BROUGHTON & BROUGHTON
[2016] FCCA 1920
•29 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BROUGHTON & BROUGHTON | [2016] FCCA 1920 |
| Catchwords: FAMILY LAW – Property – where the husband’s actions caused a significant diminution in the value of the former matrimonial home which was the major asset. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAC, 79, 75 |
| Cases cited: Kowaliw & Kowaliw (1981) FLC 91-092 |
| Applicant: | MS BROUGHTON |
| Respondent: | MR BROUGHTON |
| File Number: | CAC 1600 of 2012 |
| Judgment of: | Judge Hughes |
| Hearing dates: | 15, 16, 17, 18, 19, 22 and 23 February 2016 and 12 July 2016 |
| Date of Last Submission: | 12 July 2016 |
| Delivered at: | Canberra |
| Delivered on: | 29 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Self represented |
| Counsel for the Respondent: | Self represented |
| Counsel for the Independent Children's Lawyer: | Ms Strong |
| Solicitors for the Independent Children's Lawyer: | Strong Law |
ORDERS
All previous orders in relation to the children X born (omitted) 2005 and Y born (omitted) 2007 are discharged.
The wife shall have sole parental responsibility for the children but before making any decision about a major long term issue concerning the children she will advise the husband in writing of the issue to be determined, give him a reasonable opportunity to express his views on the matter and take those views into account before making the decision.
The children shall live with their mother.
The children shall spend no time with their father until 13 August 2016.
Provided the husband is compliant with orders 13 and 14 below, the children shall spend time with him as follows:
(a)from 13 August 2016 for a period of four weeks, each Saturday or Sunday from 9am until 7:30pm;
(b)from 10 September 2016 until the end of October 2016, every second week from 9am Saturday until 5:30pm Sunday;
(c)from the first weekend in November 2016 for a period of two months as follows:
(i)every second weekend from the conclusion of school or 3pm on Friday until 5:30pm Sunday; and
(ii)such additional or alternative times as agreed in writing (including text messages).
(d)from 1 January 2017 for a period of three months as follows:
(i)every second weekend from the conclusion of school or 3pm on Thursday until 5:30pm Sunday; and
(ii)such additional or alternative times as agreed in writing (including text messages).
(e)From 1 March 2017:
(i)every second weekend from the conclusion of school on Wednesday until 5:30pm Sunday;
(ii)for half of all school holiday periods which, unless otherwise agreed in writing, shall be the first half with their father and the second half with their mother in holidays occurring or commencing in each odd-numbered year and the opposite in holidays occurring or commencing in each even-numbered year; and
(iii)such additional or alternative times as agreed in writing.
Notwithstanding anything else in these orders, the children shall not stay overnight with their father when due to attend school the following day unless he can provide accommodation for them in a residential building (not his (business omitted)).
School holidays shall be deemed to commence at 9am on the first day following the end of term and end at 5:30pm on the second last day prior to the gazetted commencement of the new school term.
The children shall spend Mother’s Day with their mother and Father’s Day with their father each year at times to be agreed in writing or, failing agreement, from 9am until 5:30pm on the relevant day.
From 1 November 2016 the children shall spend time with each parent on each of the children’s birthdays at times to be agreed between the parties in writing or, failing agreement, from 3pm until 7:30pm with the parent they would not otherwise see that day.
The children shall spend time with each parent on the parent’s birthday at times to be agreed between the parties in writing or, failing agreement, from 3pm until 7:30pm if the birthday falls on a school day or from 9am until 5pm if the birthday falls on a non-school day.
Subject to order 15 below, the usual arrangements are suspended between 9am on Christmas Eve and 5pm on Boxing Day each year and, unless otherwise agreed between the parties in writing, the children shall spend time with each parent over that period as follows:
(a)in even numbered years, with their mother from 9am on Christmas Eve until 11am on Christmas Day and with their father from 11am on Christmas Day until 5pm on Boxing Day; and
(b)in odd numbered years, with their father from 9am on Christmas Eve until 11am on Christmas Day and with their mother from 11am on Christmas Day until 5pm on Boxing Day.
Unless otherwise agreed between the parties in writing, on Easter Sunday the children shall spend from 3pm until 7:30pm with the parent they would not otherwise see on that day.
As soon as practicable following the date of these orders, the husband shall:
(a)arrange for a meeting with his general medical practitioner and a meeting with a psychologist for the purpose of an assessment of his mental health;
(b)provide to the general medical practitioner and the psychologist a copy of these orders and reasons for decision;
(c)provide to the general medical practitioner and the psychologist an irrevocable authority authorising and directing them to do the following:
(i)to provide to the wife a brief report about the husband’s mental health and his compliance with any recommended treatment regimen once every three months until 1 July 2017 and, thereafter, once every six months for two years and, thereafter, annually until 1 July 2021;
(ii)advise the wife as soon as practicable in the event they form the view that the husband’s mental health has deteriorated or is deteriorating such that it may impact on the husband’s capacity to adequately care for the children;
(iii)advise the wife as soon as practicable in the event the husband refuses or fails to attend for a review of his mental health; and
(iv)confirm in their first communication to the wife that they have read these orders and the reasons for decision.
(d)provide to the wife a copy of each irrevocable authority.
In the event the husband changes his general medical practitioner or his psychologist he shall, within seven days, provide to the new medical practitioner or psychologist an irrevocable authority in the same terms set out in order (13) above and provide a copy of the new authority to the wife.
In the event the husband fails to comply with orders 13 and 14 above the following arrangements shall apply unless otherwise agreed in writing:
(a)the children’s time with the husband shall be suspended until he has complied and, until compliance, the children shall only spend time with their father fully supervised by a person to be agreed between them in writing; and
(b)once the husband re-establishes compliance the children’s time with him shall recommence but if the period of non-compliance lasted for more than four weeks it shall recommence in accordance with the arrangements in order 5(b) above and progress in accordance with the stages and relative time frames of order 5.
In early 2017 the parties shall take all steps necessary to arrange to attend upon a family therapist, mediator or similar for the purpose of improving their communication and co-parenting relationship.
IT IS NOTED that this order does not require the parties to be in the same room if they do not wish to be.
Each party is hereby restrained from:
(a)using any form of corporal punishment as a means of discipline of the children; and
(b)discussing these proceedings with or in the presence of the children, other than to explain in simple terms the arrangements provided by them.
The husband is restrained from allowing the children to be in the unsupervised company of the child, A.
Each party is permitted to provide a copy of these orders to the principal of the children’s school(s).
Each party is permitted to provide a copy of these orders and the reasons for decision to any mental health practitioner, counsellor or therapist assisting them or the children.
Property orders
The husband is declared to be the sole owner of the business (omitted business) (“the business”).
The husband shall indemnify the wife and keep her indemnified in relation to all liabilities in the name or associated with the business.
The husband shall within 28 days of the date of these orders make available for collection by the wife the items listed at order 5 of the orders of 6 June 2013.
Each party is otherwise declared to be the sole owner of all property in their name or possession including superannuation interests at the date of these orders.
The appointment of the independent children’s lawyer is discharged twenty-eight days from the date of these orders.
Otherwise all extant applications are hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Broughton & Broughton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1600 of 2012
| MS BROUGHTON |
Applicant
And
| MR BROUGHTON |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property proceedings following a 12 year relationship.
The applicant wife sought orders for sole parental responsibility, for the children to live with her and to spend no time with the husband because of concerns about his mental health. She told the Court she believed there was a credible risk the husband would harm the children in an act of vengeance against her given previous conduct by him and especially if the proceedings do not go the way he wants.
The husband sought orders for equal shared parental responsibility and a return to the week about arrangement in which the children had been living for three years until altered by the Court in October 2014.
There is almost no property to divide. The former matrimonial home has been sold leaving no net proceeds and the husband’s business is worth very little. The wife has some superannuation.
The husband and wife were both unrepresented for most of the litigation but the Court had the benefit of an independent children’s lawyer. The Court file runs to seven volumes. There were numerous interim proceedings and one previous final property hearing which was remitted for re-hearing after a successful appeal by the husband.
Background
The applicant wife is a 40-year-old (occupation omitted). The respondent husband is a 43-year-old (occupation omitted). They commenced cohabitation in 1999 and married on (omitted) 2004. They separated under the one roof on 31 July 2011 and physically separated on 19 August 2011.
The parties have two children: X, born (omitted) 2005 who is now aged ten and Y born (omitted) 2007 who is aged eight.
Both parties worked full-time throughout the relationship except for periods of maternity leave of the wife after the birth of each child.
In 2001 the parties established a (omitted) business, (omitted business). The husband operated it as a sole trader but the wife was also involved in it. She said she met clients, (omitted), did unskilled work in the (omitted) and did the book work. When the wife returned to full-time work in 2008 she continued to do all of the book work for the business in the evenings and on weekends. The husband disagreed with the wife’s description of how much she did in the business but stated in his affidavit filed on 12 March 2014 that “[the wife] contributed to its success for many years”.
The business was profitable from soon after it was established until about mid-2008. The husband said he got into some difficulty because money generated by the business was being channelled into renovations to the former matrimonial home and insufficient funds were put aside to pay a tax bill. At the same time, for a variety of reasons, he lost three of his four major clients. The business felt the impact of the global financial crisis the following year. Those factors combined resulted in a significant reduction in the profitability of the business.
In mid-2011 the husband began to suffer chest pains and was admitted to hospital with a suspected heart attack. He had two further admissions to hospital with chest pains in March 2012 and November 2012.
When the parties separated in July 2011 the children were aged five and four years respectively. One of the contributors to the breakdown of the marriage was the wife having an affair with the husband’s brother. For several weeks after separation the parties lived uneasily together under the one roof until 19 August 2011 when the husband discovered that the wife’s relationship with his brother was continuing. On that day he excluded the wife from the home by changing the locks.
To their credit and despite a very difficult personal relationship, the parties quickly developed an arrangement in which the wife attended the former matrimonial home early each morning to care for the children and get them to school and daycare as the husband commenced work very early each day.
The wife stayed with her sister and brother-in-law until 7 October 2011 when she obtained her current rental accommodation in (omitted). From then on the children lived week about with each parent.
At the time of separation the parties had substantially completed major renovations to the former matrimonial home. The husband said he continued the renovation work during the 3 years he remained living in the home following separation. He said he renovated the ensuite, erected a garden shed and garage, installed a new timber screening wall near the pool in the backyard and installed shelving in the children’s bedrooms. He said a lot of the work was done as a favour to him by subcontractors and friends who were prepared to wait until the property was sold before they were paid. The wife said she was unable to keep track of what the husband was doing because when she asked for invoices for the work done, she was provided with invoices from the husband’s business rather than from independent tradespeople.
The husband obtained a valuation of the property in March 2012. The assessed value was $520,000 if required works estimated to cost about $45,000 were carried out.
Shortly prior to separation in 2011 the parties agreed the business was no longer viable and that it should be wound up. They agreed to relocate some of the business enterprise to their home which required the erection of a bigger garage. The husband removed the old garage and sold it.
When the parties separated the new garage at the home had not been erected. The husband negotiated an agreement to move the business equipment into the shed of a friend at (omitted) for about one third of the cost of the previous business premises. However he could not afford even that lower rent and he gave the owner of the shed a Ford Mustang he had purchased in 2009 instead of cash. He said he also sold the work Ute and bought a cheaper one in order to pay out the lease on the previous business premises.
The wife said as a result of things said to her by the husband and the children she believed he was working for “cash in hand”. The husband denied doing so. He said he was continuing to operate the business as usual.
The husband said his plan at the time of separation was to try to find someone to take over the business, complete the renovations to the house and sell it. He proposed that, after payment of debts, the parties would split the proceeds of sale equally.
In September 2011 the husband wrote to the wife suggesting that she bring the books of account up-to-date and he would finish renovating the house so that it could be sold. He said the wife refused. The wife said she was willing to complete the book work necessary for the business but the husband refused to allow her to enter the property which meant she could not do the work.
The wife alleged that the husband failed to make adequate disclosure despite repeated requests by her previous solicitors and subsequently by her for things such as copies of business tax returns. The husband said he had provided all the documents he had but was unable to provide tax returns as he could not prepare them until the financial statements for the business had been completed. He said he was put in an impossible position when the wife made an application to the Court because he was required to complete a financial statement which was impossible for him because his financial circumstances were a mirror of the business financial circumstances about which he knew very little as the accounts had not been done for so long.
The original property proceedings
The wife commenced property proceedings on 17 October 2012. The husband was served on 30 October 2012. On the first return date, 3 December 2012, the husband was ordered to file and serve a response, affidavit and financial statement by 10 February 2013. Orders were made about valuations of assets and superannuation interests and the parties were ordered to attend a conciliation conference on 25 March 2013. The husband appeared in person on 3 December 2012 and was present when the orders were made.
The matter did not resolve at the conciliation conference. This is not surprising as the husband had filed no documents by then. When the matter came before the Court again on 7 May 2013 the husband had still filed no documents. He was legally represented that day. The proceedings were adjourned to 6 June 2013 noting that if the husband failed to file his material by then, the matter would proceed that day on an undefended basis. The husband said that although he was at Court on 7 May 2013, the Court room was so crowded that he waited in the public area. He said his solicitor left the building after very little discussion with him and failed to tell him the proceedings had been adjourned to 6 June 2013. He said he received no correspondence advising him of the adjourned date and only found out about it after the event because his solicitor rang later to ask whether or not he had attended.
On 6 June 2013 there was no appearance by or on behalf of the husband and he had still not filed any documents. As foreshadowed, the matter was heard on an undefended basis. Brewster J ordered that the former matrimonial home be sold and the net proceeds of sale be divided equally between the parties. The husband was to retain the business and indemnify the wife against all liabilities associated with it. The husband was required to make certain furniture and chattels available to the wife within 14 days and each party was to retain their own superannuation interests. The Registrar was empowered to execute documents in the event of a failure by either party to do so.
Brewster J gave the husband liberty to apply to have the orders varied or set aside within 28 days of being served with a copy of them.
On 3 July 2013 the husband filed an application in a case seeking to have the orders of 6 June 2013 set aside. He filed a supporting affidavit stating that he was unaware the matter had been listed on 6 June 2013. On 9 September 2013 he filed another affidavit setting out the history of the property proceedings from his perspective. His solicitor filed a notice of withdrawal on 12 September 2013.
The husband’s application was listed on 16 September 2013. He had still not filed a response to the wife’s initiating application or a financial statement. He was ordered to do so by 11 October 2013. He filed a financial statement later that day but did not file a response until 30 September 2014, almost a year later and in it he sought only parenting orders.
The husband’s application to set aside the orders of 6 June 2013 was heard on 21 March 2014. At that stage the husband had still not filed a response setting out what orders he sought by way of property settlement. On 10 April 2014 Turner J dismissed the application and gave reasons for her decision.
On 29 April 2014 the husband appealed that decision to the Full Court of the Family Court of Australia.
On 1 May 2014 the husband applied for a stay of the orders of 6 June 2013 pending determination of the appeal. He filed a one paragraph affidavit in support of his application.
On 8 May 2014 the wife made an application for the husband to pay her costs on an indemnity basis. She filed an affidavit in support. The husband filed an affidavit on 15 May 2014 responding to the wife’s application.
Shortly after separation the parties agreed to sell the former matrimonial home but the husband wanted to finish the renovations before it was sold. For three years following separation he had sole use and occupation of the home and had not completed the renovations. He said this was because of the pressure he was under as a result of the strained financial circumstances of the business, the breakdown of the parties’ relationship and the circumstances surrounding the parties’ separation. He wanted more time but the wife who had been living in private rental accommodation for three years pressed for an immediate sale of the property.
I heard the stay application on 13 June 2014. I dismissed the application on 18 June 2014 and gave reasons for decision. I also ordered the husband to pay the wife’s costs.
On 19 August 2014, the wife filed an application seeking enforcement of the orders of 6 June 2013. In her affidavit filed in support she complained about non-compliance by the husband with Court orders which was causing a delay in the sale of the property.
On 4 September 2014 orders were made by Brewster J enforcing the orders of 6 June 2013. The wife was appointed sole trustee for the sale of the property. The husband was required to vacate the property within 14 days, leaving it in a tidy condition. He was restrained from re-entering the property thereafter.
The husband said that, faced with the imminent sale of the property before the renovations were completed, he realised he would not be able to recoup the costs of the renovations and pay outstanding debts for the supply of materials used. He decided the only rational course open to him was to remove items he had installed so that he could sell them or return them to the suppliers. He set about removing fixtures and fittings from the home. At one stage he suggested he had removed only what he had installed since separation but later conceded he removed much more than that. He agreed that the renovations were substantially completed before separation and yet he removed the entire kitchen, the entire laundry and bathroom, built in cupboards in the bedrooms and the evaporative air cooling system from the roof.
Although the husband said he was intending to sell the items he removed, photographs tendered in evidence show cupboards lying in jumbled piles in the backyard, the kitchen bench smashed and lying on the ground and the red splashback from the kitchen lying in a garden bed with a glass shower screen on top of it. The husband said the items were placed carefully by him in preparation for sale but that is not remotely plausible. There is no evidence that the husband sold anything.
The wife knew nothing about the husband’s activities until alerted by the children on about 19 September 2014. She said they told her that their father had removed the kitchen and was going to take out the ensuite bathroom. On 23 September 2014 X told her that he had been on the roof of the former matrimonial home that morning with his father who was taking out the evaporative cooling unit. Y told her she felt uncomfortable showering at the house because “the bathroom is smashed up and there is no door on the shower”. The wife went to the property the following day with a real estate agent and a police officer to view the property. She said the husband was present and as they walked through the property, he made a number of statements about further items he planned to remove. She said he told her that he intended to remove the timber floors, the carpets, the internal light fittings and the solar panels from the roof. He also intended to dismantle the shed. She said he told her that the toilet and tap fixtures in the main bathroom would stay as he had not paid for them.
The wife said she was shocked by the state of the house and by the husband’s attitude. She took photographs that day which became exhibit ICL 2 in the proceedings on 18 February 2016. She said she got a strong sense that the husband was extremely angry with her and was destroying the house as a form of retribution against her. She said she felt the husband was emotionally unstable and feared that he could also harm the children to punish her. She applied for a domestic violence order on 25 September 2014 which was granted on an interim basis ex parte.
A police officer attended at the former matrimonial home that afternoon to serve the husband with the order. The husband was not present and the officer spoke to the husband’s sister, Ms J, who had been living with the husband at the former matrimonial home. The husband had a telephone conversation with the police officer later that day. The husband said that after he explained to the police officer what he was doing and his rationale for doing it, the officer told him he would not serve him that day but he should expect to be served on Monday, 28 September 2014. The husband said he worked feverishly over the weekend to finish what he was doing and to try to clean up the property. Ultimately the husband was not served with the domestic violence order until sometime in early October 2015.
The wife filed an amended initiating application on 26 September 2014 seeking urgent parenting orders. She sought sole parental responsibility for the children, for the children to live with her and for them to spend limited time with their father. In her supporting affidavit she said she was worried about the husband’s mental health and the impact of his behaviour on the children who, she said, were clearly confused and concerned about what their father was doing. She also said she believed the house was no longer habitable and was potentially dangerous as electrical and gas appliances had been removed and part of the safety fence surrounding the pool had been removed. She said the real estate agent who had been engaged to sell the house was not prepared to continue with the sale especially with the unfenced pool which presented a major safety concern.
The wife said the husband refused to speak to her and there was therefore no capacity for them to adequately communicate about her concerns or the children’s needs. She also said that, as a result of things the children said to her, she believed the husband was involving them in the parental dispute. She said X said on about 23 September 2014 “Dad said that we have to move house, you are not being fair and you want more than half”. She said Y said “I asked Dad if he was ever going to talk to you again and he said no, I will never talk to her again.” [1]
[1] Affidavit of the wife filed on 26 September 2014 at paragraph 11
After filing her application on 26 September 2014 the wife sent a text message to the husband and advised him that she was retaining the children in her care.
The wife’s application was listed on 30 September 2014. On that day the husband filed an application seeking sole parental responsibility for the children and an order that the children live with him. He proposed that the children spend time with their mother every second weekend from Friday afternoon until Monday morning and each Wednesday overnight. He sought an order restraining the wife from denigrating him in the presence of the children and sought a costs order against her.
In his supporting affidavit the husband took issue with much of the wife’s evidence. He denied the property was uninhabitable. He said it had a functioning laundry, a functional bathroom and a suitably functional kitchen. He said that all electrical and gas outlets were safe. He said the pool was fully enclosed to the legislated height. He agreed he had removed fittings and fixtures from the property. He said he did so in order to sell them to repay debts. He said that if he waited until after settlement of the sale, those debts would fall on him alone. He said the fixtures were removed carefully by him and his actions were perfectly rational.
The husband attached to his affidavit of 30 September 2014 statements from ten people who had known him for varying lengths of time, all of whom attested to his good character.
The husband denied the parties were unable to communicate. He said they communicated regularly in relation to the children.
On 30 September 2014 the family law proceedings were adjourned for interim hearing on 13 October 2014. In the meantime orders were made for the children to live with the wife until the husband had secured new accommodation in his name, had moved into the property and had bedding available for the children. The husband was permitted to take the children away from Canberra on a holiday between 3 and 10 October 2014. He did not do so.
The wife returned to the property on 6 October 2014 and took another set of photographs which also comprise exhibit ICL 2. By that time the entire house was gutted. There were no fittings and fixtures other than some stray cabinets and miscellaneous items. Inside the house was a wheelbarrow containing rubbish and rubble. The backyard was a mess with piles of rubbish and rubble.
On 13 October 2014 orders were made which provided for the children to live with their mother and spend time with their father every second weekend from after school on Friday until the commencement of school on Monday and, in the alternate week, from after school on Thursday until the commencement of school on Friday. An independent children’s lawyer was appointed and the parties ordered to attend reportable family dispute resolution pursuant to section 11F of the Family Law Act.
Interim orders were also made on 13 October 2014 restraining the parties from denigrating the other parent or discussing the proceedings with the children. Without admissions or findings at that stage the wife was restrained from dealing with any of the husband’s property and the husband was restrained from arranging for anyone else to attend at the former matrimonial home to remove items of property. The proceedings were adjourned to 7 November 2014 for mention or interim hearing.
I told the husband on 30 October 2014 and on several subsequent occasions that I hoped and expected that the reduction in the children’s time with him would be a temporary measure only until the situation had settled and he had obtained more appropriate accommodation.
On 15 October 2014 the decision of the Full Court of the Family Court was delivered. The husband’s appeal against the orders of Turner J on 10 April 2014 was successful. The property proceedings were remitted for hearing and consolidated with the parenting proceedings already underway. By then however the house had been substantially damaged and was worth much less than what it had been at the time of separation. The wife pressed for its sale before foreclosure action was taken by the bank.
On 7 November the wife was appointed sole trustee for the sale of the former matrimonial home. The husband was required to sign relevant documents. The Registrar of the Court was appointed in the event the husband refused or failed to sign the documents.
On 1 December 2014 the husband filed an appeal to the Full Court of the Family Court of Australia against the orders of 7 November 2014. On 29 December 2014 that appeal was deemed to have been abandoned. On 22 January 2015 the husband filed an application in an appeal. That application was withdrawn on 18 February 2015 and the husband ordered to pay the wife’s costs in the sum of $800 within 2 months.
On 3 June 2015 the family report prepared by Mr P was released.
Issues concerning X
In May 2013 the parties became aware that the child X had been sexually molested by an older foster child in the full-time care of the paternal grandmother. The incidents occurred between November 2012 and May 2013 at the former matrimonial home and at the husband’s work premises. Although the offending child no longer lives with the paternal grandmother, his younger sibling, A, who was also a victim of the older child, remains in her full-time care.
The police referred the parties and X to the Child at Risk Unit for counselling. An appointment was made for 29 May 2013. The husband was unable to attend so the wife rescheduled the appointment for 3 June 2013. On that day the husband did not attend. The wife and the child attended together. The wife said the counsellor said he would invite the husband to attend separately but as far as she is aware the husband never did so. Despite that, in his affidavit filed on 10 September 2014 the husband said that he attended numerous doctors’ visits with X and arranged for him to be put on a mental health plan. He said “Both X and I are receiving counselling”.[2]
[2] Husband’s affidavit 10 September 2014 at paragraph 50
Both children were affected emotionally by their parents’ separation. The husband said that after separation X was very upset, would cry for no reason, was very possessive of his belongings and did not mix well with others. The husband said X told him that he had been thinking about killing himself. [3] It appears to be common ground that X has had the benefit of the assistance of a psychologist to deal with the sexual abuse issue and issues concerning the parental separation.
[3] affidavit of the husband filed 10 September 2014 at page 9
These issues had no impact on my determination except that the mother sought an order that the children not be left alone with the child A because although he is the same age as X, the two boys have been subjected to sexual abuse and all three children may need a greater level of supervision to ensure they are safe.
The wife said that in June or July 2014 the child Y told her that she had been to see a lady called Ms L to talk about the parental separation. The wife assumed that was the husband’s psychologist, Ms L. She said she had never given her consent for Y to speak to the father’s psychologist. Neither party sought any orders about the provision of psychological or other mental health assistance for the children but in my view the mother can be trusted to attend to that if necessary.
The final hearing and events leading up it
The final hearing was due to commence on 27 July 2015.
On 22 July 2015 the wife received a phone call from the ACT child protection authority advising they had received a report of the husband threatening to suicide on or before the first day of the hearing on 27 July 2015. The wife immediately collected the children from school and requested that the proceedings be listed urgently. They were listed on 24 July 2015 for mention.
On 24 July 2015 the independent children’s lawyer made an oral application to suspend all time between the children and their father until the situation was clearer. The husband appeared by telephone link that day but refused to answer any questions about his circumstances. The wife said she suspected he was in hospital. I asked the husband whether he was but he refused to answer. I ordered that the hearing remain listed on 27 July, noting that it may not be able to proceed given recent developments. Until further order each party was restrained from approaching within fifty metres of the other and the husband was restrained from approaching within fifty metres of the children. The husband hung up before I finished pronouncing the orders.
On the day the hearing was listed, 27 July 2015, the husband appeared briefly. He had been in hospital the previous week, had been released for the weekend and was required to return to the hospital that morning. The hearing dates were vacated and the proceedings adjourned.
On 3 September 2015 the proceedings were listed for mention. The husband was represented by a solicitor that day. Interim orders were made by consent for the husband to undergo an independent psychiatric assessment.
On 20 October 2015 orders were made for the children to spend time with their father on three out of four Saturdays between 10am and 2pm. Such time was to be fully supervised by one of four people nominated in the orders or any other person agreed between the parties. The time was not to commence until the relevant supervisor had signed an undertaking prepared by the independent children’s lawyer to the following effect:
a)that they had read and understood a particular document setting out their obligations as a supervisor;
b)that they understood the husband suffered serious mental ill health and had expressed suicidal ideation;
c)that they understood the orders and restrictions on the husband;
d)that they agreed to bring to the attention of the wife and the independent children’s lawyer any incident of concern or any apparent breach of the orders; and
e)that they would bring the time to an end in the event the children became distressed and could not be distracted or consoled within a reasonable time.
The orders also permitted the husband to attend particular extra-curricular activities of the children which the wife was required to advise him about. The orders restrained the husband from making derogatory comments about the wife or discussing the proceedings with the children.
On 10 December 2015 trial directions were made for the hearing which was re-scheduled to commence on 15 February 2016. Further interim orders were made which provided for the children to spend time with their father over the Christmas period and for a series of three day blocks during January 2016. The requirement for full supervision was relaxed to a requirement that the husband have one of the nominated people in substantial attendance during his time with the children but they were required to be present at all times between 6pm and 9am if the children stayed overnight with the husband.
On the first day of trial the husband applied for another adjournment. For reasons given at the time, that was denied. He was accommodated to some extent by being allowed some extra time to better prepare before his evidence in chief and his cross-examination.
The trial proceeded over seven days between 15 and 23 February 2016. An updated family report in relation to the views of the children was prepared by Ms H on 16 February 2016 and received into evidence during the trial.
During the hearing the husband objected frequently to questions asked of or about him, most of which were overruled. His sister, Ms J, was subpoenaed by the wife to give evidence. She had not sworn an affidavit. The husband was so incensed about what he regarded as his sister being “ambushed” and “attacked” by questions asked of her that he refused to call any witnesses even though he had foreshadowed calling a number. Unfortunately for him, he also declined to call his psychologist who would have been an important witness in his case.
At the end of the trial the husband asked for the opportunity to give written submissions rather than oral. That was permitted over the objections of the wife. In the end all parties were given the choice of making oral or written submissions and each chose the latter. On 26 February 2016 at the request of the parties, orders were made in Chambers adjusting the timetable for the filing of submissions.
On the last day of the trial, 23 February 2016, interim parenting orders were made which further relaxed the supervision requirements that had been in place until then. Orders provided for the children to spend time with their father every second weekend from 9am Saturday until 7.30pm Sunday and each Wednesday after school until 7.30pm. Whenever the husband had the children overnight he was required to have any one of five people named in the orders (or any other person agreed in writing) present with him between the hours of 8pm and 8am. The husband was required to advise the wife and the independent children’s lawyer in writing by 5pm on the Thursday prior to the weekend the name of the person who would be present overnight on the Saturday. The overnight time was not to occur unless the person nominated by the husband had signed an undertaking prepared by the independent children’s lawyer to the following effect:
a)that they had seen a copy of the orders of 23 February 2016 and understood them;
b)that they agreed to be present in the same accommodation as the husband and children between 8pm and 8am;
c)that they agreed to contact the wife in the event the husband and children were not with them at any time between those hours; and
d)that they agreed to confirm with the wife that they were the nominated person for the relevant overnight period.
The husband was also required to keep the nominated person informed in a general sense of his movements with the children during the Saturday and Sunday if not in their company. It was noted that the husband had also assured the Court and the wife that he would ensure the children are well monitored whenever they are in contact with the child, A.
On 22 June 2016 after the hearing had finished but before judgment was delivered the wife brought an application in a case and on 7 July 2016 filed an amendment to that application. The application sought to re-open the proceedings to deal with particular issues that had arisen since the trial. The application was listed on 12 July 2016. On that day I expressed reluctance to reopen the proceedings given it would be some time before I could find time for a further hearing which would mean the release of the judgement would be delayed. The wife indicated the matter concerned non-compliance by the husband with the supervision requirements and said she would be happy for me to deal with the matter as a discrete issue that day. The husband and the independent children’s lawyer agreed with that course of action. The husband was sworn and gave evidence from the bar table in response to the wife’s evidence.
The wife alleged that the husband had failed to comply with the orders concerning the presence of a nominated person on the weekends of 23 April 2016, 21 May 2016, 4 June 2016 and 18June 2016. She said the children had told her that they had spent Saturday night with their paternal grandmother in (omitted), New South Wales on the weekends of 23 April and 21 May 2016. The paternal grandmother is one of the people who could be nominated by the husband but she had not signed the relevant undertaking. The wife deposed that on 4 June 2016 she sent a text message to the husband asking who the nominated person was for the upcoming weekend. She said the husband simply told her he was taking the children to his mother’s home in (omitted). When the wife pointed out that his mother had not signed the undertaking required by the orders she said he referred to them as “illegal orders” and that he did not want his mother seeing or reading the notation about the child, A.
The wife sent the husband an email on 16 June 2016 requesting that he swap weekends so the children would stay with her on the weekend of 2 and 3 July 2016. The husband failed to respond. He also failed to advise the wife who the nominated person was to be that weekend. At about 10:30am on Friday, 1 July 2016, the wife sent the husband an email advising she would not make the children available to spend time with him that weekend. She was within her rights to do so given the terms of the orders in place. She then sent the husband a text message asking him to read the email. The husband did not respond to the email or the text message. The husband arrived at Y’s netball game later that morning and attempted to take the children with him. X did not go with his father but the husband picked Y up and walked away with her. The wife said Y became upset and was crying. The wife asked the husband to put Y down but he refused and left the playing fields with the child. The wife called the police.
The husband stayed overnight at his (business omitted) with Y that night.
On 12 July 2016 the husband took no major issue with any of the facts alleged by the wife. He agreed he had failed to notify the wife which nominated person was to be present on the weekends of 4 June and 18 June 2016. He said he was “not comfortable” with the orders which required him to do so. He agreed that he had spent some weekends with the children in (omitted) with his mother without having his mother sign the required undertaking. He said that was because he believed she would be offended by the reference in the orders to ensuring the children were fully supervised when in the company of A.
It was clear from the husband’s evidence on 12 July 2016 that he feels free to decide which orders he will comply with and which he will not. He made no secret of that fact. That is completely unacceptable. It significantly undermines his position because the Court can have no confidence that he will comply with any orders that do not suit him. This is not the first time it has occurred. During the substantive part of the trial the husband’s sister, Ms J, said that on the weekend of 6 February 2016 the husband stayed with the children in his (business omitted) when he was supposed to be staying with her. I accept the evidence of the husband and his sister that his sister had fallen asleep with her baby and did not hear the husband and the children at her door that night. However his sister also said she knew the husband was breaching the orders by staying overnight at the home of the paternal grandmother without the paternal grandmother signing the required undertaking. She said she challenged her brother about that and he was unconcerned. She did not bring the matter to the attention of the wife. Consequently, I am inclined to make orders which require proof the husband has complied with certain steps before other steps may be taken. The husband may feel badly done by as a result of that but, in that regard, he is the master of his own misfortune.
Documents produced by ACT Health
During the proceedings a number of subpoenas were issued to ACT Health concerning the husband. On 5 August 2015 the parties and their legal representatives were given leave to inspect the material produced but were restrained from disclosing the contents to any person not directly involved in the proceedings without a Court order. It was noted in the orders that the parties agreed that I would read the material produced by ACT Health in preparation for the next court date on 3 September 2015 unless an objection was notified to my associate by 28 August 2015. No such objection was received.
From 21 August 2015 the husband was represented by a solicitor. On 3 September the husband’s solicitor requested an extension of the time to object to the Court reading the ACT Health material to 17 September 2016. That extension was granted. The husband’s solicitor wrote to the Court on 17 September 2015 formally advising that there was no objection to me reading the material produced under subpoena and I did so.
The material was referred to extensively throughout the proceedings but, through oversight, was never formally tendered in evidence. On 17 February 2016 to assist the parties prepare for the husband’s evidence the following day the independent children’s lawyer sent to the Court by email a scanned copy of the ACT Health material which was printed out by Court staff for the parties to take home.[4] In order to identify what material was before the Court I have, subsequent to be end of the proceedings, formally received into evidence the ACT Health material and the letter from the husband’s solicitor dated 17 August 2015 and that material now comprises exhibit B in the proceedings.
[4] See Transcript 17 February 2016 at pages 366 to 372
The husband’s mental health
When the husband applied to set aside the property orders of June 2013 he said he was suffering from stress induced depression, anxiety and insomnia. He said that he had begun suffering chest pains in mid-2011 and had subsequently been admitted to hospital several times with a suspected heart attack.
When he filed his affidavit on 12 March 2014 the husband said that he had engaged five separate solicitors, all of whom were unsatisfactory and had come to the view that he had to represent himself.
As the matter progressed towards a final hearing, the wife became increasingly concerned about the husband’s mental health.
The husband insisted that the children were traumatised and suffering as a result of being compelled to spend most of the time with their mother. He alleged the wife had a psychotic disorder and displayed psychotic behaviour. He alleged that she was violent to him during the relationship and to the children post separation. No compelling evidence in support of those allegations was produced.
Documents were produced under subpoena by ACT Health indicate the husband was involuntarily detained in the mental health unit for about twelve hours from the evening of 18 February 2015. The ground for the detention was that, pursuant to section 37(1) of the Mental Health (Treatment and Care) Act1994, a police officer had reasonable grounds for believing the husband was mentally ill and had attempted or was likely to attempt suicide. The police officer provided a statement in which she said the husband had told her that he had planned to drive to the (omitted) Dam, call 000 to notify police and then jump or drive off the bridge. The officer noted that the husband’s sister, Ms J, agreed that the husband was suicidal that day. Neither the wife nor the independent children’s lawyer were aware of that incident at the time.
On 15 July 2015 the husband attended at the electoral office of a Federal Member of Parliament. The staff at the MPs office contacted the Crisis Assessment and Treatment Team (CATT) and the husband’s psychologist, Ms L, because of concerns about the husband’s mental health. When the CATT attended, the husband disclosed plans to kill himself on 27 July 2015 after attending the first day of the family law hearing. The documents produced under subpoena contain extracts from the notes of the CATT that day. One extract which indicates the husband had clearly planned his suicide is as follows:
Mr Broughton said that his plan is to hang himself on 27/07 and he had done a “dry run” a few weeks ago where he placed a ligature around his neck and tested the sensation. He said he realised that the impact is actually in cutting off the blood supply to the brain and is not as painful as he thought it would be. He reports having done some research regarding this.[5]
[5] (omitted) Hospital Patient Progress notes 22 July 2015
On 19 July 2015 Ms L also contacted the CATT because of what she regarded as the husband’s high risk of suicide.
On 20 July 2015 a psychiatrist from the crisis team visited the husband at home. The psychiatrist was concerned about the husband’s mental state. The husband was not willing to cooperate with voluntary admission to hospital and was taken in under emergency powers. He was assessed at the hospital and admitted involuntarily. The notes of the hospital staff indicate the following:
a)the husband was suffering from major depressive disorder;
b)the husband had not been fully compliant his medication regimen;
c)the husband was guarded about his suicidal ideas and plans; and
d)the husband demanded to be released, stating there was no justification to keep him involuntarily;
The husband was treated in hospital and granted weekend leave from Friday, 24 July 2015 until Monday morning 27 July 2015. He attended Court on Monday morning 27 July 2015 before returning to the hospital. He was discharged in the early afternoon of that day.
There is little doubt that the stress of the family law litigation has contributed to the husband’s ill health. In his affidavit filed on 11 December 2015 the husband deposed to his stress and anxiety increasing every time he had to prepare for Court. In one section of his affidavit headed “The impact of Judge Hughes” he spoke about his decision to suicide on the first day of the hearing in July 2015 as follows:
8. I made 4 attempts to arrange to see my psychologist however was unsuccessful due to her being sick, then away. I contacted other support agencies for help but found unless you’re a female victim of domestic violence your alone. By the end of a month my sleep was between a half hour to one and a half hours per night. My thought process was now that my reputation has been destroyed beyond repair, my ability to service my debts was now gone, I had no way of defending myself from Ms Broughton the ICL and judge Hughes and that the only way to protect the children from the pain of seeing their mother constantly berate and ridicule me would be if I were dead. My theory was that if I were dead this would stop Ms Broughton talking negatively about me and thus give the children some peace.
9. This was a decision made not in one instance but over a period of weeks, as my sleep was less and less. I had a plan a day and time. I decided that I wanted my death to stand for something though and wanted some positives to come out of it. I wanted people in positions of power to know my circumstances and reasons for my death. I wanted an inquiry into my death in the hope that more light would be shed on Domestic violence against men and the devastating effects it has. I wanted it known that the continued failure of the court process had ultimately resulted in my death, and hope that this would lead to change whereby a Judge would rule on the merits of each individual case instead of gender. The date I had set for my death was the 27th July 2015, this was the first hearing day. I planned to allow myself the opportunity to try and portray to judge Hughes how her negligent/criminal behaviour has affected myself and the children (I had doubts as to whether I’d be able as she cuts me off continually when I’m talking about things she does not want to hear).
On 15 February 2016 the husband filed an interim application and supporting affidavit seeking that I recuse myself from further hearing the matter. The affidavit made a range of assertions about the management of the proceedings and orders made by me which were asserted to be contrary to the Family Law Act. The husband indicated in his affidavit that he was petitioning the Governor-General, the Attorney-General, the Prime Minister and the Chief Justice (presumably Chief Judge of the Federal Circuit Court) to have me dismissed from Office. He also indicated that he was intending to sue the Commonwealth Government for a sum of $5.3 million dollars in damages for the financial and emotional damage done to him.
The husband was clearly under stress during the hearing in February 2016. On one of the days he said he not had any sleep at all the previous night which, from the subpoenaed material tendered in the proceedings, seems to occur when his mental health is deteriorating.
During the trial the husband made various grand statements including that he knew “beyond a shadow of a doubt” that a correct application of the Family Law Act would mean that the children would be placed into his full-time care because of the ongoing abuse of the children by their mother. When that was explored he spoke about her screaming and yelling and about the children being traumatised, withdrawing into themselves and standing in a “trancelike state” when it was time to return to her after spending time with him. When it was pointed out to him that there was no evidence whatsoever of the children being distressed and suffering in the way he described, he persisted with those statements. He was reminded of the evidence of the family consultant, Ms H, who met with the children earlier that week. She described the children as happy and energetic and said they described each of the parents in very loving and positive terms. It was also pointed out that the children’s school reports had improved over the period they had been living primarily with their mother. The husband was nonplussed, simply saying the children would have done a lot better had they been living with him for at least equal time over that period. He refused to accept that he could be mistaken about the children being traumatised by their mother. He quoted statistics about the number of children killed by women and said that these statistics are ignored by family law courts who discount anything said by men and accept anything said by women.
The husband said quite candidly that he expected not to do well in these proceedings but that he would appeal the decision and would ultimately be vindicated.
As mentioned earlier, the husband said that because his sister had been ambushed and attacked when giving evidence he was not prepared to call anyone else, including his treating psychologist, Ms L. He was warned that if Ms L was not available for cross examination he may not be able to rely on her reports attached to his affidavit material or, alternatively, the weight of those reports may be reduced. He was also warned that if Ms L is not called an inference may be drawn that her evidence would not have assisted him. The husband indicated that he understood but was not prepared to call her.
On 10 December 2015 the husband was ordered to provide a letter from his general practitioner setting out what medication and treatment was currently prescribed for him and whether or not the doctor believed he was compliant. The husband refused to do so on the basis that it was a breach of his privacy.
The medical notes produced under subpoena from the husband’s treating general practitioner, Dr A, indicated that in early 2016 the husband told Dr A that he had experienced some dark thoughts since he had ceased taking his medication. The notes indicate Dr A advised him to go back on his medication. During cross-examination the husband said that, subsequently, he and Dr A had a discussion in which the husband outlined an alternative approach in which he, the husband, would monitor his own symptoms closely and would seek help when required. He said Dr A was supportive of him in that regard. As Dr A was not called, no one was able to ask him about that.
Expert evidence
Ms L
On 2 July 2012 the husband’s general medical practitioner prepared a mental health plan for the husband and referred him to a psychologist. He began seeing Ms L, a clinical psychologist in (omitted). Ms L prepared a brief statement dated 5 September 2013 which is annexed to the husband’s affidavit filed on 17 January 2014. In that statement Ms L said she had seen the husband every two months since July 2012. She said the husband’s general practitioner had diagnosed him as suffering chronic depression. She said she assessed him as suffering from major depression with anxiety features which interfered with his ability to sleep and work. She said that when he did work it was difficult for him to complete tasks or to seek new work which caused an exacerbation of his existing financial difficulties.
A further report by Ms L dated 19 October 2015 was tendered in evidence on 20 October 2015. The report is short and I will quote it in full:
My name is Ms L and I am Mr Broughton’s treating Psychologist. I have been a Psychologist for 32 yrs and specialize in Psychiatric problems. My CV is attached.
Mr Broughton first consulted me in July 2012. In my opinion, he suffers from a Major Depressive Disorder initially triggered by discovering that his wife was having an affair with his brother Mr C, and his marriage break down.
In my opinion, this Depression has been compounded by the court decisions to reduce the 50 – 50 care of the children to him having only supervised visits, the sale of the house he jointly owned with his ex wife at a price below its value which reportedly resulted in losing any chance to repay business debts, and Mr Broughton witnessing the negative impact that reduced access to him has had on his two children X and Y.
In my opinion, Mr Broughton is now stabilized on medication. In the past, his depression has in no way impacted his ability to appropriately parent the children, and does not at present.
There is no risk to the children from Mr Broughton. There is no need for supervised access.
I recommend that for the sake of the child-father bond, that 50-50 child care arrangements be immediately restored.
The husband clearly has a trusting and therapeutic relationship with Ms L. It is clear from her October 2015 report that she has accepted the husband’s assertions that the former matrimonial home was sold below value and that the children have been adversely affected by spending reduced time with their father. She did not mention at all the husband’s plans for suicide or his involuntary admissions to hospital in early and mid-2015. It is not possible to tell from her reports how much she knows about the extent of the husband’s ill health. Ms L was not made available for cross examination during the proceedings. Accordingly, her evidence is untested and her opinion about whether or not the husband presents a risk to the children has little weight in my determination. The more weighty evidence is that provided by Dr W, the independent psychiatric expert who was given full information about the husband’s history by the independent children’s lawyer.
Dr W
An independent psychiatric assessment of the husband was undertaken by Dr W, consultant psychiatrist, on 26 November 2015. Dr W produced a reporting letter addressed to the independent children’s lawyer on the same date which became exhibit A in the proceedings on 15 February 2016.
Dr W described the husband as follows:
Mr Broughton was cooperative in the interview setting and presented as a tall, fit man, who was casually dressed and at times evidencing sadness with tears as he discussed certain issues. I believe he provided a credible history, and was cognitively intact in his communications to me.
Mr Broughton was assertive in his manner, wishing to make it clear that I carefully understood certain of the issues as he saw them.[6]
[6] Report of Dr W 26 November 2015 at pages 1 to 2
Dr W said he formed the view from reading documents produced by the independent children’s lawyer and meeting with Mr Broughton that the breakdown in the marital relationship, the problems concerning the property settlement and the reduction in his time with the children had all resulted in the husband experiencing severe panic attacks and an aggravation of what he thought was an underlying Mixed Anxiety and Depressive Disorder. He noted the husband has been in treatment with Ms L, clinical psychologist, since the end of the relationship and said he thought the treatment by Ms L was helpful for the husband.
Dr W noted that the husband’s mental health had deteriorated early in 2015 and again in mid-2015. He described a downward spiral in which the ongoing stressors arising from the unresolved litigation and the ongoing reduced time with the children caused a deterioration in the husband’s mental health, leading to inadequate sleep, worsening depression and ultimately active suicidal actions. He said in his report that the husband was not admitted to hospital but conceded during cross-examination that he was in error as clearly the husband was admitted to hospital on each of those occasions. He noted that the husband’s mental health had improved since that time and that he remained under the care of his general practitioner and his psychologist.
Dr W expressed the view that the husband’s psychiatric disorders are largely situational. He said he believed the husband was in good mental health at the time of his assessment and was not evidencing any clinical mood disorder. He summarised his assessment of the husband as follows as follows:
“In summary I have formed the view that Mr Broughton while still experiencing some psychological distress arising out of the difficult recent years, and continuing to take psychotropic medication and receive psychological counselling, is in sufficient good health to be a capable and safe parent for his children on an unsupervised basis. His current access to the children is unsupervised I understand.
Mr Broughton’s mental health is much more likely to be stable if his desired access to the children is given than otherwise.
Mr Broughton has plans to further develop his business and lead to a more balanced life with effective resolution of the matters currently flowing through the Court.
Mr Broughton is motivated to continue with his present treatment. He is well motivated to pay attention to any deterioration in his mental health.
In terms of a formal diagnosis while Mr Broughton has likely suffered from episodes of Major Depressive Disorder, I believe that a more satisfactory longer-term diagnosis is Adjustment Disorder with Mixed Anxiety and Depressed Mood arising out of very high level stressors in recent years. Free of those stressors, or other significant stressors, he is likely to maintain a better state of mental health. [7]
[7] Report of Dr W 26 November 2016 at page 5
Dr W gave oral evidence by telephone link on 23 February 2016 and was cross-examined by all three parties. Several days before he gave evidence the independent children’s lawyer was permitted to provide him with copies of the following documents filed since Dr W completed his report:
a)the application in a case and supporting affidavit filed by the husband on 13 April 2015 setting out his rationale for removing fixtures from the former matrimonial home;
b)the husband’s letter to the independent children’s lawyer dated 28 July 2015 which became ICL 4 in the proceedings in which he expressed his outrage about the independent children’s lawyer providing a copy of recent orders to the children’s school; and
c)the application in a case and supporting affidavit filed by the husband on 11 December 2015 setting out the legal actions and other steps he intended to take to seek redress for the wrongs done to him in the course of family law proceedings.
Before he was asked any questions on 23 February 2016, Dr W said he wanted to make a brief statement to the Court. He said that on the basis of the material recently provided to him by the independent children’s lawyer, his report of 26 November 2015 required reconsideration. He was given the opportunity to expand on that and he said as follows:
I believe that I can only usefully contribute in this manner by stating that I see Mr Broughton under immense stress, here in an adversarial system that inevitably adds to that stress. Some of the things that have happened in the past have been as a result of stressors and stressors are continuing at some intensity, which causes me to believe that there are obviously risks.[8]
and:
I don’t resile from the broad thrust of what I’ve had to say, but I believe in respect of – well, fundamentally I believe once disputes are settled, to some extent, and Mr Broughton, in particular, can accept or negotiate or have arrived at some understanding of what has been agreed between the parties and he is therefore less stressed, then the thrust of my report basically holds in respect of the key issue of safety and access to his children. But given there are ongoing stressors and Mr Broughton hasn’t dealt with those admittedly very major stressors in the past, I therefore am more uncertain at this point about whether Mr Broughton is settled enough in his outlook. That is not to say that he has mental health problems. There are wider issues that normal people will deal with under these circumstances… But.. with the chaos, I don’t mean that term too pejoratively, of this matter, but under these circumstances I think Mr Broughton may not manage as well as he might under more stable circumstances.[9]
[8] Transcript 23 February 2016 at page 750.
[9] Transcript 23 February 2016 at pages 751 to 752
Dr W said in his report that the husband was in good control of his life. During cross-examination he said that he may not have made that comment if, at the time he wrote his report, he had been aware of the husband’s actions and thought processes evidenced by the material the husband filed in December 2015 and February 2016. Dr W agreed with the independent children’s lawyer that further litigation initiated by the husband is likely to keep him stuck in a less than ideal situation and that his mental health is likely to continue to be compromised while any litigation is ongoing.
Dr W said that the husband’s general well-being is likely improve if he feels he has some agency over important aspects of his life. He suggested that the husband be involved in devising a plan for what should happen in relation to the children when the litigation was over.
The independent children’s lawyer asked Dr W whether a regular review of the husband’s mental health by an appropriately qualified expert was advisable and, if so, whether a psychiatrist or a psychologist would be better placed to do it, bearing in mind the importance of maintaining his confidential therapeutic relationship with his current psychologist, Ms L. Dr W said he thought Ms L would be the best placed to review the husband regularly but agreed that putting her in such a role might interfere with the therapeutic relationship. He suggested a three monthly assessment of the husband’s mental state by Ms L or another psychologist would be helpful and would give the husband some encouragement towards better health.
Family Reports
Three family reports were prepared in the proceedings. The first was in the form of a memorandum prepared by Ms W on 28 October 2014 after the parties and the children participated in a dispute resolution conference pursuant to section 11F of the Family Law Act. The conference occurred two weeks after the children’s time with their father was reduced from equal time to four nights per fortnight. During the conference the wife told Ms W that she believed the husband was emotionally unstable and that the previous week about arrangement was no longer viable. She proposed that the children live with her and spend time with their father every second weekend, one extra overnight period each week and half of all school holidays.
The husband told Ms W that he had always been the children’s primary care giver and that the children lived fulltime with him for three months after separation. He said that he was best able to offer the children a stable arrangement as he was continuing to live in the former matrimonial home and did not need to rely on before and after school care as the mother did. He proposed the children live with him and spend time with their mother every second weekend, one overnight period during the week and half of all school holidays.
In relation to the removal of fixtures from the former matrimonial home the husband told Ms W it was a logical response to his need to pay substantial debts.
Ms W noted the high conflict and poor communication between the parties. She said each parent was highly critical of the other and neither was able to acknowledge positive attributes of the other or the benefits the children would gain from an ongoing relationship with them.
According to Ms W each of the children described a very happy and secure life when their parents lived together. Neither was able to talk about the advantages of spending more time with one parent than the other and both said they missed each parent while they were with the other one. Y said she was more likely to get to school on time when living with her mother. Both children reported that their parents argue a lot and that this causes them anxiety and sadness.
Ms W recommended that a full family report be prepared so that the issues could be explored in more depth if the matter proceeded to trial but that, in the meantime, the children should continue to live with their mother and spend time with their father in accordance with the arrangements in place at that time. She suggested the parties would benefit from some intervention to improve their communication. She said the children might benefit from attending a support program for children whose parents have separated.
Ms W was not required for cross-examination in the trial.
Mr P prepared a family report dated 2 June 2015 in preparation for the final hearing which was listed in July 2015. At that time the children were still spending time with their father in accordance with the orders of 13 October 2014 which was every second weekend and overnight on Thursdays in the alternate week. By agreement the children were also spending Wednesday afternoons with their father. The wife told Mr P she was content with that arrangement and would like it to be reflected in final orders. The husband said he would like to return to the previous week about arrangement.
The wife said she did not believe the husband was well enough emotionally to care for the children more than four nights per fortnight and that she could offer a more stable home for the children. The wife acknowledged that she had had a relationship with the husband’s brother during the period in which the marital relationship was breaking down. She said that since separation the husband had slowly mended his relationship with his brother and forgiven him but had refused to forgive or even communicate with her. She said she believed that a shared arrangement was not workable in the long term because of the lack of communication and cooperation between the parties.
Mr P said that while the husband appeared relaxed with the children, when interviewed alone he was more serious, expressed frustration at feeling not understood by the judge and the independent children’s lawyer and spoke quickly and in some detail about his financial difficulties.
The husband told Mr P that he was diagnosed with depression after encountering financial difficulties with his business from 2009. He said the parties began to argue more frequently and he went to hospital on three occasions for suspected heart attacks arising from the stress he was feeling. He described to Mr P the stress of finding out that his brother and his wife were having an affair. He said he insisted the wife move out once he discovered the relationship was continuing. He said the parties reached an agreement in mediation to equally share the care of the children and that had remained in place for most of the time since separation.
The husband told Mr P that when he was ordered to leave the family home in September 2014 he decided to remove all of the improvements he had made since separation in order to pay his debts before the house was sold.
Mr P interviewed both children. He described X as a serious child of nine and a half years who had difficulty feeling comfortable while being interviewed. After being given some time to relax X said he did not understand why the equal time arrangement had changed and felt things would improve if he spent equal time with each parent. Y was described as being more playful and confident than X and did not appear to be stressed by the interview process. Like X she said she did not know why the parenting arrangements had changed and she thought it would be fair to spend equal time with each parent.
Mr P said that while the husband’s removal of fixtures from the family home was unusual, his explanation about trying to reduce his debts had some credibility. He said he could not see the connection between that activity and the reduction in the husband’s time with the children ordered by the Court, especially given the history of the children spending equal time with each parent for more than three years. More importantly, he said he could not see how the change benefited the children. He said he thought the children were aware of their father’s poor emotional state and were concerned about him not coping. Mr P recommended that the children return to living on an alternate week basis with each parent and be given the opportunity to spend one overnight period with the other parent mid-week.
Mr P gave oral evidence by telephone link and was cross-examined briefly by each of the parties. It was put to him by the wife that the husband had done a lot more damage than simply removing some fixtures from the family home as suggested in the family report. She said that he had effectively destroyed the house. Mr P said he was unable to comment as he found it hard to assess the extent of the damage from the photographs with which he was provided.
I do not place significant weight on the recommendations in Mr P’s report because the report was completed before the husband’s involuntary hospitalisation in July 2015 and he was unaware of the husband’s earlier involuntary hospitalisation in February 2015. Mr P had also not read the material filed by the husband in late 2015 and early 2016. However, his observations and assessment of the nature of the children’s relationship with each parent was useful.
The final family report was prepared by Ms H, psychologist, on 16 December 2015 to briefly update the Court about the views of the children. At that time the father was required to have someone in substantial attendance with him when he had the children. The children were brought to the interviews by their maternal grandmother. They were initially seen together and then individually. The children reported that, at that time, their father was living with his sister Ms J and Ms J’s baby son, B. The children reported that Ms J was usually with them when they spent time with their father.
X was described by Ms H as being thoughtful, candid and serious during the interview and impressing as a kind and sensitive boy. X reported that his parents used to fight and now do not speak to each other. He said he remembered their fights and said it was mainly his mother that would yell at his father. He described his own close, affectionate and loving relationship with both parents and was able to speak about what he liked about each of them. He appeared to be very secure in his relationship with each. Ms H asked whether there was anything that made him worried or scared. He said he did not like Court because he associates it with his parents fighting. He described a good relationship with his younger sister. In relation to future arrangements X said he would like to spend equal time with each parent and believed that his mother would understand that. He recognised that she might be a bit worried because she tries to keep him and his sister safe. When asked, he said that he felt safe with his father.
Y was described by Ms H as intelligent and articulate with an extroverted and happy disposition. Like her brother, Y said that she would feel happier if she spent equal time with each parent. She was able to describe her parents in very warm and loving terms and expressed clearly a close and affectionate relationship with each of them. She also reported that her parents do not speak to each other. When asked whether there was anything that she did not like about either parent she said she did not like it when her father is angry and “smacks us with his belt on our bottom”.[10]
[10] Family report 17 February 2016 at paragraph 23.
It is apparent from the statements made to Ms H by Y that she has been made aware of a number of issues in the proceedings. When asked, she indicated that her father had told her the following:
a)Her father saw her uncle kiss her mother and it was heartbreaking for him;
b)Her mother told one of the judges to make her father move from the old house;
c)The last judge did not make the right decisions.
Y told Ms H that she misses the family home and her bedroom there.
In her evaluation Ms H said the following:
27. Although X and Y expressed a close relationship with both parents they presented with a number of concerns regarding their living arrangements and the needs of, motivations of and feelings of both their parents.
28. Children do not have the emotional, psychological or cognitive capacity to make decisions about their own living arrangements, particularly in the context of a family environment of high conflict, which is what both these children describe, is the situation for them. It is common for children at primary school age to want a “fair” arrangement for their parents, rather than being able to consider the ramifications and consequences of such an arrangement for them.
29. Y appears to know information about her parents’ relationship and judicial decisions that she is unable to properly understand. Developmentally she sees things in black and white terms. This makes for confusion and may be destabilising because children of Y’s age need, for their well-being, to believe that they can depend on both their parents to be emotionally and psychologically strong, wise and kind. If one parent is depicted by the other parent in negative terms to a child, it suggests to the child that they are not entirely safe because one parent is portrayed as unreliable. This has serious developmental consequences which may affect the long-term developmental trajectory of the individual.[11]
[11] Report of Ms H dated 17 February 2016
Ms H made no recommendations about the children’s living arrangements as the only purpose of the report was to update the Court about the children’s views. She was not required for cross-examination.
Implementation of the orders
I intend to order that the husband spend no time with the children for several weeks to allow him to come to terms with this decision. It is also necessary for him to have some time to arrange to have a meeting with his general practitioner and his psychologist for the purpose of assessment and the provision of a brief report to the wife. The husband will also be required to provide to the wife a copy of each irrevocable authority before any time with the children commences.
The purpose of the proposed orders is to ensure the husband is under the care of a general practitioner and a psychologist who will be able to monitor and assist him as needed and who can provide some reassurance to the wife that there is someone keeping an eye on him and who will notify her in the event of any adverse developments. This will avoid the need for direct supervision of the children’s time with their father.
If the husband is compliant with the orders the children’s time will commence on one day each weekend and will gradually increase until they are spending from Wednesday to Sunday every second week and half of all school holidays with him. Given the uncertainty of the husband’s accommodation arrangements, the time the children will spend with him will be concentrated at the end of the week each fortnight so that it causes minimum disruption to their school life. The arrangements will also provide for the children to be home with their mother every Sunday evening in preparation for the new school week which will provide stability for them. During school holidays the arrangements can be more flexible and I will order that the children spend half of the holidays with their father. During the Christmas school holidays at the end of 2016 the children will spend a week at a time with each parent but thereafter the holidays can simply be divided equally between the parties in a block, including during the long summer holidays.
The children will not spend time with their father if he has not complied with the orders. The greater the level of compliance by the husband with the orders the quicker the arrangements will progress and the more time the children will spend with him.
In the circumstances of this case I am satisfied that those orders will meet the best interests of the children, paramount amongst them the need to protect them from harm.
History relevant to the property proceedings
At the commencement of the parties’ relationship they were both working full-time. The husband worked as an (occupation omitted) for a (employer omitted). The wife worked as a (occupation omitted) until she was five months pregnant with the parties’ first child in mid-2005. In 2006 she returned to work but resigned at the end of 2006 when pregnant with the parties’ second child.
In July 2008 the wife began working full-time in the (employer omitted). She switched to part-time work for approximately six months late that year before returning to full-time employment in which she remained at the time of the trial.
The parties commenced cohabitation in rental accommodation in the wife’s name in (omitted). Both parties had a car and household possessions.
In 2000 the parties together bought a unit in (omitted) utilising a first home buyer’s grant and a loan secured by the property. Both parties contributed their wages to the mortgage and their labour after hours to renovating the property. While the renovations were under way they lived in the home of the wife’s mother. The property was sold in about 2004 for a profit.
In 2004 the parties bought another unit in (omitted). They moved into that unit upon return from their honeymoon in March 2004. That property was sold in mid-2006. In November 2006 they bought another property and sold it the following year. Each time the parties sold property they made a profit.
To start the business in 2001 the parties borrowed $14,000 from the wife’s father and stepmother which was repaid when one of the properties was refinanced.
During the relationship the parties agreed that, rather than contributing to a superannuation fund in the husband’s name, the parties would continue to put funds towards the renovation of properties in order to make a profit. Consequently, the wife’s superannuation interests grew over time but the husband’s did not.
In February 2008 the parties purchased the former matrimonial home in (omitted) for $472,000. They used the proceeds of sale from their previous property and took out a joint home loan in the sum of $300,000.
In late 2008 the parties took out an $84,000 investment loan secured by the former matrimonial home. The husband applied some of the investment loan to pay for equipment for the business and to pay outstanding debts of the business. Some was used for renovations on the (omitted) property and in 2009 $15,000 was used by the husband to buy a 50 percent share in a (omitted) Ford Mustang. The wife said that the vehicle cost $30,000 but because it was imported the costs of shipping, customs fees and tax increased the cost to approximately $40,000, half of which was paid by him. The parties only ever paid interest on the investment loan and at the time of separation the full $84,000 was still outstanding.
The wife alleged the husband allowed her to take very few possessions from the former matrimonial home when she was forced out in August 2011. The husband said that, on the day he changed the locks, he put some clothes and toiletries outside for the wife to collect. He said he thought it was a sufficient amount to last the wife for about a week.
The wife said her mother and stepfather initially lent her $3,500 to assist with setting up her new home and expected to be repaid once the property settlement had been completed. She said she compiled a list of everything she could think of in the former matrimonial home and gave it to the husband indicating which items she wanted. She said the husband told her in September 2011 that she could take most of the items she sought but he would only let her take a portion of them until the property settlement had been finalised. She said he indicated a month later she would get nothing from the home. The wife then took out a personal loan of $10,000 in order to purchase necessary furniture and household items for her rental accommodation.
The husband alleged that after separation the wife repeatedly entered the former matrimonial home and removed property without his consent which prompted him to change the locks. I found the wife’s version of these events more persuasive than the husband’s.
The husband persistently failed to produce even basic evidence relevant to the property settlement. He said he was continuing to operate the business but produced no documents in relation to it. He wanted the wife to be responsible for half of the business liabilities but produced no cogent evidence of them.
The parties bought two unregistered cars at the end of 2010, planning to fix them up and sell them for a profit. Both cars were sold after separation by the husband who said he obtained $1,250 for them. The wife said she saw no evidence of the amount received by the husband but there is also no evidence of how much they paid to purchase them.
In December 2011 the husband purchased a speedboat for $10,000 which the wife believed was paid for from business funds. The husband agreed he bought the boat for $10,000 but said that occurred in January 2012. He said he sold it six months later for $9,000. He said in his affidavit filed in September 2013 that he had just been paid for a job, the children were suffering as a result of the breakdown of the marriage and the boat was good value for money. He said he knew he could not afford to keep the boat but was able to give the children a good holiday before selling it.
Sale of the former matrimonial home
Pursuant to Court orders the former matrimonial home was sold by the wife on 8 May 2015 for $400,000. The agreed sale price was actually $405,000 but following a dispute with the buyer it ultimately settled for $400,000. The wife said she decided to go ahead with the settlement for $5,000 less than agreed because she was afraid that if she did not, the buyer might withdraw and she was concerned the bank would foreclose and force a sale for a lesser amount, leaving a continuing mortgage liability which would have to be paid.
The house was valued at $520,000 in March 2012 provided $45,000 worth of work was completed. The husband did that work but subsequently undid it. The husband asserted the wife sold the house significantly undervalue. He asserted that her failure to advertise the property for sale meant that the market was limited. A formal valuation of the property was undertaken at the wife’s expense on 13 February 2015 which indicated its market value was $410,000. The wife said she had no money to advertise the property and the real estate agent, who in the end received no fee, advertised the property through word of mouth to her own contacts which attracted a number of builders who offered between $320,000 and $350,000. That sum would have been insufficient to cover the mortgage. One prospective purchaser offered $425,000 but subsequently withdrew the offer. The ultimate purchaser initially offered $410,000 but reduced it after inspecting the property. I am satisfied the wife achieved the highest price for the property in the circumstances.
The wife kept the husband informed of the progress of the sale and provided him with relevant documents to sign. He resisted the sale and caused her to incur additional costs. He failed to provide the keys to the house so she had to have the locks changed and new keys cut. He refused to sign the contract for sale, the discharge of mortgage and the transfer. New documents had to be drawn up for the Registrar of the Court to sign.
The wife carried out some minor repairs to the pool pump and its housing unit. She hired skips to dispose of rubbish and trash packs for garden waste. The expenses incurred to change the locks and prepare the property for sale came to $4,347.22. The valuation she obtained cost $600.
The sale price was insufficient to discharge the liabilities encumbering it. The liabilities to (omitted ) Bank for the home loan and investment loan amounted to $402,500 in round terms and there were outstanding rates and government charges due at settlement.
The husband had entered into a contract in August 2012 with a manufacturing company and had used the former matrimonial home as security for the debt without the wife’s consent. That company lodged a caveat over the title and the debt of $3,067 was paid by the wife to ensure settlement occurred.
On 14 April 2015 the husband lodged his own caveat on the title to the property, stating his caveatable interest was work he had done on the property for which he had not been paid. The wife had to apply to have the caveat removed.
The extra funds required to achieve settlement of the sale were $10,618. Adding the cost of the valuation and the minor works done by the wife to prepare the property for sale, the total cost incurred by her to facilitate the sale was $15,565. The wife borrowed money to pay that sum. The husband made no contribution to it.
The law in relation to property settlement
Section 79(1) of the Family Law Act 1975 empowers the Court to make orders altering the property interests of the parties to a marriage. However, the Court must not make such an order unless it is satisfied that, in the circumstances of the case, it is just and equitable to do so.[16] The requirement is met in this case as the parties no longer enjoy the common use of the property and each asks the Court to make adjustments to the property.
[16] S79(2)
In determining what specific orders should be made, the Court must have regard to the following:
a)First, to the contributions of the parties to the acquisition, conservation or improvement of the property and to the welfare of the family as provided in subsections 79(4)(a),(b) and (c) of the Family Law Act; and
b)Secondly, to the matters set out in the remaining subsections of 79(4) which incorporate section 75(2) of the Act. Those matters broadly require a consideration of the financial position and resources of the parties; their age and state of health; their necessary commitments in supporting themselves or any other person; the effect of the marriage on the earning capacity of either party; and the effect of any proposed order on the earning capacity of either party.
Property available for distribution
There is very little property left to divide between the parties.
At the time of separation the wife’s superannuation was worth $41,373.16. By the time of the hearing it had increased to $89,950.27. There was no information about the value of the husband’s superannuation at the time of the trial. It was agreed that it was worth approximately $6,000 at the time of separation. It is unlikely to have increased much since then as the husband is unlikely to have had sufficient funds to make contributions to his fund. However he produced no documents to assist in that assessment.
There is no valuation of the furniture and household contents in the possession of each party and I do not intend to include them in the property distribution. The wife believes the husband may still have the contents of the former matrimonial home stored somewhere. She seeks the items ordered to be given to her by the husband in the original property orders of June 2013. The husband said he has very few items left. He has provided no information about how he disposed of them and what he obtained from any sale of them. Almost all of the wife’s household contents were purchased after separation.
Each party has a vehicle of modest value which I do not intend to include in the property available for distribution.
The husband argued that the business enterprise was a joint enterprise and that both parties ought to be responsible for the liabilities in the same way they enjoyed the success of the business during the relationship. However there is no agreement as to the size of the business liabilities. The husband’s solicitors wrote to the wife in mid-2012 and contended that the business debts at that time amounted to $42,579. They provided an itemised list of the liabilities at that stage. That list came into evidence as Exhibit W1 proceedings. The wife accepts that sum as an accurate statement of the liabilities at separation and I accept that it is the best evidence available. The husband argued that this amount seriously understated the debts at separation but he failed to produce any evidence to establish a different amount.
The husband apparently incurred further debts in the name of the business after separation. I am not persuaded they ought to be taken into account as the wife had no say over what went on in the business after separation and the husband also provided no cogent evidence of the liabilities in any event. There is also evidence the husband used business funds on personal items such as the purchase of a boat which he subsequently sold at a loss.
The expenses incurred by the wife in order to sell the former matrimonial home should be included in an assessment of the liabilities.
The husband sought a share of the wife’s superannuation given the parties agreed to put money into renovations rather than contribute to superannuation in the husband’s name during the marriage. I agree it should be taken into account in assessing the property available for distribution. That property is as follows:
Superannuation:
$
Husband’s superannuation
6,000
Wife’s superannuation
89,950
Total superannuation
95,950
Liabilities:
Business liabilities at separation
42,579
Costs of sale of FMH
15,565
Total liabilities
58,144
NET property
37,806
Contributions
Neither party had assets of significance at the commencement of the relationship. Both parties worked hard during the relationship and both were involved in the care of the children. The husband asserted he made vastly greater financial contributions during the relationship. He said the income from the business paid all of the family’s expenses and the wife was able to keep her income for herself. The wife strongly disputed that. She said her income was used to pay for petrol, the children’s childcare expenses and occasionally business expenses. Her evidence on that issue was compelling and I accept it.
In my view the contributions made by each party throughout the relationship should be accorded equal weight.
The husband repeatedly accused the wife of contributing to his very difficult financial circumstances after separation. He said she had failed to keep up with the book work for the business in the last two years of the relationship. He said he kept asking her to do the work and she refused. The wife said she worked full-time and carried out the vast majority of parenting and homemaking tasks. She said the husband simply got up in the morning and went to work whereas she got up, went to the gym very early before the children woke up and before the husband went to work. She then got the children up and ready for school including making their lunches and ensuring they had everything they needed for the day. After working a full day she came home, prepared the evening meal, carried out various household chores, ensured the children did their homework and put the children to bed. She said the husband assisted in the evenings but most of the work fell to her. She said by the time the children were in bed and asleep she was exhausted and did not have the energy to do the book work. The husband asserted that when he tried to arrange for an independent bookkeeper to help, the wife refused to provide documents. The wife vehemently denied that. She said all of the information required to do the book work was in the office located on the business premises and there was nothing to stop the husband making them available to another bookkeeper. I note in any event that part of the list of business liabilities given to the wife in mid-2012 included an amount of $13,432.50 owing to the husband’s friend, Mr J, for bookkeeping with the invoice said to be dated 12 June 2012. Presumably that means the issue concerning the bookwork being behind was able to be addressed by mid-2012.
The children lived with the husband full-time for three months following the physical separation of the parties but the wife continued to care for them before school every day when the husband went to work early. Within three months of separation the children were living week about with both parties.
The husband had the benefit of sole use of the former matrimonial home for three years after separation. His sister lived with him for almost all of that period and paid him $130 per week in rent which he has not adequately accounted for. Throughout that period the wife paid for private rental accommodation for herself and the children. She took out a personal loan of $10,000 to buy furniture and other necessary household items as the husband retained almost all of the contents of the former matrimonial home.
The wife has paid for most of the children’s expenses since separation. At the time she commenced proceedings in October 2012 she said she was paying all school and preschool and extra-curricular expenses for both children, all day-care expenses for Y and all out of school hours care for X. The childcare expenses alone amounted to $330 per fortnight and the school fees were $100 per fortnight. She also paid for X’s football registration for 2012 which was $120 and Y’s preschool contribution fee of $220 at the beginning of 2012. The husband agreed the wife paid those expenses but said she was in receipt of the full amount of Family Tax Benefit and the childcare rebate and once he began to receive a share of those he paid for day-care fees when Y was in his care. He said that he could not afford the out of school hours’ care for X or childcare for Y so the children were with him outside of their school and preschool hours.
The wife paid child support to the husband in accordance with the administrative assessment until the children began to live primarily with her in October 2014. The husband was then required to pay child support but now has substantial arrears.
The biggest item of value is the wife’s superannuation which increased substantially after separation without any direct or indirect contribution by the husband.
In my view the wife should take a greater share of the available assets on account of her greater post separation contributions. However there are now no assets to divide apart from the parties’ modest superannuation interests of which the wife should take a greater share.
Section 75(2) factors
The applicant wife is a forty year old (occupation omitted) in good health. She has a secure job in the (employer omitted) and is likely to remain employed into the future. In her financial statement filed on 29 June 2016 she declared income of approximately $82,500 per annum. She is able to support herself and the children from her earnings but has suffered a significant financial setback as a result of the husband’s actions in damaging the former matrimonial home. In her affidavit filed on 29 June 2016 the wife said she had had to increase her personal loan several times. At that time she had two personal loans totalling $29,000 and outstanding legal fees of $33,000.
As a result of the parenting decision, the wife will have greater responsibility for the care of the children. They are still young and will be financially dependent for many years to come. It is likely she will continue to bear the majority of their expenses at least in the short to medium term. If the husband earns an income in the future he is likely to be required to pay child support but whether or not he will actually do so is a moot point.
The husband is aged forty-three. He has been in poor physical and mental health for some years. He suffered from stress during the relationship and was hospitalised on several occasions with a suspected heart attack. He was diagnosed with depression in January 2010 and has at times been suicidal, most acutely in 2015. Although he has very good social skills and often presents well, the weight of the evidence suggests his mental illness is very serious.
Once the stress of these proceedings is over he may return to more robust health, as expected by Dr W and Ms L. The husband told the Court he intends to continue to operate his business. He is a skilled and experienced (occupation omitted) and should be able to support himself from his earnings whether derived from his own business or from working for someone else. However, his illness is serious and long standing and there is a reasonable prospect that his income earning capacity will continue to be compromised by it. This factor alone would warrant a weighting in his favour in terms of adjustment of the property interests.
Offsetting that however is the devaluing of the major asset of the parties being the former matrimonial home. Section 75(1)(o) requires the Court to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”. In this case the diminution in the value of the home as a result of the husband’s actions is a matter which the justice of the case requires to be taken into account. The fact that the value was reduced by $120,000 between September 2012 and when it was sold in May 2015 is attributable entirely to the husband.
In Kowaliw & Kowaliw (1981) FLC 91-092 Baker J made the following statement about financial losses incurred during a marriage:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to applications for settlement of property instituted under the provisions of sec. 79.
The husband can certainly be described as having acted recklessly, negligently or wantonly. In my view, balancing the competing section 75(2) factors there should be no adjustment to either party on account of them.
Justice and equity considerations
The husband argued that it would be most unfair for the wife to be able to take the only remaining asset which is her superannuation interests without taking a share of the business liabilities. That argument is persuasive and, had the husband not caused the diminution in the value of the former matrimonial home it is likely that both parties would have shared both the superannuation interests and the business liabilities. However, for the reasons stated I am satisfied the only just and equitable outcome in the circumstances of this case is for the wife to retain her superannuation and for the husband to retain his superannuation and the business and for the husband to be responsible for the business debts, whatever they now are.
Costs issues
The wife filed an amended initiating application on 29 June 2015 seeking the enforcement of various costs orders previously made. The matter was not really addressed during the trial. The wife has the benefit of the orders having been made. On the evidence before me there appear to be no resources from which the husband could currently satisfy those orders but his obligation to pay them continues. He may have the capacity to do so if and when his financial circumstances improve. The wife is entitled to bring further enforcement proceedings if required.
Furniture and chattels
I intend to order that the husband make available to the wife the same items listed at order 5 of the orders of 6 June 2013 in the event they are still in the husband’s possession. It is a modest list of items which are of personal and sentimental value to the wife and which ought to be returned to her if possible.
I certify that the preceding two hundred and twenty-one (221) paragraphs are a true copy of the reasons for judgment of Judge Hughes
Date: 29 July 2016
Key Legal Topics
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Family Law
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