CHARLTON & CHARLTON
[2016] FCCA 1846
•21 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHARLTON & CHARLTON | [2016] FCCA 1846 |
| Catchwords: FAMILY LAW – Property – whether the husband’s abusive and controlling behaviour satisfies the Kennon test. |
| Legislation: Family Law Act 1975, ss.4AB(1), 60B, 60CA, 60CC, 61DA, 65DAA, 72(1), 75(2), 79(2), 79(4) |
| Cases cited: |
| Other materials: Parkinson, Patrick Family Property Law and the Three Fundamental Propositions in Stanford v Stanford (2013) 3 Fam L Rev 80 |
| Applicant: | MS CHARLTON |
| Respondent: | MR CHARLTON |
| File Number: | MLC 183 of 2015 |
| Judgment of: | Judge Riley |
| Hearing dates: | 10, 11, 15 and 16 March 2016 and 11 and 12 April 2016 |
| Date of last submission: | 12 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 21 July 2016 |
REPRESENTATION
| Counsel for the applicant: | Ms Carter |
| Solicitors for the applicant: | Mahons with Yuncken and Yuncken |
| Counsel for the respondent: | Ms Dellidis |
| Solicitors for the respondent: | Robinson Gill |
ORDERS BY THE COURT
The mother have sole parental responsibility for X, born on (omitted) 2003 (“X”), Y, born on (omitted) 2005 (“Y”) and Z, born on (omitted) 2007 (“Z”), except in relation to religious issues, on which the mother and father have equal shared parental responsibility.
The mother inform the father of any major, long-term, decisions she proposes to make in respect of X, Y or Z, that do not concern religion, a reasonable time in advance and seek the father’s input in relation to those decisions.
X, Y and Z live with their mother.
X, Y and Z spend time with their father during school term:
(a)from after school each alternate Thursday to before school the following Monday commencing on 28 July 2016; and
(b)from after school each alternate Thursday to before school the following Friday commencing on 4 August 2016.
ORDERS BY CONSENT
X, Y and Z spend half of each gazetted Victorian school term holiday with each parent as agreed and failing agreement:
(a)with the mother for the first half, from the conclusion of school on the last day of term to 6pm on the middle Saturday and otherwise with the father, in 2016/2017 and alternate years thereafter; and
(b)with the father for the first half, from the conclusion of school on the last day of term to 6pm on the middle Saturday and otherwise with the mother in 2017/2018 and alternate years thereafter.
X, Y and Z spend time with each parent for the gazetted Victorian school long summer holidays at times agreed and failing agreement:
(a)with the mother from the conclusion of school (or 1pm where applicable) on the last day of term to 3:30pm on Christmas Day and from 3:30pm on New Year’s Day until 3:30pm on 15 January and otherwise with the father, in 2016/2017 and each alternate year thereafter; and
(b)with the father from the conclusion of school (or 1pm where applicable) on the last day of term to 3:30pm on Christmas Day and from 3:30pm on New Year’s Day until 3:30pm on 15 January and otherwise with the mother, in 2017/2018 and each alternate year thereafter.
The orders for X, Y and Z’s time with each parent during school term periods be suspended during all gazetted Victorian school holiday periods and resume at the commencement of term as if there had been no intervening holiday period.
For the purposes of special occasions and notwithstanding any other order, X, Y and Z spend time with their parents as follows:
(a)with the mother on Mother’s Day weekend from 5pm Saturday to 5pm Mother’s Day;
(b)with the father on Father’s Day weekend from 5pm Saturday to 5pm Father’s Day;
(c)on each of X, Y and Z’s birthdays, with the parent with whom they are not residing as agreed and failing agreement from 3:30pm to 8pm, save that if the parent with whom X, Y and Z are residing is holidaying in excess of one hour’s drive from Melbourne on Z’s birthday, the residential parent does not need to return to Melbourne to effect changeover;
(d)on the father’s birthday, X, Y and Z spend time with their father as agreed and failing agreement from 3:30pm to 8pm;
(e)on the mother’s birthday, X, Y and Z spend time with their mother as agreed and failing agreement from 3:30pm to 8pm save that if X, Y and Z are in the care of their father and he is holidaying with them in excess of one hour’s drive from Melbourne, he does not need to return to Melbourne to effect changeover, but the mother is at liberty to spend time with X, Y and Z near the place in which they are holidaying.
All changeovers which do not coincide with school times take place at the home of the parent with whom X, Y and Z are about to spend time.
Each parent be at liberty to attend parent-teacher interviews, concerts, sports days, school events and all extra-curricular activities and events to which parents are normally invited.
Each parent inform the other if they intend to take X, Y or Z outside Victoria whilst in their respective care.
Each parent, as soon as practicable, advise the other of any major illness or injury suffered by any of X, Y and Z while in their respective care, and the full contact details of any health professional upon whom they have attended.
ORDERS BY THE COURT
The husband pay to the wife the sum of $299,386 (“the payment”) within 60 days of the making of this order (“the date”).
Contemporaneously with the payment:
(a)the husband refinance the mortgage encumbering the property at Property E (“the former matrimonial home”) into his sole name;
(b)the husband be paid the funds held on trust by his solicitors being the proceeds of the sale of the (omitted) motor vehicle; and
(c)the wife transfer all her right, title and interest in the former matrimonial home, to the husband, at his expense.
In the event the whole of the payment has not been made by the date, the former matrimonial home be placed on the market for sale and the proceeds be divided as follows:
(a)firstly, to pay the costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage and any other encumbrance affecting the home;
(c)thirdly, to the wife, so much of the payment as is then outstanding together with penalty interest calculated in accordance with the Federal Circuit Court Rules 2001; and
(d)the balance to the husband.
ORDERS BY CONSENT
Having been accorded procedural fairness, paragraphs 16 to 22 inclusive of these orders are binding on the trustee of the (omitted) Super Fund membership number (omitted) (“the (omitted) Fund”).
The base amount to be allocated to the wife out of the interest of the husband in the (omitted) Fund pursuant to s.90MT(4) of the Family Law Act 1975 is $24,111.
In accordance with s.90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest held by MR CHARLTON in the (omitted) Fund, the trustee shall:
(a)pay to the wife the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $24,111; and
(b)make a corresponding reduction in the entitlement that the husband would have had but for these orders.
Order 18 have effect from the operative time.
The operative time for the purpose of these orders is the fourth business day after the day on which sealed copies of these orders are served on the trustee of the (omitted) fund.
Until the occurrence of any of:
(a)the establishment of a separate account in the name of the wife in the (omitted) Fund; or
(b)the transfer or rolling-over into another superannuation fund of the payment split created by order 18 hereof; or
(c)the wife satisfying a condition of release and being paid the payment split created by order 18 hereof; or
(d)the wife executing a waiver of rights within the meaning of s.90MZA of the Family Law Act 1975 in relation to the payment split created by order 18 hereof
the husband be restrained by himself and his servants and agents from executing a death benefit nomination in favour of any other person or doing any other act or thing which would render any part of his interest in the (omitted) Fund a non-splittable payment within the meaning of reg.12 or 13 of the Family Law (Superannuation Regulations) 2001 and the trustee of the (omitted) Fund give effect to this order.
Any costs incurred in administering and implementing the splitting order be shared equally between the husband and the wife.
Within 14 days of these orders, the husband provide the following chattels to the wife:
(a)the blue metal table and chairs;
(b)Tasmanian oak outdoor bench seat;
(c)the red velvet chairs;
(d)half of the DVD collection;
(e)a colour copy of the diary of the (country omitted) trip; and
(f)a high resolution electronic copy of the mother and X’s prep grade auction purchase.
Within 14 days of these orders, the wife provide the following chattels to the husband:
(a)high resolution electronic copies of X’s, Y’s and Z’s framed art works; and
(b)the rice cooker.
ORDERS BY THE COURT
Save for the purposes of enforcing these orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)monies standing to the credit of each party remain the sole property of that party;
(c)insurance policies remain the sole property of the owner named thereon;
(d)except as stated in these orders, each party forego any claim he or she may have to any superannuation benefits belonging to or earned by the other;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Charlton & Charlton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 183 of 2015
| MS CHARLTON |
Applicant
And
| MR CHARLTON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting and property orders.
The husband is 50 years old and the wife is 46 years old. They commenced a relationship in about (omitted) 2000 and commenced cohabitation in about (omitted) 2001. They were married on (omitted) 2008. They have three children, X, born on (omitted) 2003 (“X”), Y, born on (omitted) 2005 (“Y”) and Z, born on (omitted) 2007 (“Z”). Separation occurred in December 2014. Since then, the children have largely spent alternate weeks with each of their parents.
During the relationship, the husband was the principal breadwinner. He is a (occupation omitted) and currently earns about $160,000 per year. The wife was, at least initially, the primary carer of the children. She worked full-time as a (occupation omitted) until shortly before X’s birth on (omitted) 2003. In June 2007, the wife began casual (occupation omitted) for two days per week. Commencing in January 2008, the wife obtained various casual positions at (employer omitted) as a (occupation omitted). Her income is presently approximately $78,000 per year.
At the commencement of the relationship, the wife had a son, A, from a previous relationship. He was about nine years old at the time of cohabitation. He spent alternate weekends with his father but lived with the husband and wife in this proceeding for most of the time. A moved out of the family home in (omitted) 2011, when he was about 18, after a falling out with the husband.
The matter was listed for final hearing on 30 November 2015. However, shortly prior to that date, the wife applied for an adjournment on the basis that she wished to file substantially more evidence to the effect that the husband had been abusive towards her throughout the marriage. The wife said that the husband’s abuse was sufficient to engage the Kennon principles in the property aspect of the proceeding and was sufficient to mean that the children of the marriage should not continue to spend equal time with their father. The adjournment was granted.
It should be noted at the outset that, overall, the husband and wife are both very good parents. They are both devoted to X, Y and Z, who are, in the words of the family consultant, exceptional boys.
The wife’s allegations and the husband’s response
The wife’s allegations of abuse, and the husband’s response to them, as set out in their affidavits, was as follows:
Wife’s allegations
Husband’s response
a
On a daily basis, the husband referred to the wife as “a dirty, rotten whore”, “a slut”, “a dirty bitch” and “a filthy slut” in front of the children and the wife’s friends, which the wife found embarrassing and humiliating.
The husband denied being verbally abusive to the wife and denied making derogatory comments about her in the presence of the children or friends.
b
When a friend telephoned the wife and the husband answered the telephone, he would say to the caller, “I’ll just get the slut, she’s just finished sucking me off” or “Hang on, she can’t talk now as she has my cock in her mouth”.
The husband did not respond specifically to this allegation.
c
The husband referred to the wife as “Ms Charlton with big tits”, told people he only married her because “she’s blonde with big tits”, told her to wear tighter tops to show off her breasts and told her to put her breasts on the Internet to make money.
The husband denied that he commented on the wife’s body in the presence of the children or in a serious or insulting way. He claimed that he frequently complimented the wife on her appearance.
d
After the wife had a breast reduction, the husband said she was mutilated and had ruined her only good feature and should sue the surgeon.
The husband did not respond specifically to this allegation.
e
The husband told the wife when to get her pubic hair waxed.
The husband did not respond specifically to this allegation.
f
The husband referred to the wife in front of her friends as a “mangy dog” and called her a “bitch”. He told her friends that he was training her like a dog and that he likes to “do it doggy style”. He told her friends that he could make her do anything he wants and he was only with her because she was good in bed. The wife found this “completely humiliating”.
The husband did not respond specifically to this allegation.
g
The husband repeatedly told the wife she was stupid, a failure and a terrible mother. He told her friends that she had a low IQ and could only be a (occupation omitted). When the wife got a job at (employer omitted), the husband said in front of her friends that they must have had difficulty getting staff if they had to lower their standards and employ the wife.
The husband did not respond specifically to this allegation.
h
When the wife tried to stop the husband commenting on her body and breasts in front of the children, the husband would say “can’t you take a joke” or “you’re no fun” or “stop being so serious”.
The husband did not respond specifically to this allegation.
i
When the wife’s friends told the husband to stop speaking about the wife as he had, he would later tell the wife that he did not like that friend or call her a “bitch” or a “cow”.
The husband did not respond specifically to this allegation.
j
The husband made demeaning comments about other women in front of the wife and the children, such as calling other women “old bags” or “nagging bitches”, or, alternatively, calling them “spunks” or saying “she’s hot”.
The husband denied that he commented on the body or physique of any other women in the presence of the children or in a serious or insulting way. He denied that he was sexist.
k
When the family was out, the husband would point out other women to the wife and the children and say “she’s gorgeous” or “have a look at that” or “check that out” or “I’d like to take her for a drive in my (vehicle omitted)”.
The husband did not respond specifically to this allegation.
l
The husband would text the wife and say how “hot” the nanny looked and what she was wearing.
The husband did not respond specifically to this allegation.
m
The husband said in front of the children that Asian women were “just hot for sex” and referred to Muslims as a “filthy rotten race” and called them “filthy rotten ragheads”.
The husband denied that he was racist.
n
The husband was homophobic and said to the children “don’t be a poof”.
The husband denied that he was homophobic.
o
The husband was very demanding sexually, told the wife explicit details about the sex life of his young assistant, said he wanted to have threesomes and insisted on having sex in public places, such as parks and a football stadium. The wife felt she had no choice but to comply with the requirement for sex in public places, or the husband would make her pay. The husband wanted the wife to bring home (co-workers omitted) for sex.
The husband denied that he was ever sexually abusive or controlling of the wife. The husband denied that he had ever forced the wife into sexual conduct that she was not comfortable with.
p
On their wedding day, the husband drove to an isolated spot on the way from the Church service to the reception, grabbed the wife’s hair and made her fellate him while holding her head. The wife was shocked and distressed but felt she could not do anything about it because they had people waiting at the reception.
The husband denied the “absurd suggestion” that he compelled the wife to engage in oral sex on their wedding day.
q
The husband videotaped the husband and wife having sex and after watching the footage, would tell the wife she had to improve her performance.
The husband did not respond specifically to this allegation.
r
The husband required oral sex frequently. If the wife upset the husband, he would demand oral sex to make it up to him or he would say, “I’ll tell you what, you give me a really raunchy head job and we’ll forget it happened.”
The husband denied that he ever asked the wife to perform a sexual act in exchange for favours.
s
The husband watched the wife while she was in the shower and using the toilet. This made the wife feel invaded and dehumanised, as if she had no rights to her own body.
The husband did not respond specifically to this allegation.
t
Each day, the husband would lay out the underwear he wanted the wife to wear and watch her dress. If she resisted, he would say, “Why are you being difficult” or ask, “Are you meeting up with someone else later?”
The husband did not respond specifically to this allegation.
u
At a kindergarten function to enable parents to get to know each other, the husband proposed a question, “Stand up if you are wearing purple lingerie” and pointed at the wife. The wife heard people gasp and one woman said that she would kill her husband if he did that to her. The wife felt completely publicly humiliated and violated.
The husband did not respond specifically to this allegation.
v
The husband sent the wife repeated text messages about her underwear and to request sexual favours, particularly oral sex and to ask for photographs.
The husband did not respond specifically to this allegation.
w
The husband went to (country omitted) in 2009 and said to the wife, “(country omitted) women are hot for it” and “You’ll be happy because I got my threesome.”
The husband did not respond specifically to this allegation.
x
The wife found emails that the husband had sent to his young personal assistant telling her about the sexual dreams he was having about her.
The husband did not respond specifically to this allegation.
y
The husband made major purchases without obtaining the wife’s agreement and without notifying her, including in January 2004 buying an investment property in (omitted) and a beach box in (omitted) and in 2009 buying a (vehicle omitted) and a holiday cabin in (omitted). The husband also bought without consultation with the wife tools, computer equipment televisions and building materials.
The husband did not respond specifically to this allegation.
z
The wife was required to obtain the husband’s approval before spending money on necessities, such as car registration, insurance and groceries. In April 2012, the husband removed the cards from the wife’s wallet so that she could not access joint funds. The husband transferred money out of the joint account so that the wife could not withdraw cash to pay for groceries and other household expenses.
The husband denied that he was financially controlling. He said that the wife had her own bank account, bought and sold real estate independently of the husband, retained one half of the proceeds of sale of the Property P property, which she used for breast reduction surgery and a holiday to (country omitted), controlled her own income and maintained a business account. The husband conceded that he was sometimes agitated and irritated about the wife’s lack of regard for the cost of living.
aa
The husband was quick to anger and would shout and yell if things were not done as he liked. He required meals to be served “on time” when he came home. The wife would often leave events early to ensure that she would be home in time to cook dinner. The husband would stand over the wife and yell at her and frighten her.
The husband denied that he imposed any rules on the wife in respect of cooking dinner. He said she determined when dinner would be served when she was cooking and he would determine when dinner would be served when he was cooking, which was about three times per week.
ab
The husband would throw or upend things and require the wife to clean them up.
The husband denied that he had an anger issue or that he had broken or displaced items during times of anger.
ac
The husband often locked the wife out of the house, for example, when she was hanging out the washing, when he would require her to say, “Please open the door”.
The husband denied deliberately locking the wife out of the house.
ad
While on a family camping trip in (omitted) 2011, the mother discussed a trip to Queensland with some friends. The father overheard and was furious, making the mother cut short the camping trip and pack up. The father yelled at the mother as she drove home. The children offered to sell their toys so that they could afford the trip to Queensland.
The husband said the wife misrepresented this incident but did not expressly deny the allegations. He said that he learned from family and friends that the wife had organised a trip to Queensland with the children about two or three weeks after this incident. He said that he remained at home while the mother and children went to Queensland.
ae
In 2013, the family was camping when the husband became angry about something. He drove off, leaving the wife and children alone in an isolated place and without transport for four hours. The husband has driven off in anger a number of times, leaving the wife without a car.
The husband did not respond specifically to this allegation but said that he did not have an anger issue.
af
If the wife went out with friends, the husband would demand sexual favours in return. The husband would agree to the wife going out but not return to care for the children in time for her to leave, or would say he was going out as well when it was too late to get a babysitter.
The husband did not respond specifically to this allegation.
ag
When the wife did go out, the husband would specify when she was to be home and text her while she was out. He would question her about where she had been and accuse her of having affairs. He would “fact check” with the wife’s girlfriends to make sure she had told the truth.
The husband did not respond specifically to this allegation.
ah
In 2009, the husband told the wife that she should stop seeing her friend, MV. MV sent the wife emails to see if she was OK but the husband opened the emails before the wife could and told her not to reply. MV asked a mutual friend, Ms D, to ask if the wife was OK. Ms D’s email to the wife was read by the husband and he replied to Ms D, cc’ing the wife, saying:
I have murdered Ms Charlton & chopped her up into little pieces, buried her in the garden. I keep her head in the fridge. The boys and I roam the shopping centres looking for a new wife and mum.
I’ll pass your message on to Ms Charlton when I next get the milk out of the fridge.
The wife was frightened when she read the husband’s email and worried that he wanted to kill her.
The husband did not respond specifically to this allegation.
ai
In 2014, the wife set up an email account for herself which she used to contact MV. When the husband discovered that the wife had been in touch with MV, he removed her credit cards from her wallet.
The husband did not respond specifically to this allegation.
aj
The husband was extremely jealous of the wife talking to other men and accused her of wanting to sleep with them or asked if he should invite them home for a threesome. At a school event, the husband told a man that, “you want to fuck my wife”. The wife began to dread receiving compliments or standing out.
The husband denied that he was extremely jealous during the marriage. He said that, in 2010, the wife commenced an affair with a previous boyfriend. The husband said that he was furious about the affair.
ak
When the wife got a smartphone, it had a password on it. The husband accused the wife of hiding things from him and asked why she needed a password and asked “who are you fucking?” She removed the password and left her telephone where the husband could see it and check who she was communicating with. If the wife said that she did not want the husband to look at her work emails, he would become belligerent, ask “what are you hiding?” and accuse her of having affairs. If the wife received a text in the evening, the husband would say, “who are you sexting now?” When the wife was out or at work, she would send the husband photographs of herself to ease his suspicions.
The husband did not respond specifically to this allegation.
al
The husband resented the wife returning to work in 2008. He said that her work was not important and her real job was being a mother. He refused to care for the children when the wife had to work on weekends or in the evenings and said that it was the wife’s responsibility and she was a terrible mother. She had to (omitted) and so on after the children had gone to bed. The wife missed work commitments because the husband would not make himself available to care for the children.
The husband denied that he ever tried to prevent the wife from working. He said he was very supportive of the wife returning to work and completing her studies.
am
On a Sunday morning in 2012, when the wife was taking X to cricket, the husband removed all of the wife’s papers, books, files, paperwork, computer, desk and bookshelf from her office and threw them into the hallway, saying that her office was now in the dining room.
The husband did not respond specifically to this allegation.
an
In October 2014, the wife worked on a Saturday, the husband was furious that the wife had not prepared dinner, bought fish and chips for himself and the children only. He shouted at the wife, she locked herself in the rumpus room, he banged on the door and the wife thought he was going to kill her. X and Y were frightened and crying. The next day, the husband apologised, gave the wife a coffee and said what a good husband he was for buying her a coffee.
The husband did not respond specifically to this allegation.
ao
In 2014, the wife was home late from work and dinner was not ready when the husband came home. He was furious and screamed at the wife, told the children she did not love them, she prioritised work over her children and she was probably having an affair. He said that the wife owed him “a blow job for this”.
The husband did not respond specifically to this allegation.
ap
The wife felt safe from the husband at work because a security pass was required to get into her section. However, she felt anxious when it was time to go home because she did not know what the husband would be like when she got home. The husband was very disparaging of the (employer omitted). He said that the wife’s wish to do further study was selfish. When the wife got really good feedback from (employer omitted) the husband said it was because the male (co-workers omitted) could ogle her.
The husband did not respond specifically to this allegation.
aq
Initially, the husband was lovely to A. However, after X was born, the husband would say to A on a daily basis, “you’re a nob”, “you’re a loser”, “you’re lazy”, “you’re a pig”, “you’ve got no friends”, “you’re spoiled” and “you’re a dickhead”.
The husband denied that he behaved in an inappropriate manner towards A. The husband said that A became defiant and aggressive in 2011.
ar
The husband made it difficult for the wife to take A to his sporting events by coming home late or by taking the wife’s car with the children’s seats in it. The husband refused to allow the wife to pay for A’s sporting registration or uniforms. The maternal grandmother frequently paid for these things as a gift.
The husband did not respond specifically to this allegation. However, he did say that A was a first class all round sportsman.
as
At the end of 2010, the husband told the wife she had to choose between him and A. He told the wife she could leave but she would not get the children. The husband made A leave in April 2011. The husband made it difficult for the wife to see A. In 2014, the husband said that A was not allowed in the house.
The husband did not respond specifically to this allegation, except to deny that he ordered A from the home.
PARENTING
Proposals
The mother basically proposed that:
a.she have sole parental responsibility for X, Y and Z, except in relation to their religion;
b.X, Y and Z live with her; and
c.X, Y and Z spend time with their father:
i.each alternate Thursday from after school until before school on Friday;
ii.each alternate Friday from after school until before school on Monday; and
iii.half school holidays.
The father basically proposed that:
a.the parents have equal shared parental responsibility for X, Y and Z;
b.X, Y and Z spend week about with each of their parents; and
c.X, Y and Z spend from after school until 8pm each Wednesday with whichever parent they are not living with that week.
Agreed orders
To their credit, the parents consented to orders as follows:
a.The children spend time with each parent for the gazetted Victorian school long summer holidays at times agreed and failing agreement:
i.with the mother from the conclusion of school (or 1pm where applicable) on the last day of term to 3:30pm on Christmas Day and from 3.30pm on New Year’s Day until 3.30pm on 15 January, and otherwise with the father, in 2016/2017 and each alternate year thereafter;
ii.with the father from the conclusion of school (or 1pm where applicable) on the last day of term to 3:30pm on Christmas Day and from 3:30pm on New Year’s Day until 3:30pm on 15 January, and otherwise with the mother, in 2017/2018 and each alternate year thereafter.
b.The orders for the children’s time with each parent during school term periods is suspended during all gazetted Victorian school holiday periods and shall resume at the commencement of term as if there had been no intervening holiday period.
c.For the purposes of special occasions and notwithstanding any other order, the children shall spend time with their parents as follows:
i.with the mother on Mother’s Day weekend from 5pm Saturday to 5pm Mother’s Day.
ii.with the father on Father’s Day weekend from 5pm Saturday to 5 pm Father’s Day.
iii.on each of the children’s birthdays, time with the parent with whom they are not residing as agreed and failing agreement from 3:30pm to 8pm, save that if the parent with whom the children are residing is holidaying in excess of one hour’s drive from Melbourne on Z’s birthday, the residential parent does not need to return to Melbourne to effect changeover.
iv.on the father’s birthday, the children spend time with the father as agreed and failing agreement from 3:30pm to 8pm;
v.on the mother’s birthday, the children spend time with the mother as agreed and failing agreement from 3:30pm to 8pm save that if the children are in the care of their father and he is holidaying with the children in excess of 1 hour’s drive from Melbourne, he does not need to return to Melbourne to effect changeover, but the mother is at liberty to spend time with the children near the place in which they are holidaying.
d.All changeovers which do not coincide with school times shall take place at the home of the parent whose time with the children is about to commence.
e.Each parent be at liberty to attend parent-teacher interviews, concerts, sports days, school events and all extra-curricular activities and events to which parents are normally invited.
f.Each parent inform the other if they intend to take the children outside of Victoria whilst in their respective care.
g.Each party, as soon as practicable, advise the other of any major illness or injury suffered by any of the children in their respective care, and the full contact details of any health professional upon whom the children have attended.
In addition, the parents agreed that, if the court did not order week about term school term time, then the order for school holiday time should be expressed as follows:
The children spend half of each of the gazetted Victorian school term holidays with each parent as agreed and failing agreement:
a.with the mother for the first half, from the conclusion of school on the last day of term to 6pm on the middle Saturday, and otherwise with the father, in 2016/2017 and alternate years thereafter;
b.with the father for the first half, from the conclusion of school on the last day of term to 6pm on the middle Saturday, and otherwise with the mother, in 2017/2018 and alternate years thereafter.
The parents also agreed that, in the event that the court did order week about school term time, then the order for school holiday time should be expressed as follows:
The children spend time each of the gazetted Victorian school term holidays on a week-about basis with each parent, with change-overs at 3:30pm Fridays.
Undisputed facts
The facts that were agreed or not actively disputed in relation to parenting issues are as follows.
The mother’s father was violent and dangerous. He attacked her stepfather with a knife and cut him on the head. The mother’s parents separated when the mother in this proceeding was six years old. Her mother re-partnered with Mr H, who later died in a car accident. The mother and her sisters were sexually abused as children by their stepfather.
The mother had a tumour on her neck when she was 30, which resulted in a minor stroke. This occurred at about the time the mother and the father began their relationship.
X, Y and Z attended the local (omitted) primary school, commencing in 2009, 2011 and 2013 respectively. X has nut and egg allergies and needs an EpiPen. He started high school at (omitted) in 2016.
In 2009, the mother had breast reduction surgery.
In 2009, the father had a holiday without the mother and children in (country omitted).
In 2010, the mother had a trip for 12 days without the father and children in (country omitted). The father cared for the children while the mother was away. He kept a journal titled “What the boys did when Mum went to (country omitted)” and gave it to the mother on her return. It is stated to be by X, Y and Z but it was clearly written by the father. On the whole, it is lovely. However, in 15 pages, it mentions A only two or three times. One of those mentions was, “A is still in bed – he came home late last night with some tart (only kidding).”
In 2011, A left the family home at the instigation of the father and contrary to the wishes of the mother.
Text messages between the father and mother between 2012 and 2014 show that the father repeatedly asked the mother which G-string she was wearing and whether he could have “a blowie tonight”.
On 9 July 2012, the mother sent the father a text message saying, “R u able to pick up some bubble wrap on your way home??” The father replied, “Ok. What’s in it for me?”
On 20 July 2012, the father told the mother by text message that he wanted her to send him an emoji of a threesome.
On (omitted) 2012, which was the father’s birthday, he sent the mother a text message at 9:02am saying, “Need pic of u in that g and bra to confirm that you are wearing it on my birthday.” When the mother did not respond, the father sent the mother another text message at 11:12am saying, “Where’s that photo?” and another at 12:05pm saying, “Still waiting…..” and another at 4:09pm saying, “Where’s that snap? Are you wearing them?”
On 15 February 2013, the father sent the mother a text message saying, “I thought we were going to pick up a threesome?????”
On 6 May 2013, the mother sent the father a text message saying, “Can I leave work at 6:30 (home by 7.30ish)?” The father replied, “Ok”. The mother replied, “Thank you. I have a deadline looming.” The father replied, “I’m looking forward to that dirty session in the cot as payment.”
On 22 May 2013, the mother sent the father a text message saying, “Can I get petrol tonight?” The father replied saying, “Yes. Can I get a blowjob tonight?”
On 13 June 2013, the mother sent the father a text message saying, “Hello. Due to arrive at [(omitted) train station] at 8:09. Is a 8.15 pick up possible?” The father replied saying, “Ok. Can you give me a blowjob tonight?”
On 24 June 2013, the father sent the mother a text message saying, “I forgot to choose your g banger so you’d better send me a photo.”
On 30 August 2014, the father sent the mother a text message saying, “90% chows at the auction”, referring to Chinese people and noted that the real estate agent spoke in Chinese.
The mother informed the father on about 1 December 2014 that she wished to end the marriage. Later, the parents agreed that the mother would move out of the family home in early January 2015 while the father and the boys would be camping at (omitted). It was agreed that the boys would be with their father from 2 January to 11 January 2015 and then with their mother for the remainder of the school holidays.
On about 2 December 2014, the mother found a rental property. On 17 December 2014, the father discovered that the mother had contacted Centrelink to inform them of the separation. On 22 December 2014, the mother signed the lease for the rental property and collected the keys.
With the assistance of some friends and unbeknownst to the father, the mother moved out of the family home on 23 December 2014. The father attended a function after work on that day. While she was moving, the children were cared for by friends. The mother left a note for the father saying that she would contact him on 24 December 2014 to discuss arrangements. She told the children about the separation as she was driving them to the new home.
The father contacted the police late on 23 December 2014. They sent the mother a text at 10:49pm asking the mother to contact them. She did so and they attended the house at 11:30pm. The police told the mother that they would advise the father that the children were safe and well and the police did not have any concerns about the mother’s mental state.
Later that night, the father rang the mother’s mobile telephone at 12:20am, 12:21am, 12:22am (twice) and 12:23am (twice) and sent her a text message at 1:06am. The mother did not respond to those calls or the text.
At 6:16am on 24 December 2014, the father sent the mother a text message saying that if he did not hear from the children by 7am, he would contact child protection.
That morning, the father also sent text messages to four mothers from the children’s school advising them that the mother had cleaned out the house and abducted the children and asking them to talk some sense into the mother. One of the mothers telephoned the mother advising her to make a statement to the police and contact child protection, which she did. The mother made an appointment to attend the Ringwood Magistrate’s Court family violence registry on 31 December 2014.
The parents arranged for the father to spend time with the children at 10am on 25 December 2014 at McDonald’s, so that he could give the children their Christmas presents. The mother sat with a friend at a separate table. The meeting took place without incident. The father did not have any Christmas presents to give the children on that occasion.
At 7:16pm on Christmas day, the father asked the mother by text if he could see the children the next day at 11am at a particular café. The mother agreed. The father attended with his brother and an adult nephew. The mother attended with a friend. The father asked if he could give the presents to the children away from the table where people were seated. The mother agreed. A little later, she realised that the father had left with the children. The father’s brother handed the mother two envelopes, one of which contained a letter from the father to the mother. It said, among other things (errors in the original):
5.I request that you do not return to this home to collect any more belongings. Should you attempt to do so I will obtain an intervention order to legally prevent you from coming onto the property.
6.Until that time that a formal court order or similar agreement is in place for access is in place, X, Y and Z will remain at the family home. …
7.For the period 26/12/2014 to 12/01/2015 the boys will remain in my care. …
8.I agree to let you talk to the boys by phone and Skype.
The mother was able to speak to the children by telephone over the next few weeks but the father did not facilitate Skype communication.
On 31 December 2014, the mother obtained an interim intervention order against the father ex parte. The mother was named as the only protected person. It was returnable on 6 February 2015.
On 7 January 2015, the mother’s solicitor sent a letter to the father via email. Among other things, the letter noted that the father was due to return to work on (omitted) 2015. That happens to be the mother’s birthday. The mother proposed that she collect the children from the father at 7am on (omitted) 2015 at McDonald’s in (omitted). The letter also noted that it was Z’s birthday on (omitted) 2015 and expressed a wish that arrangements could be put in place to enable the mother to spend some time with the children on that date.
In email communication between the father and mother on 7 January 2015, the father proposed that the mother attend dinner with him and the children on (omitted) 2015 to celebrate Z’s birthday. The father also indicated that he was represented by a particular firm of solicitors.
On 8 January 2015, the mother’s solicitors wrote to the father’s solicitors asking that the father reconsider his proposal for Z’s birthday celebration in view of the interim intervention order and the history of the matter. In the alternative, the mother proposed that she spend time with the children between 1:30pm and 4pm on 10 or 11 January 2015 in (omitted). The letter also noted that there was no reasonable basis for the father’s position that the mother should not be alone with the children. The father did not change his position about the celebration for Z’s birthday and did not agree for the children to spend time with their mother on (omitted) 2015.
On 12 January 2015, the father did not return the children to their mother. Instead, his solicitor wrote to the mother’s solicitor saying that he would remain on leave and would not return the children to the mother until an appropriate agreement regarding child care was put in place. The father proposed a week about arrangement.
The mother filed an initiating application on 13 January 2015 in which she sought a recovery order, equal shared parental responsibility and for the children to live with her and spend alternate weekends and alternate Wednesday evenings with their father. That application was returnable on 16 February 2015.
By letter dated 13 January 2015, the father’s solicitors proposed that the children return to the mother’s care on 16 January 2015 for the remainder of the school holidays and then spend week about with each parent. On 14 January 2015, the mother’s solicitor replied proposing that the children be returned to her at 4pm on 14 January 2015 and then live with her and spend alternate weekends and alternate Wednesday evenings with their father.
Having received no response, on 15 January 2015, the mother’s solicitors wrote to the father’s solicitors seeking confirmation that the children would be returned to the mother’s care on 16 January 2015. The father’s solicitors replied on 15 January 2015 saying that the father did not agree to the mother having unsupervised time with the children until care arrangements were in place.
By letter dated 16 January 2015, the mother’s solicitor said that the mother had no option but to agree to equal time pending the hearing on 16 February 2015, with the children to be in the mother’s care for the remainder of the school holidays. The father returned X, Y and Z to their mother’s care on 16 January 2015.
On or about 16 January 2015, the father filed an intervention order application against the mother. It was returnable with the mother’s application on 6 February 2015. Both parties were legally represented on 6 February 2015. Both matters were adjourned for a directions hearing on 23 March 2015 and a final hearing on 23 April 2015.
After the conclusion of the long school holidays in 2014/2015, the children spent week about with each parent. The children also had dinner each Wednesday evening with the parent with whom they were not living that week. The father remained living in the family home. The mother rented a house a few minutes’ drive away.
At around this time, Y had a dispute with X and got a kitchen knife form the drawer and threatened X with it. The mother resolved the issue. She did not tell the father about it until it was revealed to him during the first family report interview.
The matter came before this court for the first time on 16 February 2015 in the duty list. Both parents were represented by experienced counsel. The parents consented to orders for the existing week about arrangement to continue until the release of a private family report, expected in mid-April 2015 and the determination of their interim applications, which were adjourned to 21 April 2015.
Following separation, both parents continued to take X, Y and Z to their sporting commitments and both parents often attended the same events. Both parents continued to be actively involved in the organisational aspects of X, Y and Z’s sporting commitments, by umpiring, coaching, time keeping and so on.
Family report interviews occurred on 1 April 2015. On 9 April 2015, the father signed an undertaking, without admissions, not to commit family violence. He did not pursue his application against the mother. The mother’s application against the father was dismissed in April 2015, on the basis of his undertaking.
The family report was dated 17 April 2015 and was exhibited to an affidavit sworn on that date by the family consultant, Ms A. Ms A basically recommended that:
a.the parents have equal shared parental responsibility for X, Y and Z;
b.X, Y and Z spend equal time with each parent conditional on the father attending a men’s behavioural change program;
c.each parent attend a parenting after separation course; and
d.if Y continued to have behavioural issues, the parents seek counselling for him.
Ms A also noted that, at the time of her family report interviews, the parents were in dispute about which secondary school X should attend the following year. Both parents had intended X, Y and Z to attend (omitted) School, which the father had attended. However, following the separation, the father considered that finances did not permit X, Y and Z to attend (omitted) School and said he should attend (omitted) instead. The mother remained adamant that X, and Y and Z should attend (omitted) School.
On 21 April 2015, the matter returned to this court for interim hearing. On that occasion, the parties were again represented by experienced counsel. The father proposed and the mother did not oppose orders that:
a.X, Y and Z spend week about with each parent, with changeover on Friday after school;
b.X, Y and Z, spend Wednesday evening with the parent with whom they were not living that week;
c.each parent complete a post-separation parenting program; and
d.the father complete a men’s behavioural change program.
Orders were made to that effect. In addition, the matter was listed for final hearing on 30 November 2015.
Although the orders provided for changeovers at a McDonald’s, after a time the parents agreed to effect change over at their respective homes.
In April 2015, the father applied for a change of assessment for child support. The application was determined in May 2015 favourably to the father, with the mother’s income being increased to $75,000.
On 8 July 2015, the mother wrote to the father by email saying:
Given that it is school holidays I was hoping to extend drop off time tonight to 8.30pm. Is this ok with you?
Also, I would like to take Y to an event in December but the only date possible is during your week. It would be part of his Christmas gift. Would you consider letting me have Y for an evening outside of my scheduled time?
The father replied by email the same day saying:
No. Dropping them off at 8.30pm of course gives me no quality time to sit down with them of an evening. Let’s just stick to the Court Orders. That’s what they are in place for. We’ve spoken about this before.
What event? What date? It may be a surprise to you bit (sic) I also have arrangements for December that involve the children that you need to consider. Final Orders will be in place by December so I’d suggest that you try and manage things within the allotted times. I also suggest that you drop the use of emotive reasoning (“It would be part of his Christmas gift”) as a condition for a request to change the current arrangements.
Typically, your requests do not provide for a quid pro quo. If you wish for me to consider making changes to the current arrangements, then I’d suggest that you consider this.
On 7 August 2015, the father applied to reduce the amount of child support payable by him to the mother. A delegate of the Child Support Registrar decided on 22 January 2016 to increase the amount of child support payable by the father.
In August 2015, X was identified by his teachers as having difficulties focusing on and learning new concepts in maths. The school arranged for him to have additional work in a small group with a teachers’ aid.
In September 2015, there was an incident in which X was said to have been disrespectful towards the teacher, by leaving a meeting before it had concluded. However, the school ultimately accepted that there had been a misunderstanding.
In November 2015, X was involved in an incident in which another student, Y, was hit with a hat. Y’s parents wrote to the school and said that X had run past Y and hit him in the face with a school hat that had vomit in it. The school conducted an investigation. X said:
a.Y had grabbed X;
b.X had swung around and hit Y with his hat;
c.the hat had some food in it which he had started to eat but then spat out into the hat;
d.Y started chasing X;
e.X ran away saying, “Sorry, sorry”;
f.Y’s mother telephoned X’s mother about the incident;
g.X’s mother called him aside at (hobby omitted);
h.X sent Y a text message apologising and saying that he did not realise that he had hit him so hard.
Another student said that he saw Y chasing X but thought it was all a joke.
Another student said:
a.he had been with X when they ate some biscuits that were “really yuk”;
b.X had spat his out into a bag but missed and it hit the hat;
c.Y grabbed X;
d.X “whacked” Y with the hat which had the “chewed stuff” inside it;
e.Y realised it was vomit;
f.X got away; and
g.it had seemed that X and Y were both joking around but “obviously not”.
On Tuesday 1 December 2015, Y taped a drawing pin on a girl’s chair. She sat on the pin and experienced a good deal of pain though it did not break her skin. It was not known at that time who had taped the drawing pin on the girl’s chair. No one owned up to having done it. On Thursday, 3 December 2015, the teacher gave a talk about everyone taking responsibility for the safety and well-being of all students. Later, Y told the teacher that he had stuck the pin on the chair. He said that he really regretted it, wished it had never happened and was not sure why he had done it. The teacher wrote a letter to the mother and father saying that the situation had been dealt with that it was important for the parents to be aware of it.
The school reports for X, Y and Z for 2013 to 2015 show that they were all delightful boys, who reached the expected level in all areas and in some cases exceeded those levels. X was a school captain in year 6. He was described as “an absolute pleasure to teach”, and as an “enthusiastic and highly engaged student”. He was also described as “outgoing and sociable” with a “vibrant personality”. Y was described as a “sensitive and friendly child”, with “excellent hand-eye co-ordination”, “very strong fundamental movement skills” and “great sporting prowess”. He was described as “an extremely popular class member who consistently displays a quirky sense of humour”. Z was described as “a caring and considerate student” who has “a kind disposition” and a “helpful nature”. He was described as a “vibrant and energetic” member of the class and a “thoughtful listener” with a “caring and generous nature”.
On 30 November 2015, on the mother’s application, the court adjourned the final hearing to 9 March 2016, made orders for the filing of further affidavits and fixed the father’s costs of the adjournment in the sum of $4,200. The court ordered that the mother pay those costs as part of the property settlement if the court was not satisfied that the mother had been unable to prepare her case due to the alleged abuse perpetrated upon her by the father.
A, who is now 23 years old, has been estranged from both his mother and the father in this proceeding and consequently, from his half-siblings, X, Y and Z. A presently has an ongoing relationship with his own father. He has resumed some electronic communication with his mother.
The mother’s oral evidence
The mother conceded that changeovers that did not occur at school occurred at the former matrimonial home, where the father lives. The mother also conceded that, since separation, she had not complained in these proceedings about any inappropriate interaction between the father and herself that had occurred at changeover, or at any of the children’s extracurricular activities or anywhere else. She also conceded that there had been no breach of court orders.
The mother said that a friend had written the note that was left for the father on 23 December 2014 and the mother had signed it. She conceded that the note did not suggest that she was frightened. She conceded that the note said that she would telephone the father on 24 December 2014 but she did not contact him until the morning of 25 December 2014. She said that she did not call the father earlier because she was very frightened. The mother acknowledged that she did not respond to the father’s numerous text and telephone calls on 23 and 24 December 2014.
The mother said that she found her rental property on 2 December 2014 and decided to move out on 23 December 2014, the day she signed the lease. She confirmed that she had told the husband previously that she was leaving the marriage and had agreed to move out while the children were scheduled to be on a camping trip with their father in early January 2015. She confirmed that she and the father had agreed on the dates that the children would be with each of them in January 2015. The mother said that, when she made that agreement, she intended to honour it.
The mother said that she did not comply with the agreement because she formed the belief that the father had decided that, after she moved out while the children were with their father on the camping trip, he would then prevent her from seeing them. She said that, at that time, the father was very angry and unpredictable.
The mother maintained that the father’s abduction of the children was worse than hers, even though the father permitted the children to speak to the mother nearly every day by telephone and the mother had not.
The mother acknowledged that the father had invited the mother to have afternoon tea with the children and him at (omitted), at the home of Ms M and Mr T, on 29 December 2014, but the mother declined that invitation. Instead, she asked for changeover at (omitted) Police Station, on the advice of (omitted) Domestic Violence Service.
The mother said that she made an application for an intervention order on 31 December 2014 because she feared that the father would hurt the children to hurt her. She said that she feared that he would seek retribution. She said it was a sincere fear at that time but since the proceedings had commenced in this court, she no longer felt that fear.
The mother conceded that the father had never been physically abusive to the children and had never hit the mother.
The mother conceded that she sought protection for herself and the children in her intervention order application lodged on 31 December 2014 but the magistrate did not include the children in the order and only restrained the father from committing family violence, rather than making the usual raft of orders.
The mother acknowledged that, on (omitted) 2014, the father invited the mother to attend Z’s birthday celebration on (omitted) 2014 with the father and the children at the campsite where they were staying but the mother declined that invitation.
The mother conceded that she told the court on 13 January 2015 that X, Z and Y were named as affected family members in the intervention order. The mother said that she had been represented at that time and had not herself been across the technical issues. The mother conceded that her notice of risk filed in this court did not say that the father had any mental health or drug and alcohol issues.
The mother confirmed that her reasons for opposing equal shared care were that X, Y and Z need a stable base, they have suffered in the 14 months since shared care began and the parents cannot cooperate or communicate.
The mother agreed that she saw X, Y and Z for dinner on alternate Wednesdays, spoke to them by telephone three times in each of the weeks when they were not living with her and attended many of their extracurricular activities whether they were living with her at the time or not. The mother agreed that she and the father frequently attended the same extracurricular activities at the same time and the mother had the opportunity to speak and interact with them at such times.
The mother conceded that, although she claimed to have been concerned about how X, Y and Z were coping with the separation, she did not follow Ms A’s advice and organise counselling for them. She said that she tried twice to organise counselling through the school but was unsuccessful. She said that the school recommended external counselling but she was unable to afford it.
The mother said that X’s grade six teacher had been very concerned about his ability to concentrate in maths classes. The mother had photocopied maths sheets for him so that he could do them in both houses. The mother said that, previously, X had not experienced such problems at school.
The mother conceded that she and the father had been able to communicate by email to change the changeover point from McDonald’s to the father’s home and had otherwise been able to communicate by email and text in a businesslike manner about logistical matters. The mother conceded that, since separation, the father had not used email to harass or intimidate or argue with her.
The mother said that she and the father had agreed that Y and Z would attend (hobby omitted) on Wednesday nights but then the father changed his mind and enrolled them in (hobbies omitted) instead.
The mother said that she had expected to be involved in the discussion of who would be X’s sponsor for his (omitted) as it is a significant rite in the (omitted) religion. She said that she was surprised to discover that the sponsor had been chosen without consultation with her. Though the mother initially criticised the father for allowing X’s sponsor to be chosen without reference to her, she eventually conceded that X had chosen his sponsor himself and that the sponsor was suitable.
The mother said that, if one of the children cried, the father would say, “Don’t be a poof”, and then, if Y cried, X would say to him, “Don’t be a poof”.
The mother conceded that the father had a very strong sense of humour and was sporty.
The mother said that the father had attitudes and values that she did not want to be passed on X, Y and Z.
The mother said that, in her relationship with the father, sex was used as a problem solver. She said that he was more willing to negotiate after sex, in relation to such things as the children’s sporting arrangements or getting petrol in the car.
The mother said that, in the six weeks after giving birth that doctors describe as the recovery window, the father said to her, “You’ve still got a gob.” The mother said that there was no room in the relationship for communicating her discomfort about the father’s demands for sex.
The mother conceded that in 2010 she had flirted by email with a former boyfriend and had attempted to initiate an affair with him. She said that it did not result in a sexual relationship. She conceded that the father found out about the contact that the mother had made with the former boyfriend and conceded that the father did not react in an explosive way.
The mother acknowledged that she had gone to Sydney in August 2010 with a female friend and participated in the (hobby omitted). She also conceded that, in September 2010, she had gone to (country omitted) without the father for a ten day trip.
The mother acknowledged that the journal the father prepared about X, Y and Z’s time while the mother was in (country omitted) showed that the father had warmth, humour, tenderness and love and was able to parent the children in a constructive, firm and positive way.
In relation to her allegation that the father was financially controlling, the mother conceded that a property was purchased in (omitted) in her sole name. She also conceded that, in April 2008, the sum of $289,242.58 from the proceeds of the sale of Property P was held in an account in her sole name by (omitted). In October 2008, the father was made redundant. In 2009, a Toyota (omitted) motor vehicle was put in the mother’s sole name. She conceded that she independently made the decision to pay for a breast reduction. However, the mother maintained that she did not have even half a say in the couple’s financial decisions.
The mother conceded that she saw a solicitor in 2009 in relation to a possible separation. However, she said that the solicitor told her that she was not emotionally ready to leave. The mother said that, at about that time, she also started to see a psychologist, Mr N, with a view to salvaging her marriage. The mother denied that she had been “shoring up money” to enable her to leave the father.
The mother conceded that she had a breast reduction surgery in about November 2009.
The mother agreed that, in January 2010, she registered a business with two partners. It was a (omitted) business. The purpose of the trip to (country omitted) was for the two Australian partners, the mother and her friend, to meet their (country omitted) partner and source (omitted) and a manufacturer. The business produced (omitted) and ceased in 2012.
The mother conceded that she had an account for the business separate from her accounts with the father. The mother also conceded that she had a (omitted) Credit Union account in her sole name, A had an account that was linked to the mother’s (omitted) account and the mother had a separate Christmas Club account in her sole name.
In terms of her claim that the father restricted her social life, the mother conceded that she interacted with her business partners, her work colleagues at work (though barely outside of work) and had at times been in a mothers’ group and book club. She also conceded that she had been a team manager of A’s (hobby omitted) team when he was 12, had roles on the children’s kinder committees, was currently the coach of a child’s (hobby omitted) team and had been a parent representative at the children’s primary school. The mother also conceded that she sometimes went out with her friends without the father.
The mother claimed that her participation in mothers’ group dinners, for example, was restricted and often she would have to cancel or had to arrive late after she had finished her parenting duties.
The mother agreed that she decided to end the marriage in 2014 when the father said that A would never be allowed in the house. The mother maintained that A was placid and there had been no issues with alcohol, cigarettes, coming home late or having inappropriate girlfriends or male friends. She said that he just played sport, ate and slept. She said that he had worked as a (occupation omitted) and received very positive feedback about his maturity and his management of younger children. She said that his issues with the father were about keeping his room tidy and helping with the household chores. She said he is now six foot five and 95 kilograms but when he lived with the family, he was a couple of inches shorter and lanky. The parents agreed that A is a very strong athlete.
Overall, I found the mother in the witness box to be a very forthright witness. She appeared to listen carefully to the questions she was asked and endeavoured to answer them simply and directly. She readily made appropriate concessions about the father’s good points, without needing to be cornered. With a couple of exceptions, which could be explained by confusion or poor recollection, I found the mother to be an honest and very credible witness. I found her to be particularly convincing when referring to the abuse she claimed to have suffered at the hands of the father.
The father’s oral evidence
In cross-examination, the father initially denied that he had ever been abusive towards the wife. However, when pressed, he conceded that he might sometimes have called her an “idiot” and a “bitch”. He also conceded that he might have said that something she had done was “stupid”.
The father denied twice that he had ever said that he married the mother only because she is “blonde with big tits”. However, when pressed, he conceded that he may have said that in a one-on-one conversation with the mother in a “joking manner”.
The father conceded that, in the context of a conversation between the two of them “in an element of fun”, he may have referred to the mother as “Ms Charlton with big tits”. The father claimed that he had never publicly pointed to the mother’s breasts in order to demean her. However he said that he may have referred to her breasts as part of a conversation in which there was “lewd talk amongst a group of people”.
The father in cross-examination denied that he had told the mother that the breast reduction surgery had mutilated her breasts and that she had ruined her only good feature. However, when pressed, the father conceded that the surgery had “left considerable scarring” and he told the mother that it had left scars and she should see her GP about it. The father also conceded that he may have told mother that she should sue the surgeon because he had done a hatchet job.
The father conceded that he discussed the sex life of other people in conversation with the mother.
The father conceded that he may have said in the company of other people that he wanted the mother to look slutty in the way that she dressed.
The father conceded that, when the mother got the job at (employer omitted), he may have said “in a joking manner” that, “They are desperate. They have lowered their standards.”
The father conceded that he may sometimes have watched the mother while she was showering and said, “I’m watching the show.”
The father conceded that he may have sent the mother a text saying that he had filmed her having sex but he claimed that it was just a joke to “stir her up” and he had not actually filmed her.
The father conceded that he sometimes laid out all of the mother’s lingerie on the bed, as “a bit of fun”, but denied instructing her about which items to wear.
The father conceded that he sometimes asked the mother to text him a photograph of the lingerie she was wearing but said that it was just banter between them.
The father conceded that he would have told the mother that some of her friends were “nagging bitches”.
The father conceded that he may have texted the mother about the nannies’ clothes if they were “revealing”.
The father conceded that he might have said to the mother that she could go out with friends in exchange for oral sex but only “in a joking manner”.
The father conceded that, if the mother asked him to get something at the shops, he may have replied, “What’s in it for me?”
The father conceded that he once locked the mother out of the house. He said that, on other occasions when she was locked out, he had fallen asleep and did not hear her knocking.
The father conceded that, when the mother went out with friends, he asked her “Who was there?”, “What did you eat?”, “Where did you go?”
The father conceded that, if the mother had been out and had a cocktail, he may have said to her, “in a joking manner”, “Did you give a gob job for that cocktail?”
The father conceded that, if the mother had been out, he may have said to her, “Who did you shag tonight?”
The father said in cross-examination that the mother, later in the marriage, had “a secret email address, which came out by accident”. He said that her computer was password protected but she gave him access.
In relation to the email to Ms D about murdering the mother and keeping her head in the fridge, the father conceded that, a few days later, he sent another email to Ms D saying that, “I was talking to her today, sat in front of the fridge with a cold beer.” The father claimed in cross-examination that the email was “quite clearly … a joke”. When asked whether he accepted the mother’s evidence that the two emails frightened her, the father said he did not accept that because she did not say to him at the time that she was frightened.
When asked whether he accepted that if a person had done all of the things the mother said the father had done, that person would not be a good role model for X, Y and Z, the father said that, if those things happened, it was between two adults and never in front of the children. The father continued that he would accept that such a person had faults but would not accept that they would be a bad parent.
The father conceded that, during the marriage, he was sometimes dismissive of things the mother said and would reply, “We will talk about that later” or “You are imagining things” or “Don’t be silly. That is not what is happening.”
The father said in cross-examination that he had never been of the view that the mother had prioritised her work over the care of X, Y and Z. However, he agreed that Ms A had accurately recorded that:
Mr Charlton is concerned that Ms Charlton’s work and study are taking precedence over the children and that she is time-poor. I am not.
The father said that was an obscure comment that he made at a time of immense pressure.
The father conceded in cross-examination that he moved all of the mother’s things out of her study and said, “I have set your office up now in the lounge room” but denied that he did this in an angry way.
The father conceded that there was one occasion when the mother did the shopping and there was no money in the account to pay for the groceries.
The father conceded that, on a camping trip, he discovered from another person that the mother had planned another camping trip to Queensland and he and the mother argued. He said that the mother packed up and he helped her at the end.
The father conceded that, on another occasion, he drove off and left the mother and the children at a campsite for four hours but said it was not an isolated place.
The father said that he “negotiated” with the mother for A to leave the house. The father conceded that the mother was not happy about A leaving. The father said that he and A did not get along for the last two years that A lived with the family.
The father conceded that he may have told A he was lazy and called him “a dickhead” and “a pig”.
The father had a good deal of difficulty answering a question about whether he did not want the mother to continue to have a relationship with A. He said firstly that he was estranged from A. He said secondly that he and A did not feel comfortable around each other. He said thirdly that A could have come over for dinner but he, the father, did not want to be there.
The father expressly denied, in answer to a question from the court, ever saying to X, Y or Z, “Don’t be a poof.”
Overall, the father was not a particularly impressive witness. He was often not forthright in answering questions and was sometimes evasive and argumentative. He sometimes changed his evidence when pressed. He presented as someone who was being smart. He showed no insight into the impact the words that he conceded using might had had on the mother or A.
Other lay witnesses
The mother and father called a variety of friends and relations to give evidence. On the whole, both sets of witnesses gave evidence supporting the claims of the person who had called them.
However, significantly, in the cross-examination of Mr C, a friend of the father, the following exchange occurred:
Well, you’ve heard him talk about her having big tits. You’ve heard him say that? – Yes, yes.
After giving that answer, Mr C appeared to have realised his mistake. He then could not give particulars of when he had heard the father say that the mother had “big tits” and resiled from his admission. He recast his evidence to say that, in fact, the father had merely said, “Doesn’t she look great?” when the mother was wearing a Wonder Woman outfit for a party they all attended.
Mr N’s affidavit
The mother’s treating psychologist, Mr N, swore an affidavit on 28 January 2016, which exhibited an undated report about the mother. In that report, Mr N described his professional experience in relation to family violence. Mr N said that:
a.the mother had attended upon him for 10 sessions between 1 September 2009 and 10 April 2010, at which point the mother decided to take a break from therapy; and
b.the mother returned to therapy on 11 December 2014 and had attended 16 appointments since that time, the most recent being on 14 December 2015.
Mr N also said:
In our initial assessment in 2009 she described life with Mr Charlton as a roller-coaster, with him alternating between explosion and silence which would last for up to 2 days. She noted at our very early appointments that sex was the primary solution to any problems they had in the relationship, so provided that she would give him sex, things would work ok. Ms Charlton felt that she was not able to stand up to Mr Charlton, and reported feeling overwhelmed. She also discussed considerable anxiety around her relationship with Mr Charlton, and particularly distress at his relationship with her oldest son A. She stated in session that Mr Charlton placed pressure on her to have A leave the home as A got older.
…
Ms Charlton has described what would amount to considerable emotional abuse from Mr Charlton. This would involve the use of derogatory language and insults both publically (sic) and privately. She also described Mr Charlton’s voracious appetite for sex and daily demands, most explicitly for oral sex. Ms Charlton has described being at a party when Mr Charlton demanded that they go. Ms Charlton was only allowed to stay on at the party if she agreed to go to the car and provide fellatio for Mr Charlton. He then allowed her to return, as she explained. Ms Charlton described their version of date night to me. This involved getting a baby sitter on a Wednesday night so that they could go out and have sex in a public place such as a car park or public park. If Ms Charlton objected she was subject to anger or silence. She was also worried about being thrown out of the house or being stigmatized as a divorced, single mother, something abhorrent to her (omitted) religious principles.
…
Ms Charlton’s long term presentation over the 5 years that I have known her, I have no doubt that she has been subjected to domestic abuse. I note that Ms Charlton does not make note of any physical violence that has resulted in hospitalization. However, she displays a lack of self-esteem, a lack of confidence, a lack of entitlement that is typical in women who have been mistreated in intimate relationships. She describes considerable sexual objectification of herself by Mr Charlton that would amount to abuse. She has described behaviour from her partner that would amount to social and financial control. Ms Charlton’s mood and affect are consistent with a woman who has been subject to recent, systematic trauma. Consistent family violence which includes emotional and sexual abuse and social and financial control would certainly provide such trauma, in my opinion. (emphasis added)
…
Ms Charlton’s presentation over the time that I have known her, is consistent with a woman who has endured considerable abuse. She presents as compliant, timid, sleep disordered and anxious. She presents as perpetually hyper-aroused or on edge. Ms Charlton presents as often being in a freeze state, one of the three possibilities for someone highly anxious or hyper aroused, the other possibilities being flight or fight. This type of freeze based presentation is usually seen in someone who is living in an unsafe environment as has been, I believe, the case with Ms Charlton.
…
In session Ms Charlton frequently demonstrates symptoms of trauma. She dissociates, she becomes distressed and dysregulated, and she expresses panic symptoms. I have little doubt that the shame and emotional distress that accompanies her discussions of her relationship problems have contributed significantly in her delay in briefing counsel.
Mr N’s oral evidence
Mr N confirmed in oral evidence that he was a professional associate of one of the mother’s friends, Ms L, who gave evidence on behalf of the mother. As well as having an academic position, Ms L is a registered psychologist. Mr N said that he had treated Ms L intermittently over the years. He said that it was customary for psychologists to obtain intermittent counselling from other psychologists for professional reasons.
Mr N confirmed that Ms L contacted him and said that she was concerned about her physical safety if she gave evidence against the father in this proceeding. Mr N said that he assisted Ms L to regulate her anxiety about giving evidence. It was put to him that Ms L had given evidence that Mr N had told her that she did not need to worry, because the father’s sole aim was to “annihilate and destroy” the mother. Mr N said that he did not recall saying that and said that, in such cases, he would speak in generalities.
Mr N said that he had recorded in his notes in 2014 that the father seemed to satisfy the sociopathic subtype of family violence perpetrators. However, Mr N agreed that he had never met the father and said his notes were based on what the mother had described to him.
Mr N said that he was aware of the trauma that the mother had experienced in her childhood. However, he said that he did not emphasise that in his report because he considered that it was not impacting directly on the symptoms the mother presented to him with. He said it was standard practice now to isolate childhood factors and current factors. He said that an abusive childhood does not necessarily affect adult function.
Mr N agreed that it was not unusual for sex to be a solution to a couple’s problems. However, he said that the mother’s description of her experience had been quite unusual.
Mr N agreed that the mother was conflict avoidant. He said that was consistent with an abusive current relationship. He denied that it was consistent with an abusive childhood. He said that people who have suffered an abusive childhood do not express a level of anxiety in adulthood if they have secure and attached relationships.
It was put to Mr N that the mother had not seen him because of an abusive marital relationship but because she wanted marital counselling in circumstances where she believed the father had had an affair and in circumstances where she had recently discovered that her stepfather had sexually abused her sisters. Mr N said those matters had been part of the reason for the mother’s counselling with him but that the father’s controlling nature emerged during the sessions.
Mr N agreed that the mother had told him in 2009 that she was in the process of setting up her own (omitted) business. He agreed that his awareness of issues of financial control was based on what the mother had told him. He said that the mother’s presentation in his office was of a distressed person who spoke about being unable to access funds and make financial decisions.
Mr N said that his job was to support his patient. However, he said his job was also to look for inconsistencies or signs that his patient was chronically distorting truths. He said that there was nothing in the mother’s presentation that suggested that she was distorting the truth.
Assessment of Mr N’s evidence
The father submitted that the mother did not see Mr N in 2009 for reasons of family violence but to address her past history of abuse as a child and her belief that her husband had had an affair. The mother’s motivations in deciding to see Mr N may have been as the father described. However, the mother’s abuse at the hands of the father emerged during the sessions with Mr N. There is nothing surprising about that. The mother’s initial motivation in attending Mr N does not detract from the veracity of his evidence about what the mother told him.
The father also submitted that Mr N’s evidence was hopelessly compromised because he had had professional dealings with Ms L, another of the mother’s witnesses. However, I accept Mr N’s explanation of those dealings. That is, psychologists often consult other psychologists for therapeutic reasons. Of course, witnesses must not collude in relation to their evidence. However, there was no evidence of collusion in this case. I see nothing untoward in the mother calling evidence from her treating psychologist and a friend, who is also a psychologist, who had had professional dealings with the treating psychologist.
The father also criticised Mr N for including in his notes a remark to the effect that the father’s behaviour was sociopathic. That remark was not advanced in evidence by Mr N in any way and certainly not as a definitive diagnosis of the father. Rather, it was seized upon by the father from subpoenaed material as a sign of Mr N’s bias. However, it was nothing of the kind. The remark simply reflected Mr N’s view at the time, based on what the mother has told him, that the father’s behaviour suggested a person with a sociopathic tendency. As we have learned, many people in the community and the workplace have sociopathic tendencies, otherwise known as antisocial personality disorder. The father was not psychiatrically assessed for these proceedings. Accordingly, there is no probative evidence either way by an expert witness. Mr N’s remark has been taken out of context.
The father also said that Mr N had lost his position as an independent expert and came down firmly on the side of the mother. However, he did not have the role of an independent expert in this proceeding. He is the mother’s treating psychologist.
The father also criticised Mr N for being “evasive” when he said he could not remember telling Ms L that the father’s sole purpose was to annihilate and destroy the wife. I accept that Mr N was truthful when he said he could not remember saying that. Not remembering is quite different to being evasive. It is not surprising that he could not remember that comment when Ms L could. It obviously meant a lot more to her than to Mr N, because it concerned whether she was safe to give evidence against the father.
All in all, taking into account all the evidence in the case and taking into account particularly Mr N’s demeanour in the witness box, I found his evidence to be very credible.
The first family report
Ms A prepared a family report in this matter on 17 April 2015. Ms A noted that the mother reported that the father:
a.had been verbally abusive and financially and emotionally controlling and intimidating, often in the presence of the children;
b.had a frightening temper with periods of unpredictable rage;
c.had never been physically violent;
d.had monitored the mother’s emails and mobile phone; and
e.had not allowed the mother free access to the family finances.
Ms A noted that the father denied the mother’s allegations but said that he had said things that, on reflection, he regretted.
Ms A also said:
29.When the children were observed in the presence of each and both of their parents, they impressed as very comfortable with and attached to both of them and showed no evidence of concern either in transitioning between their parents or having them together in the same room.
30.X, 12, Y 10 and Z 8, although very different personalities, are very close to and protective of each other, with the younger children placing X on a pedestal and X frequently taking on a parental role with them.
31.It is this Consultant’s assessment that the views expressed during interviews with them by X, Y and Z were independently formed and genuinely held. However Ms Charlton has some concern that the children may have felt obliged to speak as they did because of a fear that if they expressed negative views about Mr Charlton or his proposals, that would make him angry at them.
32.When observed with the parents and in discussing their parents with them, this Consultant saw nothing to indicate the children were intimidated by Mr Charlton, although this does not rule out the possibility that at times his behaviour has, in fact, been experienced by them and Ms Charlton as intimidation or bullying.
33.It was evident that these delightful, good-natured boys were at pains to be sure that their comments about their parents were equalised. That is, whenever X, Y or Z spoke about something they liked about, or doing, with one parent, they would offer up something equally important to them about their other parent. This behaviour in this Consultant’s view reflected the reality that they love both parents so much that they do not want to hurt their feelings, rather than fear of the consequences of what they might say.
34.All three boys are very loving towards both parents and particularly expressive of this in a physical manner with their mother. All three boys are fanatical sportsmen, sharing this interest keenly with their father.
35.Whilst Mr Charlton sees the boys as progressing “fantastically,” Ms Charlton sees them as developing well but each, in different ways, still struggling with the impact on them of the marriage breakdown and subsequent events, including the current week about routine.
36.X, aged 12 and in Grade 6, is a confidant, (sic) sociable individual who is immensely likeable and as a consequence has been voted school captain. Aside from his successes at school, X is a keen runner and engages in all manner of team sports.
37.X presented, when interviewed by this Consultant, in a manner described [by] Ms Charlton as “quirky, sensitive and curious”. It was evident that he had a good sense of humour, was sensitive to other people’s feelings, particularly his brothers and was curious to understand why he was being interviewed.
38.X was open in saying that whilst he would very much like the current arrangement to continue, “it’s kind of tiring. I get sad when I have to leave one parent. I used to cry but now I am used to it. I like it the way it is but if I could have them back….”
39.In accepting that he cannot have his parents back together, much as he wanted this, X indicated that he was pleased they at least “get on good” when he and his brothers are with them. X indicated that he also enjoyed the calmness of having two homes in contrast with the tension between his parents that he sensed before the separation, even though they tried to hide it from him and his brothers.
40.X appears to be the calmest of the siblings and to have dealt with the breakdown of his parent’s marriage by focusing on other things. Whilst dealing with his own issues he finds it a strain that at times he feels he needs to take on the role of a parent with his younger siblings, however he shows no anger or resentment about this.
41.X’s preference in regard to living arrangements would be for his parents to reconcile. Given this is an impossible dream he believes that the current week about living arrangements including the midweek meal at the other parent’s home, are the best way that he and his siblings can spend as much time as possible with each of their parents.
42.X is progressing outstandingly and wants above all to maximise his time with his parents and at the same time get on with life. He sees this as best occurring if his parents could communicate well with each other about them and resolve their dispute about their care.
43.Y aged 10, in grade 4, revels in sporting activities and dreams of running in the Olympics. As well as thriving at sports he delights in reading Harry Potter. He is a very loving and expressive individual although more introverted than his big brother.
44.Whilst Mr Charlton sees Y as thriving, Ms Charlton reports that he is having behavioural issues in the classroom where she believes he has been “jittery” and having difficulty concentrating. Ms Charlton described an incident at home that concerned her and this Consultant. Mr Charlton was unaware of it until this Consultant advised him and requested Ms Charlton to inform him in her own words and he too expressed concern. The incident involved Y punching X and then going into the kitchen and taking a large knife and brandishing it until Ms Charlton ordered him to put the knife down and go to his room, an order which Y fortunately followed. Ms Charlton sees this behaviour as atypical of Y and [she is] concerned as to whether it was a one off incident or reflected some major emotional issues which she links with difficulty coping with the length of time he spends away from her under the current arrangement. Whilst Y’s teacher Ms S is working with his mother to help him be more settled at school, she does not see this as a major issue at this point and advises he is cooperative and has never been aggressive. Y’s teacher cannot pinpoint any particular time when he is more unsettled than other times.
45.When asked about how he found the fact that his parents were separated and he and his brothers were living in two houses Y said, “at first it was hard but now I don’t really think about it.” He said that he liked the current arrangement because “we see mum for a week and dad for a week.” Whilst he misses the other parent “a little bit,” Y indicated he would be upset if the arrangements were changed so that he could have more time with this mother, “because I would miss my dad” and vice versa if the situation was reversed. He felt that there was more continuity than difference when he moved between homes because his parents had “the same set of rules.”
46.If this behaviour continues, Y may be in need of the opportunity to speak to a counsellor to deal with the causes of his out of character disrupted behaviour.
47.Z, who is 8 and in grade 2, is a lively, sensitive individual. Like his big brothers, who he clearly emulates, he is an avid sportsman.
48.Z was the most evenhanded of all the siblings when speaking about his parents, when talking about both the good things and things he might like changed in either home. There was no evidence of anxiety about the repercussions of discussing these issues. When asked whether there was anything at all he was afraid or worried about, Z responded that there was nothing, “except a red back spider in the shed.”
49.Z was adamant that he had no issues with moving between houses each week and insisted that this is how he would like the situation to remain. He saw no problems with forgetting to take things from one house to the other because they lived so near to each other and the school and because his mother and father were, in his view, able to communicate with each other about these things.
50.Z’s nature was best reflected by his response to the Consultant asking what he would ask for if he had a magic wand. Z simply said “world peace.”
…
55.Mr Charlton, aged 49 is [an] intelligent, determined individual who loves his children deeply and is endeavouring to parent his sons to the best of his ability. However, whilst highly focused on his children, it may well be that Mr Charlton is underestimating the impact of the separation and subsequent events on them.
…
61.Ms Charlton alleges that Mr Charlton has been intimidating and controlling, resulting at times in her and the children being fearful of him. Mr Charlton adamantly denies this is, or has ever been, the case. It is however, clear that Mr Charlton has high expectations not only for himself, but also of those around him, and particularly his family. There was no direct evidence of any intimidating behaviour during this Consultant’s limited contact with this family as to the veracity or otherwise of whether or not he behaves in such a manner. This however, does not negate the possibility that when members of his family do not meet his high expectations because of something they have said or done, Mr Charlton could become angry at that person, resulting in their feeling intimidated or fearful of him.
62.It is abundantly clear that Mr Charlton is devoted to his sons and in his view his appreciation for them has increased as a consequence of the reduction of time with them since the separation. Although endeavouring to ensure life is as normal as possible for them, some of Mr Charlton’s actions indicate that he is not as aware as he might be of how deeply the children have been affected by what has occurred … and may need help to become more attuned [to] their concerns.
63.Mr Charlton advises that he took the children on Boxing Day because “I asked the kids did they want to come home and they said yes. If they would have said ‘no’, it would not have happened.” Mr Charlton alleges that Ms Charlton would have known where they had gone and had no reason to fear for their safety. He then refused to return them to her or allow any direct contact between the mother and the children until an agreement was reached (in Ms Charlton’s view, forced upon her) of week about, commencing 16th January 2015. This was, in Mr Charlton’s view, because he believed once Ms Charlton had the children again she would not return them. Mr Charlton insists that the children had a good time holidaying with him after he took them from Ms Charlton and that he sent Ms Charlton photos and texts and allowed phone contact, in order to reassure her that this was the case.
64.Taking the children, in what was obviously a planned event, on Boxing Day and attributing his actions to being determined by the children’s wishes, at best indicates that Mr Charlton is not aware of the effect of placing the responsibility for the decision on them and at worst, a lack of concern or understanding of the impact that leaving their mother in that manner might have on them. The fact that he then did not allow the boys to spend time with their mother for almost three weeks until she felt cornered into a week about arrangement which she did not want suggests either insensitivity or a need for control, even if it might override the needs of his sons.
65.When observed with his children, Mr Charlton interacted in a relaxed and loving manner…
…
68.Ms Charlton, aged 45, gave deep consideration to every question this Consultant posed to her. This and her interactions with X, Y and Z showed a great sensitivity to the children’s needs. She was able to paint a vivid picture of X, Y and Z and how she believes the children have suffered as a consequence of the events leading up to and after the marital separation. As a consequence of her concern for the marriage Ms Charlton sought counselling for herself and states she invited Mr Charlton to attend but he did not. More recently, (January 2015) Ms Charlton sought help in how to deal best with the children’s needs as a consequence of the events surrounding the separation.
69.Ms Charlton feels immense guilt for staying in the marriage for as long as she did, because of the model of marriage it presented for the boys. She feels equally guilty for having had no choice but to leave Mr Charlton and the “collateral damage” that this has caused them.
70.Ms Charlton described the home environment towards the end of the marriage as “toxic” and felt, because of the children’s exposure to this, compelled to take the children out of the situation. Ms Charlton advised she left when she did and the way she did because she feared for her safety and that of the boys. Ms Charlton acknowledges that there was no concrete physical basis for her fear except Mr Charlton’s allegedly explosive nature. Ms Charlton spoke of Mr Charlton’s unpredictable “rages” which were usually directed towards her, often in earshot of the boys. She advised she had a belief, allegedly supported by friends and family, that Mr Charlton would not allow her to leave with the children.
…
73.In Ms Charlton’s view Mr Charlton has never physically abused the children, however he often humiliated them by unpredictably belittling one or the other to the point that, in his presence, the children were, and remain, always careful to be compliant. Ms Charlton therefore has some concern that the views that the boys expressed to this Consultant may not reflect their true feelings because they were anxious about the repercussions with their father if they did so.
…
86.Ms Charlton is strongly supportive of Mr Charlton’s continued involvement with the children’s sports and other activities. She feels that this involvement as well as continued daily Skype (with more flexible hours) would add greatly to the apparently limited time she is suggesting of alternate weekends and Wednesday evenings, at the same time giving the children one stable base.
87.Ms Charlton is a loving [and] committed parent who is very focused on her children’s needs and fervently believes at this time in their lives their greatest need is a strong relationship with both parents but also one stable base with their primary parent, that is, herself.
DISCUSSION
88.X, aged 12, Y, 10 and Z 8 are delightful, bright and loving individuals who have, in the last few months, gone through an extremely difficult time and have come through it relatively well, except for Y. Their ability to cope reflects the love and care that they have received from both their parents for all their lives.
89.In order for their lives to fully stabilise these children need to know that they can continue to have as much time with each of their parents as possible. Of equal importance to them is to have, two parents who will work together in a constructive manner on a day-to-day basis to identify and meet their needs.
…
97.Ms Charlton is a nurturing and perceptive parent who, whilst having heavy work and study commitments is unwaveringly committed to understanding and meeting the needs of the children. Whilst Mr Charlton sees her life as being overcommitted Ms Charlton does not. She believes that she accommodates all these responsibilities smoothly with the help of [a] dedicated network of family and friends and that the children benefit from having a mother who is successful in all aspects of her life.
…
102.Ms Charlton believes that the equal shared care arrangement that has now been in place for one school term is not working or in the children’s interests. The reality is however, that it is a routine that the children are now used to and say they are comfortable with and feel they see as much as possible of each parent. The boys also enjoy their parents’ equal participation in sports and other special activities. X, Y and Z are anxious about further change, particularly if it means less time with one or other parent. It is important that Ms Charlton recognises the reality that the children now have two good homes, albeit different as well as similar, and she will still continue to have a profound impact on their lives whatever the time schedule she has with them.
103.Whilst Mr Charlton’s alleged issues with anger are concerning, he has never been physically violent. Mr Charlton could benefit from more insight into the impact of his behaviour on his children. If Mr Charlton commits to attending a Men’s Behavioural Change course this Consultant believes that the children’s best interests are likely to be meet [sic] by the maintenance of the status quo.
The approach to applications under s.79
In Stanford v Stanford (2012) 247 CLR 108; (2012) 87 ALJR 74; (2012) 47 Fam LR 481; (2012) FLC 93-518; (2012) 293 ALR 70; [2012] HCA 52, the High Court explained the proper approach to an application under s.79 of the Act as follows:
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. … The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order. (emphasis added)
38.Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. … (footnotes omitted)
39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered. (emphasis added)(footnotes omitted)
40.Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. (emphasis added)(footnotes omitted)
…
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4). (emphases added)(footnotes omitted)
Following Stanford, it is no longer appropriate to think of “contribution based entitlements” or the “adjustment” based on future factors. Rather, the court is required to take into account all the relevant matters and then determine what order, if any, is just and equitable. It is also no longer appropriate to think of a pool of assets.[1]
[1] Parkinson, Patrick Family Property Law and the Three Fundamental Propositions in Stanford v Stanford (2013) 3 Fam L Rev 80 at 88.
Additionally, and significantly for this case, the High Court emphasised that marriage, at common law, does not create a community of ownership: [39]. The rights a person might have in his or her partner’s property and income arise from the Act, notably s.79(4) and s.72(1) respectively.
Stanford requires the following matters to be determined in applications brought under s.79 of the Act:
a.whether the parties have separated;
b.the assets and liabilities of each party;
c.the contributions of each party;
d.the future needs of each party;
e.bearing in mind all of the foregoing matters, whether it is just and equitable to make any orders altering the interests of the parties in their property; and
f.what orders, if any, are just and equitable in all the circumstances of the case.
Stanford does not require these matters to be addressed in any particular order. In most cases, it would seem rational to consider them in the order set out above. It does not seem to me to be possible to determine whether it is just and equitable to make an order altering the parties’ interests in their property without the other matters mentioned above having been previously determined. That seems to be clear from the opening words of s.79(4) of the Act, which are that:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account [the various matters set out in s.79(4)] …
The approach outlined above is consistent with the decision of the Full Court of the Family Court in Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387; [2013] FamCAFC 116. I note that in that case, the Full Court said at [89]:
In our view, it will be less likely that the separate issues arising under s 79(2) and (4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order.
I also note that, in Bevan, at [79] the Full Court said, in relation to addbacks:
We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amendable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
Whether the parties have separated
The parties agreed that they had separated.
The assets and liabilities
The parties agreed that their joint assets and their values at the time of trial were as follows:
Joint Assets
Value
Property E
$1,040,000
Proceeds of sale of (omitted vehicle) (in trust)
$33,419
Total joint assets $1,073,419
The parties agreed that they their only joint liability and its value at the time of trial was as follows:
Joint liability
Mortgage over Property E
$544,145
Total joint liability
$544,145
The parties agreed that their total joint assets less liabilities at the time of trial amounted to $529,274.
The parties agreed that the wife’s only individual asset at the time of trial was as follows:
Wife’s Asset
Value
Toyota (omitted)
$16,000
Wife’s total individual assets $16,000
The husband said that the wife’s superannuation at the time of trial was worth $57,200. However, the wife conceded that she had superannuation of the slightly higher figure of $57,336. Accordingly, I will accept that figure.
Wife’s superannuation
$57,336
The parties agreed that the wife’s individual liabilities at the time of trial (leaving aside legal costs) were as follows:
Wife’s Liabilities
Value
(omitted) Credit Union personal loan
$25,314
(omitted) credit card
$927
Loan from mother
$20,000
Wife’s total individual liabilities $46,241
Apart from the slight discrepancy regarding superannuation, the parties agreed that the wife’s total individual assets plus superannuation less liabilities amounted to $27,095.
The parties agreed that the husband’s individual assets at the time of trial were as follows:
Husband’s individual assets
Value
BMW car
$5,000
Husband’s total individual assets
$5,000
The parties agreed that the husband’s superannuation at the time of trial was as follows:
Husband’s superannuation
$105,386
Husband’s total individual assets plus superannuation
$110,386
The parties agreed that the husband’s individual liabilities at the time of trial (leaving aside legal costs) were as follows:
Husband’s individual liabilities
Value
(omitted) Bank loan
$3,261
Loan for the BMW
$5,000
(omitted) Bank loan
$7,000
Husband’s total individual liabilities
$15,261
The parties agreed that the husband’s total assets plus superannuation less liabilities amounted to $95,125.
The combined total of the parties’ assets and superannuation less liabilities (leaving aside legal costs) is therefore $651,494.
Contributions
a. Initial contributions
The parties were in dispute about when in early 2001 they commenced cohabitation. The precise date was seen as being significant because there was an issue as to whether the husband purchased Property K before or after cohabitation commenced. Ultimately, given the passage of time, it does not make any appreciable difference.
The husband bought the property at Property K for $172,000 on 19 March 2001. He had equity in it of about $40,000. He contributed that property at the commencement of the relationship. The husband also had a car at the commencement of the relationship. The court was given no indication of its value.
The husband claimed to have $40,000 in cash at the commencement of the relationship, which he spent on renovations to the Property K property. The wife conceded that there was a new kitchen, a new bathroom, a new laundry, walls reconfigured and various other jobs done. Even assuming the husband did most of the manual labour, there must have been a significant outlay on materials. Consequently, I accept that the husband had about $40,000 cash at the commencement of the relationship that he spent on the renovation.
At the commencement of the relationship, the wife had a car with a $20,000 debt on it. I take it that the car was worth about the same amount.
b. Contributions during the marriage
During the relationship, both parties worked. After the children were born, the wife primarily worked part-time. The husband was the principal bread-winner, both because his earnings were higher and because he worked full-time. However, he was made redundant at one point and had no earnings for a period of time.
The parties bought and sold a number of properties, mostly at the direction of the husband. Those transactions made a profit. The parties also renovated properties that they bought. The husband did most of the heavy-duty physical and managerial work but the wife also contributed. Obviously, while the husband was busy renovating, the wife was busy caring for the children. In the absence of evidence, it is not possible to put a value on either party’s contributions regarding renovations.
The wife was the primary carer of the children of the relationship, though the husband did assist in child care. He took the children to and from school, was active in relation to their sporting commitments, assisted with bathing and showering, and putting them to bed and supervising them.
The husband assisted in the care of the mother’s son, A, from a previous relationship, including by partially funding his ordinary living expenses and half of his private school fees. The mother received some child support from A’s father. A lived with the husband and wife from the age of nine until the age of 19, a period of 10 years. He moved out in January 2011. The husband argued that, based on In the Marriage of Robb (1994) 18 FamLR 489, there should be an adjustment for his contribution to the financial support of A. I accept that submission.
The wife argued that the husband’s contribution by helping to support A was offset by the husband’s cruel treatment of A. I consider that the husband’s treatment of A can be factored in as part of the Kennon argument but is not otherwise a matter that can be taken into account.
The wife was primarily responsible for cleaning, shopping, cooking and laundry, though the husband did contribute in those areas as well.
Late in the marriage, in 2012, the husband received an inheritance of about $85,000 from the estate of his mother. That money was used to assist in the purchase Property E. At the time, the inheritance represented about 50% of the equity in the property and now represents about 17% of the equity in the property.
The wife claimed that her contributions were made significantly more arduous by reason of the husband’s abusive and controlling behaviour. The wife argued, and the husband denied, that this case fell within the principle enunciated in Kennon v Kennon (1997) 139 FLR 118, (1997) 22 Fam LR 1, [1997] FLC 92-757, [1997] FamCA 27.
Fogarty and Lindenmayer JJ said in Kennon v Kennon at 139 FLR 140:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s.79. …
…
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). …
The husband argued, however, that the Full Court of the Family Court had refined the Kennon principle in S and S (2003) FamCA 905. The Full Court there said:
47.An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:
• The incidence of domestic violence;
• The effect of domestic violence; and
• Evidence to enable the court to quantify the effect of that violence upon the parties capacity to “contribute” as defined by section 79(4).
48. … The particular deficiency apart from those referred to by the trial Judge is the complete absence of evidence as to how the husband’s conduct affected her ability to contribute.
However, later, the Full Court of the Family Court considered the matter again in Baranski v Baranski (2012) 259 FLR 122, [2012] Fam CAFC 18 at [259] and [260] as follows:
In reality, the obiter dicta of the majority in Kennon (supra) did no more than confirm that, where the contributions of a party are rendered more arduous by the violent conduct of that party’s spouse, as the learned Federal Magistrate uncontroversially found them to have been in this case, that is a matter which is relevant to determining the nature and quality of the parties’ contributions. Quite apart from the absence of any statutory prohibition upon so doing, it would be illogical and unjust, to find a party’s contributions to have been rendered more arduous by virtue of the violent conduct of the other party to a marriage to the time of separation, but not thereafter, in circumstances where making those contributions continued to be arduous notwithstanding that the violent conduct may have ceased. In this case, the husband committed a serious assault upon the wife almost a year after separation.
With respect to the submissions of Senior Counsel for the husband, the learned Federal Magistrate clearly, and in our view correctly, identified the manner in which a claim for a “Kennon type adjustment” should be determined when he recorded:
Rather the court’s function is to assess the parties’ respective marital contributions, within the legislative matrix provided by section 79(4). To be relevant, it must be demonstrated that the husband’s violent conduct had a “discernable impact” upon the wife’s contributions. In essence, the question for the court is whether it was more difficult or onerous for the wife to be a homemaker and parent because of the husband’s violent behaviour.
Clearly, the court is able to draw inferences from the evidence before it. In the present case, Mr N gave evidence that, during the marriage, in 2009, the wife complained that the husband was “sexually demanding, socially and financially controlling and emotionally abusive”. He said that the wife “felt so much fear and distress in her relationship it made developmental therapy untenable” in 2010. Mr N said that, in the early sessions, the wife said that she “felt that she was not able to stand up to” the husband and felt “overwhelmed”.
As noted above, Mr N also said:
Ms Charlton has described what would amount to considerable emotional abuse from Mr Charlton. This would involve the use of derogatory language and insults both publically (sic) and privately. She also described Mr Charlton’s voracious appetite for sex and daily demands, most explicitly for oral sex. Ms Charlton has described being at a party when Mr Charlton demanded that they go. Ms Charlton was only allowed to stay on at the party if she agreed to go to the car and provide fellatio for Mr Charlton. He then allowed her to return, as she explained. Ms Charlton described their version of date night to me. This involved getting a baby sitter on a Wednesday night so that they could go out and have sex in a public place such as a car park or public park. If Ms Charlton objected she was subject to anger or silence. She was also worried about being thrown out of the house or being stigmatized as a divorced, single mother, something abhorrent to her (omitted) religious principles.
…
Ms Charlton’s long term presentation over the 5 years that I have known her, I have no doubt that she has been subjected to domestic abuse. I note that Ms Charlton does not make note of any physical violence that has resulted in hospitalization. However, she displays a lack of self-esteem, a lack of confidence, a lack of entitlement that is typical in women who have been mistreated in intimate relationships. She describes considerable sexual objectification of herself by Mr Charlton that would amount to abuse. She has described behaviour from her partner that would amount to social and financial control. Ms Charlton’s mood and affect are consistent with a woman who has been subject to recent, systematic trauma. Consistent family violence which includes emotional and sexual abuse and social and financial control would certainly provide such trauma, in my opinion. (emphasis added)
As found above, the husband’s behaviour during the relationship was significantly controlling, abusive and oppressive. I infer that the husband’s behaviour made the wife’s contributions as a homemaker and parent significantly more arduous than they ought to have been. I also infer that the husband’s criticisms of the wife’s intellectual ability, by undermining her confidence in the work sphere, made her financial contributions more arduous than they ought to have been.
c. Contributions post separation
The husband has remained in the former matrimonial home and paid the mortgage on it. The wife has incurred the expense of rental accommodation.
Since separation, the parties have each cared for the children of the relationship week and week about.
The s.79(4)(d), (e), (f) and (g) and the s.75(2) factors
As mentioned above, the husband is 50 and the wife is 46. It was not suggested that either of them has significant health issues, though the husband has some hearing problems.
The husband earns about $160,000 per year. That income reflects his earning capacity. He currently pays about $9,000 to the wife by way of child support.
There was a considerable dispute as to the wife’s earning capacity. She is paid a casual rate. The husband calculated that she could earn $95,000 per year, based on her three existing contracts with (employer omitted). However, that would involve her having no annual leave, no public holidays and no sick leave. The wife argued that her actual salary and the amount that she could actually realistically be expected to earn, was about $78,000 per year. I accept her claims in that regard. Obviously, people cannot be expected to work 52 weeks of the year.
In addition to her salary, the wife also receives about $9,000 per year for child support and about $6,000 for family tax benefit. The wife will receive somewhat more child support when the children spend more time with her in accordance with the parenting orders made in these proceedings.
The parties’ property is as described above. Neither of them appears to have any additional financial resources. There was some debate about the husband’s (omitted) shares, which are presently agreed to be worth $5,400 and are part of the husband’s superannuation. Those shares were apparently valued at $189,000 a few years ago. It may be that their value will increase again in the future. However, the court is unable to speculate on that issue.
As determined above, the wife will have the care of the children of the marriage 10 nights per fortnight and the husband will have them four nights per fortnight.
Neither party has any obligation to maintain anyone other than themselves and their children. Neither party is eligible to receive a pension or allowance.
A standard of living that would be reasonable in the circumstances of this case would be the standard of an ordinary, middle class, single income household.
The wife is undertaking further study to become a (occupation omitted). However, she is presently able to earn an adequate income. It was not suggested that she should receive an extra adjustment to enable her to study.
There is no suggestion that creditors will be adversely affected by any property settlement in this case.
It was not suggested that either party had contributed significantly to the earning capacity of the other, or that the marriage had diminished the earning capacity of either party.
It was not suggested that there was any need to protect a party who wished to continue their role as a parent.
It was not suggested that either party is cohabiting with another person.
The husband has largely paid child support as assessed, though he has challenged the assessment twice.
There are no other facts or circumstances that the justice of the case requires to be taken into account.
Whether it is just and equitable to alter the parties’ property interests
The parties agreed that it would be just and equitable to alter their property interests in this case. In view of paragraph 42 of Stanford, the fact that the parties are no longer living in a marital relationship and the various findings made above in relation to contributions and future needs, I also consider that it would be just and equitable to alter the parties’ property interests in this case.
Proposals
The husband argued that his initial contribution of Property K, his renovation of that property immediately before or immediately after cohabitation, his buying, selling and renovating other properties, and his inheritance of $85,000, meant that, on contributions, he should get 65 per cent of the parties’ combined assets. The husband also argued that there was no need to make any adjustment for s.75(2) factors.
The parties agreed that there should be a superannuation split of $24,111 from the husband’s (omitted) superannuation fund to the wife. Procedural fairness was afforded to the trustee of that fund (exhibit 34).
The wife argued that the husband’s efforts in renovating various properties was offset by the wife caring for the home and children during the time the husband spent renovating. There is force in that argument.
The wife conceded that the husband’s inheritance in 2012 of $85,000 warranted an adjustment.
However, all in all, the wife argued that she should receive 60% of the parties’ combined assets, based particularly on the wife’s lower earning capacity, her greater care of the children particularly in the future and the husband’s additional financial contributions being offset by the Kennon factors.
What order is just and equitable?
In my view, weighing up all the matters in this case, I consider that a 50:50 split of the parties’ combined assets is just and equitable. This adjustment reflects particularly:
a.the husband’s greater initial financial contribution;
b.the husband’s inheritance late in the relationship of $85,000;
c.the husband’s financial contribution to A’s upbringing;
d.the wife’s lower earning capacity;
e.the wife’s greater care from now on of the children; and
f.the wife’s contributions during the relationship being made more arduous by the husband’s abusive, controlling and oppressive behaviour.
The husband wishes to retain the family home. The orders will give the husband the opportunity to do that. The total value of the parties’ property and superannuation less liabilities (other than legal costs) is $651,494. Dividing that by two gives $325,747. From that sum, there needs to be deducted $2,250 for the wife’s share of the family report and $24,111, which has been agreed as a super split. Therefore, the amount for the husband to pay the wife is $299,386.
Costs of 30 November 2015
On 30 November 2015, the court fixed the husband’s costs thrown away of the adjournment in the sum of $4,200 and ordered that the wife pay those costs if the court at trial was not satisfied that the wife had been unable to properly prepare her case due to the alleged abuse perpetrated upon her by the husband.
In this regard, Mr N said in his affidavit that:
[The wife] has consistently expressed shame about her situation and tends to blame herself for the situation, again consistent with women in chronic abusive relationships. The shame has made it extremely difficult for her to discuss the details of her relationship even with professionals such as myself. … I have little doubt that the shame and emotional distress that accompanies her discussions of her relationship problems have contributed significantly to her delay in briefing counsel.
I accept Mr N’s evidence on this point. I infer from it that the wife was unable to properly prepare her case prior to 30 November 2015 because of the abuse perpetrated upon her by the husband. Consequently, the wife will not be ordered to pay the husband’s costs thrown away on 30 November 2015.
I certify that the preceding three hundred and eighteen (318) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 21 July 2016
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Duty of Care
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Negligence
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Remedies
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Damages
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