Boman & Boman
[2022] FedCFamC1F 93
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Boman & Boman [2022] FedCFamC1F 93
File number(s): DGC 1412 of 2019 Judgment of: STRUM J Date of judgment: 1 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Undefended hearing – Where the father has behaved inappropriately towards officers of the Court throughout proceedings – Where the father left mid-hearing and elected not to return – Where the hearing proceeded undefended.
FAMILY LAW – CHILDREN – Best interests consideration – Determining whether father posed “unacceptable risk” of harm to children due to prolonged drug and alcohol abuse – Whether father has not followed court orders regarding drug and alcohol testing – Order for mother to have sole parental responsibility – Order made for supervised time with father with no progression to unsupervised time.
FAMILY LAW – PROPERTY – Where the mother contends that her contributions were made more arduous due to family violence – Where the father elected to abandon the proceedings mid-hearing and the mother’s evidence regarding contributions was not tested – Adjustments made in favour of the mother.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 75(2), 79(2),(4)(a)-(c) and (e), 102NA;
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 15.19
Cases cited: Akston & Boyle (2010) FLC 93-436; [2010] FamCAFC 56
Antmann & Antmann (1980) FLC 90-908; [1980] FamCA 64
Beckert & Beckert [2021] FedCFamC1A 40;
Bevan v Bevan (2013) FLC 93-545; [2013] FamCAFC 116;
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Champness v Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Figgins v Figgins (2002) FLC 93-122; [2002] FamCA 688;
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Keane & Keane [2020] FamCA 99,
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70
M v M (1988) 166 CLR 69; [1988] HCA 68
McGregor & McGregor (2012) FLC 93-507; [2012] FamCAFC 69
N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139
Napier v Hepburn (2006) FLC 93-303; [2006] FamCA 1316
Rice & Asplund (1979) FLC 90-725; [1978] FAMCAFC 128
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Waters v Jurek (1995) FLC 92-635; (1995) 126 FLR 311;
Weir v Weir (1993) FLC 92-338; [1992] FamCA 69
Division: Division 1 First Instance Number of paragraphs: 187 Date of hearing: 6 and 10 December 2021 Place: Melbourne Counsel for the Applicant: Mr Allen on 6 December 2021 and Mr Howe on 10 December 2021 Solicitor for the Applicant: Knight Family Lawyers (until 10 December 2021). Counsel for the Respondent: Mr O’Grady Solicitor for the Respondent: Hosking Lawyers Counsel for the Independent Children’s Lawyer: Mr Schmidt Solicitor for the Independent Children’s Lawyer: Cape Kearns Lawyers ORDERS
DGC 1412 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOMAN
Applicant
AND: MS BOMAN
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
1 MARCH 2022
THE COURT ORDERS THAT:
Parenting
1.All previous parenting orders concerning:
(a)X born on 2012 (“X”); and
(b)Y born on 2016 (“Y”)
(collectively “the children”)
be and are hereby discharged.
2.The wife have sole parental responsibility for the children including, but not limited to, decisions relating to the following:
(a)subject to paragraph 6, their place of residence within metropolitan Melbourne;
(b)the issuance of passports for them, notwithstanding the absence of any consent from the father -
and keep the husband advised of her exercise of her such responsibility in writing from time to time.
3.The children live with the wife.
4.The children spend time and communicate with the husband as follows:
(a)In Week 1, on a weekend day from 12 noon until 2:00pm (in default of agreement, on Sunday), or other such time as may be agreed between the parties and the professional supervisor in writing, and on a weekend day fortnightly thereafter, to be supervised by a professional supervisor at a public venue to be agreed between the parties and the supervisor in writing (in default of agreement, the public venue to be decided by the professional supervisor), commencing on 12 March 2022; and
(b)In Week 2 for 30 minutes on Sunday, between 10:00am and 3:00pm, and each alternate Sunday thereafter, by FaceTime, Skype, Zoom or other similar audio-visual means, commencing on 6 March 2022.
5.For the purposes of the time to be spent pursuant to paragraph 4(a):
(a)The husband be responsible for all costs associated with professional supervision;
(b)Within 7 days of the date of these orders, the husband make application to a professional supervision service and direct that service to notify the wife in writing that they have received his application;
(c)Within 7 days of receipt of notification by the supervision service referred to in paragraph 5(b), the wife similarly make application thereto;
(d)The husband and the wife be permitted to provide the professional supervision service with a sealed copy of these orders and the reasons of the Court therefor;
(e)In the event the husband fails to make application to a professional supervision service within 7 days of the date of these orders and such default continues for a further period of 7 days, paragraph 4(a) of these orders shall immediately stand discharged;
(f)In the event the husband fails to attend three (3) consecutive scheduled professionally supervised sessions of time with the children, paragraph 4(a) of these orders shall immediately stand discharged;
(g)The professional supervisor be permitted to cease time spent by the children with the husband pursuant to paragraph 4(a) if, on any occasion, the supervisor considers the husband’s presentation or behaviour would make such time unsafe for the children, whereupon the children will be returned to the wife’s care as soon as practicable;
(h)The husband, at his own cost, undertake supervised urine drug and alcohol screens 48 hours prior to his scheduled time with the children and forthwith upon receipt provide the results thereof to the professional supervisor and request and direct the supervisor to provide them to the wife; and
(i)In the event the husband tests positive for drug or alcohol use on any occasion, his next occasion of time with the children be suspended and, in the event he tests positive on three consecutive occasions, paragraph 4(a) of these orders shall immediately stand discharged.
6.In the event the husband relocates to reside outside of the State of Victoria, then the mother be permitted thereafter to relocate the children with her anywhere within the Commonwealth of Australia, and each parent advise the other in writing of the State or Territory to which he / she has relocated within 7 days of such relocation.
7.Each parent keep the other advised in writing of his / her current telephone number and email address.
8.The husband be permitted to obtain from the children’s school(s), at his request and expense, the following:
(a)Notices of school events to which parents are ordinarily invited;
(b)Annual school photograph order forms and information;
(c)Copies of the children’s school reports;
9.For the purpose of paragraph 8 of these Orders:
(a)The husband be permitted to attend school events to which parents are ordinarily invited, save that he shall not attend any such event at which the children are also present unless he is professionally supervised;
(b)The wife be permitted to provide the children’s school(s) a sealed copy of these Orders.
10.In the event of a medical emergency relating to the children, the wife notify the husband thereof in writing as soon as practicable.
11.The wife obtain a referral from the children’s general medical practitioner for the children to attend upon a mental health professional for the purpose of addressing their relationship with the husband and she follow all reasonable recommendations and advice of such professional.
12.The wife be permitted to provide the children’s said mental health professional with a copy of these Orders and the reasons of the Court therefor.
13.The husband be restrained by injunction from:
(a)being under the influence of alcohol, illicit substances or medication (save for prescribed or over-the-counter medication) during any time with the children;
(b)using or consuming illicit substances within the period of 48 hours prior to or during any time with the children or bringing the children into contact with any other person using or consuming (or who has used or consumed within the preceding 48 hours) illicit substances;
(c)consuming medication (saved for prescribed or over-the-counter medication) within the period of 48 hours prior to or during any time with the children and, in the case of prescribed or over-the-counter medication, other than strictly in accordance with such prescription or directions as appear on such medication;
(d)driving the children or either of them in any motor vehicle;
(e)exposing the children to any form of family violence;
(f)communicating with or behaving towards to any lawyers or other professionals (including supervisors) involved with or acting on behalf of the wife or the children in an abusive, offensive or derogatory manner
14.Each of the parents, by themselves, their servants and agents, be restrained by injunction from:
(a)abusing, rebuking or otherwise denigrating the other parent, or any member of the other parent’s family, to or within the presence or hearing of any of the children or allowing the children to remain within the presence or hearing of any third party engaging in such behaviour;
(b)discussing these proceedings (including any allegations made in the course of these proceedings) or negotiations regarding parenting matters, with or within the presence or hearing of any of the children or allowing the children to remain within the presence or hearing of any third party engaging in such behaviour, save for explaining living and spending-time arrangements pursuant to these Orders; and
(c)showing or making accessible to any of the children any document filed in or relating to these proceedings, including text messages, emails and letters.
15.Pursuant to section 68P of the Family Law Act 1975, there being an Intervention Order made 22 January 2021 pursuant to which the wife and the children are named as Protected Persons and the husband is named as the Respondent, these Family Law Orders will prevail to the extent of the following inconsistencies:
(a)for the purposes of paragraphs 4(a), 4(b) & 9(a) hereof, the husband be permitted to spend time and communicate with the children, notwithstanding paragraph 5 of the Intervention;
(b)for the purposes of paragraphs 4(a) & 9(a) hereof, the husband be permitted to approach or remain within 5 metres of the children, notwithstanding paragraph 6 of the Intervention Order;
(c)for the purpose of paragraph 9(a) hereof, the husband be permitted to be within 200 metres of the children’s school(s), notwithstanding paragraph 7 of the Intervention Order;
(d)for the purposes of paragraphs 6, 7 and 10 hereof, the husband be permitted to be in contact or to communicate with the mother, notwithstanding paragraph 5 of the Intervention Order;
(e)for the purpose of paragraph 5(b) hereof, the husband be permitted to direct such professional supervision service to contact or communicate with the mother, notwithstanding paragraph 8 of the Intervention Order.
Property Orders
16.Within 60 days of the date of these Orders (“settlement date”), the husband sign all documents and do all acts and things necessary to transfer to the wife all his right, title and interest in the property at C Street, Suburb A, Victoria (more particularly described in Certificate of Title Volume …, Folio …) (respectively “C Street” and “transfer”).
17.Contemporaneously with the transfer:
(a)The wife sign all documents and do all acts and things necessary to discharge and release the husband from all liability for the Commonwealth Bank mortgage registered number …2G (“mortgage”);
(b)The husband sign all documents and do all acts and things necessary to remove or cause to be removed caveat number …0M registered on the Certificate of Title to C Street by the his former solicitors, E Lawyers, on 18 August 2019 (“caveat”);
(c)Subject to compliance by the husband with sub-paragraph (b) hereof, the wife pay to the husband the sum of $106,000 (“payment”).
18.In the event the husband fails to procure the removal of the caveat by or on the settlement date then, prior to the payment to the husband:
(a)the wife be and is hereby authorised to deduct from the payment and to pay to E Lawyers such sum as may be reasonably necessary to procure the removal by them of the caveat; and
(b)the balance of the payment thereupon be paid to the husband –
(c)without prejudice to any rights or remedies of the husband against E Lawyers.
19.In default of the payment to the husband in accordance with these Orders by the date, C Street be sold (“sale”) on such terms and conditions as may be agreed between the parties and the proceeds of sale be applied as follows:
(a)first, to pay all costs, expenses and commissions of the sale;
(b)secondly, to discharge the mortgage;
(c)thirdly, to make the payment to the husband, subject to Orders 17(b) and 18(a) hereof, together with interest pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021;
(d)fourthly, the balance be paid to the wife.
20.In the event the husband refuses or neglects to execute any documents required by or necessary to give effect to paragraphs 16 – 17, an officer of this Honourable Court be appointed to execute such document(s) pursuant to section 106A of the Family Law Act 1975.
21.That unless otherwise specified in these Orders and save for the purposes of enforcing the payment of any moneys due under these Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession or control of such party as at the date of these Orders;
(b)each party be solely liable for and indemnify the other against any liability encumbering or relating to any item of property to which that party is entitled pursuant to these Orders;
(c)each party retain any superannuation entitlements to the exclusion of the other party;
(d)moneys standing to the credit of either party in any bank, building society or investment account be the sole property of the owner named thereunder;
(e)all insurance policies be the sole property of the owner named thereon,
(f)any joint tenancy of the parties in any real or personal property be and is hereby severed.
Procedural
22.All extant applications be dismissed.
23.The order for the appointment of the Independent Children’s Lawyer be discharged upon the expiration of 30 days from this date, prior to which the Independent Children’s Lawyer meet with and explain these Orders to the children.
24.Within 14 days of the date of these Orders, a copy thereof be provided by this Honourable Court to:
(a)The Registrar of the Magistrates’ Court of Victoria at Suburb G;
(b)The Chief Commissioner of Victoria Police; and
(c)The Department of Fairness, Families and Housing.
AND THE COURT NOTES THAT:
A.Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations the parenting orders herein create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and such particulars are included in these Orders.
B.During the course of the pronouncement of these Orders, the husband left the Microsoft Teams Hearing link as he did at the hearing on 10 December 2021 and on a prior occasion when appearing before Senior Judicial Registrar Hoult.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Boman & Boman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
Background
The applicant husband, Mr Boman, was born in 1977 and is presently 44 years of age. The respondent wife, Ms Boman, was born in 1985 and is presently 36 years of age. They commenced cohabitation in or about the latter half of 2009, were married in 2015 and separated on a final basis in October 2018. There are two children of the marriage: X, born in 2012 and presently nine years of age; and Y, born in 2016 and presently five years of age.
Proceedings for parenting orders were instituted by the husband on 7 May 2019, by Initiating Application filed in the Federal Circuit Court of Australia (now Division 2 of this Court). By Response filed on 8 July 2019, the wife sought different parenting orders, as well as orders for alteration of interests in property. Subsequently, amended Applications and Responses were filed. Minutes of the orders sought at trial were tendered on behalf of each of them, as well as on behalf of the Independent Children’s Lawyer.
In summary, over the course of the proceedings, spanning over 2.5 years, orders were variously made (inter alia) for the children to be independently represented; for the children to live with the wife and spend limited supervised time with the husband; for the husband to undertake random supervised urine drug testing, as well as hair alcohol and drug testing for amphetamine-type substances, cannabis, cocaine and opioids and associated metabolites, benzodiazepines and all sympathomimetic amines, with proof of chain of custody; and, more recently, for all orders with respect to the husband’s time with the children to be discharged and for the wife to have sole parental responsibility and for the children to live with her, until further order. He did not undergo supervised urine drug testing or hair alcohol and drug testing in compliance with the requirements of the orders. Further, I note the following matters.
On 4 October 2019, orders were made by consent (inter alia) that the husband attend upon Dr F, or such other psychologist nominated by the Independent Children’s Lawyer, to undergo a psychological evaluation and parental capacity risk assessment and that he be responsible for funding same. As with the orders for alcohol and drug testing, he did not do so.
On 23 April 2020, Judge Riethmuller (as his Honour then was) ordered that the matter be transferred to the Family Court of Australia (now Division 1 of this Court).
On 12 August 2020, orders were made restraining the husband from communicating with lawyers and other professionals involved in the proceedings unless for the purposes of discussing the future conduct of the case, and from behaving in an abusive, offensive or derogatory manner to such lawyers and other professionals. In my experience, that was an unusual order, rarely made. However, two days previously, the Independent Children’s Lawyer filed an affidavit upon which she also relied at trial, in which she deposed to eight requests made by her of the husband to undergo testing as ordered, between 14 October 2019 and 23 June 2020. There were 25 annexures to that affidavit, which spanned 79 pages in total. Most, if not all, of those requests were not complied with, as required by orders of the Court. However, the contents of some of the emails annexed to the Independent Children’s Lawyer’s affidavit, being emails from the husband to the Independent Children’s Lawyer and to the wife’s solicitor, may explain in part and/or contextualise the restraining orders made on 12 August 2020. For example, at paragraph 12 of her affidavit, the Independent Children’s Lawyer deposed to and annexed the following emails received by her from the husband on 16 December 2019:
8.44am
“[Ms DD],
How much is the hair follicle test? Are you guys paying for this because if it’s going to cost hundreds of dollars, I cannot afford it. I will get the urine screening done immediately although I don’t know why I’m bothering to obey the order when I don’t get to see my children anyway. I haven’t seen my children in nearly two months, so there’s really no point in me making the effort to do these things. It’s all a bloody pathetic joke.”
9.05am
“Or maybe my attitude should be that I’ll follow the order and do the screening when they follow the order and let me see my children. Then again, that would just enable you to cause me of being on drugs so I guess I’m left in a position where, as usual, I have to obey instructions while my children are being traumatised because their mother is a nasty vindictive woman who’s manipulating the system and not obeying the order herself. This is exactly why there’s going to be a federal senate enquiry. One day justice will be done however it’s just so horrible that my children would have already suffered and the damage will be irreversible. Watch this space [Ms DD].”
3.22pm
[Ms DD],
I’m not doing anything until I see my children. See, last time I checked, I agreed to doing drug screenings which was part of a court order which included seeing my children, at minimum, fortnightly.
I have nothing to lose here [Ms DD]. Your one sided, uneducated and man hating opinions of and about me mean nothing to me. If you had any decency, instead of sending me emails to get drug screenings and hair follicle tests, you’d be at minimum trying to enforce the order on the other party so my children weren’t punished by having their dad completely removed from their lives.
Until the other party obeys the order meaning I see my children, I am not wasting my time and money doing anything because it’s all for nothing anyway.
You can interpret this/these email/s in whatever way you like to continue portraying me as a horrible or unstable or dangerous person but the reality is quite the opposite. Nine months ago I had my children who I love so much taken from my life for NO reason at all apart from vindictiveness and jealousy and when I attempted to fix that problem by making an application to the court, bias and judgemental people like yourself made things even worse for me and my children and that’s even after my daughter told you herself that she wanted to see me more.
If you think I’m not going to get emotional or upset and play along with these pathetic games being played particularly after having the most important things in my life taken from me then you’re living in an unrealistic world. Only someone with a bias opinion or someone who lacks experience and education in this field could expect polite and seemingly rational responses when that person has been traumatised daily for this length of time. Unbelievable.
[Mr Boman]
At paragraph 20, the Independent Children’s Lawyer quoted from and exhibited an email from the husband to the wife’s solicitor:
[Mr FF],
I can answer that for you. I complied with completing the screening the day I received it.
Sometimes when I receive an email from [Ms DD], if they are not a reply email, they go straight to my junk email. I happened to check my junk email on Monday and did the screening that same day.
I believe the email was sent on Friday so whether I did it within 24 hours, therefore realistically Saturday or Monday makes absolutely no difference at all.
Nice try in your attempt to make me look bad. Given your history, I can understand your attempt to divert negative attention from yourself. Maybe you should focus your time on making sure your client stops breaching the order and actually completes the things I’ve asked you and her to do for the benefit of MY children.
Regards,
[Mr Boman]
At paragraph 23, the Independent Children’s Lawyer deposed to and annexed the following emails received by her from the husband on 2 March 2020:
8.52am
Wow. You are unbelievable. You don’t even respond to my emails when I contact you regarding the other party breaching the order and therefore resulting in me not seeing my children for three months but you can hassle the crap out of me to do two tests within one week. You are a joke [Ms DD]. I’ll do the bloody test but you just proved again your one sided bias attitude that, as has always been the case, favours the mother and despite their constant breaches of the order. This is a joke but I’ll do the test. Maybe you could focus more on them. I didn’t make this application to the court so bias judgemental people like you could put me on trial while allowing the mother to blatantly breach the order time and time again.
12.20pm
Hi again [Ms DD],
Apologies for my earlier message. I just sometimes feel like I’ve been put on trial even though I’m the one who made the application to court. That feeling is enhanced by the other party blatantly being so horrible with situations such as the three month period I went without seeing my children.
Anyway, I just wanted to say sorry. I know you’re just doing your job and it actually benefits me to get as many screenings done as possible.
Regards,
[Mr Boman]
I note the apology by the husband at the commencement of the latter email but then so too do I note the explanation proffered by him and the lack of any assumption by him of any responsibility for the situation in which he found himself. In all the circumstances, the apology may have been disingenuous.
In any event, any contrition by the husband had dissipated by 23 June 2020, when he sent another email to the Independent Children’s Lawyer (referred to and annexed at paragraph 31), not dissimilar in tone to the previous ones, in the following terms:
9:08am
[Ms DD],
I agreed to do drug screenings on the basis that I would have access to my children. The children’s mother is still insisting on breaching the order therefore, I have not seen my kids in three months.
Anyone who thinks it’s okay for the woman to breach the order is a sexist and wrong but that seems to be the attitude.
I will resume doing the test when my children’s mother stops breaching the order. I only do the test on the basis of seeing my children so if I’m. Not seeing them, I’m not doing the tests.
[Mr Boman]
On 19 July 2021, nearly two years after the orders for alcohol and drug testing were first made, the Honourable Chief Justice Alstergren ordered:
5.The Applicant propose to the Respondent, in writing, a variation of the court orders made on 4 October 2019 regarding the requirements to which the Applicant must adhere for undergoing requisite drug screens.
6.The Applicant is to comply with previous orders of the Court which require him to undergo drug screens on request of the Independent Children’s Lawyer.
However, more than four months later, when the trial before me commenced, there was no expert evidence before me, either of alcohol and drug testing in compliance with the orders of the Court, or of any psychological evaluation and parental capacity risk assessment of the husband as had been ordered. In the context of this case, upon which I will expand below, they would have been very important pieces of evidence and I am left with troubling evidentiary lacunae brought about principally by the husband.
On 23 July 2021, the Honourable Justice Gill fixed the matter for trial before him for five days, commencing on 6 December 2021. The matter was subsequently transferred to my list and commenced on that date.
Over the course of the proceedings, the husband was at times legally represented and at other times he was self-represented. In orders made upon the first return of the proceedings on 17 July 2019, Judge Mercuri (as her Honour then was) made the usual section 102NA notations, including that if there were allegations of family violence and the provisions of that section applied, any unrepresented party would not be permitted to personally cross-examine the other party and that affected unrepresented parties might apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for representation. Similar notations were subsequently again made over the course of the proceedings. In particular, on 19 July 2021, the Honourable Chief Justice Alstergren ordered, inter alia, that pursuant to section 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) (‘the Act’) neither the husband nor the wife be permitted to personally cross-examine the other and made notations in relation thereto, including alerting the husband and the wife to the Commonwealth Family Violence and Cross-Examination of Parties Scheme.
The proceedings commenced before me on Monday, 6 December 2021. Mr Allen of Counsel announced his appearance on behalf of the husband; Mr O’Grady of Counsel appeared on behalf of the wife; and Mr Schmidt of Counsel appeared on behalf of the Independent Children’s Lawyer. Given the section 102NA notations that had previously been made, I sought to clarify with Mr Allen whether he appeared for the husband generally or solely for the purposes of cross-examination of the wife. Mr Allen advised me that he was “very happy” to appear for the husband generally. I thanked him for being prepared to do so, having explained to him that I could not require him to do so.
In the week preceding commencement of the trial, the lawyers for the parties were advised that I would not be sitting on 7 – 9 December 2021 and that the trial would resume on Friday, 10 December 2021 and continue the following week between Monday, 13 – Wednesday, 15 December 2021. In the circumstances, I proposed that all parties open their respective cases on the first day. No opposition was voiced to this course and, on 6 December 2021, all counsel advised me that they were in a position to open and, helpfully, they did so.
In her Outline of Case document filed on 1 December 2021, the wife identified two affidavits upon which she relied at trial (in addition to documents proposed to be tendered), namely, her affidavit filed on 29 November 2021 and an affidavit of Mr H, a certified practicing valuer, annexing a valuation of the former matrimonial home at C Street, Suburb A, Victoria. She also relied upon her Financial Statement filed 29 November 2021.
In the Independent Children’s Lawyer’s Outline of Case document filed on 2 December 2021, she identified a number of documents, including the affidavit by her filed on 10 August 2020, the Family Report of the Family Consultant dated 1 November 2021 and a memorandum of her meeting with the children on 16 November 2021. However, presumably by reason of the way in which the hearing unfolded, that latter document (which was not annexed to an affidavit) was not ultimately tendered. She also listed a number of other documents proposed to be tendered.
In relation to the husband, at the commencement of the trial, I raised with Mr Allen my concern that the husband’s Outline of Case document (albeit incorrectly styled as an “Affidavit”), drawn by him and filed on 30 November 2021, listed seven affidavits filed by him or on his behalf over the course of the proceedings, the earliest of which was filed on 7 May 2019, more than two and a half years ago. I indicated to Mr Allen that, although in breach of the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, in circumstances where the husband had been largely unrepresented, I was minded, for reasons of procedural fairness, to allow him to rely upon more than one affidavit at trial, but requested that counsel exercise forensic judgment and identify those upon which it was, in fact, necessary to rely. Sensibly, neither counsel for the wife nor for the Independent Children’s Lawyer objected to this course. Mr Allen ultimately identified four affidavits of the husband in the list upon which reliance would be placed, being those filed on 7 May 2019 (sworn 6 May 2019), 4 October 2019, 10 November 2021 and 29 November 2021 (sworn 17 November 2021), together with a further affidavit filed on the last working day prior to the commencement of the trial, being 3 December 2021 (after his Outline of Case document was filed). No objection was taken to reliance by the husband upon the latter, late-filed affidavit. He also relied upon his Financial Statement filed 25 November 2021.
I note that, notwithstanding the number of affidavits ultimately relied upon by the husband with my leave, the only one in which he deposes, in any meaningful way, to the history of his drug use is that filed on 7 May 2019, more than 2.5 years ago, and in respect of which (as with the others), by his actions alone (which are addressed hereunder), he precluded any cross-examination.
Prior to, and later in the course of, Mr Allen’s opening, he was interrupted by the husband, who indicated that he wished to take over the conduct of his case and that Mr Allen be confined only to cross-examination of the wife. When the matter was first raised by the husband, on the morning of the first day of the trial, I required Mr Allen to discuss the issue with and take instructions from the husband in this regard and the matter was stood down at 10.58am. When the matter resumed at 12.36pm, Mr Allen appeared and continued to represent the husband until the luncheon adjournment. I note that Mr Allen had approximately 1.5 hours during the morning to confirm his instructions to continue to act for the husband.
However, when the matter resumed after the luncheon adjournment, I was informed by Mr Allen that the husband wished to avail himself of his “prerogative” and to open his case himself. In circumstances where the husband had the benefit of counsel who had informed me that he was prepared to appear throughout the trial, and not only for cross-examination “under the formal brief”, this was a most unusual course and one which, in the control of my court room and the proceedings before me, I was reluctant to allow. The matter was briefly stood down again and, when it resumed, Mr Allen proceeded immediately to open his client’s case.
Later that afternoon, during the course of Mr Allen’s opening, he was again interrupted by the husband who indicated that he wished to take over the conduct of his case and that Mr Allen be confined to cross-examination of the wife. When I observed to the husband that he was competently represented by Counsel, he told me that he “felt pressured into that” but not by whom he felt pressured.
In the circumstances, I called for the letter from Victoria Legal Aid to Mr Allen’s instructing solicitor specifying the terms of the grant of aid. That letter, dated 17 November 2021 and addressed to Mr Allen’s instructing solicitor (marked exhibit H1), disclosed that the grant of legal aid covered:
a.preparation for trial, taking instructions, preparing documents, subpoenas, reading family report, interviewing witnesses, briefing counsel and conference with counsel; and
b.appearance at defended hearing day(s) for up to four trial days.
The grant of aid was not limited to cross-examination but to “court events where personal cross-examination is likely to occur”. In the circumstances, the husband was put to his election: either to allow his counsel to conduct the trial or to sack his counsel and represent himself, in which case I reminded him, through his counsel, that he would be precluded from cross-examining the wife. I was concerned to ensure that he understood the ramifications of the latter course, should he be minded to do so. Mr Allen remained until the Court rose at 4.41pm.
After Mr Allen concluded his opening, Counsel for each of the wife and the Independent Children’s Lawyer likewise opened their respective cases. I was assisted by all of the openings and by the willingness of all counsel to open their respective cases at the commencement of the trial.
At the commencement of his opening, Counsel for the Independent Children’s Lawyer brought to my attention that the husband had left the Teams hearing about five minutes earlier, during the course of Mr O’Grady’s opening. He told me that this occurred around the time Mr O’Grady submitted that the husband “treats himself as a ringmaster in a circus of the mother’s and the children’s life”. That is one of the problems with video hearings, notwithstanding their great assistance to the Court and to litigants over the past two years. I did not notice the cessation of the husband’s participation, nor do I know the reason therefor or why it was not brought to my attention at the time it occurred by any of the members of Counsel who noticed it. However, Mr Allen was content to proceed on the basis that he would convey to the husband what Counsel for the Independent Children’s Lawyer said in his opening.
The matter was then adjourned to Friday, 10 December 2021. When the hearing resumed on that day, the husband was no longer represented by Mr Allen but by Mr Howe of Counsel. Given the change in counsel, I was concerned to ensure procedural fairness to the husband and, through him, to his counsel. Therefore, I confirmed with Mr Howe that the only affidavits he sought to rely upon were those previously identified by Mr Allen and he agreed that was the case. I advised Mr Howe that his predecessor, Mr Allen, had commenced and concluded his opening. Mr Howe enquired whether I “required” him to reopen. I told him that I did not. Mr Howe proceeded to call the husband.
In examination in chief, the husband was taken by his counsel only to his affidavits filed on 7 May 2019, 4 October 2019, 10 November 2021 and 29 November 2021 (and not his affidavit late-filed on 3 December 2021) and he confirmed that their contents were true and correct in every detail. He did not seek to expand upon the affidavits identified by his counsel as those upon which reliance was placed for the purposes of the trial.
Cross-examination of the husband by counsel for the wife proceeded over the course of that morning and, given the matters in dispute, unsurprisingly was not concluded by the luncheon adjournment. However, shortly prior thereto, cross-examination progressed from financial matters and commenced briefly in relation to parenting matters. I do not know whether counsel for the wife had concluded his cross-examination in relation to financial matters. When court resumed in the afternoon, I was made aware that, over the luncheon adjournment, notwithstanding he was under cross-examination, the husband had directly emailed the Court, his solicitor, the solicitor for the wife and the Independent Children’s Lawyer advising that he sought to rely upon further affidavits not identified by either of the counsel who appeared on his behalf on 6 December or that day. I stated that, in the circumstances, including the indulgences I had already provided to him and both of his counsel, I was not minded to allow this to occur. The husband then said “see you” and he terminated the video link at about 2.21pm. This was not the first occasion on which he so behaved over the course of these proceedings. A notation to orders made by Senior Registrar Hoult on 12 August 2020 records that “the Applicant Husband hung up and left the Court proceedings at 11:10am this day”.
The matter was then stood down to enable Mr Howe to talk to the husband, albeit under cross-examination, about his intention of proceeding. When the hearing resumed some five minutes later, I asked Mr Howe whether his client was participating again in the proceeding. Mr Howe responded:
“No, he is not, your Honour. He says he won’t proceed with the matter. He feels aggrieved that his affidavit is not being accepted – not being admitted or relied upon … and he refused to take any further part in the proceedings, which I take to mean my instructions are withdrawn.”
Mr Howe proceeded to tell me that he had explained the consequences of non-participation to his client but that he had “considered the matter and he refuse[d] to take any further part in this proceeding”. Counsel for the respondent wife then sought to proceed undefended, which was supported by the Independent Children’s Lawyer. In particular, they sought the dismissal of the husband’s application and orders in terms of the minute submitted on behalf of the wife. The matter was then again stood down, this time for some twenty minutes. When the hearing resumed, Mr Howe informed the court that his instructions had been withdrawn and that the husband was not proceeding in person. In the circumstances, I permitted the wife and the Independent Children’s Lawyer to proceed on an undefended basis, as previously sought by them.
Mr Schmidt then told me that the Independent Children’s Lawyer’s position was that:
“If the mother were now to seek that there be orders for no time as opposed to supervised time, and indeed no communication in the circumstances, the ICL would support that position. Ultimately, the ICL is of the view that, in circumstances where the father is now electing not to participate, there were grave risk concerns about the father, that would be appropriate if that’s what the mother seeks”.
However, in circumstances where the husband had made his decision no longer to participate on the basis of the parameters of the case as they stood at that time, I expressed concern about making orders in his absence of which he had no notice. Sensibly, neither Mr O’Grady nor Mr Schmidt sought to proceed further on that basis.
It was unfortunate and clearly to the husband’s detriment that he conducted himself and his case in the way that he did. However, he was the sole author of his misfortune, having been afforded by me, through both of his counsel, a number of indulgences by reason of having previously been self-represented, as well as invited by me, through Mr Howe, to return to the hearing and continue participating in the proceedings.
In circumstances where the matter continued undefended, much of the husband’s evidence therefore was unable to be tested, and I give such untested evidence little, if any, weight in the circumstances. However, as the husband had been cross-examined by counsel for the wife for over two hours over the course of the morning, I had the opportunity to hear his some of his evidence tested and to observe his demeanour. Counsel for the wife, in his opening to me submitted, and the husband by his behaviour during the hearing established that, “he [the husband] treats himself as the ring master in a circus of the mother’s and the children’s life just as he has today attempted to treat himself as the ringmaster of this court”. My observations of him during and his answers in cross-examination, as well as his conduct in abruptly terminating the video-link and withdrawing from the proceedings, lead me to conclude that Mr O’Grady’s description of the Applicant was not hyperbole but, in fact, fair. He was antagonistic in cross-examination. Further, he was cavalier in his answers in cross-examination, on occasion laughing when there was nothing apparent at which to laugh, or answering flippantly. Examples include the following:
(1)In cross-examination on 10 December 2021, remarkably, he said that he had not read “all” of the wife’s trial affidavit filed on 29 November 2011 because he is “only capable of absorbing so much information”. I note both that the body of the wife’s affidavit comprises about 20 pages of text and that the husband has filed some nine affidavits over the course of the proceedings.
(2)Although he was appearing in a superior court of record, he flippantly referred to counsel for the wife in his cross-examination as “mate” which required me to direct him not to do so.
(3)When it was put to the husband in cross-examination that the wife had paid the sum of $58,659 by way of principal and interest repayments in respect of the home loan secured by mortgage over the former matrimonial home, he merely responded that it was “cheap rent”.
(4)When asked whether he had shared with the wife the proceeds of sale of some shares he had sold after separation, the husband laughed and said: “That’s absolutely ludicrous”. He did not explain how that was so and, given his withdrawal from the proceedings during cross-examination, he precluded any re-examination.
When the husband was cross-examined as to why he was unemployed, he replied that it was because he was not vaccinated against Covid-19. He continued:
“I’m not vaccinated because I don’t want to take a medication that is approved under emergency use meaning it’s an experimental medication. When it is fully approved by the TGA and the FDA in the US then I will happily take it. I am not an “anti-vaxxer, never been an anti-vaxxer … I am just explaining that um when the vaccine is approved under the full use, I personally don’t think there’s an emergency per se if you look at all the stats, that’s a whole different can of worms we can open up, but that’s my stand on it. … I spent a good time getting away from drugs your honour, I am not about to start putting experimental ones back into my body.”
Despite the last sentence, I could not help but to be struck by the incongruity, on their face, of the preceding statements in circumstances where the husband has had a long history of heroin use, which may (but I can put it no higher than that) be ongoing. However, suffice it to say at this point that the husband, by his intemperate withdrawal from the case, leaves the wife’s evidence entirely unchallenged and the balance of his own evidence unable to be further tested. Further, I note that at paragraph 8(v) of his affidavit sworn and filed on 10 November 2021, the husband deposes as follows:
(v)On Friday 29th October 2021, I received an email from [Ms Boman]’s lawyer requesting that I provide him with my covid-19 vaccination status as he was in the process of completing material for parenting matter. I responded by saying that it was none of his business and that he has no right to request such information. I believe this further misconduct, on top of the misconducts I have already raised with the court in the Application in a Case that I lodged. I have lodged formal complaints in regard to this to the Family Court and the Legal Services Board of Victoria. There are no Vaccine mandates or laws relevant to parenting and I am both shocked and disturbed by such a manipulative, illegal and unethical request from a registered legal practitioner.
That evidence does not sit comfortably with his limited evidence on this issue in cross-examination.
Further, in the limited time I had to listen to and observe his cross-examination, as well as by reason of documents to which I was taken and which were tendered after his abrupt withdrawal and to which I will refer hereunder, I had cause to doubt his credibility. This is addressed further hereunder. Of course, had he remained, at least until the conclusion of his cross-examination, those doubts might have been dispelled. However, he and only he denied himself that opportunity.
Rule 15.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides:
(1) If a party to a proceeding is absent from a court event (including a first court date), the court may do one or more of the following:
(a) adjourn the court event to a specific date or generally;
(b) order that there is not to be any court event, unless:
(i) a new date for the court event is fixed; or
(ii) any other steps that the court directs are taken;
(c) if the absent party is an applicant—dismiss the application;
(d) if the absent party is a party who has made an interlocutory application—dismiss the interlocutory application;
(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2) If a party to a proceeding is absent from a court event, the court may also make an order of the kind referred to in subrule 10.27(1) or (2) (orders on default), or any other order, or may give any directions, and specify any consequences for non compliance with the order, that the court thinks just.
In Beckert & Beckert [2021] FedCFamC1A 40 (‘Beckert & Beckert’), during a trial held on Microsoft Teams, the husband had abandoned the proceedings without notice to the other parties or the Court. The wife and the Independent Children’s Lawyer made an application that the hearing proceed on an undefended basis. The primary Judge acceded to that application and later made final parenting orders and a final property settlement order based upon the evidence before her Honour, as at the end of the undefended hearing and the submissions made by counsel for the wife and the Independent Children’s Lawyer. The husband appealed. At paragraph [55], the Full Court said:
“… In an undefended hearing, the court has the discretion as to whether regard is had to part or all of the evidence of the excluded party (Tate v Tate (2000) FLC 93-047at[95] and [96] ). In this case the primary judge did not proceed as if the husband had not filed a response. Her Honour referred to the husband’s written evidence and outline of submissions at [6] and concluded:
7.The husband abandoned the proceeding after the closing of the wife’s case and whilst he was being cross-examined by counsel for the wife. None of the affidavit evidence of the witnesses upon which he relied can be given any, or any significant, weight. They were not made available by the husband for cross-examination by the other parties. Likewise, the husband did not permit his evidence to be challenged as to property matters and thus such evidence is given little or no weight.
The appellant husband challenged the primary Judge’s finding that he had abandoned the proceedings. At paragraphs [73] – [82], the Full Court said:
[73]A close reading of the transcript of day one and day two, discloses the extensive nature of the husband’s disruptive conduct during the trial. The primary judge had the advantage of hearing the husband for significant parts of both days, despite the occasions when there was difficulties in doing so.
[74]The husband does not challenge, by any ground of appeal, the primary judge’s description of his behaviour during the hearing, and at the hearing of the appeal, counsel for the husband conceded that the behaviour was “troubling” and made “no excuse for it”.
[75]The primary judge found that upon the re-establishing of an effective audio link to the husband via his business’ telephone landline, the husband inquired whether all the parties were appearing by telephone link only. Upon being advised that he was, but the remaining parties would continue by video and audio, the connection to his landline was terminated.
[76]The husband had the strong view that the primary judge was actually biased against him and believed he was being unfairly prejudiced by the direction, which is not challenged by any ground of appeal, that he only participate by audio link. He desired that he be seen and that he could see those participating.
[77]The husband on multiple occasions before this moment of disconnection attempted to rejoin the video connection on Teams. Leading up to this moment, his behaviour had become increasingly sarcastic, obnoxious and belligerent. The primary judge found he appeared not to be sober.
[78]The circumstances leading up to and particularly those immediately before the moment the husband left the hearing, provide powerful circumstantial evidence that the termination of the husband’s attendance at the hearing was the result of a deliberate act by him.
[79]The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists (Carr v Baker (1936) 36 SR (NSW) 301 at 306 per Jordan CJ cited by Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [86] ). The test is whether, on the basis of the primary facts, it is reasonable to draw the inference (see Luxton v Vines (1952) 85 CLR 352 at 358 ; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 ).
[80]The primary judge drew an inference that the husband had abandoned the proceedings. It was reasonable for the primary judge to draw that inference given the undisputed circumstances that had led up to and immediately preceded the husband disconnecting the audio link into the hearing.
[81]The primary judge’s finding was subsequently fortified by the fact that the husband had used a method of rejoining the hearing that he had been directed by the primary judge not to use.
[82]The primary judge was more than entitled to find the husband had abandoned the proceedings and Ground 1(a) fails.
(Footnotes omitted)
In the present case, there can be no doubt that the husband abandoned the proceedings; it was confirmed by his Counsel.
At paragraphs [95] – [97], the Full Court said:
[95]The primary complaint under this ground as developed in the husband’s Summary of Argument filed 18 March 2021 relates to the finding of fact to the effect that the husband had consciously delayed and disrupted the proceedings (at [60]). In reaching that assessment, the primary judge had the advantage of observing the husband during the not insignificant periods of time when the video feed was operative and of extensively hearing the husband, despite the difficulties from time to time with his audio feed.
[96]It was well open to the primary judge to make this finding, and her Honour’s reasons adequately explain why she did so. It is hard to conceive that any other finding is possible.
[97]In so far as this ground asserts more generally that the primary judge’s reasons for making the undefended hearing order were inadequate, we reject that; her Honour’s reasons enable the parties to identify the basis upon which she made that order (Bennett and Bennett (1991) FLC 92-191 at 78 266-78,267; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 ).
As in Beckert & Beckert, in the present case, I had the benefit of observing the husband by Microsoft Teams over more than one and a half days, prior to his departure, and listening to his evidence in cross-examination during the morning of the second day of the trial. Again, his abandonment of the hearing early in the afternoon of the second day was not inconsistent with his behaviour over the preceding one and a half days and, indeed, was consistent with his behaviour on 12 August 2020, which was noted by Senior Registrar Hoult in the Orders he made that day, as referred to earlier in these Reasons for Judgment.
At paragraphs [107] – [118], the Full Court said:
[107]We now come to the central question in this appeal, the husband’s challenge that it was procedurally unfair to exclude him from further participation in the hearing after he had abandoned it.
[108]The husband points to the fact that he was given no notice of the applications made by the wife and the ICL to so exclude him. The wife points to a procedural event on 8 October 2019 in which the primary judge adjourned the proceedings to the following day for the purposes of considering whether the wife would be granted leave to proceed on an undefended basis. On 9 October 2019 the wife was granted liberty to proceed on an undefended basis if the husband continued to fail to file material on which he relied. The wife also relies upon an implicit warning given to the husband by the trial judge at 11.55 am on day two. We accept that the primary judge did not explicitly warn the husband that the hearing might continue without his participation and as a result, he was not given an opportunity to address her Honour about that possible outcome. Such a warning potentially could have been provided by the primary judge adjourning the proceedings and providing the husband a warning by email at his business address or by telephoning the landline, which the husband had disconnected, to explore whether he was prepared to reengage.
[109]That however begs the question as to whether that lack of warning constituted procedural unfairness in the circumstances of this case.
[110]We accept the wife’s submission that the husband’s abandonment of the proceedings was analogous to a party physically leaving a court room during a hearing. Once that election is made by a party, a party has forfeited their right to assert that they had not been provided an opportunity to be heard. There is no question that the husband was on notice that a hearing was taking place. A party has no right to expect if they abandon a hearing that it will not continue in their absence. It is a risk that the husband took when he abandoned his opportunity to be heard.
[111]In Allesch v Maunz (2000) 203 CLR 172 , Kirby J observed at [38]–[40]:
38.… Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39.Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40.Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted, the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
(Footnotes omitted)
[112]The husband in this case, for whatever reason, was not acting rationally in his own interests.
[113]The husband further complains that it was procedurally unfair, once he had ultimately attempted to reconnect to Teams via his computer, for the primary judge to reject that overture. Having abandoned his right to be heard, a question for the primary judge was whether the husband should be granted the indulgence of her Honour revisiting the decision to proceed with the hearing in his absence.
[114]This is tantamount to a party who had left a court room in the middle of a hearing, coming back to the door of the court room and seeking to re-enter. It might be that if a party abandons a hearing and subsequently cools down and seeks to be let back in, a primary judge will allow them to do so, if for no other reason than to avoid an appeal such as this one. However, that is a discretion to be exercised by a primary judge on the facts of an individual case. Here it is plain that the husband abandoning the hearing was but the final straw.
[115]The husband knew that the primary judge had ruled that he was not to further participate using his computer to connect to Teams but only by his reliable landline. Whilst not a ground of appeal, the husband continued to complain before us of the disadvantage he suffered as a result of the primary judge’s direction he appear by audio only. The husband’s attempt to rejoin, in the way he did, was a continuation of a dismissive rejection of her Honour’s ruling.
[116]Up until the time the husband abandoned the proceedings, the primary judge had demonstrated great tolerance of the husband’s disruptive and contemptuous behaviour, warning him about it on in excess of 16 occasions over the two days. The primary judge was justifiably not prepared to exercise her discretion in the husband’s favour to readmit him to the hearing, particularly in circumstances where the evidence had concluded and submissions had commenced.
[117]When considering issues of procedural fairness, her Honour permissibly took into account the strain the two year and eight month history of the litigation had had on both parties and in particular the emotional harm to the wife (at [68]), the best interests of the children (at [71]) and the prejudice to other litigants waiting to have their case heard (at [70]).
[118]The husband was not denied procedural fairness.
As in that case, albeit possibly not to the same extent, in the present case, it was plain that the husband abandoning the hearing was but the final straw. If there were any doubt about this and, in my view, there was not, it was confirmed by his Counsel. In the circumstances, I allowed the balance of the trial to proceed on an undefended basis.
However, that was not the end of the matter. In relation to the wife’s application for parenting orders, section 60CA provides that “[i]n deciding whether to make a particular parenting order in relation to a child, a court must regard the best interest of the child as the paramount consideration”. Further, in relation to the wife’s application for alteration of interests in property, section 79(2) provides that “[t]he court shall not make an order this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. See also Harris v Caladine (1991) 172 CLR 84; Stanford v Stanford (2012) 247 CLR 108 (‘Stanford v Stanford’) and Bevan v Bevan (2013) FLC 93-545. I therefore now turn to a consideration of the parenting applications, followed by the property settlement applications, albeit within the confines of the wife’s unchallenged evidence and the husband’s largely untested (and untestable) evidence, in circumstances where the balance of the trial proceeded undefended by the husband.
Parenting
The broad parameters of the parenting dispute involving the husband, the wife and the Independent Children’s Lawyer comprise:
(1)Whether the wife should have sole parental responsibility for the children by way of final, ongoing order, as she and the Independent Children’s Lawyer propose, or whether she should only have sole parental responsibility until the husband’s time with the children becomes unsupervised (if it does), as the husband proposes, whereupon the parents would have equal shared parental responsibility;
(2)Whether the children’s time with the husband should be limited to two hours per fortnight and supervised, on an ongoing basis, as the wife and the Independent Children’s Lawyer propose, or whether his time should progress to unsupervised time upon him returning clear urine drug screens during the period of supervision, ultimately leading to week-about time, as the husband proposes.
In his opening, Mr Allen of Counsel for the husband said:
“It is acknowledged, clearly, from the applicant father, in his own material, that there has been a problem in the past with drugs. There has been a drug addiction problem in the past.”
The following exchange then occurred between Mr Allen and me:
HIS HONOUR: So he does – I’m sorry to interrupt. So he does concede, even on his own case, the need for supervision in the short to medium term?
MR ALLEN: Not necessarily concede, but is – for a variety of reasons, including the mother’s view/belief/affect, and the fact that he hasn’t seen the children for quite some time. Whether – I would put aside saying he concedes the need, but he’s certainly seeking those orders, and there’s a recognition that they have a role in the short to medium term. So that’s correct in that sense, your Honour. But the mother’s order – and the ICL’s goes beyond that. They’re, we say, based on a hypothetical because – the hypothetical being that – whether there’s an issue or not now, but the hypothetical is that [Mr Boman] will never get that under control, will never have that sort of drug-free existence. And again, your Honour, in my submission, that’s really, when you cut through it, the mother’s concern here, in our submission.
Whether or not the husband’s drug is presently an issue and, if so, whether or not he will ever bring it under control, were matters that could have been tested, had the trial continued in the usual course. In opening, his counsel submitted that he had been “clean” for 20 months, which I calculate to be since about April 2020 (some 11 months after he instituted these proceedings and swore his first affidavit in early May 2019). With both proper evidence and testing thereof, I might have found that his drug use is not presently an issue or that he might one day overcome it. However, the husband deprived himself, the Court and possibly, most importantly, the children of this opportunity.
In his opening for the wife, Mr O’Grady said:
“In broad terms, she seeks that she have sole parental responsibility for the children and the father’s spend time be supervised. She departs from the Family Court reporter’s recommendation, and it will be contended on her behalf, firstly, that the recommendations – the factual premise of – underpinning those recommendations – forgive me. I will start again. The factual premise underpinning the analysis of risk are wrong. Secondly, that the analysis of risk is flawed. Thirdly, that there are material factual errors in the report. And fourthly, that the conclusions are inconsistent with the children’s best interests.”
Mr O’Grady, later in his opening, submitted (and I summarise) that:
(1)there have been decades of substance abuse on the husband’s part, including not “merely heroin” but also alcohol, suboxone, oxycodone and Valium;
(2)he has given dishonest accounts of his substance abuse;
(3)there has been an absence of good judgment on his part and an abdication of responsibility during the relationship;
(4)he has failed to engage meaningfully with psychological or psychiatric treatment for his longstanding difficulties;
(5)he has limited insight into those difficulties and their impact upon his parenting;
(6)there has been a history of remission and relapse and a future and real, not hypothetical, likelihood of abusing substances;
(7)the tests he undertook did not test for all the substances that he has a history of abusing and that the Court should not or would not be satisfied that his entrenched behaviour has changed;
(8)he has engaged in coercive and controlling behaviour and committed family violence against the wife; that he is an antagonistic character; that he “treats himself as the ringmaster in a circus of the mother’s life and the children’s life”; and
(9)in the light of all those circumstances, the husband presents significant risks to the children’s physical and psychological safety.
Like Mr O’Grady, Mr Schmidt described the case as being about the risk posed by the father to the children. He referred to the history of drug abuse and the evidence of relapse after undergoing some form of rehabilitation and the alleged history of family violence and of mental health issues on the part of the father. Mr Schmidt continued:
“Those issues have not been addressed by a psychological assessment in this case despite there being an extant order for psychological assessment dating back to 4 October 2019 requiring such an assessment. And in the course of the evidence your Honour will hear more about that. There is a ... factor given the alleged family violence history and how spend time orders which your Honour might make or might consider making may impact on the mother’s capacity to parent. It is the Independent Children’s Lawyer’s case that father having unsupervised time with the children poses an unacceptable risk. The parties are clearly unable to cooperate or co-parent. And accordingly, the independent children’s lawyer supports the mother having sole parental responsibility. As your Honour is no doubt aware, having presumably read the Family Report.
…
The court child expert recommends a self-executing progression from supervised to unsupervised time. It appears that the court child expert’s evaluation and recommendations are predicated on a misapprehension of what has occurred. Both parents depose in their file affidavits to factual issues recounted in the Family Report. And some of the factual discrepancies in the report are self-evident. Some examples are as follows, your Honour: the report refers to the parties having equal shared parental responsibility at present, whereas there is an extant order for sole parental responsibility. The report incorrectly states that there is no extant family violence intervention order, when clearly there is. It is predicated on there being no past mental health diagnosis of the father, and again, it’s not yet in evidence, but the subpoena material would contradict that.
…
I’m sorry. The existence of a past mental health diagnosis. The Court Child Expert note that there has been no formal diagnosis of the father, but the subpoena material of our learned friend, Mr O’Grady, referred to, which will no doubt in due course be in evidence, contradicts that. The – there is also an apprehension by the Court Child Expert that the father has recently been, and continues to be engaging in mental health support, and narcotics anonymous. The father himself contradicts that in his trial affidavit, the first one, where he specifically responds to certain aspects of the Family Report, and there has been a lack of compliance with orders in these proceedings by the father, including of drug testing, for psychological assessment and also in some spend time – in relation to some spend time orders applications to professional supervisors and the like.
Those things do not appear to be – to have come to the court child expert’s attention, based on my reading of her report. Those are matters which I intend to raise with the Court Child Expert when she gives her evidence, and in light of those issues, the Independent Children’s Lawyer does not support the self-executing progression that’s contemplated in the Family Report.
Mr Schmidt opposed a self-executing progression to unsupervised time, as recommended by the Family Consultant and sought by the husband, if he were to “jump through the hoops”, which is at present hypothetical and which would require the Independent Children’s Lawyer to remain involved indefinitely and for which funding may not be available. Rather, he submitted:
“Given the state of the matter as it is now, there’s little doubt, in my submission, that if the father is able at some point, whether in the next six, 12, 24 months, whatever the period is, to jump through all the hoops, tick all the boxes that are contemplated by the Court Child Expert, that if he did all those things, it would represent a material change in circumstances in this case.
And therefore, if he were able to do all of those things, after – if your Honour were minded to make orders as sought by the Independent Children’s Lawyer, if he were able to do all those things subsequently in the forthcoming period of time, and it’s – I don’t propose to put a fixed time on it, but whatever the indefinite period is in which he may or may not do those things, he would have no trouble, in my submission, clearing the Rice v Asplund hurdle, with the subsequent applications to court, if indeed, he were able to do all of those things. But as the matter stands now, the Independent Children’s Lawyer urges the court to take a cautious approach.”
At the date of separation in October 2018, X was aged nearly six years and Y was aged about two years. Since then, they have lived with the wife in the former matrimonial home at C Street, Suburb A in this State. As I have noted above, these proceedings were instituted by the husband some seven months later, on 7 May 2019, seeking at that stage only final parenting orders. On 4 October 2019, orders were made largely by consent, with one issue not by consent. Those orders provided (inter alia) for the children to spend limited, supervised time with the husband and for him to undergo supervised urine and hair follicle drug and alcohol testing, as well as a psychological and parental capacity risk assessment. However, nearly a year later, on 12 August 2020, Senior Registrar Hoult ordered, until further order, that all previous orders with respect to the husband’s time with the children be discharged and, since then, he has not spent any time with them but has had contact with them. The Senior Registrar noted that (inter alia):
A.The Wife has indicated to the Court that she will consider permitting the children to spend time with their father under professional supervision at the expense of the Husband.
B.The Wife has indicated to the Court that she will not consider permitting the children to spend any time with their father unsupervised until such time as the Husband has produced to the Wife; certified results of Hair Follicle Testing (performed in accordance with International Standard ISO/IEC 17025:2005) demonstrating results clear of illicit substances (or any drugs not taken in accordance with a current prescription) for a consecutive period of six months.
C.The Independent Children’s Lawyer supports the Wife’s position in this respect.
Notwithstanding the wife’s indication recorded in the notations, on the evidence before the Court, the husband has not availed himself of the opportunity of spending unsupervised time with the children by producing to her the requisite certified results of Hair Follicle Testing for a period of six months or at all, in compliance with the order of the Court.
In summary, the wife’s evidence is that there was family violence, including physical abuse, inflicted upon her by the husband; that he abused substances over some twenty years, including illicit drugs (heroin) and prescription drugs (Oxycodone, Endone and Valium) and alcohol; and that his mental health was often poor.
In relation to family violence, which is broadly defined in section 4AB of the Act, I note that in early March 2020, the husband was charged by Victoria Police with multiple breaches of an intervention order, including by postings on Facebook about the wife and the children and threats made to the wife. On 22 January 2021, the Magistrates Court of Victoria at Suburb G varied and extended the intervention order for a further period of two years, until 21 January 2023. Although not entirely clear from the face of that order, it appears that the husband consented thereto, albeit without admission of the allegations against him.
In the Family Consultant, in her Family Report dated 1 November 2021, reported at paragraph [21] that:
“During interview [Ms Boman] made further allegations not highlighted in her initial filed material, of [Mr Boman] perpetrating sexual family violence, described as threatening to post negative “stuff” of her on social media if she did not engage in sexual acts. She further detailed [Mr Boman] being controlling of social relationships.”
At paragraph [22], she reported that:
“[Mr Boman] denies perpetrating family violence, save for acknowledging that the parties engaged in verbal arguments and that he was likely to be perceived as verbally aggressive when frustrated.”
There is denial by the husband of sexual violence that is reported by the Family Consultant.
Whilst, in his affidavit filed on 10 November 2021, the husband denies that he perpetrated sexual or physical violence against the wife, as alleged by her, I repeat that, by reason of his refusal to participate further in the trial, he both precluded cross-examination of himself and precluded himself (by his counsel) from cross-examining the wife in relation this issue.
At paragraph 5(a) thereof, the husband deposed as follows:
a.)New false allegations by the other party.
I refer to the despicable new allegations in the report where the other party states sexual violence by means of coercion of sexual activities and another that states I once kicked her. I have never harmed [Ms Boman] with sexual coercion or ever laid a finger on her. I can absolutely guarantee your honour that if any of this was even remotely true, this would have been raised and highlighted over the past three years in both, previous affidavits provided to the Family Court and to the police when she was seeking other orders, not added in the final stretch of Family Court proceedings. These new allegations are completely fabricated and nothing more than a desperate attempt at the twelfth hour to tarnish me even further than she already has.
Again, the husband precluded cross-examination of him in this regard. In her trial affidavit the wife joined issue and deposed that “Mr Boman did subject me to sexual activities against my will during the relationship and did inflict physical violence upon me”.
In his affidavit sworn on 19 November 2021 and filed on 29 November 2021, the husband deposed to pleading guilty to four charges of breaching an intervention order. Whilst he sought to minimise the nature of the charges, comprising Facebook posts and other communications, for the reasons already explained, he could not be cross-examined in relation thereto.
I repeat, again, that the husband, who was represented, first by Mr Allen of Counsel and then by Mr Howe of Counsel, could have tested the wife’s evidence in this regard, as well as in regard to his drug and alcohol use but, by his actions, and his actions alone, he has deprived himself of that opportunity. Whilst, to some extent, the wife’s allegations, especially of family violence, are unparticularised and / or are conclusionary in nature, there is nothing inherently implausible in them which, in the circumstances of this case, would cause me not to accept them. Further, the husband’s drug usage is admitted by him, albeit not the extent or duration thereof, and is supported by extracts of his medical records which were tendered by the wife.
The wife deposes that the husband acts impulsively, and he reacts aggressively and that he was an absent father during their relationship because of his drug abuse, which included injecting heroin, albeit with some short-lived periods of abstention. During such periods, he instead abused prescription medication and consumed alcohol to excess. He engaged in doctor shopping, having multiple prescriptions for Valium and Endone from several doctors in the J Region. Consequently, she has obtained intervention orders against him.
The wife deposes as to her observations that, when affected by heroin, as well as prescription drugs, which he abused, the husband’s –
“voice becomes croaky, his pupils are tiny and his eyes are glazed. His speech becomes slower, he scratches himself and his memory and recollection of events is virtually non-existent. He stays awake for hours on end, he cannot recall conversations and things he does and often he becomes sleepy and falls asleep or becomes unconscious.”
Her case is that she does not want the husband to spend any time with the children unless such time is supervised by a professional and suitably qualified person and that, without such supervision, she is extremely fearful for the children’s safety and wellbeing in his care. Her case is supported by the Independent Children’s Lawyer, notwithstanding the recommendations in the Family Report, to which I refer below.
She deposes (inter alia):
“It is this cycle of drug and alcohol use, erratic and unpredictable behaviour which poses a significant risk for our children were they to ever be in [Mr Boman]'s care without adequate supervision. [Mr Boman] may avoid heroin and also alcohol for periods of time, however the history is that during such periods he feeds his addictions by abusing prescription drugs. He then eventually reverts to alcohol and heroin and the cycle starts again.”
Further, she deposes that the husband’s refusal to seek any kind of medical help or submit to psychological evaluations, even in the course of these proceedings, is alarming. I agree. Her evidence is that he had a Naltrexone implant inserted, which he had removed soon thereafter, and that he was also prescribed Suboxone, which he collected in abnormal quantities and did not take as prescribed. It appears, from medical records of the husband which were tendered, that both medications are used to treat opioid use disorder.
She also deposes:
“After one drug and alcohol fuelled session, I called his mother [Ms EE] to come around because [Mr Boman] had passed out unconscious again. [Ms EE] came around and tried to wake him which she was unable to do. She came around again the next day with [Mr Boman]’s brother. That resulted in a fierce argument in front of [X] and myself.”
In her Case Outline, the wife contended that there was “no meaningful disparity in contributions at cohabitation”, by which I understand she meant the commencement of cohabitation as, in her trial affidavit at [112], she deposed that “at the beginning of cohabitation Mr Boman and I had no assets of significance apart from our motor vehicles and some furniture”.
In his affidavit filed on 4 October 2019, the husband deposed at [13] – [14]:
13. At the commencement of the relationship I had assets of $19,000 being:
(a) $5,000 as cash in the bank.
(b) [Motor Vehicle 2] valued at $8,000.
(c) Furniture valued at $6,000.
14. [Ms Boman] had approximately $3,500 - $3,750 worth of assets being:
(a)Cash in the bank of $3,000.
(b)An old [Motor Vehicle 3], worth approximately $500 to $750. This soon went to the wreckers. [Ms Boman] used my [Motor Vehicle 2] and I mostly had a company car.
No supporting evidence was adduced by him of the parties’ respective bank balances, as asserted by him, nor was there any expert valuation of the parties’ respective motor vehicles at the commencement of cohabitation. In his opening on behalf of the husband, Mr Allen of Counsel said:
“The parties have come in with limited assets that … we understand is common ground”.
In the circumstances, I find that neither party made any initial financial contributions of note at the commencement of cohabitation.
As to the parties’ respective contributions during the relationship, Counsel for the husband in opening submitted that:
“Both parties have contributed and both parties have paid towards the mortgage at various times. … We say that the house with mutual input [sic], both financial and non-financial. … the contributions have been relatively close in the period.
At paragraph [15] of his affidavit filed 4 October 2019, the husband deposed:
I worked for most of the relationship including running a business. I had some periods of time on Newstart allowance when I did not have work. [Ms Boman] worked for 2 ½ years. After [X]’s birth she focused on parenting and home duties for a period and since [Y]’s birth she has not worked but been a full-time parent.
The husband deposed to the wife’s and his employment history between 2009 – 2019. In cross-examination, he confirmed that he was unemployed for a period between 2016 – 2017. He also deposed that they both contributed to housework and care of the children and that “while we each did more of certain tasks we both made non-financial contributions”. Further, he deposed that they each received gifts of $10,000 from their respective parents, which were applied to improvements to C Street.
In the circumstances, the husband sought that section 79(4)(a) – (c) contributions be assessed as being equal.
In his opening for the wife, Mr O’Grady submitted:
The wife intends to show, in relation to contributions, the following: first, that these parties made no different contributions at the commencement of their relationship. Their contributions were, for all intents and purposes, the same. They have no significant assets. That point appears to be conceded. Secondly, that the wife made unequal contributions during the relationship by reason of, first, her non-financial contributions.
By reason of the husband’s conduct, the wife was often a single parent in the home.
Secondly, the loss of her super which had to be applied to the family home. That arose, it will be contended, that because of the husband’s conduct, which meant he did not have income to pay the mortgage. And thirdly, that the wife’s contributions overall were significantly more arduous by reason of the husband’s conduct during the relationship
In the wife’s Case Outline, it was submitted, in relation to contributions:
5.Husband habitually abused substances (including heroin) at cost to family assets.
6.Husband’s habitual substance abuse (for example, protecting children from needles preventing them from seeing their Father inhibited) made the wife’s contributions more arduous.
Mr O’Grady further submitted:
“And so in broad terms, in my submission, the parties left the relationship. The contributions were in the region of 60 to 65 per cent in favour of the wife. Since separation, the wife has made unmatched financial and non-financial contributions. Non-financial contributions in exclusively caring for the children at times when the husband has simply not had them, had any involvement ..... in their lives by reason of his conduct, and financial contributions in exclusively paying off the mortgage, save for four payments by the husband for the value of less than $3000, and I have the specifics that I will put to the husband. Forgive me. The total sum. He made four payments between December 18 and March 19. The value of those payments was 2241.”
Later in his opening, Mr O’Grady submitted that “the value of the post-separation contributions is in the region of 15 per cent”.
The wife’s evidence in relation to property matters commences at paragraph 112 of her trial affidavit.
In relation to the parties’ respective section 79(4)(a) – (c) contributions during the relationship, she deposed as follows:
113.Throughout the relationship up until one month prior to the birth of [X] I worked full time in as an educator and then in allied health at the [AA Centre]. I also worked in our family business performing the book keeping duties and after [X]'s birth I did some part time work at a business in [Suburb HH].
114.At the commencement of the relationship [Mr Boman] was working in allied health.
115.[Mr Boman] was subsequently terminated for behavioural issues and this happened in various jobs he held for differing periods of time throughout the relationship.
116.[Mr Boman] and I saved approximately $30,000.00 which we put towards a land and house package at [Suburb A] which later become the matrimonial home. It is the [Suburb A] property which is the main asset in the current matrimonial asset pool.
117.We paid for the [Suburb A] property house and land package by two mortgages with the Commonwealth Bank. The application for the mortgage was made at a time when [Mr Boman] had held the same job for a period of approximately twelve months. I recall at that time I was working for the [AA Centre] and [Mr Boman] was working at [BB Centre].
118.I applied all my income to the mortgage, household bills and our weekly expenses. Whilst some of his income was put towards our weekly expenses and the mortgage payments, he wasted a staggering amount of money on drugs and alcohol. I claim an adjustment based on the impact of his substance abuse on our finances and it made my contributions more arduous.
119.In mid 2016, whilst I was pregnant with [Y], [Mr Boman] forced me to withdraw my superannuation with [Super Fund 1]. [Mr Boman] told me we were going to lose our house as we were behind in our mortgage payments. The form he completed and made me sign was to withdraw my entire balance of approximately $27,000.00 on hardship grounds. As a result, I now have very little superannuation. [Mr Boman] applied very little if any of these monies towards the mortgage. [Mr Boman] purchased some shares with some of the funds as he was always talking about them however I do not know which companies he invested in. I suspect he wasted the majority of the money on drugs and alcohol.
120.As well as making financial contributions, I made all (if not almost all) the non-financial contributions caring for the children.
Earlier in her trial affidavit, albeit in relation to parenting matters, the wife paints a picture of the husband’s frequent drug and alcohol abuse throughout their relationship, which left him intoxicated or unconscious. She describes him as “an absent father during our relationship because of his drug abuse. [Mr Boman] does not have the knowledge, temperament or the mindset to properly care for [X] and [Y], even for short periods of time”. She refers to times when he “would either be in bed asleep or awake for hours on end completely inebriated” and occasions where he passed out unconscious. She deposes that, after Y’s birth in 2016, she spent only one night in hospital and there was no-one to care for X other than the husband who, since December 2014, had rarely looked after her for longer than an hour. When she returned home the day after Y’s birth, she deposes that the husband, in her presence consumed 19 Valium tablets and at least ten cans of full-strength beer and that he was of no assistance to her with their newborn son or with X (then aged three years) that evening or during the following weeks or months. She further deposes:
44.In January 2017 I left [Y] with [Mr Boman] for approximately one hour whilst I had a medical appointment and I took [X] with me. In the space of the one hour I was gone, [Mr Boman] met his brother [Mr R] who gave him heroin and they injected it whilst [Mr Boman] was caring for [Y]. [Mr Boman] was visibly affected by drugs when | came home. [Mr Boman] told me he had taken a lot of Suboxone. Initially I believed him, however a few days later [Mr Boman] confessed to me that he injected heroin which he got from his brother. [Mr Boman] took [Y] with him to get the heroin.
45.In early 2017 [Mr Boman]'s behaviour deteriorated to the point where his substance abuse was out of control. The level of abuse he directed at me went to another level. On several occasions the children and I went to stay with [Mr Boman]'s mother and my parents to avoid the daily abuse which was both verbal and at times physical. During that time [Mr Boman]’s doctor, [Dr Q], ordered a psychological assessment for [Mr Boman] after he had displayed aggressive behaviour towards the doctor at an appointment. The police attended at the [Suburb A] property. They requested [Mr Boman] go with them to [CC Hospital], however he refused and the assessment was never completed.
46.A short time after he refused to undergo the psychological assessment, I found [Mr Boman] unconscious in the garage with blood dripping from his arm and uncapped needles lying next to him. Thankfully, [X] had not gone into the garage.
Again, by reason of the applicant husband’s withdrawal from the trial whilst under cross-examination, the wife was not cross-examined in relation to this evidence and the wife’s other evidence of a similar nature. However, as I have observed earlier, that was a matter solely of his own doing and, in the circumstances, I accept the wife’s evidence that her contributions, in particular as homemaker and parent, were greater than those of the husband.
However, the wife also relied upon the dicta of the Full Court in Kennon v Kennon. In that case, Fogarty and Lindenmayer JJ said at 84,294:
Put shortly, our view is that where there is a course of violent 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’ respective contributions within s.79.
Their Honours continued at 84,294 – 84,295:
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 had 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 (as in Ferguson) 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). Similarly, in Killick v Killick (1997) 21 Fam LR 331 at 341, in proceedings under the De Facto Relationship Act 1984 (N.S.W.), the Court of Appeal rejected the argument for the male partner that incidents of infidelity during the relationship by the female partner should be taken into account as diminishing her contribution as homemaker or parent.
To similar effect, Baker J said at 84,329, paragraph [169]:
…The incidence of domestic violence in a marriage would generally be a relevant factor when the Court comes to assess contributions pursuant to the provisions of s79 for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.
More recently, in Britt & Britt (2017) FLC 93-764 (‘Britt & Britt’), it was argued on appeal that the trial Judge erred in failing to accept the appellant’s evidence of family violence on the basis that it took the form of conclusions and was too general. In the present case, no objection was taken on behalf of the husband to the wife’s allegations of domestic and they remained part of the evidence before me.
The Full Court there said at paragraph [40]:
The issue of whether or not the particular passages set out above were impermissible conclusions is more difficult. There is nothing in the Evidence Act that prevents evidence being given as a conclusion (save for expert opinion expressed as conclusions which can only be given by expert witnesses). The test remains that passed by s 55 and s 56. Thus a trial judge is required to consider whether the proposed evidence has sufficient, even if slight, probative value to make it admissible. If the nature of the conclusion is such that it has no probative value, the evidence should be rejected.
Further, at paragraph [50], the Full Court said:
The statements made by the primary judge, to the effect that the evidence was too general and was a conclusion, confuse admissibility with weight. Whilst the evidence could have been more specific (although we do not see how, in relation to this particular evidence, it would have advanced matters much) any generality went to the ultimate weight to be given to the evidence and not to whether it should be admitted or not.
The Full Court then proceeded to consider whether the evidence in that case was capable of establishing a claim that the appellant’s contributions were made more onerous by the conduct of the respondent. Their Honours said at paragraphs [74] – [76]:
74.The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
75.The real question is whether the evidence, taken as a whole, is capable of leading to such an inference. In other words, the appellant invites this Court to find that the rejected evidence “would not have affected the result” (Balenzuela) or “had no bearing on the outcome” (Stead). The authorities oblige us to proceed with caution.
76.We cannot be satisfied that the excluded evidence would have made no difference to the outcome if it had been admitted. The evidence is capable of suggesting, at least, that the appellant was often left alone at the property with the children, made to repeat tasks, work long hours and remained in the relationship because of her responsibility for the children and out of economic necessity. The evidence is capable of establishing that the respondent was violent, to the extent of leaving bruises that were noticed by a third party.
Although the wife’s evidence in the present case, in relation to the husband’s and her relationship, spanning nearly a decade, was in many respects general and conclusionary, in Britt & Britt the Full Court recognised at paragraph [54] that:
Evidence is commonly given in general terms and when taken in conjunction with other evidence it can be tolerably clear what is meant. One would not expect any person who had been in a long relationship to remember the exact nature and frequency of recurring events throughout that relationship, let alone specific dates.
In the circumstances, on the wife’s unchallenged evidence and by reason of the husband’s evidence being incapable of being tested, I accept that her contributions as a homemaker and parent must have been rendered somewhat more onerous by reason of the husband’s domestic violence, his abuse of drugs and his alcohol consumption. I refer, for example, to the matters I have summarised at paragraph [154], in particular, that there were “very few occasions” that she felt able to leave the children in the husband’s care for longer than an hour, such that she only spent one night in hospital after Y’s birth, as X was in his care.
At paragraph [118] of the wife’s trial affidavit, she seeks an adjustment “based on the impact of [the husband’s] substance abuse on our finances and it made my contributions more arduous”. The draftsperson of the wife’s trial affidavit appears to conflate the principles in Kennon v Kennon with those in Kowaliw & Kowaliw (1981) FLC 91-092 (‘Kowaliw & Kowaliw’). In so far as the wife deposes that the husband “wasted a staggering amount of money on drugs and alcohol”, although no objection thereto was taken on behalf of the husband, I cannot place much weight on this bald assertion. There was no evidence of the amount of money said to have been wasted by the husband on drugs and alcohol. I do not know what is meant by the description of the amount of money said to have been wasted by the husband as being “staggering”; that is a relative term. It is, at best, a conclusion without any evidence of the matters underlying it. Paragraph 118 of the wife’s affidavit was poorly drafted.
In Kowaliw & Kowaliw at 76,644 - 76,645, after referring to and considering the judgment of the Full Court in Antmann & Antmann (1980) FLC 90-908, Baker J said:
“It does seem to me, however, that if a party has either by deliberate act or by economic recklessness reduced the value of assets available for distribution then the economic consequences which flow therefrom including the resultant burden to the other party are directly relevant to a consideration of the respective contributions of the parties contemplated by sec. 79(4).”
In the present case, there was the following exchange between Counsel for the wife and the husband in cross-examination:
MR O’GRADY: For your part, [Mr Boman], during the relationship, you funnelled large amounts of money into drugs, alcohol and substances, although you would disagree with that, wouldn’t you?
[MR BOMAN]: A hundred per cent disagree with that.
MR O’GRADY: In 2016, you told [Ms Boman] that the family was behind on mortgage payments. That’s correct?
[MR BOMAN]: That is correct.
MR O’GRADY: There’s no reason for that to have been the case if you were making a proper financial contribution. That must be true?
[MR BOMAN]: That’s not correct, because I had a period of unemployment.
MR O’GRADY: When? When precisely was the unemployment?
[MR BOMAN]: In 2016.
…
[MR BOMAN]: For a period of time. And that’s also when I did the renovation on the house.
MR. O’GRADY: If you had directed your income into the mortgage rather than into drugs, then?
[MR BOMAN]: I don’t accept that, and I object that statement, because that’s actually not correct.
It was put to the husband that he did not depose in his affidavit filed on 4 October 2019 that he was unemployed or out of work in 2016. He was taken to paragraph 16 thereof and he responded, correctly in my view: “It says I worked until 2016. And then [paragraph] 16.5 actually says then I worked from 2017”. Closely read, paragraph 16 of that affidavit does suggest a lacuna in the husband’s work history.
It was further put to the husband that he was not making direct financial contributions to the mortgage whilst he was unemployed during 2016. The husband responded that, during that period, he received unemployment benefits and undertook improvements to the former matrimonial home. In his affidavit filed on 4 October 2019, the husband deposed to the improvements undertaken by him, which are not disputed by the wife.
When the husband was asked whether it was his case that, during his period of unemployment in 2016, the mortgage was being serviced, he said:
“No. I think we had a deferral for a little period during that time. I know we were – we were struggling during that time. I know that.”
It was then put to him that, during this time, the wife withdrew her superannuation entitlements totalling approximately $25,000. The husband agreed and said: “that money went on the renovations. Some on the mortgage, I think, and on the honeymoon. … we might have put some money into some shares at the time”.
I accept that, whilst the husband was unemployed in 2016 (with no reason therefor being proffered), he was in receipt of unemployment benefits and undertook improvements to the former matrimonial home. I also accept that, during that time, the wife withdrew her superannuation entitlements in the order of $25,000. However, in circumstances where it is agreed that neither of them made any initial contributions of any significance, I infer that those entitlements were accrued thereafter and during the course of the relationship. Accordingly, I give little weight thereto. Further, on the evidence (or, rather, lack thereof), I can make no firm findings in relation to the wife’s meaningless allegation that the husband “wasted a staggering amount of money on drugs and alcohol”, although I accept that he must have spent money thereon.
The total balance of the two home loans secured by the mortgage over C Street is agreed to be in the order of $386,000. It was put to the husband, and he ultimately agreed, that since separation in October 2018, he made only four payments toward the mortgage, being between December 2019 and March 2019, totalling $2,241. Further, it was put that the wife had made payments totalling in the order of $67,000. Documents were tendered by the wife (Exhibits W4 – W12) which disclosed that between 17 July 2018 and 30 June 2021, the principal sum in respect of one home loan, being account number …03, decreased from $197,611 to $188,650 and that payments of interest in the order of some $24,000 were made. I note, however, that the balance secured by the mortgage is agreed to be in the order of $386,000. He generally accepted the figures put in respect of the payments made by the wife towards home loan account number …03. He was not cross-examined in similar detail about the payments towards the second home loan. However, when the total sum of $58,659 was put to him in respect of both loans, for the period from 1 January 2019 until 2021, he responded: “Pretty cheap rent, isn’t it?”. The reason for the discrepancy between the amounts of approximately $67,000 and $58,659 is unclear to me. However, the husband’s evidence is that since separation in October 2018, he had made four payments toward the mortgage between December 2019 and March 2019, totalling $2,241. On any view, the overwhelming bulk of the payments made towards the two home loans since separation was made by the wife.
Whilst the husband’s flippant comment that this was “pretty cheap rent” was uncalled for and unbecoming, and did him no credit at all, it is the fact that, by reason of the respective living arrangements of the husband and of the children and the wife, she was not required to pay rent for alternative accommodation during this period. A similar observation may be made in respect of the other outgoings paid by the wife during this time in respect of the former matrimonial home.
As outlined about, the husband contends that the parties’ respective contributions should be assessed as having been equal. The wife contends that they should be assessed at 25 per cent in favour of the husband and 75 per cent in favour, being 60 - 65 per cent for her pre-separation contributions and 15 per cent for her post-separation contributions. I do not agree that, in this case, the wife’s contributions should be assessed, at least in percentage terms, separately prior to and post separation, as was submitted by her counsel. Rather, and in accordance with well settled authority, in the exercise of my broad, largely unfettered, discretion, I propose to assess the parties’ respective contributions globally, taking into account all their contributions (as I have found them) from the commencement of cohabitation until trial. For the reasons set out above, including primarily the wife’s greater and more onerous contributions prior to separation, together with her greater contributions since then, I am of the view that, in all the circumstances, the parties’ respective contributions should be assessed at 65 per cent in favour of the wife and 35 per cent in favour of the husband. Therefore, on account of section 79(4)(a)-(c) contributions, I assess the wife’s entitlement to be nearly one-third greater than that of the husband.
Both parties agree that a further adjustment should be made in favour of the wife pursuant to section 79(4)(e), on account of section 75(2) factors. The husband concedes that an adjustment of five per cent should be made and the wife contends that an adjustment of ten per cent should be made. Her counsel said:
“…we contend for a future needs adjustment of 10 per cent, the reason being the husband has a child support assessment in place. It is for $21.50 per week. He makes very limited child support payments, in real terms. I don’t suggest that he’s paying anything other than what is assessed, but in real terms and the cost of children, he is employed on an ad hoc basis and there is limited prospect of meaningful financial support for this parent, who is going to be the primary carer, on her case, on the parenting – mostly the sole carer for the foreseeable future.”
Although often, albeit incorrectly, called a “future needs” adjustment, that is not the case. Section 75(2) lists 19 matters, some but not all of which are referrable to the future. In Waters v Jurek (1995) FLC 92-635 (Full Court) at 200, Fogarty J said of section 75(2), in the context of section 79(4)(e):
“That is a matter which is independent of the "needs" of the parties. In some cases, it will coincide with the presence of needs, but it does not rely on that presence. It rests on a broader base, one which I think is well characterized as ‘just and equitable’.”
In relation to the wife’s further adjustment pursuant to section 79(4)(e), on account of section 75(2) factors, it is submitted in her Case Outline that she is highly likely to remain the children’s primary carer; that her role as their carer limits her earning capacity; and that the husband makes extremely modest child support payments. Further, it was submitted that he has failed to make full and frank financial disclosure. This latter point was conceded in cross-examination by the husband, who sought to explain it away on the basis that the wife’s solicitor had not provided similarly provided such documents to his. A letter dated 10 November 2021 from the wife’s solicitor to the husband, seeking disclosure of documents, was tendered (Exhibit W13). The husband admitted receipt of that letter.
The husband did not file a Financial Statement for trial, nor did he seek to rely on his Financial Statement filed early in the proceedings and, in the circumstances, I do not have regard to it. I am unable to make any finding as to his current financial circumstances. In her Financial Statement filed on 29 November 2021, the wife relevantly disclosed a total weekly income of $809, but that includes very modest child support of $21 (to which I refer below) and a parenting payment and family tax benefit of $688. Her income otherwise is comprised of a salary or wage of $100 per week as a sports coach. I accept that, by reason of the parenting orders I propose to make, the wife is very highly likely to remain the children’s primary carer and that her role as their carer limits her earning capacity. I accept that the husband makes extremely modest child support payments. The wife deposes and the husband agreed in cross-examination that from 11 November 2018 to 11 November 2021, she has received the total sum of $5,720 from him in administratively assessed periodic child support (albeit that it has been paid haphazardly and infrequently) and that the current child support assessment is $21.50 per week. It was put to him that he expected his administrative assessment to decrease because of his current unemployment but he disagreed, on the basis that he had previously worked during 2021. He said it would increase. I can take that no further.
Further, the wife deposes that the husband has made some monetary contributions to the children’s sport and music expenses, totalling $797 since separation. However, in cross-examination, it was put to him that he had paid $7,097 for those expenses in that time. He responded: “I don’t have the figures in front of me”. I can take that matter no further.
Whilst I accept that the husband has failed to make full and frank financial disclosure, as required of him by law and as sought from him by the wife, it was not put to him in cross-examination or submitted to me that there are, or are likely to be, undisclosed assets. Indeed, given the very modest financial circumstances of the parties and the husband’s expenditure during the marriage on drugs, this seems unlikely to be so. Accordingly, I find that the principles enunciated by the Full Court in Weir v Weir (1993) FLC 92-338 are not applicable in the present case
In the circumstances, for the reasons above, I propose to make a further adjustment of ten per cent in favour of the wife pursuant to section 79(4)(e), on account of section 75(2) factors, as sought by her. Accordingly, in respect of the asset pool, the net value of which I have found to be $424,000, comprised of the equity in C Street, which the wife wishes to retain, the orders I shall make will require her to pay to the husband the sum of $106,000, which equates to 25 per cent, which I find to be just and equitable in all the circumstances.
Had the wife sought a slightly greater adjustment than 10 per cent pursuant to section 79(4)(e), I may have been minded to do so. In Figgins v Figgins (2002) FLC 93-122 at paragraph 138, Nicholson CJ and Buckley J said:
[138]Mr Ackman QC for the wife did not wish to argue that the wife should receive more than $2.5m. He did however, maintain that of that sum, there should be an award of $150,000 for spousal maintenance.
[139]In our view the wife is clearly entitled to receive more than $2.5m.
[140]Mr Ackman said that it was never an ambit claim and we agree with him. It represents only about 10% of the total assets. It represents approximately 30% of the increase in assets of $8.5m between the death of the husband’s father and the date of trial on the most favourable construction to him. If the increase in his assets was $13.5m it represents much less in percentage terms.
[141]We have already expressed the view that her Honour undervalued the contribution of the husband and consequently the wife during this period.
[142]We also consider that she gave too much weight to the inheritance in assessing both contribution and s75(2) factors.
[143]In the circumstances of this case we do not find it to be strictly necessary to ascribe specific amounts to contribution and s75(2) factors.
[144]If the wife was seeking more, we might have found it necessary to engage in this exercise. However, given the conservative approach that she has taken, we are confident that the amount that she seeks represents a just and equitable verdict in her favour.
Whilst the husband’s decision to withdraw from the case was his and his alone, I am conscious of the fact that he made that decision with the parameters of the case known to him, including that, whilst he proposed a five per cent adjustment in favour of the wife, she sought a 10 per cent adjustment. In the circumstances, I am not prepared to make an adjustment in excess of ten per cent of my own motion, albeit that pursuant to my Orders, she will receive overall 10 per cent less than the husband knew she sought when he terminated his participation in the proceedings. She receives 10 per cent adjustment she sought pursuant to section 79(4)(e), on account of section 75(2) factors. Her counsel did not submit that, if I assessed the wife’s contributions at less than 75 per cent, as he contended, there should be some increase in her section 79(4)(e) adjustment.
The husband seeks and the wife’s minute of orders is silent in relation to default orders, in the event she does not make the required payment to him. I think it appropriate to make such an order, in general terms, in order to minimise any need to return to Court in the event of default.
I certify that the preceding one hundred and eighty-seven (187) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 1 March 2022
2
10
0