DELANEY & DELANEY (No.2)
[2017] FCCA 1187
•2 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DELANEY & DELANEY (No.2) | [2017] FCCA 1187 |
| Catchwords: FAMILY LAW – Property – how assets already dissipated ought to be considered. |
| Legislation: Family Law Act 1975, ss.68Q, 106A, 90MT(1)(a), 75(2), 4AB(1), 4AB(2), 64B(2), 60B(1), 60B(2), 61DA, 61DAA(1), 60CA, 60CC, 79(2), 177, 75(2)(o), 79(4)(e) Family Law (Superannuation) Regulations 2001, Part VI, reg.13 |
| Cases cited: Mazorski v Albright (2008) 37 FLR 518 Stanford v Stanford (2012) FLC 93-495 Bevan & Bevan [2013]FamCAFC 116 |
| Applicant: | MR DELANEY |
| Respondent: | MS DELANEY |
| File Number: | DGC 2631 of 2014 |
| Judgment of: | Judge Small |
| Hearing dates: | 19 October 2016; 20 October 2016; 21 October 2016; 24 October 2016; |
| Date of Last Submission: | 26 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 2 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Salamanca |
| Solicitors for the Applicant: | Taussig Cherrie Fildes |
| Counsel for the Respondent: | Mr Stanley |
| Solicitors for the Respondent: | Trapski Family Law |
ORDERS
PARENTING ORDERS
All previous parenting Orders in relation to the children:
W born (omitted) 2001;
X born (omitted) 2002;
Y born (omitted) 2004; and
Z born (omitted) 2006 (“the children”)
are hereby discharged.
The parties shall have equal shared parental responsibility for the children.
The children shall live with the parties in an equal shared care arrangement such that they live week about with each parent during school terms and school term holidays, with changeover to be at a time and on a day agreed by the parties and in default of agreement at 6:00p.m. on Fridays, commencing 2 June 2017.
The party in whose care the children have been for the preceding week shall deliver them to the other parent at the other parent’s residence for changeover.
Until the end of 2018, the parents shall ensure that the children or any of them are permitted to spend one night in each week with the non-resident parent, but only upon the specific request of the child or children made on each occasion.
Each parent shall spend half of the long summer holidays with the children at times to be agreed and failing agreement:
(a)the husband for the first half in 2017/2018 and in each alternate year thereafter, and for the second half in 2018/2019 and in each alternate year thereafter; and
(b)the wife for the second half in 2017/2018 and in each alternate year thereafter, and for the first half in 2018/2019 and in each alternate year thereafter.
The week about regime shall suspend at 6:00p.m. on the Friday at the conclusion of the last week of the school year and recommence at 6:00p.m. on the Friday before the commencement of the next school year as though the long summer holidays had not intervened.
Notwithstanding the provisions of paragraphs (3) and (5) hereof, the husband shall spend time and communicate with the children:
(a)from 6:00p.m. on Christmas Eve to 12:00 noon on Christmas Day in 2017 and in each alternate year thereafter and from 12:00 noon on Christmas Day to 6:00p.m. on Boxing Day in 2018 and in each alternate year thereafter;
(b)from the conclusion of school or 6:00p.m. (if not a school day) on Maundy Thursday to 6:00p.m. on Easter Saturday in 2018 and in each alternate year thereafter, and from 6:00p.m. on Easter Saturday to 6:00p.m. on Easter Monday in 2019 and in each alternate year thereafter;
(c)from the conclusion of school until 8:00p.m. on the husband’s birthday should it fall on a school day, and for four hours by agreement and failing agreement from 10:00a.m. to 2:00p.m. in odd-numbered years and from 2:00p.m. to 6:00p.m. in even-numbered years should it fall on a non-school day;
(d)on each of the children’s birthdays from after school to 8:00p.m. in even-numbered years and from after school to 8:00p.m. on the day before the birthday in odd-numbered years should the birthday fall on a school day, and for four hours by agreement and failing agreement from 10:00a.m. to 2:00p.m. in even-numbered years and from 2:00p.m. to 6:00p.m. in odd-numbered years should the birthday fall on a non-school day;
(e)from 6:00p.m. on the day before Fathers’ Day to 6:00p.m. on Fathers’ Day each year;
(f)by telephone, Skype, Facetime or other electronic means at any reasonable time at the children’s instigation; and
(g)at such other times as the parties might agree in writing.
Notwithstanding the provisions of paragraphs (3) and (5) hereof, the wife shall spend time and communicate with the children:
(a)from 12:00 noon on Christmas Day to 6:00p.m. on Boxing Day in in 2017 and in each alternate year thereafter, and from 6:00p.m. on Christmas Eve to 12:00 noon on Christmas Day in 2018 and in each alternate year thereafter;
(b)from the conclusion of school or 6:00p.m. (if not a school day) on Maundy Thursday to 6:00p.m. on Easter Saturday in 2019 and in each alternate year thereafter, and from 6:00p.m. on Easter Saturday to 6:00p.m. on Easter Monday in 2018 and in each alternate year thereafter;
(c)from the conclusion of school until 8:00p.m. on the wife’s birthday should it fall on a school day, and for four hours by agreement and failing agreement from 10:00a.m. to 2:00p.m. in odd-numbered years and from 2:00p.m. to 6:00p.m. in even-numbered years should it fall on a non-school day;
(d)on each of the children’s birthdays from after school to 8:00p.m. in odd-numbered years and from after school to 8:00p.m. on the day before the birthday in even-numbered years should the birthday fall on a school day, and for four hours by agreement and failing agreement from 10:00.m. to 2:00p.m. in odd-numbered years and from 2:00p.m. to 6:00p.m. in even-numbered years should the birthday fall on a non-school day;
(e)from 6:00p.m. on the day before Mothers’ Day to 6:00p.m. on Mothers’ Day each year;
(f)by telephone, Skype, Facetime or other electronic means at any reasonable time at the children’s instigation; and
(g)at such other times as the parties might agree in writing.
Each party shall notify the other of any change of address (including email address) and/or contact telephone number within 24 hours of such change.
The parties be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family in the children’s presence or hearing, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the children’s presence or hearing, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)allowing the children or any of them to access, read or have read to them any portion of the Court’s Reasons for Judgment in this matter; and
(d)using any form of corporal punishment in disciplining the children or any of them.
The husband is hereby restrained by injunction from taking food to the wife’s household, or delivering food to the children while they are in her care, without the express prior consent of the wife given in writing.
Each party shall notify the other as soon as practicable in the event of the children or any of them suffering any serious illness or injury while they are in their respective care and each shall authorise any medical or allied practitioner who treats the children or any of them to communicate and consult with the other parent.
Each party shall advise the other of any medication prescribed for the children or any of them, including the dosage prescribed, and ensure that such medication travels with the children.
The wife shall authorise any school or the organisers of any extracurricular activities in which the children are enrolled, to provide to the husband at his expense, if any, all information, notices, photographs, reports and like materials and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the children or any of them.
The parties shall be at liberty to provide a copy of these orders (but not the Court’s Reasons for Judgment) to the children’s school or schools.
Both parties, their respective partners if any, and the children’s grandparents shall be at liberty to attend any school functions, extra-curricular activities or events to which parents and/or grandparents are usually invited.
Pursuant to s.68Q of the Family Law Act 1975 (Cth) (“the Act”), the court declares that, to the extent that any of these Orders conflicts with an extant Family Violence Intervention Order, then the Family Violence Intervention Order is invalid but only to the extent of the conflict.
PROPERTY ORDERS
Unless he has already done so, the husband shall, within 3 business days of the date of these orders, deposit the $57,000.00 bank cheque he holds from the (omitted) Bank and the sum of $37,000.00 (“the deposits”) into the parties’ (omitted) Bank mortgage account.
In the event that the husband does not fully comply with paragraph 19 hereof, so much of the deposits as is outstanding shall be taken from his share of monies to be distributed between the parties at final settlement.
The parties shall forthwith do all such acts and things and sign all such documents as may be necessary to place on the market for sale:
(a)the property known as and situate at Property B (“the Property B property”);
(b)the property known as and situate at Property C (“the Property C property”); and
(c)the property known as and situate at Property F ( “the Property F property”) (collectively “the sales”).
Within 14 days the parties shall agree upon a real estate agent to conduct the sales and in default of agreement they shall ask the president of the Real Estate Institute of Victoria to nominate a real estate agent to conduct the sales.
Upon completion of the sales of each of the first and second properties to be sold, the proceeds of the sales shall be disbursed:
(a)first to pay all costs and commissions of the sales of the first and second properties to be sold;
(b)second to discharge any encumbrance over each of the first and second properties to be sold; and
(c)third the remainder to be placed in an interest-bearing account in the names of both parties in the trust account of the wife’s solicitors pending the sale of the third property to be sold.
Upon completion of the sale of the third property to be sold, the net proceeds of all three sales shall be disbursed:
(a)first to pay all costs and commissions of the sale of the third property to be sold;
(b)second to discharge any encumbrance over the third property to be sold;
(c)third to pay the wife’s HELP debt in full; and
(d)the remainder to be divided so that overall:
(i)the wife receives 76% of the overall property minus, if such sum has not already been paid, half the cost of the family reports provided by Mr T, with the husband to provide evidentiary receipts for same within 7 days of the date of these orders; and
(ii)the husband receives 24% of the overall property plus, if such sum has not already been received, half the cost of the family reports provided by Mr T to the husband.
Pending the sale of the Property B property, the wife shall have sole right of occupation of the Property B property and shall pay all costs and outgoings of the Property B property, including mortgage payments, rates, utilities, taxes and other outgoings of whatsoever kind when and as they fall due.
Pending the sale of the Property C and Property F properties, the husband shall have sole right of occupation of the Property C and Property F properties and shall pay all costs and outgoings of the Property C and Property F properties, including mortgage payments, rates, utilities, taxes and other outgoings of whatsoever kind when and as they fall due.
The husband shall forthwith do all such acts and things and sign all such documents as may be necessary to transfer to the wife at the expense of the wife all his right title and interest in the Toyota (omitted) motor vehicle registration number (omitted).
The wife shall retain for her own benefit and use altogether:
(a)her (omitted) shares;
(b)her (omitted) shares; and
(c)the (omitted) Caravan.
The husband shall retain for his own benefit and use altogether:
(a)the Toyota (omitted) motor vehicle registration number (omitted);
(b)any monies received by way of inheritance from his late father’s estate;
(c)the boat; and
(d)the business known as (omitted business).
Should either party fail to comply with paragraph 21 hereof then pursuant to s.106A of the Act a Registrar of the Federal Circuit Court of Australia at Melbourne shall be appointed to sign any and all such documents on his or her behalf as may be necessary to give effect to these orders, and the Registrar shall be satisfied as to his or her authority under this order upon the complying party or his/her legal representative filing an Affidavit setting out the defaulting party’s failure to comply.
In accordance with s.90MT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the superannuation interest of the wife Ms Delaney (member no. (omitted)) in the (omitted) superannuation fund (“the (omitted) fund”), the husband Mr Delaney will be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using the base amount of $49,735.00 (forty nine thousand seven hundred and thirty five dollars) and there will be a corresponding reduction in the entitlement of the wife.
The trustee of the (omitted) Super fund must comply with the obligations imposed upon trustees of eligible superannuation plans under the Act and the Family Law (Superannuation) Regulations 2001.
The wife is hereby restrained by herself her servants and agents from making any binding death benefit nomination to the trustee of the (omitted) Super fund in favour of any person who is an eligible beneficiary within the meaning of reg. 13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the husband of the splitting Order made in paragraph 31 hereof.
Paragraphs 31 and 32 of these Orders bind the trustee of the (omitted) Super fund when these paragraphs take effect from the operative time, being the fourth business day after the date these Orders are served upon the trustee.
The wife and the husband shall do all such things and execute all such documents as are necessary to facilitate the rollover by the trustee of the (omitted) Super fund of the wife’s entitlements pursuant to paragraph 31 of these Orders to another regulated superannuation fund, an approved deposit fund, or a retirement savings account or other such applicable fund or account at the sole nomination of the husband as soon as that is practicably possible after the operative time.
Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b)monies standing to the credit of the parties in any joint bank account shall be divided between the parties in the proportion of 76 per cent to the wife and 24 per cent to the husband;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e)each party forgoes any claim they may have to any inheritances or superannuation entitlements to which the other party is entitled to either presently or in the future; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Delaney & Delaney (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 2631 of 2014
| MR DELANEY |
Applicant
And
| MS DELANEY |
Respondent
REASONS FOR JUDGMENT
Introduction
These parenting and property proceedings arise from the breakdown of the marriage between Mr Delaney (“the husband” or “Mr Delaney”) and Ms Delaney (“the wife” or “Ms Delaney”).
The parties have four children: W born (omitted) 2001 (“W”); X born (omitted) 2002 (“X”); Y born (omitted) 2004 (“Y”); and Z born (omitted) 2006 (“Z”) (collectively referred to as “the children”).
Both parents want the children to live with them.
The specific issues to be decided in this case are as follows:
Parenting
A.Has the husband committed acts of family violence against the wife?
B.Has the wife neglected the care of the children?
C.Should the children live primarily with the husband or the wife, or should their care be equally shared?
D.If the children are to live primarily with one parent, how much time should they spend with the other?
Property
E.Is it just and equitable in all the circumstances to adjust the current property interests of the parties?
F.If it is just and equitable to do so, what are the assets and liabilities to be divided between the parties?
(i)In determining the pool of assets and liabilities to be distributed, how should the Court deal with property that has already been dissipated?
G.What have been the contributions of the parties to their assets and liabilities?
H.Should the parties’ contribution-based entitlements be adjusted on the basis of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
On the basis of the above matters, what orders should be made to effect a just and equitable settlement between the parties?
Background
Mr Delaney was born on (omitted) 1960 and is currently aged 57. He is employed at (employer omitted) as a (occupation omitted) as well as being self-employed at (omitted business), a business of which he is the sole proprietor and which seeks to (business omitted).
Ms Delaney was born on (omitted) 1969 and is now aged 48. She qualified as a (occupation omitted) in December 2015 and is now employed in that capacity at (employer omitted) on a part time basis.
The parties commenced living together in 1993 or 1994 and were married on (omitted) 1995. As already stated, they have four children, currently aged 16, 14, 12 and 10.
They separated under the same roof on 27 April 2014 and physically separated 14 July 2014 when the husband moved out of the family home to a shared house before eventually obtaining rented premises in (omitted), where he now lives.
On (omitted) 2015 the husband’s father died. In April 2016, Mr Delaney received an inheritance in the sum of $313,000.00 from his late father’s estate.
The parties and the children spent time together at Christmas 2015 as a family.
In September 2016 the parties and the children went on a short farm stay holiday together.
The wife and children continue to live at the former family home in Property B while the husband lives in rented premises.
Procedural History
On 16 July 2014, Ms Delaney made an application for an interim ex parte Intervention Order in the Magistrates Court of Victoria, that Application being granted on 16 July 2014.
The Intervention Order issues were canvassed at some length at trial and will be discussed in more detail below.
These proceedings were begun when Mr Delaney filed an Initiating Application on 29 August 2014 seeking both parenting and property orders, although the terms of the orders sought were very vague.
The parties first appeared before me in the duty list at Dandenong on 5 November 2014 when interim parenting and property orders were made by consent. On that date, I listed the matter for a Conciliation Conference on 26 February 2015, for further mention on that day, and for final hearing on 25 November 2015 for three days.
The matter did not resolve at the Conciliation Conference and the parties returned before me for mention on 26 February 2015 where I listed the matter for an interim hearing on 8 May 2015 and a further Conciliation Conference on 25 May 2015.
On 8 May 2015, the parties returned before me in Melbourne for an interim hearing. After submissions made by counsel for the parties, I made interim parenting Orders for the children to live with the wife and spend time with the husband. I further ordered an updated private family report.
The parties attended a second Conciliation Conference on 25 May 2015 but were unable to resolve their property dispute.
The matter was originally listed for trial on 25 November 2015 but it was not ready to proceed and was relisted to 19 October 2016.
The trial was originally listed for three days. Ultimately, however, it ran over six days, the first three taking place in the Melbourne Registry and the remainder at Dandenong.
Witnesses were the parties, the wife’s parents Mr P (“Mr P”) and Ms P (“Ms P”), Ms M, a friend of the family during the marriage (“Ms M”), and Mr T, the Family Consultant who prepared three family reports in the course of the proceedings (“Mr T”).
After final submissions on Day 6 of the trial, judgment was reserved.
Issues and Evidence: Parenting
A. Has the husband committed acts of family violence against the wife?
The wife’s evidence
In her initial affidavit affirmed 28 October 2014 and filed 29 October 2014, the wife deposes as follows:
12. Our relationship from the beginning was quite volatile. There were times when we argued and yelled at each other. The Husband was verbally abusive and would swear at me, call me a bitch and generally put me down. Prior to being married, I recall a friend commenting to me that she thought the Husband was being verbally abusive by the way that he was swearing at me and that I should not marry someone who spoke to me the way he did. I ignored her comments however as I was in love with the Husband and thought that my future was with him.
13. I recall on one occasion the Husband threw me out of bed. We had an argument and the Husband shunted me out of the bed with force and I fell onto the floor.
14. I recall that we were returning from the (omitted). We were fighting in the car. I was driving. We stopped and he got out and I locked the door. The Husband put his fist through a rear window to get into the car. I was very frightened by this behaviour. The Husband forced me to move into the passenger seat and he drove home.
15. The Husband would push me and shout at me in front of the children. He would interrogate me to find out where I had been and who had been with. He would control me financially by giving me a weekly allowance that I can account for (sic).
16. When the husband was particularly stressed he would bring up that I had “not worked a day in my life”, that we had no marriage and he had nothing to live for and should just kill himself.
[…]
19. The Husband would treat me as being incompetent and would sweep into action when he got home from work, highlighting how inefficient I had been during the day. I felt increasingly unable to deal with my unhappy marriage and the atmosphere in the house, and as a result, we separated for a period of three months.
It is her evidence that the parties attended marriage counselling but that the husband refused to implement strategies learned, resulting in Ms Delaney feeling “helpless, incompetent and worthless.” She said that the husband’s behaviours “had a significant effect on (her) self-esteem”.
She deposes that on one occasion in August 2010, after she had arrived home at 4:00a.m. after spending the evening out with friends, there had been an altercation when the husband and children had woken up and, at 8:00a.m., turned the television on loudly while she was sleeping. It is the wife’s evidence that she came out and turned the television off, whereupon “(t)he Husband charged at me from across the room and pushed me with force against the wall to force me to give him the remote. This occurred in front of the children”.
Ms Delaney says that at that time she decided to separate from the husband, but that he had “kept me up all night talking and begging me to stay”. It is her evidence that this was “a regular tactic if I tried to discuss separating with him, and I found it emotionally exhausting and unbearable to the point where I always gave in”.
It is her further evidence that when the husband was stressed, he would say that their marriage was worthless and that he should just kill himself. I note that under s.7 of the Family Violence Protection Act (Vic) 2008, a threat of suicide is an act of emotional or psychological abuse, and therefore an act of family violence.
The wife deposes that when the husband came home from work during the marriage he would criticise any housework she had done, and on one occasion told her he did not have time to sit down and talk to her as had been arranged in marriage counselling, “as he had to deal with the “chaos” resulting from my “ineptitude” ”.
The wife says further that the husband insisted on undertaking all cooking and cleaning tasks in the family home. Ms Delaney deposes that all of this caused her to feel “helpless, incompetent and worthless”.
It is the wife’s evidence that on 25 April 2014, the husband did not believe that she was having dinner with a female friend, despite her putting the friend on the telephone, and he left the children at home alone in order to search for her in (omitted). On his return to the family home, the wife says he told the children that their mother was out with her boyfriend.
It was that incident, the wife says, that precipitated the parties’ separation. The parties then lived separately under the same roof until mid-July 2014 when the husband was forced to vacate the premises after Ms Delaney applied for and obtained an Intervention Order against him.
During the period when the parties were living separated under the same roof, the wife deposes that the husband told mutual friends that she had been “having an affair for the last two to three years”, and that he had followed her when she went out to the extent that she “concluded that he had used some sort of device to track my movements or was monitoring my text and/or email messages” [1].
[1] In her affidavit sworn 5 October 2016 and filed 7 October 2016 the wife states that "I later found out that the Husband had used OzSpy to track my movements. I found the box in the house for the equipment used, and found a transaction in his account showing the purchase".
It is Ms Delaney’s evidence that Mr Delaney “began to stalk (her)” and that he would “turn up to places where (she) was where he could not possibly have known (she) would be”.
Ms Delaney says that the husband had “telephoned Telstra and impersonated me… and had my telephone records sent to his Hotmail account and set up an online account so that he could see my records on an ongoing basis. I found out when I rang Telstra two weeks after this on another matter and they told me what had been done on my account”.
The wife then deposes as follows:
30. Although the Husband found no evidence of an affair in my telephone records, he continued to tell people that I had had an affair. The Husband told me that if I left with the children that he would report that children as having been abducted (sic). He threatened suicide and/or that I would never see the children if I left him. I told the Husband that I was scared of him and that I was frightened that he would hurt me or the children, but he still did not contain his behaviour.
Ms Delaney says that on 12 July 2014 that she was so concerned about the husband’s erratic behaviour that she decided to take the children away from the house until he calmed down, but that the husband had told the children not to leave with their mother and that if they did, they would never see him again. The wife says that the children were very distressed and confused by that statement.
It is her evidence that the husband then called the police who called her and asked her to go to the police station. The wife says that the police suggested that she take the children and stay at a hotel for a couple of nights.
Ms Delaney says that the husband finally agreed to leave the family home on 14 July 2014. She then applied for and obtained an Intervention Order against the husband, but she says she did not include the children’s names as Affected Family Members because she wanted them to be able to spend time with their father. She says that she obtained the Intervention Order so that “his behaviour would be “reined in” and for him to stop abusing and frightening me”.
Ms Delaney’s evidence is that the husband refused to spend overnight time with the children after separation because, she believed, “he thought that I would be dating if the children were in his care”.
While the husband continued to pay the mortgage and all other expenses in relation to the family home, the wife deposes that he gave her “an ‘allowance’” for whose expenditure she had to account to the husband.
It is not disputed that on 3 September 2014, the husband sent the wife the following email:
Just to let you know as I am in the process of making application to Federal Police/through federal court to have an immigration watch on the children’s pass port (sic), so as they can not (sic) leave the country. Considering the current situation, I believe the children are entitled to see me during Christmas holidays and Christmas day. Just letting you know so you don’t waste any more money. In any case I cant avoid it (sic) and if you have put money aside it should be part of a property settlement.
Also I need to get a handle on what you are spending until court makes a ruling, I will need receipts on the things you buy you can give them to me on Sundays if you like along with Bills.
What i (sic) consider not acceptable is the following
1. Babysitting fees
2. More than one tank of petrol a week on average, can be more if needed but do not intend to contribute to your trips to (omitted) anymore
3. Pre cooked meal or grocery delivery’s (sic)
4. Any funding of your own personal outings or entertainment, or any personal items for yourself
5. Your phone bills
I would expect as I am paying or bills (sic) and mortage (sic) that food shopping of $300 a week would be fair and reasonable. In any case there is not enough to give you anymore (sic), as we are very much living on borrowings. I will pay kids activity (sic) as they come up but this will be subject to review as they come up. As items come up I am willing to discuss at anytime (sic), but the focus will be purely on providing for the children.
We can discuss the above if you would like to, you also do need to make a full financial disclosure to me of your income and shares at some stage as per solicitors (sic) letter to you.
Thanks
Ms Delaney deposes that she felt that her husband was trying to “dictate my every last movement, including what I spend and how I spend it, and having to prove my spending to him by way of providing receipts. In the event that an expense would occur outside of groceries and petrol I would have to go to the husband with hat in hand to beg for more funds”.
In addition, Ms Delaney states that at the time of affirming her initial affidavit, she was seeking an order that she be permitted to take the children overseas on a seven week holiday in December/January 2014/15.
She deposes that she believed the husband’s opposition to that holiday was “spiteful given that I applied for an Intervention Order against him”.
As already stated, Ms Delaney applied for and obtained an Interim Intervention Order against the husband on an ex parte basis on 16 July 2014.
A final Order was made by consent on 11 August 2014 with the husband making no admissions as to the allegations set out in the Application and Summons.
The wife filed an application to vary the conditions of the Intervention Order, that application coming before the Magistrates’ Court on 29 September 2014 when an Interim Intervention Order was made which varied the original.
In her affidavit sworn on 5 October 2016 and filed 7 October 2016 Ms Delaney deposes that her application for a variation of an Intervention Order was heard on 23 February 2015 by way of contested hearing.
She says that the husband gave evidence at that hearing, and while he admitted that he had impersonated her in a telephone call to Telstra, he denied using tracking software to follow her. Ms Delaney says it was only after that hearing that she discovered further evidence of the husband having purchased three items from a company trading as “OzSpy”.
It is her evidence that her application for an Intervention Order returned to the Magistrates Court on 2 December 2015 and was adjourned pending the outcome of these proceedings. In those circumstances the interim order obtained on 29 September 2014 remains in force[2].
[2] I note that this evidence is at odds with information provided by counsel for the husband in his opening address, where he said that a final intervention order had been made by consent without admissions on 11 August 2014. Counsel stated that it is the application of the husband for an intervention order against the wife which has been adjourned pending the outcome of these proceedings, with a limited interim intervention order having been made on 31 October 2014. I do not think anything in these proceedings turns on that conflict of evidence.
At trial, Ms Delaney presented as a quiet and thoughtful, though at times a somewhat disconnected woman who took her time in answering questions and who was convinced of the righteousness of her cause. She presented as somewhat dismissive of the husband, and impressed as almost aloof in her manner in the witness box.
During her cross-examination she stated that she found some events difficult to recall but when asked about other specific events, she was quite firm in her evidence.
Under a long and incisive cross-examination lasting for one full day and two half days, Ms Delaney confirmed that she saw Mr Delaney’s insistence on performing all cooking and laundry tasks during the marriage as a form of control of her and that she saw his bringing food to the children while they were in her care in the same light.
She was clear in her denial of the suggestion put to her that she had used the Intervention Order when it suited her and not insisted upon its terms at other times.
However, she agreed with counsel’s suggestion that she had attended an event in (omitted) on the Easter weekend of 2015 at the husband’s invitation in an attempt to repair her then very fragile relationship with W.
Counsel later spent some time cross-examining Ms Delaney specifically about her allegations of family violence, beginning with the incident where Mr Delaney smashed a car window to gain access to the car during an argument.
Ms Delaney agreed that she had not stated in her affidavit material that that incident had taken place more than 20 years ago, and conceded that it might have been an error on her part to omit the timeframe in relation to that allegation.
I do not take a negative inference from that evidence. A physically violent incident taking place early in a relationship can form the background to a person’s responses to less or even non-physical abusive incidents that follow. That is, such an incident can lead to an ongoing fear of further such incidents re-occurring, that fear shaping and inhibiting a person’s behaviour in responding to future disputes between the parties.
In response to further questioning about that incident, Ms Delaney was insistent that the husband had been locked out of the car only for a few minutes before he smashed the rear window, and not hours as put by counsel.
She denied that her locking the husband out of the car was an act of control on her part, saying that she had been protecting herself. She further denied that she had fabricated the detail of that incident and said that she had felt threatened by the husband’s behaviour.
Ms Delaney conceded that there were only two other instances of physical violence alleged in her affidavit material: one when she deposed that Mr Delaney had thrown her across the room and up against the wall when she had turned the television off in August 2010; and the other when she alleges that he pushed her out of bed. When asked, she could not think of any other such instances.
In relation to the first of those, she agreed that her description in the affidavit material was her most vivid description of physical violence perpetrated by the husband. She does not appear to have been asked any further questions about that incident.
In relation to the allegation that Mr Delaney had pushed her out of bed, Ms Delaney denied that the incident she described was of one when she had fallen out of bed more than 20 years ago when the parties had been experimenting with new sexual positions. Moreover, she said she could not recall any incident like that ever happening.
Counsel’s questioning then turned to the circumstances under which Ms Delaney had obtained an Interim Intervention Order on an ex parte basis on 16 July 2014.
The wife agreed that she had made the Application and Summons for an Intervention Order on 16 July 2014, and denied that she had done so in order to control the husband. Rather, she said, she had applied for the Intervention Order because she wanted to ensure that she was safe.
She accepted that her Application and Summons document made no mention of the three instances of physical violence discussed above.
Ms Delaney’s evidence was that she had made the application not to keep the husband away from the children, but only to prevent him committing any further acts of family violence. However, when shown a copy of her Application and Summons document, Ms Delaney was forced to concede that the Application and Summons was actually for a full Intervention Order and that it included the names of the children as Affected Family Members.
It was her evidence that she did not understand why the Application and Summons stated that she was seeking a full Intervention Order, as it was her recollection that she was only asking for an order preventing Mr Delaney from committing family violence, from stalking her, and from placing information about her on social media.
That evidence was elicited at the very end of day four of the trial. At the beginning of day five, while still under cross-examination, Ms Delaney tendered a copy of her handwritten Information for Application for an Intervention Order from which the data on the Application and Summons was taken.
Perusal of that document shows that on 16 July 2014, Ms Delaney had ticked the boxes asking whether she wished the children to be included in the Order sought.
In the section of the document headed “History of Family Violence Incidents”, Ms Delaney had ticked the boxes for emotional or psychological abuse, economic abuse, threatening behaviour, coercive behaviour, and controlling or dominating behaviour that “causes you to feel fear for your safety or wellbeing or that of another person”. She had not ticked the box for physical or sexual abuse.
Against the box marked “What was the most recent incident of family violence by the Respondent? When and where did it occur? What happened?” Ms Delaney has written the following:
We have been living separated under the same roof since April as he refused to move out. There have been many incidents over this time that have caused me to feel unsafe, but I haven’t wanted to aggravate him and hoped he would settle down as he got used to separation. On Saturday 12/7/14 I tried to talk to him about the children. His behaviour was very odd. He kept walking off and leaving the house. When I stood in front of door (sic) he stared at the floor and said not to assault him and that I have psychologically abused him for 20 years – and seemed like a crazy person. He left the house so I told kids (sic) to get their shoes and come with me. My 11-year-old son was crying and telling me Dad is so upset all the time – he tells me he is upset and is not allowed to leave the house. Ms Delaney came back and told the kids not to leave the house, that they wouldn’t get to see him for 6 months, and what his solicitor said. The children were very distressed and confused. X wanted to leave with me, so Ms Delaney rang police (sic). Kids started screaming. Younger children wouldn’t leave, but X came with me. Police then rang me so I went to Property B police station.
Against the box marked “Have there been other incidents of family violence by the respondent in the past? When and where did they occur? What happened?”, Ms Delaney wrote this:
26th April – I went out without telling Mr Delaney where I was going. He rang repeatedly and drove around looking for me, told me he would tell my friends what I was really like. He cam (sic) home and told kids I had a boyfriend. They got upset and X punched his hand through a window. Since this incident he has sent abusive and threatening emails and texts, and his behaviour is erratic and deliberately upsetting. He has followed me using tracking device, impersonated me to Telstra to get my phone records, lies and manipulates me, tried to make me move out of the family home without my children, told me if I left with children he would report them as abducted. He has told anyone he can that I’ve been having an affair for the last two-three years (which is untrue), swears at me, has destroyed some of my friendships, has threatened to suicide or never see the children again, controls money and limits my access to cash. Went through my things and stabbed my book – very disturbing.
Against the box marked “Do you think these incidents may occur again? Explain why you think these incidents are likely/not likely to occur again” Ms Delaney wrote:
His brother, sister and nephew have AVOs on him for trying to run his brother down and abusive texts. He is alcoholic and cannot control his behaviour. I have told him I am scared of him and that he will end up hurting me or the kids. He has still not managed his behaviour. Although he found no evidence of affair in phone records he is still telling people I’ve had an affair. Have asked him to stop upsetting children and he has continued.
Ms Delaney wrote that she sought an Intervention Order of less than 12 months because she was hoping that the husband would “get used to separation and start to behave more rationally”. She wrote that her reason for wanting immediate protection was that:
“I am in constant fear of what he will do next. His behaviour is erratic and unstable. He wants to get back into the house and he wants the children for himself.”
The behaviours Ms Delaney ticked on the form as those she sought to restrain the husband from were those related to committing family violence, intentionally damaging property, following the protected person, publishing on the Internet, by email or other electronic communication any material about the protected person and getting any other person to do any of the above. She did not tick the boxes relating to contacting or communicating with a protected person or going to or remaining at any address.
I have perused all affidavit material filed by the parties in these proceedings, and the documents tendered by the parties during trial. There does not appear to be a copy of the original Interim Intervention Order obtained by the wife on 16 July 2014 in any of those documents.
Nor does there appear to be in those documents a copy of the final Order made on 11 August 2014.
I note that the wife sought a variation of the Intervention Order made on 11 August 2014, and on 29 September 2014 an Interim Intervention Order was made which names only the wife as an Affected Family Member, and which contains the following conditions:
“The Court orders that the respondent must not:
1. commit family violence against protected person(s).
2. intentionally damage any property of the protected person(s) or threaten to do so.
3. publish on the internet, by email or other electronic communication any material about the protected persons(s).
4. go to or remain within 200 metres of
PROPERTY B
or any other place where a protected person lives, works or attend school/childcare.
5. get another person to do anything the respondent must not do under this order”.
That interim order was obtained ex parte and is stated to vary “THE ORDER MADE BY THE MOORABBIN JC – MAGISTRATES’ (sic) ON 11/8/2014”.
The husband’s evidence
In his affidavit sworn and filed 24 November 2015, the husband concedes that there were “a number of occasions during our relationship where the wife and I would yell at each other.”
He says both parties would call the other derogatory names, but asserts that he had made every attempt to ensure that such arguments did not take place in the children’s presence or hearing.
He cites the source of such disputes as being the wife’s criticism of the quality of the work he performed for the household, including his house work, meals preparation, the income he earned, or renovation work he was undertaking.
Mr Delaney acknowledges that after 2008 he had taken greater control of the parties’ finances, but states that he had given the wife a supplementary card to his credit card account.
It is his evidence that he bought “whatever the wife wanted and paid for numerous renovations and home improvements insisted upon by the wife”.
Mr Delaney concedes that he had questioned his wife about where and with whom she had been and states that the reason for this was that she had had several affairs and he was concerned that she might have another.
He denies pushing Ms Delaney or shouting at her in front of the children.
In relation to the incident described in paragraph 26 above, Mr Delaney says that his wife had returned home at 4:00a.m. and that he was concerned that her returning at that hour “was an indication of her further unfaithfulness”. It is his evidence that at the time of the incident he and the children were having breakfast and that the television was on. He says he objected to the wife turning off the television and that “she became angry and started yelling at me in front of the children”.
He denies physically assaulting the wife on that occasion.
Mr Delaney admits that he left the house on the evening of 24 April 2014 in order to try to locate his wife, believing that she was “continuing to see other men”. He deposes that he returned home after 10 or 15 minutes as “I realised it was not a sensible suggestion”. He concedes that on his return to the house he told the children that he thought their mother had a boyfriend, and that the children were greatly distressed by that statement. Mr Delaney deposes: “I deny I physically abused any of the children but recognise my parenting in that moment lacked insight”.
Mr Delaney concedes that he spoke to “personal friends of mine” about his concerns that his wife was having affairs.
He denies stalking Ms Delaney but says that he had “commenced keeping a record of the wife’s time with the children in the event parenting issues became an issue”.
In relation to the allegation that he had impersonated her when speaking to Telstra, he admits the facts of those allegations but says that Ms Delaney had given him permission to check her phone records because he was concerned about her having an affair.
Mr Delaney denies threatening to take the children from their mother and does not address the allegation that he threatened to commit suicide.
Mr Delaney denies the wife’s allegations in relation to an incident she says occurred on 12 July 2014, saying that “the wife did not want me to continue to reside in the house and was trying to manufacture a scenario where I would be forced to leave”. Not only does he deny that he told the children they would never see him again if they went with their mother, but he denies that the police were involved at all.
Mr Delaney deposes that he specifically denies the allegations contained in the wife’s Application and Summons for an Intervention Order.
In relation to Ms Delaney’s allegation that he refused to have the children overnight after final separation because he believed that she would go out with other men if he did, Mr Delaney says that he was living in a shared house at that time, and that there was no appropriate accommodation for the children.
In relation to the wife’s allegations of financial abuse after separation, Mr Delaney deposes that he had paid for all the household bills, for special events for the children, for the wife’s car registration, insurance and CityLink account, and for the family’s health insurance. In addition, he says he deposited the amount of “at least $330 per week into the wife’s account and if it gets low I have topped it up”.
Mr Delaney’s trial affidavit sworn and filed on 7 October 2016 does not mention the wife’s allegations of family violence.
In his opening address at trial, counsel for the husband stated that a final Intervention Order had been made on 11 August 2014 by consent without the husband making any admissions in relation to the allegations contained in the Application and Summons[3].
[3] see footnote to paragraph 51 above.
Counsel described the wife as “duplicitous to the extreme” as she had invited the husband to attend at the family home after the Intervention Order was made in order for him to perform maintenance tasks and look after the children. Indeed, counsel described the wife as abetting breaches of the Intervention Order, as it prevents Mr Delaney from coming within 200 metres of the family home.
During his evidence in chief, Mr Delaney denied perpetrating any physical, emotional, psychological, or financial abuse against his wife.
In relation to the wife’s evidence about him having broken the rear window of a car during an argument, Mr Delaney’s evidence was that the incident had occurred during a camping trip more than 22 years ago, that he had told Ms Delaney he was going to “tap” the rear window in order to gain entry to the car, and that he had done so.
He confirmed his evidence that he had contacted Telstra in order to gain access to the wife’s telephone records, but said that he had done so with her permission, and indeed at her suggestion, when he had accused her of having a long-term relationship with another man.
In relation to the email he sent to the wife on 3 September 2014, Mr Delaney said that he had been attempting to negotiate how much the wife and children needed to live on and how much he would have to set aside for that purpose. He further said that Ms Delaney had not included the whole of that email in her affidavit material and that he would provide the full version on the next day of the trial. He does not appear to have done so.
It was his evidence that he had attended at the family home on approximately eight occasions since separation in order to conduct maintenance and repairs at the request of the wife, and that the wife had been to his home for Christmas celebrations in 2015.
Mr Delaney said that the children knew that he was not permitted to attend the family home, and that they had to meet him at the end of the street when he took them to school or brought them food.
He denied that his discipline of the children was excessive, saying that his parenting style was fairly relaxed but that the children knew his boundaries and “when I mean business”. He said that he did not “fly off the handle” but that he discussed issues with the children as they arose.
Under cross-examination by the wife’s counsel, the husband said that the parties’ relationship had begun to deteriorate after the wife’s holiday to the (country omitted) in 2008. He did not agree, however, that arguments between the parties had intensified over time, saying that he had simply tried to keep her happy.
He denied ever calling his wife a “slut”, and said that he had only called her a “bitch” rarely.
When questioned about the events of August 2010, the husband said that the wife’s version of those events was totally incorrect. He said that she had arrived home at about 4:00a.m. in an intoxicated state and that she had vomited a couple of times. He confirmed his evidence that when he and the children were having breakfast, the wife got out of bed, yelled at him and the children and turned the television off. He said that he had shut the bedroom door but that she had come out to the breakfast room again and verbally abused him and the children. He denied that there was any physical violence or a struggle for the remote control as alleged by Ms Delaney.
However, in re-examination, Mr Delaney said that the children were “very distressed, upset and frightened” by that incident.
In response to questioning from the wife’s counsel, he admitted that he had bought a listening device on 30 May 2014 which he said he had placed “on my person”. He denied that the listening device had ever been placed in the wife’s bedroom.
He confirmed his affidavit admission that he had impersonated the wife when speaking to Telstra in order to gain access to her telephone records, but maintained that he had done so with the wife’s consent.
When it was put to him that if the wife had consented to that action she would have made the call herself, Mr Delaney said there had been a conversation between him and Ms Delaney during which she had said “if you want it you do it”, and that he had then placed the call to Telstra.
He was asked if he had thought about how Ms Delaney might feel about having her telephone calls monitored, and his response was that at the time he had been “quite frantic” about what Ms Delaney might do, but that he could now see that his actions might have been irrational. He conceded that his wife might have felt that her privacy had been invaded, but said that any apprehension on her part would have been the result of feeling threatened about the truth coming out about her affairs.
While acknowledging that the events of 24 April 2014, which ultimately led to the parties’ separation, had involved “high emotion”, Mr Delaney said that such high emotion was not on his part and that he had been more analytical about the circumstances, and that he had been trying to defend himself against a potential Intervention Order.
He then confirmed that the police had attended the house and that the wife and children had spent the next three nights at a hotel while he remained at the family home. I note that that evidence contradicts the evidence contained in his affidavit material.
It was Mr Delaney’s evidence that it had been W who had told X that his mother had a boyfriend, and that he had simply confirmed what he believed to be that fact when X had asked him. Mr Delaney said that he sees now that he should not have done so. He acknowledged the harm that might have been caused to X by his action, but stated that the wife was also to blame.
When it was put to him that his wife denies having a boyfriend at that time, Mr Delaney said that she was going out often and that it was his suspicion that she was seeing someone else.
It was Mr Delaney’s evidence that he had obtained substantial advice since that time and that he now understands that he behaved badly on that night. He said that he had not behaved in such a way either before or since that night.
When it was put to him that he had discussed his suspicions about the wife’s behaviour with people involved in the children’s school and kindergarten, Mr Delaney stated that those people were close personal friends and that they too had had suspicions about the wife. He said that while he understood that the wife would have been upset about those discussions, they had been confidential and he had not expected them to go any further. He said that “a mature person” would understand that these things happen, and that he had thought that the people with whom he was discussing these events were “mature people”.
In response to the wife’s allegation that he had told the children that they would never see him again if they left with the wife, Mr Delaney said that he had given the children a hug, told them he loved them, and said that he might not see them again for a while. He said that he had told them that because he had wanted them to know that if he was not seeing them it was not because he did not want to but because he was being prevented from doing so. He said that he had said that in anticipation of an Intervention Order being made against him.
In wide-ranging and detailed re-examination, Mr Delaney confirmed that the children had been “very distressed, upset and frightened” by the events of August 2010.
When asked about the issue of him impersonating Ms Delaney during a telephone call to Telstra, Mr Delaney said that he had requested Ms Delaney’s phone records and told her that she should provide those records if she had “nothing to worry about”. Ms Delaney had then told him to look at her records and he had said “Right then”. It was his evidence that there were occasions when he still had to call Telstra and impersonate Ms Delaney in circumstances where the Internet at the family home had been cut off and it needed to be reconnected. He gave no explanation as to why Ms Delaney could not have made such calls herself.
Mr Delaney was asked what he had been “frantic” about at the time of separation in April 2014. He replied that if Ms Delaney had been in a long-term relationship with someone else, then she probably had plans in relation to that relationship, whereas if the relationship were short-term, those plans would be less advanced. He then said that he had been worried that if Ms Delaney had obtained an Intervention Order, the man with whom she was having a relationship might move in to his home and that that would be “the end for Ms Delaney”. He accepted that there was no Intervention Order against him at that time and I found his evidence in that regard quite disturbing.
In relation to the circumstances of separation, Mr Delaney said that he had had discussions with his wife about separating and that she had sent him a text message telling him to move out of the home or he would not see the children. He said that he had then obtained legal advice and that he had moved out of the property. It was his evidence that Ms Delaney had told him that if he moved out she would not obtain an Intervention Order against him.
Mr Delaney denied that there had been any altercations or differences of opinion between the parties between the date he moved out and the date of service of the Intervention Order upon him.
He confirmed that it had been W who had raised the issue of Ms Delaney having a boyfriend on 24 April 2014, and said that W had told X that Ms Delaney was “out double dating with Ms L”, Ms L being a friend of Ms Delaney’s.
When asked with whom he had discussed his suspicions about his wife having an affair, Mr Delaney stated that there had been three families and particularly the men in those families, and that he had also sought advice from lawyers. It was his evidence that he was usually private in relation to family issues but that he had needed help in dealing with the situation.
The law in relation to Family Violence
S.4AB of the Act defines family violence as follows:
4AB(1)For the purposes of this act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
4AB(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withhold in financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
Conclusion Issue A
Overall, I found the wife to be a convincing witness on this issue. While she had some difficulty in relation to detail about instances of family violence, or what she had written in the document that formed the basis of the original Application and Summons for an Intervention Order, that is not uncommon in these cases.
I found her evidence in relation to those instances which she does describe, both in her affidavit material and in the witness box, to be clear and consistent.
She presents as a cool, calm and thoughtful woman, and while I have some difficulty with her evidence in relation to other issues, as will be seen later in these Reasons, I found her evidence in relation to family violence convincing.
I did not find the husband to be a particularly convincing witness in relation to this issue.
There were times during his cross-examination when he seemed to have difficulty in answering questions directly, and he appeared to be anticipating what counsel’s next question would be rather than answering the actual question posed.
His concessions in relation to the inappropriateness of his behaviour showed little actual insight into the impact of that behaviour upon his wife and children, and while he might be embarrassed and remorseful at having that behaviour put under the spotlight at trial, I am not satisfied that he fully understands that the behaviours which he conceded fall under the definition of family violence as found in section 4AB of the Act.
It was clear from his evidence that he still believes that the wife was having an affair at the time of separation in 2014, and that she had had multiple previous relationships with other men.
That evidence reveals a man whose suspicions become facts in his mind, and he acts on those suspicions as though they were facts. His behaviour in obtaining listening devices to monitor the wife’s behaviour is quite chilling in its implications, and his concession that he had confirmed his suspicions to his children and discussed them with friends and acquaintances who moved in the wife’s social circle, shows a lack of insight about his children’s emotional needs.
His casual description of what must have been quite a terrifying experience for the wife when he broke the rear window of the family car in order to gain access to it when the wife had locked him out during an argument, indicated that he does not fully understand either the immediate or the long-term impact of such family violence on those against whom it is perpetrated.
I do not accept his denial of perpetrating any physical violence against Ms Delaney during the marriage, although I accept that such violence was rare.
I find that most of the abuse perpetrated was verbal and/or emotional in nature, but that that abuse was thrown at the wife in circumstances where there had been physical abuse in the past.
However, I do not find that Mr Delaney’s actions in relation to the parties’ finances amount to family violence. I find that it was necessary for him to monitor the parties’ spending in the circumstances, although as will be seen later in these Reasons, he did not do a good job of that.
Therefore, while I have some concerns about the wife’s presentation at trial, I have many more about the husband’s behaviour, and I find, on the balance of probabilities, that the husband did perpetrate acts of family violence against the wife during the marriage, some of those acts being committed in the presence or hearing of the children.
B. Has the wife neglected the care of the children?
The husband’s evidence
The husband alleges that throughout the marriage the wife neglected the care of the children, that she was unable to perform household chores, and that he was the primary carer of the children.
He says that since separation, the wife has continued to neglect the children, that she does not provide sufficient food for them, that she does not ensure that they have safe passage to school, and that she generally puts her own needs ahead of those of the children.
In his affidavit sworn 27 August 2014 and filed 29 August 2014, the husband sets out the following instances as examples which he says show the wife’s neglect of the children in the immediate post- separation period:
(a)the wife “invariably” left it to the parties’ son X to get the two younger children up, dressed, fed and to school in the morning, and the children were very often late;
(b)the wife left the children unsupervised at home from 7:00 a.m. on four mornings a week when she left to attend her full-time study. On 30 July 2014, when the husband arrived at the family home to take the children to school on a day when heavy rain was forecast, they had had no breakfast and they were not dressed for school;
(c)on 29 July 2014, “a friend of the family saw the children walking about 2 kms to school at 9 a.m. School starts at 8.40 a.m. and the friend then stopped and took the children to school”
(d)“On visiting the household for maintenance or to pick up children almost always dishes not done (sic) and food and debris litter the floor, clothes and pull ups are scattered throughout the house also animal faeces have remained in washing areas for many days until I cleaned it up”
(e)on 31 July 2014, after receiving a phone call from X saying that he could not get the younger children ready for school and he was afraid that he would be late again, the husband had been forced to leave work, go to the family home and pick the children up to take them to school. He arranged for a family friend to collect the children that afternoon and when the wife discovered that, “she barred our friend from taking the children home ever again; however, she did nothing to arrange for the children to be picked up”.
(f)on 1 August 2014 the wife had arrived late at the children’s school to pick them up and they had gone home with another family as they were uncertain whether she would be coming at all. The wife blamed the husband for the ensuing confusion about the children’s whereabouts.
(g)Between 4 and 8 August 2014 then 11-year-old X had been left home alone to look after Y and Z when he was ill, and Y and Z had therefore not gone to school for two days until a family friend took them;
(h)on 13 August 2014 the wife was at home but had not got out of bed until noon. The three younger children had also slept in and had not gone to school.
(i)on the evening of 15 August 2014, Y told the husband he had not eaten all day and X confirmed that the children had not had breakfast as there were no clean dishes. X also told his father “that he had vomited at about 3 a.m. the previous night and that he did not want to wake his mother as he didn’t want to make her upset. I believe he cleaned it up himself in the morning. He then told me that as he vomited, Z also felt sick and that their mother told them they could stay home from school. She however went off to uni leaving the children at home”.
(j)on 18 August 2014 the husband had a conversation with the principal and vice principal of the younger children’s school, and “they agreed that they would ring X if he did not appear at school or was late, to offer assistance if he could not get the others to school or bad weather developed. That evening I reported to DHS that my children on at least two separate occasions had been left unsupervised with Gastro at home alone, indeed the children were vomiting and at risk of affixation (sic) as they did not have appropriate supervision”.
In his Affidavit sworn and filed 30 April 2015, the husband deposes that on 5 November 2014 he and the wife attended a parent/teacher interview at the children’s school. He then deposes as follows:
19. […] the Vice Principal of (omitted) Primary School, Ms F, took us both aside with Z’s teacher present and they both listed several major concerns that the school had regarding the basic care of the children, these included continual lateness of the children, so much so that the Vice Principal had instructed the teachers of our three children not to send the children to the office for a late pass, as they were having to do this practically every morning and were becoming embarrassed. Z’s teacher also reported that she seldom has lunch or the lunch may consist of a donut only. Z’s teacher also reported that Z is never wearing the appropriate school uniform for sports or the correct shoes etc. The Vice Principal and Z’s teacher pointed out that these were not issues for the school but it was causing the children to be embarrassed and self-conscious. My wife’s response to these concerns were dismissive and she stated that I tell them to pack their lunch and the baby-sitter is not doing what’s required.
The husband further deposes that on 4 February 2015, “Effectively, the wife informed me that she was unable to cope with the children”.
The husband says that the wife told him this in circumstances where she had returned to Australia with the children on 26 January 2015 after taking them for a holiday to (country omitted) for more than six weeks. The wife had broken her arm in the first week of the holiday, and after her return she had asked the husband to care for them.
He says that he had the children in his sole care from 26 January 2015 to on or about 17 February 2015. He had asked the wife to take care of them overnight on 4 February 2015 but she had returned them at 7:00 p.m. The husband deposes that during that time, “I observed considerable distress in the children after they were effectively “dumped” on me by the wife on 4 February 2015. They began to blame each other as to why the mother did not want them anymore. I tried to pacify the children and generally settle them down”.
The three younger children had returned to the wife’s care on 17 February 2015, but W had remained in his care after an incident between her and her mother on that evening which resulted in the wife dropping W at the husband’s home at about 8:30 p.m. knowing that the husband was in Sydney for several days on business. W was then almost 14 years old and let herself into her father’s home with a spare key.
The husband deposes that at approximately 12:50 a.m. on 18 February 2015 he had received a very distressed telephone call from W, who was “screaming and crying that she could see torch lights outside”.
It is Mr Delaney’s evidence that he then rang his former mother-in-law, who lived nearby, and asked her to attend his residence to check on W. He then immediately called W and was informed that the person with the torch was the wife, who was outside his property trying to persuade W to come home with her.
W refused, and after a minor verbal altercation between the wife and her mother, from whom she has been estranged for many years, the wife allowed W to leave with her grandmother.
The husband deposes that W had been greatly traumatised by the events of that night, and that she had not gone to school the next day but had stayed with her grandmother.
It is not disputed that W then remained in his care until I made orders that she return to the wife’s care on 8 May 2015.
However, it is the husband’s evidence that on W’s 14th birthday, (omitted) 2015, the wife attended at his home and attempted to persuade W to return to her home. An altercation between the wife and W then ensued and the husband asked the wife to leave.
The husband says that after that incident, “W was still recovering from the events of the 17th of February and wanted me to stay with her almost continually and needed to know where I was when I was not at home”.
It is Mr Delaney’s evidence that only days later, on 5 March 2015, the following occurred:
“W was approached at school by Ms L and Ms T. Initially Ms L and Ms T informed W that they had been asked by myself to collect her from school. W became suspicious when she was told of this and then Ms L and Ms T changed their story and told her that in fact her mother had sent them to collect her to bring her home. W refused to accompany Ms L and Ms T and instead caught the bus to the station and then caught the train home. On arriving home she informed me of what had happened. I decided to take no action as I did not wish to escalate matters any further either with the wife or have W embroiled in any further incidents. I am concerned however that this did not assist in reconciling W’s relationship with her mother.”
In his Affidavit sworn and filed 17 September 2015, the husband deposes that since interim orders had been made on 8 May 2015, some of his concerns about the wife’s care of the children had been allayed, as she had employed babysitters to care for the children before and after school. He says that there had been fewer absences from school and that the children had been late less frequently when in their mother’s care.
Nevertheless, he was concerned that once these proceedings are concluded, the wife would “revert to leaving the children to care for themselves and putting unnecessary pressure on W and X in particular to care for and parent Y and Z when they are with her”.
Mr Delaney deposed further that despite there having been some improvement in the children’s situation, he still had considerable concerns about their welfare when in their mother’s care.
For instance, the husband said that the children had had persistent head lice for approximately the previous 12 months, and that he did not believe that the wife was treating them appropriately for that condition.
It is his evidence that the children had become “increasingly violent and aggressive towards each other” since separation. He blamed this on the wife’s “much more “hands off” approach to parenting allowing the children to spend time on their own in their rooms unsupervised”.
He said that each of the children had told him that they did not spend very much time with the wife and that it was their babysitters who assisted them with their chores, homework and preparation of school lunches.
He also complained that the wife did not ensure that the children had appropriate school uniforms, sports uniforms and casual clothes when they arrived to spend time with him, and that he had been forced to buy several items of the children’s school uniform during their time with him.
In addition, Mr Delaney deposes that the wife has been estranged from her family of origin for many years and that he has attempted to re-establish the relationship between the children and their mother’s family and that the wife has been very unhappy about that situation.
The husband then goes into great detail in describing the events of 18 August 2015, when one of the babysitters employed by the wife had taken Y to school only to discover that he was to attend school camp from that day. Apparently neither Y nor the wife had been aware of the camp, and Y had arrived at school with no clothes or equipment for it.
The wife then organised for the babysitter to collect Y and obtain the requisite items before returning him to the school.
Mr Delaney deposes that he received telephone calls from both Y’s teacher and the school principal, who advised him that Y had returned to the school but he did not have a sleeping bag or pillow to take with him to the camp. The principal then offered to make arrangements with the wife to collect Y’s sleeping bag and pillow from her and take them directly to the campsite.
It is the husband’s evidence that on the following weekend when Y was spending time with him pursuant to the orders of 8 May 2015, Y had told him that he had been embarrassed that he had forgotten about his school camp, and that he had told Y not to worry about it and had tried to comfort him.
In subsequent conversations with Y’s teacher on 31 August 2015, the husband says that he made arrangements to leave a school jumper, a drink bottle, and an iPad and charger with the teacher, to ensure that Y has those items while at school as he was regularly attending school without them.
Mr Delaney deposed that quite apart from these incidents, he had noted that Y had become “increasingly quiet and withdrawn since separation”, and said that he had sought the wife’s consent for Y to spend extra time with him for (hobby omitted) on two or three evenings a week after school. It is his evidence that the wife refused his offer, “instead relying upon babysitters and X to care for him when Y is with her”.
The husband said that in his conversations with Y’s teacher he had been informed that the school was “extremely concerned” about Y’s behaviour, and that the vice-principal had recommended that Y have counselling. However, the wife had not responded to his requests that Y attend such counselling.
In that affidavit, the husband also expressed continuing concerns about X being left to look after the younger children, and about W continuing to express a lack of confidence in the wife’s ability to appropriately care for all four children.
In his affidavit sworn and filed 24 November 2015, which was intended to be his trial affidavit, the husband deposed:
“It was a constant struggle for me to get the wife to contribute to the practical running of the household or care of the children and I felt stressed as the burden of the running of the household, caring for the children and income earning fell upon me.
[….]
During our relationship the wife went on approximately 12 trips to Queensland, New South Wales or within Victoria to visit her friends and four overseas trips on her own or with friends leaving the children and me behind.”
And later, :
“[…] I admit that I believed the wife was generally less able to cope with running the household and children. The wife would also not get up for any of our four young children during the night and they were all bad sleepers. It would not be uncommon to have three or two crying children during the night. I can remember many occasions having 1 or 2 hours sleep a night then going to work the next day and then coming home changing all nappies, feeding crying children and my wife, attending to laundry, preparing lunch for the next day, cleaning up, and then starting all again with the difficult sleeping patterns.”
Finally, in his last affidavit sworn and filed 7 October 2016, the husband deposes as follows:
11. The children continue to contact me by phone and ask me to assist them by providing them with food, taking them to and from school in bad weather or if the babysitter is not there and delivering their sport equipment to them at school or at the wife’s home on a regular basis. I have respected the terms of the interim intervention order by dropping the children off at the end of the street near the wife’s home with their bags and equipment and watching them safely enter the wife’s home. The children have told me that the wife regularly provides them with takeaway meals.
12. X regularly asks me to give him money to buy his lunch as he has to leave for school before the babysitter arrives and often leaves without a packed lunch. He complains that he remains responsible for getting the younger two children ready for school and that the wife expects him to provide frequent assistance with their care. He has also complained that the wife leaves him to cook dinner on his own for the other children.
13. I regularly deliver three to four bags of groceries to the wife’s home each week at the children’s request, largely consisting of fruit and other snacks for them to take to school as the wife does not appear to purchase these items for them. The school has continued to keep an eye on Z to make sure that she has something in her lunchbox to eat each day at school.
14. The children have continued to complain to me about not having sheets on their beds. Y has asked me on several occasions to purchase pull-ups for Z as she still has a bed wetting problem and often ends up sleeping in a wet bed.
15. The children have also complained repeatedly about not being able to find their school uniform, shoes, sporting uniforms, iPads and mobile phones before school as the house is generally untidy. I have arranged with the school to purchase additional items of school uniform for them on occasion at their request when their uniform has been lost.
16. The children complain that the wife punishes them by confiscating their iPads if they have not completed the household chores she expects of them, which has resulted on occasion in them not being able to complete their homework.
17. I have treated the children’s hair for nits on several occasions this year. It has been an issue since separation which has been almost impossible to keep under control because the wife does not treat the children’s hair for nits, contributing to reinfestation of more nits.”
Mr Delaney received an inheritance of $313,000 from his father’s estate in 2016, and has the sole benefit of that significant sum, worth approximately half of the net assets of the parties.
Ms Delaney wishes to remain working part-time while Z is still young.
During the marriage the parties had a secure standard of living in that they were purchasing their own home and owned two other properties which were tenanted.
It is rarely possible, unless one or both parties to a marriage earn very high incomes, to maintain the standard of living that has pertained during the marriage after separation.
In this case, it will be impossible, as much of the equity built up in the family home has been diminished in the circumstances set out below.
Nevertheless, both parties will need to provide accommodation for themselves and their four children, all of whom were used to having their own rooms during the marriage.
The wife’s earning capacity is less than the husband’s, at least while Z is young, although the fact that the children will be living with the parties in alternate weeks potentially frees Ms Delaney to work more hours.
Ms Delaney does not have the $313,000 inheritance that Mr Delaney has received.
On the basis of those matters, and particularly on the basis of the husband’s significant inheritance and the parties’ disparate earning capacities, I find it appropriate to make an adjustment of 10 percent to the wife.
I also take into account, under s.75(2)(o), the following matters, which took up the majority of the trial.
Share sales
It was Ms Delaney’s evidence that she had sold three parcels of shares after separation for a total of about $30,000, and that those monies had been spent on travel for her and the children. In her affidavit evidence, she said that the shares had been bought for that very purpose.
It was Mr Delaney’s evidence at trial that the shares had been bought “in case I lost my job” rather than for holidays, and that it was his wife who had managed the portfolio, which was acquired from his income.
Some of those shares were in her name alone and some were in joint names, but all were acquired after the date of cohabitation and were therefore, for the purpose of this exercise, joint property.
Most of those monies were spent on overseas travel, including the (country omitted)/(omitted) holiday in 2014/2015 which she undertook with the children.
I note that Mr Delaney did not consent to joint monies being used for the (country omitted)/(country omitted) holiday, and that it was an order of the court which allowed both those monies to be spent for that purpose and the children to leave the country.
In my short reasons for judgement given ex tempore on 5 November 2014, I recorded Mr Delaney’s submission that he considered that the cost of that holiday was excessive and that it would be “devastating financially” for the parties’ financial situation were I to allow $20,000 of joint funds to be used for that purpose.
The court allowed that holiday to go ahead essentially on the basis that the parties held considerable equity in their three properties at that time, and that there was a great disparity between their superannuation entitlements. It was conceded by the wife at that time that she would have to account at trial for the sale of the shares from which the funds were drawn to pay for the holiday.
I therefore find that while the monies spent on the holiday with the children to the (country omitted) and (country omitted) in 2014/2015 were joint monies spent for family purposes, the husband ought not be responsible for the cost of that holiday as he was adamantly opposed to it.
There is no doubt that the remaining $10,000 in share sale proceeds was used by the wife for her own overseas and domestic travel, a minor part of the domestic travel having been undertaken with the children.
In those circumstances I consider the $30,000 obtained by selling parcels of shares which were jointly owned to have been used by the wife for her own purposes and will make an adjustment to the husband of one percent for that use.
Drawdowns from the parties’ mortgage accounts and the husband’s superannuation entitlements
From the date of separation when the husband moved out of the family home, until at least the beginning of 2016, Mr Delaney paid for the instalments on the home loans secured by mortgages over the Property B property, the Property C property and the Property F property, all outgoings of the Property B and Property C properties including utilities, rates and taxes, and for the rates and taxes on the Property F property.
In addition, until the wife began to work outside the home in 2016, he paid the wife a sum of money for her support, and also paid the children’s school fees and for much of their clothing and food.
That much is agreed between the parties.
It is the husband’s evidence that he made those payments because the wife insisted upon him doing so and he did not want to cause trouble, and also because he wanted to support the children.
In fact, insofar as the mortgage payments, utilities, rates and taxes and the children’s extra-curricular activities were concerned, Mr Delaney’s obligation to pay those sums is set out in paragraph 9 of the orders made by consent on 5 November 2014.
It was the wife’s evidence at trial that she believed the payments were coming from the husband’s income, sourced from his full-time job or from his business interest in (omitted business).
That was not the case.
In fact, Mr Delaney was paying those amounts by drawing down on the parties’ mortgage loans over the Property B, Property F and Property C properties, so that the balances owing now are significantly higher than at separation. He also withdrew and apparently spent significant monies from his superannuation fund.
In her Outline of Case Document filed on 17 October 2016, the wife claims the following under the heading “Property Matters”:
1. It is contended that there should be a full accounting of all funds redrawn by the Husband from the mortgage of the former matrimonial home and the investment properties, as well as the superannuation funds of the Husband, before determining the property pool.
2. Any funds obtained by the Husband by drawing down on the mortgage/s and/or his superannuation fund that cannot be proven to be applied to the benefit of the parties for the welfare of the family or any child of the marriage, be deemed to be a part property settlement to the Husband.
3. The Husband be solely liable for any tax liability arising out of the early release of funds from his superannuation fund.
4. The Wife have leave to particularise the orders sought by her pending the cross examination of the Husband at the Final Hearing.
The husband does not address this issue in his Outline of Case Document.
I have already stated that I prefer to consider this major issue at this stage of my Reasons for Judgment rather than deciding whether to “add back” all the sums expended.
The primary reason for that decision is that the evidence in relation to how very large amounts of money were spent is, to say the least, somewhat chaotic, and it would have required an inordinately intricate forensic examination of the evidence to calculate even approximate values of items sought to be returned to the pool.
In her affidavit affirmed on 28 October 2014 the wife states that on 1 January 2014, about six months prior to the date of separation, the loan secured by mortgage over the Property B property stood at $198,956. She says that on 4 March 2014, the husband drew down $500,000 against that mortgage loan, and that on 4 June 2014, its balance was $799,749. I note that 4 June 2014 is about a month prior to the date of separation. None of that is denied by the husband.
In that affidavit, the wife stated that she did not know what the husband had done with those funds or how they were applied.
In her affidavit affirmed on 25 November 2015, the wife repeats her concerns about the $500,000 she alleges the husband drew down on the mortgage prior to separation, and states that since separation, he has also withdrawn “$220,000.00 or thereabouts” from his superannuation fund without her consent. She says she believes that that withdrawal would have attracted a taxation liability of about $40,000 and that she does not know how those funds were applied.
In her final affidavit affirmed on 5 October 2016, the wife again sets out the above allegations and then states:
202. The Husband has been redrawing on the mortgage ((omitted) account #(omitted))[21] and continues to do so. In July 2015 the mortgage was at $135,400.00. The account is now at least $555,066.79.
203. At the time of the November 2015 Final Hearing, the balance owing was $280,400.00. Since then, the Husband has drawn down to the extent that we are now a further $274,666.00 in debt. The Husband has not yet provided an accounting of the draw down amounts to me. He has simply used the redraw facility as a bank account for him to draw money from.
[21] That is, the mortgage loan secured by the mortgages over the Property C and Property F properties.
The wife then sets out various categories of payments she says the husband’s bank accounts show to have been made which are not joint expenditure.
It is her claim that the husband ought to be liable for the payment of any funds applied from the redrawn monies save those applied to the children’s school fees.
It is her case that:
206. […] the Husband’s spending has been either wastage or in the alternative, a negative contribution and I should not have to pay for his extravagant lifestyle.
Ms Delaney conveniently forgets that some of that expenditure was mandated by court orders – see paragraph 576 above - albeit (or rather particularly) that those orders were made by consent.
At trial, Ms Delaney gave evidence that she had not been at all aware of the pre-separation 2014 drawdown of $500,000 from the parties’ (omitted) Bank mortgage account until the matter came to court later that year.
When asked whether she had understood, after separation, that the same amount of income would need to support two households, and it would be likely that the family might not be able to afford some things that they had been able to afford during the marriage, the wife said:
I – obviously I accept the possibility of that but Ms Delaney was sending me emails throughout that period saying that the business was going well and he gave the impression that – that – that he had that money coming in through the business. He sent – he – he kind of bragged about how well the business was going, and that I would – I would be sorry that I had left him. He also didn’t indicate, with the way that he was spending, that there was any financial difficulty.
It was her evidence that in addition to “the business”, by which I inferred her to mean (omitted business), Mr Delaney had been working for an (employer omitted) and earning income from that work.
In re-examination, the following exchange took place:
Counsel for the wife: Where, to the best of your knowledge, was Mr Delaney sourcing those funds with which to pay those expenses?
The wife: From his income.
Mr Delaney, in a rather breathtaking omission given the size of the drawdowns, does not address the issue of the pre and post-separation drawdowns until his final affidavit sworn and filed on 7 October 2016, where he says merely, at paragraph 26:
Unfortunately, the asset pool has diminished in value significantly since the hearing on 25 November 2015 as I have drawn on the equity in the Property F and Property C properties to meet the family’s expenses.
I note that on 5 November 2014, I made the following orders by consent:
8. Within 14 days of this order, the husband provide to the wife’s lawyers full discovery in relation to the drawdown of $500,000 on the mortgage.
9. The husband shall do the following:
(a) Pay the mortgage over the matrimonial home as and when mortgage payments over the property fall due;
(b) Pay all utility bills in regard to the family home as and when they fall due;
(c) Pay the costs of the children’s extra-curricular activities.
[….]
11. Each party be restrained from drawing down or otherwise encumbering the property without the written consent of the other party.
While those orders mandated the expenditure on the real properties and on the children’s extracurricular activities, Mr Delaney, on his own evidence, simply ignored paragraph 11 of those Orders, and has provided no explanation for that serious breach save to say that the wife insisted on and expected him to pay the expenses set out in paragraph 9.
I note that Mr Delaney withdrew the sum of $500,000 from the (omitted) Bank mortgage account well before he was under any court-ordered obligation as part of these proceedings to pay all of the mortgage repayments on the family home.
Had he not transferred and spent those monies, the mortgage loan on the family home would have been very much smaller, and it is likely that the parties, with proper discovery, would have been able to settle these proceedings, at least as far as the property component was concerned, at an early stage.
With the family home mortgage standing at under $200,000, and the husband owning two investment properties with significant equity in each, it is possible that the wife might have been able to retain the family home as part of these proceedings.
With that mortgage now standing at almost $800,000, the investment property mortgages standing at more than $555,000 and the husband’s superannuation being $220,000 less than it ought to have been, that option may not be open to her.
The issue of how hundreds of thousands of dollars had been expended over a two-and-a-half year period took up a great deal of time at trial.
In his opening address, Mr Salamanca, on behalf of the husband, stated that in the 30 months between March 2014 and September 2016 the sum of $522,930 had been withdrawn from the parties’ (omitted) Bank (“(omitted)”) mortgage offset account.
In addition, he said, the husband’s credit card statements show expenditure of $225,000 between 18 August 2014 and 16 September 2016.
Mr Salamanca said that $500,000 had been withdrawn from the redraw facility on the parties’ (omitted) Bank mortgage account while the parties were still living at the Property B property, and had been transferred to their (omitted) mortgage offset account, and that the (omitted) mortgage account to which the offset account was attached, had a debit balance after that transfer of between $130,000 and $150,000 in mid-2014.
It was from the (omitted) mortgage account that the total sum of $522,930 had subsequently been withdrawn between March 2014 and September 2016.
At the time of trial, Mr Salamanca said, the debit balance in the (omitted) mortgage account was approximately $570,000. That is, the debit balance on that account had increased by about $420,000 since mid-2014 when the parties separated.
The $500,000 withdrawal from the (omitted) Bank mortgage account had left that account almost $800,000 in debit, and as the only transactions since that withdrawal have been bank interest debited and credit interest being transferred from the (omitted) offset account, the current debt owed to (omitted) Bank remains at about $800,000.
Further, Mr Salamanca said that the husband had withdrawn the sum of $220,000 from his superannuation in March 2015 and had placed those monies in the (omitted) mortgage offset account.
That is, between March 2014 and the time of trial in October 2016, a period of about 31 months, sums totalling approximately $1,140,000[22] were removed from the parties’ equity in property and superannuation entitlements, and almost all of it spent by the husband.
[22] $500,000 from the (omitted) mortgage account, $420,000 from the (omitted) mortgage account plus $220,000 from the husband’s superannuation entitlements.
I note that the $420,000 drawdown on the husband’s mortgage over the investment properties does not seem to have been interrogated at trial.
In those circumstances, if I am in error in accounting for it in this part of the process, the total of the monies removed would have been about $720,000.
I do not think that that discrepancy, if discrepancy it is, would have made any real difference to the decision I have come to in relation to the drawdowns in total and how the court should deal with them.
Mr Salamanca said his client acknowledged that expenditure, but said it was his client’s case that most of it had been spent for the benefit of the family, although he did acknowledge that some of the monies had been spent on the husband’s legal costs and for the husband’s personal entertainment expenses.
It was counsel’s submission that the wife had expected to be supported after the breakdown of the marriage, and that she had insisted on certain expenses being met, much in the same way as she had been supported, and those expenses met, during the marriage.
In his evidence-in-chief at trial, the husband said that there had been discussions between the parties about their financial situation after separation, and that it had been agreed that he would pay the mortgage over the family home, the children’s expenses and other expenses and that he would “cash her up” when necessary in the amount of about $300 to $400 per week.
The husband said that he had sent the email set out at paragraph 41 of these Reasons to the wife on 3 September 2014 because he was trying to determine by negotiation how much the wife would need for her support, and therefore how much he would need to give her.
He had been concerned, he said, as he knew it would be necessary to use borrowings to maintain the payments to the wife, for the mortgage and for the household expenses.
This was because the wife was a full-time student at the time and not earning any income, and his employment had been terminated[23]. I note that the email of 3 September 2014 states clearly that the parties were “very much living on borrowings” at that time.
[23] It is the evidence of both parties that the husband had been working full time for two employers until 2014 when he was dismissed from both positions. It is unclear from the evidence whether he was entirely unemployed or only working at one job until November 2014.
In the witness box at trial the husband gave evidence that he had advised Ms Delaney of the living expenses being paid for the family while the parties were living separately in the family home between April and July 2014. He said, under questioning from his counsel, that he had told her that the family was spending $23,000 per month in living expenses. I note that that extrapolates to $276,000 per year, which was clearly more than Mr Delaney was earning. It is clear from the evidence however, that in fact much larger sums were being spent.
At trial, Mr Delaney’s counsel tendered two large bound booklets containing copies of statements from several banks, including credit card and mortgage accounts, from which Mr Delaney had prepared a spreadsheet setting out what he said were expenses he had paid post separation. That one-page spreadsheet is attached by staple to the back cover of one of the booklets.
The copies of the bank statements consist of 295 pages, while the single page spreadsheet contains the following information as to the husband’s post-separation expenditure as far as I can glean it from that document[24]:
[24] Categories of expenditure are stated exactly as they are set out in the spreadsheet.
A.Expenditure taken from the parties’ (omitted) Bank Account.
Legal firms $ 48,999
(omitted) $ 12,004
Children Exp $ 36,006
My Persona $ 6,000
Bills $ 7,837
(omitted business) $135,110[25]
[25] It was Mr Delaney’s evidence at trial that of this sum, the sum of $57,000 remains in his possession in the form of a bank cheque. I will deal with that matter later in these Reasons.
Petrol & City $ 200
Rent & Fur $ 38,127
Food $ 5,619
Interest loan $130,500
New car $ 22,000
Cash out $15,973
RACV Insur $14,322
Medi Ins $10,994
(omitted) $35,239
Total $518,930[26]
[26] The totals were not provided on the spreadsheet and are my own calculations from the data provided.
B.Taken from credit card accounts
Legal $ 8,501
Children Exp $38,120
Personal exp $ 5,838
School fees $35,909
Bills $68,360
(omitted business) $21,208
Petrol & City $14,467
Rent & Fur $14,980
Repairs& n $ 7,386
Doctors $ 3,784
Food $ 3,650
Interest $ 1,627
New car $ 1,214
Total $225,044
Total expenses $743,974
Under the heading “NOTES OFFSET” the spreadsheet states the following:
Note 1: Children Exp and My Cash out: Prior to (omitted) estaminated (sic) within Children exp. Post (omitted) cash out sepearte (sic) column.
Note 2: Food from supermarket not including in this summary (sic)
Note 3: Amonts less than $70 not including in summary (sic)
Note 4: Transfers to Credit card detailed in sepearte spraedsheet not included in Total (sic)
Note 5: Offset Account Personal and entertainment exp include portion of cash out as well as column Personal expense
Under the heading “NOTES Credit Card” the following statements appear:
Note 1 Less Than $70 not included (sic)
Note 2 Personal expense including entertaiment expense etc (sic)
As will be seen from the information provided above and adopted by the husband at trial as his evidence-in-chief on this issue, it is difficult to glean exactly what expenditure the husband says ought to be considered as joint or reasonable expenditure and what ought to be considered as his personal expenditure. I note that this was the only evidence-in-chief given by the husband on this subject. That is, until he was re-examined by his counsel at trial, neither the court nor the wife knew in any detail what his evidence was about that expenditure.
Some of the items set out in the spreadsheet are clearly personal expenses and not expenses for the benefit of the family. Those include Mr Delaney’s legal expenses[27], his personal expenses, his new car, his petrol and other car expenses, and his rent, furniture and food expenses.
[27] Although I note that I have accounted for those expenses by adding them back to the property pool.
Other items are clearly for the benefit of the family and should therefore be considered reasonable expenses. Those include legal valuations, interest on mortgage loans, children’s expenses, school fees, insurance premiums, and monies paid directly to Ms Delaney for her support.
The nature of the expenditure for the remainder of the items in the spreadsheet is not so clear. Those include payment of bills, petrol and tolls expenses, repair expenses, medical expenses and food expenses and monies paid to or through (omitted business).
It is possible, for instance, that the payment of “bills” was for the running of both his rented accommodation and the former family home. Similarly, it is impossible to tell from the spreadsheet whether petrol and tolls expenses, repair expenses, medical expenses and food expenses were for Mr Delaney’s own use or for the family’s benefit.
The evidence in relation to monies spent on (omitted business) is perhaps clearer than that in relation to most of the other expenditure.
It was the husband’s evidence that, in the context of what he had told Ms Delaney about his business affairs after separation, he had told her about the commercially unviable (but (business omitted) successful) trial of his (business omitted) in August 2015. That is, that there had been a trial of his system, which had worked in (business omitted) terms, but that commercially the system was not competitive and the firm trialling it had “(gone) with someone else”.
Mr Delaney’s evidence was that (omitted business) had begun in February 2014 with the full support of his wife, that it supplies (business omitted) and consulting services in relation to that (business omitted), that it (business omitted), and that it owns a patent for his particular method of (business omitted).
Mr Delaney said that he had invested a total of about $80,000 in (omitted business) and that he had received approximately $40,000 in income from its operations. He stated that the future of that business is “a big unknown” but that he hoped that it would ultimately be successful to the extent that it would make a profit and provide sufficient income to support him.
In re-examination Mr Delaney said that the total he had spent on (omitted business) was about $105,000, which did not include a $57,000 bank cheque which, according to Mr Delaney’s evidence, he still retains, and which expires in November 2017. In other words, it was his evidence under re-examination that his expenditure stated as (omitted business) expenditure and allocation was actually about $162,000.
That evidence conflicts with the spreadsheet to which I refer above, which states that the sums of $135,110 from the (omitted) Bank offset account, and $21,208 from credit card accounts were expended on (omitted business) after separation. That comes to a total of $156,318, which, according to evidence adduced at trial, includes the sum of $57,000 which remains in Mr Delaney’s possession in the form of a bank cheque.
Given the difficulties in deciphering any real detail from the spreadsheet, and also relying on the clear evidence elicited from the husband at trial, I find, on the balance of probabilities, that Mr Delaney spent the sum of about $162,000 on (omitted business), $57,000 of which remains in his possession in the form of the bank cheque.
I also find that (omitted business) is a speculative concern undertaken by Mr Delaney alone, and that while the wife might have been supportive of that endeavour in the waning months of the marriage (and in the context of Mr Delaney being employed full-time elsewhere), any monies expended on it must be considered to be monies expended by Mr Delaney for his own use.
The wife, for her part, tendered at trial a 44 page document containing 10 separate tables setting out her calculations as to how the husband had spent monies since before the date of separation.
It is not this court’s role to act as a forensic accountant. If the parties wished to provide detailed evidence of particular categories of expenditure, they ought to have engaged a professional auditor for that purpose.
I have not been able, despite many hours of serious endeavour, to arrive at any coherent sum that shows exactly how Mr Delaney spent the monies he removed from the mortgage and superannuation accounts.
I have therefore had to do the best I could with the evidence provided.
Under cross-examination, Mr Delaney acknowledged that when he drew down the $500,000 from the parties’ mortgage account, his wife had known nothing of that transaction.
He further conceded that a document tendered by the wife and headed “Bank Transfers by the Husband” is an accurate account of transactions which show the sum of $584,000 being transferred into his personal account between 10 July 2014 and 4 July 2016.
Mr Delaney was then taken to the various court listings of the matter and claimed that he had made full disclosure (including by way of the provision of bank statements which showed the drawdowns and expenditure) of the family’s financial position at every stage of the proceedings.
He gave specific evidence that he had told Ms Delaney that he had lost his job in November 2014, and that she had told him to “just focus on the business”.
In re-examination, the husband was taken in intricate detail to the several “tables” which the wife had prepared setting out his post separation expenditure as she understood it. Mr Delaney had had an overnight period to peruse those documents before his re-examination.
As I have stated, the court’s role is not to conduct a forensic examination of intricately prepared lay documents. I will therefore not go in detail into the contents of the more than 40 pages of those tables. Suffice it to say that there were 10 tables.
I note that the period for which the tables purport to account for expenditure is different from the period set out in Mr Delaney’s spreadsheet, which makes any comparison of those two pieces of evidence akin to comparing apples with oranges.
At trial, Mr Delaney conceded that some of that expenditure in the tables was for his personal use but insisted that other expenses were paid for the children and the family as a whole.
That is clearly the case. However, because of the state of the evidence I cannot tell exactly how much was spent on which without undertaking a painstaking forensic comparison of the bank statements and tables and spreadsheet.
Nevertheless, I find that Mr Delaney’s withdrawal of $500,000 from the (omitted) Bank mortgage, his increasing the investment property mortgage loans by $420,000 and his withdrawal of $220,000 from his superannuation entitlements were not reasonable in all the circumstances of this marriage, especially in circumstances where the wife knew nothing of those withdrawals beforehand.
I find that the amount of the withdrawals, more than a million dollars, makes it appropriate for the court to make an adjustment to the wife of 20 percent for that conduct.
Had there not been some evidence that some of those monies, in an unquantifiable sum, were spent for reasonable joint purposes, that adjustment would have been greater.
Conclusion Issue H
When the above evidence is considered as a whole, I find that it is appropriate to adjust the parties’ contribution-based entitlements 29% to the wife after considering the matters set out in s.75(2) of the Act.
That is, the wife should receive 76% of the net assets of the parties (47 minus 1 plus 10 plus 20), and the husband 24% (53 plus 1 minus 10 minus 20).
On the basis of the above matters, what orders should be made to effect a just and equitable settlement between the parties?
The parties’ assets have a net worth of $671,561. Their combined superannuation is worth $131,239.
Therefore, if the wife is to retain 76% of the assets, she should retain property worth about $510,386.
The husband should receive property worth about $161,175.
Their current superannuation entitlements should be equalised.
Conclusion Issue I
Because of the level of the parties’ debt, it is highly unlikely that either will be able to borrow further against current assets in order to pay the other for his/her equity in the property pool.
In those circumstances, the only realistic option is to sell all the parties’ real estate and divide the net proceeds of sale from those properties such that the wife receives 76% of the net assets overall and the husband 24%.
That is, the properties will be sold and the debts paid from the proceeds, and when the retention by the parties of items like motor vehicles, household contents, shares and the like is taken into account, the wife should receive property worth 76% of the total value and the husband 24%.
There are a few small issues which need to be taken into account when that calculation is performed.
First, there was agreement during the proceedings, despite orders stating otherwise, that the husband would pay Mr Laidler’s fees for the family reports at first instance, with the wife’s share coming from her share of the property settlement.
Therefore, whatever the final cash outcome to each party is, an amount equal to half of Mr Laidler’s fees should be paid from the wife’s share to the husband unless the parties have already shared that expense.
Second, the husband’s evidence at trial was that he retained monies in his (omitted) Bank account of about $37,000 as well as the $57,000 cheque from the (omitted) Bank.
I will make an order that the bank cheque, and that $37,000 be immediately deposited into the parties’ (omitted) Bank home loan so as to reduce the parties’ debt before the sale of the three real properties.
If Mr Delaney has already spent those monies, then a sum equal to 76% of the unrecoverable monies will be taken from his share and transferred to the wife in the final calculations.
The parties’ remaining superannuation entitlements should be equalised, as I have already accounted for Mr Delaney’s withdrawal of $220,000 of his superannuation under s.75(2)(o) above.
That is, each should have superannuation entitlements worth $65,619.50.
The wife’s current superannuation entitlement is worth $115,354. The husband’s is worth $15,885.
It is therefore appropriate for the court to order a superannuation split in the sum of $49,735 from the wife’s superannuation interest to the husband’s, and I will make that order.
I certify that the preceding six hundred and seventy-three (673) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 2 June 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Costs
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Jurisdiction
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Procedural Fairness
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Remedies
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Res Judicata
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