BURNS & BOSTON

[2011] FamCA 495

FAMILY COURT OF AUSTRALIA

BURNS & BOSTON [2011] FamCA 495

FAMILY LAW - CHILDREN – With whom a child lives – With whom a child communicates

FAMILY LAW – PROPERTY SETTLEMENT

Family Law Act 1975 (Cth)

Cotton & Cotton (1983) FLC 91-330
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405
Pishke & Rupp; Bannon & Rupp [2010] FamCA 632
Tate and Tate [2000] FamCA 1040

APPLICANT: Ms Burns

RESPONDENT: Mr Boston

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4823 of 2010

DATE DELIVERED: 27 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cantwell

SOLICITOR FOR THE APPLICANT: Hogg and Reid

THE RESPONDENT: No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr T Mulvany

Orders

1. That the wife have sole parental responsibility for the child C born … November 1998.

2. That C live with the wife.

3. That the husband be restrained from:

   (a)       spending time with C;

   (b)communicating with C including directly by electronic and social media means.

4. That until 1 July 2014, should the husband wish to seek parenting orders in respect of C in the future, he be at liberty to make an ex parte application for permission to file and serve upon the wife such application for parenting orders as he is so advised and any such ex parte application shall be listed:

   (a)      in the Family Court of Australia at Melbourne; and

   (b)before the Honourable Justice Cronin unless otherwise impracticable to do so.

5. That the Independent Children’s Lawyer serve a copy of these orders and the reasons for judgment upon the husband by post to the husband’s last known address (notwithstanding the husband informed the Court that he did not wish any such communication of legal documents).

6. That so soon as the Independent Children’s Lawyer has complied with paragraph 5 of these orders, he shall be discharged from the proceedings.

7. That the husband transfer to the wife all of his interest in the properties at:

   (a)       … H Street, N (“the N property”); and

   (b)       … H Street, B (“the B property”).

8. That the wife be responsible for and indemnify the husband in respect of the following:

   (a)the National Australia Bank mortgage encumbering the N property;

   (b)the National Australia Bank mortgage encumbering the B property; and

   (c)the overdraft liability to the National Australia Bank secured by the mortgage encumbering the B property,

   and the wife be at liberty to refinance any such liabilities and/or sell properties to give effect to these orders.

9. That pursuant to section 106A of the Family Law Act 1975, a registrar of the Family Court of Australia at the Melbourne Registry is forthwith authorised to sign any document in the name of the husband to give effect to these orders including but not limited to:

   (a)the transfer to the wife of the husband’s interest in the N property and

   (b)the B property and the consequent sales or transfers of either or both of those properties; and

   (c)the discharge of the liabilities to the National Australia Bank arising out of its securities encumbering the N property and the B property.

10. That the husband be responsible for and indemnify the wife in respect of the following debts associated with the business partnership known as “[Business 1]”:

    (a)       Law Firm 1;

    (b)       Business 2;

    (c)       Collection Agency 1;

    (d)       Business 3;

    (e)       Business 4;

    (f)       Business 5;

    (g)       Collection Agency 2;

    (h)       Business 6;

    (i)        Business 7;

    (j)        Business 8;

    (k)       Business 9;

    (l)        Mr A;

    (m)      Australian Taxation Office.

11. That the husband be responsible for, pay and indemnify the wife in respect of, any liability arising out of any company in which the husband is a director and shareholder.

12. That each party otherwise retain and the other relinquish any interest in, any property including any interest in any superannuation fund as a member, which that party has as at the date of these orders.

13. That the husband pay the wife costs fixed in the sum of $13,000.

14. That all extant applications be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Burns & Boston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4823 of 2010

Ms Burns

Applicant

And

Mr Boston

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are proceedings between Mr Boston (“the husband”) and Ms Burns (“the wife”) about parenting and property issues.

2. The husband did not participate in the final hearing and for the reasons below, it is appropriate for the matters to be finalised in his absence.

3. Two significant problems arose because of the absence of the husband.  First, in respect of the parenting matter, the Court did not have the benefit of his evidence or submissions about what was an appropriate proposal for the future welfare of the one child of the relationship C who was born in November 1998.  Secondly, the husband’s lack of evidence about financial matters put the wife in the invidious position of having to prove a case in which the equity was at best modest if not nominal. 

4. The husband may say he would not have been heard or that he would not have been accorded fairness.  In fact, he did say that but having had the opportunity to hear the wife’s evidence and read the limited evidence that the husband provided, I reject his position.  In my view, the husband was given every opportunity to participate.  Indeed, I permitted his evidence, such as it was, to be taken into consideration along with his amended response, despite his absence.

5. Before dealing with the evidence, the procedural aspects of this case need to be understood having regard to the position that the husband adopted. 

6. In a letter to the Court, the husband made clear he was not participating yet he apparently wanted a number of matters considered. 

The husband’s view about the court process

1. There have been a number of hearings in this Court and also in the local Magistrates’ Court between the parties.  The husband understands the legal process but he has a jaundiced view about it.  On what I read and heard including the cross-examination of the wife, his jaundiced view is without foundation.

2. On 28 March 2011, the husband appeared before Senior Registrar FitzGibbon and orders to spend time with his daughter were suspended.  It was obvious from the order that the case needed a final hearing because of the background and also because of the suspension of time.  It must be kept in mind that C is now 12 years of age.  She has been embroiled in her parents’ dispute.

3. On 12 April 2011 in chambers, I ordered the first day of hearing occur on 3 June 2011 before me and required all parties to attend.  I also made interlocutory orders about discovery and the filing of precise orders that the parties were seeking.

4. On 3 June 2011, the wife appeared represented by counsel and the Independent Children’s Lawyer also appeared.  The husband failed to appear.  At the urging of the wife and the Independent Children’s Lawyer, I set the final part of the hearing for 20 June 2011 and made orders that the wife could proceed undefended if the husband did not attend.  Orders were also made for service of documents upon the husband and I am satisfied that those documents have been brought to his attention.  I can say that because of the matters that now follow.

5. On 16 June 2011 by email, the husband wrote to the Independent Children’s Lawyer confirming the receipt of an affidavit.  The husband said that the document addressed “The Needs of the Law” but it did nothing to address the “damage that had been done” to ensure communication between himself and C.  He pointed out that C had informed “everyone” that she missed her father every day.

6. Minutes later, the husband emailed to the Independent Children’s Lawyer again and said:

   So in the end you do get paid for service despite making reference to providing pro bono service.  It’s a system which simply benefits lawyers, ignores parents and children and provides a great income for members of the club.

7. Moments later again, he emailed the Independent Children’s Lawyer and said:

   Everything I have ever heard about this Court and it’s (sic) impact on men I now understand and is in my opinion worse than reported by the media and yet there is no reform…Again all I can do is wait until she’s old enough to be free of the madness.  What a total lack of support from other men of a Father with a difficult wife.

8. Again moments later, he wrote:

   There is no point sending me any more communication Tim.  As my parenthood has been stolen from me kindly refrain from continuing to email me meaningless legal documents.

9. In a letter he wrote to the Court on 17 June 2011, the husband said amongst other things that he was unable to attend court, that he was living in Brisbane with financial support of a new partner and was without income or employment.  He said he was financially and mentally exhausted and suffering from the separation from his “beautiful daughter”.  He said he realised that the role of the “other side” was to:

   Submit a husband to continuing pressure and this has certainly been executed very well but with respect to attending court I simply do not have the funds to fly and attend.

   Whatever the husband’s perception may have been, this Court does not countenance that sort of conduct and there was certainly no evidence here of it. 

10. The husband’s letter went on to say that without considerable amounts of money, a litigant was significantly at a disadvantage in “the Family Court” whether being represented or self-represented.  That too has no foundation according to any evidence that was presented.  The husband said that he attempted to represent his side as the husband and father but “this has held little recognition or weight by the court”.  When I turn to the evidence below noting that the husband had the opportunity to read it, it is clear that that allegation not only has no substance but belies the fact that the husband does not accept any responsibility for the dilemma that arose from the breakdown of this marriage.  The husband’s letter went on to say that the “system” appeared content in depriving a daughter of a father and vice versa.  The rhetoric was unhelpful.

11. In his letter, the husband said that he would send an affidavit.  Counsel for the wife and the Independent Children’s Lawyer both confirmed that they had received bits of that document and had exchanged the parts that they had which enabled them to put together the whole.  I shall refer to that affidavit further but suffice to say, it does not open any window of opportunity for me to see from the husband’s perspective what he can offer C.  His statements about being a husband and father do not sit comfortably with the evidence.  He was not here to challenge the wife’s evidence nor to assist me in trying to work out what was best for C.  His emails including a meaningless diatribe on 16 June 2011 to the wife’s solicitor leave me perplexed as to his intentions as well as to his state of mind. 

12. It is therefore timely to consider what more the Court could do when its statutory obligation is to make decisions for the best interests of a child as well as to divide property fairly in circumstances where the husband hampers it by bald assertions like those above, unmatched by any evidence. 

13. This Court does not recognise default judgments.  An undefended hearing requires the applicant to still prove all of the necessary parts of the case that would support the proposed orders.  As the Full Court said in Tate and Tate [2000] FamCA 1040:

    It is not for litigants, appearing in person or otherwise, to pick and choose which orders they will or will not obey, or when they may condescend to comply with them.  Such an attitude…if adopted, brings its own nemesis.  That is not only because it is contemptuous of the Court’s orders.  It is also because it works in justice to the parties who do comply, and unfairness to that myriad of litigants waiting to have their matters despatched as soon as the Court can hear them.  The luxury of procrastination – let alone deliberate disobedience – is a luxury of the past if it ever existed.

14. Whilst the clear requirement in Chapter III of the Commonwealth Constitution is that litigants have a fair hearing and that judicial power of the Commonwealth is exercised in accordance with the judicial process, there are rules that must be obeyed by all. Courts do not exist to allow litigants to simply vent their frustrations. The same rules apply to them as those who have the benefit and privilege of legal representation. The Court does not fulfil some role of inquiry agent but must do the best it can with the evidence with which it is presented.

15. Division 12A of the Family Law Act 1975 (Cth) (“the Act”) enables a court to search for answers that might best promote an outcome for children. Simple accusations of lack of interest by this Court concerning the welfare of children might be popular in the media but they have no basis in the Australian judicial system. In this case, sadly, the husband has chosen not to participate and I do not accept that his absence has been caused by the tyranny of distance or the lack of funds. He had been given ample warning to prepare for a hearing and he would have been heard had he chosen to comply with the orders of the Court.

16. The Court is equipped with technology that would have overcome distance and cost problems.  The husband could have inquired about how the Court could have assisted him to participate.  Instead, he walked away.  The evidence below however might give some insight as to his absence not only from the hearing but also from the life of C.

17. Having regard to the stance of the husband, there is every reason in this case, to bring the matters to an end so that at least the wife can get on with life and C can have some certainty.

Background

1. By way of background, the husband is 45 years of age.  I am not sure what work he does because his occupational description is not necessarily consistent with his statement that he is unemployed.  The wife is an executive officer aged 42 years.  She alone provides the financial support for C.

2. The parties began living together in 1991 and married in 1992.  They initially separated under the one roof in December 2009 and the husband finally vacated what was the matrimonial home on 4 February 2010.  The parties have not divorced.

3. The home in which the parties lived was in N.  The unusual feature of the property is that it is jointly owned by the husband and wife and the wife’s mother.  The wife’s mother is recorded on title as a tenant in common with the parties as to 50 per cent. 

4. In the latter period of the marriage, the husband began a food processing business in B and commuted from Melbourne.  That business was conducted from premises purchased in B and financed by overdraft facilities.  It failed.  The parties’ financial position is now dire. 

The end of the relationship

1. On 29 January 2010, the husband assaulted the wife.  Between February 2010 and April 2010, the husband sent the wife 800 text messages.  That led to an application being made in the local Magistrates’ Court for an intervention order.  In early June 2010, an interim intervention order was made despite the husband’s objection.  The order was made final in mid June 2010 and expires in mid December 2011.  The significance of that order is that despite any denial by the husband, there is a finding against him of family violence. 

Violence and aberrant behavour ledading to an order for psychiatric assessment

1. The incident in 2010 was not the first.  The wife set out in her affidavit a variety of assertions about what had happened from 2001 onwards culminating in the separation.  I do not have the benefit of the husband’s version of all those events but his dismissive statements in the affidavit that I earlier mentioned give me cause for concern about his role as a parent. 

2. Without the evidence being challenged, I accept the wife’s evidence that in 2001, the husband pushed her in the presence of C and that in the following year there was further violence. 

3. In 2004/2005, in an inebriated state, the husband told the wife of ending his life. She found a noose set up in the backyard of the house. When I inquired of the wife how long the behaviour of the husband about which she was complaining had continued, she said it was years. Thus, I conclude that the aberrant behaviour particularly in relation to C is not necessarily something associated with the breakdown of the marriage.

4. In 2005 and 2006 there was frequent abuse and the wife was assaulted to the extent that she was bruised. 

5. In 2006, the husband was interviewed by the police who found him with a noose in his car and called the CAT team.  This was not the only evidence of a disturbed psychological state.  The husband has sent text messages to C which could only be interpreted as either statements of intention to commit suicide or wilful behaviour causing damage to his child. 

6. At the local Magistrates’ Court, reference was made to the magistrate of the husband seeing a medical practitioner.   When the matter came on for hearing in this Court, the wife pursued orders for the husband to attend for a psychiatric assessment.  When the matter came on before Mushin J, his Honour was sufficiently concerned to appoint an Independent Children’s Lawyer. 

7. Subsequent to the separation, the husband spent time with C and despite the husband’s assertion that the wife has caused all of his problems, the evidence just does not support that.

The court proceedings

1. In July 2010, Senior Registrar FitzGibbon made orders that the husband spend time with C but also that he attend upon a psychiatrist.  Dr E was the appointed psychiatrist and on 15 September 2010, the husband had an argument with Dr E about fees and walked out before the assessment could be undertaken.  The husband then sought that the wife pay the psychiatric assessment costs.  All of that behaviour indicates that there was a foundation for concern about the husband’s mental state.  He had the opportunity to show that there was no risk in his contact with C but at the same time, it was an opportunity to canvass with the psychiatrist, the allegations of the wife about violence.

2. In July 2010, despite the orders of the Court, the husband arranged for C to telephone the wife to arrange for her to come home early. The wife said she heard the husband in the background screaming and C distressed. The wife accommodated that.

3. In the same month, the husband failed to attend the school to collect C at the appointed time under an order made only days before. The maternal grandmother attended and collected C after waiting 15 minutes with C for the husband to arrive.

4. In August 2010, the wife endeavoured through lawyers to let the husband know that C was giving a speech at her school. Rather than deal with the matter through either the lawyers or the wife, the husband negotiated with C. He chose also not to spend time with C on the Wednesday evenings under the orders until “day light saving” commenced. This dealing with C as he would an adult was inappropriate. The husband continued to do things his way. On 14 October 2010, the husband telephoned C who was with the wife. C began to become distressed and asked her father to stop blaming her for whatever it was that did not meet with the husband’s approval. The involvement of C in that way was inappropriate and poor parenting.

5. In September, despite the existence of the intervention order, C contacted the wife and asked that she provide the husband with her mobile telephone number. The wife provided him with her mother’s number and thereafter followed a sequential series of messages. The messages annexed to the wife’s affidavit filed in October 2010 show a bullying and sarcastic approach by the husband ignoring the intervention order. On 16 October 2010, the husband attended to collect C and walked around the back of the house. When told he was not to be there, he became angry and screamed that she should “fuck off” very close to her face saying also that she had to have some doctor to go and talk to. This behaviour brought about police action.

1. There is a warrant alive for the arrest of the husband.

2. I do not intend to deal with all of the matters over the ensuing months but it is clear that the husband has adopted a position that he is right and everyone else is wrong. His approach to parenting his daughter by involving her in that approach is troubling. He either has an illness or is defiantly prepared to ignore the law.

3. Despite all of those problems, the Senior Registrar amended orders rather than exclude the husband from C’s life.  The orders enabled a changeover to occur away from the home in N.  The Senior Registrar however also ordered that the husband comply with the psychiatric examination.  That was important having regard to the assertion of the husband that the costs of that visit should be borne by the parties.  The Senior Registrar was sufficiently concerned about the matter to order that if the husband failed to undertake the assessment, the wife could proceed to seek an undefended hearing.  The Senior Registrar also made an order fixing the wife’s costs and reserving them to the hearing.

4. Consistent with the husband writing to the Court inappropriately, on 14 December 2010, he wrote to the Senior Registrar indicating that he was withdrawing from the proceedings.  But the following day, he told the wife that he was collecting C as normal.

5. Whilst the wife complained about the number of text messages she received and I have earlier mentioned the sequential nature of the husband’s emails to the Independent Children’s Lawyer, it was the content of his sequential correspondence with C that caused concern for the wife. Having read that material and bearing in mind C’s age and vulnerability, I have to agree with the wife.

6. On 5 February 2011, a series of messages came from the husband. He said he loved C and would do so when he was “gone”. To a suspicious adult, messages to a child along those lines where there was evidence of earlier suicide ideation, must be disconcerting. What did the husband mean? More importantly, what was the impact on a 12 year old mind? If C was troubled about the absence of her father, these messages must have been very confusing. He messaged that he would see C “in the clouds” and “another day and I will be flying in the clouds”. He sought promises from C about what she would do in the future. Rather than that being a parent and child discussion, it looked remarkably like an edict that he would never see her again. Amongst a string of these messages was one that read “I don’t think you’ll see me again”. He made statements such as having “no energy left” and that there was a good chance she would not see him or hear from him after that day. That provoked a response from C asking him not to “give up”. C’s plaintiff plea is worrying because it indicates that she was conscious of what was disturbing her father and she was endeavouring to solve his problem.  There followed clear criticism of the wife to C. Such things as “she will always make it hard” and “she will win because she has left me with all the debt and her mother is paying for her to fight in court” are inappropriate involvement of a 12 year old child in a parenting dispute.  He continued with “I have to go to a better place without all the pressure” could be read as meaning that he was simply moving away but in the context of the suicide ideation and a fertile 12 year old’s mind, it was nothing short of emotional blackmail. The conversations were many and varied but the following to C was inappropriate:

   We will be together everyday [C]. No ugly lawyer or old out of touch judge can stop us. We will soar over land and ocean through the clouds and down to the water. No one to inflict damage on a father and daughter who love each other.

7. The messages mentioned above were many and varied. This was at a time when the husband had not been prepared to undertake a psychiatric examination. I conclude that he has something to fear and the messages support that.

8. The wife’s evidence was that C was distressed and traumatised by the messages. That was obvious from the child’s response. C wanted the wife to help her father. The wife showed a message that she sent to the husband indicating that C was upset and concerned about what he was saying but his response was simply to belligerently say it was all her fault and that of her mother.

9. The wife’s lawyers complained about what the husband was doing but his response to them was dismissive. He said that he would not accept supervised time with C “especially as (the wife) is never supervised and I used to protect [C] from her torment”. The absence of evidence from the husband leaves me puzzled as to what he meant by the wife tormenting C but he had the opportunity to participate and chose not to. His criticisms of the wife were rhetorical and unhelpful. I conclude that he has nothing constructive to say.

10. Around the same period, the husband sent messages to the wife. They too were sequential and little time apart. The sarcasm indicated the lack of respect that the husband had for the wife. Importantly, there was in place an intervention order prohibiting the husband from contacting or communicating with the wife “by any means”. Applications for intervention orders are not treated lightly by the State courts which have a responsibility to the community to have the State intervene to protect people. I do not know what evidence formed the basis of the order but on what I heard, it was well justified.

11. Having heard the wife cross-examined, I am satisfied that despite the view taken by the husband, there was no reason to find that she was manipulating C against him. In dealing with the factors set out in s 60CC of the Act below, I will point out that the husband’s behaviour was irresponsible parenting. Another S 60CC issue relates to family violence and family violence orders. The husband’s continued haranguing and abusive behaviour towards the wife in the face of a violence order carrying sanctions such as imprisonment for breaches indicates that the husband has no respect for the law. That raises questions of what it is that he has to offer C.

12. All of this behaviour led to the application that came before the Senior Registrar on 28 March 2011 in which the orders suspending the husband’s time were made.  That did not deter the husband from continuing to send text messages all of which seem to me to have contravened the intervention order.

13. The wife gave evidence of her concerns about the impact of contact on C.  It was clear from her evidence that she fears his manipulation.  She has endeavoured to refrain from influencing C but I have little understanding of what the husband thinks about that.  His emails would tend to suggest that despite having no face to face contact with C, he will use all of the necessary social network sites and any other means he considers appropriate, to contact C.  That is inappropriate in circumstances where he has not participated in these proceedings because he is putting C in a position where she becomes embroiled in the parental dispute and may not be open and honest with her mother.

14. Despite all of that, the wife’s evidence was that C seemed to enjoy her time with her father. In cross-examination, the wife described C as having a good time. There is more to parenting than having a good time. C is entitled to the benefit of a meaningful relationship with her father. Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 at 519 described those words as meaning a “relationship or a meaningful involvement ... which is important, significant and valuable to the child”. In McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405, the Full Court accepted that description. The Full Court said that the preferred approach was for the Court to consider the prospective benefit to the child of a meaningful or significant relationship with his or her parent. That raises again the question of what does C gain by the husband behaving like this.

15. In the affidavit to which I have already referred filed by the husband on 17 June 2011, he said he dearly loved C and they had a wonderful relationship.  He said she wrote him a heartfelt letter at Christmas 2010 expressing how much she appreciated his influence on her life choices and direction.  This is a 12 year old child.  He then accused the wife and her lawyers of discrediting him making it impracticable for him to maintain a healthy relationship with C in 2010.  That, he said, gave rise to the decision to withdraw his legal efforts to maintain contact.  He went on to say however that he was seeking to have renewed communication by phone and Facebook.  Having regard to the suicide ideation, the violence and the absence of any respect for the wife as a parent, I can have little confidence in the husband.  My concern is that he would destabilise his daughter at a time in her life where she needs stability.  He set out in the affidavit that he had repartnered to a woman who had two sons but there was no more detail than that.  The absence of the psychiatric assessment adds to concerns. 

The positions of the parties

1. The position of the Independent Children’s Lawyer was similar to that of the wife save for one aspect. He promoted the concept that the wife provide the husband with information about C after decisions had been made. That was opposed by the wife and having regard to the precipitous effect of any communication with the husband, I can understand why it would lead to further disputes if not litigation. I therefore reject that concept.

2. The Independent Children’s Lawyer also proposed mutual injunctions and leaving aside any jurisdictional issue that may arise because of the existence of the intervention order, the husband seems to have scant regard for orders. It would seem pointless to make such an order against him if the Court could. There is no basis for me to find that an order should be made against the wife.

3. The Independent Children’s Lawyer proposed that the husband communicate with C by telephone, letter and other forms of social media. I reject those as not being in C’s best interests where the husband behaves in an inappropriate way and there is little or no control over his conduct.

4. The wife’s position was that there should be no contact but specific injunctions precluding the husband from using social media to contact C.  Without some indication as to what benefit C would have from the proposals of the husband, I am left with the conclusion that she would not benefit from that sort of relationship with her father without the material being vetted by the wife.  The wife’s position in relation to that was blunt.  She gave evidence and subjected herself to cross-examination by the Independent Children’s Lawyer who proposed that she provide information to the husband about the progress of C.  Contact with the husband distresses her and she made it clear she feared for her daughter’s emotional safety.  Because of the husband’s dismissive view about all of that, absent any positive evidence by him, I would have to agree with the wife. 

The wife’s evidence

1. In her evidence, the wife said that C was interested in her father and was distressed by his absence as well as his conduct.  Because of the impact upon the wife of the husband’s behaviour and the uncertainty around his proposals, I think it is in the best interests of C that there be no contact along the lines proposed by the husband.  However, children’s welfare changes constantly and it may be that if the husband took a proactive part as he should have in respect of the parenting dispute, a psychiatric examination and a family report may have shown him to have much to offer C.  The trauma of proceedings affects all parties and having heard the wife, I accept her evidence that she needs to move on with her life without the constant fear of the husband’s behaviour with emails and the threat of undermining her relationship with C.  I propose in those circumstances to make an order that if the husband wishes to have a significant part in C’s life over the next three years, he can make an application without service of the documents upon the wife to try and persuade the Court that he ought to be given an opportunity to participate in C’s life and that the wife should be brought into the proceedings accordingly.

2. The wife otherwise sought orders that she have sole responsibility for C’s future and in particular, decisions that need to be made for her, and in the circumstances, I think that is appropriate.

3. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption must be rebutted where there is satisfactory evidence of family violence. I am so satisfied here.

4. Section 60B of the Act sets out the objects and principles underlying Part VII. These are the aspirations of the community for children which guide any decision to be made by the courts.

5. The legislative objects require consideration of how the Court can meet the best interests of the children by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. 

6. The legislative intention is also clear that the objects are to protect children from physical or psychological harm. It is also intended that children receive adequate and proper parenting.

7. The objects of the Act also require consideration of the evidence that would enable a court to say that the orders will ensure that the parents fulfil their duties and meet their responsibilities concerning their children. Nothing I heard from the husband would convince me that he has or would fulfil his responsibilities as a parent.

8. Section 60B sets out the various principles underlying the legislative objects. They are that children have the right to know and be cared for by both parents as well as the right to spend time on a regular basis with and communicate with both parents. Having regard to the matters set out above, C’s rights are not being fulfilled.

9. The principles include parents jointly sharing duties and responsibilities concerning children as well as agreeing about the future parenting of their children. There is no prospect of that happening here. The husband has no respect for the views of the wife and the wife fears the husband. 

10. In this case, there is an intervention order against the husband.

11. Section 60CA requires that when a court is deciding whether to make a parenting order, it must regard the best interests of the child as the paramount consideration. To determine how to assess those best interests, the Court is obliged to turn to the provisions of s 60CC.

12. Consideration of Section 60CC enables a picture to emerge of what orders should be made that might best advance the interests and development of the children.

13. It is a primary consideration in s 60CC that the children have the benefit of having a meaningful relationship with both parents. I have earlier mentioned that. However, that principle sits alongside the obligation of the Court to protect a child from physical or psychological harm from being exposed to abuse, neglect or family violence. The two principles are not weighted. There can be little doubt that exposure of C to her father’s abuse of her mother has an adverse impact upon her and she needs to be protected from that.

14. As to what she should be entitled to benefit from, in Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 Murphy J noted with approval the comments of Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252. His honour there spoke of a chance of a meaningful relationship which was beneficial to the children but also whether both parents had ‘something to offer’ the children. I ask again what it is that the husband offers in circumstances where he deals with C as an adult and exposes her to his own inadequate parenting.

15. The wife provides a stable relationship and environment which I find would be undermined if the husband was not restrained from communicating directly with C. The wife’s distress in the witness box was obvious but it was a result of her concern for what the husband has been doing to C. That has to stop.

16. The husband did not address any of the issues of family violence or his own dysfunctional behaviour. I am not at all convinced he understands what the problem is. If he can show that he has such an understanding and wants to be a significant part of C’s life in its many aspects, he can make an ex parte application and on the premise that he can show he has a different view to that which currently appears, it might then be appropriate to involve the wife. A starting point would be the implementation of the court’s earlier order for a psychiatric examination and some independent evidence that he understands the impact on C of his behaviour.

17. Section 60CC has a number of additional considerations. I have no evidence of C’s views other than those expressed by the parents. This is a case where C would wish to see her father and to communicate with him. There is not enough evidence before me to decide whether I should follow her views. The Independent Children’s Lawyer encouraged the Court to permit communication under the control of C but having regard to the impact on the wife and the danger of the husband using inappropriate concepts, I reject that as an option.

18. Based on the evidence above, I find that the husband blurs the boundary between parent and child and treats C as an equal. That is unhealthy and puts C in a position she should not have to face. A good example of that is the vague messages about suicide which only had the effect of confusing and frightening C all the more.

19. The wife provides all of the physical needs for C. Her education and health show no problems.

20. I have dealt with the child support issues earlier but in this case, they take on added focus because the wife who has a reasonable income, has the ongoing problem of having to deal with the debt position that the husband walked away from.

21. The husband is unable to facilitate a relationship between C and her mother.  There is no indication in the husband’s written material as late as these proceedings, to indicate that he could have any civil and constructive discussion about C’s welfare.

22. Section 60CC requires the Court to consider the likely effect of changes in a child’s circumstances. Nothing suggests that C is being psychologically or emotionally damaged by the absence of the husband. C apparently asks about him and I accept that the wife has handled the matter appropriately. To change those circumstances would lead to the problems that have dogged this family for some years. It is time to give C some respite whilst allowing the husband to re-evaluate his parenting responsibilities.

23. Unlike the husband, I am satisfied that the wife is meeting all of the emotional and intellectual needs of C. 

24. Section 60CC requires a court to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. C is too young to have no prospect of having a father make a meaningful contribution to her life. The onus will be on the husband to show that he has something to offer other than the materials thus far presented. It is important for the wife and C for there to be an ending to these proceedings but it must also be understood that C has a right to have her father in her life if he can show some sense of change.

Property

1. In her application filed 23 May 2011 seeking property orders, in so far as they are relevant, the wife sought:

   (a)that the husband transfer to her his interest in … H Street, N (“the N property”) and she refinance the National Australia Bank mortgage encumbering it;

   (b)the husband and wife sell … H Street, B (“the B property”) and pay out the National Australia Bank mortgage and overdraft of the business;

   (c)to the extent that there was any shortfall on the B property, the wife take responsibility for its discharge;

   (d)the parties retain the various items of personal property including superannuation;

   (e)the husband pay the debts of “[Business 1]” a partnership that ended in early 2010 and the husband otherwise be responsible solely for any liabilities that arose out of the subsequent corporate entity;

   (f)that the husband complete and file the relevant partnership returns;

   (g)there be orders under s 106A of the Act for the registrar to sign documents to give effect to orders; and

   (h)that the husband pay the wife’s costs.

1. In so far as his response provides any assistance, the husband on 28 March 2011 filed a document written in a narrative fashion.  Doing the best I can, it appears he was seeking:

   (a)that he not transfer his interest in the N property until it had been valued and compensation had been paid to him for his relocation;

   (b)that the husband refinance the B mortgage after the N property had been sold and he had received his 25 per cent share less his mortgage obligation together with 50 per cent of the wife’s superannuation less 50 per cent of the share of business debts up until February 2010;

   (c)that he not indemnify the wife in respect of liabilities;

   (d)that he not indemnify the wife in respect of the lease on the car in his possession; and

   (e)that the cost of filing tax returns for the partnership be shared equally between the parties.

The evidence of the husband

1. Much of what the husband said was not evidence, not relevant or not helpful.  Be that as it may, I have taken it into account having regard to the difficult nature of the financial proceedings.

2. The husband said that at the end of 2009, he laboured in the B business premises to save money and at that time, the parties had no more that $1000 in the joint bank account. The husband complained that despite that, the wife made an application to the Court. The husband pointed out that $60,000 was “made available” to the wife to conduct the litigation. Whilst that may have been unnecessary if the property matters were simple, having regard to the fact that there were parenting issues about which I have earlier expressed concern and the lack of provision of proper financial information as required by the Family Law Rules 2004, it must be seen as appropriate for the wife to have been represented.

3. The husband said that he built up a small business but had experienced debt problems as a result of the loss of retail sales, loss of contracted sales, claims made to Consumer Affairs and demands by council, the bank and suppliers.  To the extent that he expected me to draw an inference that the wife was responsible in some way for this decline, the evidence that he presented, certainly did not establish that. 

4. The husband said that when the relationship began, he built furniture and conducted all of the renovation and landscaping of the family home.  He noted that the money used for the purchase of the N property and the B property and business came from the National Australia Bank which was secured over the N property.  The evidence shows that the wife’s mother who had a legal interest in that property contributed not only in terms of money but also guaranteed the loan of the husband and wife.  Taking the mother’s interest out of the property pool leaves the parties with effectively no assets. 

5. The husband’s evidence was that both parties worked and in 2003, both husband and wife signed a lease of premises in B with the prospect of eventually moving the family there so that the wife could work with local health care providers.  A food processing machine was acquired but retail sales were slow.  The husband said that his income in 2005 was $50,000 from the business whilst the wife worked full-time at a private health care provider.  He seemed to complain that he was doing all of the work and required the wife to assist with administration and bookkeeping but she declined.  In 2006, a licence relating to the B outlet was sold with a plan to establish a new Melbourne business and the funds from that simply paid down the debts.  The parties had a holiday but were still left with $80,000 shortfall.  They then purchased … H Street in B and that was funded by the National Australia Bank mortgage.  Financially, things became worse and the National Australia Bank sent letters of demand requiring repossession of both properties.  In March 2011 according to the husband, the business collapsed.

6. Much of the material in the husband’s affidavit was commentary rather than evidence.  His dissatisfaction with the role that the wife played in respect of the business that he was trying to maintain, indicates the state of the relationship between them.  It did little to assist me in assessing the respective contributions of the parties.  Conversely, the wife addressed those matters in some detail.

7. For reasons which were not clear, the husband sought that he be given compensation for the cost required to repair a vehicle that was leased by the parties.  This Court does not have power to make orders for compensation but adjustments can be made to property to achieve a just and equitable outcome.  The husband did not set out why some particular consideration should be given to him for that where he had possession of the vehicle.  The fact that both parties signed the commitment to the lease is hardly relevant.

8. The husband maintained he had a “conservative $200,000 of equity in the [N property]”, and in his view, those funds could have been used for the business to stay liquid providing the wife assisted him to generate the financial statements required by the bank.  That was a forlorn hope. 

9. The partnership of the parties continued from July 2006 until March 2010 and he said that he was seeking to have the entire costs of bringing the bookwork up to date visited upon the wife.  Why that was so having regard to the fact that the wife was primarily responsible for the day to day care of C and working full-time and paying the mortgage on the N property escapes me.

10. Ultimately, the husband said that he was forced to abandon business goals and redirect his attention to gaining outside employment and was seeking compensation for the time and expenses to relocate the assets of the business or alternatively time and travel required to sell those assets.  Sadly, he failed to understand what was required for him to present a case that would assist the determination.

The wife’s evidence

1. The wife filed an affidavit on 8 July 2010 and, nothing the husband said, addressed the issues to which she referred. 

2. The wife’s evidence was that the parties met in about the end of 1989 and commenced living together in the middle of 1991 at which time neither party had any assets of substance.  The parties lived in rented accommodation and the wife worked as a qualified health care worker and the husband was self-employed.  The wife observed that the husband’s income was very little and she bore the day to day expenses including the rent.

3. When the parties married in 1992, they commenced living with the wife’s parents and both continued employment.

4. In 1994, the parties purchased a unit in E for $97,000 borrowing $90,000.  The balance was provided by their own resources.  I have presumed that as the parties were living with the wife’s parents, they were able to save some money.

5. The wife set out in her affidavit her work history noting that her income substantially exceeded that of the husband, meaning that she was ultimately responsible for the day to day expenses of the parties. 

6. In 1998, the parties purchased … H Street, N for $297,000.  The property was purchased with the wife’s mother as to one-half share and the other one-half share was owned by the parties.  The wife’s mother contributed $190,000 of the $297,000 and the parties borrowed $180,000 approximately from the ANZ Bank.  All of that money was not required for the purchase so the excess was used to renovate. 

7. The wife then took leave and C was born.  When C was five months old, the wife returned to work on a part-time basis and the husband operated his business from home during which time he cared for C on the three days that the wife worked.

8. In late 1998, the E unit was sold and there was $40,000 left over.  The N property was then refinanced with the National Australia Bank.

9. In 1998, the husband commenced operating Business 1 from the N home.  That business involved selling pre-packed processed food to various outlets.  The wife became a partner.

10. In 2003, the husband obtained the rental property at … H Street, B (adjacent to the B Property) and the wife and C remained in Melbourne travelling to B on the weekends.

11. In 2006, the retail business was sold for $150,000 much of which seems to have gone in the repayment of debt.

12. Around the same time, the parties purchased the premises at … H Street, B (the B Property) which was adjacent to where the business had been operating.  Further attempts were then made to operate the food processing business from N but because of its limited operation, it was not financial. 

13. The parties separated after a disagreement about where the husband wanted to operate the business and on 19 January 2010 the assault earlier mentioned occurred. 

14. Subsequent to the separation of the parties, the wife has been responsible for the support of C and the funding of the mortgage.  In addition, she has faced debt collectors and made arrangements for the discharge of one of the more significant creditors.

15. In her financial statement, the wife set out the current indebtedness.  It is unclear whether those debts will be pursued by the creditors or whether they would be paid from the resources of the parties.  It is the wife’s evidence that the finance company which holds the lease in respect of the husband’s motor vehicle has indicated that it intends to repossess it.  Despite that, action has been taken against the wife.  There is an unknown taxation liability because the returns have not been lodged.  The husband’s response to that is that there is much bookkeeping to be done and somehow, that was the wife’s responsibility.  I reject all of that.

16. The husband’s lack of cooperation in respect of the provision of material is disconcerting.  Senior Registrar FitzGibbon noted in March 2011 that the husband attended with a suitcase of documents but whether they were collated or in any form of order, is unknown.

17. Section 79 of the Act permits the Court to alter the interests of the parties in property of either of them but only in circumstances where it is satisfied that it is just and equitable to do so. In making the assessment of what should be done in respect of the alteration of property, the Court is required by s 79(4) to take into account their respective contributions. Contributions are many and varied. They can be direct financial contributions as well as non-financial contributions. They can be indirect contributions such as running a business or managing a family. The role that the wife has played in this case in respect of the care of C is a significant role particularly having regard to the fact that she is apparently solely responsible for the financial support of the child.

18. A significant feature relating to post-separation contribution is the compliance with obligations to provide child support but the wife’s counsel conceded that she was not pursuing the husband to fulfil those obligations.  Having regard to the fact that he indicates that he is unemployed and reliant upon a partner with two young children, it would suggest that the wife’s approach is sensible but that does not obviate the husband’s responsibility to provide for his child notwithstanding he is not having any contact with her.

19. The process normally followed is that set out by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at 78,386 where the Full Court said:

    Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.

20. The first step therefore is to determine the pool of assets.

21. The pool of assets can be seen to be the interest of the parties in the N property, the B property and some chattels.  The N property has been valued at $800,000.  The parties have a one-half interest in that.  The wife’s mother has not been joined in the proceedings and she has not sought any orders asserting that she might be entitled to more than her legal interest as a result of some equitable principle.  Similarly, the husband, despite being urged to make up his mind, did not join the wife’s mother to assert that she had anything less than the legal interest shown on the title.  For that reason, I propose to treat the equity of the parties in the N property as a one-half share.

22. The liabilities are alarming.  The mortgage to the National Australia Bank encumbering the N property is $261,000 and there is $408,000 owing in respect of the mortgage on the B property.  The overdraft which is cross-collateralised in respect of both real properties is just in excess of $80,000. 

23. The combination of the assets and the liabilities means that there is potentially $20,000 in equity subject to there not being any significant sale costs in respect of the B property nor transfer fees if the wife is to take responsibility for the N property.  There may be other unknown liabilities.  There is no evidence before me as to the chattels or the stock and equipment that the husband referred to in his affidavit as being stored and for which he was seeking “compensation”.  I have presumed therefore that he thought it sufficiently important to store those assets such that he will either conduct a business in the future or at least sell the assets to cover some of the debts that he may have.  Those assets have not been valued.

24. The liabilities to which the wife referred relating to the partnership included rates on the N property, rates on the B property, tax and the car lease.  If those are excluded on the basis that they are not strictly attributable to the partnership, there are liabilities of potentially $20,000.  On that basis, there is little or no equity in the parties’ property save for whatever interest there may be in chattels such as furniture and the plant and equipment to which I have just referred.  That does not mean that the Court should not and does not have power to alter the interests of the parties in the respect of assets to bring to an end all financial ties.

25. In this case, superannuation has not been mentioned in any detail to date.  The wife’s affidavit, which was not challenged by the husband, said that she had an interest in superannuation funds to the extent of $124,000.  The husband’s best evidence about his own interest in a superannuation fund was that he valued it at $3000.  The wife’s position was that she did not know what his interest was.

26. Superannuation should not be treated as part of the one pool having regard to the fact that it is a different species of asset which cannot be equated with cash.  The parties are of an age where they cannot do anything with it until retirement which is a long way from now.  That does not mean that the same approach in respect of the assessments set out in the steps referred to in Hickey should not be followed.  In this case therefore I propose to treat the superannuation as a separate asset to those otherwise referred to above.

27. For the purposes of the first step therefore I find that the superannuation entitlements of the parties total $127,000 and there is no equity in any other assets. 

28. The second step is to assess the contributions of the parties and to give them weight.  All of the evidence points to the fact that the wife’s financial contribution during the relationship was greater than the husband and she also undertook the role of managing the family often in the absence of the husband whilst he was away conducting the business in B.  I am not prepared to be critical of the wife having regard to the fact that she was working full-time and undertaking that role even though the husband may have a different view.  Subsequent to separation, the wife has fulfilled the role of homemaker and parent with no assistance from the husband.  In those circumstances, I am satisfied that the contribution of the wife has been greater than that of the husband.  My assessment is that the contributions favour the wife as to 75 per cent in respect of the non-superannuation assets bearing in mind that the pool of assets is negligible or nominal.

29. In respect of the superannuation, the wife has had the benefit of an employment situation in which her contributions were no doubt committed and whilst the parties were together, they clearly contributed in their own ways.  I see no reason to differentiate between the contributions to the superannuation and those in relation to the non-superannuation assets.  Accordingly I assess the wife’s contributions as to 75 per cent generally.

30. The third step in the process is to examine the future economic circumstances of the parties having regard to the matters set out in s 75(2) of the Act. The wife is earning a good salary and the husband has not provided the Court with any updated information as to his financial circumstances. Adopting that position entitles the Court to presume that he is able to support himself particularly having regard to the fact that he seems to have undertaken new family responsibilities. The wife will have the responsibility for the day to day care of C as well as the constant responsibility of worrying about the payment of debts. No order that I can make will prevent the creditors from pursuing their just entitlements. The husband does however seem to have retained the plant and equipment which he has in storage and I see no reason why he should not take responsibility for the debts or some of them rather than simply abandon the wife to those problems. That is a matter that I shall deal with in the fourth step below. In respect of other matters set out in s 75(2) of the Act, the wife will not be receiving any child support and C is 12 years of age which means that there are a number of years to go before she is self-sufficient.

31. Having regard to the fact that there is virtually no discernible equity in the non-superannuation assets, this is a case where it is appropriate to adjust matters further in the wife’s favour bearing in mind she will have the ongoing responsibility of facing creditors.  Accordingly I make a further adjustment in her favour of 25 per cent in respect of the declared non-superannuation assets that is, save as to the plant and equipment stored by the husband she should have the whole of the pool of assets excluding the plant and equipment and chattels that have arisen from the food processing business and assets of the company that the husband seems to have conducted. 

32. That too however means that the husband should bear the responsibility for some of the debts because he still has some assets.  The wife will no doubt face the consequences of creditors chasing her but she should be indemnified by the husband in respect of any debts that she pays other than those which are not really partnership debts.  That indemnity may never prove fruitful and in those circumstances, I think I can confidently make a further adjustment in respect of the superannuation assets such that the wife have the 25 per cent less the $3000 in the husband’s superannuation just in case the indemnity of the husband is valueless.

33. The fourth step in the process is to ultimately come up with a result which is fair to both parties notwithstanding the various mathematical assessments to which I have just referred.  It is the underlying value of what each party retains which must be just and equitable.  The wife is effectively getting no assets and faces the prospect of ongoing liabilities for which an indemnity may be of no value.  She cannot access her superannuation.  The husband has the plant and equipment or access to it and has chosen not to put before the Court any valuation evidence that might clear up just what that is worth.

1. This is a case where 100 per cent of the value of the assets is virtually nothing and 100 per cent of the superannuation may turn out to be of little value if the wife spends all of her income on debt and supporting C.

2. It seems to me that the most sensible, as well as just and equitable outcome in this case, is that the wife have an opportunity to retain the N property with the assistance of her mother by taking over the shortfall on the B debt to the National Australia Bank failing which, the bank will take its own course.  Orders of that nature mean that the husband ends of up with very little if anything.  Having regard to the fact that he has not contributed in any way to these proceedings to assist in the Court’s pursuit of a just and equitable outcome, he is the master of his own demise.

Costs

1. The wife also sought orders for costs.  There are orders for costs reserved predominantly because of the fact that matters were not progressed as a result of the recalcitrance of the husband.

2. Section 117 of the Act says that each party shall bear their own costs unless there are circumstances that justify a departure from that principle. If the Court is considering a departure from that principle, it must take into account the matters set out in s 117(2A) of the Act. Those matters require the Court to consider the financial circumstances of each of the parties, their compliance with court orders, their eligibility for legal aid and any other matter that is relevant. None of those matters in particular takes precedent over any of the others. In this case, the husband has not contributed to the resolution of the matter in circumstances where there is obviously no equity of substance even on his own admission. Further, the husband has not contributed to the resolution of the parenting matter by participating and particularly by failing to participate in the psychiatric examination. In his text messages, he made clear his views of undergoing the psychiatric examination. I was told by counsel for the wife that there was a very clear indication by the Senior Registrar in a hearing that the psychiatric examination was necessary as a prelude to a family report. I am not able to make any determination about what the husband has to offer C. This is a case where there is a justification for a departure from the principle that each party pay their own costs. The disconcerting factor is the absence of financial circumstances of the husband but I again point to the fact that he has indicated he has retained plant and equipment and is now working. His circumstances may not be as good as those of the wife as a result of her employment but she faces the unassisted obligation towards C and the constant problem of cleaning up the debt mess that he left behind when the business came to an end. In those circumstances, this is a case where orders for costs are justified.

3. In making the application for costs, the wife requested that I not order an assessment because of the fact that it would create ongoing litigation.  I agree with that course of action in this case.  I have looked at the respective hearings in relation to the proceedings on 21 December 2010, 28 March 2011 and the hearing before me.  Counsel’s fees in each case are well within the range set out in the scale and the instructing solicitor’s costs of preparation seem to me to be reasonable having regard to the enormous amount of paper that has been generated in this case.  Doing the best I can, I assess the costs of the wife to be paid by the husband as $13,000.  Those costs include the costs of those hearings other than the one before me.

I certify that the preceding One Hundred and Thirty Three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 June 2011.

Associate: 

Date:  27 June 2011