BIRKETT & HEMSLEY
[2014] FCCA 1568
•25 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIRKETT & HEMSLEY | [2014] FCCA 1568 |
| Catchwords: FAMILY LAW – Property settlement – assessment of contributions – impact of husband's family violence on wife's non-financial contributions. |
| Legislation: Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 65DAC(3), 68C, 75(2), 79 |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422 (2006) FLC ¶93-296 Stanford v Stanford [2012] HCA 52, (2012) 47 Fam LR 481 (2012) FLC ¶93-518 Watson & Ling [2013] FamCA 57, (2013) FLC ¶93-527 Hickey & Hickey A-G for Commonwealth (Intervener) [2003] FamCA 395, (2003) 30 Fam LR 355, (2003) FLC ¶93-143 C & C [2005] FamCA 429, (2005) 33 Fam LR 414, (2005) FLC ¶93-220 Kennon & Kennon (1997) FamCA 27, (1997) FLC 92-757, (1997) 22 Fam LR 1 |
| Applicant: | MS BIRKETT |
| Respondent: | MS HEMSLEY |
| File Number: | PAC 3156 of 2011 |
| Judgment of: | Judge Halligan |
| Hearing dates: | 3, 4, 5 September 2012, 6 March 2013, 24 May 2013, 21 October 2013, 21 March 2014, 11 April 2014 |
| Date of Last Submission: | 11 April 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 25 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Matthews Folbigg Pty Ltd |
| Counsel for the Respondent: | Mr Cairns |
| Solicitors for the Respondent: | McAuley Hawach Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Murphy |
| Solicitors for the Independent Children’s Lawyer: | Stephen Bell & Assoc |
ORDERS
All prior parenting orders in relation to the children X born on (omitted) 2004 and Y born on (omitted) 2006 are discharged.
The children shall live with the wife.
The wife shall have sole parental responsibility for the children.
The husband shall spend time with the children on the first Saturday of each calendar month from 9am to 5pm, changeovers to occur at the (omitted) Contact Service.
Both parties shall forthwith do all things and sign all documents necessary to seek to engage with the (omitted) Contact Service for changeovers to occur in accordance with these orders.
Each of the parties shall comply with the terms of any service agreement entered into with the (omitted) Contact Service, and shall comply with all reasonable requests by staff of the Service.
The husband shall strictly comply with the requirements of the (omitted) Contact Service as to the times of his attendance at the Service and as to his entering and leaving the Service’s premises, and shall not loiter near or be within 200 metres of the Service’s premises on days he is to spend time with the children other than to travel directly to and from the Service’s premises at the times nominated by the Service.
If the (omitted) Contact Service is unwilling or unable to facilitate changeovers under these orders on any occasion, the husband's time with the children shall be suspended on each such occasion.
The husband may communicate with the children by sending cards, letters and presents for the children to the wife, and the wife shall ensure the children receive all such communications unless they denigrate the wife.
The husband is restrained from denigrating the wife or any member of her household or family in the presence or hearing of the children or in any communication for the children sent to the wife pursuant to these orders.
The husband is restrained from-
(a)assaulting, molesting, stalking, intimidating, harassing, abusing or denigrating the wife;
(b)coming within 500 metres of any place at which the wife resides or works;
(c)approaching the wife;
(d)contacting the wife by any means other than strictly in accordance with these orders or via his solicitor; and
(e)approaching or contacting any school or care facility, including out of school hours care facility or vacation care facility, at which the children attend.
The preceding order is an injunction made pursuant to section 68B, Family Law Act 1975, for the personal protection of the wife and the children, and the provisions of section 68C, Family Law Act 1975, apply to it.
The husband is restrained from consuming alcohol for 24 hours before the children come into his care, and while the children are in his care.
Both parties shall forthwith do all things and sign all documents necessary to cause the funds held by the husband's solicitors in a controlled moneys account to be paid to the husband.
Each of the parties is at liberty to provide a copy of the Court Expert’s Report to any psychiatrist, psychologist or counsellor they may consult.
Within two months, the wife shall-
(a)pay to the husband the sum of $61,438; and
(b)cause the debt secured by the mortgage on the parties’ former matrimonial home at Property N, being the whole of the land in Folio Identifier (omitted), to be paid in full and the mortgage to be discharged.
Simultaneously with compliance by the wife with the preceding order, the husband shall do all things and sign all documents to transfer to the wife all of his interest in the former matrimonial home.
If the wife fails to pay the sum of $61,438 to the husband in accordance with these orders, or fails to cause the loan secured on the former matrimonial home to be paid out and the mortgage discharged in accordance with these orders, then both parties shall do all things and sign all documents necessary to cause the former matrimonial home to be sold and to cause the net proceeds of sale, after discharge of the mortgage and payment of all legal fees and other costs of sale, to be divided as to 15.25% to the husband and the balance to the wife.
The wife shall be solely entitled as against the husband to her superannuation interest, the contents of the former matrimonial home, and the parties’ caravan.
The husband shall do all things and sign all documents, if any, necessary to transfer his interest in the contents of the former matrimonial home and the parties’ caravan to the wife.
The husband shall be solely entitled as against the wife to his superannuation interest.
Otherwise each party shall be solely entitled as against the other to any property in his or her respective possession, custody or control.
If a party fails or refuses to sign a document required to be signed under these orders, then pursuant to section 106A, Family Law Act 1975, the Registrar or a Deputy Registrar may design the document on behalf of the party.
IT IS NOTED that publication of this judgment under the pseudonym Birkett & Hemsley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT PARRAMATTA |
PAC 3156 of 2011
| MS BIRKETT |
Applicant
And
| MS HEMSLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contested parenting and property settlement proceedings under the Family Law Act 1975.
In relation to parenting, the wife seeks orders that she have sole parental responsibility for the parties’ ten year old daughter and seven year old son, that the children live with her, and that the husband spend no time and have no communication with the children. In the alternative, if the court “deems safe”, the mother proposes that the father spend time with the children on four occasions a year supervised at a specified contact centre for up to two hours, at times nominated by the contact centre and if possible on the first weekend of February, May, August and November.
The wife sought an injunction restraining the husband from-
a)denigrating her or any member of her household or family in the presence or hearing of the children;
b)assaulting, molesting, stalking, intimidating or harassing her;
c)coming within 500 metres of her residence or place of work;
d)approaching or contacting her; and
e)approaching or contacting any school or care facility (including Out of School Care or Vacation Care) at which the children attend.
The injunctive orders the wife sought were expressed to be for the personal protection of herself and/or the children, and hence sought that the provisions of section 68C apply to them. That is, the wife sought to attract the power of arrest without warrant for the injunctive orders if the husband breached them in the manner referred to in section 68C.
The husband’s position ultimately was to support the parenting orders sought by the Independent Children's Lawyer.
The Independent Children's Lawyer proposed that the wife have sole parental responsibility for the children, but that she consult with the husband and endeavour to reach agreement about major long term decisions before exercising parental responsibility. The Independent Children's Lawyer also proposed that-
a)the children live with the wife;
b)the husband abstain from alcohol for “at least 12 months” and not consume any alcohol in front of the children;
c)the husband attend on his psychologist for ongoing therapy for alcohol dependence, anger management and “personal relationship issues” for not less than two years at a frequency recommended by his psychologist, the psychologist to receive a copy of the court expert’s report;
d)the husband attend and complete an anger management group program conducted by one of three specified program providers;
e)for two years the husband undergo monthly CDT (carbohydrate-deficient transferrin) blood tests to check alcohol consumption, and provide the results of the tests to the wife's solicitors together with a letter from his general practitioner explaining the results;
f)the husband spend time with the children-
i)for a period of three months, for four hours each Saturday or Sunday as agreed by the parties, with changeovers at a specified contact centre;
ii)then for a period of four months, for eight hours each alternate Saturday or Sunday as agreed by the parties, with changeovers at the contact centre;
iii)then for a period of three months, from after school Friday to 5 pm Saturday each alternate weekend, with changeovers (presumably only at the end of the husband's time) at the contact centre;
iv)then for a period of three months, from after school Friday to 5 pm Sunday, with changeovers (presumably only at the end of the husband's time) at the contact centre;
v)thereafter, from after school Friday to before school Monday each alternate weekend, the husband to collect the children from and return the children to school, or if not possible, then changeovers to occur at a venue agreed by the parties; and
vi)commencing in 2016, for half of all school holidays as agreed by the parties, or failing agreement in the first half in even years and the second half in odd years;
g)the wife continue to attend on her current therapist at a frequency as recommended by the therapist but at least every three months, for a period of at least two years, and that the wife's therapist receive a copy of the court expert’s report;
h)neither parent use any hostile or derogatory language or behave in an intimidating or verbally or physically aggressive manner towards the other in person or by any other means of communication;
i)the parties communicate about the children by email and mobile phone text message, and only communicate by phone (presumably verbally) in an emergency;
j)the wife keep the husband informed about all medical matters concerning the children, including detailed information about the children’s treating doctors or other professionals to enable the husband to contact them;
k)the wife authorise the principal at the children’s schools to forward the husband copies of all school reports and notices;
l)
the husband be at liberty to attend any events involving the children during his time with the children, and after one year, the husband be at liberty to attend any school or sporting events involving the children, the husband to inform the wife at least
12 hours in advance if he intends attending any such event; and
m)each party be restrained from making any critical or derogatory remarks about the other in the presence or hearing of the children.
In relation to property settlement, the wife sought that funds in a controlled moneys account be paid to the husband after payment of any sums outstanding to the Court Expert, that the husband transfer to her his interest in the former matrimonial home at Property N and she discharge the mortgage secured on that property, that she retain the contents of the home and a caravan, and that otherwise each party retain property in his or her respective possession.
The husband sought that the funds in the controlled moneys account be paid to him, that he transfer his interest in the former matrimonial home to the wife, that the wife discharge the mortgage on the home, and that the wife pay him $110,000. The husband agreed to the wife retaining the contents of the home and the caravan, and otherwise proposed that each party retain property in his or her possession. The husband did not seek orders in the event that the wife failed to pay him the $110,000 he sought or failed to discharge the mortgage as he sought.
Background
The wife is 47, having been born on (omitted) 1967, and the husband is 48, having been born on (omitted) 1966. The parties commenced cohabitation in about September 2000 (according to the husband) or in late 2000 or early 2001 (according to the wife) and married on (omitted) 2001. They finally separated on 17 June 2011.
The parties’ children are X, born on (omitted) 2004, and Y, born on (omitted) 2006.
Interim parenting orders were made by consent on 25 August 2011 providing that the children live with the wife, spend time with the husband at a contact centre for two hours a fortnight, and communicate with the husband by telephone or Facetime for up to 30 minutes two days a week and on 1 September, and by the husband forwarding the children letters, cards and gifts by post or via the wife's solicitors. Those orders also restrained each of the parties from denigrating the other in the presence or hearing of the children, and restrained the husband from approaching or contacting the wife or the children other than as permitted under those orders.
The interim orders of 25 August 2011 were varied by further interim consent orders made on 13 December 2011, which discharged the order for telephone and Facetime communication, increased the father's time with the children at the contact centre to two hours each weekend subject to the wife having the option of nominating one Saturday in each school holidays when the father's time would be suspended, and it being suspended on three other specific dates each year, and provided for telephone communication between the father and the children once a week. Otherwise, the interim orders of 25 August 2011, including the restraint on the husband approaching or contacting the wife or the children other than in accordance with the court’s orders, continued in force.
After addressing the credit of the witnesses, I will deal with the evidence relating to parenting issues, determine what parenting orders are in the children’s best interests, then proceed to deal with additional evidence relevant to the property settlement issues and determine what property settlement orders should be made.
Credit of witnesses
The witnesses, apart from the parties, were Ms R, a witness in the wife's case, and the Court Expert, Dr K.
No issue arose as to Dr K’s credit as a witness.
No submission was put to the court on behalf of the husband or the Independent Children's Lawyer that the wife's credit was successfully challenged. I accept her as generally being a reliable witness.
No issue was raised in submissions on behalf of the husband or the Independent Children's Lawyer about Ms R’s credit, and I accept her as a reliable witness whose evidence should be accepted.
I am satisfied the husband’s general credit as a witness was successfully challenged, and that his evidence cannot be accepted where inconsistent with any other credible evidence. He repeatedly gave inconsistent and contradictory answers, even denying he had given certain answers to questions asked of him only minutes before.
The husband denied any family violence against the wife, denied that he had ever drunk to excess during the parties’ marriage, except on one occasion, and denied having an anger management issue. Yet he consulted with a psychologist over a significant period of time for assistance in relation to alcohol abuse and anger management. The husband asserted he addressed alcohol consumption with the psychologist because the wife suggested he had an alcohol problem, and while he did not have an alcohol problem he sought assistance to ensure one did not arise. Similarly, he asserted he addressed anger management issues with the psychologist as a preventative measure only, denying he had an anger management problem. However, he then admitted to a series of incidents he had been involved in that he admitted demonstrated he did have an anger management problem. And he ultimately admitted in cross-examination by counsel for the Independent Children's Lawyer, after steadfastly denying it when it was repeatedly put to him by counsel for the wife, that he had had a drinking problem.
These are but a few examples of repeated instances where the husband's evidence was shown to be totally unreliable. The husband repeatedly in cross-examination denied matters and then admitted them only when evidence of those matters was put to him.
I am satisfied that on occasions the husband deliberately gave false evidence, but on others I am concerned that his presentation and his evidence is entirely consistent with Dr K’s opinion about the husband's memory being significantly affected by a serious drinking problem.
I therefore generally prefer the wife's evidence over the husband's wherever their evidence differs, and specifically I accept her evidence as to the family violence perpetrated on her by the husband and as to the frequency and effect of the husband's drinking, despite a successful challenge to one aspect of her evidence as to the quantity the husband drank.
The evidence
Care of the children before separation
Both parties were in employment during their cohabitation, although the wife took maternity leave around the time of the birth of each child, for eight months when X was born and eleven months when Y was born.
The husband asserted that while the parties were together, he prepared the children’s breakfast “every weekday morning”. In fact, I am satisfied that this only occurred in about the last year of the parties’ cohabitation. I am satisfied that when the husband took over the preparation of the children for school in the morning from the wife, he struggled to manage the children when doing so, being intolerant of any disobedience or tardiness in the children getting ready and easily becoming frustrated and angry with them.
The husband painted a picture in his evidence in chief of a devoted and loving father committed to the care and protection of his children with the wife being pre-occupied with her own pursuits and having a drinking problem, leaving him to provide stable and protective care for the children. While I am satisfied, and the wife now acknowledges, that the wife's drinking on occasions was “hazardous” as described by Dr K, the wife was the victim of serious and persistent family violence by the husband, to an extent that compromised the wife's parenting capacity. I am also satisfied that the husband's drinking was far more serious an issue than the wife's. Rather than the husband being the parent attempting to provide a safe and stable environment for the children despite the parenting failings of the wife, I am satisfied it was the wife who had to attempt to provide a safe and stable environment for the children despite the husband's very serious drinking problem and his serious and persistent family violence against her.
I accept the wife's evidence where it conflicts with the husband's, and find that the wife was primarily responsible for all aspects of child care with assistance from the husband. The parties equally shared dropping the children off to and collecting them from childcare and school when the husband was not away with his employment as a (occupation omitted). The husband also assisted the wife with the washing, cleaning up after meals, and on occasion preparing meals. However, there were significant periods of up to two weeks at a time when the husband did nothing at all to assist with the children and simply sat on the couch or lay in bed when not at work.
Care of the children after separation
Immediately after separation, the parties agreed to the husband spending time with the children on two Mondays from 6.00 pm to 8.00 pm, on one Tuesday from 5.45 pm to 7.15 pm, and on one Wednesday and one Thursday from 5.30 pm to 7.30 pm. The wife insisted on the husband's time being supervised, and her preferred supervisor, a mutual friend of the parties, was present on the first four occasions agreed to. On the fifth occasion, the children were received by the agreed supervisor’s partner at the commencement of the husband's time, and were returned to the wife by the agreed supervisor. However, X subsequently advised the wife that the husband was not present for much of the time, only coming later, and that the children spent most of the time in the sole company of the supervisor’s partner.
This made the wife very anxious, and lead her to believe that the agreed supervisor and her partner did not understand the very serious nature of the wife's concerns, so she withdrew her agreement to them supervising the husband's time. It is not entirely clear what the basis was for the wife's concern and belief, as there was no suggestion that the husband had been left with the children unsupervised at any time.
The husband saw Y at his child care centre for a short period on 7 July 2011, without the wife's prior knowledge. The child in the opinion of child care staff appeared pleased to see his father. This was the only occasion the husband spent any time with either child after the wife stopped the husband's time shortly after separation, until interim parenting orders were made on 25 August 2011.
Since the interim orders were made on 25 August 2011, the husband has seen the children at the contact centre initially in accordance with those orders, and then in accordance with the variation to the orders made on 13 December 2011. The husband has also had communication with the children in accordance with the interim orders.
During the husband's supervised visit with the children at the contact centre on 14 January 2012, the husband was heard by the supervisor to tell X to tell her mother that the husband was having the caravan back. When the supervisor interjected and asked the husband not to pass messages through the children, the husband reacted angrily in front of X telling the supervisor-
“Don’t tell me what to do and I am sick of this”.
The husband then went to complain to another contact centre staff member, during which he could be heard where the children were speaking in a raised voice. The other staff member also tried to explain to the husband that it was inappropriate to pass messages to the wife through the children. When doing so, she smelt stale alcohol on the husband's breath, as they were standing quite close together. The husband had said on arrival that he was unwell, complaining of a bad headache and feeling dizzy.
In January 2013 during a supervised visit at the contact centre, the husband became concerned about the state of Y’s shoes. The husband took photos of the child’s shoes, and then kept the shoes, forcing Y to return to his mother in his socks without any shoes. He suggested he did this so he could use the shoes in evidence. Presumably, the husband wanted this as evidence of neglect of the children by the wife. But the husband proposed that the children continue to live primarily with the wife. In any event, he did not seek to introduce either the shoes or photos of them into evidence in his case. The husband on this occasion displayed a total disregard for the child’s needs, and was either oblivious to or uncaring about the effect on Y of what he did. He accepted in cross-examination that what he did was inappropriate.
I accept the wife's evidence that the husband has verbally abused the wife and has inappropriately sought to involve the children in the parental conflict during his communication with the children, including-
a)On 21 September 2011 the husband told X to ask her mother when he could come home;
b)The husband said to the children that he wanted them to come over and visit but it was up to the wife;
c)During a Skype call on 11 December 2011, when the wife encouraged X to tell “him”, that is the husband, about her new toy, the husband responded “‘Daddy, Ms Birkett, get it right, fucking Jesus Christ, no wonder the poor kids are sick”;
d)Also on 11 December 2011, the husband told Y that he had been crying the previous night because Y was upset the previous Saturday, suggesting the child had wanted to go to the husband's house to put up Christmas decorations, something that was impermissible under the interim orders of 25 August 2011;
e)During the same Skype call, the husband told the children he would take them camping at Christmas, which was impermissible under the interim orders of 25 August 2011, and when the children told him they could not go camping with him as they were going camping with the wife, the husband contradicted them and said they were going camping with him, adding that he was going to get the caravan, that was at the former matrimonial home, back “on Tuesday”, telling the children to tell the mother to get a named person to “bring it back”
These incidents demonstrate the husband's inability to understand the need for the children to be sheltered from the parental conflict. It is also concerning that the husband showed on these, and on other occasions to be mentioned later, a disregard for orders designed to protect the wife and the children.
Family violence
The wife alleged that throughout the parties’ marriage, she was subjected to physical and verbal abuse by the husband. She alleged that this frequently occurred when the husband in her opinion was intoxicated.
The husband denied the wife's allegations, asserting he had “never abused (the wife) in any way” and had never told the wife he was suicidal. He denied ever considering self-harm or committing suicide. All these denials are patently false.
Despite it being part of the husband's case that he was so remorseful for what he did on the day of separation that he resolved not to drink alcohol again, the husband gave no evidence in his case of what he did on that occasion to make him so remorseful, and it was part of his case that he was a responsible drinker who never drank to excess. His attempts to reconcile these positions during cross-examination further demonstrated his lack of candour and honesty under oath.
Despite alleging that the wife had verbally abused him and the children during the marriage, it was not part of the husband’s case that the wife had perpetrated any family violence.
I will deal with each particularised incident the wife alleges was family violence, and make findings separately in relation to each incident.
“Family violence” is defined in section 4(1), Family Law Act 1975. Relevantly for these proceedings, which commenced before the commencement of amendments to that definition effected by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2012, the definition is-
“family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note:A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”
End of 2001
Towards the end of 2001, the parties had been out with a friend of the wife’s. Both parties had been drinking. They were being driven home by the wife's friend when the parties argued, and thereafter the husband made his own way home, arriving before the wife. As the wife began to open the front screen door of the parties’ home, the husband charged at the front door to prevent her entering, swearing, telling her he wanted a divorce and she was not to come in. She ran back to her friend’s car chased by the husband. She got in her friend’s car and locked the door, and the husband ran up to the car “screaming” he wanted a divorce and swearing, calling her a liar, and was hitting the car window. The wife’s friend drove off with the wife, who stayed elsewhere that night. The following morning the husband rang the wife and apologised, and she went back home.
I am satisfied this was an incident of family violence, being actual conduct by the husband towards the wife that reasonably caused her to fear for her personal safety, as evidenced by the wife fleeing to the protection of her friend’s car to seek to escape the husband's aggressive and threatening behaviour and verbal abuse.
In 2003
Shortly before the wife was pregnant with X, that is in 2003, the husband accused the wife repeatedly of being unfaithful, which she denied. The husband picked up a hammer and moved towards the wife in a menacing fashion. The husband said that he was going to smash the wife's stereo, but the wife, not unreasonably in my view, was fearful he was going to hit her, so she left.
I am satisfied that this was an incident of family violence by the husband against the wife.
Late 2004/early 2005
In late 2004 or early 2005, when X was a baby and not yet walking, the parties went camping on the (omitted), where the husband met a man from (country omitted) the first night. The wife could hear the husband and his new friend talking until 4 am, and the husband was drinking steadily and was intoxicated. The wife heard other campers asking the husband and his new friend to be quiet, and the husband became belligerent, telling those complaining they could not tell him what to do and inviting them to try and stop him.
The following morning the wife accused the husband of breaking his promise not to drink, and he accused her of lying and denied he had a drink. At that time the husband was holding a knife in the course of preparing some food, and he brandished the knife in the wife's direction. The wife was scared and left the area.
The wife then did not know where the husband was for some hours. He returned, telling her he had been to the hotel. The wife got the car keys while the husband went to the toilet and put X in the car and began to quickly pack up the clothes. The husband returned and removed X from the car, swearing and telling the wife she was not taking his child. The wife was scared, and drove to the reception area for the camping ground, some little distance away, to call the police.
The police attended some hours later. The husband had X all that time. The wife gave a statement to the police and asked them to get X, who was then being breast fed. The police escorted her to the camp site and the husband gave X to her. He was polite and charming to the police. The wife took X and stayed in a motel that night. The husband promised her again to stop drinking and she returned to the parties’ home.
I am satisfied the husband's behaviour on this occasion amounted to family violence, causing the wife reasonably to fear for the safety and wellbeing of both herself and X.
About June 2005
In about June 2005, the husband went out all Friday night, most of Saturday and Saturday night, and on Sunday. When he returned the wife could tell he had been drinking. When the wife told the husband she had been worried and enquired where he had been, the husband became verbally abusive, accusing the wife of having an affair, and pushed her with both hands to the chest causing her to fall backwards into the hall. She had a sore back for a week. She did not report this incident to police or seek medical attention.
I am satisfied that on this occasion the husband physically assaulted the wife, and that this was another incident of family violence perpetrated by the husband on the wife.
June 2007 (in (country omitted))
The parties and the two children went to (country omitted) in June 2007 to visit the father's family. At a time when they were staying with a couple who were friends of the husband, the husband said he was going out to buy a stamp and was gone for six hours, returning very intoxicated, slurring his words, and unable to walk properly. The husband came up to the wife, swore at her and verbally abused her, and accused her of having an affair. The male friend of the husband intervened and told the husband if he did not shut up he would punch him as he was “out of line”. The wife was scared and took the children into the bedroom.
I am satisfied this was an incident of family violence by the husband on the wife.
During the same holiday, when the parties and the children were staying in a youth hostel, after dinner one night the husband said he was going downstairs to watch TV. After being gone several hours, the wife went downstairs and found that the husband was not watching TV. He returned about four hours later. When she asked him where he went, the husband became very angry and was yelling. The wife asked him to stop as he would wake the children. She moved into the stairwell so the children could not hear, and the husband approached her, grabbed her by the throat and lifted her into the air. The wife thought she was going to die. The husband let her go. She had red marks on her neck, which was sore for a week. She did not report this incident to police.
The next day, when the wife raised the incident with him, the husband said he could not remember it.
The husband said in cross-examination that during the marriage the wife had on various occasions told him he did things when he had been drinking that “displeased” her, including that he pushed her, called her names and was loud, and he could not remember these incidents occurring and did not know what she was talking about. When the specific choking incident was put to him, the husband at first denied that the wife raised with him that he tried to strangle her the night before, but after further testing on this issue, admitted he could not remember whether or not the wife had raised this matter with him and hence could not deny that the wife raised this with him.
I am satisfied this was an incident of very serious and life threatening family violence by the husband on the wife. It is also an example of what Dr K referred to as “blackouts”, that is, an inability to recall recent events, caused by the husband's abuse of alcohol.
February 2008
One morning in February 2008 as the family members were all getting ready to leave the house, the husband began to swear at the wife and verbally abuse her, accusing her of having an affair with her fitness instructor. The wife left for the day. During the day the wife received a number of text and phone messages from the husband accusing her of having an affair and threatening to kill himself. On receiving the message threatening to kill himself, the wife rang the husband, and he repeated his intention to kill himself.
Soon after, she received a phone call from a work colleague of the husband telling her the husband had just rung him to say goodbye as he was going to kill himself. The wife rang the psychiatrist they had seen, and he was unable to assist. The husband's work colleague then rang the wife again telling her he believed the husband did intend to harm himself, the husband was driving a company vehicle, and he was intending to report the matter to the police and to his employer.
The wife attended the police station and reported her concerns for the husband. While there, the police contacted the husband, and based on what she was told by the police, the wife believed the husband was on the (omitted), and that the police intended to try to find him.
The wife was fearful. She went to the local mental health unit and spoke to someone there, then went home with a friend. She said on arriving home, the husband's car was there, as were the police. She said after a conversation with the police, she was fearful for the safety of herself and the children, and escorted by a police officer, she entered the home to get some clothes for herself and the children. The husband was there and swore at her. The police told her to leave and she did so.
The wife and children stayed at the home of a friend of the wife for several days. After speaking to the husband and becoming aware that the husband had moved out of the home, she and the children moved back in. The husband returned to the home about two weeks later, promising her that he would not drink.
Nonetheless, over the next four months the husband continued to “disappear” for four or five hours at a time in the evening and on weekends, he called her names, and frequently accused her of having an affair. The wife was fearful for the safety of herself and the children.
I am satisfied that the husband's behaviour during the incident in February 2008, as well as his behaviour over the ensuing four months, amounted to family violence against the wife.
In about 2005 or 2006, a good friend of the wife's was murdered by her partner. In June 2008, the former partner of the wife's sister killed the wife's niece and two nephews and himself. These events, in particular the murder of the wife's niece and nephews, had and continues to have a profound effect on the wife. It has considerably increased her fear and apprehension about the risk the husband poses to her and the children because of his violent behaviour. This is entirely understandable, especially as the murder of the wife's niece and nephews and suicide by their father occurred so soon after the incident when the husband had threatened suicide.
Late May 2009
In late May 2009, the wife arranged to attend the 30th birthday party of a friend across the road, and for the husband to mind the children. The husband was not there when it was time to attend the party, so the wife arranged for another friend to mind the children.
When the wife returned home about 1am the husband was there and told her she better look after her kids and swore at her. He said he had told the friend babysitting the children to bring them back home. When Y cried, the husband told the wife to “sort that kid out”. Despite being anxious because the husband was yelling, the wife told the husband to attend to Y because it was her night off. The husband filled a baby’s bottle, swore, said the wife should be looking after the children, and threw the bottle at the wall. The lid came off, milk went everywhere, and there was a hole left in the wall. The husband then left, and the wife settled the children.
I am satisfied that particularly having regard to the husband's prior proven violent behaviour towards the wife, this was another incident of family violence. I am satisfied that the husband's actions caused the wife to be fearful for her and the children’s safety and wellbeing, and that it was objectively reasonable for the wife to be fearful.
January 2010
The whole family was home in late January 2010 when the husband, who was lying on a bed in the study, said the wife was always falsely calling him a liar and began to thrash his arms and legs around. He kicked the wall and the blinds. He also kicked the window, which broke. The children were present and upset. The wife rang 000.
I am satisfied this was another incident of family violence perpetrated by the husband against the wife.
15 May 2011
On the evening of 15 May 2011 the husband, wife and children attended a birthday dinner at a bistro with another couple, who were mutual friends, and their children. Midway through the meal, the husband loudly complained and began swearing about the wife going away for her father's 70th birthday celebrations leaving the children with him to care for. In the course of his complaining and swearing he threatened to kill the children’s maternal grandfather by cutting his head off. He ultimately left the dinner, having attracted the attention of other patrons and the bouncer by his loud, aggressive and threatening behaviour. Some of the other patrons applauded when the husband left, such was the disturbance he caused.
I am satisfied this is another incident of family violence by the husband.
17 June 2011
The husband received a letter from his employer inviting him to attend a disciplinary meeting on 7 June 2011 to show cause why his employment should not be terminated without notice for serious acts of misconduct, including having sent abusive emails to his manager and having made Facebook postings abusive of his manager. He resigned his job later that month.
On 17 June 2011, the parties argued in the bedroom. The husband left the room slamming the door, then began shouting and kicking the door. When this stopped, the wife opened the door and noticed a hole in the door. The wife told the husband to stop wrecking the house. The husband came towards the wife and pushed her in the right arm very hard, causing her to fall over backwards down the hall. Y, who had been in the lounge room, was then near the wife and she took him into her bedroom. She rang the police and the husband left the house. The wife’s arm was red and bruised.
When the police arrived, the wife made a statement. The police obtained a provisional ex parte AVO. The husband was also charged with assault and with intentionally or recklessly destroying or damaging property domestic violence related.
On 18 June 2011 the husband came to the home and begged the wife to let him move back in, and she refused, telling him the police were looking for him. He then left.
When the AVO application came to court on 8 July 2011, an interim AVO was made.
Despite the criminal assault charge subsequently being dismissed, I am satisfied that on 17 June 2011, the husband assaulted the wife. The wife's evidence of what happened was unchallenged and uncontradicted. I am satisfied that this and his damaging the house was another incident of family violence by the husband perpetrated on the wife.
The husband's evidence in cross-examination about what he did on this occasion is illustrative of his unreliability as a witness. He knew what the wife alleged he did on the day of separation when he prepared his affidavit evidence but said nothing about what occurred during this incident. He asserted in cross-examination that he was never physically violent to the wife. When cross-examined about what he told his psychologist about this incident shortly after it occurred, his evidence was that-
a)he could not recall what he told her;
b)he denied he said what the psychologist recorded in her notes he said;
c)he reaffirmed that he could not remember what he told the psychologist;
d)he said he could recall what he told his psychologist;
e)he admitted he did say what his psychologist recorded him saying of this incident, that he “apparently pushed (the wife), she has bruises”;
f)he told his psychologist the wife was very scared on this occasion;
g)he was not sure what the wife was scared of;
h)he was scared of the wife;
i)the wife was scared of him.
His admission the wife was scared of him was most reluctantly made, and only after the husband prevaricated and lied in his evidence seeking to avoid the obvious. When asked to explain the complete reversal of his evidence, he suggested he was nervous. I am satisfied he deliberately lied to avoid making an admission adverse to his case.
July 2011
The husband attended the wife’s work place in July 2011 in contravention of the AVO. He was charged and convicted for this breach of the AVO. While the wife was not at her work place at the time the husband went there, I am satisfied this was an incident of family violence, as the wife was later informed about the husband seeking to approach her in contravention of an AVO for her protection, and I am satisfied this in fact, and reasonably, caused the wife to be fearful and apprehensive for her personal safety and wellbeing.
The husband suggested his attendance at the wife's workplace was necessary because he had worked for the same company, and he asserted he had been requested to attend his previous place of employment, and he said it was a “technical” breach of the AVO.
In fact, the assertion he had been requested to attend his former work place is incorrect. He had been requested to return to his former employer a product sample he had retained. He could have done so without attending the premises in breach of the AVO. In my view this is just one of a number of examples of the husband being prepared to use any excuse or to contrive circumstances that he suggests justify him breaching orders that he keep away from the wife.
August/September 2011
On 29 August 2011, the husband's solicitors wrote to the wife's solicitors advising that the husband wished to attend a “Dad’s Breakfast” at X’s school on 1 September 2011, and requesting that the wife advise by 31 August 2011 if she had “any issue” with the husband attending.
This was only four days after this court made consent interim parenting orders that included a restraint on the husband approaching or contacting the wife or the children other than as permitted under those orders, which only permitted the husband to see the children for two hours a fortnight at a contact centre.
On 30 August 2011, the wife's solicitors responded advising the husband's solicitors that the wife did not agree to the husband attending the “Dad’s Breakfast”, and pointing out that to do so would be a breach of the orders of this court made on 25 August 2011.
The wife then in the ensuing few days received a request from the husband's solicitor that the husband attend the former matrimonial home to collect some belongings, and a market appraisal of the former matrimonial home obtained by the husband that suggested the agent had inspected the former matrimonial home. The wife had no knowledge of an agent attending or inspecting the former matrimonial home and was reasonably concerned that the husband had gained access to the property in her absence to allow the agent to inspect it.
These requests were made at a time when there was an AVO in force against the husband, there was an order of this court restraining the husband from approaching or contacting the wife or the children other than in the limited circumstances permitted by the order, and there were criminal charges pending against the husband for breach of the AVO, assault of the wife, and damage/destroy property. In light of the husband's past violence towards the wife and the circumstances just referred to, the husband's actions in instructing his solicitors to send these letters to the wife's solicitors caused the wife reasonably to fear for the safety and wellbeing of herself and the children, and hence I am satisfied his actions amounted to family violence.
September/October 2011
The criminal charges against the husband were heard at Fairfield Local Court on 22 September, 2011. The husband was convicted of breaching the AVO and damage/destroy property and placed on a good behaviour bond. The assault charge was dismissed. The AVO proceedings were also finalised on this occasion and a final AVO was made against the husband.
As already mentioned, I accept the wife's evidence of what occurred on the day of separation, and I am satisfied on the civil standard, having regard to the seriousness of so finding, that the husband did assault the wife on this occasion. The dismissal of the criminal charge of assault does not preclude this court making a finding of assault on the appropriate civil standard of proof.
On 29 September 2011, the husband's solicitors wrote to the wife's solicitors referring to the outcome of the criminal and AVO proceedings on 22 September 2011, and advising that as the terms of the AVO did not prevent him doing so, the husband intended returning to live in the former matrimonial home. This was asserted despite the existence of the interim orders of this court of 25 August 2011, which the wife's solicitors had drawn attention to on three separate occasions between 31 August and 6 September 2011 in correspondence passing between the parties’ solicitors, that restrained the husband approaching the wife or the children other than for his two hours a fortnight supervised time with the children. The husband admitted that when he instructed his solicitors to send this letter, he knew if he moved back into the former matrimonial home he would be in breach of the interim orders of this court.
Despite the wife's solicitors in their response to the husband's solicitor’s letter of 29 September 2011 (sent on 29 September 2011) yet again pointing out that the husband would be in breach of the interim orders of this court if he returned to live in the former matrimonial home while the wife and children were living there, his solicitors nonetheless wrote back on 10 October 2011 asserting quite disingenuously that there was “no order which specifically prohibits our client from either attending or living at the former matrimonial home”. The husband and his solicitor both knew that the wife and children were living in the former matrimonial home. The husband and his solicitor both knew of the interim order made on 25 August 2011 with the husband's consent that restrained the husband from approaching the wife or the children other than as permitted by those orders for two hours a fortnight at a contact centre. As was pointed out in the wife's solicitor’s letter of 29 September 2011, if the husband moved back into the former matrimonial home while the wife and children were living there, he would be in breach of that order. Yet the husband's solicitor wrote to the wife's solicitor on 10 October 2011-
“It seems that your client wishes to unilaterally amend the existing ADVO and interpret interim Family Law Court (sic) orders which do not exist. If your client remains unclear as to what the ambit of the current orders of the Federal Magistrates Court include, then we invite your client to have the matter relisted so that any confusion by your client may be clarified.”
The orders of this court made on 25 August 2011 with the husband's consent, include the following-
“6. The father is restrained from approaching or contacting the applicant and/or the children save as set out in these Orders.”
It was the husband, not the wife, who sought to unilaterally amend the existing orders of this court, and ignore orders that existed and that bound him, he being present when they were made and having consented to them.
The letters of 29 September 2011 and 10 October 2011 from the husband's solicitor to the wife's solicitor, which I accept were sent on the husband's instructions, clearly indicated that the husband intended to move back into the former matrimonial home, knowing that the wife and the children were living there, in breach of this court’s orders that he not approach the wife or the children other than at the contact centre. In my view, the distress and anxiety these letters caused the wife was entirely foreseeable and reasonable. I am satisfied the husband instructed his solicitors to send each of these letters, and their consequent receipt by the wife, constituted two further instances of family violence by the husband against the wife.
24 October 2011
On 24 October 2011, when the wife and children were getting out of her car, having just arrived home from the children’s school, the husband walked past and called out to the children. I am satisfied this was a breach of the interim orders of 25 August 2011. However, the wife gave no evidence of being fearful or apprehensive for her or the children’s wellbeing or safety by the husband’s actions on this occasion, and she gave no evidence from which it could be inferred that she was, and I am hence not satisfied it was an incident of family violence. It is, however, another instance of the husband's disregard for court orders.
13 January 2012
On 13 January 2012, while the wife, children and maternal grandmother were at dinner at an Inn, the husband approached them, kissed and cuddled the children, and began to talk to the wife about changing the times at the contact centre. The wife asked him to move on. The husband moved away, but returned and spoke to the children and gave each of them some money. The wife again asked the husband to move on, to which the husband replied-
“I’ve done nothing, you have nothing on me. You cheated on me.”
The husband started to move away, but returned and attempted to kiss X saying he would not leave until he got a kiss from her. For a third time the wife asked the husband to move on, to which the husband replied that the wife would have to get the bouncers to remove him. The husband moved away but remained on the premises. The wife left with the children and the maternal grandmother without finishing their meal. The children were distressed, and the mother was frightened by the husband's actions.
This is another instance of the husband contravening court orders. On three separate occasions he approached the wife and the children contrary to the interim orders of 25 August 2011. In the circumstances, I am satisfied that it was reasonable for the wife to be fearful and apprehensive for the safety and wellbeing of herself and the children on this occasions, and I am satisfied it was yet another incident of family violence by the husband.
This incident occurred at licensed premises, after the time the husband asserted he had stopped drinking. The wife saw the husband in the bar area after her final encounter with him on this occasion. Although there is no suggestion that the wife saw the husband consuming any alcohol on this occasion, this and numerous other occasions when the husband attended licensed premises after he claimed to have stopped drinking, including frequenting the licensed premises he frequented when he was drinking, together with my assessment of his credit and his risible explanations for his attendance at these premises, leave me with no confidence in the husband's assertions that he has been abstinent of alcohol since separation.
14 January 2012
The husband saw the children at the contact centre the day after the incident at dinner. I have referred to this visit previously. It was the one where he reacted angrily and aggressively when the supervisor asked him not to pass messages for the wife through the children, and another supervisor smelt alcohol on him.
Following this visit, the wife drove with the children to a shopping centre. While the wife and the children were in the shopping mall, the husband came up to them and put his arms around Y. The wife was frightened. As she led the children away, the husband called out loudly to the wife swearing at her and verbally abusing and denigrating her.
The wife took the children to another part of the shopping mall and bought them some take away for lunch. The husband approached them and again verbally abused and denigrated the wife.
The husband moved away, but then returned with some food and sat at the table next to the wife and children. The wife immediately got up to leave with the children. The husband again called out verbally abusing and denigrating the wife.
X later advised the wife that during the supervised time with the husband earlier that day, she had told the husband they were going to this shopping mall after their time with him ended.
I am satisfied that the husband deliberately and intentionally sought out the wife and children at the mall on this occasion. I am satisfied that the husband approached the wife and children in contravention of this court’s orders of 25 August 2011 on three separate occasions at the mall. I am satisfied that on three separate occasions the husband loudly and publicly, and in front of the children, verbally abused and denigrated the wife using obscene and demeaning language. I am satisfied that the wife was genuinely fearful for her and the children’s safety and wellbeing on each of these three occasions at the shopping mall, and that her fears were objectively justified. I am satisfied that on each of the three occasions the husband approached the wife at the shopping mall, he perpetrated family violence against the wife.
The husband's actions on this occasion, in particular the very loud and public humiliation of the wife in front of the children, displayed a deeply concerning lack of any concern by the husband for the welfare of the two children that the husband professed to love so dearly. He was totally unconcerned for the fear, distress and embarrassment he caused his children, and totally unconcerned about any adverse effect his degrading and demeaning references to the wife may have had on the children’s relationship with their mother, who has been the children’s unchallenged primary carer, and who is to remain their unchallenged primary carer.
His behaviour and reactions on this and on other occasions, including his criticism of the wife for not giving him the emotional support he claimed he deserved after the wife's sister’s children were murdered, suggest the husband is totally self-absorbed and is incapable of empathy for others, or of recognising, much less meeting, the needs of others around him.
Shortly after the incident at the shopping mall, the husband moved into rented accommodation 300 metres from the former matrimonial home and close to the children’s school and the shopping centre and recreational facilities frequented by the wife and children. I am satisfied that this was more likely than not a deliberate ploy by the husband to be in a position where he could “accidentally” bump into the wife and children, and to further unsettle the wife.
I accept the description of the husband's action in moving so close to the wife and children in correspondence from the wife's solicitors to the husband's solicitors in March 2012 as constituting “significant bullying and harassment of (the wife) and emotional abuse of the children”. It is totally inconsistent with the husband's claims to understand the wife's subjective fear of him and to be concerned not to distress or unsettle the wife and to support her as the children’s primary carer. Nothing could be further from the truth.
Summary in relation to family violence
I am satisfied that the husband repeatedly perpetrated family violence on the wife, that the children were exposed to this violence on occasions and were adversely affected by it, and that the wife remains justifiably fearful of the husband. Her fear and anxiety about the risk the husband may pose to her and the children’s safety and wellbeing is significantly exacerbated by her life experience of losing both a good female friend murdered by her friend’s former partner and of losing her niece and nephews murdered by their father who committed suicide, in the context of the husband having threatening suicide on more than one occasion.
The husband repeatedly denied during cross-examination by counsel for the wife that he had an anger management problem, despite admitting several incidents where his inability to appropriately manage his anger caused him difficulty in his employment, his sport and his marriage. He asserted that he was only discussing anger management with his psychologist as a preventative measure. However, he ultimately admitted in cross-examination by counsel for the Independent Children's Lawyer that he had had instances of explosive aggression, as described by Dr K, and suggested he had addressed this through anger management programs with his psychologist.
The husband's evidence is so inconsistent, unreliable and self-serving that I cannot accept his evidence without independent corroboration. I am not satisfied that the husband has effectively addressed his anger management issues. These issues often manifested themselves when he had been drinking, an issue I will address in detail next, and the husband does not accept he has a drinking problem. I am unconvinced that he truly accepts that he ever had a drinking problem, despite his ultimate admission during cross-examination after repeated denials. He has not attended rehabilitation as recommended by Dr K, and hence has taken no serious step to mitigate his risk of relapse (assuming he is currently abstinent), which Dr K considered was high.
I am therefore satisfied that there remains a significant risk of further displays of explosive aggression by the husband, a risk that is heightened if he is drinking excessively. The risk of explosive aggression exists particularly if the husband becomes frustrated, or if his idealised views as referred to by Dr K, particularly with the children, collide with the reality of everyday life, as occurred in the final year before separation when the husband was attempting to prepare the children for school each day, a task I am satisfied he was unable to satisfactorily carry out without intervention by the wife, with assistance that the husband in cross-examination dismissed disparagingly.
Although I accept that the husband loves his children, I am nonetheless satisfied that the children are at risk of exposure to displays of explosive aggression by the husband if they are with him, particularly if he drinks or has been drinking, and I am satisfied there is a real risk that the children may become the targets of his aggression.
Husband's alcohol use
The husband said in his evidence in chief that he regarded himself as a “responsible drinker” who would “occasionally visit my local bar and have a light beer” and said that on average he “consumed one beer after (soccer) training on Wednesday and two beers after the soccer match on Saturday”. He said he had not consumed any alcohol since 17 June 2011 “to improve my health and state of mind”. The parties separated on 17 June 2011.
I am satisfied that in asserting he stopped drinking on 17 June 2011 to improve his health and state of mind, as with many other areas of the husband's evidence, the husband was being dishonest. The husband's psychologist, Dr N, reported to the husband's general practitioner on 25 July 2011 that the husband told her in consultation that the parties argued on 17 June 2011 after the parties returned home from a social event with friends, and that the husband's “remorse for his actions prompted his decision to remain abstemious from alcohol since that evening”. The husband admitted discussing his alcohol consumption with Dr N. The husband's attempts to reconcile his repeated denials of a drinking problem with having discussed problem drinking with Dr N were risible. He explained his attendance on a drug and alcohol counsellor as unnecessary and a waste of time, and done only to “prove a point” to the wife and others, including the court.
Despite repeatedly denying he ever had a drinking problem during a lengthy cross-examination by counsel for the wife, the husband admitted he had had a drinking problem early in his cross-examination by counsel for the Independent Children's Lawyer. However, he maintained that he did not now have an alcohol problem.
The husband acknowledged that Dr K’s opinion that he had minimised his alcohol problem was correct, but then reverted to doing just that in his answers to further questions from counsel for the Independent Children's Lawyer. He did not accept Dr K’s opinion that he was at high risk of relapsing (assuming he was abstinent), or that he needed intensive rehabilitation.
I note that the wife was successfully challenged on some aspects of her evidence in chief as to the amount of alcohol the husband consumed on occasions, including her concession, in relation to an allegation she saw him drink 20 stubbies of beer, that in fact she saw him beside a large pile of empty stubbies that he said he had consumed but she believed this was a boast and not true. However, the substance of the wife's evidence as to the husband's drinking was not successfully challenged, and it is corroborated to some extent by statements the children made to Dr K, by the evidence of Ms R, by the evidence that a contact centre supervisor smelt alcohol on the husband at a time he said he was not drinking and his subsequent admission that on that occasion he had one beer, and by the fact the husband sought therapeutic intervention for his alcohol consumption.
I am satisfied that the husband had a serious alcohol abuse problem during the parties’ cohabitation. I am satisfied that the husband would regularly drink to excess, but that there were also periods of abstinence.
After separation the husband continued to frequent the licensed premises he frequented before separation “lots of times”. His bank records show he attended hotels after separation up to six days a week. He admitted frequently purchasing alcohol, both for consumption on the premises and take away, but said it was never for himself, and always for others, describing himself as “a generous guy”.
He said he attended these licensed premises after separation for socialising. But he also claimed that he was cutting down on socialising where alcohol would be consumed so that he would be less exposed to the consumption of alcohol at the very time he admitted attending licensed premises for socialising up to six times a week and purchasing alcohol on a regular basis. It remained unclear why he would seek to be less exposed to the consumption of alcohol if he did not have a problem with alcohol, as he claimed.
The husband sought to further defend his regular attendances at a local hotel by asserting it had the only ATM in the area. He changed this evidence to say it had the closest ATM. He then admitted that in fact his bank had an ATM close to the hotel that would have enabled him to make fee-free withdrawals.
The supervisor at the contact centre recorded that she smelt stale alcohol on the husband during his time with the children on 14 January 2012. In cross-examination the husband claimed this was because he had one low alcohol drink, despite consistently claiming up to that point he had consumed no alcohol at all since separation.
During this supervised visit, the supervisor had to intervene when the husband said something to X that the supervisor considered inappropriate, and the husband reacted angrily, criticising the supervisor to X. This is particularly significant, in my view, because of the encounter between the husband and the wife, children and maternal grandmother at dinner the previous night at licensed premises, and the husband's pursuing and aggressively confronting the wife and children at the shopping centre after this supervised visit.
The husband's angry reaction to the contact supervisor and his stalking and abusive behaviour towards the wife after the supervised visit is consistent with the wife's description of the husband's behaviour during cohabitation when he was affected by alcohol. I am satisfied that the husband had consumed sufficient alcohol on 13 January 2012 that it could still be smelt on him the following day, and it is likely that he was still affected by alcohol the following day both during and after his supervised time with the children, noting his complaint of feeling unwell before the start of his supervised time on 14 January 2012.
While I am satisfied that it is more likely than not that the husband has consumed alcohol since separation, I am not satisfied it has been to the same extent as before separation, and I am also not satisfied that he has been consuming alcohol consistently since separation.
While the wife did not personally see the husband drink alcohol since separation in June 2011, unnamed friends of hers told her that they had seen the husband drinking alcohol since separation, and on at least one occasion had seen him extremely intoxicated. The wife said these friends did not want to give evidence in support of her case through fear of the husband. This is hearsay evidence from unidentified people of their opinions and conclusions with no basis disclosed for those opinions and conclusions. It is not evidence in my view that is capable of supporting a finding that the husband has consumed alcohol since separation, that he has been intoxicated since separation, or that there is any objective basis for any friends of the wife to be fearful of the husband if they gave evidence in the wife's case.
However, this evidence is significant in that the wife believes what she has been told to be true, she therefore believes the husband has continued to consume alcohol since separation despite his assertions to the contrary, and this is relevant to the impact on the children, through any adverse impact on “maternal integrity” as Dr K termed it, of any order that the children spend time with the husband.
Wife's alcohol use
In relation to the wife's alcohol use, for reasons already given I prefer the wife's evidence over the husband's where it may conflict. I make the following findings in relation to the wife's alcohol use.
During the parties’ cohabitation, the wife regularly consumed about a bottle of wine a week, drinking three to four glasses one evening a week, usually Friday evening, and having a glass of wine up to two other nights a week. There were brief occasions when she did not drink. In the period leading up to separation, the wife's drinking increased. The wife now accepts Dr K’s opinion that her drinking before separation was at a hazardous level, although she did not see it as such at the time.
Since separation the wife's consumption of alcohol decreased, but she continued to have a glass of wine two nights a week and “a couple” of glasses of wine on the weekend. Since reading Dr K’s report, the wife researched the meaning of “hazardous drinking”, and raised the matter “briefly” with her counsellor. She has since reduced her consumption of alcohol so she only drinks on one or two days a week, and consumes less than four drinks a day.
Dr K did not express concern about the wife's current level of alcohol consumption.
I am not satisfied the wife's current level of alcohol consumption is an issue. In any event, it is difficult to understand the relevance of the husband's criticisms of the wife's alcohol consumption and other aspects of her parenting when he proposes that the children live with the wife.
The parties’ proposals
The wife
The wife ultimately proposed that she have sole parental responsibility, that the children live with her, and that the children spend no time with the husband.
This was not her position when she was cross-examined. She was then proposing that the husband attend and complete a residential rehabilitation program, after which he continue to attend for out-patient therapy for at least two years, and in addition attend on his psychologist as recommended by her and complete an anger management course within 12 months. She proposed that the husband spend supervised time with the children until he completed the residential program, and then, provided he attended the out-patient service and his psychologist and attended the anger management course, the husband spend unsupervised time with the children, rising over three, six monthly steps from four hours a fortnight to alternate weekends from Saturday morning to Sunday afternoon.
The wife said in cross-examination that she was concerned about the safety of the children because of the husband's alcohol abuse and family violence, and was concerned for the husband's ability to care for the children due to occasions she witnessed him become impatient, frustrated and upset with the children in the final year before separation when he got the children up and ready for school of a morning. She said that if the husband would not meet the conditions she proposed at that time, he should not see the children at all. It became clear during his cross-examination that the husband had no intention of undertaking residential rehabilitation.
The wife said that the children love their father and want to see him, they enjoy seeing him, and they would be “very upset” if they did not see him.
The husband
The husband has moved on a number of occasions since separation. During his cross-examination, he said he was contemplating moving to the (omitted), and admitted he had not considered how such a move might impact on his parenting proposals.
The husband has a partner. He did not disclose her in his evidence in chief. She was not a witness in his case. She has accompanied him to the contact centre when he has spent supervised time with the children. She lived some distance from the husband’s residence at the time of his cross-examination. While it seemed that they did not then cohabit, it is unclear whether they intend to cohabit in the future. Thus, the extent of the involvement of the husband's partner with the children if they spent unsupervised time with him is unknown, as is her relationship with the children.
The uncertainty about the husband's accommodation is concerning, as I gave him leave to re-open his case to give evidence about a possible move to a specific town in the (omitted), but after his counsel obtained instructions on the issue, he indicated the husband did not wish to give any further evidence. No explanation was forthcoming why the husband did not take up the opportunity I gave him to provide evidence on that issue. I therefore draw the inference that such evidence would not have assisted his case.
One consequence of the absence of evidence about the husband's present place of residence is that the court cannot determine whether the orders proposed by the Independent Children's Lawyer, which the husband supported, are practical. The husband admitted in cross-examination not having considered the effect on the orders he sought of a move to the (omitted), and despite the husband's suggestion that his working hours may be somewhat flexible, there is no evidence before the court that the husband is able to collect the children from school, as would be required from the third stage of the regime of increasing time proposed by the Independent Children's Lawyer and supported by the husband.
The husband remained adamant that he now did not have an alcohol problem and did not need to attend any form of rehabilitation. He steadfastly refused to accept Dr K’s opinion to the contrary, maintaining that position even when asked what his view would be if the court found that he did have an alcohol problem and needed to attend rehabilitation as recommended by Dr K. However, he suggested he would attend a rehabilitation program if necessary to help alleviate the wife's anxiety about the children spending time with him. Thus, the husband's position was unambiguously that any attendance by him at a rehabilitation program would not benefit him, but could only benefit the wife.
Similarly, the husband remained adamant that he did not have an anger management problem, did not need to attend an anger management program, and would not attend an anger management program. He maintained this position despite being forced to admit in cross-examination that in the time leading up to separation there had been incidents with the wife, with his employer and with his soccer team that all demonstrated that the husband had a problem controlling his anger. The incident with the wife at separation lead to the husband being found guilty of a criminal offence, the incidents with his employer precipitated the husband resigning his job having been called on to show cause why his employment should not be summarily terminated, and the incidents with his soccer team resulted in him being asked to leave that team because of concerns his team mates and coach had about his aggression, which had been directed at both his coach and a team mate.
The court expert’s evidence
I am satisfied that facts on which Dr K based his opinions have been admitted or proven on the evidence before me, with the exception of Dr K’s assumption that the husband has remained abstinent of alcohol since separation. Where the husband denied he had said what Dr K reported, or where he denied the truth of what Dr K said the children told him, I accept the accuracy of Dr K’s report and of the children’s statements because of my findings as to the husband’s credit.
In his report, Dr K recommended that-
a)The parents be required to make a good faith attempt to consult with each other and endeavour to reach a consensus on major long term issues about their children’s upbringing, but that if the parents fail to agree, the wife should have the authority to make the relevant decision;
b)The children reside with the wife;
c)The husband “agree” not to consume alcohol for 12 hours before and during his time with the children in the long term, and that the wife be supported in stopping or reducing the husband's time with the children is she observed or became aware of any breach of this requirement;
d)That there be a slow build-up of the husband's time with the children over a 12 month period, during which the husband agree to undergo further treatment;
e)The husband's treatment involve-
i)abstinence from alcohol for at least 12 months but ideally long term;
ii)a program of alcohol education and rehabilitation, to be undertaken within six months, in a residential rehabilitation program for substance abuse, such programs usually lasting three to six months, or alternatively and less satisfactorily, a program of intensive (initially at least weekly) outpatient rehabilitation, with the husband's involvement with the children during this time limited to phone communication only;
iii)following on from the intensive rehabilitation program, outpatient follow-up for the next two years, at a frequency determined by the therapist but at least monthly in the first year and at least three times in the second year;
iv)continuation of therapy for anger management, emotion management and personal and relational issues with his current psychologist for two years, at a frequency determined by the therapist but at least monthly in the first year and at least three times in the second year; and
v)in addition to therapy with his psychologist, the husband attend and complete an anger management or aggression management group program within 12 months;
f)All therapists the husband sees to receive a copy of Dr K’s report;
g)
The wife continue to see her current therapist or another therapist recommended by her current therapist for 12 months at a frequency determined by the therapist but not less than every three months, with the therapist to receive a copy of
Dr K’s report;
h)The children spend time with the husband-
i)for three months for a full day each alternate weekend with changeovers at the contact centre;
ii)then for three months for a full day each alternate weekend with changeovers at an agreed place;
iii)then for three months from after school Friday to Saturday afternoon each alternate weekend, with the children returned to the wife at an agreed place;
iv)then for three months from after school Friday to Sunday afternoon each alternate weekend with the children returned to the wife at an agreed place;
v)thereafter from after school Friday to before school Monday each alternate weekend;
vi)after a further six months, that is 18 months after orders are made, the children spend four nights with the father each school holidays, to become half the school holidays after two years from the date of the orders.
i)Neither party use any hostile or derogatory language, or behave in an intimidating or verbally or physically aggressive way towards the other, and there be agreed boundaries as to how the parents are to communicate with each other;
j)The husband be informed about educational and medical matters and be able to contact treating professionals and teachers directly;
k)The husband not attend school or sporting events that do not occur during his time with the children for one year, after which he be permitted to attend such events, with the wife to be informed in advance if the husband intends attending such events, if she so requests; and
l)Neither party make critical or derogatory remarks about the other in the presence or hearing of the children.
In balancing the identified risks to the children of spending unsupervised time with the husband with the risks of not spending time with him, I am satisfied that the children’s current positive relationship with the husband, their clearly expressed and strong wish to continue to spend time with him, and the significant distress they would experience if their time with him was stopped, are of particular significance. If there is any regime of unsupervised time under which the risks to the children of spending unsupervised time with the husband can be adequately mitigated, then the children’s best interests dictate that such a regime be implemented.
Ultimately, I am satisfied that a regime of the children spending day time only with the husband on one day a month is an arrangement that will sufficiently mitigate the risks to the children of spending unsupervised time with the husband, and provide the children with an opportunity to continue and to develop their relationship with their father, removing the significant risks to the children of spending no time with him. I am satisfied that spending day time only, once a month, will provide an opportunity for the husband to make this time with the children special, in a way that will meet his need for positive affirmation and reduce the risk of his idealised views of his relationship with his children being challenged by the mundane aspects of everyday child care that longer overnight periods will entail, as referred to in
Dr K’s evidence. This will reduce the risk of the husband becoming frustrated and angry with the children, reducing the risk of exposing the children to the husband's explosive anger. This limited time will reduce the risk to the children if the husband drinks when the children are with him or immediately before they come to him, and the limited time hopefully will cause the wife less intense, and manageable, anxiety and distress so that her parental functioning is not significantly impaired to the detriment of the children.
It is essential in my view that the need for the parties to interact be reduced to the maximum extent possible to limit any opportunity for the husband to intrude on the wife's parenting. Therefore, I am satisfied changeovers for the husband's time with the children must occur through a contact centre. I will specify the centre the parties and children are currently engaged with for the husband's supervised time. If the contact centre is unavailable to facilitate changeovers for any reason, then the husband's time with the children must be suspended.
I am satisfied that the court should also order that the husband abstain from alcohol when the children are in his care and for 24 hours before they come into his care, that the husband’s communication with the children be limited to written communication and gifts, with the wife having the right to withhold any written communication for the children that contains offensive or derogatory material about her, and that the husband be restrained from contacting the wife or the children other than in strict accordance with the orders for the father's time and communication with the children. Despite the husband's poor record of complying with orders to protect the wife from the husband, such an order is necessary to seek to preserve maternal integrity.
I am not satisfied an order for CDT testing is in the children’s best interests, because of its limited utility in detecting alcohol consumption, the fact the evidence satisfies me that the husband has continued to drink, and the fact that any order for communication between the parties, such as would be required under a CDT testing order, simply opens an avenue of communication the husband may misuse to intrude on the wife and compromise her parental functioning.
I am not satisfied any order should be made requiring either party to attend any form of therapy. The husband will not benefit from therapy for problems he denies he has, and I am satisfied that the wife will seek appropriate therapeutic assistance as she may need from time to time, including to assist her to cope with the order for unsupervised time I intend to make. However, I am satisfied both parties should be permitted to provide a copy of Dr K’s report to any therapist they may consult.
I strongly emphasise that if the husband were to positively engage in intensive rehabilitation for his alcohol problem and therapy for his anger management issues such as Dr K recommended, and could produce evidence of successfully completing those programs with beneficial results, then he would be able to demonstrate a significant change in the circumstances under which I have reluctantly reached the decision that the children should spend such limited time with him, and he could apply for orders to spend more time with the children.
Additional evidence relevant to property settlement
At the commencement of the parties’ cohabitation in late 2000 or early 2001, the wife owned a unit subject to a mortgage, a motor vehicle, furniture and had an interest in a superannuation fund. The wife's resignation benefit in that fund at 1 July 2000 was worth $39,941.40. At the commencement of cohabitation the husband had some furniture and the use of a motor vehicle provided by his employer.
The parties commenced cohabitation in the wife's unit.
The parties decided to buy the former matrimonial home in early 2001 for $320,000. The wife drew a total of $50,200 using the redraw facility under the mortgage on her unit to apply towards the deposit on the former matrimonial home and for stamp duty and legal fees. The parties borrowed $285,000 to complete the purchase. On settlement of the purchase, they acquired the title as tenants in common as to 70% to the wife and 30% to the husband.
The wife then sold her unit, the sale settling on 3 July 2001. The whole of the net proceeds of sale, $95,202.95, was paid in reduction of the mortgage debt on the former matrimonial home.
Thus, from the unit she owned prior to cohabitation, the wife contributed a total of $135,402.95, or approximately 40%, of the $339,000 cost of acquiring the former matrimonial home inclusive of stamp duty and legal fees.
The wife was in full time employment from cohabitation until around X’s birth. She had eight months maternity leave, then returned to work part time from February to June 2005, and full time thereafter to around Y’s birth. The wife then had eleven months maternity leave before returning to work part time from July 2007 to January 2008, then full time from January 2008. She remains in full time employment.
The husband was in full time employment during the parties’ cohabitation.
Both parties applied their income to meet their household expenses.
During the parties’ cohabitation, the wife received $5,000 from her parents when X was born. She used this money to buy a car to use when on maternity leave. She sold it for $2,500 when she returned to work, and deposited the proceeds of sale to the mortgage on the former matrimonial home.
Because of the equivocal nature of the wife's evidence as to further sums she thought she may have received from her parents, I am not satisfied she received more than the one amount of $5,000.
The wife asserted that she painted the whole of the inside of the former matrimonial home in 2000, taking two weeks off work to do so. As the parties did not purchase the former matrimonial home until 2001, this evidence cannot be correct. However, as the husband did not dispute that the painting was done over a two week period, I accept that the wife was mistaken as to when the painting was done. The husband disputed that the wife alone did the painting, asserting that it was done by the wife, her brother and himself over a two week period. Neither party was cross-examined about this. Because of the adverse view I have about the husband's credit, and despite the wife being mistaken as to when the painting was done, I accept her evidence that she did the painting.
The parties paid to have the grass mowed at the former matrimonial home but otherwise the wife was responsible for the gardening. The wife also maintained the pool, organised tradespeople for home improvements, and paid the bills, she being the financial manager. The husband assisted in removing a large brick retaining wall and organised a brick layer to replace it.
The husband said in evidence in chief that he did the washing, ironing, vacuuming, cooking and dish washing. However, he said in cross-examination that the wife did the “housework”. The wife said the husband assisted her with the washing, cleaning up after meals, and on occasion preparing meals. However, she said there were significant periods of up to two weeks at a time when the husband did nothing at all to assist with the children and simply sat on the couch or lay in bed when not at work. Neither party was cross-examined about this. Because of the view I have of the parties’ credit, I accept the wife's evidence.
The husband's evidence that the parties equally shared the shopping was unchallenged and uncontradicted, and I accept it.
The wife was primarily, though not solely, responsible for the care of the children during cohabitation.
At around the time of separation, the husband withdrew $40,000 from the loan account secured by the mortgage over the former matrimonial home. At the wife's request, those moneys were retained by the husband's solicitors in a controlled moneys account. The costs of the court expert’s report, $9,900, were paid from that account by agreement of the parties.
At separation, the wife had four credit cards with a total debit balance of $11,972.
Since separation, the wife and children have remained in occupation of the former matrimonial home, and the wife has met all outgoings on that home, including meeting the $500 cost of having the wall damaged by the husband repaired. She has met all repayments on her credit cards and the lease payments in relation to her car.
The wife applied for and received a child support assessment against the husband. In August 2012, the husband owed arrears of child support of $4,277.97. The husband remained in arrears of chid support for a significant period, despite receiving a redundancy payment after separation. The husband did not disclose the amount of his redundancy or what he did with it.
Both parties are in good health, save for the ongoing effect on the wife of the stress and anxiety caused by the husband's family violence and save for the husband's alcohol abuse.
The wife continues in full time employment and receives an income of $66,000 per annum plus a car allowance. The husband is again in full time employment, following a period of unemployment after separation of about six months. He did not disclose his current income.
The applicable law in relation to property settlement
Property settlement proceedings fail to be determined by reference to s.79. The court may make such order as it thinks appropriate (s.79(1)). The court must not make an order unless it is satisfied it is just and equitable to do so (s.79(2)). If satisfied it is just and equitable to make an order, in determining what order to make, the court must have regard to the matters set out in s.79(4), including s.75(2), the provisions of which are incorporated into s.79(4) by reference.
The High Court has emphasised the importance of the injunction in s.79(2) that the court shall not make any property settlement order unless it is satisfied in all the circumstances of the particular case that it is just and equitable to do so, noting that s.79(2) and s.79(4) must not be conflated (Stanford v Stanford, [2012] HCA 52 at [35], (2012) 47 Fam LR 481, (2012) FLC ¶93-518).
The just and equitable requirement of s.79(2) may be readily satisfied where the parties no longer live in a marital relationship (Stanford at [42]), or semble, for a property settlement application under Part VIIIAB, where the parties no longer live in a de facto relationship (Watson & Ling, [2013] FamCA 57 at [4], (2013) FLC ¶93-527).
In Hickey & Hickey; A-G for Commonwealth (Intervener), [2003] FamCA 395, (2003) 30 Fam LR 355, (2003) FLC 93-143, the Full Court explained the preferred approach in determining property settlement proceedings under s 79, as follows (FamCA at [39]; FLC at 78,386; Fam LR at 370):
“39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.”
This must now be read subject to Stanford, in which the High Court said that the court should first determine the parties interests in property in accordance with normal legal and equitable principles and then consider whether it would be just and equitable to make an order altering the parties’ interests in property (s.79(2)). Having regard to the High Court’s admonition not to conflate the process required by s.79(2) with a consideration of the matters under s.79(4), and contrasting the wording of sub-ss.79(1) and (2), it seems to me that if the court determines that it would be just and equitable to make an order under the section, the court should then “identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties”, then “identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties”, and finally determine what order, if any, altering the parties’ interests in property is “appropriate” (cf. sub-ss.79(1) and (2)) to give effect to the parties’ entitlements thus determined.
It seems to me that adopting the wording of s.79(1), rather than s.79(2), at the final step in the decision making process may help avoid the conflation of sub-ss.79(2) and (4) warned against by the High Court in Stanford, and provides a decision making pathway that recognises and gives effect to all the provisions of s.79.
Where the pool of divisible assets and resources includes a superannuation interest, the Full Court in C & C, [2005] FamCA 429, (2005) 33 Fam LR 414, (2005) FLC 93-220, stated that, especially if a superannuation splitting order is sought, the preferred approach is to treat the superannuation interests separately from the parties’ property (in the narrow sense), and to assess contributions under s.79(4)(a), (b) and (c), and then to assess the remaining matters under s.79(4) for the parties’ superannuation interests separately from the consideration of those matters in relation to their property. However, the Full Court acknowledged that in some cases it may be appropriate to deal with the parties’ superannuation interests and property on a single global basis. The majority said (at [61] and [62])-
“61. Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. This approach could be adopted where the parties agree that it should be adopted, or where the Court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the Court to conclude that this would be an appropriate approach.
62. The parties’ contributions to all items on that list (including the superannuation interest) would then be assessed on either a global or an asset by asset basis. It might then be necessary in the s 75(2) context to have regard to the parties’ future superannuation entitlements (having regard of course to any division proposed on the basis of their contributions), with consideration then being given to the overall justice and equity of any proposed award or order (including any proposed splitting order). … ”
In this case, both parties agreed that the property settlement matter be approached on a “single pool” basis, including superannuation interests with all other property, resources and liabilities. I therefore propose to do so.
The pool of divisible assets, liabilities and resources
The parties agreed that their assets, resources and liabilities are as follows-
Item Description Title Amount 1 Former matrimonial home at Property N 70%W/30%H $560,000.00 2 Home contents Joint $5,000.00 3 Money held on trust Joint $33,539.00 4 Caravan Joint $16,000.00 5 Wife's motor vehicle Wife $16,000.00 6 Wife's superannuation Wife $134,924.00 7 Husband's superannuation Husband $70,387.00 8 Mortgage debt Joint -$157,612.00 9 Lease debt on wife's car Wife -$9,853.00 10 Wife's Mastercard Wife -$4,084.00 11 Wife's Visa card Wife -$823.00 12 Wife's (omitted) Credit card Wife -$973.00 13 Wife's (omitted) Credit card Wife -$1,049.00 14 Total $661,456.00
Is it just and equitable to make an order?
Both parties sought orders altering their interests in property. Both submitted it would be just and equitable to make an order doing so. The parties’ marriage has broken down and they have separated. I am satisfied it would be just and equitable to make an order altering the parties’ interests in property because, in the words of the High Court in Stanford v Stanford, above, at [42]-
“… there is not and will not (hereafter) be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship (has been) brought to an end with the ending of the marital relationship.”
The assessment of contributions
It was submitted on behalf of the wife that because of the wife's interest in her unit at the commencement of cohabitation, which represented such a significant contribution to the acquisition of the former matrimonial home, the cash received from her parents, and the significant contribution the wife made from her earnings, her financial contributions up to separation were vastly greater than the husband's. It was further submitted that given that the wife alone has serviced all the parties’ liabilities since separation, had met all the outgoings on the former matrimonial home since separation, and the husband had failed to make appropriate contribution to the support of the children as evidenced by the arrears of child support, the wife's financial contributions after separation were also greater than the husband's. It was submitted that the parties’ respective direct and indirect financial contributions overall should be assessed at 75/25 favouring the wife.
Counsel for the wife stated that it was not part of the wife's case that the husband had unreasonably spent money on alcohol during the parties’ cohabitation.
In relation to the parties’ non-financial contributions, it was submitted on behalf of the wife that overall the parties made equal contributions, but that the wife's non-financial contributions were made more onerous as a result of the effect on her of the husband's persistent family violence, relying on Kennon & Kennon, (1997) FamCA 27, (1997) FLC 92-757, (1997) 22 Fam LR 1). It was submitted on her behalf that the non-financial contributions favoured the wife in the range 55/45 to 60/40.
Overall, it was submitted on behalf of the wife that contributions favoured the wife 80/20, being 75% for financial contributions and an extra 5% for non-financial contributions.
The process of reasoning on which the ultimate submission as to the determination of the parties’ overall contributions was based was less than clear. If it were assumed that of the totality of contributions, the financial contributions overall and the non-financial contributions overall were equal, that is each represented 50% of the totality of contributions, then a submission that the financial contributions favoured the wife 75/25 and the non-financial contributions favoured the wife 60/40 would mean the wife's overall contributions were 67.5%, being half of 75% plus half of 60%. While the assessment of contributions is not a mathematical exercise, this nonetheless illustrates that it is simplistic to suggest a result achieved by an aggregation of one party’s separately assessed financial and non-financial contributions, or to simply add a premium to a party’s assessed contributions of one character because of contributions of a different character.
On behalf of the husband it was conceded that contributions overall favoured the wife 60/40. It was submitted in relation to the Kennon argument in the wife's case that there was no medical evidence or evidence of police reports to support such an argument.
The wife contributed from her interest in the unit she owned at cohabitation a total of $135,402.95 to the acquisition of the former matrimonial home. This represented 40% of the total cost of acquisition of the former matrimonial home. As this contribution was made very shortly after the parties commenced cohabitation, any indirect financial and non-financial contributions the husband could arguably have made to this property up to that point were miniscule.
At the commencement of cohabitation the wife also had an interest in a superannuation fund worth around $40,000. I am satisfied that interest is represented in the wife's present superannuation interest.
Thus, about $175,400 of the parties’ present assets and resources can be attributed to the wife's pre-cohabitation property and resources.
The wife contributed $5,000 she received from her parents around the time of X’s birth. Both parties contributed their incomes, albeit the husband was working full time throughout the parties’ cohabitation whereas the wife took maternity leave and was working part time for part of the time, and thus her financial contribution from income was less that the husband's.
The wife made the sole financial contribution to the conservation of the former matrimonial home since separation, meeting all the outgoings and expenses in relation to it, albeit she and the children had occupation of it to the exclusion of the husband. She also made a far greater financial contribution to the support of the children, the husband having failed to meet his child support obligations.
Thus, overall up to the present, the wife has made a significantly greater direct and indirect financial contribution than the husband.
Similarly, I am satisfied the wife made a greater non-financial contribution than the husband. She was primarily responsible for the care of the children and the majority of the housework. She also maintained the garden with the exception of lawn mowing, which the parties paid to have done. She maintained the pool. She painted the inside of the home. While the husband also contributed to child care and housework, I am satisfied that his role was to assist the wife, and in any event there were periods when I am satisfied he did not assist at all.
In relation to the impact of the husband's family violence on the wife's non-financial contributions, the majority of the Full Court of the Family Court of Australia (Fogarty and Lindenmayer JJ) in Kennon & Kennon, above, FLC at 84,294 – 84,295, Fam LR at 24, said -
“(O)ur view is that where there is a course of conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ contributions within s.79.
…
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and has a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass … conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).”
I am satisfied that the wife was the victim of serious and persistent family violence perpetrated by the husband throughout the course of their cohabitation, sufficient to fall within the above formulation from Kennon.
I do not accept the submission on behalf of the husband that there is no medical evidence of the effect of the husband's violence on the wife. I accept the evidence of Dr K that-
a)The wife likely suffered an adjustment disorder (chronic) with anxious and depressed mood during the parties’ cohabitation as a result of ongoing conflict in the marital relationship, exposure to the husband's alcohol abuse and the husband's family violence, including the strangling incident in 2007. These symptoms were exacerbated by the murder of the wife’s niece and nephews by their father in 2008.
b)The wife's symptoms may at some stages during the parties’ cohabitation have met the criteria for major depression or post-traumatic stress disorder, but these symptoms have not persisted.
c)From about 2008 until separation, the wife experienced hazardous alcohol use associated with and exacerbating her adjustment disorder.
d)Prior to separation, the wife's anxiety and depression reduced the wife's capacity to meet the children’s emotional needs, and resulted in some relative neglect of the children when the wife was pre-occupied with her own condition rather than engaging with the children.
The issue is whether this evidence is sufficient to make out the case argued on behalf of the wife that her contributions were made more onerous by the husband's family violence and hence should receive greater weight in the assessment of the parties’ non-financial contributions.
I am satisfied that an inference can be drawn from the evidence of
Dr K that the circumstances in which the wife made non-financial contributions were made significantly more difficult by the husband's family violence and its significant adverse effects on her. The effects of the husband's family violence and alcohol abuse were such as in Dr K’s opinion to produce in the wife diagnosable conditions – adjustment disorder (chronic) with anxious and depressed mood, with the likelihood that her symptoms at times met the criteria for major depression or post-traumatic stress disorder. The effects extended to causing the wife to increase her alcohol intake to a hazardous level. Dr K was of the opinion, which I accept, that these effects impacted adversely on the wife's parenting capacity, leading at times to some relative neglect of the children’s needs by the wife as she was preoccupied with her own needs.
Kennon is not a basis for some sort of compensatory award to a victim of family violence. It is firmly rooted in a qualitative and quantitative assessment of the parties’ respective non-financial contributions. I am satisfied that while the husband's behaviour towards the wife made the rendering of her non-financial contributions in relation to the children significantly more arduous, it also adversely affected the quality and/or quantity of those contributions. I am also satisfied that a contributing factor to the difficulties the wife faced in parenting the children and to the reduction in the wife's parenting capacity was a matter unrelated to the behaviour of the husband, namely the murder of her niece and nephews.
In the result, I am satisfied that no additional allowance should be made for the wife's non-financial contributions under the principle in Kennon, but nor should the significance of her non-financial contributions be reduced or discounted because of her relative neglect of the children’s needs at times.
I am satisfied that overall the parties’ respective financial and non-financial contributions favour the wife 65/35.
The assessment of non-contribution considerations
In relation to non-contribution considerations, it was submitted on behalf of the wife that as the wife will have the ongoing care of the parties’ children, and given the husband's unreliability in meeting his child support obligations, an adjustment of 10% to the wife's contribution based entitlement was appropriate, taking her overall entitlement to 90% of the parties’ net assets and resources. Despite this, the wife pressed for orders that would give her 85% of the parties’ net assets and resources.
In relation to non-contribution considerations, it was conceded on behalf of the husband that as the wife has the ongoing care of the children, there should be a further adjustment in her favour of 10%, giving the wife an overall entitlement to 70% of the parties’ net assets and resources.
The parties are both in their mid 40’s, in generally good health, and in full time employment. The wife earns $66,000 per annum plus a car allowance. The husband was unemployed when he swore his financial statement, but subsequently obtained full time employment. There is no evidence as to his present income.
The wife has not repartnered. The husband has a partner. Nothing is known of her, as the husband failed to provide any evidence about her and she was not a witness in his case.
The wife will have the ongoing care of the children, aged ten and seven. The husband has proven himself unreliable in meeting his child support commitments.
In those circumstances, I am satisfied an adjustment to the parties’ contribution based entitlements is warranted in the wife’s favour. In determining the quantum of that adjustment, it is appropriate to consider the size of the net asset pool, $661,456, and to take into account the fact that the wife’s contribution based entitlement is greater than the husband's, giving her a share of $429,946.40 to the husband’s share of $231,509.60. It is also appropriate to take into account the uncertainty surrounding the husband's financial circumstances and the fact that the husband has failed to make a full and frank disclosure of those circumstances.
I am therefore satisfied that an adjustment in the wife's favour of 10%, representing $66,145, as appropriate, taking her share of the asset pool to 75%, worth $496,092. The husband share of the asset pool should be 25%, worth $165,364.
An appropriate property settlement order
The husband agreed that the wife should be given the opportunity to buy out his interest in the former matrimonial home. It was also common ground that the funds in the controlled moneys account should be paid to the husband, and that the jointly owned home contents and caravan should be retained by the wife.
If the husband is to receive a total of $165,364 from the asset pool, and he retains his superannuation of $70,387 and receives the funds in the controlled moneys account of $33,539, the wife will need to pay him $61,438 for him to receive his 25% share and the wife to retain the former matrimonial home. In doing so, the wife will need to secure the husband's release from the mortgage over the former matrimonial home. If the wife is unable to pay the husband the requisite sum and secure a discharge of the current mortgage within a reasonable period, the former matrimonial home will need to be sold and the net proceeds of sale divided as to 15.25% to the husband and the balance to the wife to achieve an appropriate division of the parties’ assets.
I certify that the preceding two hundred and eighty-five (285) paragraphs are a true copy of the reasons for judgment of Judge Halligan
Associate:
Date: 25 July 2014
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Injunction
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Remedies
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Duty of Care
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Causation
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Damages
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Costs
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