DELAINE & ANDREW

[2008] FamCA 1059

FAMILY COURT OF AUSTRALIA

DELAINE & ANDREW [2008] FamCA 1059

FAMILY LAW – CHILDREN – with whom children live and spend time – acrimonious dispute between parties – where children have poor relationship with husband – best interests of the children – where children have expressed strong wishes that they do not want to spend time with the husband – children to live with the wife and spend time with the husband – mother to have sole parental responsibility for the children’s long term care, welfare and development

FAMILY LAW – PROPERTY SETTLEMENT – alteration of property interests – determination of assets and liabilities in dispute – status of wife’s relationship with current husband – contributions assessed 52.5%/ 47.5% in wife’s favour –– adjustment to wife of 2.5% on account of s 75(2) factors – superannuation considered separately – wife to retain her superannuation interests

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 75(2) & 79

Goode and Goode (2006) FLC 93-286
Chorn and Hopkins (2004) FLC 93-204

APPLICANT: Ms Delaine

RESPONDENT: Mr Andrew

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 1216 of 2004

DATE DELIVERED: 5 December 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATES:

19-23 May 2008
2 July 2008 [CHILDREN’S ISSUES]

22-26 September 2008
[FINANCIAL ISSUES]

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Whittle

SOLICITOR FOR THE APPLICANT: David Burrell & Co

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: David Davidson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr B Bowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hume Taylor & Co

Orders

1. The wife have sole parental responsibility for the long term care, welfare and development of R and E both born on the … August 1993.

2. The children live with the wife.

3. The children spend time with the husband as follows:

   (a)during school terms each alternate weekend from the conclusion of school on the first Friday of the term to the commencement of school the following Monday or the commencement of school on Tuesday if the Monday is a Public Holiday commencing on the 30 January 2009;

   (b)for the first half of all South Australian school term holidays (except for the period 4.00 pm Christmas Eve to 4.00 pm Boxing Day, which shall be in accordance with subparagraphs (d) and (e) herein) commencing from the conclusion of school on the last day of term and concluding at 5.00 pm on the middle Saturday of the school holiday period;

   (c)on Father’s Day from 10.00 am to 5.00 pm PROVIDED THAT the children spend time with the wife on Mother’s Day from 10.00 am to 5.00 pm if they are otherwise in the care of the husband;

   (d)from 4.00 pm on Christmas Eve 2008 until 4.00 pm on Christmas Day 2008 and each alternate year thereafter;

   (e)from 4.00 pm on Christmas Day 2009 until 4.00 pm on Boxing Day 2009 and each alternate year thereafter;

   (f)for 2009 and thereafter the children spend a minimum of five [5] hours on their birthday, such times to be agreed between the parties and in default of agreement from the conclusion of school until 9.00 pm if their birthday falls on a school day or from 4.00 pm until 9.00 pm if their birthday falls on a weekend;

   (g)handovers not taking place at the children’s school occur on the front steps at the Church at K or at such other place as may be agreed between the parties;

4. Until the end of 2009 the husband and wife share equally in the cost of any future counselling of the children.

5. The husband be at liberty to obtain information and reports concerning the children from any Doctor, Treating Specialist, Counsellor, School Principal or Teacher, with the wife providing written authority for the same to the husband upon his written request. 

6. In full and final settlement of any claim that either party may have against the other for settlement of property or alteration of interest in property:

   (a)the husband within 21 days from today do transfer to the wife and or her nominee all his estate and interest whatsoever in the W Farm or improvements thereon being the land situated at and described in Certificate of Title Volume … Folio … and Folio … and Volume … Folio …;

   (b)contemporaneously with the transfer referred to in sub-paragraph (a) hereof the husband do pay monies owing and do all things and execute all documents as shall be necessary to effect the release from security given to Bank SA in relation to the land and improvements to ensure that the wife shall receive the whole of the interest in the real estate known as the W Farm free and unencumbered;

   (c)within 21 days from the date hereof the wife do transfer to the husband all her estate and interest in the K shop, being the whole of the land described in Certificate of Title Volume … Folio … and the house situate at O being the whole of the land described in Certificate of title Volume … Folio … PROVIDED THAT the husband shall contemporaneously secure the release of the wife from any liabilities of and in relation to any memorandum of mortgage or loans secured or guaranteed with the said property, including but without limiting the generality hereof the mortgage numbers 8… and 7… to ensure that the wife is no longer responsible for any debts, mortgages, securities, credit card payments or guarantees relating to any such debts;

   (d)as to M trust and T Company (“the said entities”);

   (i)within 21 days the wife do transfer to the husband all her shareholding or capital accounts in the said entities;

   (ii)the wife shall resign from any position she may hold in the said entities;

   (iii)the wife shall transfer to the husband any entitlement to any distribution she may have from the said entities;

   (iv)the husband shall indemnify the wife in relation to any or all liabilities of the wife to any of the said entities including but without limiting the generality of the foregoing any income tax liability of either party hereafter arising out of the said entities or the wife’s position in the said entities and the husband shall pay as and when such liability shall fall due any income tax liability or Capital Gains Tax liability arising out of any distribution allegedly made to the wife from the said entities and shall indemnify the wife for any such liability;

   (v)subject to the husband’s compliance with the above orders the wife shall thereafter have no claim against the husband or the said entities in relation to the assets of the said entities or any entitlement of the said entities whether by way of loan account wages or dividends;

   (vi)within 21 days the husband do all things and execute all documents as shall be necessary to effect the discharge of the wife or release of the wife from any amount owing in relation to any joint debit bank account or joint credit card facility or overdraft which the wife may be liable whether as creditor or a guarantor jointly with the husband or in relation to any of the said entities;

   (vii)subject to compliance by the husband with the above orders any interest claim, right or entitlement of the wife whatsoever in M Trust and T Company do vest in the husband;

   (e)the balance of proceeds of sale of the property at G (being the net proceeds of sale after payment therefrom of all amounts owing to Y ANDREW pursuant to the Orders of the District Court of South Australia in Action Number … of 2007, discharge of mortgage and costs of sale) and the net proceeds of sale of the K shop be divided as follows:

   (i)payment to the wife of the sum of $125,150;  and

   (ii)balance to the husband;

   (f)as to the C Superannuation Fund

   (i)within 21 days the parties do take such steps and do all such things as shall be necessary to transfer from the C Superannuation Fund to a fund of the wife’s choosing being a rollover payment to the fund on behalf of the wife in the sum of $11,482 which will thereafter remain the entitlement of the wife free from any claim by the husband;

   (ii)immediately upon rollover of the said sum the wife do resign as a trustee of the said C Superannuation Fund;

   (g)within 21 days the wife do transfer to the husband any interest in the Toyota Land Cruiser motor vehicle in the husband’s possession;

   (h)subject to compliance with the above orders the husband do otherwise retain:

   (i)his AMP & Westfarmers shares;

   (ii)his D investment;

   (iii)The F site and shed;

   (iv)his Holden Calais motor vehicle;

   (v)the Holden Caprice motor vehicle registered in his sole name;

   (vi)the children’s mini bikes;

   (vii)two trailers;

   (viii)   plant and equipment at K shop;

   (ix)     plant and equipment at N property;

   (x)furniture and household effects currently in his possession;

   (xi)miscellaneous tools and machinery at O property;

   (xii)all other savings assets and personal property currently in the husband’s possession;

   (i)subject to compliance with the above orders the wife do otherwise retain:

   (i)her Ford Fairmont vehicle;

   (ii)horse float;

   (iii)furniture and household effects currently in her possession;

   (iv)miscellaneous tools and machinery at W Farm;

   (v)her jewellery;

   (vi)equestrian equipment;

   (vii)four horses;

   (viii)her 129 AMP shares;

   (ix)HESTA Superannuation;

   (x)all other savings assets and personal property currently in the wife’s possession;

   (j)each party do hereby release and discharge any liability for any claim that either may have against the other of any nature whatsoever in respect of any property now or hereafter owned by them or any personal debts or liabilities incurred SAVE AND EXCEPT for compliance with the provisions hereof;

7. The wife’s application for lump sum Child Support is dismissed.

8. The wife’s claim for spousal maintenance is dismissed.

9. Each party has liberty to apply for consequential orders.

10. The question of costs of and in relation to the proceedings is reserved.

11. If either party seeks an order for costs in relation to these proceedings:

    (a)that party do give the other party written notice within 28 days from the date hereof;  and

    (b)any application for costs is to be filed in the Court within 28 days from the date hereof.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1216  of 2004

MS DELAINE

Applicant

And

MR ANDREW

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings between the wife Ms Delaine and the husband Mr Andrew concern both children and financial issues.

Hearing

1. The trial commenced on the 19 May 2008.  The wife was represented by Mr Whittle of counsel, the husband by Mr Jordan of counsel and the Independent Children’s Lawyer by Mr Bowler of counsel.

2. The trial was expected to occupy five days.  By the second day of the trial it became obvious that the property matters were not ready and that in any event the time set aside would not be sufficient.  The property settlement proceedings were therefore adjourned.

3. The Court continued to hear evidence in relation to the children’s issues on the 20, 21, 22 and 23 May 2008.  On the 23 May 2008 the matter was adjourned.  It resumed on the 2 July 2008 when  I heard further evidence and submissions of counsel in relation to the children’s issues.

4. The property settlement proceedings resumed on the 22 September 2008 and continued for 5 days.  On the 26 September 2008 final submissions in relation to property settlement proceedings were heard save and except, at the request of the parties the matter was adjourned to allow them to provide to the Court within 21 days full particulars of the Capital Gains Tax which the parties were asking the Court to consider.

5. The husband was also given 21 days to produce any further evidence about one of the issues in dispute, namely the allegation by the husband that the wife had resigned as trustee of the Family Trust.

6. By the end of October 2008 no further request to provide evidence in relation to Capital Gains Tax or the wife’s alleged resignation as trustee was received.

Children’s Issues

1. The proceedings concern the welfare of two children, twins R and E who were born in August 1993.  They have been adopted by the parties.

2. Originally in the Case Outline document filed by the wife at the commencement of the trial, the wife sought orders which provided for R and E to live with the husband each alternate week and with her each other week.  The orders were however “to be subject to the wishes of the said children”.  At the commencement of the hearing the wife indicated that she was then seeking orders that the children live with her and spend such time with the husband “as they wished”.  This was on the basis that the wife would undertake counselling with a psychologist for the purpose of obtaining assistance in encouraging the children to attend and remain with the husband for periods of time to commence a process of rebuilding their relationship with the husband.

3. By the end of the trial on children’s issues the children had spent time with the husband on two weekends in June 2008.  The wife then submitted that the orders should provide for the children, R and E to live with the wife and spend alternate weekends and half school holidays with the husband.

4. In the Amended Case Outline filed on behalf of the husband at the commencement of the trial, the husband sought orders that he have sole parental responsibility for R and E, that they live with him and the wife be restrained from:

   “(a)     causing or permitting the said children to change school;

   (b)causing or permitting the said children’s place of residence to be changed to any place beyond a 15 kilometre radius of [K];

   (c)causing or permitting the said children to reside in any household in which the wife is ordinarily a member;

   (d)causing or permitting the said children to associate or communicate with [the wife’s new husband Mr Delaine];

   (e)attending at the said children’s school;

   (f)denigrating the husband to or in the presence of the said children or causing or permitting any other person to do so.”

5. The husband also sought that a warrant issue for the arrest of the children and for their delivery up to the husband.

6. At the conclusion of the trial in relation to children’s issues the husband sought the following interim and final orders:

   “Interim orders

   1.That pending the judgement (sic) of the Court the children do spend time with the husband for the duration of the July 2008 school holidays from the commencement of school on Friday 4/7/08 until the commencement of school on 21/7/08 and at such times following the conclusion of the said school holidays as the Court shall order.

   Final orders

   1.That the husband do have the sole parental responsibility for the children.

   2.That the children live with the husband until they attain the age of 18 years.

   3.That as and from the date of judgment and for the continuing period of 12 months:

   (a)the children do communicate with the wife by telephone on one occasion each week such communication to be monitored by the [K] High School counsellor

   (b)the wife be restrained from otherwise contacting or coming into the presence of the children.

   4.That at the conclusion of the period referred to in paragraph 3 above the children spend time with the wife each alternate weekend from the conclusion of school on the Friday until the commencement of school on the following Monday and for one half of the school holiday periods.

   5.That the wife be restrained from removing the children from the State of South Australia and the Commonwealth of Australia.

   6.That the wife be restrained from having or taking the children into her care or causing or permitting any person to do so on her behalf save and except as hereinbefore ordered.”

Background and Chronology

1. The husband was born in October 1955 and is therefore aged 53.  The wife was born in March 1960 and is therefore aged 48.  The parties met in 1975 and married in April 1981. 

2. There are five children of the marriage, Y who was born in October 1987 (now 21) who lives independently (and was to marry her fiancé Z in late October 2008);  S who was born in 1989 (now aged 19) who resides with the husband;  L who was born in May 1991 (now aged 17) who resides with the wife and the two children to whom these proceedings relate, R and E both born in August 1993 (now aged 15).

3. The parties resided together primarily in the K area.  R and E were adopted by the husband and wife in 1997. 

4. Prior to the separation of the parties the husband and wife undertook the care of J who was born in June 1996.  He came to reside with the husband and wife in March 2002.  Steps were commenced for the parties to adopt J.  This was not concluded before the parties’ separation.  Subsequently steps have been taken for the husband to adopt J.  At the time of the trial J was residing with the husband.

5. The wife alleged that the husband kept firearms.  Shortly before the separation the husband took a handgun to the surgery of Dr BN, a psychiatrist.  Dr BN reported this to the K police who thereafter removed the husband’s firearms.

6. The husband and wife separated on the 3 December 2003 when the wife left the family home.  She lived with her parents for a few weeks until early 2004 when she moved to the farm property owned by the parties.

7. Proceedings were commenced by the wife in relation to financial matters in August 2004.  Proceedings concerning the children were not commenced until February 2005 when the wife amended her application for final orders to include orders about the children.

8. Immediately after the separation the children (being the five children of the marriage and J) were in the care of the wife, spending approximately one night a week with the husband.  S and L also spent approximately two days a week doing casual work for the husband at his shop. 

9. From February 2004 until shortly after the incident in January 2005, the parties agreed to an arrangement where the children were usually spending a week with the wife and a week with the husband on a shared care or “fifty/fifty basis”.

10. In January 2004 S commenced living with the husband full time.  His relationship with the wife has broken down.

11. Y resided primarily with the wife, occasionally visiting the husband.

12. On the 23 January 2005 an incident occurred at the wife’s home on the farm involving the husband, S, Y and her boyfriend Z.

13. Following this incident the husband was charged with aggravated criminal trespass, threatening life, assault family member and common assault.  After a trial before a jury in the District Court the husband was acquitted and charges dismissed.

14. S was also charged with aggravated criminal trespass and carrying an offensive weapon.  Shortly after the commencement of the trial in the Youth Court the charges were withdrawn.

15. In March 2005 interim orders were made in relation to the children by Registrar Kelly.  On the 17 March 2005 a Consent Order provided that S was to reside with the husband and that the husband would give contact with S at such times as the parties agree, subject always to S’s wishes.  The order provided that Y reside with the wife and in similar terms the husband was to have contact with Y at such times as the parties agree subject always to Y’s wishes.

16. Paragraph 4 of the Consent Order was:

    “4.That the child [L] (subject to his wishes) and the children [R] and [E] do reside:

    a.         with the husband as follows:

    1.from 6.00pm 19 March 2005 until 6.00pm Saturday 26 March 2005 and, thereafter;

    2.from 6.00pm Sunday 3 April 2005 until 6.00pm on Sunday 10 April 2005 and each alternate week thereafter;

    3.on Fathers Day from 9.00am to 6.00pm;

    4.from 3.00pm on 24 December 2005 until 3.00pm on 25 December 2005;

    5.on the birthdays of the children [L], [R] and [E] as follows:

    1.in the year 2005 and each alternate year thereafter, the child [L] shall celebrate his birthday with the husband from 5.00pm until 8.00pm on that day;

    2.in the year 2006 and each alternate year thereafter, the children [R] and [E] shall celebrate their birthdays with the husband form 5.00pm to 8.00 pm that day;

    6.such further or other times as may be agreed.

    b.with the wife as follows:

    1.from 6.00pm Saturday 26 March 2005 until 6.00pm Sunday 3 April 2005;

    2.from 6.00pm Sunday 10 April 2005 until 6.00pm on Sunday 17 April 2005 and each alternate week thereafter;

    3.on Mothers Day, from 9.00am to 6.00pm;

    4.from 3.00pm on 25 December 2005 until 3.00pm on 26 December 2005;

    5.on the birthdays of the children [L], [R] and [E] as follows:

    1.in the year 2005 and each alternate year thereafter, the child [R] and [E] shall celebrate their birthdays with the wife and if not residing with her on that day from  5.00pm to 8.00pm that day;

    2.in the year 2006 and each alternate year thereafter, the child [L] shall celebrate his birthday with the wife and if not residing with her that day from 5.00pm until 8.00 pm;

    6.such further or other times as may be agreed.”

1. The parties were divorced on the 26 April 2005.

2. In August 2005 J commenced living with the husband full time.  The wife did not agree to proceed with the joint adoption of J.

3. In January 2005 Mr Delaine came to work at the centre where the wife works.  The wife and Mr Delaine commenced a relationship in June 2005 and were living together from October 2005.  The wife and Mr Delaine married in December 2005.

4. Since approximately April 2006, L has chosen not to spend time with the husband.

5. In August 2006, when R and E were staying with the husband, they telephoned the wife. They accused the husband of tape-recording their telephone conversation.  As a result there was an argument between the husband, R and E.  The wife alleges that the husband’s reaction was so severe that R and E were crying in distress.  The wife claims that the husband interrogated R and E for approximately an hour and a half, resulting in E vomiting and getting a headache.  The wife makes further allegations based upon information from R and E about this incident.  The husband denies the wife’s allegations.  He denies recording the children’s telephone conversation.

6. The next day the wife attended the girls’ school.  She spoke to R and E.  Her evidence is that they were threatening to commit suicide and that they were refusing to return to the husband’s residence.  R and E returned to the wife’s care.

7. On the 16 August 2006, Registrar Kelly made orders by consent which provided for the appointment of an Independent Children’s Lawyer for S, L, R and E and provided for the arrangements concerning the children to continue during the period of the adjournment whilst a family assessment was prepared.

8. The wife alleges, whilst she was overseas with her husband, Mr Delaine, that in October 2006 the farm was broken into and documents removed from the filing cabinet.

9. On the 18 December 2006 the first report from the independent expert, Ms SA was prepared.  It recommended that the parents share long term parental responsibility of R and E, that R and E reside with the wife during 2007 and have contact with the husband on alternate weekends and during school holidays.

10. In January 2007 Y commenced civil proceedings against the husband in the District Court of South Australia seeking payment to her of her credit loan account in M Trust.  The balance sheet for the Trust at 30 June 2006 disclosed a credit loan account for Y of $138,637.40.

11. On the 22 January 2007 interim orders were made which provided:

    “BY CONSENT IT IS ORDERED

    1.That the parties do forthwith provide each other with details of medical, psychological and other specialist appointments made by either of them for the children [L] born on […] May 1991, [R] and [E] both born on […] August 1993.

    2.That the parties do forthwith provide each other with any medical, psychological or specialist reports made in relation to any of the children.

    3.That the child [W] and the father do attend upon Ms [TR] at [MA Centre] for family counselling to address the relationship between [L] and the father and with the father to meet the costs of such counselling and with the mother to facilitate the child [L’s] attendance at all such appointments.

    4.That the parties are restrained from taking any or all of the children to see a psychologist or any other like health/medical professional without the prior written consent of the Independent Children’s Lawyer first being obtained.

    UNTIL FURTHER ORDER IT IS ORDERED

    5.That the application for Judicial management and an expedited hearing are referred to the Case Management Judge for consideration on a date to be fixed.

    6.That the children [R] and [E] continue to attend [H] Christian School for the 2007 school year (unless otherwise ordered or agreed to by the parties).

    7.That the interim parenting applications are otherwise dismissed and removed from the pending cases list.

    8.Liberty to either party to re-instate the interim children’s issues upon filing a further report from Ms [SA] and 14 days notice.”

12. On the 23 January 2007 R and E ran away from the husband’s home for the first time.

13. On the 18 March 2007 at 11.00 pm R and E again left the husband’s home without his permission.  The wife was not aware at the time that this had taken place, but was informed by the children later.

14. Further steps were taken to prepare both the property settlement and children’s issues for trial.  On the 10 August 2007, Ms SA’s updated report was released recommending that R and E live with the husband for the remainder of 2007 and have weekly telephone contact with the wife for a period of two months before spending Saturdays with the wife from 9.30 am to 6.30 pm.

15. On the 6 October 2007 R and E again left the husband’s home without his permission.  They are alleged to have telephoned the wife’s brother (who lives approximately 150 kilometres away) asking to be collected.  The wife alleged that the children left because of the husband’s reaction to the RSPCA visiting his home the day before.

16. Orders were made on the 17 October 2007 which provided for R and E to be returned to the husband’s care at the K Police Station.  The children refused to get out of the car on this occasion and remained with the wife.

17. On the 22 October 2007 further orders were made which provided for R and E to live with the husband and to be delivered up forthwith.  The children were to be handed over to the husband in the Commonwealth Law Courts building.  The wife delivered R and E to the appointed place, leaving the children with the Independent Children’s Lawyer.  The children refused to go with the husband.  After a period of time, the wife was asked to return to collect the children.

18. Further orders were made during the period of November and December 2007 providing for R and E to live with the husband, but these were not successful.  The husband applied for recovery orders which from time to time were granted and suspended.

19. Since the commencement of school in 2008, R and E ceased attending H Christian School.  They were enrolled by the wife in K High School.

20. Notwithstanding the attempts made to encourage the children to resume a relationship with the husband, R and E refused to spend time with the husband from October 2007 until June 2008.

21. The wife asserts that her marriage to Mr Delaine has broken down.  Her evidence is that they separated shortly before the trial commenced in early May 2008.

22. At the adjournment of the part heard trial the following orders were made on the 23 May 2008 by consent:

    “1.The children [R] and [E] both born on […] August 1993 spend time with the husband:

    (a)    from 4.30pm on Friday, the 6 June 2008 until the commencement of school on Tuesday, the 10 June 2008; and

    (b)    from 4.30pm on Friday, the 20 June 2008 until the commencement of school on Monday, the 23 June 2008.

    2.The wife deliver the children to the front steps of the [Church at K] at the commencement of the time to be spent with the husband and the husband deliver the children to the [K] High School at the conclusion of the said time.

    3.The time spent with the husband pursuant to paragraph 1 hereof shall be in the absence of Ms [WE].”

23. When the matter resumed the Court was informed that R and E had attended to spend time with the husband.

24. On the 2 July 2008 judgment was reserved.  The following orders were made pending delivery of judgment:

    “1.Both parties are restrained and an injunction is granted restraining them from taking the children [R] and [E] both born on […] August 1993 out of the Commonwealth of Australia.

    2.The children shall spend time with the husband from the conclusion of school on Friday 4 July until the commencement of school on Monday 21 July 2008.

    3.AND FURTHER PENDING DELIVERY OF MY JUDGMENT during school term time the children spend time with the husband commencing Friday 1 August 2008 from each alternate weekend from the conclusion of school Friday until the commencement of school on Monday.

    4.All handovers and returns can take place by the children being collected and returned to their school.”

25. The above facts summarise only the more significant events of many which relate to the children.

Issues.

1. The main issue to be determined is the reason for the poor relationship between R, E and the husband.  The wife alleges that the relationship broke down because of the behaviour of the husband.  The husband alleges that the wife has “maliciously undermined the relationship” between himself, Y, L, R and E.

2. Another issue in dispute is the significance of the wife’s relationship with her present husband Mr Delaine.  The wife says they are separated and are not likely to resume cohabitation.  The husband does not accept this. 

3. The husband asserts that Mr Delaine is not a fit person, alleging that his children from his previous marriage were removed from his care by State Authorities. (This latter allegation is not denied by the wife, but the Court was not provided with any particulars or evidence upon which the State authorities acted).  The wife gave evidence that one of Mr Delaine’s children, his son, was returned to his care (at the home of the wife) before Mr Delaine and the wife separated.

4. The husband asserts that the wife is not a fit and proper person to have the care of a child, nor to communicate or spend time with R and E.

Discussion

1. The evidence of both parties related to many incidents.  The judgment will discuss some but not all of them.

2. The incident which occurred in January 2005 has played a significant role in the relationships between the parties and the children.  The evidence relied upon by the wife concerning this incident is information given to her by Y and her boyfriend, Z.  The husband provided his evidence about the incident.  The husband was also cross-examined about S’s description of the incident which he gave to Ms SA.

3. The wife’s evidence was that in the early hours of the morning of Sunday 23 January 2005 she was working at a nursing home in W.  The children, L, R, E and J were being cared for by her mother while she was working night-shift.  Y was born in October 1987 and at that time was 17.  Y and her boyfriend, Z had been out together for the evening.  They went to the farmhouse.

4. The wife says that she has since been informed by Y that at about 1.00 am the husband attended at the farm.  He was accompanied by S who was 15 years old at the time. 

5. The wife’s affidavit says:

   “108.I believe that at about 1 am the husband, accompanied by [S] (who was 15 years of age at the time) broke into my home and attacked [Y] and [Z].  I was informed that the child [S] held a knife whilst the father first grabbed [Z] around the neck, causing him bruising and abrasions and threatened to have him killed.  The husband attempted to drag [Y] out of the house.  The police were called a number of charged were laid against both the husband and [S], including breaking and entering and aggravated assault.  The injuries sustained by [Y] and [Z] were photographed.  The husband threatened [Y] that ‘if you don’t drop the charges I will make your life not worth living’.”

6. Y has subsequently “wanted nothing whatsoever to do with the husband”.  Y subsequently moved to Adelaide.

7. In the husband’s affidavit of evidence in chief he asserts:

   “46.    In January, 2005 the wife asserted to the police:

   (a)that I had trespassed on the [W] farm;  and

   (b)that [S] had trespassed on the [W] farm.

   47.Contemporaneously, [Y] asserted to the police:

   (a)   that I had assaulted her and her boyfriend at the [W] farm and had threatened his life;

   (b)   that [S] had attended at the [W] farm with an offensive weapon (a pocket knife).

   48.I was charged with aggravated criminal trespass, threatening life, assault family member, and common assault.  Because of the nature of the charges the trial was heard before a jury in the District Court.  Judge […] dismissed the aggravated criminal trespass without the need for the jury to deliberate.  I was acquitted of all other charges by the jury after a very short deliberation.  I instructed […] Lawyers to act for me and Mr. […] was my barrister.  My total legal fees were $14,002.  Because the trespass charge was a major indictable offence and all charges were heard in the District Court, I was precluded from making any claim for my costs.

   49.[S] was charged in the Youth Court with aggravated criminal trespass and carrying an offensive weapon.  Shortly after the commencement of the trial the Youth Court Judge directed the prosecutor to seek instructions to withdraw the charges.  The charges against [S] were withdrawn.  I met [S’s] legal costs of $3,000.”

8. Y’s version in the report of Ms SA is as follows:

   “[Y] was then asked for details about the incident on 23/01/05.  She indicated that her mother was on night duty at […] and [Z] was staying over.  She said, ‘We got home at 12.30am’.  She added, ‘We panicked when we heard a car – to avoid argument – we knew he (the father) would be psycho – he didn’t know everything – plus his view about girls and boys’.

   [Y] referred to her father ‘yelling’ during this incident.  She also said, ‘[S] climbed in through the lounge room and looked very angry – he let [the husband] in through the door’.  She also said, ‘[the husband] told me to get in to the car.  He tried to drag me by the wrists – [Z] grabbed him – [the husband] pushed [Z] and held him down.  He had his hand around his neck and told him he was going to kill him’.  She also claimed that [S] had then ‘pulled out a knife’.  She said, ‘He was standing back pointing the knife at [Z].  She further reported that [S] had then ‘pulled out the phone cord’ when she had been trying to phone the police.  She said, ‘However, I had already called them’.  She also reported that she and [Z] had then ‘run down the driveway to the main road’.”

9. S’s version as reported to Ms SA is as follows:

   “[S] was then asked about the incident in January 2005.

   In relation to this, he said, “Before it, [Z] smashed up Mum’s car – at Dad’s house – he smashed up a headlight’.  He further reported that he and his father had gone out to the farm ‘late at night – to drop off some things – to avoid conflict – we knew no-one would be at home’.  When asked what they had taken out to the farm, [S] said, “Something he had had to give Mum’ and indicated that that this may have been ‘another headlight’.  [S] claimed that on that night, he had believed that [Y] was at a party and that the other children were at the home of the maternal grandparents.  He added, ‘[Y] was meant to be a (sic) friend’s house after the party’.

   [S] stated that he and his father had gone to the farm and had seen a light ‘flicked off’, as well as ‘a car hidden from the road’.  He said, ‘We thought it was [Z’s] car’.  He also said, ‘We saw someone run through the kitchen and we knocked on the door’.  He said, ‘Dad asked [Y] are you in there?’ and added, ‘We heard some shuffling’.  [S] further reported that the father had called the mother and that she had stated that she would call [Y’s] mobile.  However, he said, ‘There was no phone call from Mum’.  He claimed that the father had again called the mother, who had stated that [Y] was ‘meant to be out there, I think’.

   [S] stated that they had not been able to get the door unlocked and indicated that, as there had been no response, they had been ‘worried if anyone was there’.  He said, ‘I climbed through the unlocked window and opened the door and Dad came in, and [Y] and [Z] were in the double bed in the lounge room’.  He quoted the father as saying, ‘I’m not happy you being here by yourself  - I’ll take you to your Grandma’.  He added ‘[Y] threw a hissy fit and Dad took her by the wrist’.  He also said, ‘[Z] was pushing and shoving Dad, and Dad was trying to restrain him.  He had a hand on [Z’s] chest’.  He quoted the father as saying to [Z], ‘It’s my daughter – if you had a daughter out here with her boyfriend how would you feel?’  He then quoted [Z] as saying, ‘Sorry’, and indicated that [Z] had ‘put up his hands’.

   [S] then described himself as a ‘fiddler’.  He said, ‘I like to fiddle with things’.  He added, ‘I was fiddling with a pocket knife and [Y] started screaming, ‘He’s got a knife’.  In relation to the knife, he said, ‘Dad threw it away’.  He added, ‘[Y] had called the cops – they spoke to me and Dad briefly’.  In relation to [Z], he said, ‘I was talking to him afterwards and he was fine’.  In relation to [Y], he said ‘[Y] was hysterical, very much so’.  In general, he said, ‘I didn’t think there would be a huge deal out of something minor’.”

10. It is not appropriate to give significant weight to the hearsay evidence of comments made by Y and S to Ms SA, nor indeed to the version of events given by Y to the wife.  It is to be noted however, that the husband and S blame the wife (and to a lesser extent Y) for the police prosecutions which followed.  The wife appears to blame the husband for the stress caused to Y following the cross-examination by the husband’s counsel in the ensuing criminal proceedings.

11. The husband’s evidence in cross-examination about the incident was as follows:

    “During that incident in January 2005, when you got [S] to go into the house and then went in yourself, you knew that [Y] was in there, didn't you?  You believed that [Y] was in there, didn't you? Is that a yes or a no?---It's a no. I didn't know who was in there. [Y] wasn't supposed to be in there. I do happen to have the transcript from the District Court, if you would like me to table them.

    Mr [Andrew], will you please answer my questions?---I did not know [Y] was in there. There was supposed to be nobody home. That was the purpose of going there - was to go drop a headlight off for her car because [Z] had hit a side of the shed with the car and had broken the headlight and [the wife] had asked me to drop a headlight off that we had spare in the shed, and dad had given me a bag of nectaries to give her. I was in the habit of going out when she wasn't home and I would hang a Woolworths bag with whatever I was dropping off on the back door, and then leave. It was the best way to avoid any arguments. 

    You've read what Ms [SA] - the conversation Ms [SA] had with [S] about that incident, haven't you?---A long time ago. Yes, I have.

    Page 79, he says halfway down, "Before, [Z] smashed up mum's car at dad's house. He smashed up a headlight."

    "He further reported" - and this is Ms [SA] talking about [S] - "that he and his father had gone out to the farm late at night to drop off some things to avoid conflict. 'We knew no-one would be at home.' When asked what they had taken out to the farm, [S] said, 'Something he had to give mum,' and indicated that this may have been another headlight. [S] claimed that on that night he had believed [Y] was at a party and that the other children were at the home of the maternal grandparents. He added, [Y] was meant to be a friend's house after the party.' [S] stated that he and his father had gone to the farm and had seen a light flicked off, as well as a car hidden from the road. He said, 'We thought it was [Z’s] car.' He also said, 'We saw someone run through the kitchen and we knocked on the door.' He said, 'Dad asked, "[Y], Are you in there?"' and added, 'We heard some shuffling.' [S] further reported that the father had called the mother and that she had stated that she would call [Y’s] mobile. However, he said there was no phone call from mum. He claimed that the father had again called the mother, who had stated that, [Y] was meant to be out there, I think.'" Is [S] right so far in what he said to Ms [SA]?---No, he's not. He's incorrect in a couple of things.

    What's he incorrect about? He was there, wasn't he? What's he incorrect about?---Can I speak to my counsel?

    No?---Your Honour, I spent four days in the District Court going through this and was found not guilty. I don't - - -

    HER HONOUR: Yes, you may have, but this is a completely set of proceedings. These are not criminal proceedings. There is no jury. I'm here to determine the facts which are relevant to the welfare of the children – a completely different exercise - and unless there is some basis for an objection to the questions, you will be required to answer them - - -?---Yes, your Honour.

    - - - particularly about this topic. Mr Whittle.

    MR WHITTLE: What do you say [S] is wrong about so far?---[S] - we didn't know whether [Y] was in there or not. I didn't know [Y] was in there. We thought there was somebody in there. [The wife] had - when I rang her, I expected her cooperation. She didn't cooperate at all. And after banging on the door several times, [S] climbed in through a window to see if anyone was there. He let me in - - -

    HER HONOUR: Sorry, you were asked about the paragraphs that Mr Whittle had read out to you - - -?---I'm sorry.

    - - - and you said they weren't correct. Can you please address the question that he asked you; namely, to say which parts of those paragraphs are incorrect.

    MR WHITTLE: Perhaps I'll take it part by part?---Yes, that would be good, thank you.

    Did you and [S] see a car hidden from the road and think that it was [Z’s] car?---There was a car hidden behind two large - - -

    And did you think it was [Z’s] car?

    HER HONOUR: Let him finish, please, Mr Whittle?---There was a car hidden behind two large 5000-gallon water tanks and a besser block tank stand that seemed to be placed there so no-one could see it. No, I didn't know it was [Z’s] car and I didn't suspect it was [Z’s] car because, to my knowledge, [Z] didn't have a car. [Y] was in the habit of staying with me when [Z] was in [K] and her mother was at work, because [Z] used to borrow one of the cars from work.

    MR WHITTLE: So when [S] says, "We thought it was [Z’s] car," that's incorrect?---[S] may have thought it was [Z’s] car. He may have known [Z] had a car. To my knowledge, [Z] didn't even have a car.

    [S] then said to Ms [SA], "We saw someone run through the kitchen and we knocked on the door." Was that correct, what [S] said?---[S] thought he saw someone running through the kitchen. The kitchen window is very high. I couldn't see through the kitchen window.

    Did [S] tell you that he thought he saw someone run through the kitchen?---He said he thought he saw someone run through the kitchen, yes.

    And did he tell you that he thought it was [Z’s] car outside?---I don't remember him saying anything about whose car it was. To me, it was a strange car. I didn't know [Z] had a car.

    You don't remember him saying anything about that?---All right. Well, he didn't say it to me.

    Okay. So you're being definite?---To the best of my knowledge - this was nearly - it's over three years ago. I don't remember and I don't believe [S] said to me, "That's [Z’s] car," because I don't think [S] knew [Z] had a car.

    And [S] says to Ms [SA], "Dad asked, [Y] are you in there?'" Is [S] correct about that?---He certainly is, yes.

    So did you suspect [Y] was there?---No, I didn't, but I couldn't think of anybody else that could possibly be there, unless they were robbers. [Y] worked for me that Saturday morning. She told me she was going to a birthday party at [W] and she was going to have alcohol there and her and [Z] were sleeping wherever the party was overnight, so I didn't expect her to be there. But the other children were all with the maternal grandmother, so it was either [Y] - I was hoping it was [Y]. I didn't want it to be a burglar.

    [S] then went on to say, "We heard some shuffling." Did you hear some shuffling?---No. I wouldn't have, though.

    "Then he said that the father had called the mother and that she had stated that she would call [Y’s] mobile. However, he said there was no phone call from mum. He claimed that the father had again called the mother, who had stated that, ‘[Y] was meant to be out there, I think.'" So did you ring the mother twice and, on the second occasion, did she tell you that [Y] was meant to be out there?---The mother told me [Y] was meant to be at the party at [W]. She said she would call [Y’s] mobile. I don't think I heard from the mother again. I believe she rang the police to come out there. Look, I'm a bit hazy on that, but I don't think so. [The wife] had never told me that [Y] was there with her knowledge and consent.

    But [S] says to Ms [SA] that you rang the mother again and the mother told you that [Y] was meant to be out there. So you say [S] is wrong about that?---I'm saying [S] is not sure. [S] wasn't with me the whole time. He was wandering around the house seeing if he could see through the window to see if he could see anybody. [S] wouldn't be aware of how many phone calls I made and to whom I made them.

    So if he wasn't there, I suppose it would only be from what you said to him that he might have an understanding?---Well, I didn't say that to him.

    [S] went on - and this part I haven't read to you: "[S] stated that they had not been able to get the door unlocked and indicated that, as there had been no response, they had been worried if anyone was there. He said, 'I climbed through the unlocked window and opened the door and dad came in, and [Y] and [Z] were in the double bed in the lounge room.'" That happened?---They weren't in the double bed when I walked in the lounge room. They may have – [S] got through that window and walked through lounge room to the kitchen and unlocked the kitchen door for me, yes. 

    When you went in, was there evidence that they may have been in the double bed on the lounge room floor?---They may have been in the double bed in - - -

    Was there evidence that they may have been?---Someone had been in the - it's a make-up bed. I don't even know if it's big enough to be called a double bed. There was evidence that someone was there, and [Z] had pyjama pants on.

    Right?---And I think he was sitting on the edge of the bed.

    I think we can say that there was evidence that he and [Y] had been in the double bed, can't we?---Well, they're your words, not mine.

    Well, I'm asking you if you agree with them?---No, I don't agree with them. I don't know where my daughter was. She was certainly in there with [Z] when she heard people banging on the door, which I would expect her to do anyway.

    Were you incensed - - -?---And the fact that [S] saw someone run through the kitchen - the room [Y] was - I would normally have expected [Y] to be in, she'd have to run through the kitchen to get to the lounge room.

    Look, once you got in there, you knew that it was [Y] and [Z] in the house, didn't you?---Yes.

    And you knew that [Z] had his pyjama pants on?---Yes.

    He was sitting on the side of the bed?---Yes.

    And did you think that [Y] and [Z] had been getting up to some sort of sexual mischief in the farmhouse?---I don't know what I thought at the time.

    Come on, just try to think back?---I don't know.

    You don't know if you thought that [Y] and [Z] might have been getting up to some sort of sexual mischief in the house?---I don't remember what I thought three years ago, no. My concern was that her and [Z] weren't staying there the whole night together, and I asked them if they would like to come and stay at my place or at her maternal grandparents', but it wasn't acceptable for the two of them to stay on the farm all night together. I had concerns about my daughter's safety and I wasn't happy about that. That was the whole thrust of it.

    If you had thought that the two of them were engaging in some sort of sexual activity on the bed - if you'd thought that, would that have made you angry? Would you have thought that was wrong?---I would thought that was wrong, but I mean - - -

    And would it have made you angry?---Are you trying to put words into my mouth? I wasn't - - -

    I'm cross-examining you?---I wasn't angry at that stage. I was bewildered as to what was going on and, as I said - but I wasn't going to let her stay at the house by herself or her and that [Z] stay there all night by themselves.

    Did you take [Y] by the wrist?---Yes.

    And try to manually remove her from the housed?---No, I didn't try to manually remove her.

    Well, let's come back to what [S] said. "[S]", Ms [SA] says, "quoted the father as saying, 'I'm not happy you being here by yourself. I'll take you to your grandma,' and [S] added, [Y] threw a hissy fit and dad took her by the wrist.'" Did that happen? Did [Y] get upset and did you take her by the wrist?---My evidence in the District Court was that - - -

    Don't worry about that. Answer the question?---I disagree with what [S] said, and I said it in the District Court. I put my arm on her elbow and said, "Come on, [Y]. You're just not staying here." If I wanted to remove [Y] from the house, I could've lifted her up under one arm and carried her out. She's not very big.

    [Z] wasn't very happy about what was happening either, was he?---No, [Z] wasn't happy at all - well, no, [Z] was fine really.

    Right. Was [Z] pushing and shoving you?---He did eventually. But [Z] is a bit of a peacemaker. He said, "Come on, [Y]. That's fine. We can do that." He was quite happy to comply and it was [Y] that was having a bit of a fit.

    You see, going back to what [S] says, he said to Ms [S], "[Z] was pushing and shoving dad, and dad was trying to restrain him. He had a hand on [Z’s] chest." Has [S] got that right?---No, not quite. It doesn't make it clear. What happened was that [Z] stepped between [Y] and I and pushed me. I pushed him back. He's much bigger than n me. He started to fall backwards, so I gave him another push. With the momentum, he fell back into a beanbag. I put my hand on his chest - my left hand on his chest because my right hand was bandaged; I'd burnt it two days earlier when a sandwich-maker came down on top of it, and that hand there, I can't even close the thing because a few months before that I'd had my finger operated on and can't close it. So I had my left hand on his chest and said, "[Z], this isn't any of your business. It's my daughter. [Z], just stay out of it," and [Z] was fine. He said, "Nuh, that's okay, that's okay."

    So [S] says, "Dad took her by the wrist." You say that was wrong. You say you put your hand on her elbow?---Either way, I didn't use any force.

    Right. [Y] also spoke to Ms [SA] about this, didn't she?---I don't know. I can't remember.

    Well, at page 92 she says - Ms [SA] says, three-quarters of the way down, "[Y] referred to her father yelling during this incident. She also said, “[S] climbed in through the lounge room and looked very angry. He let [the husband] in through the door.' She also said, ‘[The husband] told me to get into the car. He tried to drag me by the wrists. [Z] grabbed him. [The husband] pushed [Z] and held him down.'" Now, I suggest to you that the only differences there between what [Y] has said and what [S] has said in relation to that part of it is that [Y] said you held [Z] down and [S] said, "Dad was trying to restrain him. He had a hand on [Z’s] chest," and [Y] says you tried to drag her by the wrists and [S] said, "Dad took her by the wrist." Those are the differences so far?---Would you like me to comment on a couple of those allegations?

    Would you like to comment on the fact of whether there are only those differences in the two accounts so far?---Well, the taking [Y] by the wrist or the elbow, I didn't try to drag her out. The police actually took photos of [Z’s] neck and that to try to prove that I'd grabbed him around the neck. They didn't take any photos of [Y’s] arms or make any report of any injury to [Y]. I didn't grab her, as you put it, on the arm or the wrist. I touched her on the arm and said, "Look, come on, you're not staying here."

    [S], Ms [SA] said, quoted you as saying, "It's my daughter. If you had a daughter out here with your boyfriend, how would you feel?" Did you say that?---No. I said words to that effect. I said, "You're not staying here. It's my daughter. You're not staying here. She's not staying here with her boyfriend all night by yourselves."

    So you were upset about her being out there on her own with her boyfriend?---I don't know about upset. It wasn't acceptable and I told her so.

    So you thought it was not acceptable. Was it acceptable for her to be there at that hour on her own, or only if they stayed all night?---No, I didn't think it was acceptable. I didn't address that, but I didn't think it was acceptable. That's particularly when she deceived me. They concocted to give me the impression she was staying at a friend's place all night.

    So you didn't think it was acceptable for her to be there at all, did you? It was nothing to do with whether she was there all night. That was an added layer? ---I haven't thought about that. But if [Y] said she was staying out the farm till midnight with [Z] and then going into grandma's to sleep, I don't think I would've objected to that.

    I'd suggest you wouldn't have believed her?---I'm sorry?

    I suggest you wouldn't have believed that if she'd said that?---I wouldn't have believed it?

    Yes?---I'm sorry, I would've believed it. My relationship with my daughter wasn't that bad.

    It was certainly bad after this, wasn't it?---After that?

    After this happened, it was bad, wasn't it?---Yes, it certainly was.

    Now, [S] at some stage in this incident was seen by [Y] to have a knife in his hand, wasn't he?---Yes, he was.

    Now, you've tried to play that down by saying that [S] is a fiddler, haven't you, and he fiddles with things in his pocket.

    MR JORDAN: I think [S] described himself as a fiddler, didn't he - page 80?---[S] was a fiddler, yes. He was charged with carrying an offensive weapon and that charge was also dropped by the police.

    MR WHITTLE: But what is quite true is that [Y] observed [S] to have a knife in his hand. That's true, isn't it?---[S] was standing at the back – at the end of the room, a long way from [Y], with his - - -

    With a knife in his hand?---Yes. He was standing at the back of the room with one hand in his pocket. In the other hand he had a knife and coins. He's fiddling around with his thing. [Y] said - I had my back to him. [Y] said to me - - -

    So you weren't looking at him?---I wasn't looking at that stage. [Y] said, "[S’s] got a knife." I turned around. I walked back to him. I said, "Give me that thing," picked up the knife, walked out to the back door of the house and threw it as far as I could in the bushes to try to alleviate any worries [Y] had about this flaming knife.

    Well, just pause a moment. [Y’s] perspective was clearly, simply that - well, I'll withdraw that. From [Y’s] perspective, she had observed [S] to be standing there with a knife during this time when you were trying to remove her from the farmhouse. That's correct, isn't it?---I'm trying to think when [S] was fiddling with the knife. Look, I'm not sure now at what stage of the evening [S] was fiddling with the knife, but certainly when [Y] said – [S] had the knife because his job was to cart hay for the cow and he cut it off the - - -

    Look, let's not - I'm not asking you why he had a knife, Mr [Andrew]?---All right. Well, he had a pocketknife that was closed. When [Y] complained or said about it, I walked back, took the knife from him, walked to the back door and threw it in the bushes, which I presume it's still there.

    Now, [Y] reports to Ms [SA] that [S] was standing back, pointing the knife at [Z], and [Y] further reported to Ms [SA] that [S] had then pulled out the phone cord when she'd been trying to phone the police, but she'd already called them. Now, you just say that's a lie?---I'm sorry?

    You just say that [Y] has lied about that?

    MR JORDAN: Well, there's a few questions there. Which one?

    MR WHITTLE: Has [Y] lied about - - -

    MR JORDAN: When the knife was pointed - - -

    MR WHITTLE: Excuse me. I'll clarify it.

    MR JORDAN: Good.

    MR WHITTLE: Promise you.

    [Y] has lied about [S] pointing a knife at [Z]?---I never saw it. I never saw [S] have the pocketknife open to be pointing at anybody. In the District - - -

    See it closed?---In the court that was discredited.

    Did you see it closed?---I only saw it closed, yes.

    And at what stage did you see it closed?---When [Y] mentioned - - -

    No, look, I'll withdraw that. [Y] further says to Ms [SA] that [S] had pulled out the phone cord. Now, did that happen?---I know nothing of that. In fact, to my knowledge, later on that evening when the police arrived [Y] actually picked up the cordless phone that the wife alleges I stole and was walking down the drive with it, talking to somebody. So I doubt if [S] pulled out the phone cord.”

1. The husband’s reluctance to give evidence about this topic and his inconsistent evidence, in particular about S’s behaviour with the knife, suggests that the husband has attempted to reduce any responsibility he might have for these events.  The husband gave no explanation for allowing S to go through a window into the house at one o’clock in the morning when he said he did not know who was inside.

2. The evidence indicates that there was an incident with a considerable level of hostility involving Y and Z on the one part and the husband and S on the other.  As a result the wife believes on the basis of information from Y, that the husband and S behaved in a threatening and abusive way towards Y and Z.

3. The husband blames the wife for the prosecution of himself and S.  However, the husband gave evidence about another occasion when the police were called to investigate an allegation that E had been burnt.  The husband admitted that he urged the police to interview E about this incident, which  had been caused by an asthma inhaler being held against her skin. 

4. He said in evidence in chief:

   “… [E] was adamant it didn’t hurt and I did report it to police.  I had suspicions about who had done it.  The police investigated it and questioned [R] and [E] in front of a friend of their mother’s, concerning the burn.

   When they advised me of that, I was unhappy about that, as I asked them to question [E] alone, and they did that later and concluded that the burn was done by [L].

   Yes, and what happened then?  Did you express to the police a view whether the assault should be prosecuted or not?---Yes, I did.

   What did you say?  What was your attitude to the police about it?---I said, ‘look, I don’t know whether it’s [L] or not, but it’s severe enough that she may need a skin graft.  I don’t want [L] prosecuted, but perhaps a talking to might be in order to temper his behaviour.’

   Was it left on that basis, as far as you know, with the police?---Yes.”

5. During cross-examination however, the following exchange took place:

   “MR WHITTLE: Mr [Andrew], just in relation to that, as it's been called "frosty burn", did you encourage the police to interview the children [R] and [E] about what had occurred?---I urged the police to interview [E], not [R].

   You had a pretty good idea, did you, that this was something that was said to have occurred in the car with [L]?---No, I didn't. [E] refused to tell me anything about the burn, and that's what brought most of my concern on.

   Anyway, did you understand that the police were going to issue an informal caution to [L] over that?---No, I did not.

   Did they tell you that they were going to caution him?---No, they did not.

   That would be consistent, I suppose, though, with what you suggested to the police; namely, that a talking to might be in order?---I asked them if they could have a word to him, yes, if indeed it was [L], who I didn't believe it was.

   Well, did you know by then it was [L], or have a pretty good idea it was? ---I don't know whether I'm allowed to say.

   Well - - -?---I suspected another member of the household had done it.

   Two things I want to draw to your attention - - -

   HER HONOUR: Sorry, when did you suspect that another member of the household had done it? After the police interviewed [E] or before? ---Before, your Honour.

   MR WHITTLE: Who did you think may have done it?---I thought [Mr Delaine] may have done it.

   Certainly by the time that you told the police a talking to might be in order, you must have known that it was [L] they were talking about?---I knew the police – [L] had said he had done it. I still don't know that he had done it.

   What do you mean by that?---I mean, I've read the Families SA files on the care and protection orders issued on the [Delaine] children. I've read the violence that occurred in that household. I've read the accusations by the children. I was not convinced it was [L] that did it.

   So at the time you suggested to the police that a talking to [L] would be appropriate, you suspected that it wasn't [L] who'd done it?---Yes. I told the police that.

   Why didn't you say to the police, "Don't even talk to him; just drop it"?---I couldn't tell them to just drop it. It was in their hands how they proceeded from there. That was my understanding anyway, and I asked them to - if it was possible that they just talk to him rather than take it any further than that.”

   (My underlining)

6. The wife alleges in her affidavit:

   “111.On the 2 February 2005 the husband told [L] to ‘find another home for his dog or else he would shoot it.’  [L] refused to go back to the husband’s house after this incident.”

7. In August 2006 R and E were spending week about with the husband and wife.  On the 7 August 2006 R and E telephoned the mother as was often their custom.  The wife asserts that R and E had been suspicious the husband had been taping their telephone conversations with the wife.  Her affidavit of evidence in chief sets out in detail the information R and E had given her about their suspicions, particularly on that night.  The husband denies ever recording any of the telephone conversations of the children.  He admitted to having an intercom service, but not a tape-recorder turned on to record their conversations.

8. The wife’s evidence about the incident which followed is contained in the following paragraphs of her affidavit of evidence in chief:

   “119.The girls later informed me that they hid the tape recorder from the husband.  The husband’s reaction (I was informed) was so severe when he found out that the girls went outside the house and telephoned the Child Abuse Report Hotline.  The husband apparently called out to the girls whilst [R] was on the telephone to the hotline.  I am informed that [E] then went inside so that she could stall the father to give [R] some more time on the telephone by saying that they were looking for the dogs.  When they were on their way back inside I am informed that the husband asked the girls where his tape recorder was, but the girls said that they did not know.

   120.Apparently the husband was yelling loudly at the girls throughout this ordeal and (in their words) ‘invading their personal space.’  They informed me that was about 2cm from their faces whilst yelling at them.  The husband terrified both girls who were crying and distressed.  I am informed that he interrogated them for approximately an hour and a half, which lead to [E] vomiting and getting a bad headache.

   121.I was then informed that the father grabbed [R] by her arm with both of his hands and attempted to drag her out of the room.  [E] and [R] tried to protect each other and linked arms to prevent the father from dragging them out of their room.  [R] was crying continuously and yelling at her father throughout this incident.

   122.The girls indicated that the father continued to yell at them with his face very close to the girls, demanding that they return the tape recorder to him.  The girls told him that it was because he was recording their telephone conversations that they took the recorder.  The father denied listening to their conversations.

   123.When the yelling subsided, the husband demanded that the girls give them their mobile telephones, which were gifts that had been purchased for them by my husband [Mr Delaine].  The girls refused, but the husband eventually managed to confiscate their mobile telephones and locked them in a box near the toaster, refusing to return them as punishment.  He informed the girls that he would not be returning the phone to them until it was time for them to come back to my care (some six days later).  This upset the girls greatly as it was their only means of contact with anyone.

   124.The girls informed me that the father started questioning the girls (again) as to why they took the tape recorder.  He questioned their loyalty and love for him.  The girls also told me that the father told them that I (their mother) would get rid of them one day.”

9. On the next day the wife went to R and E’s school.  The wife alleges that E said to her “I am not going back … I will kill myself rather than going back to (the husband’s) house”. (Paragraph 128 of the wife’s affidavit).

10. The wife then contacted various agencies, including the police and CAHMS and brought further interim proceedings in the Family Court.

11. The husband denied assaulting the children or yelling at them.  He did admit to speaking to them about their behaviour concerning the tape recorder for about 5 or 10 minutes.  He consistently denied that he was in any way responsible for their dissatisfaction in his care.

12. The shared care arrangement thereafter continued by order of the Court.

13. The wife alleges that she and the children were further upset when at Christmas 2006 the husband refused to let the children see the wife at all because it was his week with them and there were no specific arrangements in the Court orders for Christmas 2006.

14. At an interim hearing on the 22 January 2007, the Court ordered that the shared care arrangement with the children spending week about with the husband and wife continue.  The next day on the 23 January 2007 R and E ran away from the home of the husband.  R and E told the wife that they ran away because they did not want to go back to the H Christian School, did not want to continue shared care and were “sick of the husband yelling at them constantly and talking about Court stuff”.

15. On the 18 March 2007, R and E again left the home of the husband without his knowledge or permission at about 11.00 pm in the evening.  The husband did not inform the wife.  The children were collected by the police and returned to their father’s care later that evening.

16. R and E ran away for a third time on Saturday 6 October 2007 around 2.00 pm in the afternoon.  The wife’s evidence is that during time they were spending with the husband, they telephoned the wife’s sister and her husband who lived some considerable distance from the husband’s home.  The wife’s brother-in-law drove to find the children on a dirt road where “they had been hiding in the bushes”.  (Paragraph 148 of the wife’s affidavit).  The wife’s sister refused to return the twins to the husband.  The wife collected them at the conclusion of the husband’s time at 6.00 pm that evening.

17. Paragraph 154 and 155 of the wife’s affidavit are as follows:

    “154.I say that the girls have since told me that the RSPCA had investigated at [the husband’s] place on the Friday afternoon (before they ran away) in relation to a small calf.  The representative from the RSPCA spoke to the girls and said the calf was too skinny, needed proper food, clean water, a bigger yard and needed his hooves cut and cleaned.  The husband apparently was not home when the representative attended at the property, but I believe that the husband was contacted by telephone.

    155.The girls have also informed me that when the husband returned home from work on Friday night he was in a bad mood and started yelling at them on a number of issues throughout the night.  They (sic) girls tell me that they were yelled at by the husband about the following:

    (a)for telling me things that happen in the husband’s house;

    (b)that the RSPCA were not allowed on his property again without a search warrant and that the husband was going to kill all the animals;

    (c)that I was “nothing but a twit” and that I “dobbed him in to the RSPCA”;

    (d)that he was “sick of the girls making up stories about him, they were morons, nasty little girls, little liars and cause him nothing but trouble”.

    I believe that it was as a result of this verbal abuse on Friday night that the girls decided to run away on Saturday.  I was not aware that the husband had confiscated the girls’ mobile telephones on Friday night.”

18. Following further Court proceedings in October 2007 the wife was ordered to deliver R and E to the husband at the K Police Station at 6.00 pm on the 17 October 2007.

19. The wife arrived at the Police Station with R and E on time, but they refused to get out of the car.

20. The wife’s version of the events on that occasion is as follows:

    “161.Upon arrival I opened the boot of the car with the boot latch next to the driver’s seat and got out of the car to get the girls’ bags from the boot.  I gave the husband the bags and uniforms and told the girls to get out of the car.  The girls sat in the car and said “no”.  I told them to get out and they refused.  I went to open the car door only to find that they had locked it from the inside.  My car keys were still in the car, along with my bag.  [R] had been sitting in the front passenger seat and had obviously locked the door when I got out.

    162.I pleaded with the girls to get out of the car.  I reiterated to them that they only had to be with the husband until Sunday night, to stop mucking around, that this was not a game, not funny but they still refused to get out of the car.  At that point I walked away and the husband stood and did nothing.

    163.I approached the husband and asked him to talk to them.  The girls yelled at the husband and began violently banging the car windows with anger and yelling repeatedly that they would not get out and go with him.  I became angry and yelled at them to get out of the car but they would not unlock the door.  I left the husband with the girls and walked away from the situation to calm down.  Throughout the evening I walked to the toilet, to the park several times and to the street.  Other times I just sat on the front steps of the police station.  I did this to ensure that the husband had a proper chance of speaking to the girls without my presence.

    164.This went on for several hours.  I interceded frequently telling the girls that they could not stay there all night and they had to go with the husband.  I heard the girls say to the husband that they didn’t love him, that they would stay in the car as long as the husband was there and they repeatedly told him they would not go with him.  [S] arrived with [J] and I asked [S] to talk to them, but this did not help.

    165.At approximately 6.45 pm Sergeant […] came to the door of the police station and asked if I needed any help.  I explained to Sergeant […] the nature of the orders that the Court had made that morning and I told him that ‘the girls would have to get out sooner or later, we just had to wait.’  I explained to Sergeant […] that there was no conflict between the husband and I.

    166.I again approached the husband and asked how long he intended to continue this stand off, to which he replied ‘I can out-sit them, all night if I have to.’  The husband tried to entice the girls to get out of the car by telling them he would not take them to see [Ms CE] (Psychologist at [MA Centre]) tomorrow and he also tried to offer them food.  I was out of earshot and only heard parts of the conversation he had with the girls as I was too far away.

    167.At 8.00 pm I could not stand it any longer as [E] had been crying for some time and had started vomiting.  [R] had also been complaining of stomach cramps through the window.  I rang Sergeant […] and told him I wasn’t waiting any more as the girls were becoming overly distressed and that the husband would wait all night but I was not prepared to and that I would simply have to face the Court on Monday.  Sergeant […] told me that was fine and that even if the girls got out of the car, the husband could not physically grab them.  He said I should tell the husband in front of the camera by the door of the station that I was leaving and that would drive past to make sure there was no trouble when I left.

    168.I asked the husband to come to the station door and asked him how long he intended this to continue as I wasn’t prepared to let it go on any longer as it was too emotionally damaging for the girls.  I explained to the husband that it had been over two hours and that they were only 14 years of age.  The husband then said that I (sic) was all my fault and that “I had just given the girls and (sic) out and they would never come now.”  I told the husband that was his opinion but that I was not prepared to wait any longer, given the distress the girls were in.

    169.I went over to the car and asked the girls to get out again.  They refused.  I asked the girls if they would unlock the door if I offered to take them home.  The girls quickly unlocked the door and I got in and drove them home.  [E] had vomited in the car, but fortunately there was a vomit bag in the car from when I picked up my mother from the Royal Adelaide Hospital that afternoon.  [E] was crying and continued to vomit upon our arrival at home and [R] was upset and complaining of stomach cramps.  Neither girls would eat anything and have been very withdrawn since the incident.  I have had to give the girls Panadol and other medicines for their stomachs and Bonjela for their ulcers.  [R] and [E] have both got a mouthful of ulcers and [R] has complained of sore teeth (from grinding at night).

    170.I say that I did all I could to comply with the orders made by this Honourable Court and to comply with the undertaking that I made.  After spending more than two hours at the [K] Police Station watching the girls distressed from the inside of the car, the situation certainly became too stressful for me and I could no longer sit there and see the girls so distressed.”

21. The wife alleged that in or about September 2005 the husband told her that if he found out that she was involved with another man, that he would “take the hand of God in judgment and kill you”.  (Paragraph 97 of the wife’s affidavit filed on the 29 January 2008).

22. When asked about this allegation in cross-examination the following exchange took place:

    “I put to you that you did threaten her with taking the hand of God in judgment and killing her if she was involved with another man?---Yes, you can put that to me.

    And what’s your response?---She’s sitting up at the back row there, and I’ve never touched her.

    Sorry?---She’s sitting in the chair behind you and I have never touched her.  If that’s not enough - - -

    But did you say it to her?---No, I didn’t.”

23. During his cross-examination the husband vehemently denied that he had played any part in the breakdown of his relationship with R and E.  He was asked if he had done anything to contribute to their ill-feelings and he said “No”.

24. The husband’s attitude when giving evidence was bordering on “self-righteous”.  He did not take responsibility for any behaviour which might have played a part in reducing the quality of his relationship with Y, R or E.

25. When cross-examined about Ms SA’s report (which indicated that he had told her that he had “thumped [Z], but that [Z] had hit him first”) the husband said that he had not “thumped” but had pushed [Z] and that he had pushed him again.

26. When cross-examined by the Independent Children’s Lawyer, the husband said that he did not trust the wife’s change in attitude.  He asserted that she was merely paying “lip service” to these views.  The husband did not accept that the wife would genuinely tell R and E to spend time with him.  When asked if the only way was physical force, he said that he believed that this was the only way without a change in attitude by the wife.

27. The husband did however concede that if the wife moved to Adelaide and “acted like a normal mother” then the twins could live with her and spend time with him perhaps for “most of the holidays”. 

28. At the commencement of the trial the wife gave evidence that she had recently separated from Mr Delaine.  The husband does not accept that this separation is genuine.

29. The wife gave evidence about her relationship with Mr Delaine and was extensively cross-examined about it.  The timing of the breakdown of the relationship and the ongoing contact between the wife and Mr Delaine certainly forms a basis for the concern of the husband about the long term prospects of the relationship between the wife and her current husband Mr Delaine. 

1. I am satisfied that there appears to be a good relationship between R, E and Mr Delaine. 

2. The concerns raised by the husband about the suitability of Mr Delaine took the form of inferences to be drawn from the fact that it was asserted that the children of Mr Delaine by a former relationship (a son and a daughter) were under the care of the Minister for Department of Families and Communities, Families SA.  The only evidence of the circumstances surrounding the Delaine children is the hearsay contained in remarks made by other people to Ms SA as set out in her report.  The evidence of those witnesses was not before me.

3. The wife was quite candid in her evidence that if the children are to reside with her and spend alternate weekends and half school holidays, or some portion of the holidays with the husband, she would certainly consider moving to Adelaide where she perceived her job prospects and social interaction would be better than in K. 

The Wife’s Attitude

1. By the end of the trial the wife was proposing that R and E spend alternate weekends and half the school holidays with the husband.  R and E had by then spent two weekends with the husband pursuant to the orders made when the trial was adjourned part-heard. 

2. During her evidence in chief the wife told the Court that she accepted that she needed expert assistance to help her to encourage the girls to renew their relationship with the husband.  She was proposing to have counselling with Ms HT, a Psychologist.  She wanted the husband to share the cost of the counselling with Ms HT for herself and the twins.  The wife sought that there be a gradual introduction of R and E spending time with the husband.  She was opposed to the husband’s orders that sought that R and E be collected by the police.  She described this as the children being “arrested”.

3. When the wife was being cross-examined by Mr Jordan on the 20 May 2008 she was asked about Ms SA’s report.  She was asked:

   “So you don’t accept any responsibility whatsoever for the way these twins feel about [the husband]?--- I have said before there was also fault on both sides.

   Do you accept any responsibility?---Yes, I accept some responsibility.

   But you are not prepared to address it in any meaningful way, are you?---Yes, I have I have already indicated that I am.”

4. During her cross-examination the wife consistently denied deliberately alienating R and E from the husband. 

5. The wife conceded that she had changed the type of orders she was asking the Court to make after she had received advice.

6. The wife denied encouraging the complaints being made to police in relation to the incident in which Y and Z were confronted by the husband and S in the home.  She admitted that she had supported Y when the proceedings were on foot, but denied putting Y up to those proceedings or the District Court proceedings in which Y sought to recover monies due to her.

7. The husband conceded that there was a loan account in the Family Trust which indicated that a substantial sum was owing to Y. Y became aware of this when she received a bill for income tax. 

8. The husband did not accept any responsibility for the fact that it was necessary for Y to start District Court proceedings before he would agree to repay some of the amount he conceded was owing “on the books” to Y.

9. The wife conceded that she encouraged Y to seek advice about Industrial Court proceedings for wrongful dismissal.  The proceedings were commenced but the wife’s evidence was that Y was too distressed to attend on the day of the trial and the proceedings were dismissed.

10. When giving her evidence in cross-examination the wife emphasised that if the Court ordered that the children be taken by the police and placed with the father, they would be “devastated”.  She was concerned that they would run away and threaten suicide.  She believed that they would become depressed and even disassociated.  She categorically denied putting the twins up to running away from the father on any occasion.

11. At times the wife was not a convincing witness.  In particular, she was asked about a questionnaire that had been completed when the husband and wife planned to adopt J.  Her answers in that questionnaire are inconsistent with her evidence about the aggression and domination of the husband during their relationship.

12. During cross-examination by counsel for the Independent Children’s Lawyer the wife conceded that she had only realised the need for her to take steps to overcome the unhealthy view R and E had of their father a few days before the trial commenced.  She conceded that it was unhealthy for the children not to want to have any contact with the husband.  She maintained however that she had not deliberately done anything to alienate the twins from their father, but in hindsight perhaps she should have done some things differently. 

13. The wife gave evidence that there was some times when the husband’s behaviour towards the children was acceptable, but other times his behaviour was totally unacceptable.

Evidence of Psychologist – Ms SA

1. The first report of Ms SA is dated 18 December 2006 and was based upon interviews and observations which took place in September 2006.  After considerable in-depth discussion the recommendations on page 16 of that report were as follows:

   “Recommendations

   1.That both parents, [the husband] and [the wife], share responsibility for the long-term decision making concerning [R] and [E].

   2.That [R] and [E] reside with their mother, [the wife], during 2007.

   3.That [R] and [E] have contact with their father, [the husband], on alternate weekends from Friday after school until the commencement of school on Monday.

   4.That [R] and [E] have block periods of holiday contact with their father as follows:  from Boxing Day 2006 until five days prior to the commencement of the 2007 school year as well as the whole of the first and third 2007 school holiday periods.

   5.That [the husband] attend an anger management program.

   6.That [the wife] attend an anger management program.

   7.That, if the mother is amenable to renewing contact with [J] and [S], Mr [PE] first be consulted on this issue.

   8.That a short review take place at the end of the 2007 school year.”

2. The detailed report was substantially critical of the wife and in particular concluded that:

   “there are indicators that she (the wife) has, unconsciously, put her own emotional needs and wishes ahead of the emotional wellbeing of the children.”  (Page 12 of the first report).

3. In that report Ms SA commented that:

   “The writer believes that the father poses no danger to [R] and [E], either physically or emotionally.  The writer further believes that the real threat to the children’s emotional wellbeing comes from being negatively influenced by others towards their father as well as genuine anxiety on their part (as a result of his yelling) being exaggerated and supported by the mother.  Even if the reports of the twins are accurate, they appear to be isolated incidents rather than part of their daily lives.  In addition, despite their stated alleged fear of the father, their reports also indicate that they feel free enough to openly question his authority, disrespect him in front of others, avoid his attempts at fatherly affection, and refuse his offers to join in activities.  This behaviour is not consistent with the level of fear they claim to feel.”  (Page 13 of first report).

4. The writer (Ms SA) concluded that:

   “While the writer believes that [R] and [E] should reside with the mother and have contact with the father, he must be given sufficient time to rebuild the relationship.” (Page 15 of the first report).

5. Ms SA recommended block times when the children spent time with the husband not under the influence of the wife.

6. Notwithstanding the recommendations in Ms SA’s report, it appears that her verbal recommendation to the Independent Children’s Lawyer at that time was that the shared week about orders should continue.  She expected the trial to take place in a short time.

7. Ms SA prepared a further report dated 10 August 2007 after interviewing R and E in July 2007.  Again, during those interviews R and E were critical of their father and supportive of their relationship with their mother.

8. In that second report (amongst other things) Ms SA said:

   “It is the opinion of the writer that [E] and [R] remain firmly entrenched in their rigid, narrow and stereotyped view of their father.  The writer suspects that this view has become so ingrained that it no longer even requires the influence of the mother – and has only been minimally changed by any positive experiences with the father.  In other words [E] and [R’s] attitude towards their father, although initially highly influenced by their mother (and [Mr Delaine]) is now driven by an internalised system of beliefs which may possibly be very hard to shift.  If this is the case, the writer has real concerns for the future emotional welfare of both girls.”  (Page 11 of the second report).

9. The recommendations of Ms SA’s second report were:

   “Recommendations

   1.That [R] and [E] live with their father, [the husband], on a full-time basis for the remainder of 2007.

   2.That for an initial period of two months, the girls have weekly telephone contact with their mother, [the wife], through the auspices of the school counsellor.

   3.That for the remainder of 2007, the girls spend time with their mother every Saturday from 9.30 am until 6.30 pm.

   4.That the girls, together with their father, [J] and [S] attend family counselling with [Mr PE] for the remainder of this current year."  (Page 13 of the second report).

Oral Evidence of Ms SA

1. During her oral evidence, Ms SA maintained the views expressed in her two reports.  She maintained that the children should spend time with their father on a full-time basis for approximately four or five months, with limited contact with their mother.  Her oral evidence was that they were likely to choose where they wanted to live when they were 16.

2. When the wife’s proposal of encouraging the children to spend time with their father with the assistance of a counsellor such as Ms HT was put to Ms SA, she gave evidence that she did not think “that it would be an intervention that was likely to be successful”. 

3. During her evidence she maintained her view that the wife was unlikely to be able to genuinely convince R and E to spend time with their father in a way that would bring about restoration of a healthy relationship between R, E and the husband.

4. During cross-examination by counsel for the wife, Ms SA conceded that she had not been fully aware of the level of conflict between the husband and wife in relation to property settlement proceedings and conceded that the “degree of animosity between the parties could well have been due to other matters besides decisions regarding residence and contact” (Page 11 of transcript of the 23 May 2008 – Ms SA’s cross-examination).

5. Ms SA conceded in cross-examination that at the time of the preparation of her first report it was her view that the children should live with the wife and spend time with the husband on alternate weekends and half the school holidays.  That recommendation was based upon her view of the best interests of R and E.  During this part of her cross-examination Ms SA conceded that the recommendation then changed on her understanding that there was to be a trial as soon as possible. 

6. At one stage in the cross-examination the following exchange took place:

   “HER HONOUR: As you can tell, the time being 5 to 4, I'm not going to be able to complete this matter and make any order today, and the property matters have been put to one side while we attempted to conclude orders in relation to the children. What if the court were to order the mother to do certain things like delivering both children up to the father for periods of time of a couple of weekends, then all of the approaching July school holidays, on the clear understanding that, if the children didn't attend and stay there, then the children would be told beforehand that consequences might follow and that they would end up living with their father till they're 16? That's a summary of an option I have. Should we see whether that works - in other words, if the mother is genuine in her desire to see the children spend time with the father, she has a very short time to get the help she thinks she needs and, if she can't convince the children to go and stay there, the children will be told - "Well, the consequences will be, whether you like it or not, you live with your father. If you do go, the consequences will be you live with your mother and have alternate weekends and half the school holidays with your father"?---I can see some merit in that. I could see - - -

   Sorry, Mr Whittle. I'll obviously allow everyone else to have some - - -?---I could see some merit in it - is that it seems to me that part of the issue is not only an opportunity to learn that the father is a more pleasant person to spend time with when some of the beliefs and messages they've got in their head – in other words, to have some experiences with him that are good quality and that they enjoy, and at the same time to, yes, not let them get away with being rebellious and disobedient and ignoring boundaries. So I think what you're proposing has some merit for it, in that it's kind of just like telling them, "You eat your vegetables or there's consequences." There are boundaries.”

7. Shortly thereafter the following cross-examination of Ms SA by Mr Whittle took place:

   “If there were to occur, then isn't it your view that if it could be demonstrated that these children could have a relationship with their father without the extreme measures that are suggested, that all other matters aside - I'll start this again. I'm suggesting to you that, for these girls, if they would go to their father and have a relationship with their father, the better orders in the long term would be something along the lines of them spending alternate weekends and half school holidays with their father?---Probably something along those lines. It may be slightly more time than that, but along those lines is something that I think is a possibility. The central concern for me has always been: is there a way for these children to repair their relationship with their father, such  that over a period of time they can enjoy a relationship with their father, because it seems to me that at this point in time there's nothing there that convinces me that if it was just to be let go as it is now, without any kind of intervention, their relationship with their father is lost. That's what I truly believe. I don't have a lot of hope that - well, it's worth a go. I don't have a lot of hope necessarily that this proposal will work, but it is worth a go and, given that it can't be finalised today, within that context it's probably worth - it allows for, I think, what your Honour is suggesting - almost like a trial. Is that right, your Honour - a trial period of a different approach?”

8. Towards the end of her evidence the following took place:

   “HER HONOUR: Ms [SA], you say, looking at page 4 of your report of December 2006, and the second paragraph where you say "not in the children's best interests for the court to give undue weight to some of these allegations". Some of the allegations of the children made in relation to the father's behaviour suggests that they are complaining about him yelling at them and that they're not happy with his behaviour towards them. Why do you say I shouldn't put any undue weight on those allegations?---What I meant was that I believe that some of what they were - all of what they were describing was probably based on spending a time with their father, who may have been frustrated, who may have sometimes had somewhat of a short fuse, who may have yelled at them either for discipline or if he was tired or stressed or irritable, but to suggest that beyond that he was harassing them in a prolonged manner or in a harsh fashion or berating them for long periods of time, or verbally abusing them or scaring them, was a long bow to draw. It seemed to me that the children had taken some qualities of the father that maybe, you know, one could learn to live with, and exaggerated them based on what they picked up in terms of the mother's attitude or perceptions of the father. So it seemed to me that they were not grounds to suggest that these children were being verbally abused by their father

   …

   If they were not afraid of him, does that discount the validity of their wishes and their comments about not liking the way he behaved? They may not be afraid of him. They may just not like the way he behaves?---Yes, they may not like the way he behaves; that's a possibility.

   So they mightn't be frightened of him, and they seem to be able to stand up to him, as you said?---Yes.

   So they're not frightened of him?---No, I don't believe they're frightened of him.

   They just don't want to have anything to do with him, and they're 14, going on 15?---Yes, that's true. I think what we've got to look at is whether there's any risk to their personality development if they're allowed to just walk away from their father and lose the relationship with him completely, based on perceptions that they've developed of him that I think have definitely been influenced by the mother. It may be that he's got some irritating behaviours, but we all do, and that's no grounds necessarily for not spending any time with those people at have some irritating behaviours, whereas at this point, if they don't spend any time with their father and learn about the completeness of him and that they can enjoy spending time with him, I believe that they've lost that relationship and that it's highly unlikely that it will be picked up again because it is in the context of living with someone who's got a very negative picture, very negative views about their father. So they will have lost that relationship and lost the opportunity to have a relationship with their father, and learning that they can just walk away from relationships rather than working their way through relationships.”

9. Ms SA’s reports and oral evidence emphasise the importance of taking steps to restore a healthy relationship between R, E and the husband.

Assessment of the Evidence

1. The wife provided the Court with a detailed affidavit of evidence in chief in relation to children’s issues.  There were full particulars of each incident which formed the basis of the wife’s concerns.  She was cross-examined at length.

2. In particular, the wife was challenged about her genuine wish to encourage a relationship between R, E and the husband.

3. The wife recognised with hindsight that she may have been responsible for the unhealthy nature of the relationship which then existed between the husband, R and E.

4. At times some of her evidence was inconsistent, in particular her cross-examination about the glowing reports of her relationship with the husband which was contained in the adoption application for J, which did not agree with her evidence about the past relationship between her and the husband.

5. Nonetheless, the evidence of the wife concerning the reports that R and E had given to her about the husband’s behaviour was believable and consistent with remarks made by R and E to others, including Ms SA.

6. The husband in his evidence refused to acknowledge any responsibility for any difficulties in his relationship with R and E.  His attitude towards the events involving Y, Z and S at the farm in January 2005, was to entirely blame others in particular, to blame the wife (who was not present) for the consequences of those events. Similarly, he blamed the wife for litigation based upon arrangements he made in bookkeeping of the family business which made Y entitled to a large sum of money. 

7. Weighing up the evidence carefully I am not satisfied that the negative attitudes of R and E towards the husband are due substantially or primarily to the influence of the wife.  On the balance of probabilities it is more likely that the attitude of R and E towards the husband is also due to the husband’s behaviour towards them and his behaviour towards other members of the family.

1. His estimate for his legal fees to date in relation to Y’s District Court proceedings is $16,500.  The wife’s legal fees in relation to the District Court proceedings total $5,700. 

2. As previously indicated the District Court proceedings had not been completed as enforcement proceedings had been undertaken at the time of the property settlement trial resumed in September this year.

3. Both parties have had legal fees associated with the proceedings in the District Court commenced by Y.  The claim made by Y was based upon distributions allegedly made to Y by way of income.  A compromise was reached reducing the amount payable to Y.  The wife was joined by the husband but did not oppose the order sought by Y.  The proposal by the husband about costs would result in the wife contributing to the husband’s costs of the proceedings brought by Y.  Therefore it is not appropriate for the parties to share these legal fees.

(e)       Capital Gains Tax

1. Both parties will have Capital Gains Tax to pay on the sale of G property and the K shop.  The wife’s counsel provided figures (which were not agreed).  These suggested that the wife’s Capital Gains Tax on the sale of K shop would be in the region of $13,000 and the husband’s approximately $7,000.

2. In relation to G property, the wife’s Capital Gains Tax was estimated at $10,700 and the husband’s Capital Gains Tax estimated at $5,400. 

3. The accuracy of these estimates depend upon final figures in relation to the net profit made and other taxation implications. 

4. The Court does not have the benefit of the figures which were to be provided by the parties.  The current estimates will be brought into account in the general sense that the wife will probably pay more than the husband by way of Capital Gains Tax on the sale of these properties.

(f)       Superannuation

1. The husband seeks to bring into account in the overall calculations of assets the superannuation interests of both of the parties.  This is one alternative.  The wife seeks to exercise the other option to consider superannuation separately.  The figures are agreed.  The current interest of the husband in the C Superannuation Fund at the 30 June 2008 is $58,608 and that of the wife in that fund is $11,482.

2. The wife also has an interest in a HESTA Superannuation Fund to which she has been contributing since prior to the separation.  The husband concedes that the wife has made a substantial contribution to this superannuation fund since separation.  It was approximately $10,000 or $13,000 at separation and is now $98, 932.  The husband has taken this into account in assessing the contributions of the parties and seeks to have it otherwise included in the general pool of assets.

3. The evidence of the husband indicates that he does not accept the current Child Support Assessment requiring him to pay Child Support for R and E because the wife has been in the habit of using salary sacrifice to reduce her income.  The salary sacrifice has resulted in the substantial increase in her superannuation. 

4. The husband may continue with his proposed application to vary the Child Support Assessments using the salary sacrifice by the wife to reduce the Child Support which has otherwise been assessed. 

5. In view of the interaction between the increase in the wife’s superannuation and the likely action by the husband to seek a reduction in the Child Support Assessments, it is appropriate to consider the wife’s superannuation in the HESTA Super Fund separately. It is therefore appropriate to consider superannuation of the parties independently from the assessment of other assets and liabilities.

6. In the submissions for final settlement of property, the husband’s counsel included a figure at item 13 “[C] Superannuation Fund payments to ATO and [Mr …] (check 2008 financials) - $8,889”.  The agreed values of each of the parties’ interest in the C Superannuation Fund as at the 30 June 2008 are the figures which are included for the purposes of calculations.

Summary of Assets and Liabilities

Assets  

O property (H&W) (agreed)  $360,000.00

W farm property (H&W) (agreed)  $820,000.00

Net proceeds of sale of G property approx (H&W)  $85,000.00
 (after payment of amounts due for mortgage,

Y’ District Court judgment, Tax, Brentnalls fees, etc.)

K2 property (H&W) (agreed)  $285,000.00

K shop (H&W) (contract price)  $250,000.00

T Company (H) (Mr BA’s valuation)  ($9,753.00)

Proceeds of sale of 4,000 Telstra shares (H)  $15,068.00

Proceeds of sale of Telstra shares (H&W)  $50,000.00

129 AMP shares (W)  $903.00

146 Westfarmers shares (H)  $5,840.00

Funds received by husband from Westfarmers takeover  $2,044.00

1998 Toyota Landcruiser (H)  $19,500.00

1996 VS Holden Commodore (H)  $3,950.00

Proceeds of sale of 1996 Ford Fairmont (W)  $1,000.00

Proceeds of sale of horse float (W)  $3,000.00

Furniture, household effects, misc. plant & equipment, tools,

Mini bikes, trailers (2), personal effects (H)  exclude

Furniture, household effects, misc. plant & equipment, tools,

Saddles, bridles, livestock, personal effects (W)  exclude

Savings at separation (H)  $20,353.00

Savings at separation (W)  $5,000.00

D share interest (H)  $9,190.00

Conclusion on other assets

Husband’s 50 per cent lease holding interest in F site  $5,500.00

M Trust (H&W)  Nil

Total:  $1,931,595.00

Liabilities  

Mortgage O property (Adelaide Bank)  $30,021.00

Mortgage K2 property (BSA) business Maximiser a/c  $58,665.00

Mortgage K shop (BSA)  $50,895.00

Costs of sale K shop (approximately)  $10,100.00

Total:  $149,681.00

Net Assets (not including superannuation and probable

Capital Gains Tax)  $1,781,914.00

1. The superannuation of the parties as at 30 June 2008 was agreed as follows:

   C Superannuation Fund at 30 June 2008 (H)  $58,608.00

   C Superannuation Fund at 30 June 2008 (W)  $11,482.00

   Wife’s HESTA Superannuation 30 June 2008   $98,931.00

   Total Net Superannuation  $169,021.00

Contributions

1. The husband had contributed to his superannuation for approximately eight years prior to the marriage.  The husband asserted that during the marriage they had the benefit of gifts totalling $58,000 from his father and an interest free loan of $40,000 from the husband’s father.  The wife denies that there were any gifts.  She says that all loans were repaid.

2. The husband says in his affidavit filed on the 4 February 2008:

   “That my father gave me $58,000 which I used to purchase stock.  He did not require repayment as he had previously given my sisters a similar amount.”

3. This was in relation to the set up of the business M Company and the foundation of the trust around 1990.

4. The husband did not call his father to give evidence, although described him as being aged 87 and in excellent health.

5. In the absence of any evidence from the husband’s father I am unable to find on the balance of probabilities that the husband’s father made a gift to the parties of $58,000 as alleged by the husband.  I accept that the husband’s father provided interest free loans which were subsequently repaid.

6. The wife asserts that her savings contributed to the deposit of the purchase of the first matrimonial home in Adelaide. She was not challenged on this evidence.

7. The husband has made significant contribution from his earnings whilst in employment in the early part of the marriage and subsequently from his participation in the businesses which were established.  He describes being in “self-employment” from 1992 until the date of separation.

8. I accept that the husband made the major financial contribution to the operation of the businesses M Company and T Company and that his earnings from these endeavours were contributed to the joint finances and investments of the parties prior to the separation.

9. The wife worked throughout the marriage as a Registered Nurse and contributed her earnings to the family, save for brief periods when the children were young.  The wife has still maintained part-time employment and shiftwork to assist the family whilst maintaining her role of household duties and caring for the children.

10. The wife was also employed in the M Company and T Company business for approximately two days a week.

11. Until separation the businesses set up and run by the parties were profitable and successful enabling the parties to acquire other assets (being real estate, shares and the farm).

12. Both parties claim to have made a significant contribution to the care, welfare and development of the children and as homemakers.  I accept the evidence of the wife that she was the primary care giver for the children throughout the marriage, attending to most of the duties relating to their care and carrying out the substantial part of the role of homemaker as well as attending to her employment obligations, both as a nurse and in the family business.

13. The evidence of the husband did not establish that he made a substantial contribution towards the care of the children or homemaker duties, rather it established on his own evidence that he made “some” contribution.

Post Separation

1. Since separation the husband has primarily resided in the former matrimonial home, whilst the wife has primarily resided in the W Farm.  The husband has been paying mortgage payments in relation to the former matrimonial home whilst the wife has had the benefit of accommodation at the farm for herself (and Mr Delaine) without the need to make mortgage payments.

2. Both parties claim to have maintained the properties in which they reside. 

3. Since the separation the husband has met payments in relation to mortgage and outgoings for the investment properties at G and K shop.  The husband claims to have maintained and preserved the business entities.  The wife asserts that she was denied participation and involvement in the business after separation and that the husband took steps without her consent to remove her involvement as trustee.

4. Until separation the business was operating at a profit and apparently successful.  However, at the time of the trial the assessment was such that the business was not considered viable enough to be assessed on an earnings basis.  The wife asserts that this was due to the husband’s failure to run the businesses at a profit except for 2007.

5. Since separation both parties have played a significant role providing for the children.  Y has primarily resided with the wife who has provided for her financially until recently.

6. S has primarily resided with the husband who has provided for him financially. 

7. L has primarily resided with the wife.  She has been responsible for him financially.

8. Since January 2005 R and E have been in the care of the wife who has provided financially for them since that time.

9. The husband has made some contribution towards school fees and other costs for the children.  However, the wife has not received any significant payment of Child Support from the husband for Y, R and E for a substantial period of time. 

10. I take into account that for a considerable part of that time the husband has also had the care and financial responsibility of S and J and was at one time sharing the care of R and E.

The significant factors in relation to contributions (financial and non-financial)

1. These factors include both parties’ financial contributions from their earnings, the establishment and maintenance of the business by the husband (which business was until separation a profitable enterprise) and contribution of the husband in the acquisition maintenance and preservation of the matrimonial assets;  the significant contribution by the wife to the care, welfare and development of the children, before and after separation, and her significant contribution as homemaker prior to the separation.

2. Weighing carefully the various factors I assess the contribution of the parties to be 52.5 per cent to the wife and 47.5 per cent to the husband.

Section 75(2) Factors

1. The orders proposed in relation to the children provide for the wife to have the full time care of L, R and E.  They will spend alternate weekends and half the school holidays with the husband.  L will be 18 next May.  R and E are now 15.

2. Y now 21, was about to get married in October this year and is no longer residing with the wife. 

3. S is now 19.  The husband said that S’s future plans were not certain.  The husband has the ongoing responsibility for the care of J (whom he plans to adopt).  J is now 11 years of age.

4. The wife is aged 48 and in satisfactory health.

5. The husband is aged 53 and continues to own and operate the businesses of M Company and T Company.  I accept the evidence of Dr MS which indicates the husband should avoid stress and reduce his work to part-time.  The husband has maintained in his case outline that notwithstanding his known medical condition, he had a capacity to earn a reasonable income “for the time being”.  Bearing in mind the husband’s age, health and business experience, he is capable of earning a reasonable income, but his capacity to work long hours or overtime is reduced by his need to take care of his health.

6. The wife has an ongoing capacity to work as a nurse.  At the time of the trial she was earning $768 per week (for 32 hours per week).  The wife has qualifications as a Registered Nurse, which, with some retraining, would enable her to work outside the K area if necessary.

7. Taking into account all of the factors, I am not satisfied that there is any substantial difference in the future earning capacity of the husband and wife, save and except, the wife has the benefit of younger age and better health.

8. If the wife retains the W Farm she will also have the benefit of income from the farm from share farming which has been approximately $30,000 per annum.

9. R and E are to remain primarily in the care of the wife.  The husband has not regularly paid Child Support as assessed.  He has made some contribution to the children’s school fees and has contributed to their expenses whilst they have been residing with him.  The wife will have a greater ongoing responsibility for the care (financially and otherwise) of L, R and E than the husband.

10. The husband will have ongoing financial and other responsibilities for the care of J, whom he plans to adopt.

11. Both parties have incurred significant liability for legal fees.  The wife has borrowed money from Mr Delaine, Y and her brother;  (Mr Delaine - $124,115.41;  the wife’s brother - $40,000;  Y - $30,000 – total $195,115.41).  She will also have further amounts to pay to her lawyers at the conclusion of the trial.

12. The husband estimated that his legal fees would be approximately $180,000.  He also has unpaid tax debts. 

13. Both parties will have Capital Gains Tax to pay on the sale of assets.

14. One of the significant issues at the trial is the present status of the relationship between the wife and Mr Delaine. The husband’s counsel submitted that an adjustment of 10 per cent in his favour for section 75(2) factors would be appropriate “allowing predominantly for the [Delaine] factor”. 

15. I accept the submissions on behalf of the husband that the relationship between the wife and Mr Delaine appeared to come to an end shortly after my remarks in open court concerning evidence about Mr Delaine’s financial circumstances whilst he and the wife were living together as husband and wife.

16. The evidence of the wife under cross-examination also supports findings that:

    (a)the wife permitted Mr Delaine to reside in the farm while she and the children moved to her parents’ home until he left to go to New South Wales.  The wife asserted that this was because Mr delaine had nowhere else to go and also that she was too frightened to remain in the farm on her own because of the concern she had about the husband’s behaviour;

    (b)Mr Delaine provided the wife with the use of a motor vehicle following upon their separation;

    (c)the wife continued to assist in the care of Mr Delaine’s son;

    (d)the wife and Mr Delaine spent time together at the wife’s parents’ home, socialising together at other times in K and New South Wales (when the wife travelled to New South Wales taking Mr Delaine’s son there to see his father) and in the same accommodation in New South Wales;

    (e)the wife spent time at Y’s flat in Adelaide with Mr Delaine on a weekend. 

    (f)There has been ongoing communication between the wife and Mr Delaine;

    (g)Mr Delaine is contributing substantial monies towards Y’s wedding;

    (h)the wife has assisted in the completion of a house at W owned by Mr Delaine.

17. Other allegations were made concerning the ongoing relationship between the wife and Mr Delaine.

18. In cross-examination the wife maintained that there is now no prospect of a reconciliation taking place.

19. The evidence discloses that Mr Delaine has a substantial income in the region of $277,000 per annum in 2007.  Any existing ongoing relationship between the wife and Mr Delaine would provide her with financial assistance would be a significant factor to take into account.

20. The wife admitted an ongoing friendly relationship with Mr Delaine.  However I am not satisfied that the current relationship between the wife and Mr Delaine is one which establishes that there is a likelihood, on the balance of probabilities, that Mr Delaine will provide the wife with any significant financial assistance in the future. 

21. Their relationship may remain a “friendly” relationship, but it has not been established that the relationship is now, or in the future likely to become, one which will provide any significant financial assistance which would require that factor to be taken into account under section 75(2).

Expected Inheritance

1. The wife asserts that she has no expected inheritance, but seeks to rely upon the possibility of the husband inheriting substantial assets from his father.

2. The husband’s evidence that his father was 87 and in excellent health does not establish that this inheritance is of the type that should be brought into account under section 75(2).

Summary

1. The most significant factor is the ongoing responsibility (both financial and otherwise) of the wife for the care of R and E.  Taking into account also the age and health of the parties, their relative earning capacity and significant legal fees outstanding, a further adjustment of 2.5 per cent in favour of the wife is appropriate.

Superannuation

1. For the reasons set out above it is appropriate to consider the superannuation interest of the parties separately from the other assets and liabilities.

2. The husband concedes that the substantial growth in the wife’s HESTA Superannuation took place since the separation of the parties.  The wife concedes that a significant portion of the increase in her superannuation was due to salary sacrifice.

3. The husband proposes to contest the Child Support Assessments, based on the impact the salary sacrifice had on the wife’s taxable income used to assess his Child Support.

4. Taking into account the substantial increase in the wife’s HESTA Superannuation Fund following the separation of the parties it is appropriate for her to retain her HESTA Superannuation Fund and that share of the C Superannuation Fund allocated to her.  This represents 65.32 per cent of the total superannuation of the parties.

Overall Just and Equitable

1. Section 79(2) requires that the Court not make an order unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order.  The adjustments discussed above result in the wife receiving 55 per cent of the net assets and the husband 45 per cent.  (Not including superannuation).

2. Fifty-five per cent of the net assets other than superannuation is calculated as follows:

   55% of $1,781,914 equals $980,053.

3. Apart from her superannuation interests the wife also seeks to retain the following:

   (a)      The W farm  $820,000.00

   (b)      Ford Fairmont motor vehicle proceeds  $1,000.00

   (c)      Sale of Telstra Shares  $25,000.00

   (d)      AMP Shares  $903.00

   (e)      Horse Float  $3,000.00

   (f)      Savings at Separation  $5,000.00

   Total:  $854,903.00

1. $980,053 less $854,903 leaves $125,150 payable to the wife.

2. The wife has indicated that she owes substantial sums to Mr Delaine, her brother and Y.  All of the funds received by the wife will be used to discharge her debts, but she will have a substantial asset in the W Farm. 

1. The payment due to the wife can be met from the proceeds of sale of the G property and K shop and K2 property, leaving the husband with the other significant assets;  the former matrimonial home, the businesses and other assets in his possession or control. 

2. The husband retains:

   (a)      O property  $360,000.00

   (b)      Net proceeds G property   $85,000.00

   (c)      K2 property  $285,000.00

   (d)      K shop  $250,000.00

   (e)      T Company  ($9,753.00)

   (f)      Proceeds Telstra Shares (H)  $15,068.00

   (g)      Proceeds Telstra Shares Joint  $25,000.00

   (h)      146 Westfarmers Shares  $5,840.00

   (i)       Funds Westfarmers Takeover  $2,044.00

   (j)       1998 Toyota Landcruiser Motor Vehicle  $19,500.00

   (k)      1996 VS Holden Commodore Motor Vehicle  $3,950.00

   (l)       Savings at Separation  $20,353.00

   (m)     D Share Interest  $9,190.00

   (n)      F Site  $5,500.00

   (o)      M Trust  $Nil

   Total:  $1,076,692.00

   Less Liabilities:  $149,681.00

   Net:  $927,011.00

   Less amount payable from proceeds of sale to wife     $125,150.00

   Net amount remaining to husband  $801,861.00

3. Both parties will have the ongoing liability to pay their share of the Capital Gains Tax assessed on the sale of assets.

4. The calculations do not include any Capital Gains Tax on the W Farm as it is likely the wife will retain this asset.

5. Considering all of the factors by way of contributions, financial and otherwise, the financial circumstances of the parties and other section 75(2) factors, I am satisfied that overall the property settlement as calculated is just and equitable in all the circumstances.

6. Property settlement orders made.

I certify that the preceding three hundred and fifty seven (357) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  5 December 2008