Boulton & Boulton (No 3)
[2024] FedCFamC1F 269
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Boulton & Boulton (No 3) [2024] FedCFamC1F 269
File number: SYC 1491 of 2021 Judgment of: ALDRIDGE J Date of judgment: 24 April 2024 Catchwords: FAMILY LAW – PARENTING – Mother has primary care of the children – Mother and Independent Children’s Lawyer (“ICL”) sought no time or very limited time with the father – Father sought equal shared parental responsibility and regular overnight time – Children exposed to a volatile home environment and parental conflict – Findings the father was violent to the mother and the children – The father blames the mother and the children for the conflict – The mother has a history of enmeshment with the children – Eldest child has history of psychological difficulties stemming from the parties’ conflict – Where the eldest child currently refuses to spend time with the father – Where the younger children have at various times refused to spend time with the father – School refusal – Where the father has historically involved the supervisors in the parties’ disputes – The father has firmly held a poor view of the mother – Evidence does not support the father’s claimed new insight or changed behaviour – Where the mother would need assistance to cope with the children spending time with the father – Best interests of the children – Children to live with the mother – No orders for time with the father.
FAMILY LAW – PROPERTY – Large asset pool – Parties have purchased and sold a number of properties during relationship – Father received frequent loans from his mother – Claims for various add backs – Where the father co-owned property with his family members but did not receive proceeds of sale – Father held significant property at commencement of relationship – Mother also contributed funds at commencement of relationship – Father generated a large income – Mother was primary homemaker and parent – Contributions throughout the relationship assessed as equal – Father’s behaviour made the mother’s contributions more arduous – Contributions during the relationship continued post-separation – Father’s earning capacity continues to be substantial – Mother remains primary carer of the children – Father failed to explain the fate of missing funds – Property to be divided such that the mother receives 62.5 per cent and the father 37.5 per cent.
FAMILY LAW – CHILD SUPPORT – Mother sought child support departure order for periodic and lump sum payments – Mother has sole parental responsibility for the children – Appropriate for the father to indemnify the mother for the children’s expenses – Special circumstances exist for a departure order – No basis for calculation of lump sum payment – Intermediate figure adopted for periodic payments and orders made for non-periodic payments.
FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Proceeding for leave to re-open the evidence – No opposition to reliance on new evidence – Father sought further hearing days including cross-examination – Father proposed cross-examination on topics going to the mother’s parenting capacity where his final proposed orders maintained her primary care of the children – Further hearing would cause delay in judgment – Not in the children’s best interests for the proceedings to continue longer than necessary – Parties have incurred significant legal expenses – Overarching purpose of family law practice and procedure provisions – Leave to re-open granted – Request for further hearing dates and cross-examination declined – Orders for written submissions.
Legislation: Child Support (Assessment) Act 1989 (Cth) s 117
Evidence Act1995 (Cth) s 128
Family Law Act 1975 (Cth) Pt VII and ss 4AA, 60CC and 75
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 and s 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.03
Cases cited: Baker v Towle (2008) 39 Fam LR 323; [2008] NSWCA 73
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bilous v Mudaliar (2006) 65 NSWLR 615; [2006] NSWCA 38
Boulton & Boulton [2022] FedCFamC1F 295
DJM v JLM (1998) FLC 92-816; [1998] FamCA 97
Farina & Lofts [2019] FamCA 27
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Martell v Martell (2023) 66 Fam LR 650; [2023] FedCFamC1A 71
NHC and RCH (2004) FLC 93-204; [2004] FamCA 633
Trevi & Trevi (2018) FLC 93–858; [2018] FamCAFC 173
Williams & Williams [2007] FamCA 313
Division: Division 1 First Instance Number of paragraphs: 679 Date of last submissions: 22 March 2024 Date of hearing: 14–18 August 2023 and 23–25 August 2023 Place: Sydney Counsel for the Applicant: Mr Cummings SC with Mr Nehmy Solicitor for the Applicant: Pearson Emerson Family Lawyers Counsel for the Respondent: Mr Williams KC with Mr Mathews Solicitor for the Respondent: Broun Abrahams Burreket Counsel for the Independent Children’s Lawyer: Mr Francis Solicitor for the Independent Children’s Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 1491 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOULTON
Applicant
AND: MR BOULTON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
PARENTING
1.All prior parenting orders are discharged.
2.The applicant mother, Ms Boulton (“the mother”), shall have sole parental responsibility for the children X, born 2010, Y, born 2015, and Z, born 2015.
3.In exercising parental responsibility, the mother shall keep the respondent father, Mr Boulton (“the father”), informed in writing of any long-term decisions made with respect to the children.
4.The children shall live with the mother.
5.The mother shall, within seven days of the date of these orders, make an appointment for the children to attend upon the Independent Children’s Lawyer (“the ICL”) and thereafter facilitate the children attending the first available appointment offered by the ICL for the purposes of the ICL explaining the final orders to the children.
6.The mother shall do all acts and things to ensure the children continue to attend upon an appropriately qualified psychologist until such time as that psychologist deems necessary, and follow all reasonable recommendations and referrals of such psychologist.
7.The mother shall keep the father informed of all medical practitioners including but not limited to psychologists, psychiatrists, counsellors and paediatricians, including any details of appointments scheduled for the children. The mother shall provide an authority to any treating medical practitioner the children may attend upon from time to time to permit the father to discuss the children’s health and treatment with said practitioners and to receive copies of any reports.
8.The father shall be permitted to communicate with the children’s school in relation to the children’s progress and attend the children’s schools for the purposes of parent/ teacher interviews, but not at the same time as the children unless the mother consents in writing.
9.Each parent shall be permitted to receive from the children’s school, at that parent’s request, copies of the children’s school reports, school newsletters, school photographs and any other information ordinarily provided to parents.
10.The mother shall keep the father informed of any medical emergency the children may suffer and in the event any of the children require hospitalisation.
11.Save for an emergency, whereby the parties shall communicate via text message, the parties shall communicate via the Our Family Wizard Parenting App.
PROPERTY
12.Within 42 days of the date of these orders, the parties do all acts and things and execute all documents necessary to transfer the funds held in the controlled monies account as follows:
(a)$45,000 to the father representing the mother’s share of the costs of the single expert;
(b)$3,310,904 to the mother;
(c)$559,334 to the father; and
(d)In the event of any surplus, the surplus is to be divided so that the mother receives 62.5 per cent and the father 37.5 per cent.
13.Within 28 days from the date of these orders the mother will issue a written request to AA Pty Ltd (“the superannuation trustee”) to roll over the whole of her member benefit in Superannuation Fund 1 to a new complying superannuation fund nominated by the mother.
14.Following receipt of the request by the mother in accordance with Order 13 above, the parties in their capacities as directors of the superannuation trustee will cause a meeting of the superannuation trustee to be held in accordance with the rules of Superannuation Fund 1 to:
(a)Note receipt of the request by the mother to roll over her total benefit to a new complying superannuation fund;
(b)Authorise roll over to the new complying superannuation fund nominated by the mother of the value of her member benefit taking into account in relation to the calculation of that benefit:
(i)The notional calculation of tax that would be payable by Superannuation Fund 1 in that financial year if the end of the financial year arose at the date of the roll over;
(ii)An amount equal to the calculation of the tax due or that will become due referrable to the last complete financial year; and
(iii)An amount equal to the costs of complying with any obligations of the superannuation trustee to the date of the roll over in that financial year including but not limited to the costs of implementing the roll over.
15.For the purpose of giving effect to these orders each of the parties will forthwith jointly instruct the father’s nominated accountant to do all acts and things and prepare all documents necessary to give effect to these orders and each of the parties shall forthwith provide to that accountant all documents and instructions necessary for them to undertake such task.
16.Contemporaneously with the roll over referred to above being effected, the mother do all acts and things and sign all documents necessary to:
(a)Resign as a member of Superannuation Fund 1;
(b)Transfer the father the whole of the mother’s right, title and interest in any shareholding of the superannuation trustee;
(c)Resign as director of the superannuation trustee;
(d)Resign as secretary of the superannuation trustee;
(e)Give effect to the assignment to the father of the whole of the mother’s right, title and interest in and to any sums due to the mother from the superannuation trustee (other than arising from her entitlement as a member of Superannuation Fund 1); and
(f)If required by the father, attend a meeting, call for a resolution, vote on a resolution and sign a minute of a shareholder meeting amending the articles of the superannuation trustee to permit it to b a single shareholder and single director company.
17.Subject to these orders, each party shall otherwise be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession, ownership or control of each party as at the date of these orders.
18.Other than provided for above:
(a)The mother indemnifies the father from and in respect of all actions, claims, suits and demands as may be made against the father in relation to all liabilities in the name of mother; and
(b)The father indemnifies the mother from and in respect of all actions, claims, suits and demands as may be made against the mother in relation to all liabilities in the name of the father.
CHILD SUPPORT
19.By way of departure from the administrative assessment of child support the father pays to the mother periodic child support for the children, X, born 2010, Y, born 2015, and Z, born 2015, in the sum of $450 per child per week.
20.By way of non-periodic child support, the father pays:
(a)To the children’s schools, all school fees and other incidental school expenses charged to the school account including but not limited to tuition fees, excursion fees (save only for any interstate or overseas excursions which are only payable by prior agreement of the parties), incidental school sporting costs including school sports uniforms, the costs of all school books, school uniforms and school extracurricular and sporting activities;
(b)To the relevant provider of the insurance, private health insurance premiums for the children at their current rate of cover; and
(c)To the relevant provider, the gap expenses of all gap medical costs of medical, dental, orthodontic, hospital, psychological, counselling, psychiatric, paediatric or other medical specialist fees as agreed between the parties which are not covered by Medicare and/or the children’s private health insurance policy provided that:
(i)With respect to psychiatric, counselling or psychological expenses, the mother first obtains a mental health care plan for the relevant child/ren; and
(ii)The father receives within seven days of receipt by the mother the full rebate available with respect to any payment made by the father.
COSTS AND OTHER ORDERS
21.The parties each pay to the New South Wales Legal Aid Commission the sum of $8,552.50 within 28 days of the date of these orders.
22.The balance of the Application in a Proceeding filed 19 May 2023 is dismissed.
23.The balance of the Application in a Proceeding filed 16 November 2023 is dismissed.
24.The parties do all acts and things and execute all documents necessary to give effect to these orders.
25.In the event either party refuses or neglects to execute any deed, document or instrument to give effect to these orders, the registrar of the Court shall be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such document on behalf of that party and do all acts and things necessary to give validity and operation to the deed, document or instrument.
26.Any outstanding applications are dismissed.
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 Boulton & Boulton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
These are parenting and property proceedings between the applicant wife and mother, Ms Boulton (“the mother”) and the respondent husband and father, Mr Boulton (“the father”). They have three children – X aged 14, and twins, Y and Z, who are nine years old.
On 6 May 2022, in the course of making interim orders, Altobelli J said (Boulton & Boulton [2022] FedCFamC1F 295):
40.The life trajectories for the children are bleak. The Court’s experience in these cases is that the children will continue to suffer the impact of being caught in the intractable conflict of their parents long after the parents have themselves moved on with their lives. The parents would do well to imagine in their minds that the toxicity which permeates their parental relationship and conflict is like an insidious, poisonous cloud that enshrouds the children’s lives and which will cling to them at every stage of their development into their adulthood. This poisonous cloud has the potential to stunt the children’s emotional development and turn them into psychologically disfigured, distorted and unhappy people. Even now, however, it is possible for the parents to change this trajectory of their children’s lives. All this Court can do is make orders. It is for the parents to change their own attitudes towards each other in order to optimise their children’s opportunities for healthy development.
Sadly, the poisonous cloud has continued to the extent that the Independent Children’s Lawyer (“ICL”) submitted at the end of the hearing that it simply needed to be ended by effectively removing one of the parents from the children’s lives.
EVIDENCE
The parties have taken a particularly obsessive approach to this litigation and to the parenting decisions that needed to be made whilst it was proceeding. Those decisions, often over minor matters, were generally made by voluminous and lengthy correspondence between solicitors, at vast expense. At the commencement of the hearing, between them, the parties had spent nearly $2.95 million on legal costs, about one third of the value of their assets that remain to be divided between them.
This attitude is replicated in the evidence presented. The mother’s principal affidavit comprised 1410 pages which included 251 pages of text involving 1527 paragraphs. The detail is excruciating and, sometimes, quite irrelevant.
The father was not to be outdone. His primary affidavit was 1729 pages long, comprising 1112 paragraphs, often with extensive sub-paragraphs, over 229 pages of texts.
Dr L, the single expert psychiatrist, considered the number of grievances contained in the evidence to be extraordinary (Transcript 24 August 2023, p.567 lines 38–40). He observed:
I can’t see orders of the court that involve – that would involve both of them still having a place in the kids’ lives stopping that at this point. I would have to say in, you know, the probably over 3000 matters like that this is – I – I’ve not – not found myself in – I can’t recall finding myself in – saying these sorts of things with parents who – you know, who should – who should know better.
(Transcript 24 August 2023, p.572 lines 35–40)
As I explain elsewhere, there was at least a forensic purpose to much of the mother’s affidavit as her primary contention was that the conduct of the father was so awful that the children should spend no time with him. It was difficult to ascertain the rationale behind the father’s because he accepted that whatever the outcome, the mother should remain as the primary carer of the children. What then was the point of hundreds of paragraphs of material that was critical of her as a person? There was none, yet the affidavit was as it was. It has to be said that parts of the affidavit were little more than irrelevant insults. The prime example was the assertion by the father that, prior to them being in a committed relationship, he found a used condom in the mother’s bed. How such evidence came to be in an affidavit settled by a legal practitioner is beyond me. Quite properly, it was not read by senior counsel for the father.
The length and detail of the affidavits has not assisted in the understanding of the parties’ cases or the preparation of these reasons.
The position became more complicated. On 16 November 2023 the father filed an Application in a Proceeding, accompanied by an affidavit, seeking leave to re-open the evidence and interim parenting orders. It was stood over to 22 February 2024 to enable the mother to respond.
The father filed a further Application in a Proceeding on 19 December 2023 seeking further interim parenting orders including orders for time on Christmas Day.
The upshot was that the mother filed an affidavit in response to the father’s and directions were made for the filing of written submissions.
The mother’s submissions annexed documents that were not annexed to her affidavit. The father filed submissions in reply objecting to that evidence. Each of the parties’ lawyers then forwarded to the Court, quite improperly, strident communication between them about the annexures and additional submissions. It should not need repeating that litigation is not conducted by correspondence to the Court or its staff.
Neither the annexures to the mother’s submissions nor the submissions in reply will be taken into account as no leave was given to file them.
Of course, all these steps have delayed the production of these reasons.
BACKGROUND
The mother was born in 1974 and was 48 years old at the commencement of the hearing. The father was born in 1976 and was 47 years of age.
The parties met and began a relationship in mid-2005 and commenced cohabitation shortly thereafter. In late 2006 the parties entered into a binding financial agreement and they were married two days later.
At the time of the marriage the father was working as a health professional and the mother worked in media.
In 2009 the mother fell pregnant and ceased paid employment in that year.
The parties’ daughter X was born 2010.
The parties separated on a number of occasions during the relationship, the common catalyst being the father’s infidelity and use of sex workers coupled with his irate reactions when confronted about his behaviour by the mother. The parties’ confrontations often included the father removing the mother’s access to funds, verbal abuse and some physical assaults.
In mid-2013 the parties separated for a period of two months during which time the father cancelled the mother’s access to their banking accounts. The mother sought legal advice and paid for the legal fees using her supplementary credit card which the father then cancelled as well.
By late 2013 the parties had reconciled and commenced IVF treatments in order to conceive another child.
In late 2014 the parties were again experiencing issues in the relationship. While holidaying in Country O the mother transferred $35,000 to her personal account to use in the event that the couple separated again. Upon discovering the transfer, the father allegedly ran at the mother and threatened to take her and X’s passports and leave the mother behind in Country O. On their return to Australia the mother discovered that the father had again suspended the parties’ joint credit cards and transferred funds so that she could not access the finances. The mother alleges that the father also accessed her mobile phone and retrieved her banking pins and removed pieces of her jewellery.
The parties again separated in late 2014. The mother commenced proceedings in the Family Court of Australia, as it then was, on 22 December 2014.
By early 2015 the parties had once again reconciled.
In 2015 the mother fell pregnant and on 24 March 2015 she discontinued the Family Court proceedings.
The parties’ twins, Y and Z were born in 2015.
By late 2016 the parties were again in frequent conflict about the father’s resumed use of escorts and his joining a dating site.
In mid-2019 an incident occurred where the father slapped the mother in the face. The mother then attempted to call the police but the father took her mobile phone from her. When the mother regained her telephone from the father he informed her he would be cancelling her bank cards while she called the police. The police attended the home and an Apprehended Domestic Violence Order (“ADVO”) was issued for the protection of the mother. The father then left the home for a few days. The mother withdrew the ADVO a short time later.
The parties separated again in early 2020 and the father, in an effort to save the marriage, travelled to the United States to attend a Centre to address his use of sex workers.
The father returned to the matrimonial home in mid-2020.
In early 2021, another altercation occurred at the matrimonial home between the parties and involved the maternal grandmother. The father was charged with common assault as a result of the incident and an ADVO was again issued for the mother’s protection. Upon his return to the home, the mother alleges that the father once again informed her that he was removing her access to the finances, and the mother told him that that would be in breach of the ADVO. The father then told her he would “kill [himself]” if he was sent to jail (mother’s affidavit filed 18 July 2023, paragraph 343).
The parties separated on a final basis on 16 February 2021 and the mother commenced the current proceedings in the Family Court of Australia, as it then was, on 4 March 2021.
On 21 March 2021 the father left the former matrimonial home.
Procedural history
On 22 March 2021 orders were made for the father to vacate the former matrimonial home and to spend only supervised time with the children. Orders were also made for the sale of two properties owned by the parties, one at CC Street, Suburb C (“the Suburb C property”) and one at DD Street, Suburb D (“the Suburb D property”), with the proceeds to be held in controlled monies accounts.
On 25 March 2021 the father was ordered to pay to the mother the sum of $3,657 by way of lump sum spousal maintenance and the sum of $1,375 each week by way of interim spousal maintenance.
On 13 October 2021 further interim orders were made for the father to spend supervised time with the children each Wednesday after school and on Saturdays and for the children to communicate with the father by FaceTime each Monday and Thursday.
The properties at Suburb C and Suburb D were sold on two dates in mid-2021. Orders were made on 27 October 2021 for the proceeds of those sales to be distributed to the parties in equal shares to the trust accounts of their respective lawyers. That same day, orders were also made for the sale of the matrimonial home at EE Street, Suburb B (“the Suburb B property”) and for the parties to each receive the sum of $3,000,000 by way of a partial property settlement.
On 8 December 2021 the father filed an application seeking an urgent reconsideration of the existing parenting orders as he had not spent time with the children since 27 November 2021. That application was heard by Altobelli J on 31 January 2022 and orders were made on 6 May 2022 for the father’s time with the children to resume on a continued supervised basis (Boulton & Boulton [2022] FedCFamC1F 295).
On 8 June 2022, by consent, Altobelli J set aside the parties’ financial agreement of 28 September 2006.
On 3 March 2023, I made orders setting the matter down for final hearing commencing on 14 August 2023.
On 10 March 2023, a Senior Judicial Registrar made orders removing the supervision requirement on the father’s time with the children, but ordered that changeovers still occur on a supervised basis.
PARENTING
As already noted, there are three children of the relationship being X, born 2010, and the twins Y and Z, born 2015.
The mother’s primary contention is that whilst each of the children would love to have a close and continuing relationship with the father, their best interests would be served by them spending no time with him at all or, alternatively, very limited time. Obviously, she sought an order for sole parental responsibility. The ICL proposed orders along the lines of the mother’s primary suggestion.
For his part, the father proposed that there be equal shared parental responsibility. The children were to live with the mother and immediately start to spend time with him from after school every second Friday until 7.00 pm Saturday and each alternate Wednesday from after school until before school the following Thursday.
After four weeks the weekend time would end at 7.00 pm Sunday and after eight weeks it would end before school on Monday.
The children are currently supposed to be spending four hours each Wednesday and from 9.00 am–5.30 pm each Saturday with the father, with changeovers being professionally supervised (pursuant to orders made on 6 May 2022, as modified on 10 March 2023). As explained in detail elsewhere, X now refuses to see the father and there are difficulties with the boys’ time.
The parties’ relationship was marked by frequent conflict but there were periods of familial harmony and life proceeded happily. However, the non-exhaustive overview of the marriage which follows illustrates the volatile home environment which became increasingly more toxic with time, with which the children have unfortunately been familiar since birth. A great number of incidents occurred throughout the marriage, often in their presence.
In early 2013, the mother describes an incident that occurred after she discovered the father was seeing sex workers. The father picked the mother up and threw her on the bed and laid on top of her. The mother fled to X’s bedroom but the father followed and whilst she was holding X, he grabbed the mother’s hair and shook her head.
The mother states that another incident occurred in mid-2013 where, after having an argument, the father started following the mother around the home, antagonising her and videoing her on his phone.
After another argument in mid-2013, the mother states that the father elbowed her in the chin and neck causing her bruising and inflammation.
The parties separated from June to August 2013.
While travelling in a car together in mid-2013, the mother says the parties began arguing about the father using sex workers and he then demanded that she get out of the car and told her he would be changing the locks on the family home. The mother says he said words to the effect of: “It’s been 6 months since I saw one (an escort)! You should be over it by now. If you leave, I will sell the house from under your feet and cut you off from my credit cards. You’ll get nothing. Here’s some taxi money, get out of my car! I’m going home to change the locks. You’ll find all your stuff out on the gutter” (mother’s affidavit filed 11 July 2023, paragraph 155).
The mother suffered a miscarriage in 2014.
In late 2014, during an argument while holidaying in Country O, the father threatened to take the mother and X’s passports and leave the mother stranded in Country O by herself. He then suspended the parties’ joint credit cards and withdrew all the funds from their joint accounts.
In late 2014 the mother attended Suburb Q Police Station to receive advice about obtaining an ADVO for her protection against the father. The next day, the father took the mother’s mobile phone and laptop and removed them from the home. The following day the father sent multiple abusive emails and voice messages to the mother’s ex-boyfriend, with whom she still had a friendship, accusing him of having an affair with the mother. A short time later, the father again removed the mother’s mobile phone and changed her access to her email account. The following night, the father removed some of the mother’s clothing while she slept and took photographs of her. The parties separated that same day.
As a result of the parties’ separation the father decided to attend a rehabilitation clinic to address his behaviours and use of sex workers in the hope of saving the relationship. However, the father only stayed at the clinic one week out of the required 13-day program.
Soon after the father had returned home in late 2014, the mother recounts having returned from a session with her psychologist and the father repeating to her conversations she had just had in that session. He then admitted to having hidden a voice recorder inside her handbag and listening in on her discussions with the psychologist.
In early 2015 the father alleges that while attempting to take X out for the day, the mother ran out of the home and up alongside his moving car and began banging on his windows screaming that he was “kidnapping” her child. On returning inside the home the father then said that the mother punched him in the back.
In late 2018, whilst at the Suburb C property, the mother confronted the father regarding hotel bookings on his credit card. The father then threatened to leave and take the mother’s house keys with him. The mother sat on the floor of the garage to prevent the father from leaving with her keys. The father then started videoing the mother whilst she cried and asked him to stop.
In early 2019 there was an incident at the family home where X became upset and threatened to run away from home. When X walked out the front door, the father closed the door behind her and locked it, and then forbade the mother from going after her.
In early 2019 X was using the father’s mobile phone when he received a message containing a photograph of a partially naked woman, which she saw. This incident caused X to speak to her school counsellor who expressed her concern to the parties about X’s “deteriorating mental wellbeing” (mother’s affidavit filed 11 July 2023, paragraph 227).
In mid-2019 the father is reported to have begun videoing X after an argument when she had become visibly distressed and started to cry.
In late 2019 the father and the mother argued after which the father demanded that the mother leave the rental property in which they were living as her name was not on the lease. The father took the mother’s wallet and refused to return it. The father then began videoing the mother crying and begging him to return her wallet.
In late 2019, the family GP prepared a mental health care plan for X listing the domestic violence at home as a factor.
Another incident occurred in early 2020 between the parties and the maternal grandmother. Police were called to the home and the father was instructed to leave for the night.
In early 2020 the mother states that X suggested to her that they could leave and go to a women’s shelter to get away from the father.
The parties were separated from February to May 2020.
In May 2020 X told the mother she wanted to die and wanted to hurt herself and that she had started “cutting”. In mid-2020 the mother discovered a video made by X posted online where she describes three different self-harm attempts that year.
In mid-2020 X began hitting the walls with a broom. The mother alleges the father then hit X across her stomach and ribs. The police were again called to the home.
In early 2021 there was a serious incident at the home between the parties and the maternal grandmother. As a result, the father was charged with assault of the grandmother and was taken to the police station and issued with an ADVO. The following day when the father returned home, he said to the mother “I'm going to put you where you deserve.” to which she replied, “Where is that?”, and he said “In a bitter divorce and you will have Legal Aid”. He also said words to the effect “I’ve moved all the money out of the offset account. There’s no money. It’s all gone. I’m not going to pay the landscapers and we’ll have to sell the house. Game on mole” (mother’s affidavit filed 11 July 2023, paragraph 339).
The parties separated on a final basis on 16 February 2021, but remained living under one roof until 21 March 2021. In early 2021 the mother went to the police in relation to the father’s behaviour.
The parties’ separation appears to coincide with the marked deterioration in X’s mental health and behaviour. The boys too began to display increased behavioural problems and school refusal.
In early 2021, X again told the mother on multiple occasions that she did not want to live anymore. At the time, X was seeing the school counsellor twice a week. She first saw the counsellor in early 2019.
X began refusing to attend school in early 2021 and would only agree to see the school counsellor. By mid-2021, X’s mental state and behaviour had further deteriorated and at that time, the mother called the Mental Health Line after X said “I can see the dark things mummy”. X had pulled the mother’s hair, thrown things and tried to grab the mother’s neck. She then punched the mother in the stomach. Police and ambulance staff attended the home and X was assessed and taken to hospital and medicated.
Again, a few days later, X became severely distressed and began screaming and wrote on her bedroom walls and doors. She physically attacked the mother and told her “fuck off bitch”. The mother again called the Mental Health Line and then later called an ambulance which took X to hospital. After this incident X was referred to JJ Family Services.
X again refused to attend school in mid-2021 and then later smashed a number of household items, scratched the mother and then attempted to hit her with a rolling pin. Again, the police and an ambulance were called and X was taken back to hospital.
X commenced seeing child psychiatrist Dr KK in mid-2021 who diagnosed X with depression. A short time later, X disclosed to Dr KK that she was “angry and scared of [her father]”.
In late 2021 X began to refuse to spend time with the father.
In late 2021 at a changeover, the mother alleges that the father threatened to kill her. Following this threat, the mother obtained an ADVO which was later withdrawn. However, after her doing so, the father cancelled the mother’s mobile phone plan.
On 29 November 2021 the mother ceased the children’s time with the father. Time with the father did not recommence until 7 May 2022.
The father attended one of X’s sports competitions in mid-2022 accompanied by his new girlfriend, Ms LL. This upset X who then ceased spending time with him once again in October 2022.
The father and X commenced therapy in late 2022. The twins then also commenced therapy with the father in early 2023.
In early 2023 X cut up her school uniform and told the mother she wanted to die. A few days later she tore up her bed sheets and attacked the mother, pulling her hair.
In early 2023 the twins too began to refuse to attend school and at changeover on 18 March 2023 an incident occurred where Z jumped a fence and ran off down the road. The mother chased after Z and at one point, he punched her in the stomach. Y then also ran out into the road and began to shout “I want to die. I don’t care if I die!” (mother’s affidavit filed 11 July 2023, paragraph 1008).
On 1 May 2023 all three children refused to attend school. At this time Z had not attended a full day of school since March. In the first semester of 2023 Y and Z had multiple days absent from school.
As I explain elsewhere, where there is a direct dispute between the mother and the father as to what occurred on various occasions I am inclined to accept the evidence of the mother over the father. Therefore, in the absence of any obvious reason for not doing so, I accept the mother’s allegations as described above.
The issues that involve the children are, however, those that concern me most and will need to be dealt with in some detail, child by child.
X
As discussed earlier, it is not my intention to delve fully into the morass of detailed evidence offered up by the parties and I shall instead focus on the more recent matters dealing with X which will serve as examples and are, I consider, instructive. I have, of course, taken into account all the evidence, especially that identified in the reasons.
However, as an introduction, it is necessary to record that X, as the oldest child, has been exposed to the toxic conflict between the parties for longer than the boys.
As Dr L has recorded in his first report, this led to the mother over-involving X in the parental conflict, sharing too much information with her and relying on her for emotional support. Dr L described this relationship as enmeshed.
By the time of the second report, Dr L was of the view that the mother had improved the nature of her relationship with X so that it was far less enmeshed.
As will become apparent, X was a keen and talented sports person at a high level. Whilst she spent some time away from the sport during the worst of her difficulties, she resumed and at the time of the hearing was once again enjoying competitive sport. This, of course, involves regular training and practice.
It is sufficient to commence in early 2019 when X saw a message from a sex worker and a photo of a partially naked woman on the father’s mobile phone. The father says this was merely spam, but it is likely from the arguments between the parties that X was aware of the father’s use of sex workers. Having regard to the father’s use of sex workers over the years, which he constantly sought to downplay, it is more likely than not it was either not spam, or spam generated by his seeking of sex workers. Even if he was not, it was most inappropriate for her to see, even if it was spam.
In mid-2019 the father took X’s phone from her and she started to cry. The father then videoed X crying, which he then showed her. Shortly after, X made a complaint to the Department of Family and Community Services (“FACS”), who were involved with the family following a report from the mother’s psychologist at the time. A FACS caseworker then spoke to the father. He agreed in cross-examination that the caseworker had been shown the video (Transcript 17 August 2023, p.277 line 31 to p.278 line 5).
In that cross-examination the father said that the caseworker had told him the video was inappropriate. He would not agree that, as the FACS documents recorded, the “Case worker spoke about emotional abuse …” (Transcript 17 August 2023, p.278 lines 10–34). It would be surprising that the caseworker would use such language in his or her notes if the conduct was regarded as merely inappropriate. At the very least however, the father was disabused of his view that there was nothing wrong with what he had done.
The father agreed that, notwithstanding that his daughter had complained to FACS about his behaviour which resulted in him being admonished about it, he continued to video X and the mother frequently until the date of separation. In his oral evidence he described this as inappropriate, regrettable, and deplorable (Transcript 17 August 2023, p.279 lines 1–9). He did not do so in his affidavit.
In mid-2020, in the course of an argument, X hit the wall of the home with a broom, leaving a dent or a hole. The father rushed in and, he said, attempted to punish X by hitting her on the bottom or upper leg. The mother then attempted to comfort X saying that she needed a hug. The father’s response, according to him, was:
I think she needs to learn consequences…All you’re teaching her is that if she loses her temper and breaks something then she gets a hug from mummy. You’re just positively reinforcing the behaviour.
(Father’s affidavit filed 18 July 2023, paragraph 230)
The mother says that the father hit X in the ribs. The mother annexed a photo of red marks over X’s stomach and ribs. The father denied that he had hit her there and said that he thought he had hit her on her thigh or bottom (father’s affidavit filed 18 July 2023, paragraph 230). Given the photos, the mother’s evidence and the absence of any other explanation of how the marks in the photo were made, it is more likely than not that the father caused the red marks by hitting X in the ribs.
That, on any view, cannot constitute appropriate chastisement. It no doubt caused X to be fearful. It was physical family violence directed towards a 10 year old child.
In cross-examination the father agreed that he was very angry. The exchange continued:
[SENIOR COUNSEL FOR THE MOTHER]: Well, she would be frightened by you approaching her angrily and trying to hit her, trying to smack her. Very frightening for a little girl. Would you agree?
[THE FATHER]: Yes. I was called in, yes.
[SENIOR COUNSEL FOR THE MOTHER]: I’m sorry?
[THE FATHER]: I was called in to play that role, yes.
[SENIOR COUNSEL FOR THE MOTHER]: You were called in to play that role? What? The role of coming in angrily and trying to smack her. That’s what you were called in to do, was it?
[THE FATHER]: I regret it. It was a – I realise - - -
[SENIOR COUNSEL FOR THE MOTHER]: [The father], are you actually able to give an answer without trying to deflect blame onto somebody else?
[THE FATHER]: I take responsibility for it. I’ve responded badly and I would not do it again.
(Transcript 17 August 2023, p.288 lines 28–40)
This illustrates a theme of the father’s cross-examination – to deflect the blame to others, usually the mother, to minimise his own role, and to say he regretted it and was working on himself. I shall deal separately with the regret and working to improve himself.
This, it seems to me, is an important incident which in part explains X’s attitude towards the father.
The mother described an incident in late 2020. It was not referred to by the father in his evidence, so it is more likely than not that it occurred as described:
[In] about [late] 2020, [the father] threw food on the floor and started screaming and swearing at me. He kept yelling at me words to the effect: “We are selling this house…I am not paying mortgage repayments and if we don’t sell it, the bank will sell it…If you want to go to court, all of the fucking mortgage repayments stop”. I asked him to stop as he was screaming this in front of [Z]. [The father] then said to me, words to the effect: “Well then call FACS babe…My kids will be fine, but you on the other hand are not going to live a life of fucking luxury that you get with being my wife. Spouse maintenance for 2 years and then you’re on your fucking own”. At one point, he taunted me about buying some more paper towel with his credit card. He then said to me, words to the effect: “Or maybe you can’t anymore”. I asked him, words to the effect: “Did you just cancel it?” [The father] then laughed and replied “yes”. [X] and [Y] came down during [the father] screaming and [X] got very upset. [The father] continued to scream at me about financial matters and [Y] whined over and over “mummy”. I asked [the father], over and over again to “Stop in front of the kids” but he would not. [The father] called me “a gold digger” and he also said to me, words to the effect: “You put money on a credit card that wasn’t even yours. Do you want me to press charges and have you put in jail?”…I made [the] recordings because [the father] had said to me words to the effect: “No one is going to believe that I have abused you. You are nuts.” He also said to me, words to the effect: “I’m not the problem. You are”.
(Mother’s affidavit filed 11 July 2023, paragraph 320)
An audio recording from that day shows that the father said the following to, or in front of, Z or X:
•And you know what? When Mummy and Daddy get divorced you won’t see me again;
•I do want her. I don’t want her if you fucking turn her into little [Ms Boulton] and disrespect me;
•You have turned her into a little [Ms Boulton];
•My kids will be fine. You on the other hand are not going to live a life of fucking luxury that you get with being my wife. I am sorry. Spousal maintenance for two years and then you’re on your fucking own;
•And then you’ll just put some more on my credit card. Oh wait, you can’t anymore;
•Do you know what [X]… if we get divorced, Mummy’s going to try and take [grandpa] and [grandma’s] $2 million;
•Well you say you’re not a gold digger babe, give my parent’s money back;
•You put money on a credit card that wasn’t even yours… that’s a crime. Do you want me to – do you want me to press charges? And have you put in jail?
(Annexures “[MB26]” and “[MB27]” to the mother’s affidavit filed 11 July 2023)
This was while the children were upset and the mother was asking the father to stop.
The excerpt shows denigration of the mother and X (i.e. “little [Ms Boulton]”) in front of the children, threatening and controlling behaviour including financial threats and control, and involving the children in the parties’ financial affairs and disputes.
In early 2021 the father said the following in [X’s] room in front of both her and the mother:
•You’re the one…threatening to call the fucking cops on me you fucking fruitcake;
•I love you very much [X] but your mother is fucking pathological and malignant to you;
•Goodnight [X], I love you. I love you [X]. And I will fight to see you [X], I will fight to play with you and I will fight to see you and spend time with you. Despite what your Mummy wants.
(Annexure “[MB30]” to the mother’s affidavit filed 11 July 2023)
Early in the extract, X says “I don’t want to live” and “I don’t want to live anymore”. The mother’s response is soothing and calming. The father’s tirade continued despite the mother asking him to stop and get out of X’s room. (Annexure “[MB30]” to the mother’s affidavit filed 11 July 2023).
In early 2021 the father was charged with assaulting the maternal grandmother. The charge was later dismissed.
A recording made in early 2021 shows the father attempting to involve X in the dispute with the maternal grandmother. I have listened to the recording. X and the mother are clearly upset and X is crying.
It appears that the event started because X had reset a game she, Z and the father were playing. She had also been told not to use the father’s charger.
The recording commences:
Father: Things aren’t good between Mummy and Daddy, and you can try and help me out, okay? Instead of - - -
Mother: What’s wrong?
Father: Instead of trying to make things worse, try to help me out.
Mother: What’s wrong? What’s wrong? What’s wrong? What did he say? What’s wrong?
Father: What did he say?
Mother: You said something. Look at her. What did you say? What’s wrong?
Father: Why do you instantly assume I’m guilty of something?
Mother: She doesn’t just cry like this for no reason.
Father: Well I told her she couldn’t use my charger. She has her own charger. You instantly assume I’ve done something wrong.
Mother: [X], what happened? [X], what happened? [X], what happened? You need to tell me, babe. You need to tell me. What happened? Why are you crying?
Father: You’re going to need to tell her something [X], because she’ll take it to the Police, and have Daddy arrested.
Mother: Oh, stop it, [the father]. No. I want to know why she - - -
Father: Well, why does she need to tell you something?
Mother: Because look at her. Oh, [X].
Father: I think she regrets going to talk to you and resetting the game. I think that’s what this is about.
Mother: She regrets talking to me?
Father: Well, she regrets resetting the game and making this fight happen.
Mother: Is that it? No.
Mother: That’s not it. You made that up.
(Annexure “[MB34]” of the mother’s affidavit filed 11 July 2023)
Two things emerge from this extract. First the father is directly involving X in the issues between the parties, but also casting onto X the burden of solving the issues between the parties. It is she that must stop the father from going to jail.
Secondly, the father is at pains to make it clear that the incident arose from X’s behaviour and not any behaviour of his such as asking X to “help him out”.
The recording continues:
Father: I’m not a child psychologist. What is it then, [X]? Talk to me. Talk to Mummy and me.
[X]: You said “If you want to ruin our family and lives, then go right ahead”.
Father: I am saying, [X], Mummy and Daddy are in a very bad place for our marriage and our family.
Mother: This is not appropriate in front of [X]. Can you please - - -
Father: I am asking you if you want us to try and stay together as a family – which I don’t think is possible – but if you want us to try, please help me out.
Mother: [The father], she’s - - -
[X]: No!
Mother: She’s 10…
Father: You don’t want us to stay together?
[X]: No!
Father: That’s fine, honey. You know, I’m only here for you guys. In all God honesty - - -
Mother: This is not something - - -
[X]: You’re here for [Z]!
Mother: This is not how you talk to a 10 year old!
Father: How do you talk to a 10 year old honey? Cuddle her and nurture her?
Mother: Yeah. And you don’t talk about this kind of stuff to a 10 year old. She’s not an adult.
Father: In two years time, she gets to choose where she lives…12. The Court order doesn’t hold anything against a 12 year old.
Mother: None of this is appropriate conversation to a 10 year old.
(Annexure “[MB34]” of the mother’s affidavit filed 11 July 2023)
This time the father indicates to X that it is she, and not the parents, who will ruin the family’s lives.
The father ignores the mother’s entirely appropriate intervention and returns to the resetting of the game:
[X]: […] is just a game. Then don’t get angry at us if we kill you.
Father: I don’t, [X].
[X]: You do.
Father: I don’t.
[X]: You do actually.
(Annexure “[MB34]” of the mother’s affidavit filed 11 July 2023)
This is a theme throughout the evidence. The children perceive the father as becoming angry with them easily.
After some discussion between the parties, during which the mother reproached the father for his behaviour, he objected that he had not “intimidated” or “harassed” anyone.
I omit some further discussion and continue:
Mother: I didn’t go into the room. [X] was in there getting her stuff, and you had to have a go at her - - -
Father: Because I’ve - - -
Mother: And told her she was ruining our marriage. You need to stop.
Father: I’m asking you, [X] - - -
Mother: No, don’t
Father: I’m asking you [X]. If you have any desire for us to try and stay as a family, please help us out.
(Annexure “[MB34]” of the mother’s affidavit filed 11 July 2023)
Again the burden of saving the family is cast upon X, but then her views are dismissed immediately because she is “angry”.
Again, the father doubles down, telling X:
You’re saying that because you’re angry. And I get that, and I’m sorry that you’re angry.
(Annexure “[MB34]” of the mother’s affidavit filed 11 July 2023)
Tellingly, X replies that she is over living with “at least one fight a day” (Annexure “[MB34]” of the mother’s affidavit filed 11 July 2023).
Unfortunately, her parents did not listen to her.
The last extract is as follows:
Father: Do you want me to leave you alone, [X]?
[X]: Yes.
Mother: Why don’t you just cool down. This is not healthy.
Father: No, you know what’s not healthy, is the enmeshment.
Mother: There’s no enmeshment.
[X]: What’s unhealthy is you.
(Annexure “[MB34]” of the mother’s affidavit filed 11 July 2023)
Again, this involves adult issues, and typically for the father, attempts to cast the blame on the mother, and possibly X. It is their enmeshment that is the problem and it has nothing to do with the father.
The father’s behaviour was appalling. It is also telling. None of the parties’ difficulties is his fault and others are to blame – particularly the mother, but also the children. He views the children, at least in part, as those who should take steps to solve the parents’ problems.
Instead of attempting to protect the children from conflict, the father directly involves them in it.
If this recording seems to reflect X’s attitude to her father, which I think it does as it is largely consistent with her subsequent behaviours, it explains her view that it is for the father to fix himself and not her to do it through therapy with him. This suggests to me that X views therapy with the father as her having to fix her relationship with her father, and not as him fixing his relationship with her.
Whilst this may be the view of an emotionally disturbed 10 year old, it would not be less real for her because of that.
As I explain elsewhere, while the suggestion by the father that he apologise to the mother in an appropriate setting with appropriate support is outwardly a good thing, it still bespeaks control by the father as he will apologise on his terms at a time and place of his choosing. I suspect that may not be intentional, and that he genuinely believes he is doing a good thing. Unfortunately, it is not at all.
X does not see it the way that the father sees it, as her outbursts with Ms W, a psychologist who was providing therapy to X, make plain. This, after all, is a young woman who has been exposed to the parties’ conflict for many years as well as the father’s controlling and coercive behaviour and use of sex workers.
Therapy between X and her father would be an excellent step. It appears X would love to have a relationship with her father and therapy would be an ideal way to rekindle it.
Unfortunately, X will not cooperate at this stage because she considers the father needs to fix himself first. Ms W has run out of ideas. The father will apologise in the appropriate setting but X will not be there.
It is a difficult stand-off. It will be unfortunate if it is ultimately resolved by the lure of expensive concert tickets (the father purchased tickets for X and himself to see a concert earlier this year).
In mid-2020, X said to the mother “I don’t want to live anymore, I want to die. I want to hurt myself” (mother’s affidavit filed 11 July 2023, paragraph 293). A short time later, the mother discovered a video X had uploaded to TikTok describing attempts at self-harm.
The children met with the ICL on 5 May 2021. That evening X got into a fight with her brothers over the PlayStation. The mother became involved and X pulled her hair, scratched her, attempted to grab her by the throat and said she would kill the mother if anyone was called. X began sobbing uncontrollably, was throwing things and threatening to hurt people. She could not be consoled.
The mother could not reach X’s general practitioner so she called the Mental Health Line who advised she call 000. The police, an ambulance and a mental health nurse attended the home and X was calmed. After they left, X’s behaviour resumed and the mother called Suburb T police who arrived and took X and the mother to hospital. There X was given anti-anxiety medication and was advised to continue seeing her counsellor and treating doctor.
In mid-2021 X wrote curse words on the door and walls of her bedroom. She also pulled the mother’s hair and scratched her. The mother phoned the father, who offered to come over and talk to X. When this possibility was raised with X, she became more distressed. X then tried to lock herself in the bathroom before going into the spare bedroom where she then laid crying under a blanket. The mother called the Mental Health Line and then called an ambulance. X was taken to hospital where she was assessed by a nurse and child psychiatrist who recommended that she see a psychologist and psychiatrist regularly. She was referred to JJ Family Services.
In mid-2021 the father attended the school assembly at E School, Y and Z’s school, and sat beside the mother and X. The next day X refused to go to school, would not do her school work and instead watched videos. The mother turned off the home Wi-Fi. X then started smashing things around the home, scratched the mother and attacked her with a rolling pin. The mother hid in the bathroom and called her general practitioner who then called the police. The police again took X to hospital where she was seen by a psychologist and psychiatrist.
The father had arranged for X to see Dr KK, a psychiatrist, in mid- 2021, but the mother was able to secure an earlier appointment. Later in late 2021 she commenced seeing Mr NN, a psychologist.
Dr KK prescribed medication, an antidepressant, and another medication to assist with sleep.
X did not spend time with the father from November 2021 to 7 May 2022 and in October and November 2022.
X attended a sports competition in mid-2022. The father decided to attend, which was probably good, except he took Ms LL, his new partner, who had not yet met X, which was probably not a good idea.
The following texts passed between the father and X:
[X]: WHY DID YOU COME
AND YOUR GIRLFRIEND
I HATE YOU
Father: Sorry?
[X]: […] SAW YOU GOING
AND I SAW HER SITTING BEHIND MUM
Father: I was on the other side […] supporting your [sports], [X]
You told […] I didn’t support your [sports]. But I really do.
[X]: I DIDNT WANT YOU TO BRING UR LOVER
Father: What are you talking about?
[X]: I WISH YOU DIED […]
(Mother’s affidavit filed 11 July 2023, paragraph 804; Exhibit 30, p.11)
I do not know why the father feigned ignorance as to Ms LL being with him. His response in his affidavit is also telling. He said that Ms LL initially sat a few rows behind the mother but that he asked her to move (father’s affidavit filed 18 July 2023, paragraph 692). He then saw the mother stand and direct her phone to where Ms LL was sitting. He added:
691.…I brought [Ms LL] to [the sport competition] because we were going [shopping] afterwards and this was close by. Before we went in I said, “We shouldn’t sit together. [The mother] and the other parents will be sitting on the grandstand immediately to the right […]. I will sit on the other side […]. You should sit further down […] so that you are nowhere near the parents.”
692.[Ms LL] agreed and I went to sit in the grandstand. I was nowhere near [the mother]. [Ms LL] had never been to the [sports venue]. She went where she thought I had directed her. Unfortunately when she sat down, she realised that [the mother] was in front of her. I texted [Ms LL] and said, “OMG you need to move. [The mother] is about 5 rows in front of you.” When I looked over to where [Ms LL] was sitting I saw that [Ms LL] was approximately 5 rows behind [the mother]. [The mother] was repeatedly looking behind her to [Ms LL]. I texted [Ms LL], “Move now.”
…
695.While I was watching [X] […] I saw [the mother] take a photo of me and mouth “got you” and gesture in my direction. I am concerned that [X] became upset after […] because she saw [the mother] standing up with her phone and not watching [X]. I am also concerned that [the mother] told [X] that [Ms LL] was there.
696.I regret the decision to take [Ms LL] to the [sports competition] but I genuinely do not think [X] would have been able to recognise [Ms LL] or have known who [Ms LL] was as we did not sit anywhere near each other, if [the mother] hadn’t said anything or started filming.
(Father’s affidavit filed 18 July 2023, paragraph 691–696)
Thus, the incident was really all the mother’s fault because X would not have otherwise known Ms LL was there.
Once again, the father typically seeks to avoid the issue and blame others.
In early 2023 X sent a text to the mother saying “I want to die”. X’s cut up school uniform was also found in the bathroom.
Clearly, X was facing difficulties. She did not spend time with the father that day but did the following weekend, joining her brothers after sport.
In early and mid-2023, Ms LL received Instagram comments from an account (father’s affidavit filed 18 July 2023, paragraph 697). Eventually, three videos of X, the mother, and the father were also sent to Ms LL along with the messages “I have way more if you need… Police have come at least 6 times and also family protective services”, “My childhood was ruined” and again, “we also had supervised visits so he wouldn’t be abusive to us” (father’s affidavit filed 18 July 2023, paragraph 699).
It appears that X was this account holder, clearly having a shot at Ms LL. Despite very long and frequent correspondence between the parties’ lawyers as to the origins of the videos and the reason why they were sent, with each predictably blaming the other, those issues have not been resolved.
Clearly, however, X is having difficulties with the father entering into a new relationship, which he is entitled to do. One can see the benefit to X receiving some counselling regarding this.
The father was to collect X from school on a day in early 2023. According to the father, if X was to spend time with him on a school day, he would collect her at “the flagpole” (father’s affidavit filed 18 July 2023, paragraph 403). Usually, X would text to say if she was coming or not. If not, she would find her own way home.
The father arrived at the school but had not heard from X. He called her to see where she was. She did not answer. Exhibit 13 and paragraph 983 of the mother’s affidavit filed 11 July 2023 show the following text message exchanges:
At 3.45 pm the father sent the mother a text message saying:
…do you know where [X] is please? She has not come to flagpole.
At 3.46 pm [X] texted saying:
Stop calling
The father replied saying:
Where are you???
Please tell me where you are so I know you are safe
He received a reply as follows:
I’m at [an after-school activity]
Why do you care I never come on wednesdays you should know
The father responded between 3.55 pm and 4.00 pm:
It doesn’t start til 4.30
I care very much [X].
I love you very much and I will never give up on you.
Can you please call me so I know you’re safe
[X] replied at 4.05 pm saying:
Shut up I’m studying
And it starts at 4:45
At the same time (4:05pm) the father sent a text to the mother saying:
…I do not know where [X] is. The school does not know where [X] is. Can you please confirm you know where she is and that she is safe. If I haven’t heard anything from you in 5 mins then I will need to call the police.
It is apparent that by this time the father had raised X’s ‘absence’ with her school. In his affidavit, he said he was concerned when X would not answer his call “because anyone could text on [X’s] behalf” (father’s affidavit filed 18 July 2023, paragraph 405).
That is an odd explanation given the texts from X contain information that only she would know.
At 4.06 pm the father said:
[X]. That is fine. Can you please call me so that I know you are ok. Anyone can write texts.
(Exhibit 13, p.2)
Between 4.10 pm and 4.34 pm X sent the following texts:
I’m in the library
There isn’t reception
So fuck off
I FUCKING HATE YOU
IM NOT GOING TO [THE CONCERT] ANYMORE SELL THE TICKETS
(Exhibit 13, p.2)
X sent a thumbs down icon to the father’s response of “I love you [X] very much.” (Exhibit 13, p.2).
The tone of the messages is perhaps explained by the school looking for and finding X in the library. At 4.23 pm the father sent the mother a text saying:
[X] has been sighted by staff in the library. I am very relieved. Thanks for your assistance.
(Mother’s affidavit filed 11 July 2023, paragraph 983)
The exchange shows the father being distrustful of X and his need for control. X must call him even though there were no reasonable grounds whatsoever to think she was unsafe. The difficulty in communication between them is obvious.
That was not the end of the matter. The text messages continued. X sent the following:
WELL I DON’T
GO LIVE WITH YOUR 3 GIRLFRIENDS FORVER
[YOU] EMBARRASSED ME
IN FRONT FRONT OF EVERYONE
IF YOU CARED [YOU] WOULDNT DO THAT
IVE GONE HOME AND NOW IVE SKIPPED [MY ACTIVITY]
BECAUSE YOU YOU
GO DIE
FUCK OFF
I HATE YOU
AND WILL NEVER LOVE YOU AGAIN
GO [LIVE] WITH [MS LL’S] KIDS
FORGET ABOUT ME
ILL FORGET ABOUT YOU
I’m only going to [the concert] for time with […] and […]. Don’t talk to me that day I won’t ever get over the embarrassment you created in front of the girl that gossips. You got my […] teacher and head of [faculty] involved, and a bitchy librarian. You made my life hell, all these girls got involved as well. I also cried AT [SPORTS] once again because you you. You are hurting me so much without realising. After [the concert] I’m having a break from you. Probably won’t come until April after [the concert]. This is because you’re affecting my activities and schooling, you’re getting in the way of my life.
(Mother’s affidavit filed 11 July 2023, paragraph 985; Exhibit 30, p.23)
The reference to “3 girlfriends” seems to be a reference to three photos of women X saw on her phone, as it was linked in some way with the father’s, or saw on the father’s phone or laptop while X was using them.
The first was said to be a naked nurse, something which the father denied. The second was of a young woman the father saw from time to time and who he flew from Brisbane to Sydney so he could spend time with her. The father denied that she was a sex worker, apparently because he did not pay her all of the time. It is obvious that X was all too aware of her. The third woman is likely the father’s new partner, Ms LL.
It is clear that X knows too much about the father’s infidelity, but as the evidence describes, it was hardly a secret and was the subject of arguments between the parties which all the children most likely heard.
As I have said, it seems X has difficulty with accepting the father has entered into a new relationship.
I consider that X’s long text response is consistent with X wanting to have a relationship with her father, but that difficulties stand in the way of that. X perceives them to be the father’s fault.
In the case of this insensitive over-reaction, she has a point.
X did not go to school the following day and skipped her class for two months. She did go to the concert.
It is not necessary to detail all the precise difficulties of X’s over the years, which are recorded in great detail in Dr L’ first report. X has been involved with counsellors at school since at least 2019. It is sufficient to record Dr L’ opinion in the first report as follows:
a.Whether or not the children have any physiological, psychological or psychiatric issues that need to be addressed.
The scope and evolution of [X’s] psychological problems are readily evident from the subpoenaed material I have reviewed earlier, and I will not summarize them again. She has a long history of mostly emotional problems in the form of performance and other anxieties as well as insecurity, to which have gradually been added behavioural problems in the form of aggression and non-compliance. This pattern does not fit neatly into a category of a disorder with a relatively clear-cut time course, such […] depression, although fluctuating mood problems and thoughts of self-harm have also been evident in the past two years. Rather, the range of these behavioural and emotional problems, the length of time they have been present, and the severity of her symptoms, are consistent with a more serious condition with a poorer prognosis. My greatest concern is that unless she receives effective treatment from this point, there is a significant risk that she will develop a personality disorder which may be lifelong. For that reason, medium to long term counselling probably offers the best way forward. However if her response […] in 2018 and her school refusal and other oppositional behaviour are any indication, it may be quite challenging for her to become fully engaged in therapy to the required degree. Moreover, her mother is going to have to apply consistent expectations about attending therapy, while not intruding in the therapy.
Disentangling the origins of this is complex and difficult, but her parents’ conflict throughout her life is clearly at the heart of it. She has witnessed a great deal of verbal and more subtle domestic violence between them. Her father has also turned on her at times. Added to this, she had become deeply enmeshed in her mother’s distress over the years, and her school counsellors’ notes from as early as Year 1 indicate the extent to which her mother has leaned on her for support and validation.
At this point, [X] has a highly ambivalent relationship with both her parents, her father the moreso. Regarding him, on one hand she has expressed a number of grievances, not all of which are her own, and she has manifested quite oppositional behaviour, but on the other hand she says she misses him and she wishes that her parents would reconcile. Regarding her mother, she has been protective, clingy, and she does not want to be separated from her mother to go to school, but in the same time-frame recently, she has attacked her mother viciously both physically and verbally, leading to three overnight admissions to [hospital].
(Single Expert Report dated 31 August 2021, p.65)
Dr L opined that X needed counselling at a high level and a stable family life. To achieve that he considered that X’s time with the father should be regulated as much as possible until her counselling was well-established.
Given the mistrust between the parties, that meant the involvement of professional supervision.
Whilst X’s condition appeared to have improved considerably at the time of the interviews for the second report in October 2022, Dr L still harboured concerns. He said:
I indicated to [Ms W] that I felt that the complexity of [X’s] family situation, and that [X] almost certainly knew from both parents how much the Court process had intruded on the private lives of both of them, [X] was probably concerned that nothing which she said was likely to remain private either. I indicated that I would strongly support that if [X] were to have effective counselling for what [Ms W] and I agreed was a significant risk of an adverse personality development, the confidentiality of her therapy was going to be an essential prerequisite.
(Single Expert Report dated 15 December 2022, p.33)
He added:
I formed the view that [Ms W] has a good grasp of how vulnerable [X] is to developing significant adverse personality traits and dysfunctional interpersonal relationships in her adult life based not only on her family experience and her emotional decompensation in 2021, but also the way she presents now. Working with such children is very challenging and it is often difficult to engage with them at a meaningful level. Typically, they either embrace therapy but at a fairly superficial level, or it takes them a long time to develop some trust in the therapist. However the latter pattern is actually the one which is more likely to lead to a good outcome, and at times, the beginning stages of therapy can be rather hesitant, with the child sometimes withdrawing from therapy for a period before coming back.
(Single Expert Report dated 15 December 2022, p.39)
And:
I must emphasise that I think that [X’s] prognosis remains somewhat guarded. Although she is a great deal more settled this year, there are still aspects to her behaviour which point towards a risk of developing adverse personality traits in the long term. They are not nearly as prominent as before, but they still are worryingly suggestive of behavioural instability and emotional dyscontrol. The matters I refer to are well illustrated by the contact reports. Firstly, there are a number of instances in which [X] and her father came into some sort of conflict, [X] became very tearful, and there were occasions where this led to her going home early or more recently, did not attend the next visit. However in the majority of cases she seemed to calm down, often as a result of appropriate comforting and intervention by her father, and then her mood seemed to swing a full 180° to enthusiasm and extravagant, perhaps somewhat immature, displays of affection such as leaping into his lap. That is, she displayed dramatic swings between repudiation/anger towards her father and enthusiastic affection. While mood swings as broad as this can often be seen in children of this age, the contact visits seem to demonstrate them occurring more frequently than one might hope, particularly bearing in mind the episodes of extreme emotional dyscontrol which she displayed in her mother’s home in mid 2021. Secondly, recently she has got into a habit of “negotiating” with her father about whether she attends visits, usually on Wednesdays, and often at the very last moment. It is not my view that she has the maturity to exercise balanced judgement about this, and that to accede to it promotes self-interest and self-centeredness. I will refer later to orders which in my view she needs to display maturity in adhering to. Thirdly, [the father] should review the ease with which he submits to some of her materialistic demands, which again promotes immature self-interest in her. Collectively these matters reflect worrying developments in terms of immaturity and adverse personality development.
(Single Expert Report dated 15 December 2022, p.39–40)
The importance of counselling for X was repeated by Dr L in his oral evidence. He said it would be beneficial for her and ideally would progress to therapy with her and the father (Transcript 24 August 2023, p.601 lines 14–22).
The difficulty is that X was resisting seeing her therapist, Ms W. As discussed below, the children’s engagement with Ms W ended after the hearing.
Ms W is a clinical psychologist who started seeing X in mid-2022 after Dr L’s recommendations in his first report.
According to the report of Ms W, at the first visit X “denied having any problems except for her father, whom she described as being abusive towards her, even before [her] parents separated” (Exhibit 19, p.2). X said that she did not need therapy and that it was her father who had to “fix himself” (Exhibit 19, p.2).
Since that time, 15 appointments have been booked with Ms W but X has refused to attend a number of them. When she attended she appeared as hostile and sullen. Ms W said it was “difficult to engage [X] in any conversation except for [her] complaining about her father and saying that she hates him” (Exhibit 19, p.2). Ms W reports that the anger seemed to worsen after X discovered the father had a girlfriend.
X did not see Ms W between June 2023 and August 2023. Ms W recorded that on the next visit in 2023:
[X] became very upset and angry with me as she told me that she did not need help and that it was [the father] who had to “get fixed”. She cried a lot, and I told her that I thought she needed help to repair the relationship and to stop hurting so much but she blamed me for “protecting” [the father] and questioned why I had seen him individually (which I explained) and stormed out of my room in tears.
(Exhibit 19, p.2–3)
Ms W added:
[X] has often shown ambivalent feelings towards her father, often saying that [s]he hates him and never wants to see him again, but also saying that she does not want her father to have a girlfriend as he will spend more time (and money) with the girlfriend than with her. [X] currently becomes very angry and upset at any suggestion of communicating with her father even over the phone or online. Given everything [X] has been through and the fact that she is still caught up in the middle of the parental conflict, I hold significant concerns regarding her mental wellbeing.
(Exhibit 19, p.3)
And:
I am not certain how helpful individual therapy is for [X] currently. She is not engaged and insists that it is her father who needs treatment. I believe that what is required is several sessions with both [the father] and [X] together so she can talk to her father with someone supporting both to have a productive conversation.
(Exhibit 19, p.4)
I asked Dr L how therapy would work if X refused to go. His reply was:
[HIS HONOUR]: All right. Now, the other question was – you’ve suggested that [X] would benefit from therapy herself leading into some therapy with her father. How does that work if she refuses to go to therapy, full stop?
[DR L]: Look, it’s very difficult. And that – that’s why what one would try to do – well, one strategy that one – one often tries to do in that situation is you don’t put them together straight away.
[HIS HONOUR]: Well, yes, but the practical effect is she’s refusing to see [Ms W], and [Ms W] has tried to - - -?
[DR L]: Yes.
[HIS HONOUR]: - - - get her to – is not – still at the first step, not at the second?
[DR L]: Exactly. No, I – no, I agree. I – I – so I – I thought you were just sort of talking about it in general – what does one do? I mean, this is a – this – this situation is particularly challenging, I think. It’s – you know, she’s – she didn’t gel with another psychologist who has – who has got a pretty good reputation, and – but she did gel with somebody who I don’t think really rocked the boat terribly much but was nevertheless quite supportive of her, but without challenging her at all. I think she would be a difficult child to get into counselling, and it would be even more difficult in a counselling setting to – to arrange for her to – to – to help her to understand that – that there – that at some point, seeing her father in that context might help them to iron out some of their difficulties. It will be – it will not be an easy task with her, not at all.
(Transcript 24 August 2023, p.605 lines 1–20)
In Baker v Towle (2008) 39 Fam LR 323 (“Baker”), Basten JA, a member of the bench in Kardos who had agreed with Brereton J, said that “To the extent that Kardos purported to state principles which are not consistent with or fetter the broad discretion conferred by that section, it should not be followed” (at [60]).
The Court in Williams referred to Kardos and Bilous but not Baker (which was decided in the following year). The Court said:
26.We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
The Full Court in Jabour & Jabour (2019) FLC 93-898 (“Jabour”) referred to all of the above cases and considered that Williams has overstated the position:
43.We consider that the decisions in Baker and Bilous indicate that the Court in Williams somewhat overstated the importance of the increase in value of a piece of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship” (Williams at [26]).
I shall follow the approach set out in Jabour.
At the commencement of the relationship the father held an interest in a number of real properties in various proportions with members of his family. He owned a property in Suburb YY in its entirety.
Save for a property at Suburb Q, in which the father held a one third share, the properties in which he was a co-owner with family members were sold. The father did not receive any of the proceeds. The father did not suggest that his interest in these properties was anything but genuine. He did say he did not contribute to the acquisition of them. In that case these properties cannot be regarded as a contribution by the father to the property to be divided. However, apparent disposition of property to which he was entitled (his interest varied between 10 per cent and 25 per cent) somewhat colours and diminishes the value to be given to the financial support the father received from his family during the marriage.
The father sought to place a value on his interests in the remaining two properties (Suburb YY and Suburb Q) by reliance on a schedule to a binding financial agreement entered into in late 2006, about a year after the parties started living together. The agreement itself is not relied upon.
The schedule records that the Suburb YY and Suburb Q properties had a combined value of $633,333. It records that the father held shares, superannuation, cash and chattels to a total value of $226,234.
There are some difficulties with this approach in that the schedule speaks to a position a year after the commencement of the relationship. It would be most unlikely if the shares, cash and chattels had remained the same. The basis of the valuations of the properties is not known. Nonetheless, the property was significant.
The mother had lent her former partner approximately $550,000 from the equity and subsequent proceeds of a property sold by her. After the legal dispute relating to that loan, the mother received $850,000 in late 2009.
The father concedes that the mother otherwise had $90,000 in net assets.
Allowing for the difficulties in using the figures in the schedule to the financial agreement, the mother contributed some $640,000 at the commencement of the relationship, or, roughly, two thirds of that brought in by the father.
The parties spent some $614,483 from income on legal fees to pursue the litigation relating to the debt owed by the mother’s former partner. As has been seen already, $800,000 of the proceeds were received by the father who subsequently withdrew $600,000 from his account and did not explain what happened to it.
The father received the entirety of the proceeds of sale from the Suburb Q property in the sum of $952,761.17 in late 2011. He said the proceeds were used to pay down the loan facility on the Suburb AE property.
The Suburb YY property was sold in late 2017 and, as discussed earlier, most of the proceeds of sale ($918,567.92) found their way into the construction costs for Suburb B.
The initial contributions favour the father but not to the degree asserted by him.
The contributions throughout the relationship, save for two matters, should be regarded as equal. The father worked very hard in a skilled profession and generated a large income. The mother worked hard as the primary homemaker and parent.
The father sought to say that he made a significant non-financial contribution by managing the financing and redevelopment of the properties that were bought and sold during the relationship. That is somewhat difficult to square with the allegations, for example, that the cost of the Suburb B development was so expensive because the mother insisted on very expensive designs and inclusions.
I am not persuaded that the father’s contributions should be afforded more weight for that reason.
The paternal grandmother provided loans to the father in 2010, 2013, 2014 and 2020. At least the 2014 loan was at a time when the parties may have had difficulties obtaining finance elsewhere, due to being somewhat over-committed already.
There was a gift of $100,000 in 2010 also from the paternal grandmother.
The father lent $1 million to the paternal grandmother when she had cash flow difficulties in 2017. This was despite the father having borrowed that sum from the paternal grandmother in 2010, most of which remained outstanding. As discussed earlier, in evidence which was puzzling, both the father and the paternal grandmother said they had forgotten about that outstanding 2010 loan and the paternal grandmother said that it could not now be enforced because it is statute barred. The parties have retained the benefit of that advance.
The other matter is whether the mother’s contributions were made more onerous by the father’s conduct and therefore should they be afforded more weight.
That such a consideration should be undertaken was identified by the Full Court in Kennon v Kennon (1997) FLC 92-757 (“Kennon”). In Martell v Martell (2023) 66 Fam LR 650 I endeavoured to explain the modern understanding of what was said in Kennon saying:
18.In [Kennon v Kennon (1997) FLC 92-757 (“Kennon”)], Fogarty and Lindenmayer JJ outlined principles to be taken into account when assessing findings of the occurrence of family violence in property settlement proceedings. As their Honours identified, they did so because the “pervasiveness and destructiveness of domestic violence” had in recent times become to be acknowledged and that there had “been a marked and long overdue change in those attitudes” so that ‘the law, and society more generally, have begun to explore legal remedies which may be appropriate to prevent such behaviour or address its consequences” (at Fam LR 19; FLC 84,290–1).
19.It is safe to say that such awareness and disapproval has continued to increase since then. Importantly, this increase in understanding directly led to changes in the Act. A new definition of family violence, which is in probably broader terms than would have been envisaged in 1997, was inserted into the Act in 2011 in the form of s 4AB.
20.Although widely quoted and followed, the principle stated in Kennon cannot be treated as if they were those of a statute – immutable and unvarying. At the least, those words must be read in the light of the Act as it speaks now.
21.Justices Fogarty and Lindenmayer were concerned about the opening of “floodgates” saying at Fam LR 24; FLC 84,294–5:
That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past. In addition there is the risk of substantial additional time and cost.
…
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 discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect…
22.It has to be said, that their Honours terms “exceptional” and “narrow” lose much of their force if cases involving significant violence are to be the subject of the application of the principles. Such cases might have been regarded as exceptional at the time Kennon was decided but they cannot today be so regarded. Unfortunately the prevalence of family violence is wide and artificial barriers to its recognition, such as trying to limit its recognition in property cases to exceptional or narrow cases, has no basis in principle. As I shall endeavour to explain shortly, the focus of the majority’s reasoning was on the nature and quality of the contributions themselves which were not limited by such qualifying adjectives
23. In Kennon, the principle was identified as follows:
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.
24.For the reasons given, the words “significantly” and “more arduous” are not to be read as coterminous with “exceptional”. Rather, they arise from the basis of the principle itself which focuses on contributions. If the nature and extent of a person’s contributions are made more difficult or harder so that they should be accorded greater weight, such that they should be taken into account in the determining of the outcome, they have therefore been “significantly impacted” or made “more arduous”. The focus is not on the conduct per se, but on its effects on contributions
25.The threshold for recognition is therefore met by conduct which has a discernible effect on the contributions of the other party such that it should be recognised in determining the respective contributions of the parties.
26.That, in my view, should be the focus and terms such as “exceptional” or “narrow”, or indeed, “onerous” add an unnecessary and unacceptable gloss suggesting that a rare and high level of impact is required and that the violence or its impact must be exceptional. That is not however, what their Honours said. All that was required was a “significant adverse impact” upon a party’s contributions. The word “significant” was used, in my opinion, as describing that the effect must be sufficient to warrant recognition but not imparting some artificial threshold. The effect of the conduct must be such that a greater weight should be given to the contributions.
27.More recent cases have softened some of the harshness of the original application of the principles identified in Kennon. For example, it is now the position that the adverse effect of the violence on the contributions of a party can be inferred from the lay evidence of the parties and that there is no need to call evidence to “quantify” that effect (Maine v Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270 at [47]–[52] (Maine); Britt v Britt (2017) 56 Fam LR 526; (2017) FLC 93-764; [2017] FamCAFC 27 at [74]–[75]; Keating v Keating (2019) 59 Fam LR 158; (2019) FLC 93-894; [2019] FamCAFC 46 at [27]–[43], [52]–[67]; Benson v Drury (2020) 62 Fam LR 1; (2020) FLC 93-998; [2020] FamCAFC 303 (Benson v Drury) at [47]–[50]).
28.It seems to me that regarding Kennon claims as “special” or “exceptional” is apt to mislead. In reality, all the majority said in that case was that a person’s contributions are to be assessed in the light of all of the circumstances and where those circumstances have the effect of making the contributions more difficult, onerous or arduous, that should be recognised in the assessment of contributions. That, of course, takes place in a holistic manner (Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154; Jabour v Jabour (2019) 59 Fam LR 475;(2019) FLC 93-898; [2019] FamCAFC 78).
In Farina & Lofts [2019] FamCA 27, Carew J took a similar approach saying:
6.While it is settled at law that family violence can be a relevant factor in determining contributions in property proceedings, the difficulty often faced by a trial judge is the inadequacy of evidence to support any relevant finding and adjustment. However, even if there is no express evidence of how the conduct impacted on the victim’s ability to make his or her contributions the impact may be inferred if the evidence clearly supports it. Although the Full Court in Kennon referred to the types of cases to which the principles apply as being ‘exceptional’, that should not be understood to mean ‘rare’, but rather the conduct that may be relevant is that which has had a ‘significant adverse impact’ or a ‘discernible impact’. The Kennon principles are not directed at conduct that does not have that effect.
(Footnotes omitted)
Nonetheless, the conduct must have had a discernible impact on the contributions, making them more arduous. There does not have to be evidence attempting to quantify the effect or the impact. That is logical particularly in the case of homemaker and parent contributions which are not the subject of external quantification.
In Benson & Drury (2020) FLC 93-998, the Full Court said:
47.The Full Court in S & S, summarised the evidentiary requirements for a Kennon argument as follows:
47.… As Kennon has established, it is necessary to provide evidence to establish:
•The incidence of domestic violence;
•The effect of domestic violence; and
•Evidence to enable the court to quantify the effect of that violence upon the parties [sic] capacity to “contribute” as defined by s 79(4).
48.However, in Keating & Keating (2019) FLC 93-894 (“Keating”), the plurality raised doubts as to the S & S formulation of the evidentiary requirements in Keating. Whilst not expressing any final view, the plurality interpreted the third dot point in S & S in the following way:
39.… We struggle to understand what that “quantification” evidence might be beyond that given by the victim spouse as to the incidence and effect of the violence as identified in [S & S] in the first two dot points at [47]. Furthermore, we fail to see how this third step accords with the decision in Kennon which the Full Court in [S & S] said governed the situation. Perhaps the use of the word “quantification” is infelicitous and has unintentionally added a gloss to the ratio in Kennon, when in truth, the court in [S & S] was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse’s contributions, how difficult it might be for the court to draw inferences which would establish the evidentiary nexus (see [S & S] at [42])…
49.Even though S & S might, in the past, have been interpreted as implying the need for something more, it should now be clear that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties (Maine v Maine (2016) 56 Fam LR 500 at [47]–[52]; Britt & Britt (2017) FLC 93-764 at [74]–[75]; Keating at [27]–[43], [52]–[67]).
50.Here, the primary judge found the appellant perpetrated family violence upon the respondent and drew an inference that such violence did have an effect upon the respondent’s contributions, making them “all the more arduous” (at [162]). An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact-finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H (1994) 181 CLR 387 at [4]). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275–278 per Spigelman CJ; Carr v Baker (1936) 36 SR (NSW) 301 at 306–307 per Jordan CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]–[66]).
51.As already chronicled, what the primary judge did do was firstly set out, in detail, the nature of the family violence perpetrated by the appellant “in all its forms” ([19] and [150]) and found that it had “a debilitating effect” upon the respondent [19(l)] and made the contributions of the respondent all the more arduous [162].
52.This is a case where, given the nature of the violence described, the primary judge was entitled to draw inferences to establish the necessary evidentiary nexus.
The father did not dispute the violence. In his written submissions he said:
153.There is no dispute of family violence perpetrated on the [mother] during the course of the party’s relationship. As identified above, findings have been previously made in this Court and the [father] made candid admissions during the course of his cross-examination as to his conduct throughout cohabitation.
(Father’s outline of submissions dated 25 August 2023, paragraph 153)
However, his point was that the mother has failed to demonstrate any causal link between the violence and her contributions. Indeed, he submitted that the evidence was to the contrary. He relied on the following paragraph from the mother’s affidavit:
1277.During our marriage, and since separation, as is outlined above, I have experienced significant family violence due to financial, physical and verbal abuse from [the father]. This made it extremely difficult for me to contribute in any way other than as parent and homemaker.
(Mother’s affidavit filed 11 July 2023, paragraph 1277)
Thus the father submitted it followed that the mother accepted that the violence did not affect her homemaker and parent contributions.
I do not agree.
First, the comment appears under the heading “Financial Contributions During the Marriage”. The mother goes on as to detail how the behaviour made it more difficult to carry on her work. That evidence was not effectively challenged.
The passage says simply that the father’s behaviour made any financial contribution impossible.
It is true that the mother does not explicitly say that her non-financial contributions were made more arduous by the father’s conduct but I cannot ignore the evidence before me.
The mother was the primary carer of the children and remains so. She paid and still pays many of the expenses of the children either with money provided by the father or by asking for him to pay them.
Whilst many of the difficulties faced by the children, according to Dr L, are caused or exacerbated by the conflict between the parties, to which both have contributed, the evidence constituted by the audio and video recordings indicate that often the mother is trying to calm the father, stop his behaviour, get him to leave the room, all of which he fails to do. The mother is left to look after the children and console them – particularly X.
Although there is no reason to conclude that this was the invariable pattern of conduct there is also no reason to limit it solely to the occasions of the recordings.
The father has been controlling and coercive throughout much of the marriage and since.
For example, in October 2011, the father sent the mother the following email in the knowledge that she had nowhere to go and no funds to access:
… It is my opinion that our marriage is over.
Please arrange alternative accommodation immediately.
…
(Mother’s affidavit filed 11 July 2023, paragraph 143)
The mother’s evidence is replete with examples of the father restricting the mother’s access to credit cards, cancelling them and cutting them up. The father agreed that at times he had done so. It is true that sometimes this was a mere threat or only occurred short-term. Nonetheless, it is an easy inference to draw that this would have upset the mother and added to her anxiety.
The father has delayed the payment of school fees to the point of solicitors’ letters of demand being issued, even at times when he had the ready funds to do so. The father agreed that this was “highly distressing” to the mother and “something to worry about” (Transcript 17 August 2023, p.329 lines 33–35).
The father often refused to pay or delayed paying accounts even though he was in a position to so do, or otherwise behaved in a controlling manner. Two examples of this will suffice.
Y had a television in his room which he broke in early 2021. In mid-2021 the mother wrote to the father asking him to progress the insurance claim as Y was upset about it. She added “He just said I was angry I’m sorry and cried” (mother’s affidavit filed 11 July 2023, paragraph 489). That is clear evidence of Y being distressed and upset and requiring the mother then to console him.
The father’s immediate response was:
The cost of the repair is $3,100.00. Did you want me to pay this and take it out of this month’s child support?
(Mother’s affidavit filed 11 July 2023, paragraph 490)
As the father agreed in cross-examination, this was him being “mean” and was “disgraceful conduct” (Transcript 17 August 2023, p.330 lines 15–21)
This was because the father had received the insurance payout on the television, some $3,520, in early 2021, months earlier.
Later, on 14 May 2021, the father sent another email in which he added:
…I’m sorry I simply cannot afford anything at the moment. I have enormous credit card debts that are due this week that I cannot pay…
(Mother’s affidavit filed 11 July 2023, paragraph 491)
A short time later, the father and his new partner stayed at a Hotel (Transcript 17 August 2023, p.330 lines 26–27), suggesting he was probably not as short on funds as he had suggested.
Although this was poor conduct, I am not persuaded that it caused the mother’s contributions to be more arduous to the extent that it should be taken into account.
In mid-2021 the mother received a disconnection notice for the electricity due to non-payment. Notwithstanding the threat was to disconnect the electricity from where the children were living, the father declined to pay it (Transcript 17 August 2023, p.330 line 47).
A short time later, the father at least booked to dine at a Restaurant. The booking fees appeared on his credit card. The father seemed initially to accept he went but then backtracked (Transcript 17 August 2023, p.331 lines 7–31). In any event, he would only have booked it if he thought he could have paid for it.
He accepted that he went to a couple of other expensive restaurants at this time (Transcript 17 August 2023, p.331 lines 33–34).
In April 2021, the father’s lawyers, engaged specifically for the purpose and different to those that were acting for him in the family law proceedings, sent the mother a “Concerns Notice” threatening to sue her for defamation over posts she had placed on her Facebook page (Exhibit 10). Contrary to the evidence, the father, even when confronted with the letter which contained references to taking “more formal steps to safeguard [the father’s] reputation and enforce his rights” and seeking “compensatory and aggravated damages”, claimed that there was no threat or penalty involved (Transcript 17 August 2023, p.324 line 47 to p.325 line 24). Of course, the mother did not have the means to pay damages but was then forced to engage her own lawyers to respond.
These matters combine to persuade me that the father’s behaviour made the mother’s contributions more arduous and onerous. They forced her to engage in additional care of the children and required her to manage her anxiety as to financial affairs.
These matters can easily be inferred from the conduct of the father and the evidence overall. However, inference can only be taken so far and in the absence of direct evidence from the mother as to the effect on her, I must moderate the impact of this consideration on the outcome of the property proceedings. Thus, whilst I consider that there be a recognition of the effect of the father’s conduct on the contributions of the mother, it must be quite modest.
The contributions during post-separation must be seen as the same as during the relationship. The mother has had the primary care of the children and the father has provided most of the economic support for the family.
Overall, I regard the contributions of the parties to the time of the hearing as slightly favouring the father.
Section 79(4) considerations
The father is a health professional and capable of earning at least $1 million per year. It is true that he has reduced his workload, largely due to stress, he says, but the capacity remains. It is reasonable to conclude that the stress will be alleviated somewhat by the conclusion of these proceedings.
In coming to this view, I disregard the last two of the father’s tax returns or drafts thereof. The sudden and dramatic change in the nature and extent of his claimed expenses compared to those previously claimed combined with the father’s unconvincing efforts to explain them in cross‑examination persuades me that they, like the invoices from HH Pty Ltd, are essentially a work of fiction.
Even on current gross income, the father’s earnings are substantial.
The mother previously worked in media sales. There is no suggestion that she will be able to return to that work. The mother has suggested she might move into another area of work but that is likely to take time and some training.
The mother will have the care of three children for some time. This may impact on her ability to earn income for some time. The marriage and her care of the children coupled with the behaviour of the father has had the effect that the mother has not been employed for a long period of time which has adversely affected her capacity.
I take into account that the father has failed to explain the fate of nearly $1.2 million, noting that $600,000 of that was transferred in 2010. He has paid approximately $60,200 to HH Pty Ltd on suspicious invoices. They are amounts of considerable significance having regard to the total property to be divided.
Taking all these matters into account I consider that the appropriate division of property is that the mother receive 62.5 per cent of it and the father 37.5 per cent.
Thus, the mother should receive property to the value of $6,646,340.
Leaving aside for the moment the money in the controlled monies account, the mother will receive:
Description Value Jewellery $25,000 Funds (Westpac Account …53) $967 Funds (Westpac Account …91) $9,098 Funds (Westpac Account …43) $533 Funds (NAB Account …84) $1,229,412 Funds (NAB Account …51) $1,793 Funds (solicitor’s account) $489,133 Car $109,000 FF Shares $23,944 Add backs $1,357,756 Superannuation $43,800 TOTAL $3,290,436
Therefore, to achieve the above division sum the mother must receive $3,355,904 from the controlled monies account.
Therefore, the father will receive:
Description Value Balance of the controlled monies account $559,334 Boulton Pty Ltd $108,043 Funds (NAB Account …42) $2,635 ZZ Trust funds $972,280 Funds (solicitor’s account) $345,000 FF Shares $23,944 Jewellery $2,700 Add backs $1,556,196 Superannuation $512,481 Sub-total $4,082,613 Less
(Boulton Pty Ltd 2023 tax liability)$94,809
TOTAL $3,987,804
This leads to a differential between the parties of $2,658,536. This is appropriate given the above considerations.
I am satisfied in all the circumstances that such a division is just and equitable.
CHILD SUPPORT DEPARTURE ORDER
The mother sought a child support departure order for the father to pay her $500 per week per child for child support, to be adjusted annually. In addition, she sought a lump sum prepayment of the children’s school fees (or alternatively, payment as they fall due) and payment of the children’s other education expenses, extracurricular activities, private health insurance and medical expenses.
The father proposed an order of $400 per child per week and payment of the school fees and associated expenses, health insurance and the gap between that and the actual medical expenses.
There is no material before me that permits me to quantify a lump sum order, whatever its desirability may be.
In circumstances where the mother has sole parental responsibility for the children, I do consider it either appropriate or just for the father, in effect, to indemnify the mother for all of the children’s expenses.
Neither the evidence nor the submissions assist in determining the amount of the weekly payments per child. I shall adopt the figure of $450 per week per child.
The evidence of the father as to his tax returns leads me to conclude that they would not be a reliable basis for assessment of child support. When the costs of private school education is taken into account, I am satisfied that special circumstances exist within the meaning of s 117 of the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”).
I propose to make the orders suggested by the father, subject to amending the amount as discussed. Such orders are just and equitable within the meaning of s 117(4) and proper within the meaning of s 117(5) of the Assessment Act.
I certify that the preceding six hundred and seventy-nine (679) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 24 April 2024
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