Doven and Doven (No 2)
[2012] FamCA 598
•26 July 2012
FAMILY COURT OF AUSTRALIA
| DOVEN & DOVEN (NO. 2) | [2012] FamCA 598 |
| FAMILY LAW – CHILDREN – Orders by Consent – Orders by determination - With whom a child lives – With whom a child spends time – With whom a child communicates – Allegations of violence – Allegation that children are at unacceptable risk in the care of the mother – Orders that children live with the mother – Mother found not to be unacceptable risk to the children. FAMILY LAW – PROPERTY – Superannuation – Contributions - Add-Backs. |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (1),(2), (3), (4),(4A) and 79 |
| Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 |
| APPLICANT: | Ms Doven |
| RESPONDENT: | Mr Doven |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs Kate Mooney |
| FILE NUMBER: | HBC | 553 | of | 2009 |
| DATE DELIVERED: | 26 July 2012 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 14, 15, 16, 17 & 18 May 2012. Written submissions completed 5 July 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tim Bugg |
| SOLICITOR FOR THE APPLICANT: | M+K Dobson Mitchell Allport |
| COUNSEL FOR THE RESPONDENT: | Mr Tony FitzGerald |
| SOLICITOR FOR THE RESPONDENT: | Fitzgerald & Browne |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Kate Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Kate Mooney |
Orders
CHILDREN
All previous parenting orders in relation to R Doven born August 2003 (“R”) and J Doven born January 2006 (“J”) (“the children”) are discharged.
Ms Doven (“the mother”) and Mr Doven (“the father”) have equal shared parental responsibility for the children.
The children shall live with the mother except as is otherwise provided in these orders or as otherwise agreed in writing between the parties.
The child R shall live with the father during school term on a two week alternating cycle as follows:-
(a) in week one, from 6.00pm Friday until 6.00pm the following Tuesday, and
(b) in week two, from 6.00pm Thursday until 6.00pm on Friday.
The child J shall live with the father during school term on a two week alternating cycle as follows:-
(a) in week one, from 6.00pm Sunday until 6.00pm Wednesday and
(b) in week two, from 6.00pm Monday until 6.00pm Wednesday.
In mid term school holidays (except Easter if it is a mid term school holiday), R live with the father for first half of all such holidays, and with the mother for the second half of all such holidays.
In mid term school holidays (except Easter if it is a mid term school holiday), J live with each party on a “four night on, four night off” basis commencing with the father.
In 2013 and each alternate year thereafter, the children live with the father for the first half of each Easter break and the second half with the mother.
In 2014 and each alternate year thereafter, the children live with the mother for the first half of each Easter break and the second half with the father.
In 2012 and each alternate year thereafter, the children live with the mother from 6.00pm Christmas Eve until 6.00pm on Christmas Day and then with the father from 6.00pm on Christmas Day until 6.00pm Boxing Day.
In 2013 and each alternate year thereafter, the children live with the father from 6.00pm Christmas Eve until 6.00pm on Christmas Day and then with the mother from 6.00pm Christmas Day until 6.00pm Boxing Day.
Subject to the orders for Christmas Day, the children live on a week about basis with each party in each summer school holiday commencing with the father. The child R’s time shall start and end at 6.00pm on a Friday and the child J’s time shall start an end at 6.00pm on a Sunday. If there are “extra” days at the beginning of any such holiday, the children shall remain with the party she was already living with until time with the other party starts in accordance with this order. If there are “extra” days at end of any such holiday, the children shall live with the mother.
In 2012 and each alternate year after the children spend time with the mother from 6.00 p.m. on the day before each of the children’s and the mother’s birthdays until 6.00 p.m. on those birthdays.
In 2012 and each alternate year after the children spend time with the father from 6.00 p.m. on the day of each of the children’s and the father’s birthdays until 6.00 p.m. on the next day.
In 2013 and each alternate year after the children spend time with the father from 6.00 p.m. on the day before each of the children’s and the father’s birthdays until 6.00 p.m. on those birthdays.
In 2013 and each alternate year after the children spend time with the mother from 6.00 p.m. on each on the children’s and the mother’s birthdays until 6.00 p.m. the next day.
All changeovers will be at McDonalds Family Restaurant X, or as otherwise agreed in writing.
The parties do all acts and sign all documents to the effect that paediatrician, Dr P, be the primary medical care provider for J. If he is not available then such care provider will be a paediatrician agreed in writing by the parties or failing agreement, a paediatrician recommended by the Head of the Department of Paediatrics at the … Hospital.
Save in emergencies, the parties are restrained from taking J to any general medical practitioner, apart from Dr O at the H Medical Centre and failing him being available, a doctor nominated by the Manager of that practice.
The parties each shall adopt and promptly implement the relevant paediatrician’s and general medical practitioner’s recommendations, medical treatment, and care plans for J.
Despite any objection by the mother, the father be at liberty to embark upon any complementary therapy or medical care for J, conditional upon:
(a)such treatment of J being approved in writing by both her paediatrician and general medical practitioner;
(b)such treatment does not require the mother to do anything, involve her in expense nor must it impinge on J’s time with her;
(c)the father keeps the mother, the child’s paediatrician and general practitioner fully appraised in writing of the proposed treatment, the treatment and the outcomes (or perceived outcomes) of the treatment.
(d)it does not require the mother to change or add to her daily routine with J.
Neither party shall commit either child to attending regular extra-curricular activities in the other party’s time, except for matches, concerts or the like which are associated with an activity but not a regular event.
Neither party shall denigrate the other party nor members of the other parties’ family in the presence or hearing of the children.
Each party shall forthwith inform the other by telephone, email or text of any adverse health event (save for minor matters not requiring medical attention) for each of the children.
Each party be permitted to attend any medical event occurring at a Hospital for either child regardless of which parent has responsibility for the children at that time.
If either party attends a medical event with either child where any medical treatment or any care directions are given, that party will fully advise the other of such medical direction by email or text within twenty four (24) hours of its receipt.
The parties shall keep each other informed of J’s routine, appointments, well-being, progress, regular diet, general health matters and any changes therein, by way of an email to be forwarded at least twelve (12) hours prior to any changeover by the relinquishing parent or if agreed in writing through the parties through a Facebook approach.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
PROPERTY
Within twenty eight (28) days of the date of this Order the father sign all documents to transfer to the mother all his interest in the former matrimonial home at Suburb X (“the former matrimonial home”), subject to the mortgage to the ANZ Bank (“the home mortgage”) affecting that property.
Contemporaneously with the transfer of the former matrimonial home to the mother, she shall cause the father to be released and/or discharged from the ANZ liability of about $632,626 and his personal covenants. The mother shall assume the sole liability for the parties’ obligations and shall indemnify the father in respect of that liability.
The mother shall retain all that her right title and interest in the residential properties at DD in Tasmania, RR in Tasmania and AA in Tasmania. The father shall sign all documents to give effect to this declaration.
The father shall retain his interest in the residential property at PP in Tasmania. The mother shall sign all documents to give effect to this declaration.
Within two (2) months from the date of this Order the father shall pay to the mother the sum of $28,791 (being the payment due to her of $31,356 less $2,565 - the money due to the father from the joint account as agreed)
The mother shall retain the credit balance of the money contained in the joint account namely ANZ Account number …45, and the father shall sign all documents to transfer the funds in that account to the mother within two (2) weeks from the date of this order.
The father shall retain the sum of $9,800 being the proceeds of sale from the father’s boat.
The mother relinquish in favour of the father and where necessary transfer to him any interest she may have in:-
(a) any monies, at banks, savings, shares or investments in the sole name of the father or under his exclusive control;
(b) any entitlement of the father to his superannuation;
(c) any policy of life assurance or insurance owned by the father;
(d) his agreed chattels and computer including furniture and household contents, and tools in his possession;
(e) his Land Cruiser motor vehicle, registration number … in his possession;
(f) the Trailer, registration number … in his possession.
(g) the add-backs being the sums of $57,133 and $17,000
to the intent the father shall be the sole and absolute and legal and beneficial owner thereof or beneficially entitled thereto as the case may be.
The father relinquish in favour of the mother and where necessary transfer to her any interest he may have in:-
(a) any monies, at banks, savings, shares or investments in the sole name of the mother or under her exclusive control, including the ANZ account number …45 ;
(b) the mother’s superannuation of about $17,635;
(c) any policy of life assurance or insurance owned by the mother;
(d) the mother’s chattels and computer including all furniture and household contents in her possession;
(e) the Land Rover motor vehicle, registration number … in her possession; and
(f) any real estate in the sole name of the mother.
to the intent the mother shall be the sole and absolute and legal and beneficial owner thereof or beneficially entitled thereto as the case may be.
Each of the parties do all such acts and things and execute all such documents as they may be required to do and execute to give effect to the terms of this Order
Save to any cost applications be made in accordance with the Family Law Rules 2004 (Cth), all extant applications are dismissed.
The matter be removed from the list of cases requiring determination.
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Doven & Doven has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 553 of 2009
| Ms Doven |
Applicant
And
| Mr Doven |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
Ms Doven (“the mother”) and Mr Doven (“the father”) are engaged in Family Law proceedings relating to the parenting arrangements for their children, namely R (aged eight, almost nine at the date of the hearing) and J (aged six at the date of the hearing).
In addition the parties have been unable to resolve the question of the division of their property following separation.
At the conclusion of evidence there was insufficient time for oral submissions to be made. As a result I directed that the parties make written submissions. Submissions were filed by the Independent Children's Lawyer as to parenting and by counsel for the father as to both children’s and property issues. Counsel for the mother did not file any final submissions until 5 July 2012, some weeks after they were due. The father was entitled to reply but did not file written submissions. During the period the reasons were reserved I asked my associate to write to the parties’ counsel to ascertain whether they had any submissions to make in respect of my proposal that rather than directing the agreed payment of $2,562 to the father by the mother, and either the $7,000 or the $12,383 payment by the father to the mother from the joint account, the mother retain the joint account at a value of $83,271 less the two amounts and direct that the mother pay to the father $2,562. If there was to be any money payable to the mother then the sum of $2,562 would be deducted from that sum to give the same outcome or if there was money payable by the mother to the father I would add that sum. Counsel was given until the 18 of July 2012 to provide submissions, but none were made. Accordingly, delivery of these reasons was delayed.
PARENTING ISSUES
The parties are in dispute in relation to parental responsibility. The father seeks orders for sole parental responsibility and the mother and the Independent Children's Lawyer seek orders for equal shared parental responsibility.
As to the primary living arrangements each of the parents submitted that he or she should be the primary carer for both of the children and that the other parent should have significant and substantial unsupervised time with the children. The Independent Children's Lawyer submitted that the children should live primarily with the mother.
The parties and Independent Children's Lawyer are in agreement that R should spend equal time with each parent over the school holidays. During the hearing I was informed by counsel that the parties and the Independent Children's Lawyer are substantially in agreement with regard to special days.
There are various other ancillary issues arising in respect of parenting.
The final submissions of the Independent Children's Lawyer were that the Court should make orders substantially as follows:-
(a)Equal shared parental responsibility,
(b)R live with the father during school term on a two week cycle, namely week one, from Thursday until Monday and in week two, from after school Thursday until commencement of school on Friday.
(c)J live with the father during school term on a two week cycle namely, in week one, from Monday to Wednesday and in week two, from Sunday until Wednesday.
(d)As to school holidays, substantially equal in terms of J and “four night on, four night off” basis in terms of J, except summer holidays which are week about.
(e)Equal time over Easter, summer holiday, Christmas, the children’s birthdays.
(f)Arrangements for a paediatrician and general practitioner, with provisions for keeping each parent informed and a method of enabling other treatment for J.
(g)The proposed orders also seek to address non denigration, respect for the time each parent spends with each child and communication.
The final submissions made on behalf of the mother were for orders substantially in the same terms as those sought by the Independent Children's Lawyer.
The children’s issues are made challenging by the health difficulties confronted by J and a problematic history in respect of the parents care of J in terms of that history.
PROPERTY ISSUES
As to property there are limited issues as to the pool of assets to the extent of less than $20,000 to which I will deal later in these reasons.
As to contribution the father’s case is that the parties have contributed equally. The mother’s case is that her contributions are greater than the father’s and the contributions ought to be between 60 and 70 per cent by her and 30 to 40 per cent by the father.
In terms of the other factors, the mother says that there should be an adjustment in her favour to the extent of between 15 to 20 per cent, making an overall division of 80 per cent to the mother and 20 per cent to the father.
The father submits that if there is a determination of equal contribution by the parties that there should only be an adjustment in favour of the mother in terms of the other factors if the mother is successful in obtaining an order that R spend four nights with him and J spends two nights with him per fortnight. He says that if he is successful in his application and children spend four nights per fortnight with the mother there should be a ten per cent adjustment in his favour.
BACKGROUND
The parties commenced living together in 1996. They married in April 2002 and physically separated in mid 2009. They were subsequently divorced.
The mother has been the primary carer of the children for most of their lives except for the period to which I will allude to later in these reasons.
The child J suffers from significant severe intellectual disabilities and ongoing health difficulties. Of J, Dr A observes as follows:-[1]
[she is] a very complex little girl with severe impairments in all areas of her development. She had no intentional form of communication except for groaning and crying. She made no eye contact with anyone, showed no interest in any visual stimulation and did not use her hands functionally. [J] was able to get herself in and out of sitting but was unable to stand or walk independently.
[1] Exhibit ICL2 - At pages 6 and 7 of Dr A’s report dated 13 December 2011.
Dr A concluded, and I accept, that:-[2]
[J] suffers from severe epilepsy for which no specific cause has been identified. Her epilepsy has proved difficult to control with anti convulsive medication although her parents both state that her epilepsy was being controlled by dietary medication.
[2] Ibid at page 21.
Not unexpectedly, both parents have struggled with their response to J’s health difficulties. Initially the child was placed on anti-convulsive medication. In late 2007, at the suggestion of the father, the parents changed J’s diet, breastfeeding was stopped and the child was put on a celiac diet. The parents stopped giving the child anti-convulsive medication. The father asserted that this was a decision of the mother; however, for the reasons specified elsewhere, I do not believe him. At that time the child ceased for a time to be medicated with anti-convulsive medication.
The seizures initially abated but J’s health deteriorated to such an extent that she was admitted to Hospital in July 2008 suffering from ‘severe neglect and malnourishment’.
The Tasmanian Child Protection Authorities became involved and J was placed in foster care in early August 2008. Prior to July 2008 the mother had missed a number of appointments between J and her paediatrician.
In early 2009 J was re-unified with the family although the care and protection orders remained in place until January 2010.
The father wholly blames the mother for the circumstances in which the child found herself and takes no responsibility for those circumstances. In terms of the mother, she has some but limited insight into the events at that time.
The mother’s health, particularly around 2008 had been problematic. The mother had been involved in a motor vehicle accident about twenty six years ago and suffered serious injuries. Following that accident the mother spent about two months in hospital and was away from work for about six months. She received substantial compensation as a result of the injuries she sustained in that accident.
In a report dated March 1991 Dr W, a psychiatrist, said:-[3]
Apart from the general psychological problems that might be expected in any young person following the severe injuries she sustained in an RTA in 1986, she also satisfied the criteria for a diagnosis of Post-Traumatic-Stress Disorder.
[3] Annexure P of the father’s Affidavit filed 10 May 2012.
He went on to observe that she required some psychiatric and psychological assistance.
When Dr A interviewed the mother late in 2011 he observed of her:-[4]
At interview [the mother] presented as a neatly dressed 42 year old woman who often had difficulty giving concise or specific answers to questions. Although she became distressed at times during the interview there was no pervasive disturbance of mood and no evidence of an underlying psychotic illness. Although she is reported to have made a full recovery from the head injury she suffered 25 years ago, some aspects of her presentation are consistent with an Acquired Brain Injury that may have caused her social withdrawal, as suggested by Dr [W], or more subtle impairment of executive functioning. The latter could only be confirmed or ruled out by careful neuropsychological assessment.
The extent to which any residual effects of her head injury may be an important factor in [the mother’s] response to [J’s] illness and failure to respond to routine treatment is difficult to determine. The extent of [the mother’s] withdrawal and isolation of herself, [R] and [J] can be understood as the response of a vulnerable, desperate mother seeking to get help for her child through avenues other than conventional medicine. Nevertheless such was her despair that she appears to have been unaware of the deterioration in [J’s] condition. Her persistence in this restrictive diet seems to have been reinforced by her belief that the diet had controlled [J’s] seizures. During the assessment interview there was no evidence that this had been the result of an underlying psychosis. There was no evidence that [the mother] is currently suffering from any acute Axis 1 DSM-IV psychiatric disorder.
[4] Exhibit ICL2 - At page 23 of Dr A’s report dated 13 December 2011.
He then concluded:-[5]
[J] was removed from her parent’s care because of concerns that [the mother], in particular, was compromising [J’s] well being by single-mindedly pursuing dietary restriction in the belief that this would control [J’s] epilepsy. This was not neglect in the usual sense of the word [emphasis added], as it involved an active decision to ‘protect’ [J] from supposed environmental toxins and toxic dietary substances. The main concern is that [the mother] could not recognise that her actions were seriously compromising [J’s] well being to the extent that [J] would almost certainly have died if she had not been taken to hospital at that time.
[5] Ibid at page 25.
An assessment of the mother was undertaken at the time that J was hospitalised in 2008 which was summed up by Dr A when he observed of the mother:-[6]
As indicated earlier, [the mother] was hospitalised at the RHH for psychiatric assessment. Dr [V] indicated that [the mother] did not have any Axis 1 DSM-IV mental disorder, a finding confirmed by Dr [N], psychiatrist, whom [the mother] continued to see for almost twelve months. Dr [G], psychiatrist, also prepared a medico-legal report for [as law firm], in relation to [the mother]. Dr [G] concluded that his mental status examination revealed no current abnormality. He observed that she had made a cognitive recovery from her traumatic brain damage but there may have been some residual personality changes. Based presumably on [the father’s] description of his wife, Dr [G] suggests that [the mother] may have suffered from a Dissociative Disorder, which was in full remission, and for which there was no evidence at interview.
[6] Ibid at pages 22 and 23.
The parties physically separated in the middle of 2009 after an event where the mother said she was the victim of violence by the father.
The parents have been involved in conflict at various and increasing levels over that time, both in relation to the care of the children, particularly J, the time the children spend with each parent and in terms of their property.
The consequence of the parties being unable and/or unwilling to resolve issues was that this led to a five day hearing of the dispute in the Family Court before me at great financial and emotional cost to the parties, their children and their families.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context to which the statement is made.
CHILDREN’S MATTERS
The provisions in the Family Law Act1975 (Cth) (“the Family Law Act”) relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Family Law Act, which provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Family Law Act.
There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.
If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable. Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.
THE WITNESSES
The father
The father relied upon his affidavit filed 10 May 2012 and his financial statement filed 11 May 2012. His affidavit was an extensive document containing eighty pages of typed material and about one hundred pages of annexure. Part of the material relied upon by the father was DVDs particularly in relation to a DVD of the child being fed in 2008 and the child’s distended stomach in 2011.
I declined to accept either of the DVDs into evidence. In relation to J’s distended stomach, the father complained that the mother had not treated that condition seriously. The father deposed that he reported the mother’s behaviour, in 2011, to child welfare authorities and had taken J to see his own doctor, Dr C. The child was taken to Hospital where the problem was diagnosed as ‘gas’. At the time that I rejected that particular evidence I indicated that I had no medical training and that there were reports as to how I ought to treat the condition and that my observation of a DVD would serve no purpose.
When cross-examined by the Independent Children’s Lawyer, the father made it clear that he ‘wanted to get his story across’. I am satisfied that he used those words and it was part of his endeavour to have people understand that he was ‘innocent’ of the events of July 2008 and that the fault rested solely with the mother.
Dr A made observations in his report[7] of some controlling behaviour by the father. Dr A was cross-examined in relation to his reliance on some other material in terms of that observation. Dr A said that his assessment of the father’s demeanour was made having regard to the course of the whole interview.
[7] Ibid at page 28.
I observed a number of instances of this controlling type behaviour, such as that which Dr A had described. I raised this concern with counsel for the father at the conclusion of the father’s cross-examination. An example of one of these instances was when the father was being cross-examined about an event at the Hospital in July/August 2008. The Independent Children’s Lawyer read out a quotation, the father acknowledged it but then wanted to add something. The Independent Children’s Lawyer thanked him for his answer and said that she just wanted to confirm that the note was correct. The father persisted and persisted and eventually changed his answer so that he could get his point across. Another example was in terms of his evidence in relation to Mrs U and what she heard or did not hear in 2011.
The father, in evidence, pressed for there to be telephone communication between him and the mother. I asked him how this would work bearing in mind the mother’s fear of him. The father acknowledged that the mother was afraid of him (albeit he asserted that there was no reason for her to be afraid) but went on to say that it was the best way of communication. He had little insight and little regard for the mother’s concerns.
During cross-examination of the mother there was a question about why she had not responded quickly enough to the father’s letter sent on 15 April 2011 about Easter time. The cross-examination was explicitly critical of the mother for taking time to respond and for not responding in those five days.
The letter[8] to which the father’s counsel referred to was forwarded to the mother’s solicitor at about 6.00pm on a Friday evening (after the usual close of business). The father then retained R the following week and there was communication between the parties in relation to the retention of the child. The father’s criticism of the mother at this time was unwarranted having regard to the surrounding circumstances and in the light of the high conflict in other areas at that time.
[8] Exhibit M3.
The father complained that the mother did not consent to R travelling to the mainland to visit an elderly relative of his. The mother did consent, but on a different weekend, as she was concerned about the child’s health at that time together with the then difficulties with flights in and out of Tasmania due to volcanic ash. The father’s criticism of the mother was again unwarranted, and reflected on his lack of insight.
The father from time to time shows a controlling and insensitive approach in his dealings with the mother and it is unlikely that he will have any serious regard to the mother’s views if they are different to his own.
The father is aware that the mother has concerns about Dr C (whether those concerns are valid or not). Yet the father persists with his determination that Dr C be the primary carer of J. In cross-examination by the Independent Children’s Lawyer the father agreed that the X Medical Centre was appropriate although that was grudgingly given, he clearly prefers Dr C notwithstanding the mother’s concerns about Dr C.
The father complained about some treatment offered to J by a doctor at the X Medical Centre but has not directly communicated with that doctor in relation to those concerns.
The father was cross-examined in relation to a part in Dr A’s report where he (Dr A) said of the father:-[9]
He [the father] described [the mother] as having ‘an Aspergery type thing’ or a ‘Cassandra Syndrome’.
[9] Ibid at page 15.
The father, when questioned about this, said that Dr A had asked him about the Aspergers and that was how it arose. Dr A said that he had asked the father ‘is there anything else’ or words to that effect and the father said ‘the mother is unwell while we were together and I managed her … I believe she has an Aspersers type thing and Cassandra Syndrome’.
I prefer the evidence of Dr A, which is supported by his contemporaneous note. The father’s evidence on this point was crafted in a mendacious way to create an impression that Dr A identified the illness he believed the mother was suffering. When pressed, he prevaricated in relation to his evidence on this point.
The father prevaricated in relation to his evidence about financial matters which I have referred to, in part, in contributions, with particular reference to the trailer, the add-backs and the hours that he worked.
The father asserted that Dr A had made a mistake in terms of what the father’s proposals were with regard to the children. That was that the children spend four days with the mother and the remainder of the time with him. Dr A’s report, memory and notes were that the father said that the children would be primarily with the mother but that the father would have them on weekends and would be their primary carer with the mother taking them for most of the time. Again the father obfuscated in terms of that evidence. The father asserted that Dr A got it wrong. That is not the case.
The father was asked about the recommendations of Dr A and his evidence was, in essence, that whilst Dr A was an educated man (there was no challenge to his qualifications) that he (the father) knew his children better. As such he did not agree that any change should proceed gradually and that the change should be immediate.
The father is of the view that the mother suffers from Aspergers or some other Autism type illness. He says he is not an expert but he has clearly undertaken research and he has concluded, in his own mind, that that is a condition to which the mother suffers. The father does not accept the view of Dr A that the mother shows no symptoms of Aspergers nor that the ‘Cassandra Syndrome’ is not a registered psychological or psychiatric diagnosis.
The father told Dr E that the mother suffered from Aspergers and he also told Ms S, the Family Consultant. The father obfuscated when cross examined in terms of this evidence, and when pressed it was apparent that the father clearly believes that the mother suffers from that condition, irrespective of specialist medical opinion.
The father was cross-examined about his assertion that the mother ‘screamed and yelled’ when he went to visit her in hospital in mid 2008. He was asked about this claim in the absence of corroboration in the notes of the nursing staff at the time. He prevaricated in his answer. The father showed a tendency to exaggerate in terms of some of his evidence.
In relation to the father’s assertion that he disagreed with the cessation of J’s medication, there is a note in the mother’s diary which shows the father was involved in that decision on 19 December 2007.[10] This is indicative of the joint attempts of both parties to cease the medication for the child. The father blames the mother for the events leading up to the hospitalisation of the child in July 2008 and he has reconstructed evidence as to his role in that series of events.
[10] Page 14 of annexure B of the father’s affidavit filed the 10 May 2012.
In relation to the father’s paid work he indicated to the Independent Children’s Lawyer that he can work at home and be less “hands on” in terms of his work. His evidence of his work is not satisfactory. The father has the capacity to work and earn an income but chooses not to do so. The father claimed that he worked long hours throughout the marriage but this is not reflected in his income. The father spent, on his evidence, somewhere between $50,000 and $75,000 on a trailer after separation, which now has a net worth of $1,200, and yet he was not providing income to support the children when he could have done so.
The father complained about the mother not informing him of a minor seizure of J when the father was on holidays overseas. The mother informed him of that event immediately on his return. The mother was the subject of aggressive cross-examination in relation to this issue. The mother adopted a sensible parenting approach and kept the father informed, in a sensitive way having regard to his circumstances.
In a number of ways the father seems to have different standards as to his and the mother’s obligation to inform. There was an event when J was with him, post separation, and the child choked. The father said he provided CPR and two ambulances attended. The father did not promptly inform the mother of the detail of that event
The father is a determined forceful person whose view seems to be fixed. The quality and reliability father’s evidence is unsatisfactory and problematic. I am not satisfied that the father was frank in his evidence and as such the assertions of fact by him have been treated with great care.
The mother
The mother relied upon her affidavit filed 11 May 2012 and her financial statement filed 8 May 2012. In her financial statement the mother described her employment as a full time carer and explained that she receives rent from her investment unit, family assistance and a carer’s allowance. She asserted that she receives no child support from the father (this is probably incorrect although the amount paid by the father of $25 per month would not significantly alter her financial circumstances).
The mother seeks orders that the father transfer to her a property at SS, in Tasmania subject to mortgages affecting that property. The father opposes the transfer of that property to the mother.
The mother has kept detailed diaries throughout her life and some of the material used in these proceedings was taken from those diaries. Her evidence was that her notes were generally written contemporaneously although there was some evidence that the mother put in some additions particularly in 2008.
There was an issue of fact as to whether the mother was emotionally isolated. There is no doubt that she did not cope well after the birth of J and particularly when the child began fitting and significantly in the first half of 2008 and the later part of 2007. I do not accept that the mother was or is as isolated to the degree asserted by the father.
The mother engaged with the Early Childhood Intervention Service (“ECIS”) and has maintained regular contact with them since February 2008.
She has the support of her father and her aunt and uncle (Mr and Mrs U). It was asserted by the father that the mother was at times hysterical and engaged in verbal abuse. The mother denied those assertions. I do not accept that the mother was as calm and as placid as she asserted. I find that she displayed some episodes of anger and distress and perhaps inappropriate language, but not to the extent alleged by the father.
The mother was cross-examined in relation to the care of J from late 2007 until mid 2008. The mother acknowledged some level of culpability but lacks some insight and some levels of recognition of the events at that time.
The mother said that Dr P did not speak to her about the need to keep appointments. I am not satisfied that this reflected the reality of the circumstances. I do accept that it was the joint decision of the mother and father to take the child J off her anti seizure medication.
The mother was admitted to a psychiatric unit at the Hospital in mid 2008 after the deterioration of the health of J.
I do not accept that the mother kicked the father or held the knife as asserted by him. The evidence in his affidavit was non-specific and when asked in cross examination the events were clearly innocuous.
There was some evidence from a medical practitioner that the mother was suffering from a disassociated state in 2007/2008. That diagnosis was queried by Dr A and it seems by Dr V.
Their view was that :-
Dr [V] indicated that [the mother] did not have any Axis 1 DSM-IV mental disorder, a finding confirmed by Dr [N], psychiatrist, whom [the mother] continued to see for almost twelve months. Dr [G], psychiatrist, also prepared a medico-legal report for [a law firm], in relation to [the mother]. Dr [G] concluded that his mental status examination revealed no current abnormality. He observed that she had made a cognitive recovery from her traumatic brain damage but there may have been some residual personality changes. Based presumably on [the father’s] description of his wife, Dr [G] suggests that [the mother] may have suffered from a Dissociative Disorder, which was in full remission, and for which there was no evidence at interview.
It is clear that the mother had little insight into her health as of 2008 and that the mother suffered a closed head injury in a motor vehicle accident in 1986.
The mother denied the nature of some of the conversation with Dr C. Having regard to her health at that time I am not convinced that her recollections are entirely accurate.
The mother was cross-examined in relation to showing a photograph of a dirty nappy to R. She had difficulty in acknowledging the inappropriateness of that approach. She obfuscated in regard to this evidence.
The mother was cross-examined by the Independent Children’s Lawyer and the mother conceded that R’s school report was very good over the years notwithstanding the significant events of J’s hospitalisation in 2008 and physical separation of her parents in 2009.
The mother conceded that her communication with the father is not good. An example of this was when the mother had concerns about the father smacking the child she did not contact the father about those concerns other than eventually through her solicitors and in her affidavits.
The mother generally agreed with the propositions put by the Independent Children’s Lawyer that there might be some benefit in the children having some additional time with the father. The mother has also conceded that it would be better for both children to have one to one time with each parent. It is clear that whoever is looking after J needs to be vigilant.
Some of the mother’s solutions to conflict are not well thought through. She sends R to the father in her school uniform because she is concerned about clothes not coming back. The mother said she was not worried about the retention of clothes, I do not believe her in respect of that evidence.
In essence the mother endeavoured to tell the truth except when it related to her own behaviour and her own parenting. When she was presented with information with regard to that she endeavoured to minimise her culpability and present her evidence in a reconstructed sense.
I have had regard to those concerns when assessing her evidence.
Mr U
Mr U is the mother’s uncle. He is a retired professional and his evidence was contained in his affidavit filed 11 May 2012.
Mr U was an impressive witness. He gave evidence frankly and clearly. He denied he was rude and turned his back on the father. Mr U said that if he asked questions it was with permission and that he did not talk over people.
He is a forceful character. He gave evidence of some aspects of the father’s financial circumstances at the commencement of the parties’ relationship and I accept that evidence.
Mr U confirmed that he and his wife would normally see the mother on a weekly basis and they would maintain good telephone communication.
I generally accept his evidence.
Mrs U
Mrs U is the mother’s aunt and is the wife of Mr U. She provided an affidavit filed 11 May 2012, dealing with a number of events and her regular contact with the mother and the children.
She provided some character evidence as to the mother’s parenting. I am satisfied this was given on a subjective basis.
Mrs U provided evidence of interactions between the mother and the father in 2011. She gave instances of the father using demeaning language such as ‘are you the minder today’? or [‘the mother’] had tried to kill [J]; ‘it is war between us’. I accept that evidence.
Mrs U gave evidence of a statement made by R about the events of two years before. Having regard to the comments made by the Family Consultant, Ms S, I am satisfied that R may have said those words but they may well have been echoes of statements made by the mother.
Mrs U gave evidence of clear tension and at times inappropriate language, primarily by the father, at changeover. I generally accept her evidence albeit I see it as somewhat partisan evidence and through the subjective views of Mrs U. I make no criticism of her.
She and her husband provide significant support for the mother and she is assertive in terms of the mother’s care of the children.
Mr K
The mother’s father Mr K (the children’s maternal grandfather) provided evidence contained in his affidavit filed 8 May 2012. The maternal grandfather is supportive of his daughter and she keeps in regular contact with him.
It was asserted by the father that the maternal grandfather had said to him ‘you are not wanted here’. I prefer Mr K’s explanation of the events that day, which differ from the recollections of the father.
It was clear that the relationship between the maternal grandfather and his daughter was not working particularly well during the course of the parties’ marriage but it has been restored since their separation.
He described the mother as becoming more serious after her 1986 accident. He was a frank witness from a subjective point of view.
Dr A
As I have discussed elsewhere, Dr A prepared a report[11] dated 13 December 2011 in relation to the parties and as a family report. Dr A was appointed as a single expert and there was no issue as to his qualifications.
[11] Exhibit ICL2.
He indicated the mother suffered severe injuries in a 1986 motor vehicle accident but he opined that there might be changes in judgment, emotional regulation and some subtle personality changes. He was convinced that there were no symptoms in the mother of Aspergers syndrome. He did not undertake detailed testing in that area but he said that it was a significant part of his practice in relation to children and that there were no issues there, which would lean towards a diagnosis in that respect.
He agreed with the view of Dr V that in 2008 the mother’s condition was a manifestation of the awful stress, which she was enduring, and not a dissociative state.
Dr A concluded that there remains a risk with regard to the events of 2008 and the mother’s (lack of intervention). It is an increased risk but Dr A’s view was that the orders proposed by the Independent Children’s Lawyer, minimise those risks. I accept that evidence.
On the other hand the father presents as a risk because of his dominant and controlling approach and his determination that his way is the best way irrespective of the views of the others. The father was at times dismissive of the views of some doctors (other than Dr C with whom he agrees) and his approach with the foster carers in 2008 was controlling and indicative of some intimidatory behaviour.
Making orders that the children primarily live with the father and he has sole parental responsibility would also expose the children to risk particularly in terms of the father’s propensity to self-diagnose. That can at some levels be ameliorated by the orders proposed by the Independent Children’s Lawyer that any of the ideas and investigations recommended by the father ought to be considered by the paediatrician and the child J’s general practitioner and approved by both of them.
Notwithstanding the mother’s brain injury Dr A thought she functioned in a reasonable confident way except in the eight months up to July 2008 but that it was (and I agree) a joint approach with regard to the care of the child.
Dr A gave evidence that it would be of value for the children to spend one to one time with each parent.
In terms of parental responsibility Dr A was concerned about the poor communication between the parents but was strongly of the view that it was better to have equal shared parental responsibility because of the inevitability of problems with regard to J into the future and the need for the parents to have some level of communication.
I accept Dr A’s assessment of the father’s interaction with the children.
Dr A was cross-examined in relation to some quotes he relied upon in his reports. There were some minor inaccuracies, however, that would not be surprising given the huge quantity of material. However I am satisfied that his material was thorough and his opinions were soundly based.
The appointment of permanent doctors, according to Dr A, would be of value as it would prevent ‘doctor shopping’ and creates an ongoing history for the child.
I accept Dr A’s evidence and his qualifications. The factual basis upon which his evidence is based is generally sound and reflects the findings made by me.
Ms S
Ms S is a family consultant (“the Family Consultant”) who prepared a Children and Parents Issue Assessment that was dated 20 December 2010[12] (about eighteen months prior to the hearing).
[12] Exhibit ICL1.
In her report she expressed some concerns about the mother including that the mother answered in a pedantic manner and appeared to have some rogue responses. This has to be seen however, in contrast to the mother’s relative animation when observed with the children later in the interview.
The father had asserted to the Family Consultant that the mother has a condition of high functioning Asperser’s syndrome. At some level this may have coloured the report of the Family Consultant. The Family Consultant was inquisitive about the mother’s inflexibility and attention to detail.
Her evidence was that it would be valuable for R to have some time alone with the father both during the week and during the holidays and with the mother.
With regard to the events in May 2009, which brought about physical separation of the parents, the view of the Family Consultant was that it was a one off situation or event. That assessment accords with the evidence of both parties although their views of it are markedly different.
The Family Consultant was shown R’s most recent school report, which she observed, was very good.
She was also concerned that the father was endeavouring to ‘shift the blame’ for J’s health difficulties to the mother.
Dr C
Dr C swore an affidavit filed 10 May 2012.
Dr C is a qualified general practitioner but uses a broader range of therapies and treatments in his practice. He provided a report in that affidavit. He has not seen the mother since 2008 and was highly critical of her.
In his report dated 26 September 2008 he says:- [13]
… [the mother] is a changed woman. Where initially she was resentful at any suggestions I made and quite obstructive and even obstreperous, seeing her recently she was gentle and responsive, supportive and quietly participated in the discussion in a normal way. Her interactions with [the father] appeared what would be considered normal of a husband and wife in their interactions and body language. However, the situation was completely different when they consulted me.
[13] Annexure B of the Affidavit of Dr C filed the 10 May 2012.
In his written report Dr C is scathing of the mother particularly at paragraph 17 where he says:-
In all consultations where she has been present, [the mother’s] communication with [the father] appeared self-centred. She has never displayed any mutual respect of [sic] showed any sense of caring or lovingness to her husband.
Dr C had little insight into the mother’s concerns if he were to treat the child J bearing in mind his support of the father and his [Dr C’s] clearly partisan comments in his affidavit.
Dr C was questioned by counsel for the mother in relation to some products that were sold to the father for J. His answers were at times misleading and at least contained elements of obfuscation.
After some cross-examination Dr C conceded that he may have made suggestions and issued scripts for products that were sold by his practice.
Dr C spoke with Dr A. Dr C told Dr A that he found the mother to be difficult and reluctant to take any advice contrary to her own views. This was bearing in mind that he had not consulted with her since mid 2008.
Dr C commented to Dr A about ‘how difficult working collaboratively with [the mother] had been” apart from the brief period following the child’s removal. And yet Dr C had not seen the mother as a patient since that time. In many ways this impeaches the quality of his evidence.
Dr C observed the poor state of the mother’s mental health prior to July 2008 and he also observed a significant change subsequently to that time which was reported in his affidavit.
Dr C’s reports were unbalanced and partisan and I give them little weight.
Ms D
Ms D provided an affidavit filed the 14 March 2012. Mrs D and her husband own the home in which the father lives. He lives there rent-free and Mrs D has provided the accommodation to him for about three and a half years. It is a one bedroom flat.
Mrs D is supportive of the father and her affidavit is of a ‘cheer squad’ variety. Many of her views of the mother have been coloured by assertions by the father. She is well meaning and provided assistance to the mother and J in 2008 when she was working with the ECIS. A number of her observations are not her own but a reflection of others.
Ms L
Ms L is the father’s partner and they have been together since March 2010. She provided an affidavit filed 10 May 2012.
When Ms L first came into the witness box she adopted quite a belligerent stance. When questioned by counsel for the mother this belligerence came out and Ms L showed greater aggression. It was necessary for me to intervene and explain the process. This had some calming effect but she remained agitated, aggressive and argumentative.
My initial view of her was not positive. When cross-examined by counsel for the Independent Children’s Lawyer evidence of past personal difficulties with regard to her family came out. I do not intend to relate the detail of those in these reasons other than I have had regard to it and, in part, it explained her behaviour when giving evidence.
Ms L is supportive of the father and sees him in a very subjective way. She asserts an almost ‘photographic memory’ about events and I do not accept that those recollections were accurate.
Ms Y
Ms Y provided an affidavit[14] in support of the father. Ms Y was not required for cross-examination. Accordingly, her evidence was admitted without controversy.
[14] Filed 10 May 2012.
Her evidence is not that of an expert, but simply as an alternative therapist who was engaged by the father. There was an issue of fact between the parties in relation to Ms Y. The father asserted that the mother had known about Ms Y for a year or so. The mother said she only heard about Ms Y through these proceedings. On balance I prefer the evidence of the mother.
When asked the father said he had not raised the therapies suggested by Ms Y with Dr P, including Ms Y’s suggestion that J travel overseas for a few months for treatment.
Dr C had made some enquiries as to the ‘therapy’ suggested by Ms Y in the United States for J. Having regard to the little weight I give to the evidence of Dr C and his partisan approach, his evidence in support of this therapy would not have persuaded me to permit that course.
Fortunately I do not have to make a determination in that regard. It is for the father to persuade both Dr P and J’s general practitioner that these therapies are of value. The only way the treatment could then occur is with the consent of the mother having regard to the orders to which the parties consented in terms of alternative therapies.
In any event, under the Family Law Act the father is prohibited from removing either child from the Commonwealth of Australia without the written consent of the mother or an order of a court exercising jurisdiction under the Act.
Dr G
Dr G’s report of 29 September 2008 was annexed to the mother’s affidavit and was read into evidence without objection. Dr G is a specialist medical practitioner who provided a report for the Tasmanian State Child Welfare Authorities.
In that report Dr G opined the following:-[15]
The mother was not suffering from a psychiatric disorder on discharge from hospital in July 2008.
[15] At Annexure B of the mother’s Affidavit filed 11 May 2012.
He diagnosed that prior to J’s admission to hospital in July 2008 the mother’s mental health affected her ability to exercise normal judgment and her mental defence mechanism was slipping from conscious awareness of unpleasant reality. Dr A or Dr V did not accept this diagnosis.
Dr G recommended psychiatric treatment into the future. Such treatment was necessary to reinforce insight into family matters. He went on to observe that:-[16]
Both [the father and mother] have learnt a bitter lesson and are now insightful so that they will be capable of raring their present family and any additions.
[The father and mother] struggled with and were frustrated by the ‘system’ which is understandable considering the number of persons involved (over fifty on my rough count) and inevitably conflicting and not always unbiased advice.
[16] Ibid at page 60.
I accept his evidence.
DISCUSSION AND FINDINGS
It was alleged that the father had said to Mrs U[17] on 31 March 2011 words to the effect that:
[the mother] had tried to kill [J] and it was only his intervention which prevented it.
[17] At paragraph 9 of the Affidavit of Mrs U filed 11 May 2012.
The father denied saying these words or similar words. Mrs U was clear in her assertions and there was evidence that Mrs U had become agitated when the father had made this serious allegation. For the reasons set out earlier, I prefer the evidence of Mrs U
The father asserted that the whole of the problem arising in the health difficulties of J in mid 2008 rested solely on the shoulders of the mother. For the reasons set out earlier, I do not believe him. He is a witness who has a tendency to reconstruct events, he shows lack of insight.
The father asked the mother in late 2007 to cease breast feeding J and place her on a celiac diet. The mother accepted and adopted the father’s request in this regard. The words the father used in this regard when he gave evidence were that ‘he convinced the mother’.
The father asserted that he disagreed with the cessation of the child J’s medication and says that he complained about that to Dr C, Dr P and to the State Welfare Authorities. There is no evidence that he did so and I do not believe him. At the suggestion of the father, the parties made a joint decision to stop the medication.
In 2007 and 2008 this family was in crisis. The mother was not coping and both parents were endeavouring to find solutions to the medical problems that were affecting J. The father lacked insight into the extent of the crisis in the family as did the mother at that time.
PROPERTY
The Full Court in Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at page 78,386 reiterated the preferred approach to undertake;
a)The identification of the property and its value;
b)An evaluation of the parties contributions having regards to ss 79(4)(a),(b) and (c) of the Family Law Act;
c)Consideration of any adjustment to that assessment having regard to the relevant matters in ss 79(d),(e),(f) and (g) of the Family Law Act (“the other factors”) including the matters referred to in s 75(2) of the Family Law Act; and
d)A review of the outcome against a just and equitable requirement.
The pool of assets is generally agreed and is as set out in the following schedule :-[34]
[34] Letter from M +K Dobson Mitchell Allport 25 May 2012, with list attached. Exhibit M12 – entered in Chambers 25 May 2012.
| SS property – agreed | $650,000 |
| AA property – agreed | $350,000 |
| PP property – agreed | $470,000 |
| DD property –agreed | $325,000 |
| RR property – agreed | $320,000 |
| Father’s Landcruiser - agreed*[35] | $7,000 |
| Mother’s Land Rover motor vehicle –agreed^[36] | $5,000 |
| Father’s trailer/boat/tools/computer –agreed* | $9,250 |
| Proceeds of sale of boat father – agreed* | $9,800 |
| Mother’s chattels and computer^ - determined | $6,000 |
| Father’s chattels and computer* - determined | $500 |
| Joint account (subject to amounts owed to the parties under the ‘liabilities) – agreed[37] | $73,706 |
| Father’s add back – agreed* | $57,133 |
| Father’s add back credit card* – determined | $17,000 |
| Mother’s superannuation – agreed^ | $17,635 |
| Mortgage on SS property – agreed^ | ($632,626) |
| Net pool of assets and liabilities | $1,685,398 |
[35] The * represents property or a liability which will be retained by the father.
[36] The ^ represents property or a liability which is to be retained by the mother.
[37] The parties agreed that the amount in this account is $83,271. It was agreed that from that account $2,565 was to be paid to the father and I determined that $7,000 was to be paid to the mother (in lieu of the $12,383 that she sought) leaving a balance of $73,706. My legal associate sent emails to the parties’ counsel indicating this approach and the structure of orders to give effect to payment to each party and treating the reduced value of the account as its value.
The mother has an entitlement to Host Plus Superannuation. Neither party seeks a splitting order in respect of the superannuation. Having regard to the relatively modest amount of superannuation compared to the pool of assets I intend to adopt that course.
There was a complaint by the father that the mother had withdrawn about $25,000 to $30,000 from a joint account in 2009. The mother conceded this withdrawal but her evidence was that she paid back into that account a sum of about $30,000. This was not a significant factor in the determination of the pool of property or in terms of contribution. I have adopted the submissions of the mother in regard to this issue.
The parties agreed to an add-back by the father in relation to the work he undertook on the trailer, to be $57,133. The father had withdrawn considerable sums from a joint account to build a trailer/workshop, and agreed to that add-back.
The mother sought a further add-back of $18,800 the father initially proposed an add-back of $17,000. This issue was the subject of correspondence between the legal practitioners for the parties’.[38] This issue arose after separation in late 2010 as the father sought funds from an account to pay the father’s credit card liability of $18,900. The parties agreed that the sum be paid and treated as an add-back, but left open the argument as to whether it should be $17,000 (being the sum without interest as asserted by the father) or $18,900 (being the sum with interest as asserted by the mother). Clearly some interest was incurred but the precise amount is unclear. I have had regard to the use of the interest in considering contributions (it is relatively minor in the overall scheme of things) and as such I will not include interest in the add-back, and determine the add-back as $17,000, which will be credited as an asset of the father.
[38] Exhibit M5 – correspondence November/December 2010.
Each of the parties retained some chattels and computers. The mother says her chattels etcetera have a value of $6,000. The father says his chattels etcetera have a value of $500. The father claims the mother’s chattels have a value of $15,000. The mother claims the father’s have a value of $6,000. Neither party has adduced objective evidence of their values; they simply rely upon the bare assertions. As such neither party has, on balance, proved the higher value. Accordingly, I determine the values as the lower of each group, namely $6,000 and $500, respectively.
Each party seek a payment from the joint account. The father seeks $2,565, which is agreed. The mother seeks $12,383. The father concedes $7,000 but disputes the balance. The mother claims in her affidavit[39] at paragraph 101:-
The ANZ account in my name has been depleted significantly because I have paid a considerable number of joint expenses relating to [the father’s] and my properties since November 2010. They total $12,383.70.
[39] Filed the 11 May 2012.
One of those sums is for a valuation obtained for these proceeding and others are medical expenses for the children. The father agrees to $7,000 and having regard to the nature of some of the claims I am not satisfied that the mother has established an entitlement to an amount beyond $7,000 as conceded by the father.
The consequence of that agreement and determination is that the joint account of $83,271 will be reduced by the sums of $7,000 and $2,565 (viz. $9,565) leaving a balance of $73,706. I will order that the mother retain that account and the father assign the funds in it to her. She thus has the $73,706 plus the difference of $9,565. I have deducted the $2,565 from the amount to be paid by the father to the mother.
The mother wishes to retain the SS property. The father opposes that approach because he asserts:-[40]
512. I understand [the mother] wishes to retain [the SS property], even though this property is not appropriate for [the mother] and the kids. She thought this place was making [J] sick, and would not go there for 4 years. I don’t know why this has changed.
[40] At paragraph 512 of his affidavit filed 10 May 2012.
There was no scientific or health professional evidence that this home was a factor in the child’s seizures and there is an agreed value. I see no reason why the home should not be transferred to the mother at that agreed value and subject to the existing mortgages. The mother would be ordered to indemnify the father in regard to the mortgages and obtain his release from his personal covenants. If the mother is unable to pay the father or refinance she would remain liable to indemnify him and the home could be sold.
CONTRIBUTIONS
At the commencement of the relationship the father had an interest in a property at PP. There is evidence that the property had a value of about $180,000 at the time. The father’s evidence in relation to the mortgage on that property was somewhat fluid. In his submissions counsel for the father says the father had the property at PP worth $180,000 with a mortgage of $120,000 which was repaid during the relationship.
The mother owned three home units, which she has acquired from her substantial personal injury claim. The mother says she had a mortgage of $85,000 which was repaid in October 1996 (which I accept). The father says there is no documentary evidence in relation to the value of any of the properties the parties owned at the commencement of cohabitation or the amount of the mortgages.
The mother’s initial contributions to the matrimonial assets were much greater than those of the father.
The father received inheritance monies of $40,000 from the Estate of his father and his family provided financial help to the parties from time to time.
The mother asserted that the father had tax liabilities in 1995. The father denies that assertion. I prefer the mother’s evidence in that regard.
The mother also asserted that the father had creditors to whom he owed about $7,000 to $10,000. The father was ambivalent in his evidence in this regard and I prefer the evidence of the mother.
In relation to contribution during the marriage the father conceded in cross-examination the incomes earned by him and the mother were those set out in the mother’s primary affidavit at paragraph 98. It is clear that the mother’s income was significantly greater than the father’s over the period of their relationship. This is to be considered in the light of claims by the father of some form of ‘contra’ work done by the father, where he did trades work and was paid in material and/or goods. I am satisfied that some such work was done but was of a limited nature. The father relied upon help from his family to make ends meet (I have included those contributions in my overall assessment). At the commencement of the proceedings the father had two boats, one of which was given to him for contra work. The father said that he did some work for contra, and in fact received rent and accommodation by way of a reflection of his work so that income does not appear in his tax returns.
Such contra work had a small value. The father’s evidence about his income and the monies he earned was at times unreliable. He asserts he works long hours but that is not reflected in his income tax returns. The mother earned greater income than the father.
The father acknowledged that most of the parenting was left to the mother including the parenting of J.
The father asserted that he undertook significant work in management of the home units owned by the mother. He was involved in the management, maintenance and repairs. However, the return from those properties was far greater than his involvement. I have taken into account his contributions in this respect.
During the course of the relationship the mother asserts that the father’s family provided financial assistance to help pay off the mortgage on the father’s property at PP (about $30,000) and provided other amounts to the extent of about $60,000 to $90,000 at various times as the father was unable to make ‘ends meet’. I accept the mother’s evidence in that regard and I have had regard to that.
The rental on the units at DD, RR and at AA total about $33,000 per year. The SS property derives an income of about $19,000 a year. That property is subject to two mortgages of quite some significance.
The father submitted that the contributions ought to be treated as equal. I reject that submission, clearly the mother’s contributions have been far greater than those of the father.
Counsel for the mother initially submitted that the contributions ought to be on the basis of 60 per cent to the mother and 40 per cent to the father, in his final submissions counsel for the mother contends that the contributions ought to be between 60 per cent and 70 per cent.
Weighing up all of the contributions, at commencement and flowing and having regard to the initial difference, the mother’s income and her role as parent and homemaker, and giving weight to the various contributions of the father, including building and management work, I determine that the contributions are as to 60 per cent by the mother and 40 per cent by the father.
OTHER FACTORS
In terms of the other factors, the mother has had the primary care of J other than when she was in foster care, which I have alluded to elsewhere in these reasons. Of course the past care of J has been dealt with in the contribution factors.
Into the future the mother is unlikely to be able to obtain full time employment bearing in mind the significant needs of J and the general needs of R.
The mother does have the income from the rental units at DD, RR and AA, which is about $1,300 per week, gross, from which expenses such as rates, insurance, land tax will be deducted. The mother’s rental income will be diminished by the sale of property to finalise these proceedings and if she does not sell some of her real estate then she will have significant mortgages. She will retain the former matrimonial home and I accept that she and the children will eventually reside in it, with the consequent loss of that rentals income.
The mother will retain the SS property and will retain her superannuation (albeit a relatively small amount).
In recent years the father has been paying limited child support. He is presently paying about $25 per month for both of the children.
After separation the father spent between $55,000 and $70,000 on a trailer, which now has a value of about $1,200. At the same time he provided little by way of financial support to the children in circumstances where he was otherwise able to do so.
The father has the capacity to earn a living including earning a living from home. Accordingly, his earning capacity is far greater than that of the mother. The father has the capacity to earn income but chooses not to exercise it, at least in a way that a child support assessment could be readily based.
The father has had a history of using ‘contras’ to reflect his work. This is shown in terms of his accommodation at present and in terms of work undertaken some time in the past. The father is confident in his capacity to work as a skilled tradesman and has recently expended $50,000 to $75,000 in building a working trailer for his business.
The father conceded that if the children are living primarily with the mother there ought to be an adjustment of 10 per cent in favour of the mother. This was predicated upon a determination of equal contribution. If the children were to primarily live with him, it was submitted on his behalf that there should be a contribution in his favour of 10 per cent.
The children will be living primarily with the mother, but will spend significant and substantial time with the father. Caring for J will involve a taxing responsibility for both parents, particularly the mother, who has been her primary care for most of her life.
The father has a greater capacity to earn income, but it is not likely to be reflected in the financial support for the children by way of child support.
Having regard to all of these factors I determine that there ought to be a further adjustment in favour of the mother by 8 per cent, the property to be divided as to 68 per cent to the mother and 32 per cent to the father.
JUST AND EQUITABLE
If I adopt that approach the father shall retain the following property:-
PP property – agreed
$470,000
Father’s Landcruiser - agreed*[41]
$7,000
Father’s trailer/boat/tools/computer –agreed*
$9,250
Proceeds of sale of boat father – agreed*
$9,800
Father’s chattels and computer* - determined
$500
Father’s add back – agreed*
$57,133
Father’s add back credit card* – determined
$17,000
Payable by father to mother (excluding $2,565)
($31,356)
Net pool of assets and liabilities
$539,327
[41] The * represents property or a liability which will be retained by the father.
In considering the amounts retained by the parties I have had regard to the $7,000 paid to the mother and the $2,565 payable to the father.
The mother shall retain the following property:-
SS property
$650,000
AA property
$350,000
DD property
$325,000
RR property
$320,000
Mother’s Land Rover motor vehicle
$5,000
Mother’s chattels and computer
$6,000
Joint account (subject to amounts owed to the parties under the ‘liabilities)
$73,706
Mother’s superannuation
$17,635
Mortgage on SS property
($632,626)
Amount payable by father to mother
$31,356
Net pool of assets and liabilities
$1,146,071
The result is just and equitable having regard to the agreed and determined pool of property, the contributions and the other factors.
Under the proposed orders the father will retain a home, as will the mother.
The father sought an order to bind legal personal representatives of each of the parties but made no specific submissions as to why I should do so. I have declined to make that order.
I certify that the preceding two hundred and eighty (280) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on Thursday 26 July 2012
Associate:
Date: 26 July 2012
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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