BROOK & BROOK

[2016] FamCA 321

FAMILY COURT OF AUSTRALIA

BROOK & BROOK [2016] FamCA 321

FAMILY – CHILDREN – FINAL ORDERS – what time the child spends with the father – where the mother the child at risk of abuse– where the mother makes allegations of physical and emotional abuse perpetrated against her by the father – whether the father poses an unacceptable risk to the child – where the mother seeks the father’s time with the child be limited to after school two nights each week, no overnight time and otherwise by agreement – where the mother makes no formal proposal for school holidays or on special occasions – finding that the father is not an unacceptable risk to the child – best interests consideration – finding that the child should spend significant and substantial time with the father –  orders made for the child to spend increasing time with the father including overnight, weekend and holiday time

FAMILY – CHILDREN – FINAL ORDERS – CHILDREN – FINAL ORDERS – Parental responsibility – best interests – where the mother seeks sole parental responsibility – where an order for sole parental responsibility may enable the mother to exclude the father from the child’s life – where the parties have recently engaged in family therapy – where there is recent evidence of the parties agreeing on issues regarding the child – orders for equal shared parental responsibility

FAMILY – CHILDREN – FINAL ORDERS – PROPERTY – FINAL ORDERS – where parties were married for 12 years – where there is one young child of the relationship – where the child lives with the mother and spends significant and substantial time with the father – where it is just and equitable to make orders altering the parties interests in property –  where the mother has a greater earning capacity than the father – where contributions by and on behalf of the mother during the marriage and post separation including financial support of the child are greater than those of the father– where the mother opposes a superannuation splitting order – orders made for an overall division of the asset pool including superannuation entitlements of 60 per cent: 40 per cent in favour of the mother

Family Law Act 1975 (Cth)

Baglio & Baglio [2013] FamCA 105
Bevan & Bevan [2013] FamCAFC 116
Harridge and Anor & Harridge and Anor [2010] FamCA 445
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
Stanford & Stanford (2012) 247 CLR 108
Vass & Vass [2015] FamCAFC 51; (2015) 53 Fam LR 373
Watson & Ling [2013] FamCA 57

APPLICANT: Ms Brook

RESPONDENT: Mr Brook

FILE NUMBER: MLC 11123 of 2013

DATE DELIVERED: 6 May 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 12,13,14 & 15 October 2015 and 4, 5 & 6 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weil

SOLICITOR FOR THE APPLICANT: Williams Winter

COUNSEL FOR THE RESPONDENT: Ms Byrnes

SOLICITOR FOR THE RESPONDENT: Carew Counsel Pty Ltd

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brook & Brook has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11123 of 2013

Ms Brook

Applicant

And

Mr Brook

Respondent

REASONS FOR JUDGMENT

1. In this case there are competing applications for both parenting orders and property settlement.

2. Ms D, the family consultant, said at paragraph 74 of the Family Report dated 24 August 2015 (“the Family Report”) that “[t]he court is presented with two people giving completely divergent views and opinions about what occurred in the past and what each proposes as to how to move forward. This leaves the court with a decision to make as to how best to proceed based on the likelihood or otherwise of each account”. Although Ms D was addressing the parenting issues, in my view her comments are equally applicable to both the parties’ evidence and it follows their respective proposals for property settlement.

3. On the one hand it is the mother’s case that the history of her marriage was one of systemic and ongoing abuse witnessed by the child subject of these proceedings B born … 2009 (“the child”). As observed by Ms D at paragraph 76 of the Family Report, the mother would have the Court accept that the father is “… a man capable of both murder and filicide as well as a person capable of inflicting serious harm on others, in particular Mr P”.

4. On the other hand, Ms D observed at paragraph 82 of the Family Report that:

   [the father’s] behaviour just prior and just after separation can be viewed from two perspectives. It is possible that [the father] was a man who became obsessed with the idea and formed the firm belief that his wife was having an affair. This belief led him to violate her privacy by restoring deleted texts, reading her email and using the ‘find my iPhone’ app to track her movements and approach her friends and family seeking validation or confirmation. In this context, this behaviour, whilst still unacceptable, paints a picture of a person desperately seeking the truth around what he believed was happening.

5. Ms D went on to say however at paragraph 83 of the Family Report that “[i]f on the other hand this behaviour was ‘normal’ in the context of the relationship then it could be a symptom of a more sinister patter [sic] of an attempt to control and have power over [the mother]. This behaviour in a broader context would mean that [the mother] would have felt a level of scrutiny about her behaviour for the duration of their marriage which lasted some 11 years”.

6. In my view it is these allegations of family violence and abuse which have been the focus of this case that lie at the heart of both the evidentiary dispute and what flows from that evidence depending upon the Court’s findings.

Background

1. The father was born in 1969 and is currently 46 years of age. The mother was born in 1975 and is currently 40 years of age.

2. The parties married in 2001 and separated on 7 December 2013.

3. There is one child of their marriage B who is now six years of age.

4. At 22 weeks gestation the mother, who was pregnant with twins, developed twin-to-twin transfusion syndrome which put the lives of both of her unborn babies at risk. At 24 weeks gestation the mother went into spontaneous labour and the twins were delivered within minutes of each other on 9 November 2009.  The child’s twin brother H did not survive the birth and the child spent some 99 days in Neonatal Intensive Care at the I Medical Centre and the J Hospital Neonatal Intensive and Special Care facilities fighting for his life.  The child was unable to breathe unassisted for the first 94 days.  The child was diagnosed with chronic lung disease and requires ongoing monitoring.

5. The mother took approximately 15 months maternity leave, of which approximately four months were paid leave, following the child’s birth. The father, who had been self-employed since approximately 2005, took up contract work in Canberra with K Institute (“K Institute”) in mid-2010 signing a two-year contract with K Institute in or about June 2011. The father has had only occasional part time employment since leaving K Institute. It is his case that he is a web designer and that he is currently looking for employment and also exploring online business opportunities.

6. In or about February 2011 the mother returned to work part time at the L Bank, where she had been employed since 2005, but was made redundant by the bank in or about June 2011. In September 2011 the mother obtained a full-time senior position in the Public Service. The mother was made redundant by in or about July 2014. The mother was unemployed until taking up a managerial position with the M Bank in March 2015. Her employment was terminated in June 2015 at the conclusion of the three month probation period.

History of Proceedings in the Family Court of Australia and the Magistrates’ Court of Victoria

1. Although the procedural history of a matter is often not of particular relevance to the matters the court must determine, given the allegations in this case, the timing of the various applications that history has some relevance in this case.

2. The mother left the former matrimonial home at N Street, Suburb O with the child on 7 December 2013 following an incident on 6 December 2013 when she alleges the father was both physically and verbally abusive to her and to Mr P. It is the mother’s case that the child was exposed to the father’s physical and verbal abuse on this occasion.

3. The mother returned to the Suburb O property in January 2014 when the father moved to the property owned by the parties at Suburb Q.

4. On 12 December 2013 the mother sought and obtained an interim Intervention Order against the father at the Magistrates’ Court of Victoria in W Town.

5. On 19 December 2013 the mother filed an Initiating Application in the Family Court of Australia. The mother sought the following orders:

   1. That the child [B] born … 2009 live with the wife.

   2. That the husband transfer all his right title and interest in the property situate at and known as [N Street, Suburb O], to the wife.

   3. That the husband transfer all his right title and interest in the property situate at the corner of [R Street, and S Street, T Town], to the wife.

   4. That the property situate at and known as U Street, Suburb V in the State of Victoria be sold and the proceeds of sale be held in a Controlled Monies account pending overall settlement of the division of assets between the parties.

   5. That otherwise there be such further or other Orders as this Court deems equitable.

6. On 11 March 2014 the father filed a Response to Initiating Application in which he sought the following orders:

   1. That the parents have equal shared parental responsibility for the child of the marriage the child B born on … 2009.

   2. The Husband be excused from particularising his proposal with regard to live with and spend time arrangements for the child until such time as the parties have attended private mediation.

   3. There be a property settlement to provide for a just and equitable division of property between the parties and the Husband be excused from particularising his claim until such time as discover [sic] and inspection are completed.

7. On 26 March 2014 interim orders were made by consent which provided that the father and the mother have equal shared parental responsibility for the child, that the child live with the mother and spend time with the father on Monday to Thursday of each school week from the completion of child care until 6.30 pm. A notation to those orders stated that it was the mother’s intention that the father’s overnight and weekend time with the child would be reviewed once the father obtained full time employment.

8. The orders also provided for the sale of properties owned by the parties at U Street, Suburb Q and R Street, T Town.

9. On 20 March 2014 the mother obtained a 12 month final Intervention Order against the father.  The father appeared and consented to the Intervention Order without admission.   

10. On 1 August 2014 the father filed an Amended Response to Initiating Application particularising the final parenting orders sought by him and further seeking interim parenting orders. That application was first listed for hearing in this Court on 29 August 2014 when orders were made by consent by the Senior Registrar for the parties to attend upon a family consultant for the preparation of a Family Report.

11. On 12 March 2015 the mother sought and obtained an interim extension of the Intervention Order. The order was also varied so as to include the child. On 17 April 2015 the matter was listed for mention in the Magistrates’ Court of Victoria in W Town. On that date the father advised the Court that he would be contesting the mother’s application and also issued applications for intervention orders against both the mother and her father, Mr X.  Both the father and the mother were ordered to file Further and Better Particulars in relation to their respective applications and the matter was adjourned for hearing.

12. On 21 April 2015 the mother attended at Suburb Y Police Station and reported an incident that she said occurred on Suburb O Beach near Dendy Street on 12 December 2014. Mr P, who was with the mother at the time of the Suburb O Beach incident, accompanied the mother to Suburb Y Police Station and also made a statement on that day.

13. On 8 May 2015 the father withdrew his application for an Intervention Order against Mr X. The extant applications were thereafter adjourned for hearing following the completion of the police investigation and any charges being laid against the father.

14. On 10 September 2015 Ms Z, who said she was a witness to the incident on Suburb O on 12 December 2014, attended at Suburb AA Police Station and made a statement. On 15 September 2015 Mr BB, who was with Ms Z and another friend at Suburb O Beach that day attended at Malvern Police Station and made a statement.

15. On 17 September 2015 the father was charged with breaching the Intervention Order and threats to kill arising out of the events of 12 December 2014.

16. Although the evidence is not completely clear, the father said during cross-examination that although he had not been served with a copy of the Intervention Order it was his understanding that there had been a hearing of the mother’s application to both extend the Intervention Order and to include the child and that when he did not appear orders had been made in his absence. It appears that the father failed to appear as it had been his understanding that the matter would not be dealt with until the conclusion of the proceedings in this Court. The father also said that he was trying to follow up on what had occurred.

17. The matter was listed for a first day hearing before me on 4 May 2015.

18. On 13 August 2015 the mother filed a Further Amended Initiating Application in which she sought final orders that she have sole parental responsibility for the child, that he live with her and that the father’s time with the child be reserved. The mother in that Application also sought final property orders.  She did not seek any interim orders however on 18 August 2015 the mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence and an Application in a Case in which she sought orders discharging the orders for the father’s time with the child and reserving his time with the child pending further order. On 25 August 2015 the father filed a Response to the mother’s Application in a Case seeking inter alia that the mother’s Application in a Case be dismissed and that the child spend time with him from each alternate Wednesday after school to Monday morning and each alternate Wednesday after school to Thursday morning. When the matter came on for hearing on 4 September 2015 orders were made by consent discharging the previous orders in relation to the father’s time with the child and providing for the father to have time with the child for two nights per week (instead of four nights as previously ordered). Orders were also made for each party to attend upon Dr E for the preparation of a psychiatric report.

Documents Relied Upon

1. The mother relied upon the following documents:

   ·Affidavit of the mother filed 21 July 2015 (“Trial Affidavit”);

   ·Affidavit in Reply of the mother filed 18 September 2015;

   ·Affidavit of Ms CC filed 21 July 2015;

   ·Affidavit of Mr X filed 21 July 2015;

   ·Affidavit of Mr P filed 21 July 2015;

   ·Affidavit of Ms X filed 21 July 2015;

   ·Affidavit of Ms DD filed 21 July 2015;

   ·Affidavit of Mr BX filed 23 July 2015; and

   ·Financial Statement of the mother filed 13 August 2015.  

2. The mother also sought and was granted leave to rely upon her Affidavits filed 18 August 2015 and 3 September 2015, both of those Affidavits having been filed in support of her Application in a Case filed 18 August 2015.

3. The father relied upon the following documents:

   ·Affidavit of the father filed 17 August 2015;

   ·Affidavit of Ms EE filed 9 September 2015; and

   ·Financial Statement of the father filed 4 September 2015.

4. The father also sought and was granted leave to rely upon his Affidavit filed 25 August 2015.

5. Both the father and the mother also relied upon various documents which were tendered in evidence during the course of the hearing, some of which will be referred to in these reasons, and they each filed case outlines upon which they relied.

6. Counsel for the father submitted that if I thought the recording of the child made by C School to show to the parents would assist, I should watch it. Counsel for the mother submitted that I should watch the recording. Ms D viewed the recording prior to giving her evidence. Although I have also viewed the recording, unlike Ms D I am not qualified to interpret the child’s actions. I do however agree with Ms D’s observation that the recording lacks context. In those circumstances it adds little to the evidence save and except with respect to what it says about the mother’s interpretation of the recording upon which she based her decision to apply for the suspension of the child’s time with the father.   

Parenting Proceedings

Legal Principles

1. When making a parenting order, the paramount consideration is the best interests of the child the subject of the proceedings (s 60CA of the Family Law Act 1975 (Cth) (“the Act”)). When determining what is in the best interests of the child the court must have regard to the primary and additional considerations in s 60CC of the Act. Those considerations “… are signposts or touchstones within which the broad enquiry as to best interests must be conducted” (Murphy J in Harridge and Anor & Harridge and Anor [2010] FamCA 445 at paragraph 35). These considerations are consistent with the objectives of Part VII of the Act and the principles underlying those objectives. The primary considerations mirror the first two of those objectives.

2. When the court is asked to make a parenting order there is a statutory presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for that child, unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA of the Act). That presumption is rebuttable if the court is satisfied that it would not be in the child’s best interests.

3. If the court makes an order for the parents to have equal shared parental responsibility it is required to consider firstly whether is in the child’s best interests and reasonably practical for the child to spend equal time with each parent and if not, whether it would be in the child’s best interests and reasonably practical to spend “substantial and significant time” with each parent (s 65DAA of the Act).

The Parties’ Proposals

1. The father’s case was the parties should have equal shared parental responsibility for the child. The father also sought orders (as set out in his Further Amended Response to Initiating Application filed 21 April 2015 and paraphrased below) that:

   ·    The child live with the mother;

   ·    the father spend time with the child:

   o   from the conclusion of school or 3.30 pm each alternate Wednesday until the return of school or 9.00 am Monday;

   o   from after school each alternate Wednesday until the return of school or 9.00 am Thursday;

   o   in the event that Father’s Day falls during a period the child is living/spending time with the mother from 10.00 am to 6.00 pm on that day;

   o   in the event that Mother’s Day falls during a period the child is living/spending time with the father, his time be suspended from 10.00 am to 6.00 pm on that day; 

   o   on the child’s birthday as follows:

   §  if the birthday falls on a non-spend time weekday, then for a period of not less than two hours and in default of agreement from after school to 6.00 pm;

   §  if the birthday falls on a non-spend time weekend, then for no less than four hours and in default of agreement from 4.00 pm to 8.00 pm;

   o   for half of all school term holidays as agreed and in default of agreement from the conclusion of school on the last day of term to 3.30 pm on the middle Saturday of the holiday period;

   o   during the long end of year school holiday the child live with each party during alternate weeks, except as otherwise provided in these Orders for Christmas  Day and Boxing Day;

   o   for Christmas 2015 and each alternate year thereafter, from 3.00 pm Christmas Eve until 3.00 pm Christmas Day;

   o   for Christmas 2016 and each alternate year thereafter, from 3.00 pm Christmas Day until 3.00 pm Boxing Day;

   ·    each party is at liberty to attend the child’s school for the purposes of any function or activity normally attended by parents and be at liberty to attend at the child’s extracurricular and sporting activities;

   ·    each party keep the other informed of the child’s progress at school as well as all parent/teacher night appointments, co-curricular activities involving the child so as to provide the other with the opportunity to attend;

   ·    each party be permitted to liaise directly with the child’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and nay other necessary information about the child’s progress;

   ·    each party keep the other informed of the child’s health and any health issues as well as any procedures or operations to be undertaken prior to those procedure or operations being undertaken, except in cases of emergency (with the party in whose care the child is in to inform the other party immediately); and

   ·    the child attend FF School or such other State school as agreed between the parties.

1. The mother’s proposal was that she should have sole parental responsibility for the child, that the child live with her and that the child should spend time with the father during school terms from after school on Monday and Wednesdays and at such other times as may be agreed by the parties in writing. The mother made no formal proposal for the child to spend time with the father during school holidays or on special occasions other than by agreement. During cross-examination the mother conceded that her proposal meant that she would determine whether the child spent any additional time with the father and that with respect to time during the school holidays, she would be prepared to consider any arrangement that would be in the child’s best interests. On the basis of her own evidence the mother would be the one determining whether the school holiday time was in the child’s best interests.  The mother did not make any proposal for any time on special occasions such as Christmas, Father’s Day or birthdays.  

The Evidence

1. The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides that in applying the relevant standard of proof the Court must take into account:

   (a)the nature of the cause of action or defence; and

   (b)the nature of the subject-matter of the proceeding; and

   (c)the gravity of the matters alleged.  

2. The more serious the allegation that is made, the stronger the evidence relied upon by the party making that allegation will need to be in order to establish that allegation on the balance of probabilities.

3. Counsel for the mother submitted that in circumstances where the father admitted to lying on both his rental application and his application for car financing, unless the father’s evidence is either admitted by the mother or corroborated I should prefer the evidence of the mother. Whilst the father did admit to lying on both those documents I do not agree that as a general proposition I should not accept his evidence. To the contrary I found the father to be a frank and forthright witness, albeit at times almost naively honest. One example being that the father readily admitted, when asked at the commencement of cross examination whether he always told the truth, that he did not.

4. Dr E, who psychiatrically assessed both the father and the mother, reported in relation to the father in his Report dated 22 September 2015 as follows:

   ·   that the father saw himself as a calm person, who was getting calmer as he got older. The father stated to Dr E that he was obviously angry and upset about the relationship that existed with his former wife and her parents;

   ·   that the father seemed to show in interview an ability to remain calm;

   ·   that the father showed no indications of a depressive condition;

   ·   that the father presented with only marginal situational anxiety, which, in Dr E’s opinion, should lift once decisions are made regarding the arrangements for the child; and

   ·   that although his judgment was influenced by his feelings about and towards the mother, the father displayed evidence of being capable of controlling his emotions.

5. In summary Dr E said that the father “… presents, from the psychiatric viewpoint, with a rigid obsessive disposition, and a determination not to be bested by his ex-wife”. It was Dr E’s opinion that the father presented “… merely with situational anxiety, as well as unresolved anger issues, not amenable to treatment” and that he presented with “… definite ideas of his own” based upon which Dr E concluded that specialist psychiatric treatment would not be useful.  

6. In my view Dr E’s conclusions with respect to the father’s unresolved anger issues did not sit all that comfortably with his reported observations of the father. In cross-examination Dr E said that although the father was very charming and controlled at interview, he had formed the view that the father had significant underlying issues with anger. Although Dr E said this was a “gut feeling”; his evidence about whether that feeling was based upon his observations alone or his observations and the history he was given by the parties was confusing. Dr E said that his conclusion that the father had unresolved anger issues was based upon his observations of the father in interview, however had also acknowledged earlier in his evidence that those observations were at least to some extent influenced by the history he had been given by the mother. Although Dr E’s gut feeling may have been based to some extent upon his observations, in my view it is clear from his evidence that he had been not only influenced by the history given to him by the mother but more importantly had formed a view that the mother’s account of events during the marriage and her description of being persecuted by the father both during and following the breakdown of the marriage was genuine.

7. Although Ms D said in cross-examination that her observations of the father were broadly consistent with the observations of Dr E in his Report and that the way the father spoke about some things might show elements of controlling behaviour, she also said that she had not observed any extreme or alarming behaviour and the tenor of her evidence was that the context of both the incident on 6 December 2013 and 12 December 2014 was relevant.  

8. The father was cross-examined over a number of days. He remained calm and courteous throughout what is for most litigants a difficult experience. I did not find the father either overly rigid or obsessive. Although my observation of the father’s evidence was that he both interpreted and answered the questions he was asked in a quite literal way, a description Dr E agreed with, I am also satisfied however that he did his best to answer the questions he was asked in a truthful way. He generally made concessions when it was appropriate to do so and in some cases arguably against his interest and in circumstances where, had he not been so open, he might have attempted to avoid the answer. There were many examples but a number stand out. The father was quite open about the fact that he held the mother responsible at least in part for H’s death and was equally forthcoming about his attitude to the mother’s family.

9. The father was asked at the commencement of cross-examination whether he held himself in anyway responsible for his present predicament and whether he had done anything which had in effect led to the hearing. His answer, although arguably somewhat naïve, was no. Whilst this might on the one hand raise questions about his level of insight it did suggest that he was attempting to tell the truth at least as he perceived it to be. Notwithstanding these answers, it was my observation of his evidence that the father also demonstrated some capacity to reflect upon his own behaviour and how that might have impacted upon the mother.

10. The mother on the other hand was not a good witness. The way in which the mother gave her evidence was somewhat histrionic. During cross-examination the mother had great difficulty answering the questions she was asked and repeatedly used her answers to put her case, invariably painting the father in a negative light whether or not her answer was responsive to the question she was asked or not.

11. Although both the mother and Mr P went out of their way to make the point that they had not commenced a relationship until well after separation, I found the mother’s evidence, in particular in relation to an exchange of text messages between she and Mr P prior to the incident of 6 December 2013 quite disingenuous and very unconvincing. Similarly I do not agree with Mr P’s description of those texts as “flirtatious”. I do not accept the mother’s evidence in relation to those messages. I am satisfied on the balance of probabilities, based upon those text messages and their evidence generally, that whether or not the mother and Mr P had commenced a sexual relationship prior to the breakdown of the marriage, the mother’s relationship with Mr P went well beyond a work friendship and that a relationship with Mr P was definitely a possibility if not a reality at the time of the incident on 6 December 2013. I can only assume, given her parents’ reaction to the allegations made by the father on the night of 6 December 2013 about the mother’s conduct, that the mother did not and possibly still has not told them about the state of her relationship with Mr P at that time. Whether that is because she is embarrassed about anyone finding out about when her relationship with Mr P commenced or because she is simply not prepared to concede that the father’s reaction, although not to be condoned, might be to some extent explained by what he suspected and ultimately what he thought he had discovered when he found her with Mr P, the impact it has upon my confidence in her evidence and that of Mr P is the same. That context is critical to my assessment of the evidence in relation to the incidents on 6 December 2013 and 12 December 2014 and how that sits with the mother’s assertion that they were part of an ongoing pattern of controlling and abusive behaviour throughout the marriage.

12. There were also inconsistencies in the mother’s evidence. When Ms D interviewed the parties she described the mother at paragraph 22 of the Family Report as being in a “heightened state of agitation” and stated that the mother had requested that she be seated away from the waiting area because she had an Intervention Order and should not come into contact with the father. Although Ms D said that the mother relaxed somewhat when she was told that the father would not be arriving until 10.00 am and that they would not be interviewed together, she said at paragraph 39 of the Family Report that when she was escorting the mother to an alternative waiting area at the end of her interview with her she became “very rigid and started to cry”, pushing back against Ms D when she happened to see the father. Ms D described the mother’s reaction to the sight of the father as “extreme”. When she asked the mother about her reaction given that she sees the father each Monday to Thursday when she collects the child from the father’s home, the mother’s explanation was that she does not need to actually see the father as the child walks out the door by himself. However, the mother had earlier said to Ms D that the father had insisted that changeover be at his home and that she did not feel that she could challenge his decision. However the mother also told Ms D that she had wanted the changeover to occur at his place rather than hers firstly because there were security guards at the train station near the father’s apartment who could assist her if he were to follow her and secondly because she did not want him to come to her home because it has a high hedge and she did not believe that she would be safe in those circumstances. It was not put to Ms D that her report of what she said she was told by the mother was not accurate.

13. Ms D was cross-examined about the mother’s reaction when she happened to see the father. Although she did not say that the mother’s reaction was not legitimate, she did say that it struck her as somewhat inconsistent in circumstances where the mother would not only be seeing the father during the handing over of the child during the assessment process but also potentially coming into contact with him on almost a daily basis when she collected the child from the father’s home at the conclusion of his time with the father.

14. Ms D was a considered and cogent witness who was careful not to step outside her areas of expertise. It was my observation that she made concessions in cross-examination when it was appropriate to do so but ultimately did not give ground in relation to either her observations or her recommendations. It was my observation that in the course of cross-examination she had, if anything, formed a clearer view of what she considered to be in the child’s best interests. Her evidence was of great assistance to me and I place significant weight upon it.

15. I, like Ms D, find both the mother’s reaction at the conclusion of her appointment with Ms D, the allegation she makes that the father was aggressive and abusive at every changeover and the fact that between early May and August 2015 the mother would collect the child from the father’s home, somewhat inconsistent. Although the mother says that the father would open the door allowing the child to come out, if the father was as abusive and aggressive as the mother says, there would be nothing stopping the father from coming out with the child or at the very least attempting to engage the mother. The mother’s evidence also does not explain why in the controlled environment of the Court she would have had such an extreme reaction as compared to her evidence of changeover outside the father’s apartment and her own evidence that she had run into the father on the train three times leading up to the hearing, that the father had seen her on at least one of those occasions and that nothing untoward had occurred.  

16. Finally and perhaps of most significance for the purposes of the determination I must make, the child’s presentation and Ms D’s observations of him with the father are not consistent with the mother’s allegations or at least the gravity of them.

17. Although I would not go as far as to say that the mother has deliberately fabricated her evidence I am left with significant reservations about the reliability of her evidence generally. I am satisfied that at the very least the mother has, in hindsight, embellished her evidence, reinterpreting the events both at and post separation and the history of the marriage to fit the picture she now paints of an abusive and controlling man.

Primary Considerations

Family violence

1. Section 60CC(2A) of the Act provides that in applying the primary considerations in s 60CC(2) of the Act the court is to give greater weight to the second of those considerations, i.e. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Family violence is defined in s 4(1) of the Act to have the meaning given by subsection 4AB(1). Section 4AB(1) defines family violence as follows:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

3. Abuse is defined, not including those parts of the definition that relate to sexual assault, in s 4(1) of the Act as an assault of a child which constitutes an offence in the State or Territory in which it occurred.

4. The balance between the two primary considerations is a significant issue in circumstances where it is the mother’s case that she lives in perpetual fear of the father and that the alleged assaults of both the mother and Mr P, rather than being directly related to the circumstances surrounding the breakdown of the marriage, are part of a pattern of controlling and abusive behaviour throughout the marriage. These allegations are central to this case and the determination of what, if any, threat the father poses to both the mother and/or the child on an ongoing basis. Although the incidents on both 6 December 2013 and 12 December 2014 are of particular significance, in my view they need to be considered in the context of all of the mother’s allegations of violence and abuse as that is the way in which she puts her case.  

5. The mother makes allegations in her Trial Affidavit in relation to a number of incidents and the father’s behaviour during the marriage which she says are evidence of the father’s abusive and controlling pattern of behaviour and of his anger management problems. They include that:

   ·   the father was critical of the mother’s family and friends and instigated arguments over the mother spending time with them;

   ·   the father was critical of the mother’s appearance picking on her weight in particular;

   ·   the father made disparaging comments about the mother’s family, being particularly critical of her sister Ms GG who has an acquired brain injury as a result of a car accident and whom the father has not spoken to for seven or eight years;

   ·   the father was abusive to the mother in front of family members, on one occasion in January 2004 calling her a “sexual deviant” in front of his family and on another occasion calling her a “fucking spastic” in front of his family during a trip to Queensland;

   ·   in 2003 when she was out with her sister and friends the father verbally attacked the mother after he saw her speaking to a male acquaintance, berating her in front of her sister and friends as a result of which she left and drove to a friend’s house;

   ·   the father was obsessively jealous and would question the mother about every detail of conversations or social engagements when she went out without the father;

   ·   the father’s obsessive jealousy turned to stalking when the mother says he would drive around the city searching for her when she was having drinks with work colleagues, including on one occasion when the father put the child in the car and drove from Suburb Q to the city searching for her;

   ·   the father used to check the odometer reading on the car and ask the mother questions if it was higher than he thought it should be;

   ·   on one occasion in 2010 the father checked the satellite navigation system to see what addresses the mother had entered so as to learn where she might have been; and

   ·   the father would lash out in conversation, the mother said as a warning to her not to leave, threatening to come back and haunt her if he died and she met anyone else.

6. The mother alleged that the father had been physically abusive, kicking her in bed after they had argued, that he boasted and joked about kicking her dog and that he damaged their home during arguments including punching a hole through the bedroom door, kicking a hole in the wall under his desk and punching his fist through the kitchen wall. She also alleged that the father had damaged her personal property during arguments including twisting her sunglasses so that they were unwearable and tipping the contents of her handbag onto the floor before jumping on the handbag leaving heel impressions in the leather.

7. One of the unusual aspects of the evidence in this case was that the father readily admitted some of these incidents albeit not necessarily as alleged by the mother or the context in which they had occurred. For example the father did admit damaging the mother’s sunglasses, he said by mistake and did admit that emptying out the contents of her handbag on the night of 6 December 2013. He also admitted that he had put a hole in the wall of the study however he said that this was accidental not deliberate. The fact that the father so readily made these admissions added some credence to his evidence generally.

8. The mother also referred to and relied upon a number of incidents involving third parties which she said were further evidence of the father’s uncontrolled anger and aggression. They included:

   ·   an incident in mid-2007 when the mother says she and the father were staying at her parents’ home in F Town when the father approached a neighbour insisting that he move his boat off of her parents’ nature strip because it “annoyed” him. She said the father was involved in an altercation which included the father being highly abusive and led to the men wrestling on the ground. She said the father threatened to turn the neighbour’s boat into a colander if he did not move it. It was the mother’s evidence that the neighbour had reported the matter and that whilst the mother and father were eating dinner that evening two policemen from T Town Police Station attended at her parents’ home wanting to speak to the father;

   ·   on 4 November 2008, Melbourne Cup Day, the mother said she woke to hear the father arguing with a neighbour in the street because he had been woken by that neighbour mowing his lawn. It was her evidence that the neighbour’s wife then became involved and that the father later told the mother that he had asked the neighbour’s wife, who had recently had her teeth capped, “what she had done to her teeth and if she was running in the big race later that day”. It was the mother’s evidence that although until that time they had socialised with those neighbours, they never spoke to them again; and

   ·   on 30 July 2013 the mother said she received an email from her father telling her that the T Town Police had been to his home looking for the father after her father’s next door neighbours reported the father because they said he had been aggressive and violent and made threats that had concerned them the previous night. 

1. Although the father admitted that he had been told that the police had attended at the mother’s parents’ home on one occasion he did not admit the allegations made by the mother as to what had occurred and she did not adduce evidence from any witness involved in the incidents notwithstanding some of them allegedly involved her parents’ next door neighbours. Nor was there any supporting evidence with respect to any complaints made to the Victoria Police or the attendance by the police at her parents’ home, save that Mr X deposed briefly at paragraph 52 of his Affidavit as to the police visiting them on two occasions asking about the father’s behaviour to the neighbours.

2. Although the mother also alleged that she had witnessed numerous incidents of road rage by the father, she did not give evidence in relation to specific incidents. She did however say at paragraph 92 of her Trial Affidavit that the father had described an incident where he said he had chased a person home in his car and then chased the other driver down the street. She also said that the father had told her about another incident when he had become frustrated by a P-Plate driver tailgating him on the Eastern Freeway, had slammed the brakes on and had seen that driver’s car spin around several time as he drove away. The father denied these incidents.

3. Although some of the evidence is consistent with the mother’s allegations, it is also in many cases a question of different interpretations of the same facts or in some cases the context in which they occurred. An example of this is the mother’s allegations that the father would drive around bars in the city searching for her when she was out for drinks with friends. Whilst the father agrees at paragraph 38(aaa) of his Affidavit filed 17 August 2015 that he would drive to the city with the child to get the mother after she had been out to drinks with work colleagues, the context of him doing so was that they lived in Suburb Q and that in those circumstances a taxi was not practical. He also admitted that on one occasion, he said not long after the murder of Jill Meagher, when the mother was still not home by 2.00 am and was not contactable by phone he became convinced that she had had an accident and left T Town intending to go to the bar near her work in Melbourne where he thought the mother would have been. It was only when he had already left T Town that the mother got in touch with him. The father was cross-examined about this incident but it is the conclusion to be drawn based upon the facts rather than the facts themselves that are in dispute. The father’s explanation is in my view credible and I do not accept the mother’s case that this was an attempt by the father to control her.

4. There is also the mother’s allegation at paragraph 94 of her Trial Affidavit that the father said that if he died “you can never meet anyone else or I will come back and haunt you”. The father’s evidence that they joked about the other coming back to haunt the surviving partner if one of them died was similarly credible and I am satisfied given my preference for the father’s evidence that his explanation is more likely than the mother’s explanation.  I am satisfied on the balance of probabilities that this is an example of the mother retrospectively attributing motive to the father based upon the way in which she now puts her case.

5. It is the mother’s case that the father’s decision to move to Suburb O was yet another example of his attempt to control her. In my view this is another of many examples of the mother interpreting the evidence in a way that is consistent with her perception of the events with little assessment of how that fits with the other evidence.  The father’s evidence that he moved to Suburb O to be closer to the child is in my view much more likely. In fact it is hard to imagine how the father could have spent time with the child as envisaged by the orders made by consent on 26 March 2014 if he had not done so.  

6. In my view the evidence in relation to the father’s behaviour throughout the marriage, which on the mother’s case demonstrates the father’s inability to control his anger, does not necessarily support her case that it is indicative of a pattern of behaviour throughout the marriage when considered in the context in which it occurred. One example is the mother’s evidence in relation to the father’s behaviour at the J Hospital following the child’s birth. The mother subpoenaed and relied upon the hospital notes for the period 12 -18 January 2010. Whilst those notes which are in evidence before me do refer to the father’s aggressive behaviour there are also references to both the father and the mother being “very annoyed and aggressive”.  More importantly, all of this occurred after their son H’s death at a time when it is clear from that evidence that the parties had not really come to terms with his death and in circumstances where they had both been very unhappy about the child’s care when he was a patient at I Medical Centre. Whilst these circumstances do not necessarily excuse the father’s behaviour towards the hospital staff they do put it in context. 

7. The mother’s parents were highly critical of the father’s behaviour in particular in relation to the way he interacted with their daughter Ms GG and his unwillingness to be involved with their family. However, although they said they had witnessed what Mr X described as the father’s “short fuse” and Ms X deposed at paragraph 11 of her Affidavit filed 21 July 2015 to the father needling Mr X, “wanting a confrontation”. Their evidence lacked detail.  Although Mr X referred to there being trouble with their neighbours, neither he nor Ms X gave detailed if any evidence at all in relation to the particular incidents identified by the mother including those that had allegedly occurred at their home and involved their neighbours. Mr X deposed that the mother had tried to shield them from the father’s behaviour and had not involved them however it is hard to imagine that if the father’s behaviour had been as bad as the mother described, the maternal grandparents would not have been more aware of it and would have been able to give more detailed evidence.  

8. The mother’s brother, Mr BX, was similarly highly critical of the father’s behaviour, describing him as rude and dismissive to the mother’s family, in particular Ms GG. Apart from deposing at paragraph 12 of his Affidavit filed 23 July 2015 to an incident on Christmas Day 2013 when he says the father was both angry and aggressive in the child’s presence, his evidence as to the particular incidents referred to by the mother was limited to what he said was the aftermath of a road rage incident early in the marriage and the father’s boasting about punch-ups with people including a neighbour.

9. Both the maternal grandmother and the mother’s brother Mr BX were extremely negative about the father. To the extent that when the maternal grandmother was asked in cross-examination whether the father loved the child my impression was that she attempted to avoid making that concession albeit she ultimately agreed that both the father loved the child and the child loved the father.  

10. The mother’s brother Mr BX was more openly critical of the father and readily admitted that he did not like him.

11. Although Mr X’s evidence was not quite as openly hostile as the evidence of Ms X or their son Mr BX, I was still left with the impression that he also had a negative view of the father. Whilst they might not have been intending to deliberately mislead, I am satisfied that their evidence was coloured by their negative view of the father and on that basis I found it to be less reliable.

12. The father was for his part open about his dislike of the mother’s family however I was not left with the impression that his dislike had coloured his evidence to the same extent as that of the mother and her family.      

13. The mother’s case is that the incidents on 6 December 2013 and 12 December 2014 are further examples of the father’s lack of control and pattern of both violent and abusive behaviour. I will turn first to the incident on 6 December 2013. The mother deposed at paragraph 117 of her Trial Affidavit that on Friday 6 December 2013 she “… went out for dinner after work with a friend from work”. That friend was Mr P. The mother said that she was unaware that the father had installed a tracking device on both her iPhone and iPad to track her whereabouts. It was her evidence that she dropped Mr P home at around 9.30 pm and that when the father saw that her car had been stopped outside Mr P’s home for a few minutes he became angry, put the child into the car and drove to Mr P’s home to confront him. She said that when the father arrived he left the child in the car and chased Mr P onto his property. It is the mother’s case that she immediately went to the father’s car to check on the child and transferred him into her car. She said that she could see Mr P on the ground and the father kicking him in the side of his body. She said that she later found out that the father had punched Mr P in the mouth. It was her case that all of this took place in full view of the child.

14. The mother then deposes at paragraph 119 that she left the child in the car and approached the father and Mr P. She said that she could see that Mr P’s lip was cut and bleeding. She tried her best to calm the situation down and said that she repeatedly asked the father to leave Mr P alone and return home with her. She said the father shouted abuse at her calling her a “fucking cow” and a “fucking bitch” demanding to know where she and Mr P had been and what they were doing. She said that both she and Mr P told the father that they had been out for dinner.

15. The mother says that the father continued behaving aggressively, shouting insults and abuse and pacing around the property picking things up and throwing them at the house, banging on windows and kicking doors. She also described the father picking up a wheelie bin and throwing it at the house. She said that she went back and forth checking on the child and attempting to calm the father down and persuade him to leave. She said when the father moved away she told Mr P to go inside whereby the father climbed over the side fence into the back garden and continued to try and break into the house to get to Mr P, threatening to kill Mr P if he got inside.

16. The father denies that he had installed a tracking device in either the mother’s iPhone or iPad. It was his oral evidence that he used “Find my iPad” to locate the mother when she had not returned home in circumstances he says where the mother had told him that she was going out for drinks or to some kind of charity event and would be home early that evening. The father’s evidence was that he had suspected for approximately six months that the mother had been having an affair. The father said that his suspicions intensified when the mother told him she was in Suburb HH although the Find my iPad app showed her as being in Suburb II.  The father said that at about 9.30 pm the mother told him that she had left and was on her way home but that when she did not arrive he again checked Find my iPad and noticed that her car was stopped not far from home. At that time the father said that as well as being suspicious he also became concerned about her having had an accident and took the child, got in his car and went looking for her. There is no evidence of any tracking device as such being installed on either the mother’s iPhone or iPad and the father’s explanation had a ring of truth to it. I prefer his evidence thus far.

17. In his Affidavit filed 17 August 2015 the father gave general evidence as to the events of 6 December 2013 however counsel for the father applied for and obtained a certificate pursuant to s 128 of the Evidence Act and sought leave to adduce further evidence in chief in relation to both this incident and the incident on 12 December 2014, which I granted.  I reserved my reasons. These are those reasons.

18. It was submitted by counsel for the father that although the father did refer in his Affidavit filed 17 August 2015 to the incidents on 6 December 2013 and 12 December 2014 he had not wanted to give detailed evidence with respect to those incidents in the absence of a certificate. It was in those circumstances where the father now wanted to give more detailed evidence in relation to these incidents that counsel for the father applied for a certificate pursuant to s 128 of the Evidence Act.

19. Section 128 of the Evidence Act applies in circumstances where a witness objects to giving evidence on the ground that that evidence may tend to prove that the witness has committed an offence. The Court must determine whether there are grounds for that objection. 

20. On 17 September 2015 the father was charged with breaching of an Intervention Order made 12 December 2013 and extended on an interim basis on 12 March 2015 and threats to kill arising out of the incident at Suburb O Beach on 12 December 2014.  These are serious offences. Counsel for the father submitted that although the father has not been charged with any offences arising out of the incident on 6 December 2013 it is not necessary for the prosecution to finalise the charges until the matter is listed for hearing which clearly will be after the father had given his evidence in this case. Not only is the father already facing serious charges but there is also in those circumstances the possibility of further charges in relation to both the 6 December 2013 and 12 December 2014.

21. I am satisfied that there was a very real risk that any further evidence given by the father, either by way of evidence in chief or cross-examination, might incriminate him in relation to the existing charges or any further charges that might be laid and that in those circumstances his objection was made on reasonable grounds. It was on that basis that I granted the certificate he sought.

22. The evidence the father gave was quite detailed and that detail lent some weight to that evidence.

23. The father says that when he located the mother’s car it was parked in a service lane in JJ Street, Suburb O with the lights out.  He says he then noticed the door being flung open and the person he now knows to be Mr P sprinting to a door which was at the side of the house. The father said he ran after Mr P asking him who he was and what was going on and trying to grab hold of him. Although the father said he was “carrying on like a pork chop” at that time and was not proud of his behaviour and that he remembered Mr P being on the ground he denied either punching or kicking Mr P. It was his evidence that although he had suspected the mother of having an affair prior to this incident he had not suspected that she was having an affair with Mr P. The father was cross-examined at some length about this incident and was able to describe the location and layout of the house in particular that Mr P went to a door which was at the side of the house and that the child would not have been able to see him from that viewpoint.  It was not put to him that his description of the location and layout of the house was not accurate.

24. Although the mother went out of her way to make the point that she and Mr P were not having a relationship, this does not sit particularly well with their reaction when the father arrived that night. One possible explanation for their reaction, in particular Mr P jumping out of and running away from the car, is that both the mother and Mr P knew that they were in a situation that would be difficult to explain. One explanation for Mr P not calling the police if, as he says, he was concerned for his safety and that of the mother is that he and the mother were very conscious of being caught in a compromising situation that the mother could not explain to the father or that Mr P could not explain to his wife.

25. My criticism of the mother is not so much that she may have had some kind of relationship with Mr P which she well knew would be of concern to the father, but her total lack of insight or any acknowledgement of the part her behaviour may have played in the events that followed. For example the mother told Ms D that the reason the marriage broke down “… was that she was aware that the child was growing up in an environment where he may learn that controlling behaviour such as that demonstrated by [the father] was normal. She stated that while it was only her being impacted by [the father’s] behaviour she could manage, but once she believed it was impacting on the child she felt that she needed to take this step”. I am satisfied on the balance of probabilities that even if there were problems in their marriage, ultimately the trigger for the breakdown of the marriage was the events of 6 December 2013 when the father found the mother sitting in the car with Mr P. Some acknowledgement by the mother of the part her behaviour may have played in the breakdown of the marriage would have given me significantly more confidence in her evidence generally.

26. There are a number of other aspects of the evidence of both the mother and Mr P in relation to this incident which cause me to question, if not the accuracy of their evidence, the possibility that it may with the passage of time have taken on new significance. They include the following matters:

    (a)why if Mr P had been told about the father’s temper, as he said he had been, that he would leave the mother to the mercy of the father;

    (b)why Mr P would have remained inside and not come to the mother’s rescue or at the very least called the police;

    (c)why the mother would have stayed outside Mr P’s home with the child in her car rather than leave if she was as fearful of the father as she now says she was or his behaviour was as she described or she was concerned about the child’s exposure to the father’s alleged behaviour, particularly in circumstances where it is her case that the child could see what was happening; and

    (d)why if as the mother says the father was assaulting Mr P did she not call the police particularly so in circumstances where she deposes to the father having a lengthy history of violent and abusive behaviour.

27. Although at the hearing Mr P produced photographs he said he took of the injuries he said were caused by the father that evening (Exhibit M3), I note that this was the first time, now almost two years after the incident, that these photographs had been produced and that there was no evidence to support his assertion as to when he said the photographs had been taken. In all of the circumstances I am not satisfied on the balance of probabilities that these were photographs of injuries Mr P sustained as a result of an altercation with the father on 6 December 2013. 

28. The mother says at paragraph 122 of her Trial Affidavit that upon returning home the evening of 6 December 2013 the father “was extremely violent and aggressive towards me, swearing abuse, ranting and raving, calling me a ‘slut’ and standing very close, spitting on my face as he shouted”. She said that although it was about 10.45 pm the child was still awake, she says kept awake by the father’s screaming and shouting. She said that the father grabbed her by the arms and shoulders and shook her then started to push her against the kitchen bench and the chairs and tables. The father then took her handbag, tipped it upside down emptying out its contents, took her mobile phone which he put in his pocket and then proceeded to jump on her handbag.

29. The mother deposes at paragraph 123 of her Trial Affidavit that she put the child in their bedroom which was further away from the kitchen and therefore safer and quieter and lay down next to him. She said that the child was shaking and crying and that she stroked his head and reassured him. At paragraph 124 the mother says that after about 15 minutes the father pushed the bedroom door open, strode towards the bed, put both his hands around her neck and said that he was going to kill her. It was her evidence that he squeezed tightly for six to seven seconds, enough to heavily restrict but not entirely cut off her air flow. She said that she was cuddling the child at the time who just lay there, staring into her eyes, frozen with fear. The father then squeezed a bit harder before letting go and walking away. She said that the child started crying after the father left the room and said to her “I thought he was coming for me then, Mummy. Is he going to kill me too”. She said that she then started to cry and cuddled the child until he fell asleep.

1. The LEAP Incident Summary Report dated 7 December 2013 produced by Victoria Police pursuant to subpoena with respect to the events of 6 December 2013 (Exhibit F1) makes no mention of either Mr P being assaulted or the assault of and/or threats to the mother later that evening. It is hard to imagine why the mother, having decided to report the matter, she says because she was fearful of the father, would not give the police a detailed history of what had occurred.

2. At paragraph 125 of her Trial Affidavit the mother said that she was lying with the child when her parents, who had driven from T Town after the father called them, knocked on the front door. She said that they all went into the front room of the house where the father spent the next two to three hours calling her foul names in front of her parents who she says sat silently because they were too scared to make the father’s already volatile mood any worse. She said at paragraph 129 of her Trial Affidavit that eventually the father became too tired to continue and told her parents to leave which they reluctantly did. She said that she then went to bed with the child and did not see the father again that night.

3. Ms X deposes at paragraph 16 of her Affidavit filed 21 July 2015 that she and Mr X were in bed on the evening of 6 December 2013 when they received a phone call from the father “making wild accusations about [the mother] and that she had been cheating on him”. Mr X deposes at paragraph 44 of his Affidavit filed 21 July 2015 that the father was in “a wild state” and wanting to vilify the mother. Ms X said that she and Mr X were so concerned for the mother’s and the child’s safety that they got in their car and drove to Melbourne arriving at about 2.00 am. She said that they “sat in the lounge room with [the mother] while [the father] vilified her and told us that he was going to do whatever he could to destroy her reputation, saying it was all on the iPad. It was horrible to sit there listening to such vile comments about our own daughter”. Ms X’s evidence that the father was making wild accusations about the mother having an affair and Mr X’s evidence that the father was wanting to vilify the mother would appear to be predicated on the fact that the mother was not having a relationship, sexual or otherwise, with Mr P which is somewhat at odds with the messages passing between them and my findings based upon those messages.

4. Ms X deposed at paragraph 21 of her Affidavit that the child had told her that “Daddy had his hands around Mummy” and demonstrated a choke hold on his neck. She did not say when this had occurred. Mr X deposed at paragraph 39 of his Affidavit that on one occasion just after the father and mother separated the child said words to the effect that “Daddy was bad to mummy. He had her by the throat and was shaking her like this”. However, notwithstanding their evidence about the father’s vile comments about the mother and his threats to destroy the mother, immediately following this alleged incident neither Mr nor Ms X made any mention in their Affidavits of being told by the mother of the father having put his hands around her neck and threatening to kill her. This raises a number of issues. Firstly in my view an incident of the kind described by the mother is not something one would forget if it had been discussed by the mother.  Secondly, whether the mother told them exactly what had occurred or not it is difficult to understand why, if the father’s behaviour had been  so aberrant and they thought that either the mother or the child were at risk, they left her in Suburb O with the father and returned to T Town.

5. Ms D reported at paragraph 64 of the Family Report that during her discussions with the child he “stated clearly that his father got angry and he could relate information which would indicate he had witnessed some very concerning behaviour. He described cuddling with his mother in bed when his father came in and put his hands around his mother’s neck. He said he heard him say ‘I’m going to kill you’ to her and he said he was scared as he thought he was going to kill him as well”. Ms D also reported at paragraph 65 that the child “… gave accounts of how he has had tried to tie string across the front door so that his father can’t get into their house and hurt them, how he has placed a sign on his bedroom door stating ‘no people allowed’ which he said was so that his father wouldn’t come in. He described offering his father his piggy bank thinking that if he were to give him his money his father might leave them alone and he described putting chairs under door handles so that his father can’t get in”.  The child also stated “… that his father got angry ‘with everyone’ and told how one night his father hurt his friend (meaning Mr P). He said he was calling to his father to stop but he wouldn’t. He described watching this from the car”.

6. It would of course be very concerning if the child had witnessed these incidents, however I am also mindful of the fact that at the time of this incident, almost two years before he was interviewed by Ms D, he was only four years of age. During cross-examination by counsel for the mother, Ms D described the child as recounting a series of events, including this particular incident, early in the interview process but observed that he did not appear scared and his body language did not change when he recounted what he was describing as something that made his fearful. Although Ms D said that she could not say that the child had been coached, she did make note of the consistency between the child’s description of this incident and the mother’s description of the same incident.  I have also had regard to Ms D’s evidence at paragraph 67 of the Family Report that when she asked the child why he said that if he spent too much time with his father, his father would get angry with him, he told her that was because the mother had told him that.

7. Ultimately of more significance for the purposes of the determination I must make is that, as opined by Ms D at paragraph 63 of the Family Report, what the child said was in stark contrast with what she observed of his interaction with the father. In these circumstances I am satisfied that I should view with some caution what the child said about the events of 6 December 2013 and his alleged fear of the father.  

8. The mother says in her Trial Affidavit that the day after the events of 6 December 2013 the father was still angry, accusing her of having an affair and demanding to know who she was sleeping with. She deposes at paragraph 130 that:

   At this point, I had to do anything I could to remove the trigger (me) from the situation and give him the time and space he needed to calm down. I also needed to clear my head to talk to my brother to seek advice on how I should handle this situation. I was very unsure of what to do. I told the [father] I was going out for an hour. He asked if I was taking the child and I said I would. The [father] then forbade me to take him. I believed that so long as I was not there, the [father] would be calm, and ok to leave the child for a short time.

9. The mother describes driving away, calling her brother and checking that Mr P was okay. Although the mother said she spoke to her brother for some time and that he told her she should go and get the child because he believed that both she and the child were in danger, he in my view somewhat surprisingly makes no mention of her doing so in his Affidavit filed 23 July 2015. To the contrary he deposes at paragraph 30 that “... he was not around on the weekend of [the mother]’s separation when the violence occurred and she was required to flee the family home”. The mother said at paragraph 132 of her Trial Affidavit that feeling panicked, she rushed home to get the child. She also said that during the time she was away the father texted her several times demanding that she return home and also drove to her brother Mr BX’s home with the child, looking for her. The mother does not actually say where she had been or what she had been doing, other than to say that she “drove a few streets away”, and I was left with the impression from her evidence that she was not gone for particularly long.

10. The father’s evidence is that the mother left early the following morning and did not return until approximately 4.00 pm and that she left again shortly thereafter. The mother’s evidence about where she went during the early part of the day and for how long is unclear and any suggestion that it was for an hour or so is not consistent with the evidence with respect to the father driving with the child to her brother’s home, which based upon the address in his Affidavit is in Suburb KK, a significant distance from the former matrimonial home in Suburb O.  I am satisfied on the balance of probabilities that the mother left the child in the father’s care for a significant part of the day following the incident on 6 December 2013. In my view the fact that she did so is not consistent with her evidence as to what occurred the night before and the threat she says the father posed and still poses both to her but more importantly, for the purposes of the matters I must determine, to the child.   

11. The mother’s evidence is that when she returned home the father was still angry and was both abusive and threatening. She said that when she attempted to take the child the father followed them, swearing at her and attempting to remove the child from her arms when she would not obey his command to return home.

12. It was the mother’s evidence at paragraph 136 of her Trial Affidavit that the father screamed at the child “[w]hy don’t you ask your Mummy why she killed your brother and ask her if she’s going to kill you too?” and that this was the first time the child had heard that he had a twin. This was denied by the father. It is also not consistent with Ms D’s unchallenged evidence at paragraph 37 of the Family Report that the mother had told her that:

    … the child had asked her if she had killed his brother. When asked why he would ask such a question the child told her that his father had told him that. This was how the child learned that he was a twin and that his brother H had died. [The mother] was alarmed that [the father] would say such a thing to the child and commented that it was another example of his desire to cause her harm.

13. The mother said that she spent some four to five hours providing the police the details of what had occurred which, if one accepts the LEAP Incident Summary as an accurate report of what the mother told the police, did not as previously discussed include any allegation of either the father assaulting Mr P or the incident where she said the father put his hands around her throat and threatened her. It is her evidence that she took the child with her when she went to Suburb Y Police Station and that the child was with her while she was speaking to the police.

14. The mother said that although the police recommended that she press charges, she was fearful of further provoking the father and decided instead to accept the offer of a police escort to the home to collect their belongings and to then take the child to her parents’ home in T Town where they would be safe until Monday when the courts would be open and she could apply for an intervention order. 

15. The mother deposed at paragraph 140 of her Trial Affidavit that during the time she was at Suburb Y Police Station she continued to receive text messages from the father demanding to know who she was having an affair with and, when he thought he had discovered who it was, making threats to cause him trouble.  

16. The mother deposes at paragraph 145 of her Trial Affidavit that on 8 December 2013 the father sent her a text message telling her that he wanted to see the child but that her parents did not want him in their home. The father drove to T Town and turned up at her parents’ home unannounced. Mr and Ms X both depose that the father made very derogatory comments about the mother in front of the child, threatening to ruin her reputation and make her lose her job and that he also threatened to remove the child from their lives. Both the mother and her brother also depose to the father’s hostile and aggressive behaviour when he spent time with the child on Christmas day in 2013.

17. Although the father’s version of what happened when he travelled to T Town to spend time with the child on this occasion differs markedly from the mother’s version, even if I were to accept the mother’s version of events I am also conscious of the fact that this was shortly after separation and arguably, whilst not excusing the father’s behaviour, would need to be viewed in that context.

18. The mother also relied upon the evidence of two friends Ms DD and Ms CC who depose to having been approached by the father immediately following separation. Ms CC, who had been the mother’s supervisor when she worked in the Public service, deposes at paragraph 5 of her Affidavit filed 21 July 2015 that prior to the father coming to her home in December 2013 she had only met him on two occasions. She said that although on each of those occasions he had presented as charming and pleasant, when he arrived at her home he was behaving in an aggressive and agitated manner.   

19. Ms DD deposes at paragraph 2 of her Affidavit filed 21 July 2015 that she had known the father for some 10 years and that they had seen each other socially during that period. Although she was more critical of the father’s behaviour during that time, I was left with the strong impression having heard her give evidence that her evidence was coloured by her support for the mother’s case and was likely to have been influenced not only by what had occurred on 14 December 2013 when the father had visited her home and her understanding of the breakdown of the marriage but also by what she now believes occurred during the marriage generally.

20. Ms DD deposes at paragraph 21 that on 14 December 2013 the father arrived at her home out of the blue and that when he burst into tears she invited him inside. She described him as vacillating between being in tears and being verbally agitated and erratic in his conversation. She said that he tried to pull himself together but could not regulate his emotions. She said that the father described having tracked the mother and said that he was gleeful when he described finding the mother in her car with Mr P and that he had graphically described pulling Mr P out of the car and punching him in the face. Ignoring for the moment that the father disputes Ms DD’s evidence, even if the father had said this to Ms DD it is not what occurred on either the father’s version or what the mother and Mr P say occurred.

21. Although the father’s version of visiting both Ms CC and Ms DD differed from their versions, what is clear from all three versions is how upset the father was both when he believed his wife was having an affair and when, at least from his point of view, it was clear that was the case and that Mr P was the person she was having that affair with. As opined by Ms D, whilst this would not excuse the father’s behaviour it does put it in context.

22. Although the mother deposes to there being a pattern of ongoing abuse and aggression, the next significant incident she deposes to is the incident in Suburb O beach on 12 December 2014 some 12 months after separation.

23. The mother’s evidence at paragraph 167 of her Trial Affidavit is that the father “… saw me lying on the beach with [Mr P]… The [father] was abusive and insulting to me in front of many onlookers. He assaulted [Mr P] and threatened him”. In the statement she made to the police on 21 April 2015 which is annexed to her Trial Affidavit the mother says as follows:

    …

    [Mr P] and I were laying on the sand sunbaking facing the water when I saw [the father] walking towards us; he was probably 10 metres away when I noticed him. He was pushing his bicycle through the sand.

    I turned to [Mr P] and said “Oh crap, he’s here”. [Mr P] knew I was talking about [the father] because there had been previous family violence issues between myself and [the father] where [the father]  had become very aggressive and gets very jealous of [Mr P].

    As [the father]  got within 3 metres of us he dropped his bicycle, took his helmet off and took his watch off. He always takes his watch off when he wants to be physically aggressive towards someone; I have seen him do this many times in the past.

    [The father]  walked over to us and kicked [Mr P’s] feet and kicked sand in his face before we could both stand up. [The father] said “you fucking bitch, I just rode past your house and saw your car was there and thought that was unusual, and now I find you here”. [The father]  was about a metre away from me. I said to him “Please just go away”. He said “I have every right to be on the beach, it’s a public place”. I said “Please don’t do this, please leave us alone and go away, don’t make a scene”. [The father]  said “I can do whatever the fuck I like”.

    [The father]  has continued to be very abusive, swearing and screaming at me. He gets very jealous when I am with other men.

    He turned to [Mr P] and said “If you go anywhere near my son I will kill you, I will stab you with a knife”.

    [Mr P] said to him “Is that a threat?”

    [The father] said “No it’s not a threat, it’s a promise, and I am definitely going to do this, I am going to put you in hospital”.

    [The father]  has then turned back to me and said “I am going to kill you, you are so arrogant, I am going to kill you, I am going to chop you up into tiny pieces, you will be so sorry”.

    I asked [the father]  to move away from where we were standing so we weren’t in full view of the public. We walked to the back of the beach where the bathing boxes on the beach are. [Mr P] stayed where we originally were as [the father] becomes more aggressive when [Mr P] is around due to jealousy. [The father] continued to state that he was going to “ruin me” and that if [the child] wasn’t with me, he should be with him. We were speaking about our son and I managed to calm him down by asking “what do you want to know? I’ll tell you whatever you want to know”. I then told him where [the child] was and what [the child] was doing. I then pleaded with him to go home and leave us alone.

    [The father]  then walked back down towards his bicycle when he saw [Mr P] speaking with three witnesses who were sitting nearby and saw the incident. I could see [the father]  was starting to get aggressive with [Mr P]. I went down towards them to try and talk [the father] down and get him to leave.

    He eventually got on his bicycle and left.

    I sat back down on my towel to collect my thoughts for a few minutes. I was trembling and shaking. I am genuinely scared of [the father]  and what he might do. [Mr P] encouraged me to speak to the three witnesses that saw the incident to get their details. I was really embarrassed to do it, but I did. They said they would be happy to make a statement and be witnesses and typed their full names and mobile numbers in my phone.

    [The father]  clearly breached the conditions of the intervention order that is in place. I am fearful for my life that he may follow through with the threats to kill me.

24. Mr P made a statement the same day along similar lines which is annexed to his Affidavit filed 21 July 2015. In that statement he said as follows:

    …

    As [the father] was walking towards us he was ranting saying to [the mother] “what the fuck are you doing here, where is my son?” [The mother] straight away was saying “He is at [T Town] with my parents, please leave us alone”.

    He walked around to me feet and kicked me in the ankles. [The mother] and I both stood up and [the father] has flicked my cap off my head. He was getting very close and aggressive towards [the mother]  and I. I was putting my hand up so he couldn’t come any closer and he was saying “Don’t you touch me”.

    During this time [the mother]  was trying to talk him down and answer some of his questions about where their son was. [The father]  was responding saying things such as “If he is not with you, he should be with me”.

    [The father]  was being very abusive and aggressive towards us both and was making rude remarks about [the mother]’s physical appearance and that she was a terrible person.

    He said to [the mother]  that he was going to ruin her for what she had done and that he was going to “Chop her up into little pieces”. He was threatening to kill her.

    He also threatened me that if I ever went near his son he would “come get me” or something along those lines. I said “Is that a threat”? [The father] said “No it’s a promise”.

    [The father] was within 1 metre of [the mother] and myself at this time.

    [The mother] and [the father] went to the back of the beach where the bathing boxes are. I knew she wanted to get him away from people and not create a scene. She probably wanted to get him away from me as he has hit me in the past.

    I went across and spoke to two females and 1 male who were nearby on the beach and witnessed what had happened and apologised for the scene.

    [The father]  then came back towards me and the two females and male I was talking to and started ranting again saying to them “Do you know what these people have done? They have broken up families”.

    …

    [The father] continued to rant and be abusive but eventually walked towards his bicycle and left.

    [The mother] and I then sat down for a few minutes. [The mother] looked very scared and embarrassed. I encouraged her to talk to the male and females that were nearby to get their details as witnesses which she did.  

1. In all of the circumstances I cannot be satisfied on the balance of probabilities on the basis of the evidence before me that either party had savings prior to the commencement of cohabitation and even if they did how they were applied.  

Employment History and Contributions During the Marriage

1. The mother’s case is that although she was engaged in paid employment during the marriage save and except for a period of approximately 11 months of unpaid leave following the child’s birth, the father’s employment during the marriage was spasmodic. There is no dispute with respect to the mother’s employment. The issue in dispute is in relation to the father’s employment and in particular between 2005 and mid-2010. During that period the father firstly opened his own sales business and thereafter in 2007 established an internet business. The father in his Affidavit filed 17 August 2015 at paragraph 38(f) deposed to having sold 40,000 items at a price of $30 each and that the cost price was about half of the sale price. As pointed out by counsel for the mother, this would amount to sales of $1.2 million and earnings after the cost of the items of $600,000.

2. The father was asked to produce his personal income tax returns for this period and counsel for the mother relied upon those returns for the financial years ending 30 June 2008, 2009 and 2010 (Exhibit M18) in support of the mother’s case that contrary to the father’s evidence, the internet business venture had not been successful and that the parties had been dependent upon the mother’s income during that time. The 2008 return discloses a loss of $3,695. The loss in that case was referable to a deduction for interest. In 2009 the loss was $7,030 which was again  referable to interest deductions and again in 2010 the father claimed a deduction for interest of $6,017 and a loss of the same amount. The difficulty with this evidence is that the tax returns are the father’s personal returns. Although it would be reasonable to expect that if the internet business had been conducted in his personal name that would have been reflected in his personal tax returns, there is no reference in the father’s tax returns to the business. In those circumstances all I can conclude on the basis of his personal income tax returns is that he did not receive an income from the internet business during the relevant period. It is not possible on the basis of the tax returns to make any findings as to the profitability or otherwise of the internet business if as it appears it may not have been conducted in his name.    

3. However, whether or not the business was or was not profitable is in any event not necessarily the determining factor. As Murphy J said in Baglio & Baglio [2013] FamCA 105 at paragraph 236:

   It is important to bear in mind that justice and equity does not require every action or inaction by a party (or, indeed, every post-separation dissipation of money or property by a party) to be brought to account in arriving at orders pursuant to s 79. Each marriage and its post-separation aftermath is productive of circumstances that point to a contrary conclusion: marriage partners can be seen, up to a point, to take the good with the bad. Post-separation, parties in this Court are, generally, much more enthusiastic about sharing gains rather than losses and about taking credit for the former and attributing blame for the latter…

4. Although the mother asserts that she tried to persuade the father to return to paid employment after he left Company NN in 2005, the inference being that she was not in favour of him setting up his own business, it is her evidence at paragraph 28 of her Trial Affidavit that father relied upon her income and her labour to purchase the material for the internet business. This is in my view suggests a joint endeavour and I have little doubt that if the venture had been successful the mother would be seeking a share of the gains and claiming credit for her contributions.

5. Although the mother deposes to there being nothing to show from the father’s business, she does not assert nor is there any evidence to suggest that the father did not intend and work towards making the business successful. That his efforts were not fruitful does not make them necessarily of any less value than those of the mother.

6. It is also the case that when the mother was not working following the child’s birth and the father needed to find paid employment, the father started working on contract for K Institute. Not only did he obtain employment, but that employment required him to travel to and from Canberra on a weekly basis. This is not consistent with someone who was not prepared to work or contribute to the needs of his family.  

7. The fact that the whilst the mother worked and earned an income during the financial years ending 2008, 2009 and 2010 whereas the father did not disclose an income does not in my view lead to the conclusion that the mother’s contributions should be given greater recognition. There is no evidence to suggest that the father did not try and make the internet business work. During a marriage parties make all kinds of decisions which they anticipate or hope will be for their mutual benefit and the benefit of their family unit. Although those decisions do not always have a positive outcome the success or failure of whatever course they have embarked upon does not necessarily define their contributions. If that were the case arguably the contribution of a breadwinner would always receive greater recognition than that of the homemaker which is clearly not what the Act envisages.

Father’s Inheritance

1. The father deposes that he inherited $15,000 from the estate of his late grandmother during the marriage. The mother conceded in cross-examination that the father had received an inheritance but said, almost it seemed as an aside, that she thought it was $5,000 not $15,000. I was not left with the impression that the mother had any clear recollection or knowledge of the inheritance and that she was seeking to downplay its significance. In all of the circumstances I prefer the father’s evidence about his inheritance.

Other Contributions During the Marriage

1. The mother deposed at paragraph 21 of her Trial Affidavit that she and the father lived in her grandmother’s home rent free following their marriage for approximately 10 months she said saving approximately $350 per week on rent. Although there was some dispute as to the exact period the parties spent living rent free in in the mother’s grandmother’s home and what if any benefit that was to them the father did not dispute that they did live in the mother’s grandmother’s home following their wedding. It was not clear from the mother’s evidence how she calculated the figure of $350 per week nor was there any evidence to support her assertion. Although I am not satisfied that I can or should place a monetary value on this contribution as the mother purports to do, I am satisfied that this is a contribution on the mother’s behalf which is relevant for the purposes of the assessment I must make of their respective contributions.

2. The mother also sought to rely upon what she said at paragraph 39 of her Trial Affidavit was the $20,000 she and the father had saved because of her parent’s generosity, allowing she and the father and the child to live rent free in a separate area of their home for approximately 18 months between 2012 and 2014. The mother had attached a letter to her Trial Affidavit from a Ms OO, Property Manager of PP Real Estate, advising that “… in our opinion based upon the current rental market we would expect to achieve a rental figure of approximately $250.00 per week to rent the top half of the above mentioned property”. Leaving aside the fact that the letter is hearsay and on that basis not admissible and that it is not clear from the letter whose opinion is being expressed, even if the figures were to be accepted, arguably as the parties maintained their own residence, only living part of the week with the mother’s parents, it was not really a question of saving on rent.  

3. In my view the real benefit to the parties during this period was not the money the mother suggested they had saved on rent but the benefit of having the mother’s father care for the child whilst the father and the mother were at work. Once again the mother attempted to quantify this benefit by reference to the cost of child care in Melbourne or the employment of a nanny. Assessing the parties’ respective contributions is not a mathematical exercise and even if the mother had adduced evidence of the cost of child care or the employment of a nanny I am not persuaded that it would be appropriate to treat the mother’s father contribution as a monetary contribution. That being said it is a contribution on behalf of the mother and I have had regard to it. Although the mother’s father conceded that he had never asked for payment it does not follow that it is not a contribution to which the Court should have regard.  

Post Separation Contributions

1. It was the mother’s case that  not only had she earned more than the father during the marriage but that, even after returning to work she had also taken a greater role in the child’s care than the father during the marriage. Counsel for the mother also submitted that the mother’s contributions should be given greater weight based upon her post separation contributions and in particular the fact that she has been responsible for the child’s physical care and financial support since separation. Although it is the father’s case that he would have preferred to spend more time with the child, the reality is that the mother has been primarily responsible for his physical care and almost entirely responsible for his financial support, including private school fees, other than at those times when he has been in the father’s care.

2. The father has not been in permanent paid employment since separation and although he said in cross-examination that he had built a couple of Apps and recently a website, even on his own case he has earned very little and has paid the minimal in child support.   Although the father did not dispute the mother’s evidence that she had been caring for the child, he said on a number of occasions during his evidence he had contributed financially to the child’s care on the basis that the mother had had the benefit of the proceeds of sale of shares and her redundancy package and had had the benefit of living in the former matrimonial home without making any mortgage payments. In my view the fact that the mother may have had the benefit of these monies to the exclusion of the father is a matter the Court can consider as part of its consideration of the s 75(2) factors but does not alter the fact of both the mother’s physical and financial contribution to the child’s welfare. That contribution of the mother is in my view a matter to which I should and have had regard.

3. At the commencement of the case, as referred to, the mother sought reimbursement of the amounts to which she said she was entitled pursuant to paragraph 10(b) of the order made 26 March 2014. Although the father conceded that the mother should be reimbursed for half of $4,830, I am satisfied that there were other payments made by the mother to which I should  have regard notwithstanding that the order did not require them to be reimbursed. Although I do not propose nor in my view is it appropriate to identify each and every payment or to give the mother’s contribution a dollar value I have taken these payments made by the mother into account as part of her post separation financial contributions.

Conclusion with Respect to the Parties’ Contributions

1. The Act does not require me to assess each aspect of the parties’ contributions either financial or otherwise, however although there is no presumption of equality I am satisfied based upon my findings that neither party having any assets of any significance at the commencement of cohabitation in effect started from a position of equality. Thereafter they both worked and contributed their income to their joint endeavour during the marriage, including acquiring a number of properties. Although I am satisfied that the mother earned more than the father over the length of the marriage and particularly during those years when the father was working to establish his own business I am not satisfied that in all of the circumstances of this case this adds to the weight to be given to the mother’s contributions.

2. I have had regard to the fact that the father and the mother had the benefit of rent free accommodation in the mother’s grandmother’s home and significant assistance with the child’s care when they were both engaged in paid employment and the child was cared for by the maternal grandfather. I am satisfied having heard the parties’ evidence and that of the mother’s family members that in this case the assistance provided by the mother’s family was almost certainly made to benefit the mother and the child not a contribution made for the benefit of both the father and mother in recognition of their relationship with not only their daughter but also their son in law. Although as I have observed it is neither necessary nor appropriate, or for that matter possible on the basis of the evidence before me, to attribute a monetary value to the assistance provided by the mother’s family on her behalf, nonetheless the contributions made by the mother’s family on her behalf are matters to which I have had regard in making my assessment of the parties respective contributions.

3. I have also had regard to the inheritance of $15,000 which I have found was received by the father mindful of the fact that it is not a large inheritance and that it is not clear on the evidence before me when it was that he received that inheritance or how it was applied other than it being asserted on behalf of the father in his case outline that it was applied to the acquisition, conservation and improvement of the property of the marriage and welfare of the family.

4. I am satisfied that after the father returned to paid employment following the child’s birth and before the mother’s return to work, she made a significantly greater contribution as a homemaker and parent however once she returned to employment I am satisfied that both the father and mother contributed to the welfare of the family and the child’s care until their separation. Following their separation and of necessity given the arrangements for his care, the mother’s contribution to the child’s physical care and welfare, including her financial contribution to his care, outweighs that of the father. That is not to minimise the importance of the father in the child’s life.

5. The mother says that their respective contributions should be assessed as to 60/40 in her favour. Although I am satisfied that the balance of the parties’ contributions both during the marriage and post separation favour the mother, I am not satisfied that the percentages should be as submitted by the mother. Weighing up the parties’ contributions is not a mathematical exercise nor is the court required to attribute a value to each and every aspect of their respective contributions or by reference to whether that contribution was made during the marriage or post separation. In all of the circumstances, having considered all the evidence and weighed up the myriad of the parties’ contributions both during the marriage and post separation I assess the contributions of the parties to be 55/45 per centum in the mother’s favour. This produces a disparity in their respective entitlements (excluding superannuation) of 10 per centum which is in real terms is a differential of  $84,040 or $90,540 depending upon the valuation of Suburb Q, which is not insignificant given the size of the asset pool. I am satisfied that this is a just and equitable recognition of their respective contributions.

Section 75(2) Factors

1. The father is 46 years of age. He is in good health. He does not currently have a new partner.

2. The mother is 40 years of age and is similarly in good health. She is in a relationship with Mr P although they do not presently live together.

3. Pursuant to the orders I propose to make the child will be living with the mother and spending significant and substantial time with the father.

4. The mother deposes at paragraph 23 of her Trial Affidavit that prior to 2005 when the father left his employment in order to set up his own business he was employed as a Manager for Company NN earning approximately $150,000. I have already referred to the evidence with respect to the father’s income in the financial years ending 2008, 2009 and 2010 when he was running his own business. As previously referred to the father is not currently in paid employment and apart from some limited part time employment has not been in paid employment since July 2013 when his contract with K Institute ended. The mother deposed at paragraph 31 of her Trial Affidavit that during his employment with K Institute the father was paid as a contractor earning $1,400 per day. Although the father disputed that he had earned as much as the mother said, even on his own evidence I am satisfied that he earned over $100,000.

5. The father’s evidence was that he was looking for employment as a web designer and exploring opportunities for his own online business and that he anticipated that he would be making a more substantial income in the future. He has been supporting himself with part time work and has otherwise used his tax return or borrowed money from his parents to support himself since separation. It was his case that the previous arrangements for him to spend time with the child after school each day had impacted upon his capacity to obtain employment. I am satisfied that those arrangements would have been likely to place some limitations on his capacity to obtain full time employment however they should not have precluded him pursuing at least some part time employment. The father has been out of the workforce for many years save and except for the period during which he worked for K Institute and even if I were to accept the mother’s evidence that the father is highly skilled and very employable and he were to obtain paid employment, it is unlikely that he will earn the sort of income he earned when he worked for either Company QQ or Company NN in the early years of the relationship or what he earned when he was last in employment as that is also some years ago.

6. The mother, who was employed in the Public service on a salary of $240,000, was made redundant in the Public service in July 2014. The mother had been employed in the Public service since September 2011 and received a redundancy package of approximately $67,000. The mother was unemployed until March 2015 when she took up a position as a Manager with the M Bank. Her salary at the M Bank was approximately $300,000 per annum. Her employment was terminated in June 2015 and it is her evidence that she has not as yet returned to paid employment. The mother says that she has used the money she received from the sale of shares and the redundancy package she received when she left Public service to support herself and the child prior to obtaining the position with the M Bank and since the termination of her position at the Bank. There is no evidence before me as to whether the mother was or was not actively pursuing employment  after being made redundant in the Public service. There is also no evidence as to what, if any, steps the mother has taken to actively pursue employment since her position with the M Bank was terminated other than that she said, when asked in cross-examination if she had been applying for any positions, that she had not recently made any applications.  

7. The mother was cross-examined about her plans for future employment. Not only were her plans uncertain but her evidence about those plans was sometimes confusing. She said on the one hand that her plans depended on what orders the Court might make with respect to the child spending weekend time with the father because in the event that she was not able to spend weekends with the child, she would consider part time work so that she could spend time with him after school although she also said that would significantly and adversely affect her financial position. This was notwithstanding having said when she was asked about how she would afford the child’s school fees that she would return to full time work. Having said that whether she worked full time or not might depend upon the orders the Court makes, the mother also said that she would in any event be looking for employment pending judgment being delivered and that she would be looking for employment with some flexibility as she had when she was employed by both the Public service and the M Bank. Both of these positions were full time. I am satisfied on the balance of probabilities that the mother is more likely than not, given her employment history and her proposal that the child continue to attend C School, to return to near to if not full time employment.

1. The mother was also cross examined about what income she might expect to be earning. Perhaps not surprisingly she said that as she had now been out of the work force for some time she expected that her salary would not be equivalent to her salary at the M Bank and that it would take time to rebuild.  

2. Whether or not the mother will be earning as much as she has previously earned, I am satisfied that even if the father does obtain paid full time employment he is unlikely to earn as much as the mother.

3. It is the mother’s case that she is unlikely to be in receipt of any child support from the father and in those circumstances will be wholly responsible for the child’s financial support. On her case this would include private school fees as she wants the child to continue his education at C School whereas the father is opposed to him doing so.

4. Although I do not accept that the father will make no contribution to the child’s financial support, I am satisfied that the mother is likely to bear a greater proportion of the cost of the child’s financial support.

5. Both parties made submissions with respect to the money they each retained for their own benefit following separation and the benefit they have had of living in the father’s case in the Suburb Q property and the mother’s case the Suburb O property without making any mortgage payments.  

6. Although the relevant matters were addressed during the hearing there were a number of deficiencies in the father’s Financial Statement filed 4 September 2015. These include his failure to include his pension income in the United Kingdom and of particular relevance to this issue his failure to complete Part M of the form setting out the details of any property he has disposed of. As previously referred to, contrary to the orders made 26 March 2014 which provided that the net proceeds of sale of the T Town property be held in a controlled monies account on behalf of both the father and the mother, those net proceeds in the sum of $11,838 were paid to the father’s solicitors Carew Counsel and applied by them to the father’s legal costs.  The father also retained the benefit of the insurance payout on the motor vehicle registered in the mother’s name following an accident in late July/August 2014 and his tax return. Although the mother alleged that he received $22,601 it was the father’s evidence that the net figure he received after repayment of the loan was approximately $5,700. I accept the father’s evidence.

7. It is also the case that the father lived in the Suburb Q property from early 2014 until October the same year when he rented an apartment in Suburb O to be closer to the child without making any mortgage payments during the time he occupied the property. The father has been paying approximately $1,500 per month rent since moving to Suburb O.

8. The mother for her part received her redundancy package of approximately $67,000 from Public service and retained $80,298 from the sale of L Bank shares.  In her Financial Statement filed 13 August 2015 the mother disclosed savings of $4,013 and in my view it is safe to conclude in those circumstances that the money the mother retained for her benefit is likely to have been spent.

9. As already discussed although it is clear that the father applied $11,838 to his legal fees, the mother’s evidence as to what if any of the monies she has had the benefit of since separation were applied to her legal costs is very unsatisfactory. I am also satisfied that even if the mother had used only income and the monies she retained to meet her living expenses and the child’s school fees, borrowing money from her parents to pay her legal expenses, that is a somewhat artificial distinction. Although I am not satisfied that it is safe to make specific findings as to how the money the mother retained following separation has been applied, I am satisfied that some of those funds are likely to have been applied to meet both her own and the child’s living expenses and his school fees. However in circumstances where the mother claims credit for her greater contribution to the child’s support post separation I am also satisfied that I should have regard to the significant difference in the amounts the parties have each retained post separation that might otherwise have formed part of the divisible pool of property.

10. The father lived in the Suburb Q property until October 2014 and did not make the mortgage payments on that property during that time. The mother for her part has lived with the child in the former matrimonial home in Suburb O since early 2014 and said in cross-examination that she had not made  any mortgage payments since separation.  The mother also conceded that the mortgage balance has increased since separation from $859,144 to $940,992.

11. Having regard to all of these matters I am satisfied that that there should be an adjustment of five per cent in the mother’s favour. The dollar value of that adjustment of the net property (excluding superannuation) is $42,020 or $45,270 depending upon the value of Suburb Q resulting in a total disparity based upon their contributions and the s 75(2) factors of between $168,080 - $181,080 between the parties’ positions.

12. In my view this is not an insignificant disparity in their respective entitlements in real terms in circumstances where the asset pool is also relatively modest and I have found that the mother has had the benefit of a substantial sum that might otherwise have been available for division between them. I have found that the mother has a significantly greater income earning capacity than the father and that she is likely to return to near if not full time employment earning significantly more than the father. However, having regard to the fact that the mother will  have primary care of the child, albeit that he will spend significant and substantial time with the father, and in particular what it is likely to cost the mother to support the child, including educating him at a private school in circumstances where the father has not only made clear his opposition to him attending the particular school but also said that he cannot afford the fees and the mother’s evidence that she would in the circumstances meet the fees herself, I am satisfied the adjustment I propose is in all of the circumstances of this case just and equitable.

Superannuation

1. The father’s case is that there should be a superannuation split equalising the parties’ respective superannuation entitlements. Although it is not clear from the father’s Further Amended Response filed 21 April 2015 whether that should include an allowance for his United Kingdom pension in the absence of a value of that pension it would not be possible for it to be included in that calculation. However it is income received by the father and I have taken that into account.

2. The mother opposes a superannuation split and it is her case that they should each retain their respective entitlements, her entitlement representing approximately 76 per cent of the combined value of their superannuation entitlements excluding the father’s United Kingdom pension. Although not put on this basis this is consistent with her case that she should be entitled to 75 per cent of the non-superannuation property. I have already made findings with respect to the parties’ contributions during the marriage based upon their respective employment or in the case of the father his attempts to establish his own business. Although the wife has clearly made greater contributions to superannuation during the marriage I am satisfied that this is result of two factors. The first is that the mother earned significantly more than the father. The second is that the father was not always in paid employment. In circumstances where I have found the differences in their financial contributions to be part of the ebb and flow of their marriage I am satisfied that the difference in values of their respective superannuation entitlements is similarly part of that same ebb and flow of the marriage.

3. I am not satisfied that that would be just and equitable for the mother to retain the entirety of her superannuation entitlements or that there is any reason why the parties’ superannuation entitlements should be treated any differently to their other property by the adoption of a “two pools” approach. In those circumstances I propose, subject to being satisfied that the trustee of the Plum fund which has the larger value has been afforded procedural fairness, to order a superannuation split so as to adjust the parties’ interests in superannuation in accordance with my findings as to their respective contributions and the s 75(2) factors.  

4. The combined value of their respective entitlements excluding the father’s United Kingdom pension is $241,602 requiring a super split of $40,376 in the father’s favour. On this basis both the father will have superannuation entitlements of $96,640 and the mother will have entitlements of $144,961.  In addition the father would have the income from his United Kingdom pension which I have already taken into account.

Conclusion

1. The parties’ entitlements in respect of their property will accordingly be adjusted to provide 60 per centum to the mother of the total of their property, including superannuation, which will be dealt with as previously referred to by way of a superannuation splitting order.  On that basis if the mother, as she proposes retains the Suburb O property, will need to pay the father $203,603.  I propose to allow the mother one month in which to nominate whether she wishes to retain the Suburb O property. That should give her sufficient time to make the necessary enquiries as to whether it will be possible for her to do so. I will allow her a further 30 days (a total of 60 days) in which to put in place the necessary financial arrangements to discharge the mortgage and make the payment to the father. In the event that the mother does not so nominate that she wishes to retain the property it will at the end of the one month period in which she is to so nominate be immediately placed on the market for sale. In circumstances where the mother has had the benefit of living in the Suburb O property I propose to fix the balance of the mortgage to be repaid by the parties jointly upon sale at $940,992 leaving the mother to meet any shortfall and otherwise divide the proceeds of sale as to 60 per centum to the mother and 40 per centum to the father.

2. An order has already been made for the sale of Suburb Q and I propose to deal with the proceeds of sale of that property and the monies owing to Macquarie Leasing for the European car separately. The father was critical of the mother’s failure to mitigate the loss in relation to the European car. Although I was not satisfied that the mother’s actions or lack thereof had added to the debt to Macquarie Bank in circumstances where it may be possible for the parties to negotiate a reduced amount or more favourable terms I propose to require the mother to authorise Macquarie Bank to both provide information and negotiate directly with the father. I propose to otherwise set aside the sum of $70,000 allowing for the fact that debt is likely to have increased for payment of that debt once a figure has been agreed with Macquarie Bank. Any balance will be divided 60/40 in favour of the mother and any shortfall will be met as to 60 per centum by the mother and 40 per centum by the father.    

3. The father will receive a payment from the mother of $203,603 or 40 per centum of the proceeds of sale of Suburb O after deduction of the sum of $940,992 and 40 per centum of the net proceeds of sale of Suburb Q after deduction of the sum of $70,000 to be applied to the Macquarie debt. I will also deduct from the father’s share of the net proceeds of sale of Suburb Q after provision for the Macquarie debt the sum of $21,855 being the total sum of those amounts to be reimbursed to the mother for the preparation of the Suburb Q property for sale and pursuant to paragraphs 10(b) and 12 of the orders made 26 March 2016.

4. I am satisfied that the orders I propose to make are proper and that in all of the circumstances of the case are a just and equitable outcome.

5. The orders I propose to make, subject to submissions as to the form and the mechanics of those orders, are as follows:

   1.That by 4.00 pm on 6 June 2016 the mother advise the father in writing of her intention to retain the interest in the property situated at and known as N Street, Suburb O (“the Suburb O property”).

   2.That on or before 4.00 pm on 6 July 2016 the mother pay to the father the sum of $203,603 (“the Payment”).

   3.That contemporaneously with the Payment the father do all acts and things required to transfer to the mother all his right title and interest in the Suburb O property.

   4.That in the event that the mother does not nominate in writing of her intention to retain the Suburb O property in accordance with paragraph 1 of these orders:

   a.the Suburb O property be forthwith sold altogether out of Court by private treaty or public auction, the mother having the sole conduct of the sale and conditions of the sale to be determined by the mother, save that the reserve or sale price be agreed between the parties and in default of agreement, the reserve price be determined by the President of the Real Estate Institute of Victoria or nominee;

   b.the proceeds of sale of the Suburb O property be applied as follows:

   i.to pay the costs of and incidental to the sale including agents commission and advertising;

   ii.the sum of $940,992 to the Bendigo Bank in payment of the mortgage encumbering the Suburb O property as at the conclusion of the hearing;

   iii.the balance to be divided:

   1.60 per cent to the mother less:

   a.such sum, if any, as is required to discharge the mortgage encumbering the Suburb O property after payment to the Bendigo Bank pursuant to paragraph 4(b)(ii) herein; and

   2.40 per cent to the father.

   5.That paragraph 18 of the orders made 4 May 2015 be discharged.

   6.That the proceeds of sale of U Street, Suburb Q (“Suburb Q”) be applied as follows:

   a.to pay the costs of and incidental to the sale including agent’s commission and advertising;

   b.such sum as required to pay out and discharge all registered encumbrances over Suburb Q;

   c.the sum of $70,000 to be held in trust by the solicitors for the mother to be applied so as to discharge the debt to Macquarie Leasing upon agreement being reached by the father and the mother with the bank as to the amount to be paid and the terms of such payment;

   d.the balance to be divided:

   i.60 per cent to the mother; and

   ii.40 per cent to the father less:

   1.the sum of $19,000 to the mother as reimbursement for half of the costs of preparing Suburb Q for sale;

   2.the sum of $2,415 to the mother as reimbursement for the amounts owed to her pursuant to paragraph 10(b) of the orders made 26 March 2014; and

   3.the sum of $440 pursuant to paragraph 12 of the orders made 26 March 2014.

   7.That the mother forthwith authorise Macquarie Bank in writing to provide all an any information and negotiate with the father with respect to the mother’s debt to Macquarie Bank.

   8.That paragraphs 9 to 12 (inclusive) of these orders are binding on the Trustee of Plum (“the Fund”).

   9.That the base amount of $40,376be allocated to the father out of the interest of the mother’s interest in the Fund.

   10.That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) a splittable payment becomes payable in respect of the mother’s interest in the Fund, the wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.

   11.That paragraphs 9 and 10 have effect from the operative time.

   12.That the operative time for the purposes of paragraphs 9 and 10 of these orders is four (4) business days after the date of service of these orders upon the Trustee of the Fund.

   13.That until such time as the Superannuation split to the father pursuant to   these orders can be rolled over onto a separate account to the father:-

   a.the mother provide to the father no less than twenty-eight (28) days’ notice before such time as she elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part her entitlement in the Fund.

   b.the mother direct and authorise the Trustee of the Fund to communicate with the father and/or any person authorised by him in writing:-

   i.to answer any reasonable inquiries as may be made by him or on his behalf from time to time in relation to his entitlement in the Fund; and

   ii.to provide to the father and/or his authorised representative with a copy of any notice of any application or request by the mother which seeks release of entitlements in the Fund in so far as that release may affect the father’s entitlement in the Fund pursuant to these orders.

   c.the mother by herself, her servants and/or agents be and hereby are restrained from doing  any act or thing which would prevent the father, his heirs, executors, administrators or nominees from receiving the benefits in the Fund to which he is entitled pursuant to these orders.

   14.That in the event that the Superannuation split to the father pursuant to these orders can be rolled over into a separate account to the father each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

   15.That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-

   a.each party be solely entitled to the exclusion of the other to all other real and personal property (including choses-in-action and shares) registered in the name of or in the possession of such party, or to which that party is legally or beneficially entitled, as at the date of these orders;

   b.monies standing to the credit of the parties in any bank account are to become the property of the party in whose name the account is registered;

   c.insurance policies remain the sole property of the owner named therein;

   d.each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

   e.each party be solely responsible for any liability of whatsoever nature and kind in their respective names, including but not limited to any credit card liability; and

   f.any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

I certify that the preceding two-hundred and sixty-seven (267) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 6 May 2016.

Associate: 

Date: 6 May 2016