in insight into what these three children – whatever he might attribute as being the cause of their current position – is, to me, troubling. In the end, I consider that the proposal was put forward as a result of the incompetence of his solicitor rather than as a concrete proposal put forward by him indicative of his views about the best interests of the children. I have used the words just used intentionally. I do not seek to be gratuitously offensive to the solicitor, but it is important to record that this Court relies upon officers of the Court in putting forward their clients’ constructions for a number of reasons. In the current context, an important reason is that the Court needs to be able to assume that what is being put forward by a legal practitioner on behalf of a client is based on instructions given by a client after advice. If incompetence intervenes, that ought not be assumed lest the client be treated unfairly. In my view, that is what has occurred here.
The true position of the father, in my view, ought not be judged by the incompetent proposal put forward at the outset of these proceedings. It has not formed the part of any formal application made by the father previously, and in my view, those previous applications and, indeed, the evidence of the father taken as a whole – reveal a consistent position taken by him, which is the one to which I have earlier referred.
I have dealt with those matters in some detail for the reason referred to at the outset of these reasons. The Court is obliged to, and does, in fact, take very seriously allegations of violence of all types. They have – as has been said endlessly by judges of this Court over a period now of some 30 years – the potential to cause a number of specific and varied harms to children. Importantly, it is appropriate to emphasise, yet again, that emotional abuse of children can be just as harmful as any other form of abuse.
Against that background, and within its context, I turn then to consider the orders proposed by the Independent Children’s Lawyer and now supported by each of the parties.
I posed during the course of the evidence of Mr D and Mr S the same question to each: namely, have we reached the point now where, to put it crudely, “the horse has bolted”? Each acknowledged that possibility.
That possibility arises, for example, by reference to what Mr S said in his report, which is now some 18 months old. Mr S said:
(31) I was also very concerned that [the mother] has possibly played a major role in the children developing the view they hold of their father, considering their views appear to be largely based on her accounts and on what they believe the father has done wrong to her since separation. The children appear to accept as fact totally unsubstantiated allegations such as their father sabotaging their cars, and also use her terms, such as “stole” things from her …
Mr S went on to say at 41:
The attachment and bond with their father is clearly broken, and there has been no meaningful contact in over two years. While I am arguing that the greatest contributor to their rejection now is likely their alignment and the stories they have heard, undoubtedly, there will also be a level of their own rejection from not seeing their father for so long. It is common in similar situations for children to express anger or hurt at losing their connection with their parent, and even to develop a counter-rejection where they do not want to know the parent, who in their mind has ignored or rejected them.
That same portent for concern was shared by Mr D, who gave oral evidence to that effect.
Each of Mr S and Mr D were, however, persuaded in their own minds that it was not “too late”, and, particularly given the children’s ages and their prepubescent stages of development, that now was the time to attempt to facilitate for them a relationship with their father that he says they need and which each of the experts appear to also say they need.
The essential reason for that, despite their expressed views and their expressed concerns, is that there are – as each of Mr S and Mr D say – a number of what might be described as psychological negatives for children if they grow up firstly without a father or secondly, if they grow up without a father in circumstances when they have not, for themselves, been afforded – sorry, when they have not been afforded the opportunity for themselves to arrive at an opinion of the nature of the relationship with him.
Those psychological negatives are, according to each of Mr S and Mr D, particularly harmful as children go through puberty and into early adulthood. That is, each of Mr D and Mr S flag the potential for there to be significant detriment to the children should that lack of contact with a father occur.
I was, however, troubled by, and remain troubled by, a number of considerations. Again, they were expressed to each of Mr S and Mr D. In particular, given my findings about the dysfunctional nature of the parental relationship and what I regard as the mutual visceral dislike of each other, would orders of the type proposed by the Independent Children’s Lawyer provide for the children, as it were, a further theatre of war.
That is, might those orders provide for the children yet further opportunities for them to experience conflict between the parents, to be brought into that conflict even if only vicariously and, if my suspicions about what occurs in the mother’s household are right, an opportunity for there to be a reason for those negative perceptions to be shared all the more.
If that’s the case, there might be seen to be an argument that, indeed, “the horse has bolted” and that an order for no time should be made.
I am persuaded that I should not so conclude for a number of reasons.
First and most importantly is the potential for psychological harm to occur to these children in the manner described by each of Mr S and Mr D should they not have the opportunity to judge for themselves the father that they have. The father says that he acknowledges the opportunity to facilitate the relationship. The mother says that she is concerned that he will “let the children down again” and as a result, harm will occur to the children. I acknowledge the possibility of that occurring and have taken it into account.
As I said to counsel for the mother, given what I have said about the mother’s attitude towards the father, I am troubled that her sincerity may not match what she now says through her counsel, is the appropriateness in her children’s best interests of the orders proposed by the Independent Children’s Lawyer. I am persuaded by what counsel for the mother said as to her sincerity and her genuineness in seeking to provide an opportunity for the children to have a relationship in the manner envisaged by Mr D and Mr S.
As counsel suggested it is, I think, an important consideration that, whatever may have occurred in the past and whoever may have been right or wrong about disinterest versus difficulties in establishing contact with the children in the previous four years, there does seem to me to have been a hiatus created in the immediate aftermath of the reports of Mr S and, more particularly, the first report of Mr D that occurred through no fault of either the father or the mother.
I am not altogether sure that it occurred either through the fault of the Court. But, in any event, it is a pity that these issues were not ventilated at a time closer to the release of Mr D’s first report when the amount of time that had elapsed without the children seeing their father was significantly less. It seems to me, as counsel suggests, that this is an important matter when consideration is given to what may, in fact, be the last chance for these children to receive and deal with their own perceptions of the father that they have.
The orders that are proposed can, as I said earlier, be seen to have embraced the notions evident in the first report of Mr S and which, independently, have been taken up in a similar way by Mr D. They embrace a period of time during which the children will have the opportunity of seeing a therapist whose credentials are regarded highly, I gather, by Mr D and about whom, I gather, the Independent Children’s Lawyer has satisfied herself.
That therapist is envisaged as providing assistance to the children and, if considered appropriate by her, one or both of the parties, over a period of about three months.
Preceding that, the father has the opportunity to forward letters to the children but to do so via the intercession of the Independent Children’s Lawyer. The reason for that is obvious. It will allow the Independent Children’s Lawyer to, herself, arrive at a view about the father’s motivations, sincerity and the appropriateness of his communication.
That process is to be, as it were, monitored by the children’s therapist. Thereafter, for a period of six months, the children are to spend supervised time with the father on a fortnightly basis at the Town C Contact Centre or such other contact centre as can be facilitated.
Again, the thinking behind that order is obvious. At a contact centre, the mother – but more importantly, the children – can feel satisfied that the children will be protected from any harm that they might perceive. More importantly, for the Court’s purposes in light of the findings that I have made, it allows the opportunity for the children to re-establish a relationship with their father in an environment about which the Court can be satisfied ameliorates any such risk as might be attached to that time including the risk of emotional harm to the children as the mother says can be envisaged.
The orders contemplate the appointment of the Independent Children’s Lawyer remaining for a period of 12 months. They refer to the matter being relisted before me, or another judge, at the conclusion of the supervised time to which I have just made reference, that is, in about nine or 10 months time when the initial steps earlier provided for have occurred.
I am obliged to – and, in any event, would – take account of the fact that any proceedings in respect of children should attempt to bring any proceedings about them to an end as soon as possible. It is no accident that the Act refers to a mandatory consideration to that effect.
I have a concern about interim orders. They might be seen as, in effect, portending future litigation. I am, in the usual course of events, disinclined to make them for those reasons.
However, here, I am persuaded by the expert evidence before me and by submissions made on behalf of the Independent Children’s Lawyer and counsel for the mother that it is an appropriate step to take in the circumstances of this case, particularly in light of the fact that the children have not seen their father for such a long period of time and by reason of the volatile nature of the relationship between the parties to which the children were exposed prior to the cessation of that time.
I seek to emphasise in the strongest possible terms, however, that the intention of the interim orders is that time, but more importantly, a relationship, will be facilitated as a result of these orders that will see agreement between the parties on a final basis.
It is undoubtedly unhelpful to the children to embark upon this process with the thought (inculcated or otherwise) that there will be further proceedings in nine or 10 months’ time. Such a mindset would, in my view, be entirely counterproductive and totally contrary to the intention of the orders. It is also likely to be harmful to them.
The children ought not, under any circumstances, feel that they are, in effect, the meat in the sandwich in their parents’ ongoing dispute. The essence of the orders is to try to end the dispute.
For all of the reasons to which I have referred, I am ultimately persuaded that it is in the best interests of these children to make interim orders and for those interim orders to be in terms of the minutes handed up by counsel for the Independent Children’s Lawyer and ultimately supported by each of the mother and the father and I so order.
The Property Proceeding
A document which became Exhibit J1 contains the list of property of the parties or either of them within the meaning of section 79 of the Act. It is agreed, save for two matters to which I will refer in a moment.
It also contains an agreement in respect of a matter that had been in dispute. It is agreed that $33,400, being the proceeds of cattle sales occurring after separation, be added to the pool and be “credited” as having been received by the husband.
The parties are not agreed upon whether an inheritance in the sum of $70,000 received by the husband should be included in the “pool”. Similarly, exhibit J1 includes references to “husband’s termination moneys”, to which is attributed a sum of $16,176.96.
As to the inheritance, the husband deposes in his affidavit filed 1 August 2011 as follows:
(61) In relation to my financial situation, I disclose the following information: my mother died several years ago. However, her estate was not finalised and distributed until after separation in 2007. I inherited almost $70,000; however, the vast majority of this money was utilised in legal fees in connection with this matter. The remainder was spent on farming and other day-to-day living expenses. I have virtually exhausted all of the money that I have received from the estate, and still paying off my accumulated legal account with my former solicitor.
The wife asserts that there has been incomplete disclosure in respect of this sum. It seems clear, though, that the sum was received very late in the relationship or after separation. In respect of the termination moneys, there is no reference whatsoever to this sum, or its derivation, in the evidence of either party. The only reference I have been able to find to it is in a “case information disclosure” document filed by the then-self-represented father on 9 September 2011. That document contains a chronology which includes within it the following entry:
August ’08: husband has his employment with… terminated. However, this decision was overturned by the Industrial Relations Commission and he accepted a payout.
Exhibit J1 is a joint document. No reference is made there, or in submissions, to the fact that there is no evidence pertaining to this sum. The document to which I have just referred is not of itself evidence. It is not sworn.
I do not propose to include the inheritance in the pool. That is not because, as the husband implicitly suggests, that his inheritance is somehow insulated from the reach of section 79. Rather, it seems to me that, by reference to the nature, form and characteristics of the property and when it was received, it is property which involves an analysis of contributions wholly different from that which applies to the balance of the property (and superannuation interests).
In that respect, the wife concedes that she has made no contributions (presumably indirect or welfare of the family contributions) to that property (see generally Bonnici & Bonnici (1992) FLC 92-272).
Of course, the fact that this sum is not included in the pool of property means that the husband is not “credited” with it as a direct financial contribution by him to that pool.
As I have said, there is no evidence whatsoever in respect of the termination moneys, nor were any submissions made by either party in respect of them (noting that exhibit J1, which is also not evidence, delineates it from the pool). It seems to me, though, that the justice of the case requires me to regard it as a sum admitted to have been received by the husband. Quite what the Court should otherwise do in those circumstances is less than clear.
It is a modest sum. Whether the sum was retained by the husband, or if it was contributed to the family’s finances (about neither of which there is evidence), or if it bought a specific capital item (about which there is no evidence), seems to me to make little difference in the scheme of matters to be considered pursuant to section 79. But, it does seem to me unjust to isolate this modest sum received, it seems, over three years ago and treat it as a specific item within the “pool of property”.
I propose to treat the property and superannuation interests together in “one pool” (see Coghlan & Coghlan (2005) FLC 93-220). No differentiation is made in such submissions as were received in respect of this issue. Each party is working and apparently desirous of continuing to work. No material suggests that the nature, form and characteristics of the superannuation interests of the parties differ to any extent.
The remaining two (or three) so-called “steps” in the section 79 process by which an ultimate determination is to be made (as to which, see, eg, In the Marriage of Coghlan (above) and Hickey; Hickey & Hickey (2003) FLC 93-143) can be truncated in this case by reference to the fact that the respective positions of the parties can be seen to embrace a difference of between five and 10 per cent of the “pool”.
The Court has an overriding obligation to arrive at just and equitable orders. Thus the Court is, subject to natural justice considerations, entitled – indeed, obliged – to arrive at a conclusion different to the parties’ if that be justified on the evidence. But, here, it seems to me that the positions submitted by the parties are appropriate parameters within which the exercise of what the High Court called a “very wide discretion” should be exercised. Those considerations might point to the matter having been resolved long before now, particularly given what ought to have been plainly seen as the narrowness of the potential options for appropriate parenting orders. For present purposes, these reasons can be brief.
Significant paper and time were expended on an exploration of whether the parties cohabitation was of seven years duration (the wife’s position) or of eight years and seven months duration (the husband’s position). In the overall scheme of the discretion inherent in section 79, and in the context of the differing contributions made by the parties, nothing in my view turns on the difference. The husband initially contended – again, at the outset of proceedings – that all of the property, including, specifically, the two pieces of real property which form the overwhelming bulk of the property “pool”, should be “liquidated” and cash proceeds divided among the parties. How that purported to sit with the parenting orders that he proposed at the same time, which involved him living in one of those properties, was never adequately, or indeed, at all, explained.
It also needs to be observed that the husband’s initial proposal, put through his solicitor, would also involve a sale of the property in which the children are currently living, and in which they have lived for the whole of their lives. Again, for the reasons earlier referred to, I consider that to be a position emanating from the incompetence of his solicitor rather than as being evidence of his position with respect to the children. Ultimately, as I gather, the husband sought a cash adjustment in consequence of the wife retaining the real properties. That position accorded with the wife’s proposal, albeit, of course, that the amounts were different.
Turning to contributions, it is plain, as is conceded, that the wife made a greater direct initial financial contribution. The difference in dollars (note, in 1999 or 2000 dollar values) was not on the surface profound, but I note that the wife’s contribution was more than double the husband’s (even on his best case).
But the nature, form and characteristics of the different financial contributions are, in my view, important and significant, as are the use to which those direct initial contributions were put. (See, eg Pierce & Pierce (1999) FLC 92-844).
Here, the wife brought to the relationship house and land. (The submissions made in respect of the “value” of that interest by the solicitor for the husband, frankly, allude me.) It is plain, in my view, that the best evidence of the value of the interests so contributed (in 1999 or 2000 dollars) was about $70,000. Contrary to the assertion by the husband, I find that the house on that property was at lock-up stage.
Importantly, in terms of what the Full Court has said (eg Pierce, above) it is important to note the use that was made of that property. It became the parties’ matrimonial home, and shortly thereafter, a home for each of the three children. It allowed a property – what I will describe as a semi-rural property – to be used for that purpose with the consequent lifestyle implications resulting therefrom.
The single most important direct financial contribution made in the context of the parties’ relationship was an inheritance received by the wife in 2002 of about $430,000. (I note again that that sum is expressed in 2002 dollars.) That sum (by reference to 2011 dollar values) represents about 43 per cent of the current pool; that is to say, nearly half of it.
Again, the use to which this property (which comprises three parcels of land) was put is an important consideration. It allowed the parties to form a cattle-grazing partnership, and to conduct that partnership on it. It allowed, of course, the opportunity for the children to have a rural block upon which they too could enjoy the activities associated therewith. Both of the real properties to which I have been referred have each been retained, and I will refer in a moment to matters of post-separation contributions which I consider to be important.
Both of the parties worked during the course of the relationship. I accept that each of them contributed financially to the relationship during its course. I accept that the husband did work of some significance in and about the house property brought to the relationship by the wife, which, as I have said, I accept was at lock-up stage. As the wife herself conceded in the witness box, a number of improvements were made to it subsequent to the parties moving in, most of which, I find, were undertaken by the husband.
Consequent upon the birth of the children, I consider that the wife made greater contributions to the welfare of the family constituted by the children and the parties, than the husband.
I am not prepared to make what I will describe as “Kennon-type” findings in this case. My findings in respect of violence more generally can be seen in the parenting component of these reasons. I do accept, however, that the wife made greater contributions to the welfare of the family than the husband.
The parties separated towards the end of 2010. In the post-separation period, the wife and children remained living in one of the properties, the E Street property, and the other property (known as F Street) was also preserved. I accept that the wife made most of the day to day contributions in respect of those properties.
There is some dispute about the extent to which the husband contributed financially. His affidavit contains an annexure of some 180 or so pages which I gather purports to be some form of ex post facto audit of expenditure made by him in the post-separation period. I gather the intention of the document is to assert that he made a number of significant contributions to the property in a section 79 sense. Even a cursory examination of that document reveals, as it seems to me, that effectively every expenditure made by the husband in that period has been included, even the most modest and even those that appear related solely to himself. As one good example raised during the course of the proceedings, the listing of expenditure includes items such as some $70 or so spent at Liquorland.
I am not prepared to use that document or, more accurately, to siphon through that document, to discern which payments may or may not have been payments that might be regarded as being direct financial contributions in a proper sense within the meaning of section 79.
It seems to me that on the whole of the evidence, the wife made more post-separation contributions to the outgoings and other expenses associated with each of the properties than the husband. The wife asserts that she preserved each of the properties and I accept that her contribution in that regard is greater than the husband.
I note, however, as contended on behalf of the husband, that the property brought to the relationship by the wife (again emphasising that values attributed to it are in 1999 or 2000 dollars) has nevertheless grown significantly in capital value.
By reference to section 79(4)(e) of the Act, commonly known as the “section 75(2) factors”, it seems to me the following is relevant.
The wife has had, and will have, in her predominant care the three children of the marriage. As earlier referred to, each of the children are now at school age. The older two are pre-pubescent and about to enter upon the most expensive component of their schooling, namely their secondary education. On any view, the wife is likely to retain the overwhelming responsibilities for their future care.
The evidence in respect of the payment of child support by the husband appears to be this. He paid child support initially upon separation. He was then retrenched and child support payments effectively ceased. Thereafter, payment of child support might be described as patchy but more recently has, I gather as a result of a garnishee order, been effectively brought up to date.
In respect of the issue of child support and capacity to earn income more generally, the husband’s evidence is that he will forego the work as an farm worker which he has currently been undertaking in and around the H Town area so as to move back to the northern New South Wales area to be close to the children to avail himself of the time foreshadowed in the parenting orders.
He said in the witness box that he would be able to obtain employment but at the moment, that is potential as distinct from real. The evidence reveals that each of the parties have historically been in receipt of modest income in any event. Each of them, in my view, retains the capacity to earn modest income at best.
The wife will, on any view of the property orders, retain the greater bulk of the property. She will, as a result of the necessary payment to the husband (for which both parties contend), need to incur an increase in what is now a very small mortgage liability, so as to fund the payment to the husband.
The wife will, though, retain greater assets and resources and she will also continue in her current place of residence which she will share with the children and will retain the grazing property and the potential therefore to graze inherent in F Street property.
The husband might, conversely, be seen to have a need to rehouse. But, it needs to be noted that his living position, both pre-cohabitation and in the work which he has undertaken post-separation, has frequently involved him travelling to non-urban areas so as to undertake employment such as mustering and the like. It might be seen, then, that he can be seen to have less of a need to rehouse than might otherwise be the case of a person in an established full time position in a particular place.
I note, in the context of section 75(2), that the husband has had the benefit of the $70,000 inheritance received by him post-separation. He deposes to that being used predominantly on legal expenses but also on general living expenses. It seems to me, however, that I ought take account, as part of the broad range of things that need to be taken into account pursuant to this section, that he has had the benefit of that money in the post-separation period.
The wife contends, through her counsel, that there should be an assessment of 70 to 75 per cent in her favour with respect to contributions and a five per cent adjustment in respect of relevant section 75(2) factors, leading to an overall entitlement of between 75 per cent and 80 per cent of the pool.
The submissions on behalf of the husband, such as they were, did not differentiate between any contribution assessment and any 75(2) adjustment. It was simply contended that the husband was entitled to receive 30 per cent of the assets.
It is of course possible to formulate different assessments of contributions and section 75(2) adjustments based on the matters to which I have just made reference. In light of the matters to which I have referred, however, it seems to me convenient in this case to deal with each together.
In my assessment, the wife should receive 75 per cent of the property of the parties or either of them.
When the relevant mathematics is done, with respect to exhibit J1, that translates to a cash payment of very close to $150,000. I have her entitlement rounded to that sum.
In terms of what is sometimes called the fourth step or which is otherwise referred to as the overall “justice and equity of the orders”, I note that the wife will retain the former matrimonial home situated on a semi-rural property, rural lands being the three parcels of land comprising the F Street property. She will also retain some farm equipment and modest chattels and superannuation. The father will retain the sum of $150,000 in cash together with some chattels of modest value and superannuation.
In all of the circumstances of this case, I consider that the assessment so arrived at is just and equitable within the meaning of the Act.
I order accordingly.
I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 18 November 2011.
Associate:
Date: 7 December 2011
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