Columbia and Columbia

[2009] FamCA 311

FAMILY COURT OF AUSTRALIA

COLUMBIA & COLUMBIA [2009] FamCA 311

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time 
FAMILY LAW – PROPERTY

APPLICANT: Mr Columbia

RESPONDENT: Ms Columbia

FILE NUMBER: LNC 802 of 2007

DATE DELIVERED: 8 April 2009

PLACE DELIVERED: Hobart

JUDGMENT OF: Bell J

HEARING DATE: 6 & 7 April 2009

REPRESENTATION

FOR THE APPLICANT: The Applicant Father appeared on his own behalf

COUNSEL FOR THE RESPONDENT: Mr Fitzgerald of Counsel

SOLICITOR FOR THE RESPONDENT: Legal Solutions, Barristers & Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fitzgerald of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: P L Corby & Co

Orders

1. The children P born … June 1992, K born … December 1998 and D born … February 2002 live with the mother.

2. The mother have sole parental responsibility for the children’s long term and short term welfare.

3. The father communicate with the children by way of letters and cards taking into consideration birthdays and other special days such letters and cards to be sent to the children via the Independent Children’s Lawyer, P L Corby and Co.

4. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

5. The wife is to pay to the husband the sum of $42,250.00.

6. Upon payment pursuant to order 5, the husband must do all acts and execute all documents to transfer all his right title and interest in the former matrimonial home.

7. Should the wife fail to comply with Order 5 above within a period of four months, the former matrimonial home is to be sold and the proceeds of sale are to be disbursed as follows:

   a.Payment of the reasonable expenses of the sale including agent’s commission and legal costs and disbursements;

   b.To discharge the mortgage, if any, secured on the property;

   c.To pay the husband the sum of $45,250.00; and

   d.To pay the balance to the wife.

8. Any personal items in the possession of the parties vest in them.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 802  of 2007

MR COLUMBIA

Applicant

And

MS COLUMBIA

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of the husband for parenting orders as well as property settlement.  I intend to be exceptionally brief in this matter since I consider that the facts in relation to this case are comparatively narrow in issue but of course do cause concern to everybody involved.

2. The applicant, the husband, had been married five times prior to his journeying to Thailand in particular in or about 1997 - he was born, in passing, in October 1945 - where he met the respondent mother, Ms Columbia. Ms Columbia is a Thai national.

3. They commenced a relationship shortly after meeting.  The applicant saw fit, I assume, in an endeavour to denigrate the mother, indicating in his opinion she was acting as a prostitute at that time.  I would have thought that the only person who would be denigrated by such statement would be himself for considering that he could marry a prostitute if that was the case.  Of course the mother denies that.  She said she was working in a factory.

4. However, the father brought the respondent to Australia in 1998 for a short period, returned to Thailand where the first child of this relationship, K, was born in December 1998.  I say in passing that the mother had another child by a relationship, an elder boy, who is now aged 16 years of age, and the father also sought originally an order in relation to him, but as I understand has abandoned any application in relation to this boy whose name is P.  He was born in June 1992.

5. On 29 January 1999 the parties married and they came to Australia to a property at L which is, I understand, somewhat close to Cooma, which the husband owned.

6. I think that he purchased this property partially with the proceeds of a benefit, a devise, which he received under his father's will, who died in 1994, in which, according to the material now put before me, his father had an interest in a property at W and had some $40,000-odd by way of cash in his estate.  The property was gifted and devised equally between the applicant and his sister.  I believe he sold the property to his sister, received certain moneys from it.  The L property was a grazing or farming property, country property, of some 100-odd hectares if my memory serves me correctly.

7. Subsequent to their marriage he sold part of this property to a Mr M and received some moneys from him, absolute about $85,000, and subsequently he sold another part of the property for some 125,000.

8. He expended some 45 or 46 thousand on the purchase of the property at S, which is now in dispute, and he says he used a considerable amount of the balance of the aforesaid moneys in renovating the house at S.  The house at S has been valued.  Notwithstanding the valuation is somewhat different, the parties have agreed that its value is some $200,000.  There is no mortgage on the aforesaid property.  It is clear.

9. Fitzgerald of counsel for respondent mother submitted that I should look with some caution upon the expending of this $90,000 because, as he says, first of all the wife does not accept that that amount was expended.  She accepts that the renovations were done in particular in relation to the kitchen, the installation of water and electricity, and some other comparatively minor matters which unfortunately nowadays are still very expensive.

10. He says further that the valuation, which is before the court, did not indicate that renovations were of such an extent as alleged by the father.  Regrettably the only evidence I have before the court is as follows; (1) that renovations were carried out; and (2) that the only evidence as to the cost is that of the applicant, the father, and regrettably I have to say that he expended a considerable amount of moneys on the restoration of this property.

11. He has shown me photographs of it which are put before the court and it does seem a neat acceptable small property in a very small country town.  As I have said it is at S.  I do not need to point it out geographically anything more than that to say it is the north-eastern part of Tasmania.

12. The parties, when they first got this property, commenced a market garden.  Much looms about this market garden because it is alleged by the mother, the respondent, that in fact the father did not help to any great extent in either the running of the house, the maintenance of the house, or the running of this market garden, which the mother says necessitated a tremendous amount of labouring work on it.  There is a series of photographs exhibited to her affidavit which shows at the time that the market garden appeared to be very, very well run.

13. Insofar as I touch upon the property settlement, in relation to the husband’s disability; the husband had become morbidly obese.  He was a huge man, some five foot eight in height, but weighed at his worst, something close to 200 kilograms, which is almost a fifth of a tonne.  Obviously this was in no way to the benefit of his health and it appears as though, on the evidence of the mother, and to a lesser extent himself, that his enormous weight caused him to be gravely disabled and that he was able to get around only with difficulty.

14. He indicates that he assisted particularly in the running of the market garden by sitting on a stool and watering for up to five or seven hours a day.  This is not accepted by the mother but she accepts that he did on occasions water.

15. I am more than satisfied that the enormous weight of the applicant precluded him from doing most things around the house.  There are complaints not only by the mother but of the two children, P and K, that he tended to lie around in bed; that he tended to play with the computer, and called upon every member of the family to look to his various wants which included bathing him, dressing him, cleaning up his toiletry and applying ointment to bleeding buttocks.  I would have thought that this demanding on his part would be something which must sound considerable in any form of contribution made, not only by the wife, but in effect to the children as well.  P is not his son but he, that is, he being the applicant, concedes that P was a great help.

16. I do consider taking into consideration the evidence of the mother and of the children, the children's statements being contained in the full and in-depth report of Ms F, that the father in effect was nothing else but a bully.

17. He demanded that his wants be attended to before anybody else's.  He adopted an authoritarian manner whereby he sat on his stool and waved a large stick at them demanding that they do certain things in relation to the gardening.

18. He insisted that the mother carry out physical labouring tasks as well as looking after his more private needs, notwithstanding that she had had a bad Caesarean with D and was in considerable pain.  He insisted that she carry out these duties as I said notwithstanding that she was in pain.  He insisted that she work in the market garden, and in an attempt in my opinion to once again attempted to denigrate or lessen the impact of the mother's work in relation to his physical needs.  He said, "Well, she was being paid for it."  They were his exact words.  I assume what he means by that is that she was getting a carer's benefit.  Notwithstanding that there was a carer's benefit, one would have thought that he would have been more grateful, even though he did profess that she worked hard, would have been more grateful towards the onerous, personal and perhaps somewhat disgusting tasks that this lady had to carry out for him.

19. I do not believe that the Kennon principle totally applies but it comes very close to it in that her contributions, which were of the physical nature, were made more difficult by his overbearing and bullying manner.

20. His overbearing and bullying manner was carried through in the presentation of himself in this court.  He was loud, abrasive and very much attempted to overwhelm people; not only by his physical size, but his voice.

21. He, as was found by Ms F, and I could do nothing else but concur with her, considered that he was the victim; that he was this person who was vilified by the mother, who was attacked on frequent occasions by the mother physically; who has been gravely affected by the "perjured evidence", and I use that in adverted commas advisedly, evidence of the mother - he does not even know what "perjury" is - the perjured evidence of the mother wherein as a result of his general demeanour he not only suffered a family violence order in 2005 for an assault upon P, but also was removed from the former matrimonial home causing the date of separation to be definitely identified by both parties as 30 July 2007.

22. Immediately prior to this time he had undergone a lap-banding process in Hobart at a cost of some $10,000; such amount as I understand it was funded by his mother.  This has caused him to lose 28 kilograms but he still is a very, very big man weighing somewhere between 138 to 140 kilograms.  That weight loss has taken place over two years almost and I would consider that something more must be done otherwise he will not lose sufficient weight to engender a better health than I am sure he has at present.  He is still, as I understand it, on a disability pension and does receive some carer support.

23. It has been suggested by the mother that not only does he have the interest in this property; he being the sole registered proprietor of the property at S, but that he also has an interest in a property at Y.  I am more than satisfied on the evidence of his, perhaps the only piece of evidence that I would accept quite readily from him, that in fact that property is owned by his mother.  It consists of two homes on one title deed; one of which is being rented at an amount of $220 per week.  He receives the whole of that rental as and by way of a management fee, but out of that rental he has to pay for outgoings such as rates, insurance et cetera.  He said it was about a third.  He got a third net which would be about $70 per week after the expending of the aforesaid moneys.  He also is in receipt, as I have said, of a pension and also rental support.

24. The mother on the other hand had worked, as I have said, exceptionally hard.  She worked in the house.  She worked in the market garden and received, on her evidence, little or nothing for her working in the market garden.  It appears as though P may have received something from the market garden but I think the mother said between 40 to 50 dollars per month.

25. Market gardens are notoriously labour intensive, and subsequent to the father being removed from the matrimonial home, the garden has been abandoned; the mother indicating that as a result of injuries which she received during the Caesarean birth of D, in particular a prolapsed uterus, she is unable, because of the pain, to carry out any heavy working.

26. She also of course is unable to carry out at this stage the course which she successfully completed, I believe, at a TAFE or something of that nature.  She has an aged care certificate.  She cannot - she is not a big woman either - because of the pain that she is suffering is unable to carry out those tasks because it would necessitate obviously some lifting, probably heavy lifting.

27. I must say that the mother impressed me tremendously.  She was a mother who came from a poor area in Thailand.  She married a man who was much older than herself; he being 63 or 4 and she being born in November 1971.  She came to a strange country without the benefit of English but has, during the time that she has been here, mastered English to a greater or lesser extent.  She does not require an interpreter.  She has sought to improve herself by attending school in S.  She is now doing a further course in computing.  She was doing two courses.  One was in computing and she is doing another and hopes to pass such course at the end of this year.  She appears to have, on some material before me, become rather well accepted in S.  She works hard at the school and is generally a credit to the S community as well as to herself and as a Thai immigrant.

28. The father, on the other hand as I said, did not impress  me at all.  He gave me the impression, as I have already indicated, of being a bully, and I accept the evidence of the mother where it differs from that of the father.

29. The father is particularly angry at the police force and the Family Violence Act of 2004 which is a state act, which I expect brought into being the family violence orders, and he is involved in an association known as JAIL which stands for Jail Against Illegal Laws.  One of his witnesses, Mr G, is also a supporter or is a member of that association.

30. He is particularly cranky at the powers of the police force under that act indicating as far as he is concerned they act very similar to the Nazis during World War II.  That may be the case and he may have felt himself very badly treated and he may also feel himself very badly treated by his wife who he alleges was assaulting him on frequent occasions; one occasion attempted to kill him with a meat cleaver when she was eight and a half months' pregnant with K; has assaulted him after his lap band surgery and exhibited his bare physique to the court in order to point out where in fact the microsurgery had taken place.

31. He has presented himself as a victim.  That in itself in relation to the parenting matters is a matter that I take into consideration.  He has been referred to as that by Ms F.  I was impressed with Ms F.  Ms F is obviously a psychologist of extensive experience, not only in the public service area, but also in private practice.

32. She gave a very fair, in my opinion, resume of the facts upon which she came to her conclusions, and if I may say the recommendations became two; (1) if I am satisfied that the father has been abusive to the children there should be no spending time with; (2) if I am not so satisfied there must be some way that the children, who at this stage do not want to have anything to do with their father, are afraid of him, as I find according to the evidence not only of Ms F but of the mother, to resurrect any relationship between themselves and their father.  It may be at a contact centre but as she points out the nearest contact centre to S is some two hours away which I would assume is either Hobart or Launceston, and she considers that the driving of two hours to a contact centre for what I know historically is only two hours' maximum and two hours back would in no way promote the interests of the children.

33. I am mindful of, course, of the presumptions which have been written into the Act by politicians.  I am also mindful that they have done one thing and say that the child's interests are superior to all other matters.  I take into consideration the presumption after having seen the father, after having heard of the violence perpetrated upon his children, particularly P; of hearing of evidence of his belting K to such an extent that K curled up in a foetal attitude and was assisted by his mother; of his verbal violence towards the mother, and to P when he called him "fuckwit" and "stupid", that would not in any way promote the interests of the children, and taking that into consideration I am sure the presumption is obviously to be discharged and I have no hesitation in saying that the children should remain in the possession of the mother and that she have the sole parenting responsibility for them.

34. I, of course, am mindful that it is particularly important that I decide whether or no a meaningful relationship would result.  The mother does not wish the father to have any spending time with the children but concedes that if the children were safe that she would allow them, if they wished, to visit the father or to spend time with the father.

35. I must say that I do not believe that the father has recognised that his whole general conduct is counterproductive to his developing a relationship between himself and his children, and I say children advisedly.  I include P in this because P has been part of the family since he was a very young man, notwithstanding the fact that the father quite properly is not seeking any order in relation to P.  P is now almost 17 and one would have thought he could vote with his feet.

36. I take that into consideration.  But what if I "force" the children to spend time with their father?  I believe it would be counterproductive.  The children are afeared of their father at this stage and if in fact I put them in such a position, notwithstanding it may be in a contact centre, of their being put into the possession or into the close proximity of a person they fear, I would have thought it would have been counterproductive, not only to the father but to the children, that any relationship that the father may have with the children would be damaged further by their fear and by their being forced into close proximity.

37. I would also take into consideration the tyranny of distance in Tasmania; there being some two hours' distance between any form of contact centre and S.

38. I do not believe that I can take into consideration that any spending time with the father would at this stage, and I  emphasise "at this stage".  As the children mature I am sure it will change, and as the father starts to consider his own unfortunate personality towards his children and remedies it, that there will be a great chance of the children being reconciled with him.

1. I refer to his previous children.  He has three that I know of; two of whom appear to be disenchanted with him, but one has returned to him and she is Ms W and she has put out material before me.

2. I must take into consideration all the matters that have been put before me by the father and I do so.  I take into consideration all of the statutory declarations, for what they are worth, which were exhibited to not only his affidavit but to the notice of child abuse.

3. I note that most of them deal with matters which took place whilst in Thailand.  However Ms W, his daughter, does indicate that she has had more recent contact with the children and the mother and indicates that the mother was a person who had little control over her temper.  I think that may be right to the extent that even the mother admits that she would use the spoon as an item of threat to the children in an endeavour to get them to obey.

4. Taking those matters in consideration, taking into consideration the wishes of the children, and the general personality of the father and the lack of any advantage that would be brought to bear by the children being forced to see their father, I would make no order as to spending time with.  However it was raised by myself to Ms F, whether there could be some form of "contact", mindful as I am that it is no longer in the lexicon of Family Law, with the father by way of communication by letter or cards.  She said she did not think that was a bad idea and I would order that the father be entitled to contact the children - I am not going to say spend time with the children by way of a letter - but that he may be able to write to the children taking into consideration such special days as their birthdays and Christmas, but that such letters are to be written to the children care of the independent children's lawyer, and that the independent children's lawyer do vet such letters for a period of 12 months.

5. To that intent and effect I would not discharge the independent children's lawyer until the expiration of 12 months from today.

Property

1. As I have said, virtually the only property which is owned by the parties or which the parties have an interest is the property at S.  That has been agreed at $200,000.

2. I make it quite clear, as has been conceded by Fitzgerald of counsel for the respondent mother, that the sum total of moneys for the purchase of that property were put in by the father, the mother had nothing, but the mother has, during cohabitation, got something.  She has done an enormous amount work which was even grudgingly acknowledged by the applicant.  She has worked hard, not only in maintaining the children, giving birth to the children; both K and D were most unfortunate and extremely painful births, being very large babies, for a comparatively small mother who said she weighed 60 kilos at the time of the births and the boys were both over 10 pounds; one of which she had to have Caesarean, and I understand it was an emergency Caesarean.

3. She has worked particularly hard in the house.  She has worked particularly hard in the market garden.  Notwithstanding the sole financial contribution of the father, I take into consideration that during the cohabitation not only did she do the work to which I have referred but I consider she did something over and above that in looking after the physical disabilities of the father and, whilst I am not quite sure whether that is Kennon or not, putting up with the abrasive and bullying behaviour of the father when he demanded that the children and the mother act no better than servants towards him.

4. I would have thought that notwithstanding the large contribution, the only contribution of the father towards the purchase of the property, that the mother is entitled to something like 60 per cent as at the date of separation.

5. What would happen thereafter?  Thereafter it appears to be that we have the father who, because of his obesity, who is on a pension, that he himself is not in any better position really than the mother financially, but the mother has the financial, emotional and physical responsibility of two young boys who are doing particularly well at school, and having read the reports of them, I note that they have improved in their schoolwork since the father left the house in 2007, and D in particular appears to be particularly bright in the mathematical side, he being in the top 17 per cent in the state.  That in itself is also something which suggests the children are much happier, as they have said, and as Ms F has found, since the father left the premises.

6. It is very difficult in a case such as this.  The complaints by many people where there is millions of dollars involved makes it a difficult case.  It is not.  It is not a difficult case.  A difficult case is where you have very limited assets such as in this case and you have to endeavour to allow one of them to retain it as a house over their head.

7. There are other minor assets.  The father has a car which he indicates is worth some $3500, he has tools in a shed which he said were about $1000 worth, and the mother has an old car which she says is $1000.  The furniture is in dispute.  The mother on one side says $10,000, and the father on the other side says $2000 or $3000.  Since there has been no specific valuation put before me I ignore that valuation.

8. The parties agree on the value of the father's car and the mother's car.  The father has some comparatively small savings of about $80 on his financial statement.  Consequently, the property amounts to about $205,000.

9. Having decided that the s 79 factors would require me to find that the mother is entitled to something like 60:40, I have to now consider what the s 75(2) factors are.  As I said really the only thing I can point to there is the fact that the parents are basically on about the same income level.  The mother is in receipt of a pension but she is endeavouring to improve herself and I am sure with her determination and courage she will do so.  But the father will not.  He is still obese and I doubt very much whether at this stage he will lose sufficient weight - I remain hopeful he will - to be able to get back into the workforce.

10. She does, and I emphasise this, have the responsibility of the children, and as I said, it is physical and emotional.  She receives no child support and will not receive any child support from the father.  She has expenses in relation to them and I would therefore place the 75(2) factors at 15 per cent.

11. Consequently that will mean that the mother is entitled to 75 per cent of the net assets of the parties which, according to my notoriously inaccurate maths, she would be entitled to $153,750.

12. I recognise that she has in her possession property worth $1000.  Consequently she would be entitled therefore to $152,750.

13. The wife requests that in fact somehow or other an order be made whereby she has the opportunity of retaining the former matrimonial home and as a result thereof requests that she be entitled to make some endeavours to pay the father out.  The amount of $205,000 less 152 - 53,250, would mean that she has to find some $53,250.

14. I also take into consideration that should I make that order the father will receive an amount of $3500 as and by way of the value of his vehicle, and the tools of $1000.  He says the workshop tools of $3000.  We will have to change our amounts.  I will have to add on two.  It appears as though I misread his form 17.  He says the workshop tools, which the mother is quite happy for him to remove from the shed in which they resided since separation, I will have to add an extra 2 which will make it now $207,000, 75 per cent of which - $155,250.  The wife would have to pay to the husband an amount of $51,750 less the amount which the husband has being $3500 for the car and $3000 for the tools which will bring it down to, according to my notoriously inaccurate maths, $45,250.

15. I make it quite clear that if in fact there are some mis-additions in this matter it can be brought to my notice informally and will not necessitate an appeal being instituted as has been done in the past over clear mathematical miscalculations.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:                 

Date:    29 April 2009