Bentleigh and Bentleigh
[2017] FamCA 294
•11 May 2017
FAMILY COURT OF AUSTRALIA
BENTLEIGH & BENTLEIGH [2017] FamCA 294
FAMILY LAW – CHILDREN – Competing applications for the father to spend time with the children, aged eight and six – Where there are allegations of sexual abuse of the children – Where two expert reports were in evidence – Where the Court cannot be satisfied that the children were sexually abused by their father – Where any risk of sexual abuse can be ameliorated and does not outweigh the benefit of the children having a meaningful relationship with their father – Where the Court finds family violence was perpetrated against the mother but not the children – Consideration of s 60CC factors – Consideration of the parenting capacity of each parent where the father has never had care of the children on his own – Where the mother has a cognitive impairment – Orders made for the children to live with the mother and the children to spend unsupervised time with the father – Where the parties agree to have equal shared parental responsibility.
FAMILY LAW – PRACTICE AND PROCEDURE – Application for the mother to be recalled for cross-examination – Where the mother had been cross-examined for two days – Where there was limited time allocated for the hearing of the matter – Where it was not in the interests of justice to allow the mother to be recalled – Application refused.
FAMILY LAW – PROPERTY – Where the husband made greater contributions to the marriage by way of financial contributions – Where the mother was the primary homemaker and carer of the children – Where the mother suffers from a cognitive impairment and has a mental illness – Where the mother receives the disability pension and has no prospects of gainful employment – Section 75(2) adjustment in the wife’s favour of 15 per cent – Where the wife is to receive 55 per cent of the property pool – Where the parties consented to the wife receiving 50 per cent of the husband’s superannuation entitlements.
Family Law Rules 2004 (Cth)
Family Law Act 1975 (Cth) ss 4AB, 10G, 60CC, 60CC(2)(b), 60CC(2A), 60CC(3), 75(2).
APPLICANT: Mr Bentleigh
RESPONDENT: Ms Bentleigh INDEPENDENT CHILDREN’S LAWYER Independent Children’s Lawyer
FILE NUMBER: PAC 4005 of 2014
DATE DELIVERED: 11 May 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Parramatta and Sydney
JUDGMENT OF: Rees J
HEARING DATE: 27, 30, 31 January and 27, 28 April 2017 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Greenaway
SOLICITOR FOR THE APPLICANT: Lewarne & Goldsmith
COUNSEL FOR THE RESPONDENT: Mr Kenny
SOLICITOR FOR THE RESPONDENT: Rowlandson & Co Solicitors
COUNSEL FOR THE INDPENDENT CHILDREN’S LAWYER: Mr Guterres
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors and Conveyancers Orders
IT IS ORDERED
That all previous parenting orders in relation to the children B born … 2008 and C born … 2011 (“the children”) be discharged.
PARENTAL RESPONSIBILITY ORDERS
That the parents shall have equal shared parental responsibility for the children.
LIVE WITH ORDER
That the children shall live with the mother.
DAY TO DAY CARE, WELFARE AND DEVELOPMENT
That the mother shall have responsibility for decisions as to the children’s day to day care, welfare and development during periods when they are living with (or spending time with) her and the father shall have that responsibility at times the children are in his care.
SPEND TIME WITH ORDER
The children shall spend time with the father as follows:
a.During school terms, each alternate weekend from the conclusion of school Friday until 4.00 pm Sunday; and
b.During one half of each New South Wales school holiday period, such half to be agreed between the parties, but failing agreement the first half of each school holiday period.
For the purposes of changeover of the children:
a.during school terms the father (or his nominee) shall collect the children from the KFC outlet in D Street, E Town at 3.30pm and deliver the children to the mother (or her nominee) at Suburb F Railway Station at the conclusion of that time unless otherwise agreed; and
b.During school holiday periods, the father shall collect and return the children to and from the mother at Suburb F Railway Station.
That any overnight time the children spend with the father shall occur at the home of either the paternal grandparents or the paternal aunt.
OCCASIONS AND EVENTS OF SPECIAL SIGNIFICANCE
That the children shall spend time with the each of the parties on the following occasions of special significance:
a.That the father will spend three hours with the children on his birthday at times from the conclusion of school, or 3.00 pm, until 7.00 pm;
b.If Mothers’ Day falls on a Sunday that the children are spending time with the father, the children will be returned to the mother at 5.00 pm on the Saturday prior to Mothers’ Day. If Fathers’ Day falls on a Sunday that the children are otherwise with the mother, such time shall be suspended and the children will spend time with the father from 5.00 pm on the Saturday prior to Fathers’ Day until 4.00 pm on Fathers’ Day;
c.Notwithstanding any other order, each alternate year commencing 24th December 2017, the children will spend time with the father from 9.00 am Christmas Eve until 2.00 pm on 26th December;
d.Notwithstanding any other order, each alternate year commencing 24th December 2018, the children will spend time with the mother from 9.00 am Christmas Eve until 2.00 pm on 26th December;
e.The parents will both be entitled to attend all events involving the children including:
i.Sporting fixtures;
ii.Extra curricula activities that allow for parental attendance; and
iii.School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions;
and the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.
That in the event the parties cannot come to a joint decision about a major long term issue, they will do all things necessary to participate in family dispute resolution with a person authorised under section 10G of the Family Law Act 1975 (Cth).
THERAPY
10. That each party shall do all things necessary to facilitate the children’s attendance upon a therapist, being a child psychologist or psychiatrist nominated by the Independent Children’s Lawyer after consultation with the single expert, Dr G, and Dr H and IT IS NOTED that neither party is in a position to pay privately for a therapist for the children and the therapist will need to be engaged with the assistance of the public sector.
11. For the purposes of Order 10, each party shall:
a.Ensure the children attend all scheduled appointments for as long as the therapist deems necessary;
b.Attend appointments themselves as requested by the therapist; and
c.Comply with recommendations made by the therapist including attendance upon any other person that therapist may recommend.
12.That the Independent Children’s Lawyer shall provide to the therapist a copy of the report of Dr G, Dr H and a copy of the Reasons for Judgment.
SCHOOL / EDUCATION
13. That within 14 days of these Orders and within 14 days of the children’s subsequent enrolment at any school, each parent do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to each parent copies of all of the children’s school reports and merit cards, and any written material pertaining to the children’s academic and extra-curricular activities.
HOSPITALISATION
14. That the mother ensure the father is provided with all contact details of any medical practitioner or other health professional that the children attend upon from time to time.
15. That the father is authorised to contact any such medical practitioner or other health professional to obtain information about the children’s attendance, treatment or general health.
16. That in the event of either or both the children being hospitalised or receiving medical attention, the parent who has care of the children shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
INCAPACITY TO CARE FOR CHILDREN / ILLNESS OF A PARENT
17. That in the event either party is incapable of caring for the children, whether due to hospitalisation, work commitments or other social commitment, that party shall give the option to the other parent of caring for the children first before alternative arrangements are made for the care of the children.
COMMUNICATION ORDERS
18. That the children have the following communication with each parent:
a.Reasonable telephone communication with the parent who does not have the care of the children as the children may request from time to time and the parties agree that the parent who has care of the children will facilitate the making of such telephone call; and
b.Each parent will ensure privacy during telephone conversations with the non-resident parent.
19. That each parent shall ensure the other parent is kept informed of:
a.Any medical problems or illnesses suffered by the children while in the non-resident parent’s care;
b.Any medication that has been prescribed for the children;
c.Any extracurricular, social, school or religious functions which the children are to attend;
d.Their residential address, contact telephone number, and particulars of the others who may reside with the children from time to time; and
e.Any other matter relevant to the children’s welfare.
That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
That each party is restrained from discussing with the children any allegation raised in these proceedings or from showing the children any court documents.
That each parent is restrained from presenting the children to a medical or health practitioner for the purposes of the children making a disclosure about the father.
That in the event the children make any disclosure in the nature of sexual impropriety, each parent shall immediately contact the children’s therapist to seek advice of the therapist and shall follow the advice given. If no therapist has been appointed, then the parents shall contact the Department of Family and Community Services for advice before taking any other step.
That the father is restrained from drinking alcohol whilst the children are in his care.
PROPERTY
That each party do all things required to effect the distribution of the funds in the trust account held by Lewarne & Goldsmith Lawyers as follows:
(a) The sum of $161,523 to the wife;
(b) The balance to the husband.
That a base amount of $88,972 is allocated, as required by s 90MT(4) of the Family Law Act 1975 (Cth), to the mother out of the father’s interest in the AMP Super Fund member no. 917791025.
That Order 25 have effect from the operative time and the operative time is four (4) business days after service of this order on the trustee.
That other than as provided in these orders, each party shall be solely entitled to any item of property in his or her possession at the date of these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bentleigh & Bentleigh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
FAMILY COURT OF AUSTRALIA AT FILE NUMBER: PAC 4005 of 2014
Mr Bentleigh Applicant
And
Ms Bentleigh Respondent
REASONS FOR JUDGMENT
1.Mr Bentleigh (“the father”) and Ms Bentleigh (“the mother”) are the parents of two little girls, B born in 2008 and now eight years old (“B”), and C born in 2011 and now six years old (“C”).
2.The parties commenced cohabitation in August 2002, married in 2004 and separated on 1 January 2014.
3.Since separation the children have lived with the mother. They have spent time with their father from time to time pursuant to agreement, then to orders of the Court, and finally under supervision.
4.The proceedings before the Court now arise out of competing applications for property settlement and for parenting orders.
PARENTING
5.At the commencement of the hearing, the father’s application was that he have sole parental responsibility, that the children live with him and that they spend time with the mother once per fortnight at a contact centre.
6.On the third day of the hearing, the father tendered an updated Minute of Orders sought by him. The father sought orders that the children live with him and that he have sole parental responsibility for them. He proposed that, for the first three months, the children should have no contact with the mother. After three months, and for the next year, he proposed they should have contact with the mother at a supervised contact centre for four hours each alternate week. Thereafter the contact should be unsupervised, increasing after six months from day only to alternate weekends and one day in the intervening weekend, together with half of all school holidays.
7.Until shortly before the hearing, as will be discussed later in these reasons, the mother’s position was that the father’s time with the children should be supervised.
8.The father relied upon affidavits by himself, his father, his mother and his sister.
9.The mother relied upon affidavits by herself, her treating psychiatrist Dr I, the children’s general practitioner Dr J, and the children’s paediatric dermatologist Associate Professor K.
10.An Independent Children’s Lawyer (“ICL”) was appointed for the children.
11.Dr G, a child and family psychiatrist, provided a Single Expert’s report.
12.As is later explained, Dr H also provided a report.
THE MOTHER’S AMENDED REPONSE
13.The mother had been given leave to provide a copy of Dr G’s report to a shadow expert. On 21 September 2016, Orders and Notations were made, inter alia, in the following form:
IT IS ORDERED THAT
…
4. The mother’s legal representative has leave to provide Dr [G’s] report to Dr [L] or any other appropriate medico legal expert in the event that Dr [L] is not available for the purpose of assisting in preparation for the trial.
THE COURT NOTES
A.The mother’s counsel has indicated for the record that the report from Dr [L] is not [to] be obtained for the purposes of a future application for an adversarial expert. In any event, any such application must be in accordance with the Rules.
14.Dr L was not available and Dr H was instructed by the mother as a shadow expert.
15.No application was made for leave to call Dr H as an adversarial expert pursuant to the Family Law Rules 2004 (Cth).
16.On 24 January 2017, with the hearing scheduled to start on 27 January 2017, the mother filed an Amended Response. In this Response she sought orders that the parents have equal shared parental responsibility, that the children live with her and that they spend alternate weekends and half the school holidays with the father. This was a significant alteration in the position that the mother had held leading up to the trial.
17.At the end of the first day of hearing, the mother sought to file and rely on an affidavit which, it was submitted, explained her change of position. That matter was addressed the next morning, on the second day of the hearing. There was no objection to the filing of the affidavit.
18.In her affidavit sworn 27 January 2017, the mother deposed:
I have carefully considered the report [of Dr [G]], the report of Dr [H], my affidavit evidence and the affidavit evidence of the father and have come to the conclusion that the children are not at risk whilst in the father’s care and that is the reason why I have amended my response.
19.Dr G’s report had been available to the mother since 21 September 2016. The contents of her own affidavit material must have been known to her. The father’s affidavit was filed on 17 December 2016 but previous affidavits had also been filed by him. Clearly, it was Dr H’s report that was significant in the mother’s change of position.
20.The reliance placed by the mother on the report of Dr H caused consideration to be given to the admission of that report into evidence.
21.Counsel for the father opposed the admission of the report of Dr H. Counsel submitted that no application had been made for the admission of evidence of an adversarial expert and that, since Dr H had not seen any of the parents or the children, his opinion was of limited utility. Counsel conceded that, insofar as Dr H’s opinion was relied upon by the mother to explain her changed position, it was admissible, but only to that extent.
22.Dr H’s report began with a critique of Dr G’s conclusions and assumptions (although he agreed with Dr G that the children had not been sexually abused by their father). I did not admit into evidence that part of the report which contains that critique.
23.However, I admitted Dr H’s analysis of the evidence in relation to the allegations of sexual abuse because that analysis is the foundation of his opinion in relation to whether the children had been coached by the mother and also the foundation of the mother’s change in position.
24.Dr H’s report was therefore admitted into evidence on that limited basis and arrangements were made for him to be available for cross-examination.
APPLICATION TO RECALL THE MOTHER FOR CROSS‑EXAMINATION
25.At the end of the cross-examination of Dr G, on the fifth day of hearing, counsel for the father made an application to recall the mother for cross-examination.
26.The basis of the application was an observation which I had made, in the course of Dr G’s evidence, to the effect that, it had not been put to the mother, that her evidence in relation to the disclosures she deposed had been made by the children, was not accurate.
27.The mother had been in cross-examination for two full days. It was always her case that the children had said that which she deposed. She never resiled from that position.
28.The father, in cross-examination, said that he believed that either the mother or some other person had coached the children to say what the mother deposed. He did not suggest that the mother had made up the disclosures or inaccurately reported them.
29.There was ample opportunity for counsel for the father to put that proposition to the mother in the course of cross-examination, had he been instructed to do so.
30.The matter having been originally listed for four days, had taken already five days and another day had been set aside for submissions. As it transpired, submissions had to be curtailed because there was no more available time.
31.On some occasions, the interests of justice require that matters be completed within the time available to the Court. This was the case here.
32.The application to recall the mother was refused.
THE MOTHER
33.It is an agreed fact that the mother suffered head injuries as a child. She has been diagnosed with bipolar disorder and it is suggested that she has a mild intellectual disability.
34.On 6 January 2005, a discharge summary prepared by M Clinic stated that the diagnosis of the mother was Bipolar 1 Affective Disorder and mild intellectual impairment secondary to head injury.
35.Dr G, in her assessment, concluded that the mother suffers from cognitive impairment. In her report, Dr G stated that she:
… decided to do a formal mini-mental state examination which I completed and she scored 23 out of 30, which shows mild cognitive impairment. Her main problem appeared to be in her short term memory, not knowing the date or place where we were carrying out the assessment and not being able to recall three objects.
36.Dr I is the mother’s treating psychiatrist. He provided a report dated 29 December 2016. Dr I noted that the mother had been referred to him in 2015 for management of her Bipolar Disorder. Dr I’s initial assessment of the mother was that her mental state was stable and that she was regularly taking her medication.
37.In relation to the mother’s cognitive state, Dr I stated:
She did inform that she had suffered with a brain injury when she was about 3 years old and was admitted to a hospital in [Country N]. At my assessment she did not show any signs of overt cognitive impairment. She was able to relate sensibly and give an accurate account of her past history. I had no concern about her ability to parent her children due to the injury she had suffered when she was 3 years old.
38.Dr I stated:
She also informed me about being sexually assaulted by a friend of the family when she was about 6 or 7 years old. She did not display any overt symptoms of Post Traumatic Stress Disorder secondary to her sexual abuse.
She also mentioned about being sexually abused when she was 17 years old. She denied any flashback of this incident and did not show any signs of PTSD due to this assault.
I did not do any formal testing of her memory functions. However, she did not show any signs of memory deficit which was likely to affect her ability to parent her children.
39.In relation to the mini mental state examination which had been conducted by Dr G, Dr I stated:
This score would suggest mild cognitive impairment. However, in order to further assess her cognitive impairment she will require a repeat of this examination and if necessary to be formally assessed by a Psychologist with psychometric testing. However, I have no concerns about her cognitive deficit having any positive impact on her ability to take care of her children.
40.Dr I concluded:
In my opinion, her mental state was stable, she was not showing any signs of active psychiatric illness. In my opinion, as long as she took her medications and remained stable her children would not be of any risk while under [her] care.
In my opinion [the mother] is not psychotic or delusional at present. She does not show any signs of thought disorder or any other features which would suggest a psychotic illness. Her speech is coherent and her thinking process was well organised.
She has been taking her medication regularly, this is indicated in her blood level which has been consistent and within therapeutic level. …
41.Both Dr I and Dr H were of the view that the mini mental state examination administered by Dr G was not conclusive and would need to be repeated a number of times before it could be relied upon.
42.However, the mother herself said that she has problems with her short term memory and that her ability to function is particularly affected by being stressed. On a number of occasions, as she was cross-examined, the mother needed a break in the proceedings because, she said, she could not think. On other occasions, she recalled events in detail. She appeared to be more able to recall events than her feelings or beliefs arising from those events.
43.An affidavit prepared by Dr O, a paediatric neurologist who saw the mother in 2015, was tendered by the ICL. Dr O reported that the mother “continues to have a memory problem (which has always been a feature of her condition) so that she can forget to do tasks or recall why she went to the kitchen.”
44.It is likely that the mother was stressed during her interviews with Dr G and her incapacity is exacerbated at such times. Similarly, when she was cross‑examined in the course of the hearing, she was stressed and it was obvious that her ability to think, remember and answer questions was affected.
THE ISSUES FOR DETERMINATION
45.It was the father’s case that the mother, or some other person, had coached the children to make allegations that he sexually abused them. She denied any such behaviour.
46.His position was that the mother was not an adequate parent for the children and that they should live with him. The bases of his allegations as to her inadequacies were multiple and included allegations in relation to matters long preceding their relationship as well as complaints about her parenting during and after the relationship. His principal complaint, however, was that she had coached the children to make allegations of sexual abuse and that, if the children remained in her care, it was likely that they would continue to make such allegations.
47.The mother’s case was that the father had been an absent parent and had little participation in parenting the children during the relationship. She alleged that he had used pornography during the relationship and that, on one occasion, B had opened her computer and looked at pornographic material which had been downloaded by the father. She alleged that the father had perpetrated acts of family violence towards her, on occasions in the presence of the children.
48.The mother raised the allegations of sexual abuse because the children told her things that concerned her. She accepted the expert evidence of Dr G and Dr H that the children had not been sexually abused.
THE ALLEGATIONS OF FAMILY VIOLENCE
49.Family violence is defined in section 4AB of the Family Law Act 1975 (Cth) (“the Act”) in the following terms:
Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
50.The mother asserted that the father had engaged in a pattern of violent behaviour that included physical violence, derogatory language, destruction of property and violence towards the family pet.
51.The father initially, in cross-examination, denied those allegations.
52.He denied that he had difficulty, on occasions, controlling his anger and that he was always in control of his actions.
53.When the father was asked by Dr G about the mother’s allegations of family violence, the father deflected her enquiry by blaming the mother. He took no responsibility for his own behaviour and, according to Dr G, had no understanding of the seriousness of his behaviour.
54.The mother deposed that the father denigrated her throughout the marriage. She deposed that he called her a “lazy, fat good for nothing bitch”, and would tell her that she was “fucking retarded”, a “waste of space”, and “fucking worthless”. The husband in cross-examination denied using most of those terms. However, given his denial that he had difficulties controlling his anger, his denial in relation to derogatory language must be queried. He agreed that he swore at her when she annoyed him.
55.The mother deposed to an incident when they first moved to the P Town house where the father punched holes in two walls. She said a tradesman had to be engaged to repair the holes. I infer that both sides of the wall were damaged.
56.In cross-examination, the father said that in about 2006 he punched a hole in a bedroom wall. He said “l lost my cool”. The husband said in cross-examination that the incident occurred because he told the wife to stop what she was doing. She was standing behind him. He agreed that he punched the wall in anger.
57.The father agreed that there had been an incident where he grabbed the mother by the throat but said that incident had not been seen by the children who were in bed asleep. His recollection was that this occurred in 2011.
58.The maternal grandmother told Dr G about an incident which happened at her home at Q Town where the father assaulted the mother, grabbing her around the throat. I am uncertain whether this is the same incident to which the father was referring. The maternal grandmother said the father had been drinking on that occasion.
59.There was another incident at Q Town in 2008 during a Christmas celebration. The father urinated in the bed. The mother deposed that the father became very angry and chased her and screamed at her. In cross-examination, the father said that he became angry with the mother and yelled at her because she hit him on his feet with her hairbrush when she found he had urinated in the bed. He attempted to excuse his bed-wetting because he had been drinking with members of the mother’s family.
60.The mother deposed to an incident when the father became angry after he lost his mobile phone. The phone was located under the bed. The father threw the mattress in the air and it landed against the wall. The mother deposed that the father swore and yelled at her before he “stormed out of the house”. The father denied throwing the mattress but admitted that he swore at the mother. The father denied that he was angry. He said he “was a bit frustrated”.
61.The mother deposed to an incident where she went out early to get croissants for breakfast and when she came home, the father threw the croissants at her. The father said the mother threw the croissants.
62.The father agreed in cross-examination that the children had seen him “get angry”.
63.The father told Dr G that he had thrown the family pet dog into the backyard. The mother deposed that the father kicked the dog “which caused the dog to go flying through the air…” In cross‑examination, he admitted to kicking the dog out the back door.
64.There was an incident between the parents on New Year’s Eve in 2013. The father admitted that he slammed the dishwasher door and kicked the child restraint gate open.
65.Records produced by the NSW Police note that on 1 January 2014, police attended at the home. The mother told the police that she and the father had an argument in the kitchen. The father banged the door of the dishwasher shut. The record notes:
During this argument, [the father] has walked towards [the mother], causing her to fear for her safety and walk backwards towards the corner of the room. Once [the mother] was in the corner, [the father] has raised his fist over his head. [The mother] has become upset, with the eldest daughter approaching [the father] and saying to him that he had “upset mummy”, which further enraged [the father]. [The mother] has called Police and gone to a neighbour’s house with the children. Police have arrived a short time later and spoke with [the mother] who disclosed the above sequence of events. A statement was taken from her, in which she also stated that there had been previous similar incidents where [the father] has “gone off”, including some which have become physical, and one in which [the father] held her by the throat. Police have also attended the home address of [the father], and spoken to him there. [The father] admitted that there had been an argument and that he had stood over her. This was only because he was giving her the chance to hit him, which [the father] claims [the mother] has said in the past when she has continually verbally abused and swore at him.
66.The children saw and heard this event. The father deposed that B said to him “Daddy your [sic] the bad man. The police are going to take you away and lock you up”. The father said to B “Just keep out of it”. B had just turned five years of age. The father deposed that the mother must have coached B to call him a “bad man”. He would not concede that B might have formed that impression from the incident she had just observed.
67.He did concede that the children would have been terrified by the incident.
68.On 14 January 2014 the father consented, on a without admissions basis, to an Apprehended Violence Order (“AVO”) for the protection of the mother for a period of 12 months.
69.Dr G reported:
He [the father] seemed to have an irascible temperament and some obsessive-compulsive traits, being a good technician and liking order and routine. This does not make a person easy to live with as he would probably like things done in a certain way and would tend to use control as his way of dealing with the world when he was stressed.
At times in the past, he had drunk heavily, and at those times, with a loss of self-control, he had become physically violent and lost his temper with the mother, trying to grab her around the neck on at least two occasions.
70.Later in her report, Dr G described the father’s domestic assaults on the mother as “isolated incidents”. She was cross‑examined on this description by counsel for the ICL. She said she used this description because there was “only written evidence of two such incidents of choking”. She agreed that the mother had told her of other incidents of violence, but said that she was referring to evidence of injuries and police reports to substantiate the claims.
71.Dr G down played the incident where he father punched the wall, saying that such conduct only amounted to family violence if the mother’s head had been closer than three metres away. Asked whether the mother would have been affected by the incident Dr G said that she understood that the mother had carried on unaffected after the father punched the wall in the past. After continued questioning by counsel for the mother, Dr G accepted that the incident constituted family violence.
72.In cross-examination by counsel for the father, Dr G accepted that there were a series of complaints made by the mother to her general practitioner about her treatment by the father. She said she would give more weight to complaints of violence made prior to separation well before any suggestion of litigation, as was the case here.
73.Dr G accepted that the incidents of family violence were a concern in terms of the father’s ability to manage the children given that his parenting capacity is untested. When put to her that she was not able to form a view about the likelihood of the father being violent whilst raising the children because he has never done it, her response was “if he has got other people present, it’s much less likely to happen.” She said, if he does not have other people present, “then you can’t rule out that he might lose his temper.” Dr G said she could not rule out the possibility of the father being violent given his history.
74.The father’s initial denials of loss of control, coupled with his later admissions in cross-examination, lead to the conclusion that the father has perpetrated family violence and that his denials cannot be relied upon. It is not necessary to rule on each allegation but it is sufficient to say that I find that family violence occurred and that the incidents were more frequent and more serious than the father admitted.
THE ALLEGATIONS OF SEXUAL ABUSE
75.In April 2014 the mother was concerned that B was masturbating and spoke to B’s kindergarten teacher about her concerns.
76.Records produced by the NSW Police note that on 4 April 2014 the mother reported that when the children were returned to her care after a weekend with their father, their eczema was bad and she was concerned that the father had not been careful enough caring for the children’s skin when they were in his care.
77.On 4 April 2014, the mother telephoned the police who noted:
The incident the informant wanted to report to police was from Sunday the 30/04/2014 when her husband who she is separated from returned their children after being with him for the weekend with bad exscema [sic] which the [children] suffer from but it [sic] controlled by daily baths with a special soap which controls the condition. The informant is concerned that her husband is not being careful enough with caring for the condition when the children are in his care.
78.The mother deposed that, on about 5 April 2014, she was bathing the children when B said that her vagina was sore. The mother put cream on B and told her not to touch herself there. B said “Daddy showed me how to do it”. On 5 April 2014 the mother noted in her diary “getting out of bath … sore vagina”.
79.On 11 April 2014, the file produced on subpoena from the mother’s previous solicitors notes:
Conf with [JJ] stated that children saw father’s genitals. Not in room. Confirmed instruction to act on property only. … Suggested that any issues relating to children should be taken up with Dr, counsellor or child protection unit at Kids.
80.The mother deposed that on about 13 April 2014, she and B were in the kitchen at P Town when B started to poke her in her backside. The mother told B that she shouldn’t touch people there and B said “Daddy taught me”.
81.Also in April 2014, after the father had returned the children to their mother after a weekend, B said to the mother “Mummy, we were coming home and daddy drove to a service station and took me to a toilet. He pulled his pants down and removed his penis and said to me ‘look at my big fat penis’.”
82.The mother deposed that she was concerned but did not believe that the father would have done as B said.
83.On 13 April 2014, there was an initial assessment interview between the mother and Ms R of the S Family Centre. The notes of the initial assessment record:
[The mother] reported she is married for 10 years with two children and had domestic violence before the marriage and throughout the marriage. She said they have two daughters aged 5 and 3 years. She said on 1st of January this year her husband acted violently and it was another usual incident with thrashing things and pushing [the mother] and holding tightly her throat pushing her against a wall [sic], but that day her 5 yr old daughter told Dad not to hurt mum which made her take action by phoning the Police.
84.The notes further record:
[The mother] reported that on the 30th March after the girls got back from their dad’s house [B] said ‘Daddy took me to the bathroom at the service station and I saw daddy’s big fat penus [sic]’. [The mother] said she is frightened and today her 3 year old daughter said ‘I saw daddy’s big penus [sic]’. …
[The mother] reported that this incident reminded her that some years ago her friend who visited their house at the time told that her husband showed her [sic] penus [sic] to this friend and told her ‘look at my big fat penus [sic]’. She said also throughout her marriage he had not been a hands on father nor had any relationship with the children. She said he was on to internet porn things the whole time and she had seen him watching porn. She said lately her daughters are putting their fingers into the backside [sic] and also was trying to do the same thing to mum and nan. She said all of these are disturbing and took her back to an incident when [B] was about 2½ when they were at [T Shopping Centre] shopping she had a fight with her and disappeared with [B], [the mother] could not follow them as she was carrying [C] and other stuff in her hand and [the father] ran so fast. She said she took a cab and went straight home to find they were not there, but after a while they came back and [B] looked pale and worried. She reported that [B] started masturbation after that incident.
85.In cross-examination, the mother said that her neighbour, Mrs M, had told her that, on an occasion when Mr and Mrs M and the father and the mother were socialising in the hot tub, the mother left to get refreshments. Later, Mrs M told the mother that the father had exposed himself to her and said to her “Look at my big fat penis.”
86.The mother made a diary entry under the date 13 April 2014 which noted, “[C] skin sorn [sic]. [B] poking in bottom”.
87.On 23 April 2014, the mother contacted police in respect of an incident between her and the paternal grandfather. On that occasion the mother did not report to police the alleged disclosures made by the children on 13 April 2014.
88.On 10 June 2014, Ms R recorded, after a conversation with the mother:
She [the mother] reported that [B] when she was at her dad’s house had fallen from the bunk bed (top) and had swelling in the lower lumber back area. She said [B] never mentioned nor her dad reported to [the mother]. She informed that she knew about it when [B] was getting out of the car in the morning at school she made a painful noise and could not get out. [The mother] said immediately she was taken to see a doctor at [P Town] Medical Centre and was prescribed anti-inflammatory medication. [The mother] reported that [B] did not want to talk about it and hide the pain, but had to tell them at the doctors. According to [the mother] [B] has said dad knew about it but did nothing.
89.On 19 September 2014, the mother filed a Response in proceedings initiated by the father in the Federal Circuit Court seeking joint parental responsibility.
90.The mother deposed that, on about 3 November 2014, she saw B “touching her private parts and making a grunting noise”. She asked B what she was doing and B said “Daddy showed me how”. The mother’s diary entry for that date says “[B] in kitchen hands in pants … I said what are you doing … [B] shrug sholder [sic] I said it not nice thing to do … she told me Daddy shoed [sic] her how…”
91.On 10 November 2014, Ms R, noted a conversation with the mother. She recorded:
1.[The mother] reported on 3rd November in their kitchen [the mother] noticed [B] had her hand in her pants and when [the mother] asked “What are you doing [B]” [B] replied “Am I going to be in trouble” [The mother] said “No and it is not a nice thing to do” Then [B] said “daddy showed me when daddy has his track suit pants on.” [The mother] said which means he does not have his underwear on and that he wears track suit pants when he is going to sleep. According to [the mother] then [B] said “He was on [C’s] bed and [C] does it too.”
[The mother] said subsequently she asked [C] and “[C] straight away rolled over on her tummy and placed her hand on her vagina”.
2.[The mother] reported, on 7th November a few minutes before the girsl [sic] were to be picked up by their grandparents, they were waiting outside and [B] said she does not want to go which [the mother] said was normal. [The mother] said she went inside the house to get something while waiting and when she came back [B] has wetted in her pants [sic]. [The mother] said “This was strange as this has never happened”.
3.[The mother] reported, today [B] told her “Mum I have done a hot wee”. And [the mother] said she asked [B] “Have you been playing with your vagina” and [B] answered “Yes only at dad’s house”. [The mother] said they came back from dad’s after their weekend visit yesterday 9th November around 6.15pm.
92.The mother’s diary entry on 10 November 2014 indicated that she had a phone conversation with the father as the children “need counselling support”. Her note also reads “Ref September 8th”. The mother’s diary entry for 8 September 2014 states “mum hot wee … have you been playing with your vagina yes at Dads house … This happened on 10th Nov”.
93.The mother contacted the police on 12 November 2014. The police records note that at the time of the complaint, an AVO was in place between the father and the mother. The record states, inter alia:
According to [the mother], earlier in the year, date unknown, [the father] was looking after [the children] when [the father] … stopped in at an unknown service station and entered the toilets with both [the children]. Whilst in the toilet [the father] pulled his pants down and removed his penis, [the father] was standing facing towards [the children] and said, “Look at my big fat penis”.
…
On 5 April 2014 [B] got out of the bath and said to [the mother], “Mummy my vagina is sore”, [the mother] laid [B] onto a bed to look at her vagina, [the mother] stated [B] had red marks internally on her vagina and surrounding areas. [The mother] recorded this date in her diary.
On 13th of April 2014 [B] walked into the kitchen and started poking [the mother] in the bum, [the mother] asked why [B] was doing this to which she said, “daddy taught me”.
[The mother] stated several similar incidents occurred between April and now (November) [the mother] did not record all of these actions, [the mother] continued to tell police that [the children] did not want to go to their father’s and appeared nervous prior to going.
On Monday 3rd of November 2014 [B] was in the kitchen standing in the centre of the room with one hand down her pants playing with her vagina and making groaning noises. [The mother] straight away asked [B] what she was doing, [B] said, “Daddy showed me how”. [The mother] asked [B] if [C] was shown this as well. [B] told [the mother] that both her and [C] do this while with daddy. Later in the afternoon on the same day [the mother] approached [C] and said, “has daddy showed you how to do anything”, [C] ran to the bedroom and placed hands down her pants and played with her vagina.
94.On this occasion the police recorded that they did not see the children as they were asleep.
95.The mother attended upon her general practitioner, Dr V, on 11 occasions between April 2014 and November 2014. During those visits, the mother did not express any concerns about the children having inflamed or sore genitals or being sexually abused.
96.A Family Consultant, Mr U, interviewed the family and produced a Child Dispute Conference Memorandum dated 5 December 2014. Mr U carefully set out the concerns raised by each parent in relation to the children. The mother told Mr U that B had not been doing well since the incident on 1 January 2014 when the police were called and that C had been “clingy” and her behaviour was difficult to manage. No concerns about sexual abuse were reported to Mr U.
97.On 18 December 2014, the parents entered into final Consent Orders which provided for the parents to have equal shared parental responsibility for the children, for the children to live with the mother and to spend time with the father on alternate weekends from Friday to Sunday as well as Friday afternoon in the alternate week, and for half of all school holidays.
98.The father’s reasons for entering into those orders, having regard to the litany of criticisms he now makes about the mother’s parenting, are unexplained. The mother’s reasons can only be explained by her evidence that she had been told by lawyers that raising allegations about child abuse might lead to her losing the care of the children.
99.The mother deposed that on about 29 March 2015, after the children returned from a weekend with the father, B said to her “Dad has not touched my vagina but made me play with my vagina whilst he played with his penis.”
100.The mother deposed that after that event, B’s psoriasis and eczema worsened and she interpreted this to mean that B was stressed. She took B to see her general practitioner, Dr V, on 31 March 2015. Dr V’s notes record the reason for the consultation being B’s eczema.
101.After B saw Dr V, as the mother and B were walking to the chemist to get medication prescribed for B, she said to the mother “Mummy, daddy is being naughty again”. The mother asked B what she meant and B said “Mummy, Daddy has been playing with my vagina again”. The mother took B back to Dr V.
102.Dr V recorded that B returned at 6.00 pm with her mother. Dr V noted:
Was advised by her mother to tell me what she had told her just earlier today.
-vagina stings since dad touched it when she was going to bed at [Ms W’s] house
I called [the mother] back in the room and asked [B] to repeat what she had said which she did
I then asked her what she meant by vagina and she then pointed to her genitalia
According to [the mother] they were at the chemist after seeing me earlier today when [B] stated her vagina was stinging as dad has touched it.
103.Dr V referred the mother and B to X Hospital that evening.
104.On 31 March 2015, Ms R made a report to the Department of Family and Community Services (“DFCS”). The mother had told Ms R that she had taken B to X Hospital but had not received any feedback in relation to the outcome of the examination. Ms R reported:
[The mother] reported that [B] is acting out and have [sic] aggressive behaviour at home and school and her school work “has fallen to pieces” she advised that [B] has been defiant at home which is out of character. [The mother] said school has spoken to her about [B] [sic] behaviour and their concern that she appears to lack interest in school work or her school friends. She said that the Deputy Principal has advised her that [B] has totally shut down, she sits there and does not talk, disappears into woods. When her teacher talks to her she puts her hands over her ears and her head on the desk or falls to the floor. According to [the mother], teacher has informed her that [B] appears to sit in a ‘blank’ state throughout the day, this has been noted to be the same response she presents when a teacher touches her.
105.In the material produced by DFCS is an Assessment Record dated 31 March 2015 that contains information received by DFCS from NSW Health. The notes record:
Caller said that both girls made past disclosures to mother who was advised by her solicitor not to do anything about it because it would get in the way of present proceedings for property settlement. Mother was also advised by her solicitor that she will get in trouble if she stops fathers access to the children and to get the property settled first.
106.From the DFCS notes it appears that the call was made by the “GP”, presumably Dr V.
107.B was interviewed by the Joint Investigation Response Team (“JIRT”) in the early morning of 1 April 2015. There is no transcript of the interview, however a summary is provided in the file of DFCS. The summary discloses:
The interview began at 13:31. [B] appeared competent in her understanding of truth and lies and made an agreement to only talk about the truth during the course of the interview. She agreed to the interview being audiovisual recorded and did not require a support person.
When asked what she had come to talk about, [B] said she did not know. When [the interviewer] said, “someone told me you were at the hospital”, [B] said she had a sore vagina. With further questioning she said she was at the hospital as it was stingy, and it was stingy as her dad touched it when she was at [Ms W’s] having a sleep over there for two nights.
When the allegation was framed, [B] said it all started on Friday when school had finished. She said she had got dressed, went with grandma and grandpa and had one sleep over at their home. She said the next day she had a sleep over at aunty [Ms W’s] and her Dad touched her vagina in the morning, and then they had a party for [Y] and played lots of games.
When asked for more information about her Dad touching her vagina she said she was sleeping in the night and it was stinging a lot. She said she was sleeping in the middle of the bed. [B] drew a location diagram of the bedroom she slept in. There was a bed in the middle of the room, and two bunk beds. Also in the room was a TV and boxes, four windows and a sliding door at the entry of the room.
When the location drawing was completed [the interviewer] asked about being in bed and having a stinging vagina. [B] said it was stinging in the bed and when she was at the shops. She said her mum talked and they went to the doctor’s and then they went to the hospital. She was unable to provide any further context to her father touching her vagina. When suggestive and leading questions were asked she could not provide any detail to what her Dad did or how he touched her vagina. Furthermore, she did not know what he did with his finger when it touched her vagina nor did she know how she felt. She said she was wearing pyjamas and he touched her on the outside – there was no skin to skin touching, however she later said she was not sure if it was the outside of her pants. She said her vagina was stinging before her Dad came into the bedroom, but later said it was stinging after he left. She was able to provide details of what she and her Dad was wearing [sic].
When a body chart was utilised [B] said her dad had touched her on the vagina, however there was no further context provided. She said her mum puts oil/soap on her vagina, but her dad does not put anything on it.
When [B] was asked about her dad showing her something she said, “put my hand on my vagina and then open and shut my legs” and physically put her hands between her legs. She said she did not know when the last time was or where she was when he taught her and when asked specific questions she repeatedly said “I don’t know”.
With regard to whom [B] had spoken to about the allegations she said she told her mum, but didn’t know what she had said, but had told her on the next Monday when they were in her bedroom.
108.After the interview with B was concluded, the officers spoke to the mother. The file notes indicate that the mother was told that JIRT wished to reinterview B. The file note concluded:
All observations of [the mother] and the children were positive. There were no concerns noted. She stated that she just wants to protect the girls and is concerned that they are feeling confident in telling her what’s happening despite being scared of their father however if she keeps sending them to contact and something is happening they may close off and not tell her.
109.The file note does not suggest that the mother was told anything about what B had said during the interview.
110.B was again interviewed by JIRT on 8 April 2015.
111.There is no transcript of the interview with B by JIRT on 8 April 2015, although some handwritten notes are available. The summary of the interview states:
When [B] was asked what she and [the interviewer] spoke about last week, she said her vagina was stinging as her father touched it when she was at her aunties [sic]. She said she was sleeping at her grandma’s house and during the night he touched her on the vagina. She said the next morning it was not stinging but when she was going home and at home with her mum it as [sic] stinging. She said she was in bed and her sister, [C] was also in the room in bed and her father had come in the room and touched her on the vagina. She did not know how he touched her on the vagina as she was fast asleep, but knew he had touched her vagina as it was stinging the next morning. She said this was the only time her vagina had been stinging and her dad had only touched her on the vagina this once when she was asleep.
112.After the interview, JIRT spoke to the mother. The notes record:
The mother was advised the information [B] disclosed during this interview was different and not consistent with the disclosures she made during the first interview. [The interviewer] mentioned the mother had not told him the children were subject to FLC orders following the first interview as the FLC orders supersede AVO’s, the AVO will be withdrawn. He advised the mother to make contact with her solicitor. [The interviewer] advised he is intending to interview the father regarding the allegations.
113.The father was interviewed on 9 April 2015. The father told the interviewer that on the weekend in question he had slept in a double bed with both of the children. He denied any inappropriate behaviour.
114.Shortly after B was interviewed by JIRT on 8 April 2015, the police applied for an AVO for the protection of both children against the father. The application was granted, I assume provisionally. When the matter was again listed at the Local Court, the application was withdrawn.
115.The mother’s diary entry on 19 April 2015 noted “girls came home … red eyes no sleep … 2 hash brown dinner … [C] would not sleep 930 my bed”.
116.On 21 April 2015, Ms R spoke to DFCS. Ms R reported, inter alia, “The mother raised concerns regarding [B’s] schooling as she was reported to be switched off and not performing academically.”
117.Ms R also reported “The mother had reported a friend told her, the father had shown her his penis when they had been at a party and he had said, ‘look at my big fat penis.’ The mother claimed the father watched internet porn.”
118.On 28 April 2015, Ms Z, a JIRT Senior Health Clinician, prepared a report about her conversation with the mother on 1 April 2015. She reported:
[The mother] spoke of being happy to have someone talking to the children since she has been worried about the girls possible [sic] being sexually assaulted by there [sic] father, however felt powerless in doing anything in light of information given to her by her solicitor about not causing any issues/trouble until the family house is sold.
261.The P Town property was sold in 2015 and the net proceeds of sale placed in the trust account of the husband’s solicitors. The current balance of the trust account is $312,452. Each of the parties has received $100,000 by way of interim property settlement.
262.The only other significant asset of the marriage is the husband’s superannuation. It was agreed between the parties that the superannuation entitlement should be equally divided between them.
263.The husband contended that the proceeds of sale held in his solicitors’ trust account should be divided as to 55 per cent to him on the basis that he would be found to have made 65 per cent of the contributions, and that there would be an adjustment in favour of the wife for s 75(2) considerations, of the Act, of 10 per cent.
264.The wife contended for a division of 60 per cent in her favour. On her behalf it was submitted that contributions should be assessed as to 55 per cent in favour of the husband with an adjustment in her favour of up to 20 per cent for s 75(2) factors, of the Act.
265.At the commencement of submissions, the parties handed up an agreed joint Balance Sheet.
266.Their assets and liabilities are as follows:
Funds in trust account $312,452
Husband’s IAG shares $ 4,412
Husband’s vehicle $ 15,000
Wife’s bank accounts $ 2,814
Total $334,678
Less loan from husband’s father $ 41,000
Net assets $293,678
267.The husband has superannuation of $177,944 and the wife has superannuation of $3,821.
268.The husband made the greater contribution. His initial contribution of $332,000 towards the purchase of their home is significant. I accept that some 14 years has passed and that, since the birth of the children, the wife has also made a significant contribution as home maker and parent.
269.During the relationship, the husband worked long hours and provided the sole financial support of the family. As a consequence, the wife bore the responsibility for the care of the children and the home in his absence.
270.The husband has continued to contribute to superannuation since separation but during that time the wife has had the care of the children.
271.I assess the contribution of husband to be 60 per cent, primarily because of his significant initial contribution.
272.The husband will continue in employment. Although he deposed that he works on average for 20 hours each week, his mother, with whom he lives, gave evidence that he is working longer hours, leaving home on weekdays at about 6.00 am and getting home between 4.00 pm and 5.00 pm. It may be that the husband has not been entirely frank about his ability to earn. His income in the last financial year was in excess of $50,000.
273.The wife has no capacity for paid employment.
274.Although the parties have agreed to split the husband’s superannuation, the husband will have the opportunity to continue to work and make contributions to superannuation. The wife does not.
275.The wife will have the responsibility to house herself and the children, and to pay commercial rent. The husband lives with his parents and gave evidence that he has no plans to leave their house. He does not pay rent.
276.In those circumstances, a further adjustment of 15 per cent in favour of the wife is appropriate.
277.Thus the wife will receive 55 per cent of $293,678 or $161,523 and the balance of the funds in the trust account will be paid to the husband. She will also receive half of the husband’s superannuation entitlements, namely $88,972.
I certify that the preceding two hundred and seventy-seven (277) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 May 2017.
Associate:
Date: 11 May 2017
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Jurisdiction
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