Bradley & Bradley
[2007] FamCA 484
•18 May 2007
FAMILY COURT OF AUSTRALIA
| BRADLEY & BRADLEY | [2007] FamCA 484 |
| FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Interim parenting orders pending a report by a psychologist - Injunctive relief for the safekeeping of the children’s passports FAMILY LAW - PROPERTY - Parties separated under the one roof – Sole use and occupation of the former matrimonial home granted to the wife over the opposition of the husband and pending the further hearing – Injunctive relief to preserve the assets of the parties |
| Family Law Act 1975 Child Support (Registration and Assessment) Act 1988 Family Law Amendment (Shared Parental Responsibility) Act 2006 |
Goode & Goode (2006) FLC 93-286
Cowling & Cowling (1998) FLC 801; 22 Fam LR 776
| APPLICANT: | Mrs Bradley |
| RESPONDENT: | Mr Bradley |
| INDEPENDENT CHILDREN’S LAWYER: | Pearsons Schetzer & Associates |
| FILE NUMBER: | MLF | 877 | of | 2006 |
| DATE DELIVERED: | 18 May 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 18 May 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr G.F. Holmes |
| SOLICITOR FOR THE APPLICANT: | Campbell & Shaw |
| THE RESPONDENT: | In person |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Ms Dorian |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Pearsons Schetzer & Associates |
Orders
That on the application of the husband, the parties do all acts and things necessary to have the children, the elder son, born in July 1998 and younger son born in February 2003 undergo paternity testing at the cost of the husband. That the paternity testing be arranged by the Independent Children’s Lawyer who is responsible for collection of the results of the paternity testing and distribution of those results to the parties as soon as practicable.
That I dismiss the husband’s application for the wife to make a contribution to the reasonable cost of the paternity testing.
That parties do all acts and things necessary to enable the husband to sell the commercial property situate at and known as E being the land more particularly described in Certificate of Title volume … folio … (“the [E] property”) on such terms and conditions to be agreed between the parties and, in the absence of agreement, to be determined by the court on the return date.
That in the event that either or both parties seek that the Court determine any terms or conditions of the sale by the husband of the E property, he/she file and serve any evidence that he/she wishes to rely on in sufficient time to permit the other party to consider and respond to that evidence if he/she so desires.
That the parties do all acts and things necessary to ensure that the proceeds of sale of the E property, after payment of proper adjustments and expenses on the sale, are applied wholly in reduction of debt affecting the E property and that any balance then remaining is applied as agreed between the parties and, in the event that there is no agreement, the parties do all acts and things necessary to ensure that the net balance is invested in interest bearing term deposit pending further order of the Court.
That on or before 5pm on Friday 1 June 2007 the husband vacate the former matrimonial home at D (“the property”):-
(a)and thereafter the wife have sole use and occupation of the property until further order;
(b)and at that time the husband be at liberty to remove from the property all equipment associated with his profession, any personal effects and such other chattels or items as are agreed in writing between the parties;
(c)and thereafter the husband be at liberty to visit the property by prior arrangement with the wife which agreement is confirmed with her solicitors in writing.
That subject to paragraph 8 of this Order from the time that the husband vacates the former matrimonial home or 1 June 2007, whichever is earlier, the children of the marriage, the elder son, born in July 1998 and younger son born in February 2003 live with the father:-
(a)from the conclusion of school or kindergarten on Thursday afternoon until the commencement of school or kindergarten on Monday morning of each alternate weekend commencing on the first Thursday after the husband vacates the property; and
(b)from the conclusion of school on Friday until 9am on Saturday in each other week commencing on the third Friday after the husband vacates the property; and
and the children live with the wife at all other times.
That the living arrangements described in the previous paragraph, insofar as they provide that the children are to live with the husband, be conditional upon the husband having first notified the independent children’s lawyer and the wife of the address at which he is residing following him leaving the former matrimonial home and the independent children’s lawyer having had a reasonable opportunity to inspect and/or assess the premises as suitable for occupation by the children.
That if the husband fails or neglects to advise the wife or the independent children’s lawyer of the address and circumstances in which the children will be accommodated while they live with him, the time that the children are to spend with the father and the circumstances in which they are to communicate with the father be and is hereby reserved.
That until further order, the husband and the wife are restrained, without the prior written agreement of the other party or order of the court, from drawing down or utilising any credit facility of either of them or of the B Family Trust (“the trust”), T Pty Ltd as trustee for the trust or in its own capacity and M Pty Ltd so as to have the effect of increasing the liabilities to be taken into account in these proceedings or doing so other than in the ordinary course of business.
That until further order, the husband be and is hereby restrained, without the prior written consent of the wife or further order of the court, from dealing with his shareholding be the shares in his name personally or in the name of the trust, T Pty Ltd, M Pty Ltd and/or motor vehicles save for in the ordinary course of business or in such a way as to lessen the value to the parties of the assets which are divisible between them in these proceedings.
That the husband do all acts and things necessary to ensure that all proceeds of sale of any shareholding owned by him personally or by the trust, T Pty Ltd and M Pty Ltd are applied solely in reduction of debt including payment of interest on existing and/or brokerage fees referrable to the realisation of shares.
That the husband report to the wife’s practitioners in writing by 4pm each Wednesday any share dealings or trading in motor vehicles undertaken by him or by the trust, T Pty Ltd, M Pty Ltd in the preceding 7 days together with details of the sale (purchaser, price etc) the manner in which he proposes to, or has, applied the proceeds of such dealings.
That by 4pm on 22 May 2007 the wife deposit with the Registry Manager of this Registry of the court all passports in her possession or control relating to the children or either of them and thereafter the Registry Manager hold such passports safely until further order of the court.
That neither party, their servants or agents shall remove the children, the elder son born in July 1998 and younger son born in February 2003 from the Commonwealth of Australia and it is requested that all officers of the Australian Federal Police give effect to this order.
That the Australian Federal Police place the name of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further Order of the Court.
That pending the husband leaving the former matrimonial or 5pm 1 June 2007, whichever is earlier, the wife be and is hereby restrained from entering the bedroom currently occupied by the husband, the living area attached thereto, the ensuite or the room in the home which is currently used by the husband as a study.
That the parties do all acts and things necessary for themselves and the children to be assessed by Mr H, psychologist and thereafter the parties do all acts and things reasonable necessary to facilitate the preparation of a family report for use in these proceedings:-
(a)by Mr H “the expert”;
(b)the cost of such assessment and report be borne equally between the parties such monies to be paid prior to the completion of the report;
(c)the expert’s assessment to include:-
(i)an evaluation of competing applications for parenting orders;
(ii)observed interaction between the children, the elder son born in July 1998 and younger son born in February 2003, and each of the parties to the proceeding (unless the expert considers that the welfare of the children dictates otherwise);
(iii)an assessment of the capacity of each party to provide for the physical and emotional needs of the children;
(iv)an assessment of the capacity of each party to co operate with each other and the attitude of each party to the other party and ability and future capacity of each parent to implement an arrangement for equal, substantial or significant time by the children with each parent;
(v)the impact on the children of spending equal, substantial or significant time with each parent;
(vi)any recommendation of the expert to vary the parenting arrangements provided for in this Order;
(vii)any other matter which in the opinion of the expert ought to be drawn to the attention of the court in the report.
That the independent children’s lawyer do all things reasonably necessary to ensure that Mr H’s report is released to the parties on or before 29 June 2007 and, thereafter, the independent children’s lawyer cause a copy of the report to be filed with the court under cover of a single page affidavit merely identifying the order pursuant to which the report is prepared.
That all extant applications be adjourned to the half day Interim Judicial Duty List on Tuesday 3 July 2007 at 10am for a determination of any outstanding financial applications including the competing applications for litigation funding orders, any variation to the injunctions granted today and any variation to the parenting orders consequent upon the delivery of the report of Mr H.
That, in anticipation of the adjourned date and save as is provided for herein, each party file and serve by Monday 2 July 2007 any further affidavit material on which they propose to rely.
That pending the husband vacating the former matrimonial home pursuant to these orders the husband be restrained from entering or remaining in the bedroom currently occupied by the wife, formally known as the spare bedroom.
That pending the husband filing and notice of address to the contrary his address for service be recorded as V.
That I reserve liberty to the parties to apply urgently in the event of alleged non compliance with these orders or in the event that the husband seeks alternative parenting arrangements be put in place upon him leaving the former matrimonial home and, for that purpose, the parties may contact my Associate … ( … and arrange to have the matter listed before me for mention, directions or determination depending on my availability.
That until further order each of the parents be and is hereby mutually restrained from causing, permitting or suffering the children or either of them to be examined or assessed for any purpose in relation to these proceedings without the prior written consent of the independent children’s lawyer and the other party.
That for the avoidance of doubt, these orders do not alter parental responsibility for the children and each parent is at liberty to get from the proper officer of the schools or care facilities at which either of the children are enrolled a copy of all notices, news letters, information, report cards, assessments, application forms to order school photos and any other forms or information as is routinely disseminated to other parents of students.
That each parent ensure that the other is comprehensively informed of any medication whether prescribed or not prescribed administered to the children (or either of them) in the 24 hours prior to the commencement of the children going to live with the other party together with details of any medication prescribed or not prescribed which is to be administered during the children living with the other parent and do so by entering the details in a communication book maintained by the parties.
That within 24 hours the wife establish a communication book which will in due course be exchanged between the parents at changeovers for the purpose of these orders.
That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.
That my reasons for judgment delivered this day be transcribed and when transcribed a copy be made available to each of the parties and the original placed on the Court file.
AND THE COURT NOTES that the parties are to see Mr H on such dates as are notified by the independent children’s lawyer to them but currently indicated to be on 18 June 2007.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered 18 May 2006 will for all publication and reporting purposes be referred to as Bradley & Bradley.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 877 of 2006
| MRS BRADLEY |
Applicant
And
| MR BRADLEY |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
This matter is before me in the interim defended duty list as the return date of wife's amended application in a case filed on 10 May 2007 and the husband's response and cross-application thereto filed on 17 May 2007.
I have already pronounced orders. These are my reasons and the context in which the matter will return to court on Tuesday 3 July 2007 in the judicial interim hearing list.
The wife was represented by Mr Holmes of counsel.
The husband was self‑represented.
The children were represented by Ms Dorian for David Schetzer, who was appointed Independent Children's Lawyer earlier this week, pursuant to a request which I made of Legal Aid Victoria.
Broadly speaking, the orders sought by each of the parties involve:-
i)their children, who are the elder son born in July 1998 and younger son born in February 2003;
ii)sole use and occupation of the family home, which is the property situated at and known as D, which is a property in which the parties and the children currently reside;
iii)injunctive relief sought in relation to the preservation of assets and in relation to the children being taken out of Australia, safe keeping of their passports and the like;
iv)an application by the wife, which is opposed by the husband, for the husband to pay tuition fees and other expenses for the ongoing attendance of the elder son (who is nearly 9 years old) at C College in Melbourne, and for the younger son to continue to attend V Kindergarten this year and start in pre‑prep at C College in 2008. Alternatively, the younger son could start preparatory grade at C College in 2008;
v)the wife seeks, and the husband opposes, payment of arrears of child support in circumstances where I have no evidence before me of the husband's child support liability, the basis upon which it is calculated or struck; and
vi)finally, there are competing applications for litigation funding orders.
I have read the following material relied upon by the parties:
a)the affidavit of the wife sworn on 29 November 2006;
b)the affidavit of the husband sworn on 6 February 2007;
c)the further affidavit of the wife sworn on 9 May 2007;
d)the affidavit of the husband affirmed on 17 May 2007.
Otherwise, the hearing was conducted with extensive interaction between myself and the husband, and myself and counsel for the wife. At various times in dealing with the submissions made on behalf of the wife and by the husband, I explained my reasons for refusing to make certain orders but I will recap here.
Very briefly, the wife is 44 years of age and the husband is 55 years old.
The parents lived together from about 1993 onwards and married in 1995. They separated under the one roof in February 2006. They subsequently reconciled. They separated for a second and final time in August 2006. They are still under the one roof. The husband occupies the former matrimonial bedroom, the adjoining living area, ensuite and a study in the home. The wife has occupied the spare bedroom save for the times, which she says are frequent, when she sleeps in the children's rooms.
As indicated, the elder son is nine years of age. He is enrolled in year 2 at C College, Melbourne. On Saturdays he is involved in soccer with the N Soccer Club. He attends training on Monday evenings from 4pm to 6pm and he has soccer tuition at X School from 2pm to 5:30pm. The elder son’s other extracurricular activities are conducted at C College.
The younger son is four years of age. He is currently going to kindergarten. The fees for kindergarten are about $1800 per annum. He is being assessed by C College as to his readiness to commence school at prep grade next year, and it may be that because was born relatively close to the cut-off period he may be assessed to attend pre-prep.
The applicant wife is an accountant by occupation. She is currently working four or five half days per week and earning approximately $50,000 per annum.
The husband is a qualified health professional who has not been in full-time employment as such for approximately 10 or 12 years. He currently works part-time, some four days or so per week, from commercial premises which he owns in E and derives income from share dividends and rent. He doubts that he could work for anyone but himself. As a consequence of orders which I have made, by consent, providing for the sale of the E property, the husband will either have to find alternative premises from which to operate a practice or negotiate a tenancy with the purchaser. I suggested that he seek employment on a PAYE basis. He said that an employee health professional is not paid enough. He rejected the proposition that some income is better than no income. In the event that the husband does cease to actually earn an income, it is likely that his income earning capacity will be an issue in these proceedings.
In general terms, the wife's proposal was that she be the primary carer of the children and that the husband have the children each alternate weekend. The wife wants the husband to vacate the former matrimonial home in 7 days and, thereafter, for her to have sole use and occupation of that property. The wife sought extensive and, in my view, inappropriately wide orders enjoining the husband from operating certain accounts and from dealing with real and personal property. The wife also sought a litigation funding order of $50,000.
In general terms, the husband's proposal is that he have the primary care of the children, the wife see the children “as agreed”. The husband seeks that the wife vacate the former matrimonial home in 14 days and, thereafter, permit him to have sole use and occupation of the property. The husband strenuously resists any limitation or restriction on his ability to deal with property holdings of the parties, principally: a commercial property which the husband owned prior to the commencement of cohabitation at E; a commercial property which is in the name of the husband and his parents at S; the extensive but unspecified shareholding held by the husband and a collection of prestige cars or parts of prestige cars.
As I have made known to counsel for the wife, I consider that the application for payment by the husband of school fees and educational expenses is not appropriately framed. It is not sought to depart in any way from the administrative assessment of child support. I repeat, I have no information in relation to the husband's child support liability or the calculation of it. It is not sought as lump sum non-periodic child support, and even if it were I would need to be able to justify the relationship between non-periodic child support and period child support for which the husband's is assessed. For these reasons I have declined to deal with that application today. It is not pressed. I will adjourn it and it can be pressed on another day.
The wife also makes application pursuant to section 113 of the Child Support (Registration and Assessment) Act 1988 (Cth) that the husband forthwith pay the wife some $12,572.68, being arrears of child support, due to the Child Support Agency. I am assured that there is jurisdiction for me to make those orders, notwithstanding that it is a liability which previously would have been not recoverable by the wife as it was a debt to the Commonwealth. That application is not pressed today either and, because of the paucity of information I have about child support, I would not be in a position to deal with it in any event.
Another matter which is covered by the parties' respective applications is a litigation funding order. The wife seeks the sum of $50,000 with which to fund these proceedings and says that she will take those monies by way of a partial property settlement. There is no evidence supporting that application. The husband seeks the same order against the wife, although he admits that he does so more as a tit-for-tat exercise than because he can justify the appropriateness of the order. That is an application which will await the hearing on the adjourned date.
I have adjourned this matter to the interim judicial duty list on Tuesday, 3 July 2007 when I understand it will be listed as one of two cases which require interim determination. At that time the parties must be prepared to limit themselves to the half day allocation.
The husband's material, which was drawn by him, is very long, very detailed, and in many respects objectionable. In fact, when this matter was listed earlier in the week, there was insufficient time for me to read the material in this case and deal with it in conjunction with the other business before the court. I requested that an independent children’s lawyer be appointed as a matter of urgency and adjourned the matter to a list for interim hearings estimated to take half a day. Returning to the husband’s material, it is so long and so repetitive that it is oppressive. Reading and digesting the husband’s affidavit material is likely to be an obstacle to this matter being dealt with in the context of a normal duty list. But, the husband is not alone.
The wife's affidavits are also argumentative and irrelevant, much like her submissions that the husband is not ‘interested’ in the children. Sadly, her material is drawn by a solicitor. I proceeded with this hearing without any formal striking out of the affidavit material filed by both parties although it is fertile territory for a strike out application at a later date if the parties continue to rely on affidavits drawn like these.
It is apparent from the husband's material that the husband holds an exceptionally low opinion of the wife as a person. He refers to her as being, in effect, avaricious, despicable, dishonest, insincere, and cold. Relevantly, the husband deposes in the last paragraph of his lengthy affidavit, sworn yesterday, as follows:-
Knowing the applicant's character, I have some doubts that I am the children's father. I request that the court order paternity testing of the children.
These proceedings were initiated, in effect, in December 2006. That last paragraph of the husband's second affidavit is the first mention by the husband in these proceedings, that he believes he may not be the biological father of the children. I have ordered the paternity test. I trust that it will be organised as promptly as possible. I have made the independent children's lawyer responsible for that organisation. I trust that it will be as unintrusive as possible. I have refused the husband's application for the wife to contribute to one half of the cost of paternity testing on the basis that this is a test which the husband seeks and of which the wife denies the need but with which she has agreed to cooperate.
There is no distinction between parenting orders the husband seeks if the children are not his biological children as opposed to orders which he seeks as appropriate if he is the children's biological father. That said, I am satisfied that the communication between the parties and the relationship between the parties, personally and as parents, is exceptionally poor. However, the antipathy, obvious from the husband's demeanour in court and his affidavit material, is also mutual.
The independent children's lawyer, David Schetzer, interviewed both the children earlier this week pursuant to a request by me that he do so. He has also spoken to those who teach and care for the children.
The independent children’s lawyer’s recommendation to the court is supportive of the wife's position. He submits that the children’s best interests will be best served by remaining in the primary care of the wife and the wife having the sole use and occupation of the home. By the same token, however, the independent children's lawyer says that the husband should spend very significant time with the children and that they should live with him from after school on Thursday until the commencement of school on Monday morning. I think the independent children's lawyer may also have contemplated an unspecified period of mid-week contact in the off week.
According to the independent children’s lawyer, the time which the children are to live with the husband, being five days per fortnight, are subject to the husband establishing appropriate and independent accommodation for himself and the children after he leaves the former matrimonial home.
In determining what parenting orders ought to be made for the children, I apply the provisions of Part VII of the Family Law Act 1975 as amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the amending Act”) and I follow the legislative pathway set out by the Full Court in the decision of Goode & Goode (2006) FLC 93-286.
In Goode (supra) the Full Court acknowledged that some comments of the Full Court in Cowling & Cowling (1998) FLC 92-801; 22 Fam LR 776 remained apposite following the amendments effected by the amending Act. It was acknowledged that the procedure for making interim parenting orders will necessarily be an abridged process where the scope of inquiry is “significantly curtailed” compared to the ultimate hearing in which evidence can be tested and issues fully ventilated. The Full Court in Goode (supra) went on to say at paragraph 68:
…Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as agreed facts and issues not in dispute, and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.
That is the manner in which I proceeded today.
The Full Court in Goode (supra) made clear that in light of changes to the Act which came into operation in July 2006 (at p 80,901):
[i]t can be fairly said that there is a legislative intent envinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect the children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. .
Insofar as the existing arrangements for children are concerned, the wife alleges that she has been the primary carer of the children and that the husband's day to day involvement in their care has been minimal. She alleges that the husband has ‘no real interest’ in the children. That is not a helpful submission to make on an interim application.
On the other hand, the husband contends that in the last 18 months or so, a period corresponding to the breakdown of the marriage, his involvement with the children has been marginalised in comparison of that of the wife. He says that the wife is to blame for that. He concedes that the children probably do now share a closer relationship with the wife than with him. He says, however, that if the children were to live primarily with him from now on, he would give them a balanced life in which he allowed them to be freely involved with their mother.
The interim orders which I pronounced this afternoon are, I am satisfied, are in the best interests of the children between now and 3 July 2007. By way of a safeguard, I have also ordered the parties to submit to an assessment of themselves and the children by a child psychologist nominated by the independent children's lawyer. That is Mr H of the office of P and Associates. Mr H is apparently available to see the family on 18 June 2007 and has indicated that his report can be available two to three weeks thereafter. It is simply the case that the independent children's lawyer will have to impress upon Mr H the imperative of the report being available earlier than he expected and by 2 July 2007.
The husband's application is for the children to live primarily with him and for the wife to be excluded from the former matrimonial home at the expiration of 14 days. That said, the husband’s fall-back position is that, between now and 3 July 2007, there be no orders governing the care of the children and both parties be at liberty to remain in the former matrimonial home. That would represent the status quo which I am satisfied has existed since the parties separated finally in August 2006 and well before that when they initially separated in February 2006.
I have considered whether it is in the best interests of the children for the status quo to continue. In this respect the recent authority of Goode (supra) has made clear the fact that there is no particular preference to be accorded to the status quo than to various other matters and considerations which the court must now take into account in assessing what is in the best interests of the children. In Goode the Full Court said (at page 80,091-80,092):
…where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
The Full Court went on to say at page 80,092:
That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
I considered s 60CC matters relevant to this case when determining what is in the best interests of the children and to the extent that my inquiry and analysis is necessarily curtailed to evidence which is largely uncontroversial or conceded by the other side.
Section 60CC(2) sets out the primary considerations for me to take into account.
The first of the primary considerations is the benefit to the children of having a meaningful relationship with both parents. In this case it is not contended by either parent that the children would not benefit from a meaningful relationship with the other. Whereas the husband concedes that he has an exceptionally low opinion of the wife as a human being and a wife, he says that she is appropriately warm and a reasonable mother. Whilst the wife is critical of the husband for the degree of interest which she says she believes the husband has in relation to children, the wife readily specified the times that the husband should see the children as being four to five days in each 14-day period, subject to him having appropriate living arrangements and any assessment by Mr H to the contrary.
In summary, there is no dispute the children would benefit having a meaningful relationship with both their parents. It is a matter of how that meaningful relationship may be fostered or maintained that is in issue between them. As indicated, the husband alleges that in the last 18 months, if not longer, the wife has sought and, to a certain extent, succeeded in excluding him from the children's activities. He complains that he doesn't know where the wife takes the children. She will not tell him if he asks. He believes that the wife has told the children not to communicate with him about their activities when the wife takes them away from the family home. The husband's submissions indicate that he feels left out of family life but also indicate that he would very much like to be involved in the lives of his children. He says that if the wife gave him notification of their school activities and functions, he would readily attend more than he has in the past.
The husband concedes that it is desirable for the parents to live separately and apart and that, at such time as that occurs, the time which he spends with the children is likely to be more conducive to a meaningful relationship between himself and his sons than the time which the sons are able to spend with the husband in the strained circumstances of the parties' current living arrangements.
The next of the primary considerations that I have taken into account is the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. There is no allegation of physical abuse of the children. There is no allegation by the husband against the wife of emotional or psychological abuse of the children.
The wife alleges that the children are "fearful" of the husband. On two occasions she has sought through her Counsel to tender a report by a Dr K, who is a child psychologist or medical practitioner, who has apparently assessed the oldest son. Mr Holmes, Counsel for the wife, says that the report records certain observations of the elder son either saying or appearing fearful of the husband. I have not permitted the wife to tender that evidence. Clearly the assessment by that practitioner, whatever his qualifications, was done without notice to, consultation with or the consent of the husband. I do not take those matters into account over and above the wife’s own observations.
Whilst no party makes a specific allegation against the other of emotional or psychological abuse by the other of the children, the very clear picture I obtain from reading the affidavits filed in these proceedings is that the home environment would be an tense and emotionally fraught environment for parents and children alike. It could not be an environment conducive to the emotional wellbeing of the children.
The wife alleges, but the husband denies, that he is verbally abusive to her, threatens her with financial ruin, and as recently as in late April 2007 addressed the eldest son as follows:
[8]. That the Respondent then spoke to our eldest son […] in my presence and said “Your mother has tried to chase me out of the house 4 times now. It’s her fault you will have to leave [C] College and when I leave the house you will never see me again. You mother is not as good as she makes out to be.” He then went to our son [the younger one] who is aged 4 and told him the same. He also said “The police will have to come to take me away. I will destroy the house and burn it down if she got it.”
[9]. That on the same day at about midnight be again spoke to me and said words to the effect “No real mother or wife will ruin a family financially. You are as low as they come. You are a prostitute. I am going to stuff it all up for you. In 2 years there is not going to be much left, I assure you. I hate your guts. I wish you had died instead of your father.” The Respondent also said words to the effect that “An overdose will make it easier for all of us.” That I was a “fucking bitch and piece of shit” and that he hoped I would have a car accident and die.
[10]. That on Thursday 26 April 2007 at about 9:00am he called me a “fucking bitch” and said words to the effect that “I am going to close down the surgery today and I am telling all the staff to go.”
[11]. That I have grave concerns for my safety. I have lived my marriage with the Respondent who is a very controlling person and I believe he will not stop at anything to get rid of me particularly as he has repeatedly said that he wished I was dead.
[….]
[13]. That the Respondent is taping any telephone conversations that I have and he has a surveillance camera inside the house. Now produced and shown to me at the time of swearing this is my Affidavit and marked with the letter “TB-2” is a copy of an invoice from OzSpy for the purchase of surveillance camera and telephone recording unit.
[14]. That on 7 May 2007 I went to bed at 7:30pm with the children who were both ill at the time. I placed my phone in the charger beside my bed. At 12:30pm I awoke to find the Respondent in my room beside my bed reaching for my mobile phone. I asked him to leave my room and he did. I later discovered m (sic) mobile phone was missing and he refused to return it to me. I contacted the police and the police took a statement from the Respondent and I provided them with a statement. The police did not search his room. Later that morning the Respondent returned my phone whilst I was in the toilet. The phone was blocked needing a PUK code from my service provider, Vodafone.
On the other hand, the husband's affidavit which, as I have said, is very repetitive, complains bitterly of the adverse financial implications to the family of the wife's conduct or decision to separate. Amongst other things, he deposes at paragraph 60:
I emphatically deny the applicant's claims that I have no interest in our children. I do have concern with their welfare. As stated before in my affidavit, I have had a very poor relationship with the applicant for numerous years where communication has been minimal and we spent little time together. During the times that I was away from the house after separation, any lack of communication with the children would only be because I did not wish to speak to the applicant, knowing that she would be belligerent towards me.
The husband also deposes as follows:
[21]. For some years, and particularly since we separated, the Applicant has tried to monopolize the Children’s time, and isolate me from being with the Children for all but a small amount of time. Especially since separating, the Applicant has known that we avoid contact with each other, and therefore when she is with the Children, I will stay away. Except when she wants me to look after the children sop she can go out, each evening the Applicant takes the Children upstairs with her, to get them to read and play in her presence. I have overheard her at times saying derogatory things about me to the Children, and generally trying to get them to sympathize with her view of the martial relationship, and issues we are disputing during the divorce process. I believe that the Applicant totally disregards my role as the Children’s father and organizes Children’s activities, visits to friends, education, sport, attendances to other doctors, taking of medication both prescribed and not prescribed, without consulting me, and without even informing me. I have over the years advised the Applicant regarding the Children’s nutrition and especially areas where the Applicant appears to me to be providing incorrect or sub optimal nutrition. With few exceptions, the Applicant would disregard my recommendations as a father, and as a [health professional]. When I ask the Applicant about the Children’s activities, she always refuses to tell me. I usually do not know where she takes the Children.
[….]
I also believe that for some time, even before separation, the Applicant has deliberately embarked on a course to try to have the Children more emotionally attached to her, and less so to me, for the purpose of applying to the court to gain sole custody of the Children.
I strongly believe that it is in the Children’s best interests, that they should enjoy equally strong emotional bonds with both parents, and spend as much quality time with both parents as possible, with as few restrictions as possible.
On the 6/3/07, the Applicant and I attended a Court appointed family consultant, who I believe really tried to help us reach an agreement regarding a parenting plan for the Children. I spent many hours in preparation for that meeting, researching parenting plan options, and I examined a number of actual parenting plans which both parents had consented to. I even researched how some parenting plans turned out in practice after a few years. This resulted in me spending more hours preparing my own parenting plan to present to the Applicant at the meeting. I believe that my plan was very comprehensive and fair, was in the best interests of the children, and gave them every opportunity to spend equal time with both parents. At the meeting with the family consultant, the Applicant dismissed my plan within 10 seconds of presentation, without even reading it.
[….]
[22]. Contrary to what the Applicant may say at times, her consistent actions for some years make me believe that if she was to obtain sole custody of the Children and have them living with her full time as she is asking, She would restrict their access to me, unless it suited her needs when she is going out, and she was able to use me as a free child minder. Also I do not believe that she would impart a balanced attitude to the Children, especially regarding their father. I believe that for both boys, and especially at the age of [the elder son], it is natural for them to identify and do more activities with their father, although I do not deny the importance of their mother in their lives.
[23]. Regrettably I have come to the conclusion, that a plan of shared custody with the Applicant is unlikely to work, because of her poor attitude towards me, her poor attitude to fathering in general, and her stubbornness regarding issues of the Children’s welfare.
I now wish to apply to the Court for the Children to live with me, and that I be given sole parental responsibility for the day to day care of the children. Currently, and from before we separated, the mother placed both boys in either after school care, or full time child care, without having consulted me. This is to allow the Applicant to work and do any other activities she wishes. I have never been happy with this arrangement, and previously told the Applicant so, believing that it is much better for young children to be collected by a parent mid afternoon rather than at night. I would propose that since I have retired, I have flexibility choosing any working hours I wish to, I would personally take both Children to school, pick them up from school, and take them to any other activities as required. I would propose to allow the Children unlimited access to their mother, either by phone, or to allow the Children to stay with their mother whenever they wish. I believe that in my care, the Children’s nutrition would improve, I would better be able to care for any medical problems, and they would be more likely to spend time with both parents.
The mother already spends many evenings and nights away from the house at times till 4 or 5 am in the morning, and I care for the children as I have detailed earlier. I believe that the Applicant would wish to have me Ordered from the [D] house, so that her boyfriend could move in, and I believe that this would be detrimental to the Children. I have previously made a case that the Applicant is of bad character, and I believe that I am a better option for the children to live with.
I am satisfied that the atmosphere within the home has deteriorated since February 2007 and will continue to deteriorate further and to the detriment of the children unless some steps are taken to remove the children from the strained, unpleasant and destructive environment created by their parents' poor relationship with one another.
Amongst the additional considerations which I am required to take into account are the views expressed by the children. I have no direct evidence of the children's views. I have been addressed by the independent children's lawyer in terms of what the children have told him as recently as this week. I was advised that the children identify most of their daily needs as being attended to by their mother. There was nothing negative submitted to me in relation to the children's relationship with their father. It merely indicated that they have received their primary care from the wife for some time.
The elder son is nine years of age. As such, he may well have views which could be relevant to these proceedings. The younger son, at the age of four, I think is too young to express any views.
In either case the weight that I accord the children's views, given their ages, would be minimal.
I have taken into account the nature of the relationship of the children with each of the parents. I accept the assessment of the husband that, for whatever reason, the children are probably at the moment more closely bonded to the wife than with him. I regard that as showing some insight on the part of the husband. That is not the extent of my consideration of the children’s relationship with the husband. However, but that is not the end of the matter in interim proceedings. He says that this is for various reasons and that separation of residence between he and the wife would mean that the children could spend time with him which is not interfered with by the wife.
I conclude that, for the purpose of these proceedings, the children have an adequate and loving relationship with both parents. I accept the submission of the independent children's lawyer that the children are more dependent at the moment upon their mother than their father.
I have regard to the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent. Neither party indicated that they would not do so. My assessment is that at this stage they are embroiled in conflict with each other. Each is jockeying for a position in the household. Each party’s willingness to involve the other parent is matter best scrutinised after the parties have ceased to reside under the one roof. Between now and then, the orders which I have made should, subject to the husband getting appropriate housing, guarantee meaningful involvement by the husband with the children no matter what the wife’s attitude may be. If the husband does not obtain appropriate accommodation for himself and the children then I would be concerned that the husband has a disinclination to be involved with the children. The husband made several comments about not being prepared to leave the former matrimonial home voluntarily and, when he is dragged out, of living in a hotel room for $100 a night. I am not prepared to judge him on those comments which were made in the heat of a contested hearing in which he represented himself and without him taking an opportunity to consider the best interests of the children. I flag them now merely to reinforce the fact that involvement with the children will require some organisation and effort on that part of the husband before the issue of the wife’s willingness to receive it is concerned.
The wife's application was that the husband be required to vacate the former matrimonial home and she have sole care of them. At the moment the children see both of their parents on a daily basis. Living between two households will be a significant change for the children. It is a change that they were going to have to face at some stage. The changes may have a disturbing and unsettling effect on the children. They may at times be sad, distressed and even alarmed, but I am persuaded that the changes will bring about a positive outcome for the children in that it should mean they can spend time with each parent in an environment in which their parents can be relaxed and not under the considerable stress that I am satisfied prevails in the former family home at the moment. The orders which I have made provide that, subject to the husband securing appropriate accommodation, the children will be spending five out of each 14 nights with him. If I accept the husband’s affidavit material as to the limitations which the wife has put upon the husband’s involvement with the children, this will be a significant change. I am satisfied that it is a change which is worth trialling at this stage. If I am wrong, my error should be obvious from the psychologist’s assessment which will be conducted and reported to the court before the next return date.
These arrangements are intended by me to be reviewed and assessed as to whether or not they continue to meet the best interests of the children after the reportable assessment is conducted by Mr H and released to the parties. That should be in early July 2007.
I have considered certain potential difficulties with the husband having the children live with him for five out of 14 days. As indicated, when I was discussing with the husband the possibility of the wife having sole use and occupation of the former family home and the husband being required to leave the property within 14 days, the husband said that he would not be leaving willingly. He said that I would have to order that he be arrested and removed from the house by force. He informed me that excluding him from the house would be "dangerous and I would not be able to concentrate on issues", and that it will be "an awful thing to happen to me; it will stop me in my tracks". On other occasions he said that it simply would not happen and he cannot envisage how he could live anywhere other than the former family home.
My distinct impression of the husband, whose case was presented without the filter of legal representation, was that his grievance is a sense of unfairness that it is he, and not the wife, who has to leave the home. Even when discussing the children’s accommodation, his focus was on him having allegedly put more money into the home and having organised it to meet the needs of the family. It is clear that the husband believes that it is he, rather than the wife, who should be entitled to occupy the property. The husband’s focus was not on the children.
I pressed the husband on three occasions for the proposals which he had to accommodate the children once he left the home. He could not come up with anything constructive. The husband speculated that he would be living in a hundred dollar a night hotel room, which I took to be inappropriate accommodation for the children. The husband did not seek to disabuse me from that concept that the hotel accommodation would not be appropriate for the children. The husband said that he was not able to contemplate any arrangements other than to say that he would not be leaving the house and it would be necessary to have him arrested. He did not readily accept a suggestion by me that he accept the option of subsequently satisfying the independent children's lawyer and the wife that he has appropriate accommodation. Notwithstanding that he would not embrace the concept, I am satisfied that making his overnight time with the children conditional upon him securing appropriate accommodation, is the best order which can be made in the circumstances of this case.
If the husband does not obtain appropriate accommodation, the time that the children spend with the husband will have to be reserved and a matter agreed between the parties hopefully with the constructive input of the independent children's lawyer.
I have considered the capacity of each of the children's parents to provide for the children's needs including their emotional and intellectual needs. Both of these parties impressed me as being of above average intelligence. The husband is deeply affected by the breakdown of the marriage. He is devastated by what he perceives to be the loss of financial autonomy as well as the loss of his opportunity to generate wealth by having unfettered control of the family assets. He appears to be devastated by the prospect that a breakdown of his relationship with the wife will result in a division of assets which he makes no secret she is largely undeserving of receiving.
I am concerned that the capacity of the husband to provide for the emotional needs of the children at the moment is clouded by his own emotional state, and preoccupation with the breakdown of the marriage and the unravelling of his financial arrangements. Hopefully, between now and 1 June 2007, the husband will adjust his thinking to a more constructive course. If he does not do so, the parenting arrangements will have to be adjusted to meet his capacities and the children’s need for a safe and secure environment.
I do not have a view on whether the wife is similarly distracted. I had no personal interaction with her. She sat quietly and in a resigned manner for most of the court hearing.
The submission of the independent children's lawyer, that the children ought to reside primarily with the wife, was consistent with the wife having the necessary capacity to provide for the children's intellectual and emotional needs.
There are certain significant additional considerations including the attitude of the parents to the children and to the responsibilities of parenthood. In interim proceedings, even more so than at final hearing, the court has at best a snapshot of the parents. I believe that it is unfair in this case to dwell too much on the current attitude of the husband to the children and to the responsibilities of parenthood given that I am satisfied he is affected by a great deal of anger and hurt arising out of his relationship with the wife. He is also bewildered at having to leave the former matrimonial home. However, there are certain stances adopted by the husband which cause me concern and which I will mention briefly.
The husband has canvassed in some detail his sexual relationship with the wife including the wife's sexual relationship with other people well prior to the commencement of a relationship with him. He says at paragraph 9 of his affidavit sworn on 6 February 2007 as follows:
[9]. I first met the applicant at a night club in 1993. She was in a 3 year continuous relationship with another man at the time, but within 2 weeks of meeting me, she had left him and was living with me every day. I was very happy with the relationship for the next 2 years, till we married, since the applicant was very affectionate and loving towards me. She was very intimate and we spent all available time together, jointly doing activities and socializing (sic). The applicant voluntarily helped me with my first divorce property settlement, performing accounting and self directed investigative work. She had full knowledge of my assets, income, and all issues pertaining to my first divorce settlement.
He says at paragraphs 14 to 18 of the affidavit as follows:
[14]. Shortly after the applicant and I were married, the relationship deteriorated rapidly. All affection and intimacy from the applicant stopped completely, she stopped wanting to spend time with me, and increasingly was doing things on her own. Sexual activity became a rare event, ranging from many weeks up to months between encounters, with the applicant taking an entirely passive role. This was quite a contrast to the situation in the 2 years before our marriage, where daily passionate sexual activity was the norm. this situation has continued up till our separation in 2006. In the 10 years of marriage to the applicant, she has not once voluntarily hugged me, and has never kissed me on the lips, only the smallest peck of the side of the face. She has not once spoken any words of affection to me since our marriage. In bed, since the applicant and I were married, she has always insisted that we sleep without touching. For some years she even placed a row of pillows between us. This is a total contrast to the way the applicant acted towards me in the 2 years we lived in a defacto relationship, and this, as well as many other incidents, has caused me to increasingly question the applicant’s original sincerity regarding our marriage.
[15]. In 1997, the applicant approached me stating that she would like a child. I had reservations because of my unhappiness with the marriage. The applicant promised that child would make her more happy, and would help our marriage. She began to behave much better towards me, and as I really desired, and felt that it was possible to have a better relationship with the applicant, and did not have any thought of divorce at that time, I eventually agreed. The applicant conceived within a month or two. Her attitude soon went back to what it was previously. When our first son, […], was born, the applicant’s parents came to live with us for 6 months. I get along well with them, but every evening she was with them for hours talking in their bedroom, and I was largely left out. For some years before our second son, […], was born, I refused all of the applicant’s many requests to have more children, because I was so unhappy with the marriage. The applicant behaved much better to me for a longer time, and made what I believed were sincere promises that a second child would definitely make her happy and complete the family. Since I still had feeling for the applicant at that time, I had a strong desire to improve the relationship, felt that there was still a possibility of having a good marriage with the applicant, and did not have thoughts of divorce, I agreed to a second child. Once again the applicant conceived within a month or so, and her attitude towards me went back to the same as before in a short period of time. This time the applicant’s parents came to stay for 2 months after [our] second son was born, and it was the same as the previous visit.
[16]. Prior to the first son being born, the applicant was made redundant from her job. She received approximately $61,000 in superannuation payments, plus under $40,000 in other payments, and had to return her company car. I sourced and bought a Mercedes sedan for the applicant to use, for about $45,000 plus government taxes.
[17]. For many years we would speak very little to each other. In the evenings we do things in separate rooms of the house, and hardly see each other. Normally the applicant would go to bed before me, and she would not normally even say goodnight to me. Most weekends the applicant spent at least one day seeing girlfriends or doing other activities on her own, although I suggested doing activities as a family. For the last years the applicant has been openly telling me that she has no love for me, which I suspected anyhow from her attitude and behaviour towards me.
[18]. The applicant is quite capable of flirting with other men. One of the worst incidents I witnessed a few years ago, when we went to a party held at the home of one of my childhood friends. I observed the applicant spending the whole evening, about 4 hours, exclusively talking to one man, who was a stranger that she met for the first time. I believed that they were interested in each other by observing the way they stood close together, and observing their body language. Similar comments were made to me by other guests. Towards the end of the evening I observed that the applicant disappeared with him to somewhere else in the house for about half an hour, and she returned to me only when everyone was going home. I have no knowledge of whether they continued to see each other.
As of February 2007, the husband had clearly formed the view that the wife had not genuinely been attracted to him, or had personal regard for him, but had only ever been interested in financial gain. Of this he said as follows:
[24] For a number of years I have come to strongly believe that the applicant married me mainly for money and lifestyle, and she has related incidents that have occurred in her life before she met me, which demonstrate to me, how important money is to her, and to what lengths she will go to for money. I wish to relate these incidents to the court, purely to show the character of the applicant in this regard.
The applicant always has said to me that she came from a very poor family in Malaysia, with many mouths to feed, and as a child she had very few toys. Having a sweet was an occasionally special treat. Her family are religious Catholics, and she attended a convent school in Malaysia, so I assume that she had a moral upbringing, and should know the correct way to behave. By the time the applicant was near the end of her high school education, the family’s financial situation improved enough so that she could be sent to Australia to further her education. The applicant stated to me that in Australia, she was extremely frugal, normally not even using her whole allowance given to her by her parents. As a student she stated that she skimped where ever she could, such as walking long distances instead of taking public transport. She boasted to me that she never had to pay when she went out socially, since she could always get boys to pay for drinks and food.
Later in our relationship, the applicant stated to me that when she was in her early twenties, and a student at RMIT, she took a job earning money as part time housekeeper for a gentleman over 50 years of age, who was of German descent. The applicant told me that she began performing sexual favours for him for money. The applicant told me that this included her performing oral sex, as well as vaginal sex. The applicant told me that she became his girlfriend for over a year, and she attended social functions and dinner parties with him, where she was introduced as his girlfriend. The whole time she was paid a weekly allowance to be with him. The applicant told me that this gentleman earned his living as a brothel owner, and other activities concerned with the sex industry, and seemed to be wealthy.
Later in our relationship, the applicant related to me that she has a conviction for theft in Melbourne.
After meeting the applicant, I believed that she left her previous 3 year relationship so quickly, because she developed strong feelings for me. I began to realize after we married, that the strong desire for money would explain why the applicant started a relationship with me, and started living with me within just 2 weeks of meeting me, while still in another steady 3 year old relationship, which she quickly terminated. I strongly believe that the applicant’s knowledge of my premarital assets was a major factor in her staring a relationship with me. As I related earlier, during a session of joint martial counselling in 2006, the applicant was directly asked and admitted in front of me that my apparent financial position was a major reason for her starting a relationship with me, and later marrying me.
Further evidence that money was a large part of the applicant’s reason for marrying me, is that although our relationship seemed to me to be very good for the 2 years we lived as a defacto couple, the applicant’s attitude towards me changes very rapidly once we were married and she felt secure.
I strongly believe that the applicant did not have any love for me when we married, and when I questioned her about this on numerous occasions, she would never give me an answer.
However, as indicated it was not until yesterday that the husband swore an affidavit, in the last paragraph of which he deposed that he believes that he may not be the father of the children. These proceedings were first instituted by the wife on 6 March 2006 and then the parties reconciled and the proceedings were formally discontinued on 21 March 2006. The husband had been represented by F Butera, solicitors, of Brunswick East. The wife re-filed proceedings on 6 December 2006 and the husband’s long and detailed responding affidavit material was filed on 6 February 2007. However, it was not until 17 May 2007, that the husband raised his belief that the wife bore children to someone else whilst married to the husband. It is a belief that he expresses but is not supported by evidence of any extra marital relationship by the wife or other associated concern during the relationship. In the event that the husband makes the allegation now disingenuously and in order to demean, insult and humiliate the wife, it would be a serious lapse in his responsibility as a parent entailing as it does the children undergoing a testing procedure.
The husband put both boys down to attend C College within days of their birth. Now the husband proposes that neither of the boys attend C College. That will involve the withdrawal of the elder son from C College at the end of this year. The husband has not paid the school fees for the elder son at C College since July last year. When I asked him why, he responded that July was the date from which the he considers that he and the wife separated. It seems that the husband’s refusal to pay the fees for the elder son at C College is motivated, at least in part, by his feelings at the breakdown of the marriage, rather than for purely economic reasons. The husband does say the family cannot afford private school fees, which he estimates at $250,000 per child for their school career. The husband may well be correct but I am at a loss to know why the school fees ceased to be paid by him from the date of his separation from the wife. If it transpires that the husband sought to punish the wife by saying that the elder son must be withdrawn from his school, that would be most unfortunate and reflect poorly on the husband’s sense of responsibility to the boys.
The husband contends that the younger son will not be able to attend C College at all. He alleges that he only recently paid an application fee of some thousands of dollars because the wife made that payment a condition of the parties’ reconciliation between February and July of last year. Again, the children’s educational needs and consistency of school seems to have taken a back seat to what the husband wished to achieve in terms of his relationship with the wife.
The husband says that the children can go to K Primary School. The wife with some reluctance says that, if the children are not to attend C College, she would propose placing them in S Primary School in K. The school fees for that are by comparison modest, but still $2000 or $4000 per annum. It is a Catholic School. The husband admits that he has not investigated alternative schools for the boys because none have been suggested to him by the wife.
It seems to me reasonable that the husband did not consider S Primary School at K until it nominated by the wife. However, I see no reason why the husband has not fully investigated K Primary School. He was critical of the wife for not putting forward options earlier. I speculated that she may have only recently and reluctantly accepted that the children could not attend C College and that she might have wanted to avoid telling the boys that they would not be attending the school of their expectations. The husband’s response was to the effect that the children should blame the wife for not being able to go the C College as it was she that had brought the marriage to an end and the family to financial ruin. His statement to me in court sounded remarkably similar to statement which the wife alleges that the husband made to the boys which is extracted above at paragraph 46.
I am also concerned that the husband's responsibility to the children is somewhat lacking in his response to being required to leave the former family home. He says the wife should leave. It is clear that he has no satisfactory proposals to accommodate the wife elsewhere. He says she can go to live with one of her two brothers who each have families. He concedes that the wife has never, alone or with the children, spent a night under the roof of her brothers and it is clear that the husband either has not turned his mind to the impact of those arrangements on the children or, if he has, that he doesn't care that his sons would be likely to find those arrangements unsettling and disorientating. He merely replies that if he has to leave the house the boys will be similarly disrupted.
It is not only that the husband is indifferent as to how the children and wife could be accommodated, but also in the husband's comments that he will have to be "dragged out" of the house. As indicated, I hope that he has a change of mind and heart. If not, and if it is necessary for the husband to be forcibly removed from the house then that will occur. However, it would be difficult to reconcile such behaviour with that of a responsible parent. Hopefully, the husband’s reaction was a matter of temporary upset and lack of perspective.
In this case I am satisfied that it would be inappropriate to apply a presumption of equal shared parental responsibility at this point. The statutory position is that they each party has parental responsibility for the children at the moment. I do not consider it appropriate to alter that in these interim proceedings.
Notwithstanding that I do not think that the presumption should apply, I have considered whether it would be in the best interests of the children for me to order that they spend equal time with the parents. Where the parties have been so long separated under the one roof, equal time is an irresistible starting point for my considerations. However, neither party seeks shared parenting on an equal time basis and both say that it is unworkable. I am satisfied that it is unworkable.
I give significant weight to the submissions of the independent children's lawyer, that the children at this particular time should be cared for primarily by the wife. In circumstances where they have not been in the sole care of the husband for more than what appears to be the odd night, I expect that five out of 14 nights will be quite challenging for the children. I take into account however, that for the remainder of the time they will have the security and familiarity of the former matrimonial home, and that the physical separation of the parties consequent on the breakdown of their marriage is a circumstances with which the children are simply going to have to become accustomed. Providing that the husband has appropriate accommodation in place, I am of the view that between now and 3 July 2007, the children should spend substantial and significant time with the husband. The days they can spend living with the husband will involve include their usual school or creche days as well as on weekends.
In relation to the remaining matters including sole use and occupation of the home, I have already detailed my dissatisfaction that the circumstances in the home are strained and inappropriate. I have referred both counsel for the wife and the husband to Davis and Davis(1976) FLC 90-062 which conveniently sets out the matters that I can consider when deciding whether or not it is proper to make a sole use and occupation order in favour of the wife, and exclude the husband from the home.
I take into account the means and needs of the parties.
The husband has filed a statement of financial circumstances. The husband deposes to having capital which exceeds his liabilities by some $2 million. Of course that is family wealth which at the moment in tied up principally in two expensive pieces of real estate and subject to significant mortgages. At Conciliation Conference on 24 April 2007 the husband was ordered to produce details in writing of share trading notwithstanding that he should have already done so. The husband has failed to comply with the order made on 24 April 2007. He contends that the wife has also failed to comply but that is no excuse in relation to his own duty to make full and frank disclosure of financial matters. In any event, Counsel for the wife disputes that his client is non-compliant.
On Monday of this week, I ordered that the husband provide details of share trading in the last month and do so on affidavit. No affidavit to that effect was filed today. The husband said from the bar table that he had provided Counsel for the wife with certain information set out on a single page of paper, but the Counsel for the wife maintains that the financial disclosure by the husband has been lacking and inadequate and uninformative.
Counsel for the wife submits that the husband has failed to provide full and frank disclosure required generally in these proceedings and in breach now of two orders. I am satisfied that the family may be in a fairly delicate financial position. However, even on the husband’s case, there are sufficient assets which may now be realised and applied to repayment of debt so as to see the family comfortably provided for. The husband’s principal complaint is that these proceedings and the controls placed on his ability to deal with the family’s finances will impede his ability to invest and, thereby, to increase the family’s wealth.
The husband says that he will suffer significant hardship if he is excluded from the family home. He says he will not be able to cope. He says that he will be so psychologically affected and emotionally disturbed by the prospect of not living at the former family home that he will not be able to see patients or continue to work. He says that it will be "dangerous and I will not be able to concentrate on issues." Later he clarified that he would not be a danger "physically" but that it would be the most awful thing to happen to him. He feels very aggrieved and I am satisfied he considers it to be terribly unfair that the wife will be able to remain in the home. He does so because he believes that he has contributed financially far more to the home than has the wife. He has set it up to meet the needs of the family but also the needs of himself, his professional needs; his needs as an enthusiast of prestige cars.
The wife says that the husband can move into the home of his elderly parents and the children can there be accommodated. I find that to be an unrealistic proposal. It is nearly as unrealistic as the proposal that the wife and children go to live with one of the wife’s brothers.
I am satisfied that to vacate the former matrimonial home will be a hardship for the husband. I take into account the concession made by the husband that he cannot foresee either party being able to maintain the former family home as a result of alteration of property interests being affected between them. It is significant that the husband foresees he will not be able to retain the home at a final property settlement. To the extent which he believes that the wife will not be able to do so either, it is of course open to the husband to seek a sale of the former family home if it cannot be maintained even in the short term.
I take into account the needs of the children. At the moment the eldest child attends C College, the younger child attends a kindergarten. Both are located very close to the former family home. As I am satisfied that the children should be in the primary care of the wife, the balance of convenience (or inconvenience) weighs in favour of the children and the wife remaining in occupation of the former matrimonial home and the husband being required to vacate it.
I take into account the conduct of the parties to each other.
I have made comment on the unsatisfactory nature of the party’s communication with each other within the home. The wife deposes at paragraphs 47 and 48 as follows:
[47]. That I have been subject to constant and a steady barrage of verbal insults which usually occur in front of the children when he has called me names such as ‘lazy’, ‘stupid’, ‘dumb dumb’, ‘cold fish’, ‘mental’, ‘sloppy’, ‘bad’ and a ‘lousy wife and mother’. He shouts at me and when I refuse any of his requests he has thrown a computer mouse and keyboard across the room, smashing them. He has punched holes in the wall with his fist and thrown money in my face when I ask for money for food. He has kicked chairs, the couch, kitchen drawers and smashed his fist on the table and slammed doors. He gets extremely angry or leaves the family room doors open where the children are playing. I have been abused for serving meals with the incorrect cutlery and disturbing his television watching if I am washing the dishes. He criticises my parenting constantly in front of the children.
[48]. That the Respondent reacts aggressively towards the children and refuses to take any part in bedtime routine or share household chores. He is a hostile presence in the house and the children are fearful of them. He shouts at them and calls them names such as ‘disobedient’, ‘stubborn’ and’ naughty’. He threatens and smacks them. His use of a menacing fierce tone of voice is intimidating to the children and [the elder son] in particular, is fearful of his father’s reaction.
The husband has responded as follows:
[65]. Referring to the applicant’s Affidavit, items 47 and 48, I disagree with her unsubstantiated allegations, and say that she is making these claims to try to show me in a bad light, to try to make a case to have me ordered out of the family home. I deny punching holes in the walls, which is absurd since we live in a solid brick house. The applicant can not have any evidence such as photos or repair invoices, and I assert that she is being untruthful to the court. The applicant is grossly exaggerating the inevitable occasional disagreement that we have, and is quoting some words I spoke, out of context. I deny all her allegations that our sons are fearful of me, and I spend time with them every day or evening that I am home. They attend my parents with me every Friday for dinner, and I look after them every evening that the applicant is at work, which is a frequent occurrence in recent months. It is inevitable that at times, the children need to be disciplined, but at no time did I exceed acceptable norms. The applicant has only made allegations against me, which I refute, but she does not provide any evidence to support her very serious claims. If the applicant was truly worried for her safety, or that of the children, why has she not ever stayed at either of her nearby brother’s homes, or at the homes of some of her single friends? If the allegations were true, why has she not reported any incident to the police? On my side, I have never been arrested or had any convictions at all, let a lone [sic] for any violence. My first wife has not made any allegations of violence in her divorce proceedings with me.
It is apparent that neither party respects the privacy or trusts the other to respect their privacy. In the wife's most recent affidavit she makes the following allegations:
[3]. That on Tuesday 17 April 2007 at about 11:00pm the Respondent told me that on the following day all the shares would be sold to pay off interest and living costs. He said “When its gone, its gone. What can they do? In 2 years time, everything will be gone. I am going to stuff it all up for you. In 2 years there is not going to be much left, I assure you”. He came into my room and said close to my face “every night I pray you are dead. I wish you dead everyday. I will make sure you suffer for the rest of your life. You have ruined the family finances.” At this time he proceeded to hit his head with his fist and then banged his head hard on the brick wall saying repeatedly “I am so stupid to have married you.” The value of shares in a document provided by the Respondent in March 2006 disclosed an amount of $1,789,990. The shares are held in the Respondent’s name, [M Pty Ltd], the [T] Family Trust and the [B] Superannuation Fund. I am concerned the Respondent is carrying out his verbal threats to reduce the matrimonial assets and is actively selling down the shares.
[4]. That the Respondent has a line of credit in the sum of $900,000 which is available with the National Australia Bank – Margin Lending. The Respondent attempted to transfer $500,000 to an overseas account in November 2006. I did not consent to such transfer. Now produced and shown to me at the time of swearing this is my Affidavit and marked with the letter “TB-1” is a copy of a fax from the Respondent to the National Australia Bank to arrange transfer of $500,000 overseas.
In response, the husband deposes that:
[7]. During the whole one and a half year separation, the Applicant has written in previous Applications and affidavits that she is fearful that the Respondent will try to reduce the matrimonial assets. These allegations were first made by the Applicant in court documents lodged in early 2006. From that time till now, the Applicant has repeatedly made wild and unsubstantiated allegations, with no evidence that any assets were improperly sold. Surely if her assertions were correct, there would be some evidence by now. She is in regular phone contact with the Respondent’s bank manager, to ascertain loan balances in various accounts, so would be able to see immediately if there was an unusual movement of money. The only way she tries to substantiate her claims is by giving her interpretation of what the Respondent said to her. I state that many of the statements that she claims the Respondent made, are false, others are taken out of context, others are exaggerated, and others were said in haste during verbal disputes with the Applicant. The Applicant has at times been equally or even more verbally aggressive and threatening saying things such as “I am going to ruin you”, “If you don’t give me what I want , I’ll make sure that you end up with nothing”, “I am going to get this house, and I don’t acre how badly you live.”
In the Applicant’s Affidavit item 3, she claims that I provided a document showing shares valued at $1,789,990. I have no knowledge of this document, and state that my share portfolio has never come close to this value.
[8]. I have known for over 1 year that the Applicant has been entering my study and bedroom to rifle through private documents to use in her divorce case. Because of this I have been locking my study and bedroom while I have been out of the house, since February 2006. I began to realize that the Applicant was still gaining access to these rooms, so I planted false documents to enable myself to get the necessary proof to apply for a restraining order, unless this Court can offer some help in this regard.
The bank transfer instructions that the Applicant refers to in her Affidavit item 4 and Annexure TB-1 is a fake produced by me. The overseas bank exists at the address given, but the account number is fictitious and made up by me. The fax with fake instructions to transfer money from my stated National Australia Bank accounts, was never sent to my bank, and the accounts mentioned have a zero balance, and never had funds withdrawn. This can be verified from National Australia Bank records and bank statements.
Now produced and shown to me is my Affidavit and marked with the letter “A” is a copy of Bank statements from the National Australia Bank accounts mentioned in the fake document. The Applicant has tried to suggest that the existence of this document is her only evidence to support her allegations of financial misdealing by myself. Since it is a deliberately planted fake document, I request that the Court disregards this as evidence.
[9]. I do not, and have never, run a cash business. All my income whether from property rental, share dividends or trading, consulting patients, or selling cars, is fully traceable, since it is always deposited in bank accounts usually by direct debit transfer, or occasionally by cheque.
[10]. I also planted two other fake documents that the Applicant mentions in her Affidavit, showing that she forced entry into both my locked bedroom, and my locked study. The fake surveillance equipment invoice mentioned in the Applicant’s Amended Affidavit item 13 was produced by me from an invoice for security equipment that I bought for my medical centre, following the stabbing of a doctor by a patient in Melbourne. There is no “spy camera” fitted by me in the house in [D]. The applicant can not show where any spy equipment is fitted in the house.
The medical centre banking details mentioned in the Applicant’s Amended Affidavit item 18, are a fake produced by me and planted. They show grossly overstated amounts of money as income, which do not agree with actual banked. They are also gross income before expenses, and I request that the Court not use any of the information for these proceedings.
[11]. I believe that the “Breaking and entering” of my rooms, and theft of my articles, show the character of the Applicant, who I believe was of the same character when she first met me, and who I believe will do almost anything to get what she wants, especially related to money. I found further evidence of her bad character, only after I met her, in that I discovered that she has been convicted of theft in a Melbourne court of law. I also later became aware that prior to meeting me, she earned additional money by prostitution and performing other sexual acts for money. I believe that the applicant even obtained her permanent residence status in Australia by fraud prior to meeting me, having applied as a Fiancé of another man. I have not yet been able to ascertain if this resulted in a sham marriage or not.
The assertion by the husband that he has planted fake documentation so as to set up the wife for “breaking and entering” is bizarre. The fact that he appears to have done so is even more bizarre. The wife going into areas which have been exclusively occupied by the husband may be reprehensible in itself. However, she has only been seeking to find out information which each parties has a duty to disclose. Ultimately, the wife is entitled to know that information. The husband's fabrication of documents in order to mislead and upset the wife is another dynamic entirely. It is an example of the extreme behaviour that the parties are engaging in whilst living separately under the one roof. It is part of what I perceive to be the escalation of their poor behaviour to each other. It is a household which is operating outside normal boundaries of behaviour – at least to some degree.
I am satisfied that the poor behaviour between the parties would, if they remained in the one home, be likely to escalate further.
I am satisfied that it is appropriate to require the husband to vacate the home, and to do so within 14 days. That is the same time that he gave the wife to vacate the home in the event that I required her to leave, but that is not the basis for my decision for adopting a period of 14 days. I asked the husband if there was any other period that I should adopt and I could not get from him a response other than the fact that he would not be leaving in any event. It seems to me that 14 days is as good a time as any by which the husband can obtain rental accommodation which should not be of lavish quality.
He has indicated he will not be setting up home with a great degree of furniture, but if the atmosphere within the home has been poor for the last two years or so, I suspect it will be even more negative in the next two weeks or so. I will not leave it longer than 2 weeks.
The wife's sole use and occupation of the home does not of course preclude the husband from applying for that property to be sold in the event that the sale of the property in E to which the wife and husband have already agreed is insufficient to cover the party’s liabilities.
I have had extensive discussions with the husband in relation to the interlocutory relief which was sought by the wife. The relief was sought in more narrow terms than the minutes that her Counsel handed up at the beginning of the hearing. I formed the view that the orders sought by the wife at that time were unnecessarily broad and impractical. The injunctions which I have made are designed to allow the husband some flexibility to deal with various assets whilst retaining an asset neutral or asset positive position for the parties. That means he can sell shares, he can sell cars, but if he does so he must apply the proceeds in reduction of debt. He can sell the property in E but he must do so promptly having regard to his evidence that the property has been vacant for a year and that the interest payments in respect of that property are some $12,000 per month.
He says that he has been looking for a suitable purchaser, had previously approached three agents but he concedes that in the last two months the family has paid some $250,000 in interest without having received periodic rent. There is an issue of the husband having received compensation for the tenant breaking a lease but he does not volunteer that that is in lieu of rent.
The injunctions which I have made are proper. I make them for the purpose of preserving the party’s assets and I make them in circumstances where I have formed the view that the husband has acted in a fairly bizarre way by trying to trick the wife into thinking that he was sending money overseas when he says he was not, and that the wife has some genuine and reasonable apprehension that the husband may deal with assets inappropriately.
As indicated the other issues of child support and a litigation funding order are to go to another day. This concludes my reasons for judgment.
I certify that the preceding one-hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 29 May 2007
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Jurisdiction
-
Procedural Fairness
-
Remedies
-
Standing
-
Statutory Construction
0
0
3