EAGANS & RENNELL
[2018] FCCA 3564
•14 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EAGANS & RENNELL | [2018] FCCA 3564 |
| Catchwords: FAMILY LAW – Property – dispute about initial contributions and contributions throughout relationship – adjustment for future needs of primary carer. |
| Legislation: Evidence Act 1995 (Cth), s.140(1) Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 72(1), 75(2), 79(2), 79(4) |
| Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116 Damiani & Damiani [2010] FamCA 217 Harridge & Harridge [2010] FamCA 445 In the Marriage of Hickey [2003] FamCA 395 McMahon & McMahon [1995] FLC 92-606; (1995) 19 Fam LR 99 Norbis v Norbis (1986) FLC 91-712 Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 47 Fam LR 481; [2012] HCA 52 |
| Applicant: | MR EAGANS |
| Respondent: | MS RENNELL |
| File Number: | MLC 8649 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 7, 8, 9, 10, 11 May and 21 August 2018 |
| Date of last submission: | 21 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 14 December 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr Whitchurch |
| Solicitors for the applicant: | Cahill & Rowe Family Law |
| Counsel for the respondent: | Mr Grant |
| Solicitors for the respondent: | Roger O’Halloran & Co |
| Counsel for the Independent Children’s Lawyer: | Ms Devine |
| Solicitors for the Independent Children’s Lawyer: | Altavilla Family Law |
ORDERS
PARENTING
The mother have sole parental responsibility for the child
[X] born [date] 2013 (“[X]”).
Notwithstanding paragraph 1 hereof, the mother shall:
(a)advise the father of the details of any kindergarten or school at which [X] is enrolled and authorise any such school to provide to the father, at his expense if any, copies of [X]’s school reports and photograph order forms each year; and
(b)advise the father of any serious illness or injury suffered by [X] and advise the father in the event that [X] is hospitalised and the mother do authorise any medical practitioners treating [X] in such circumstances to provide information to the father relevant to [X]’s medical welfare, provided that a copy of these orders and reasons for judgment are first given to the relevant practitioners.
[X] live with the mother.
[X] spend time with and communicate with the father:
(a)on the first Sunday of March, June, September and December each year for a period of four hours, such time to be supervised by a professional supervisor and at times and places as nominated by the supervisor, at the sole expense of the father; and
(b)as otherwise agreed between the parties in writing.
In the event that the parents are unable to agree upon a professional supervisor, then the mother is to provide the father with the names of three professional supervisory agencies within 7 days of any dispute as to the professional supervisor and the father select one of those agencies to provide the supervision.
The father be permitted to send [X] cards and gifts on his birthday and for Christmas, such cards and gifts to be sent by post to the mother and the mother will ensure that such cards or gifts are given to [X] provided they are age appropriate and comply with these orders.
After a period of no less than 2 years from the date of these orders, the father may initiate further proceedings to consider the establishment of other time arrangements between [X] and himself upon:
(a)filing with the court and serving upon the mother a report from an appropriately qualified clinical psychologist, as nominated by the Independent Children’s Lawyer (being a psychologist other than Ms D) who has regularly and consistently treated the father for a period of no less than 24 months to address:
(i)the father’s attitude towards females and femininity;
(ii)the father’s role in perpetrating family violence against the mother;
(iii)the father’s lack of insight into the impact of family violence upon [X] and the mother;
(iv)the father’s awareness of his personality and the impact of his personality upon people including the mother and [X];
(v)the father’s acceptance of [X]’s living arrangements in the care of the mother;
(vi)the father’s acknowledgement and understanding of the rationale for the requirement of supervision of his time with [X];
(vii)consistent and current attendance at behavioural change therapy; and
(viii)co-operation with and progress towards the therapeutic goals of that therapy; and
(b)provided always that the clinical psychologist is served with and reads, prior to commencement of therapy, a copy of these orders and reasons for judgment.
For the purposes of order (8) above, the Independent Children’s Lawyer is to nominate and advise the father of an appropriately qualified clinical psychologist within 21 days of the date of these orders.
The mother and father, their servants and agents be restrained by injunction from:
(a)discussing the court proceedings with the child nor allowing anyone else to do so;
(b)posting comments in relation to these proceedings on Facebook or any other social media platform;
(c)denigrating the other in the presence of the child or allowing another person to engage in such conduct; and
(d)physically disciplining the child or exposing the child to any form of family violence.
All extant applications otherwise be dismissed.
Upon compliance with order (8) above, the appointment of the Independent Children’s Lawyer is discharged.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
PROPERTY
Within 60 days from the date of these orders (“the date”), the wife pay to the husband the sum of $172,000 (comprising a payment to give effect to a 60/40% split in favour of the wife less an adjustment of $17,000 in lieu of superannuation splitting orders to equalise the parties’ entitlements) (“the payment”).
Contemporaneously with the payment:
(a)the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all his right, title and interest in the real property situate at and known as Property A (“the Property A property”); and
(b)the wife indemnify the husband against all payments and liabilities pursuant to the Bank 1 mortgage and all apportionable rates, taxes and outgoings of or with respect to the Property A property of whatsoever nature and kind; and
(c)the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all his interest in [Company] Pty Ltd and the wife be solely liable for and indemnify the husband with respect to the [Company] Pty Ltd liability.
In the event that the whole of the payment has not been made by the date, the Property A property be forthwith sold altogether out of court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the Bank 1 mortgage and any other encumbrance affecting the Property A property;
(c)thirdly, so much of the payment as is then outstanding together with interest thereon as prescribed by the Family Law Rules adjusted monthly from the date to the husband;
(d)fourthly, the balance then remaining to the wife.
Pending the payment or completion of the sale:
(a)the wife have the sole right to occupy the Property A property and during such right of occupation, the wife pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the Property A property as they fall due;
(b)the parties hold their respective interests in the Property A property upon trust pursuant to these orders; and
(c)neither party may encumber the Property A property without the consent in writing of the other party.
The husband otherwise retain, to the exclusion of the wife, all other items of property (both real and personal and including choses-in-action and financial resources) in his name, possession and/or control, including but not limited to:
(a)his bank accounts and savings;
(b)his personal belongings and effects; and
(c)his superannuation contributions and entitlements with Super Fund L.
The husband be solely liable for and indemnify the wife against any liability in his name or encumbering any item of property which he is to retain pursuant to these orders.
The wife otherwise retain, to the exclusion of the husband, all other items of property (both real and personal and including choses-in-action and financial resources) in her name, possession and/or control, including but not limited to:
(a)her bank accounts and savings;
(b)her personal belongings and effects; and
(c)her superannuation contributions and entitlements with Super Fund M.
The wife be solely liable for and indemnify the husband against any liability in her name or encumbering any item of property which she is to retain pursuant to these orders.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or 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 are to be divided equally and the account/s closed;
(c)insurance policies remain the sole property of the policy owner named thereon;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
AND THE COURT NOTES THAT:
(A)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Eagans & Rennell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8649 of 2016
| MR EAGANS |
Applicant
And
| MS RENNELL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application in respect of both parenting and property matters.
In relation to parenting, the parties are seeking orders in respect of [X] born [date] 2013 (“[X]”).
For the reasons set out below, I am satisfied that it is in [X]’s best interests to make the following orders:
a)the mother have sole parental responsibility for [X];
b)[X] live with the mother;
c)[X] spend time and communicate with the father four times per year for a period of four hours, such time to be professionally supervised, with the costs of supervision to be paid for by the father; and
d)the father be at liberty to initiate further proceedings after a period of two years, to revisit spend time arrangements between himself and [X], conditional upon him filing and serving a report from an appropriately qualified clinical psychologist as nominated by the Independent Children’s Lawyer whom he has attended upon for at least 24 months addressing the concerns raised in these reasons for judgment.
In relation to property matters, for the reasons set out below, I find that it is just and equitable to make the following orders:
a)the wife to retain the former matrimonial home;
b)the wife to take on the liability for the mortgage and the [Company] liability;
c)the wife to make a payment in the sum of $172,000 to the husband; and
d)each party otherwise retain all items of property in their respective names, possession and control including superannuation.
I will deal with the parenting issues first and then deal with property matters.
Parenting
Background
The parties commenced cohabitation in 2011, married on [date] 2012 and separated in April 2016. [X], who was born on [date] 2013, was just over two years of age at the time the parties separated.
The mother has alleged that the father has committed serious family violence both during the relationship and after it had come to an end. The mother alleges that the father engaged in family violence in the presence of the child. The father has denied most of the mother’s allegations of family violence. There is a history of intervention orders having been obtained by the mother against the father and various breaches of these intervention orders.
These proceedings were commenced by the father on 12 September 2016 in which he sought orders to allow him to spend time with [X]. Initially, the father sought orders permitting [X] to spend five nights per fortnight with him. At this time, [X] was almost three years of age.
In her response, the mother sought orders that [X] live with her and spend supervised time on an increasing basis for a period of months with a review at the end of that time. The mother’s proposed orders also required that such time be subject to the father undertaking various courses.
Interim orders were made on 25 October 2016 which, among other things, provided for [X] to spend time with the father supervised at Bethany Contact Centre for four hours on each Sunday and for some time on [X]’s birthday and the father’s birthday, such time to be supervised by either paternal grandparent. The interim orders also provided for communication by Skype twice per week at specified times, such time to be for no longer than 15 minutes.
[X] spent supervised time with the father between 2 December 2016 and 3 July 2017 and the court had the benefit of an affidavit filed in these proceedings by Mr E in respect of these supervised sessions.[1]
[1] Affidavit of Mr E filed 31 October 2017.
[X] did not spend any time with his father between 3 July 2017 and 3 March 2018 other than for a couple of hours on Father’s Day in 2017 which was supervised by the paternal grandfather.
A trial was initially scheduled in this matter for 2 November 2017 but was unable to commence. Further interim orders were made at that time which provided that:
a)each party would undertake a psychiatric assessment;
b)supervised time of four hours each week paid privately by the father; and
c)Skype sessions between [X] and the father be recorded.
The parties attended upon Ms F, family consultant who provided a report on 20 September 2017 in anticipation of the hearing scheduled for 2 November 2017. As the matter did not proceed on that date, the parties attended upon Ms F again and she provided an updated family report on 9 April 2018.[2]
[2] Exhibit T.
The matter was relisted for trial on 7 May 2018 and commenced on that day. At the commencement of that trial the mother sought orders for sole parental responsibility and that [X] spend no time with the father.
The father sought orders in accordance with the family consultant’s recommendations which essentially provided for unsupervised time, moving to overnight and alternate weekend time.
At the commencement of the trial, the Independent Children’s Lawyer (“ICL”) initially sought orders consistent with the recommendations made by the family consultant. However, after having hearing evidence, particularly after the father’s evidence, the ICL’s position changed and at the end of the trial, the ICL submitted that [X]’s time with his father should be limited to supervised time, four times a year and that the mother have sole parental responsibility. This proposal was based on the premise that supervised time between [X] and the father would allow the child to know and remember who his father is, whilst managing the risks of the father continuing to expose the child to family violence or other inappropriate role modelling.
The mother’s position at the end of the trial was that although her preference was for [X] to have no time with his father, she acknowledged that it would be open to the court to accept the proposal put by the ICL. In the course of her cross-examination, the mother conceded that she would be prepared to agree to the proposal put by the ICL.
Issues
The key issue in the parenting aspect of this case is the risk, if any, which the father poses to [X] if he were permitted to have regular and unsupervised time with him. The court has the task of determining where the balance lies between facilitating a meaningful relationship between [X] and his father on the one hand and the need to protect [X] from physical or psychological harm from being subjected to, or exposed to family violence pursuant to section 60CC(2) of the Act.
The mother’s case, supported by the ICL, is that the father poses a significant risk to [X]’s emotional and psychological wellbeing given his negative views of the mother together with his incapacity to control his behaviour both towards the mother and, importantly, in the presence of [X].
The father’s case is that although his time with [X] since the commencement of these proceedings has been limited to supervised time, the evidence from the professional supervisors shows that:
a)time was very good;
b)the father is child focused in his interactions with [X]; and
c)there is evidence of a close and loving relationship between the father and [X].
The father relies heavily on the affidavit of Mr E and the reports by Ms F in support of his application for regular unsupervised time with [X].
The parties
Before turning to discuss the evidence given by each of the parties to these proceedings, I make the following general observations.
It is clear that both parents dearly love [X]. There is no doubt that the father wishes to have a meaningful relationship with his son and that these proceedings, and his inability to spend significant time with him, have been a source of frustration for him. However, I am satisfied that that father has minimised his actions and has failed to take responsibility for the consequences of those actions.
For her part, I find that the mother genuinely wants [X] to have a relationship with his father and, ideally a situation where both parents can actively participate in the milestones throughout [X]’s life. However, she also has a genuine fear of the father’s volatility and unpredictability, principally directed towards her although also occurring in [X]’s presence.
I am not however, prepared to make a finding that the court was invited to make, namely that the father has intentionally sought to mislead the court. Rather, I find that the father remains unable to appreciate the impact of his actions on those around him. This is notwithstanding having completed a range of courses which might have assisted him to gain a level of insight into his behaviour.
Be that as it may, I find that the mother is more accurate in her recollections of events and therefore, where there is a dispute between the parties’ evidence, I prefer the evidence of the mother over that of the father. I also note that the mother’s evidence in certain key aspects as discussed in greater detail below, is corroborated by the evidence of other witnesses who, if not there at the time of alleged incidents, were there shortly after the incident had occurred and directly observed the aftermath of the alleged incident.
I do not accept the father’s assertion that the mother and various witnesses who filed affidavits in support of her case, including the father’s own father, were lying.
Evidence of the parties
The father gave evidence and was subject to cross-examination in these proceedings for over two and a half days.
In the course of the father’s cross-examination by the mother’s counsel, the father:
a)confirmed that he was facing charges of allegedly breaching an intervention order, to which he intended to plead not guilty;[3]
b)initially did not concede that the court orders which provided for him to communicate with [X] over Skype limited such time to no more than 15 minutes but made this concession after reviewing the orders themselves;[4]
c)notwithstanding this concession, maintained that the mother breached the orders in relation to his communication with [X] over Skype by distracting him during calls;[5] and
d)did not concede that his time with his son had been limited even before separation.[6]
[3] Transcript page 19 at lines 8 to 13.
[4] Transcript page 22 at line 22 to page 23 at line 13.
[5] Transcript page 24 at lines 20 to 21.
[6] Transcript page 34 at line 2 to page 40 at line 3.
The father’s case is essentially that:
a)during the relationship the mother was aggressive, short fused and mentally unstable;
b)the breakdown of the parties’ relationship in April 2016 came “out of the blue”;
c)he downplays any violence on his part towards the mother;
d)he has always been involved in [X]’s life; that he is a “hands on dad” and has a positive and loving relationship with his son; and
e)although he concedes that he breached the intervention order obtained against him and was placed on a Community Corrections Order, the mother was manipulative in having the intervention order taken out against him in the first place and then has ‘baited’ or ‘tricked’ him into breaching it.
The father did not seek to cross examine Ms G, Mr H, Mr I, Ms J, Mr K, Ms L or Ms M and therefore their evidence was unchallenged.
Undisputed facts
Much of the background to this matter is not in dispute. It is common ground that the parties commenced cohabitation in 2011 and purchased the former matrimonial home together in [date] 2011.
It is also common ground that the parties married on [date] 2012 and travelled overseas for their honeymoon including to [country omitted].
[X] was born in [date] 2013.
There is a dispute as to when separation occurred. The mother alleges that the parties separated under one roof in 2014 when she moved into the spare room. The father denies this and says that the parties separated on 7 April 2016.
It is common ground that the wife obtained an intervention order against the husband on 13 April 2016 and the father applied for an intervention order against the mother on 18 April 2016. On 27 April 2016, both parties consented to mutual intervention orders against the other without admissions.
It is also common ground that there was an incident which occurred between the parties on 27 April 2016 following some time spent between the father and [X], although there is a dispute as to the exact nature of that incident.
What is not in dispute is that as a result of that incident, the father was charged with and pleaded guilty to a number of charges, including breach of a family violence intervention order and recklessly causing injury in January 2017. It is also not in dispute that as a result of these charges, the father was fined $5,000 without conviction. This incident is discussed in greater detail below.
Following the incident on 27 April 2016, the father completed the following programs:
a)a men’s behaviour change program run by the Family Violence Services at Bethany Community Support between 5 July 2016 and 20 December 2016;
b)‘Building Connections’ – a post-separation parenting seminar through Bethany Community Support on 12 October 2016; and
c)‘Navigating the Rough Swells’ – post-separation parenting course from 27 October to 1 December 2016.
These programs were completed voluntarily by the father.
Notwithstanding having completed these various programs, the father continued to engage in conduct in breach of the intervention order. It is also common ground that in September 2017, the father pleaded guilty to nine charges of further breaches of the intervention order, persisting in breaching an intervention order and using a carriage service to harass and stalk the mother. As a result of this guilty plea, the father was convicted and placed on a Community Corrections Order (“CCO”) for 18 months. This CCO was cancelled by [omitted] on 19 March 2018.
It is also common ground that the father has recently been charged with further breaches of the intervention order by sending text messages to the mother, including sending her a threatening Christmas card. The father indicated that he will plead not guilty to those charges noting that those proceedings had not yet been concluded as at the date of the hearing in this matter. In relation to the Christmas card specifically, the father denies having sent the card, denies that it is his handwriting and also denies any other knowledge about that card. When asked about the card, the father acknowledged that he had read it but denied having sent it.[7] He also said that since sustaining an injury to his right hand, he struggles to write.[8]
[7] Transcript page 30.
[8] Transcript page 31 at lines 30 to 33.
It is the father’s case that the mother has used the intervention order proceedings to minimise his ability to spend time with [X]. In his evidence before this court, he indicated on a number of occasions that it was his wish to be able to have open communication with the mother about [X] and that this communication was being impeded by the existence of intervention orders which the mother has taken out in her favour.
Standard of proof
Section 140(1) of the Evidence Act 1995 (Cth) provides that a court must find the case of a party proved ‘on the balance of probabilities’. Subsection (2) further provides that without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
a)the nature of the cause of action or defence; and
b)the nature of the subject matter of the proceedings; and
c)the gravity of the matters alleged.
I have applied these provisions in reaching my findings in this matter. In particular, in considering the risk factors raised by the mother, I have had regard to the gravity of the matters alleged, particularly in relation to the allegations made by the mother against the father of family violence perpetrated against her during and after the relationship.
Analysis – family violence
The key factual dispute in these proceedings was the nature and extent of family violence between the parties and whether this posed an unacceptable risk for [X] in the care of the father.
The mother makes numerous allegations of family violence both during her relationship with the father and post separation. The father states that the parties argued during the relationship, but denies that he was physically violent to the mother.
When asked by the ICL about the statement in his affidavit of 7 September 2016 that he had ‘never been physically violent to the respondent’, the father ultimately conceded that this statement was in fact not true.[9]
[9] Transcript page 196 at line 39.
While the mother states that the relationship came to an end because of the family violence, the father stated that the relationship came to an end because of the mother’s infidelity and had nothing to do with violence.[10]
[10] Transcript page 195 at lines 6 to 11.
Family violence is defined in section 4AB of the Family Law Act 1975 (Cth) (“the Act”) as follows:
(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.
Section 4AB(2) goes on to relevantly provide:
(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 withholding 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.
(3) For the purposes of this Act, a child is exposed to family
violence if the child sees or hears family violence or otherwise experiences the effects of family violence.(4) Examples of situations that may constitute a child being
exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Tickling incident
The mother alleges that one morning in early 2012, when the father was lying on the bed, she tickled his side and he swung his arm back towards her forcefully, his elbow making contact with her nose and that her nose bled profusely.
The father denies that he swung his arm at the mother. He said he could not recall the details exactly but denied the mother’s allegations. Moreover, he denies that she had surgery on her nose as a result of this incident. He said that the surgeries on her nose “were for reduction in the size of Ms Rennell’s nose… (she) chose to have the cosmetic surgeries of her own choice”.[11]
[11] Transcript page 48 at lines 37 to 43.
The father’s evidence in relation to the tickling incident was that the mother came into the bedroom with a bleeding nose and he showed her how to hold it so that the bleeding would stop.[12] It was put to the father that after this incident, the mother called her sister who was a nurse to come over and help to which he responded, “I can’t remember if she did that, no.”[13] Her sister’s evidence is consistent with this.
[12] Transcript page 49 at lines 18 to 31.
[13] Transcript page 50 at line 3.
Incident in [country omitted]
The mother also alleges that whilst the parties were in [country omitted] on their honeymoon, the father said that he wanted some space and went to leave the hotel without her, she says that she followed him out of the hotel and asked him not to leave her as she did not know the local language. In her affidavit filed 24 October 2017, she says that he “rapidly became very angry, grabbed me by the throat and held me up against the wall lifting me off my feet out the front of the building.”[14]
[14] Paragraph 4 of the affidavit of the mother sworn and filed 24 October 2017.
When asked about this in cross-examination, the father replied, “that’s a complete lie.”[15] The father maintained that the mother’s evidence in relation to this incident was a complete fabrication and that it did not occur.
[15] Transcript pages 51 to 52.
Comments about pregnant women
The mother further alleged that some 8 months later, when they had returned to Australia and she was pregnant with [X], the father started making comments about her “getting fat” and that he “didn’t find pregnant women attractive”.[16] Again, the father denied this and denied making any comments about her gaining weight.
[16] Paragraph 5 of the affidavit of the mother sworn and filed 24 October 2017.
Bath incident
The mother also alleged that when she was seven months pregnant, she and the father were taking a bath together and that she asked him to massage her feet. She deposes that he:
…snapped, jumped out of the bath, pushed (her) head under the water. We struggled for some time as I tried to lift my head he was holding me by the throat pushing my head down under the water.[17]
[17] Paragraph 6 of the affidavit of the mother sworn and filed 24 October 2017.
The mother’s evidence is that he then stopped and walked away. She says that she tried to speak to him about it later and said that he could have deprived the baby of oxygen and he said that “if he really wanted to kill us, he would not have let go.”[18]
[18] Paragraph 6 of the affidavit of the mother sworn and filed 24 October 2017.
The father denies that this incident occurred. When asked about this incident in cross-examination, the father acknowledged that they had taken a bath together on occasion when she was pregnant and that she had on occasion complained of sore feet during the pregnancy, but denied categorically that he had pushed her head under water or said the comments alleged. He went on to say:
… if these were true, in any fact true, she would’ve gone to the police and reported them, or had some photos or some sort of medical documentation to support these claims.
…all these things... post separation have all just come out of the blue…
I don’t… understand post-separation how all these all of a sudden come out, where I’ve been… flying in and out like my career has been, then why didn’t you go and report me while I was away? Because they didn’t take place. I find it very disappointing.[19]
[19] Transcript page 54 at lines 20 to 33.
When it was put to the father following this evidence that there may be an explanation for why the mother may not have reported his conduct at the time, given that she was pregnant with his child and that both parents wanted this child, he reluctantly did concede that that could explain her conduct although he maintained that he had not engaged in the conduct alleged of him.[20]
[20] Transcript page 55 at lines 4 to 14.
February 2014 incident
The mother further alleges that in February 2014, there was a disagreement between the parties in the kitchen of their home, during which she tried to walk away. She alleges that the father followed her into the bedroom yelling and pushed her onto the bed, pinned her arms down with his knees and repeatedly slapped her face with his hands. The mother alleges that [X] was present and became distressed. The father categorically denied this allegation.[21]
[21] Transcript page 56.
The mother then stated that after comforting [X], she left the house on foot with [X] as she was unable to get to the car keys without alerting the father that she was leaving and that she then walked to her uncle’s home, some 45 minutes away. She states that her uncle was not home at the time, but his friend, Ms M, was at her uncle’s home and provided her with first aid as the mother had a black eye, swollen cheeks and bruised, cut and bleeding lips. This incident is corroborated by the evidence of Ms M, which was unchallenged, who states in her affidavit that the mother turned up with [X] and had a black eye, swollen cheeks and swollen and bleeding lips. In addition, both the maternal grandmother and maternal grandfather’s evidence, also unchallenged, is that they drove to pick the mother up from the uncle’s house and observed injuries as described by the mother.
The father denies this allegation and counter alleged that Ms G, Mr H and Ms M, all of whom have filed affidavits giving evidence consistent with the mother’s in relation to this incident, are “all telling lies on oath”.[22]
[22] Transcript page 57 at line 11.
When asked why they would lie on oath, the father said:
Because, that’s her – Ms Rennell’s uncle, Ms N’s partner, and they are a tight-knit family and they always stick together. So, yes, that’s why I believe she did it.[23]
[23] Transcript page 58 at lines 11 to 13.
As stated above, where there is a conflict between the evidence of the mother and the father, I prefer the evidence of the mother. I find that this incident did occur as alleged by the mother.
The mother gave evidence that after this incident, her parents picked her up and took her and [X] to their home in Town K. She alleged that the father called her and demanded that she return or that he would “pursue (her) for absconding with [X]”. She also alleged that he had repeatedly told her that “[nationality omitted] don’t get divorced. Their wives go missing.” Again, the father denies having made that comment. His evidence was that the mother did often go and stay at her parents’ home and that he
…may have had a phone call with her on the night, but… can’t remember the contents… would have just been asking her where she is, more than likely.[24]
[24] Transcript page 59.
Again as stated, I accept the mother’s evidence in relation to the telephone call.
March 2014 incident
The mother alleged that in about March 2014, the parties were going to go out for dinner with some friends. She said that the father told her she had about 15 minutes to get ready and when she said that that was not enough time for her to get herself and [X] ready, the father became angry. She says that she then suggested that he go alone and the father then became aggressive and hit her in the face giving her a swollen and bleeding lip.
During cross-examination, the following exchange occurred:
Mr Grant: What do you say about that?
Mr Eagans: I did go to dinner by myself one night with my friends, yes.
Mr Grant: Yes, and you had an altercation with your wife before that?
Mr Eagans: Well, she said she wanted to go and then she pulled out at the last minute, so that was the altercation.
Mr Grant: Right. And then you hit her in the face?
Mr Eagans: No I did not.[25]
[25] Transcript page 60 at lines 12 to 18.
Again, I prefer the mother’s version of events in relation to this incident.
Pillow incident
The mother further alleges that one evening in early 2015, when she was already sleeping in a separate room to the father and that the parties were effectively separated under one roof, the father came in to her room and became more aggressive as she maintained that things would not work out between them. She says that he then placed a pillow over her face and leaned over her with his body. He ultimately released his grip and she says that after this, she seldom slept at home as she was fearful that he would harm her whilst asleep. The father denies this and maintains that it is another fabrication.[26]
[26] Transcript page 61 at line 35.
July 2015 incident
The mother alleges that on 18 July 2015, the mother attended an engagement party for a friend and then posted photos of the event on Facebook. She alleges that the father, who was working away at the time, abused her saying she looked like a ‘slut’ and that the length of her dress was inappropriate for a mother. The father denied these allegations during cross-examination and said “I actually complimented her on the dress. I said she looked good in this.”[27]
[27] Transcript page 61 at line 45.
August 2015 incident
The mother further alleges that there was another incident of family violence in August 2015 when she returned from having spent the evening at a friend’s house in Suburb P after attending the [social function] Club themed night. She alleges that when she arrived home, the husband had accessed her Facebook page and viewed a Facebook Messenger conversation which was password locked.
The father denies this allegation and said that if he viewed any Facebook messages, they were messages which the mother had shown him willingly.
The mother also alleges that the father then called her a “slut, a whore and a liar”.[28] She alleges that [X] was present when this happened, became distressed and started to cry. The father denied this and said that these were all “false accusations”.[29]
[28] Paragraph 11 of the affidavit of the mother sworn and filed 24 October 2017.
[29] Transcript page 64 at line 29.
Duct tape
The mother alleged that the father during arguments would put duct tape around her head covering her mouth to stop her from responding.[30] The father denies this happened.[31]
[30] Paragraph 12 of the affidavit of the mother sworn and filed 24 October 2017.
[31] Transcript page 64 at lines 39 to 42.
Security cameras
The mother also alleges that the father installed security cameras in the home.[32] The father confirmed that he had installed security cameras and that they were linked to the computer and the TV but that the images could also be accessed remotely with a password. The father said that he installed these because the mother was scared being home alone when he was away working.
[32] Paragraph 13 of the affidavit of the mother sworn and filed 24 October 2017.
The mother alleged that as the relationship deteriorated, the father would use the security cameras as a means of monitoring her activities and would then question her about her daily activities and ask about visitors and why they attended at the home.[33] The father denied these allegations and maintained that he would check the security cameras if the mother was concerned about having heard a noise.[34]
[33] Paragraph 13 of the affidavit of the mother sworn and filed 24 October 2017.
[34] Transcript pages 65 to 66.
[country omitted] holiday
The mother alleges that the father arranged a family holiday to [country omitted] in 2015 in an attempt to reconcile the relationship.[35] The father disputes this and says that some friends had arranged a trip for a few families including their family. When asked why there was no evidence from his family to support the father’s assertion, he replied:
“because they don’t want to get involved in this… I asked them and they didn’t want to get involved.”[36]
[35] Paragraph 14 of the affidavit of the mother sworn and filed 24 October 2017.
[36] Transcript pages 66 to 67.
In any event, the mother states that during this trip, she and the father were getting ready for a birthday dinner that evening and the father criticised what she was wearing. According to the mother, an altercation ensured and the father accused her of “fucking tarting myself up for other people”.[37] The father denies this allegation.[38]
[37] Transcript page 67 at lines 20 to 21.
[38] Transcript page 67 at line 23.
The mother further alleges that the father was:
…standing over me, pushing me with his hands as I backed into the corner of the walk-in wardrobe… he put his hand around my throat, slapped me across the breast and pushed me around the room.[39]
[39] Transcript page 67 at line 35 to 42.
The mother further states that this occurred while [X] was in the room, and that [X] was screaming and kept saying “don’t hurt mummy”. In cross-examination about this issue, the father agreed that [X] was in the room, but denied that [X] was screaming.[40]
[40] Transcript page 67 at line 45 to page 68 at line 2.
The mother further alleges that after dinner, the father kept asking her about a friend of hers and threatened to:
…smash me in the face to fix my fucking ugly nose. He threatened to take [X] from me if I left him. He also said that one of us would end up in a coffin.[41]
[41] Transcript page 68 at lines 12 to 14.
When asked about this in cross-examination, the father said “that’s all lies”.[42]
[42] Transcript page 68 at line 16.
April 2016 allegations
The mother also alleges that on 5 April 2016, the parties returned home and as she was getting out of the car, she dropped her mobile telephone which was new and the father swore at her for being clumsy.[43]
[43] Paragraph 15 of the affidavit of the mother sworn and filed 24 October 2017.
The father agreed that he had purchased the mother a new mobile telephone but disagreed that he became angry when she dropped it. He then went on to say, “I may have said a derogatory comment. I can’t remember the exact nature of it.”[44]
[44] Transcript page 71 at lines 38 to 39.
The mother then stated that the father continued verbally abusing her and backed her against the front brick fence.[45] The father denied this.
[45] Paragraph 15 of the affidavit of the mother sworn and filed 24 October 2017.
The parties’ separation
The mother then states that on 6 April 2016, the father was upset that she had made it clear that the marriage was over.[46] She stated that the father became agitated and put [X] in the car. She tried to remove [X] and asked the father not to go driving with [X] as he was upset. She alleges that an altercation occurred with the father calling her a ‘dragon’ and pushing the mother to the footpath as a result of which she suffered cuts to her elbow.[47]
[46] Paragraph 16 of the affidavit of the mother sworn and filed 24 October 2017.
[47] Paragraph 16 of the affidavit of the mother sworn and filed 24 October 2017.
The mother further states that as she was trying to remove [X] from his car seat, the father grabbed [X] and took him inside the house and locked the front door so that she could not enter. She then allegedly went around to the back of the house, by which time the father had left the house with [X] from the front door and locked [X] in the car and drove off with him. The mother described the father then returning a short time later to retrieve some tools; that she tried to get [X] out of the car but was prevented from doing so by the father who then drove off with [X].[48]
[48] Paragraph 16 of the affidavit of the mother sworn and filed 24 October 2017.
The father conceded that he did drive off with [X] in the car after an argument and that this happened the day before final separation although he disputes various aspects of the mother’s version. For example, he denied that:
a)she asked him not to leave with [X] when he was clearly upset;[49]
b)he further abused her and called her a ‘dragon’;[50]
c)she asked him to take a break and leave [X] with her;[51]
d)he took an overnight bag for [X];[52] and
e)he pushed her to the ground causing her to suffer cuts to her elbow.
[49] Transcript page 73 at line 28. The father ultimately conceded this point at page 74 at lines 37 to 39.
[50] Transcript page 73 at line 45.
[51] Transcript page 73 at lines 34 to 37.
[52] Transcript page 73 at lines 19 to 21.
The maternal grandparents each gave evidence that they saw the mother after this incident and observed injuries to the mother’s elbow.
It is common ground that the mother reported this incident to the police and that the police spoke to the father about it.
The father’s description of this event is telling as it gives an indication of the manner in which he attempted, even at trial, to minimise the impact of his behaviour on the mother, and perhaps more importantly on [X]. The father conceded during cross-examination that the police contacted him after this incident and the following exchange then occurred:
Mr Grant:… Did the police contact you and ask you to come back with [X]?
Mr Eagans:They asked me what had happened. I explained … I was off with [X] going for a drive, doing some little run-around jobs. They asked me what time I would return … I then returned with [X] to the family home at the agreed time …
…
Mr Grant:Why was it necessary to take [X] around with you to do these odd jobs?
Mr Eagans:Because when I’m running around doing the odd job here and there, [X] used to come for a drive. … it’s like all little children. They love going in the car, and it was giving the mum some time to do whatever she would like to do at home.
…
Mr Grant:So against my client’s will and wishes, you thought it was appropriate to take a two and a half… in the truck with out to do some odd jobs. Why was that necessary?
Mr Eagans:Because I was spending time with my son. That’s what we used to do. We used to go … off and do a few things here and there.
Mr Grant: …my client says he was quite upset…
Mr Eagans:[X] wasn’t upset … [X] enjoyed going in the car.
Mr Grant:…You were clearly upset and emotional and she thought you driving the car with a two and a half year old wasn’t ideal. Can you see her point of view?
Mr Eagans:I can see the point that we had just an argument and jumping in the motor vehicle, yes, but I wouldn’t go exaggerating it to the extent that she has.
Mr Grant:But at the time you didn’t see her point of view at all. Is that right?
Mr Eagans: At the time I didn’t see her point of view. Correct. [53]
[53] Transcript page 74 at line 18 to page 75 at line 17.
The father’s evidence with respect to the end of the parties’ relationship was as follows:
It was – 7 April Ms Rennell called our relationship over. And, yes, I did cry. I was a bit shocked by it because I didn’t see it coming. We cohabited for the benefit of [X] in the home, even still sharing the same bed up until 12 or 13 April from memory – don’t quote me on the exact day. But I was served by some – a female police officer from the Town L Station with an intervention order, and I was given a couple of moments to get some of my belongings and vacate the premises.[54]
[54] Transcript page 76 at lines 20 to 26.
The mother applied for and was granted an interim intervention order against the father on 13 April 2016 which remained in place until 24 April 2016. When served on the father, he vacated the family home.[55]
[55] Paragraph 21 of the affidavit of the mother sworn and filed 24 October 2017.
The father applied for an intervention order against the mother on 18 April 2016 alleging that she had punched him in the back whilst he was taking [X] in the car in the incident set out above.[56] In response to a question from the mother’s counsel as to whether he had made a complaint about her having breached that interim intervention order, the father said:
[56] Paragraph 22 of the affidavit of the mother sworn and filed 24 October 2017.
The police aren’t interested in what a male has to say. … All they’re interested in is what a female has to say, unfortunately, at the Town L Station.
…
I have a slash mark on my arm that Ms Rennell came at me with a knife in the family home. I reported it to police. They told me to go away; don’t be a big baby. So I just lost faith in the system.
…
I actually found the response by the police station pretty disappointing.[57]
[57] Transcript page 78 at lines 20 to 35.
On 24 April 2016, the mother applied for and was granted an intervention order on a final basis for a period of 12 months. That order was made by consent without admission as to its necessity.[58] Also on that day, the father’s intervention order against the mother was made by consent and without any admission.[59]
[58] Exhibit R-1 to the affidavit of the mother sworn and filed 24 October 2017.
[59] Paragraph 23 of the affidavit of the mother sworn and filed 24 October 2017.
Family violence incident post-separation
The mother deposes that on 27 April 2016, she had agreed to [X] spending some time with the father.[60] It was agreed that changeover would occur at the Town L police station. The mother deposes that at the end of [X]’s time with the father, she collected [X] and was returning to her car when the father followed her and then attacked her, throwing her to the ground resulting in her suffering a bleeding nose and cuts to her face and hands.[61] The maternal grandparents also gave evidence that they observed the injuries to their daughter shortly after this incident. In addition, Mr I who went to the mother’s assistance after this incident gave evidence that when he arrived at the scene, the mother “was bleeding from the nose and had a cut to her forehead and blood and cuts on her hands”.[62]
[60] Paragraph 24 of the affidavit of the mother sworn and filed 24 October 2017.
[61] Paragraph 24 of the affidavit of the mother sworn and filed 24 October 2017.
[62] Paragraph 11 of the affidavit of Mr I sworn and filed 24 October 2017.
The father was charged as a result of this incident and pleaded guilty to various offences including recklessly causing injuries. The father maintained at trial that the extent of the incident was not as serious as the mother alleged and that all he did was knock the mother’s mobile telephone out of her hand.[63]
[63] Transcript page 80 at lines 24 to 25.
Having regard not only to the mother’s evidence but also that of the mother’s parents and Mr I, I prefer the mother’s evidence with respect to this family violence incident and find that this is another example of the father trying to minimise his conduct.
Other allegations of family violence
The mother also alleges that the father used the Skype conversations with [X] as another means by which to harass her and expose [X] to family violence. This is discussed further in greater detail below.
The mother also makes allegations that the father, notwithstanding the existence of the intervention order, has continued to harass her by:
a)transferring the electricity account for the former matrimonial home into her name and having the power disconnected without her consent in June 2016;[64] and
b)riding past the mother who had collected [X] from day care, on his motorbike in January 2017.[65]
[64] Paragraph 33 of the affidavit of the mother sworn and filed 24 October 2017.
[65] Paragraph 34 of the affidavit of the mother sworn and filed 24 October 2017.
Father’s response to allegations of family violence
The father has not addressed the mother’s allegations of family violence in his affidavit material. When asked about this at trial, he said that the allegations were ludicrous. He also stated:
I’m not sure why I didn’t respond in the affidavit to call them ludicrous. I just think that I did mention them to the previous legal firm, which was Lennon Lawyers, and I believe it was just a tit for tat by responding to such ridiculous accusations.
…it’s beyond ridiculous how extreme the allegations are.[66]
[66] Transcript page 63 at lines 13 to 16, 22 to 23.
Consideration of family violence
Having regard to all of the evidence before the court and given my preliminary comments about the parties’ evidence, I am satisfied that the relationship was peppered with verbal arguments throughout and that the father engaged in family violence towards the mother both during the relationship and after the relationship came to an end. I find that these incidents increased after the parties conceived [X] and escalated significantly at the point of separation and post-separation.
I also find many of these instances of family violence both during and after separation occurred in [X]’s presence and I accept the mother’s evidence, and where it is available, that of other corroborating witnesses, that [X] was extremely distressed at having witnessed these incidents.
I find that these family violence incidents have continued notwithstanding the mother having obtained an intervention order against the father and, importantly, notwithstanding the father having been charged with and fined for, albeit without conviction, a breach of that intervention order in respect of a serious incident of family violence which occurred in April 2016. The father went on to commit further breaches of the intervention order which resulted in a conviction and the imposition of a Community Corrections Order as discussed.
When asked about the various charges against him, the father stated that although he pleaded guilty, he did not accept responsibility for committing these offences. He said:
I understand what you’re saying when you say “you’re pleading guilty” but some of those charges, as was on court record at the time, in front of [omitted], I said I will just accept them. I didn’t do them, but I will accept them anyway, because I just didn’t have the willpower to continue fighting the sheer volume of charges that constantly get regurgitated at me.[67]
[67] Transcript page 83 at lines 37 to 41.
It was common ground that the intervention order in the mother’s favour would expire on 28 June 2018 and that the mother had made an application for an extension of that order for a further 15 years. It was put to the father during cross-examination that if that application was granted, it would not impact on his relationship with [X] given that any intervention order is subject to a family law court order. In response to this, the father said:
Well I’m unsure, because as long as there’s an intervention order on me, I think it gives Ms Rennell grounds to continually find any – I even breath (sic) her way, she’s straight into the police station, she reports me. It’s called a vexatious litigant.
…
… I think that the intervention order is no longer necessary and that timeframe is ridiculous. [68]
[68] Transcript page 85 at line 7 to 19.
Skype communications
It is common ground that pursuant to interim orders made by his Honour Judge Riethmuller on 25 October 2016, various arrangements were put in place to facilitate Skype time between [X] and the father post-separation. The mother alleges that the father used these sessions to continue to harass her and engage in family violence towards her to which [X] was exposed.[69]
[69] Paragraph 36 of the affidavit of the mother sworn and filed 24 October 2017.
The father for his part, has repeatedly maintained at trial that the difficulties with Skype were as a result of the mother’s conduct during the sessions. He alleged that the mother had repeatedly breached the orders by not making [X] available and/or by distracting him during his Skype time with his father.[70]
[70] Transcript page 23 at lines 35 to 37.
In relation to the father’s concerns about the mother’s interference with Skype communication, the following exchange is telling:
Mr Grant:… the child has been on (the mother’s) knee, she says. Have you noticed that?
Mr Eagans:He has been on her knee.
Mr Grant:Yes. do you object to that?
Mr Eagans:Ms Rennell is generally in the conversation to distract [X] while… he’s sitting on her knee.
…
Mr Grant:… Do you understand that a four year old might have some difficulty in concentrating for up to 15 minutes during a skype communication?
Mr Eagans:Yes, I do understand.
Mr Grant:Right. And he might run around a bit if he’s not based on her knee, might he not? …
Mr Eagans:On very rare occasions, yes.
Mr Grant:So you see, my client would say she’s trying to… assist you and settle him, but you don’t accept that?
Mr Eagans:Not a chance.[71]
[71] Transcript page 24 at lines 17 to 38.
During cross-examination, the father conceded that during a Skype session, he may have told [X] that the mother “is going to jail where animals belong”.[72] After making this concession, the following exchange occurred:
Mr Grant:Now, for [X] what’s he meant to think when you’re saying his mother’s going to jail? … Can you imagine the emotional impact on him of that? …
Mr Eagans: I can. Yes.
Mr Grant: Yes. Likely to be terrifying for him, isn’t it?…
Mr Eagans:What about the emotional impacts of a child not seeing his dad?
[72] Transcript page 150 at lines 24 to 27.
Mr Grant: … So that justifies what you said, does it?
Mr Eagans:No. I’m not saying nothing justifies what I said. What I said was wrong, inappropriate, and I made a mistake. … And I paid the price through the courts for it.
Mr Grant:…What confidence can her Honour have that you can restrain yourself to stop saying things like that to a four year old child?
Mr Eagans:I believe that comment was made on the heat of a disrupted Skype session and I let… the moment get the better of me. I’ve since learnt the error of my ways and I’ve learnt also through Ms D… many, many different versions of monitoring events that may cause an emotional trigger and to keep them in check well and truly. … and I am ashamed of my poor behaviours.[73]
[73] Transcript page 150 at line 29 to page 151 at line 5.
Also in cross-examination, the father conceded that he did ask the mother to minimise distractions during his Skype time with [X]. He admitted referring to the mother as a ‘slam pig’ whilst [X] was present during a Skype session, admitted calling the mother a ‘slut’ during these sessions and otherwise admitted to making inflammatory comments during these sessions.[74]
[74] Transcript page 185.
The court viewed a recording of part of a Skype session between the father and the child which was conducted on 9 January 2017[75]. In relation to this video, the father said as follows:
I was given access to the video and some still shots of the … slam pig part, and the bit about telling [X] his mother was going to jail, and that’s why I pleaded guilty, because there was no context to it. I made a mistake. I stuffed up…
…
… I pleaded guilty because I made a mistake. I stuffed up. I did the wrong thing and that’s why I… spoke to my counsellor about it and made sure I would make every means necessary that those events would never take place again.[76]
[75] Exhibit L.
[76] Transcript page 189 at lines 28 to 47.
Father’s relationship with the child
There was much evidence led and traversed in cross-examination about the time spent between the father and [X] prior to separation, during his period of employment in Town L and for what periods he worked as a fly in fly out worker. I find that for much of the parties’ relationship, the father worked as a fly in fly out worker. There was a period of time of less than one year, when the father worked in Town L and therefore was not away for long periods of time.
It is common ground that the parties separated in early 2016 and that since that time, [X]’s time with his father has been limited to supervised time and Skype sessions and that there have been significant periods during which the father has not spent any time with [X] when supervised time was not available.
The parties at trial conceded that Skype time had not worked well and essentially created more difficulties than it resolved.
Ms D’s evidence
Ms D, clinical psychologist gave evidence in support of the father’s case. She states in her affidavit that the father was initially referred to her by his GP for depression and anxiety in May 2015 in the context of marital issues and that he has attended 18 sessions.[77]
[77] Paragraph 3 of the affidavit of Ms D affirmed and filed 2 May 2018.
In the course of cross-examination Ms D confirmed that she essentially relied on information provided to her by the father on which to base her assessments. Quite understandably, she did not make any independent inquiries about the matters raised with her by the father, but rather relied upon his version of events for the purposes of the sessions. For example in relation to the incident on 27 April 2016, Ms D understood from the father that he denied anything more than having knocked a mobile telephone out of the mother’s hands. In particular, he denied throwing the mother to the ground and causing injury to her face.
In that context, it was put to her that she did not have the requisite information before her on which to make the assertion that:
Mr Eagans has demonstrated the ability to utilise and accept professional help, implement and build on coping strategies, and change behaviours identified as problematic, which indicate a positive prognosis for his future.[78]
[78] Paragraph 10 of the affidavit of Ms D affirmed and filed 2 May 2018.
In response Ms D said, “That was my professional opinion at the time”.[79]
[79] Transcript page 271 at lines 9 to 10.
Ms D gave evidence that she saw the father on 18 May 2016 shortly after the intervention order was made against him and also shortly after the 27 April 2016 incident. Ms D stated that her notes of this session contained the following:
Reported having separated from his wife recently and wife issued IVO against him, two weeks, for alleged bashing and has been removed from his home.
…
Mr Eagans denied bashing his wife. He reported had to restrain her while on holiday, as she was behaving erratically. He reported using a restrain technique advised by MensLine: bear hug, palms out, holding against wall.[80]
[80] Transcript page 272 at lines 20 to 30.
Ms D went on to say in cross-examination that she saw him again on 14 July 2017 and that he appeared quite stressed. He reportedly said that he was concerned for his son and was also concerned about the mother’s erratic behaviour. Ms D discussed the possibility of the father speaking to his GP about whether medication might assist him, but he was reluctant to do so although he indicated that he would keep this in mind.[81]
[81] Transcript page 274.
Ms D conceded during cross-examination that as at September 2017 when she spoke to Ms F, the father still demonstrated anger towards the mother. In response to further questions about whether in her view, this was still the case as at the date of hearing, Ms D responded, “The anger is slowly dissipating”.[82]
[82] Transcript page 278 at lines 1 to 2.
In relation to the April 2017 incident, Ms D’s notes contained the following record:
In relation to the incident in April 2017, Mr Eagans pulled up in car, Ms Rennell had phone in hand, ran out of ute and hit the phone out of her hand and denies knocking her to the ground (six seconds).[83]
[83] Transcript page 280 at lines 1 to 3.
Ms D confirmed that aside from a brief discussion with Ms F about this matter, the only information she has and upon which she made her assessments as to the father’s response to treatment is what he tells her. She stated, “I can only work with what he tells me in sessions.”[84]
[84] Transcript page 280 at lines 28 to 29.
In light of this concession, I view Ms D’s assessment of the father’s response to treatment and prognosis set out in paragraph 10 of her affidavit with some caution and have given limited weight to her evidence.
Father’s attitude to the mother
On occasion, the father stated in the course of cross-examination that he wanted to be able to communicate with the mother about [X]’s wellbeing. However, a number of comments made by the father during the course of the hearing suggest that he still holds a very negative view of the mother, which indicates that in the short term this is not likely. For example:
a)his response to questions about whether the mother was trying to assist his Skype time with the child was “not a chance”[85];
b)in response to a question about the steps he had taken to obtain photographs from Bethany, he replied “I just assumed that it would be a common courtesy for the mother”[86];
c)in response to a question about the Christmas card which the mother alleges he sent her and which he denies, the following exchange occurred:
Mr Grant:… Now who do you know, amongst my client’s enemies, who might want to do you harm, or do you think it’s one of her supporters?
Mr Eagans:I have no doubt in my mind that Ms Rennell has a lot of enemies and it could be anybody.[87]
d)in response to a question from the mother’s counsel about the fact that the father did not have any family or friends giving evidence in support of him in this case, he said, “Well that’s what happens when people are being sneaky and unfaithful.”[88]
[85] Transcript page 24 at line 38.
[86] Transcript page 26 at lines 30 to 31.
[87] Transcript page 30 at lines 31 to 33.
[88] Transcript page 44 at lines 33 to 34.
Dr O’s reports
Dr O conducted a psychiatric assessment of the father and the mother.
In his report on the father, Dr O made the following observation:
… Mr Eagans presented as a youthful and fit looking gentleman with careful attention to grooming and in neat casual clothes. He had good communicative abilities although not a man given to introspection or analysis of his feelings and inner psychological state. The most notable aspect to the presentation was that when he spoke about the matters that upset him, particularly the concerns for his son and his thoughts about Ms Rennell, that he came across as vehement and forceful. At the same time he was notably tense, and to an outside observer he would present as a man with an angry demeanour. He was genuinely perplexed when given feedback on this and clearly doesn’t understand the impression he makes when he is ventilating his frustration. In other respects there was no abnormality in mental status, with no indication of an anxiety condition, depressive disorder or disturbance in his cognitive function.[89] (emphasis added)
[89] Page 5 of the report prepared by Dr O in annexure A of the affidavit of Dr O sworn 1 and filed 9 November 2017.
Dr O went on to conclude:
… Mr Eagans presented as a gentleman who was almost 100 per cent certain that he was right, even if objective evidence (for example, his criminal convictions) countered his assertions. Furthermore he came across as a man who was angry and even though in my office he was able to contain himself, his demeanour and tone of voice conveyed the emotion of anger strongly. Worryingly, he stated that he was completely unaware that he was coming across in this way. … His tendency to perfectionism and control, functional in a work or military environment, could lead to anger and intolerance in family settings.
… He blamed all of the difficulties in the marriage and his choices on Ms Rennell. Speaking of her, he presented a picture of a calculating and manipulative person, which was not compatible with the individual I accessed (sic) later in the day. What concerned me is that he was almost convincing in his presentation and points of view. Where persons themselves so firmly believe their own subjective truth, distorted as it is, it comes across as persuasive to others. The reason why this concerns me, is because it shows Mr Eagans to have little insight into the nature of his behaviour, because he so completely believes his own world view. Such certainty and lack of doubt is an impediment to self-reflection and change… it appears that Mr Eagans is so consumed by his anger with Ms Rennell that he does not have the ability to contemplate what the impact of his actions or decisions are on the emotional welfare of his child (emphasis added).[90]
[90] Page 6 of the report prepared by Dr O in annexure A of the affidavit of Dr O sworn 1 and filed 9 November 2017.
Dr O concluded that although the father did not appear to have a psychiatric condition, “he has obsessional and narcissistic traits”.[91]
[91] Page 6 of the report prepared by Dr O in annexure A of the affidavit of Dr O sworn 1 and filed 9 November 2017.
Dr O went on to state that although not an expert in child psychology, he believed that whilst the father would be able to meet the general material needs of a child, he may have difficulty meeting the emotional needs of a younger child and perhaps struggle to deal with a child who may exhibit emotionally challenging behaviours and that:
There is potential risk that Mr Eagans could respond with irritability or disciplinary measures not appropriate to a child’s age should [X] show difficult behaviours that children sometimes demonstrate if they are over-stimulated, tired or unwell.[92]
[92] Pages 6 and 7 of the report prepared by Dr O in annexure A of the affidavit of Dr O sworn 1 and filed 9 November 2017.
When asked to comment on Dr O’s report during cross-examination, the father said that he felt very uncomfortable with Dr O; that he could not relax and therefore Dr O may have gained a false impression of him.[93]
[93] Transcript page 146 at lines 33 to 34.
When asked whether people might find him “an angry, forceful person” the father disagreed and preferred to describe himself as a confident person.[94] He went on to say:
[94] Transcript page 146 at lines 44 to 46.
If you know … say your career, for example… your skillset and you do it well then you apply it with confidence. To someone who’s not confident with that skillset, they may see that as forceful. However, I strongly disagree. It’s being confident in your abilities.
…
That’s why I speak to the counsellor, Ms D, and I work through anything and everything… and I’m willing to work on it. If she can see something that… she perceives that I’m doing, that I’m not aware of, then I’m willing to work through it. And I do so and my reports will show that.[95]
[95] Transcript page 147 at lines 1 to 12.
In his report on the mother, Dr O made the following observations:
Ms Rennell presented as a youthful, slim and tall lady in elegant casual clothes and attention to grooming… As is quite typical for Family Law assessments, there was a tendency to downplay her own emotional issues and there was an excessive mention of her son’s welfare, but for most, I formed the impression that she gave a straightforward account of difficulties. There was no indication of an underlying depressed mood or presence of a specific psychiatric condition. She was judged to be of good intelligence and without any cognitive difficulties. Although having insight into the nature of her current predicament and the effect on her emotional state, Ms Rennell is less aware of deeper and subconscious issues associated with longstanding feelings of vulnerability.[96]
[96] Pages 4 and 5 of the report prepared by Dr O in annexure A of the affidavit of Dr O sworn 1 and filed 9 November 2017.
Dr O concluded that he:
… formed the impression, buttressed by the notes from Dr P, that Ms Rennell has psychological insecurities pre-existing her relationship with Mr Eagans and this was judged by her choosing relationships with ‘strong’ men, preference for neatness and order, significant reaction to first trimester pregnancy loss and observation on mental status, where she was somewhat defensive as a way of covering that more vulnerable aspect to herself. In the context of these insecurities, she has manifested a range of clinical symptoms, including depressive phases requiring antidepressant medication and maintenance treatment. On the other hand, if the allegations regarding aggression she has been subjected to are factually valid, she has been able to tolerate these without developing a PTSD type clinical condition. On balance, there is no current psychiatric diagnosis recorded.[97]
[97] Page 5 of the report prepared by Dr O in annexure A of the affidavit of Dr O sworn 1 and filed 9 November 2017.
Importantly, Dr O concluded:
I do not have any concerns that due to mental health issues there will be adverse effect on her child, [X], if she has ongoing custody.[98]
[98] Page 5 of the report prepared by Dr O in annexure A of the affidavit of Dr O sworn 1 and filed 9 November 2017.
Supervised time between father and [X]
The reports from both Bethany and Ms Q’s supervised contact service indicate that the time spent by the father with [X] was positive overall. They were indicative of a child happy to see his father, and a father who clearly loves and wants to spend time with his son. For example, in Mr E’s report of the sessions conducted at Bethany annexed to his affidavit of 31 October 2017, he makes the following observations:
[X] presented as eager to see his father as he arrived for each contact session. [X] appeared comfortable in the sessions, and appeared to enjoy spending time with Mr Eagans. They would engage in play together indoors and outdoors and [X] would spend his time laughing during their play together. [X] would display affection to his father, often giving him a hug and a kiss, or telling Mr Eagans that he loves him.[99]
[99] Page 6 of the affidavit of Mr E sworn and filed 31 October 2017.
However, there were some concerns about the father’s capacity to put his son’s interests ahead of his own, and his capacity to put his feelings towards the mother to one side for the benefit of his son.
For example, Mr E’s affidavit also contains the following comments:
Mr Eagans would often present prior to contact in a heightened presentation. He would vent to the worker about issues related to Ms Rennell-Eagans, for example that she was alienating him from [X]’s life, and that the circumstances were her fault. Mr Eagans at times presented as emotional when discussing the current circumstances. In the final contact the worker addressed with Mr Eagans her concerns about his high level of emotion and anger directed at Ms Rennell-Eagans. Mr Eagans identified that he was surprised by this comment, as he felt he had his emotions under control.
The contact was supervised by a relieving worker on 2 occasions. On both occasions at the next supervised contact session, Mr Eagans reported information to the regular supervising contact worker about issues that had occurred in the previous session. The regular worked (sic) checked the information from the previous case notes, as well as discussing the information with the relieving worker directly. On both occasions it was found that the information provided by Mr Eagans was not true. (emphasis added)[100]
[100] Page 6 of the affidavit of Mr E sworn and filed 31 October 2017.
The report of the last visit on 3 June 2017, by way of example, contained the following:
… The worker spoke to Mr Eagans about ways of managing his anger and frustration towards Ms Rennell-Eagans. Mr Eagans seemed to become angrier and upset as he spoke, telling the worker ‘This is all her fault’. She will so (sic) anything to get back at me even using [X] to hurt me.” Mr Eagans told the worker Ms Rennell-Eagans was lying and he had contacted Derryn Hinch to let him know what he was being put through. Mr Eagans told the worker his solicitor had said he had never heard of such a manipulative, narcissistic person and understood Mr Eagans (sic) frustrations (or words to that effect). The worker told Mr Eagans she was concerned with his high level of emotion and anger directed at Ms Rennell-Eagans and suggested Mr Eagans call his counsellor (sic) to discuss this. Mr Eagans told the worker his (sic) was surprised by this as he felt he had his emotions/anger under control.[101]
[101] Page 24 of the affidavit of Mr E sworn and filed 31 October 2017.
During cross-examination, various adverse comments about the mother as reported by the supervisors were put to the father. These included that the mother was alienating the father from [X], that the mother “would stop at nothing until she saw him locked up” and the like.[102] The father said he could not recall exactly what was said, but he may have said something along those lines. He stressed that if he did make these comments they were not made in the presence of [X].[103]
[102] Transcript page 129 at lines 2 to 3.
[103] Transcript page 129 at lines 5 to 6.
It was put to the father that these comments are reflective of the fact that he is unable to control himself. He denied this was the case.[104]
[104] Transcript page 130 at line 9.
After putting to the father a comment made by Mr E that he was concerned about his high level of emotion and anger directed at the mother to which the father expressed surprise as “he felt he had his emotions under control”, the following exchange occurred:
Mr Grant:… you believe that at these sessions, you had your emotions under control. Yes?
Mr Eagans: When [X] was in the present room, yes, I did.
Mr Grant:What about when he wasn’t? What about when it was just the worker and you?
Mr Eagans:There’s a timeframe between me arriving – assuming that what you’re saying is correct… and the time of [X] being made present, you know, people can calm down. You’ve had a bad day, takes a couple moments and then you’re good again.
… It may have been perceived by the worker that I had a lot going on at that particular point in time and I think it’s just a perception thing.[105]
[105] Transcript page 131 at lines 16 to 33.
Family consultant’s evidence
Ms F, family consultant provided two family reports in this proceeding. The first report prepared on 20 September 2017 contained the following comments about the father:
Mr Eagans presented as somewhat overwhelmed. … At times Mr Eagans displayed some inconsistency. Given that Mr Eagans has attended various programs and counselling, the writer was left unclear about whether Mr Eagans may have been responding to the writer’s questions by giving the ‘expected answers’ or if he was genuine and truthful in his responses.[106]
[106] Paragraph 22 of the family report prepared by Ms F dated 20 September 2017.
…
Mr Eagans admitted that he had ‘vented’ to Contact Centre staff at Bethany. He noted that one of the workers at Bethany had commented to him that he appeared emotional and angry at times. He agreed that his emotions were not under control at that time and that he could appear ‘flustered, fidgety and stern in my voice’. He added that he was not so much angry, as he was frustrated. He explained that he had been having a ‘tough time’ regarding not spending time that he may have more to learn regarding his emotional responses in light of comments made in the report from Bethany. [107]
[107] Paragraph 34 of the family report prepared by Ms F dated 20 September 2017.
The mother has not provided a draft order reflecting the approach she contends for. Nor has she provided any evidence that procedural fairness has been afforded to the trustee of the relevant superannuation fund with respect to any proposed superannuation splitting orders.
Agreed assets and liabilities
The parties agreed to the following joint assets and their values at the time of trial were as follows:
Joint assets
Value
Property A (joint valuation)
$650,000
Total joint assets
$650,000
Superannuation
Super Fund L superannuation (husband)
$81,000
Super Fund M superannuation (wife)
$30,000
Total superannuation
$111,000
The parties agreed that their liabilities at trial were as follows:
Joint liabilities
Value
Bank 1 mortgage secured over Property A property
($158,928)
[Company] Pty Ltd liability
($7,315)
Total liabilities
$166,243
The wife also deposed to holding bank accounts on trust for [X] which had a total of $7,900. The father’s evidence is that at the date of trial, the accounts set up for [X] had increased to $8,200. He confirmed that the initial intention, when the account was established was to build up funds in that account and then present it to [X] when he turned 18. He further stated:
The account was originally designed for that, yes, but on separation at mediation we… said we would use the funds within the account to provide for our son, as long as... all I asked Ms Rennell was to do is provide me a copy of a receipt of the item of clothing and I would authorise the money without hesitation.[132]
[132] Transcript page 179 at lines 13 to 17.
I have proceeded on the basis that this amount ought not be included as it is agreed by the parties that it is being held on behalf of [X] and neither party sought its inclusion.[133]
[133] Transcript page 154 at lines 31 to 35.
Addbacks
There is a dispute between the parties as to the use to which the father put the sum of $44,500 withdrawn by him from the parties’ joint account. Pursuant to the May 2018 orders, the father filed an affidavit in which he states:
a)the Bank 1 ‘joint account’ from which the moneys were withdrawn was an account which he generally used as his own account;
b)the sum of $35,000 was withdrawn from that account on 10 March 2016 and deposited into his Bank 1 Visa debit account;
c)on 8 April 2016, he spent $20,000 of that sum on gambling, horse racing, poker machines and online football;
d)on 11 April 2016, he withdrew a further $19,000 from the Bank 1 Visa debit account and that those sums were used to pay building materials, contractors and expenses in relation to the property at the former matrimonial home; and
e)on 9 April 2016, he withdrew a further $9,700 from the Bank 1 joint account which he states that he used to reduce the line of credit on the parties’ [Credit Card] Account.
This affidavit was filed pursuant to the May 2018 orders. There is no other evidence which deals with the said withdrawal of $44,500.
Whilst it might be said that the $20,000 spent on gambling was wasted by the husband, given the manner in which this evidence was put before the court, I am not satisfied that that amount ought to be added back to the property pool. I have however had regard to it as part of the section 75(2)(o) factor.
Disputed assets and liabilities
The wife also claimed that the following assets and liabilities ought to be included in the pool:
| Assets | Ownership | Wife’s value |
| Motor Vehicle 1 | Husband | $50,000 |
| Savings at bank | Wife | $725 |
| Two shipping containers of chattels | Joint | $20,000 |
| Household chattels | Joint | $5,000 |
| Motorcycle | Husband | $20,000 |
| Super Fund N | Husband | Not known |
| Total | $95,725[134] |
[134] Financial statement of the wife filed 24 October 2017.
In his financial statement filed 1 May 2018, the husband identified the following assets:[135]
[135] Financial statement of the husband filed 1 May 2018.
a)the former matrimonial home;
b)two bank accounts in his name with nominal balances;
c)household contents in the former matrimonial home which he valued at $17,000;
d)various other items of property valued at $24,000 which he deposed were in the possession of the wife; and
e)Super Fund L superannuation to the value of $81,000.
The husband has given no evidence about the existence of or value of any superannuation held on his behalf in a Super Fund N fund.
The husband also deposes that in addition to the mortgage in respect of the former matrimonial home, he also has a personal loan from Mr S of $5,000 and a loan from Mr T of $5,000.[136] There is a notation that appears to suggest that the loan from Mr T was for legal fees.
[136] Paragraph 52 of the financial statement of the husband filed 1 May 2018.
As stated above, the court must make findings on the basis of evidence before it and applying the standard of proof on the balance of probabilities. I will deal with each of the disputed property items in turn.
Motor Vehicle 1
As stated, the wife claims that the husband left the family home with the Motor Vehicle 1 and asserted that it had a value of $50,000. No evidence was led by the wife as to the value of the Motor Vehicle 1 during the hearing.
In the course of cross-examination about the circumstances in which he left the family home upon being served with the intervention order on 13 April 2016, the husband confirmed that he left the family home with the Motor Vehicle 1.[137] He also gave evidence that the wife had an Motor Vehicle 2[138] although neither party made reference in their financial statements to these vehicles.
[137] Transcript page 77 at line 4.
[138] Transcript page 77 at line 8.
In cross-examination, the husband also stated that he no longer had the Motor Vehicle 1 as it had been ‘written off’ in a car accident and that it was uninsured.[139] He stated that the car was sold for salvage as it had not been insured. He also stated that it had previously been insured for $50,000. The husband stated that he received about $20,000 for the vehicle.[140] No evidence was led by the husband as to how these funds were applied.
[139] Transcript page 160 at lines 29 to 35.
[140] Transcript page 172 at line 21.
I accept the husband’s evidence that he no longer has the Motor Vehicle 1 and that he sold it for wreckage following the accident in January 2017. There is no evidence that he retains any part of those funds or that he has purchased any other asset which should be included in the pool.
I therefore find that neither the Motor Vehicle 1 nor the proceeds of the sale of the wreckage of that vehicle ought to be added back to the pool.
Savings at bank
The wife claims that she had a savings account with approximately $725. Given the minimum impact that this would have on the asset pool and the absence of any evidence about this amount, I do not propose to include this in the asset pool.
Two shipping containers
It is common ground that during the relationship, the parties had stored two shipping containers containing various items at the maternal grandparents’ property.
It is also common ground that the husband removed these shipping containers from the maternal grandparents’ property whilst they were away on holidays.[141]
[141] Transcript page 173.
It is also common ground that at some point prior to the removal of the shipping containers, the wife had opened them. The husband’s evidence is that the containers had been “forcefully broken into on Ms Rennell’s parents’ property and items were removed”.[142]
[142] Transcript page 162 at lines 8 to 9.
The husband asserts that he has personal property which remains in the possession of the mother as set out in an annexure to his financial statement which totals $24,000. Other than conceding that she had possession of the custom built stainless steel/glass table set, the wife denied that she had any of those things in her possession. Moreover, no evidence was led as to the value of any of those items. In those circumstances, there is no evidentiary basis upon which to include those items in the pool.
The wife’s financial statement asserts that her half share of the value of the contents of tools and other property taken by the father in the shipping containers is valued at $10,000.[143]
[143] Paragraph 43 of the financial statement of the wife filed 24 October 2017.
Neither party has properly identified what those assets are or indeed put any evidence before the court as to the valuation of those assets.
In those circumstances there is no evidence before the court as to what value, if any to attribute to those assets.
Household chattels
The husband claims that there are household chattels which are valued at $17,000.[144] The wife estimates that the household assets are worth $2,500.[145]
[144] Paragraph 42 of the financial statement of the husband filed 1 May 2018.
[145] Paragraph 42 of the financial statement of the wife filed 24 October 2017.
Again neither party has properly identified what those assets are or indeed put any evidence before the court as to the valuation of those assets.
In those circumstances there is no evidence before the court as to what the household chattels are, and importantly what value, if any, to attribute to those assets and I do not propose to include the value of household chattels in the pool.
Motorcycle
In cross-examination, the husband confirmed that he had the Motorcycle at the date of separation. He stated that he subsequently sold it and received in the order of $8,000 which he used to pay his legal fees.[146]
[146] Transcript page 160 at lines 6 to 12.
On this basis, this sum ought to be added back to the asset pool.
Super Fund N
There is no evidence before the court of the husband having any Super Fund N.
Return of property
In the father’s case outline, he seeks the return of the following items:
a)a 13 inch Asus notebook (“notebook”);
b)stainless steel/glass dining table set;
c)two hard drives; and
d)husband’s building tools of trade.[147]
[147] Page 11 of the father’s outline of case document filed 4 May 2018.
In the course of cross-examination when asked about the notebook, the father stated that he left it at the family home and he had not been allowed to retrieve it.[148] The father further said that when he was asked to leave the premises on being served with the intervention order, he had minimal time to remove his property. There is some evidence that the father returned, although there is a dispute about the number of occasions, during which he retrieved some of his things.[149]
[148] Transcript page 162 at line 44.
[149] Exhibits Q, R and S.
During cross-examination, counsel for the wife conceded that she had the stainless steel/glass dining table set which the father seeks. Other than that, her instructions were that she does not have the other items he seeks to have returned to him as set out above. There is insufficient evidence before me to make a finding that the items claimed remain in the wife’s possession.
The father concedes in his written submissions that there is no evidence as to the motor vehicles, furniture tools and other personal items.[150] However notwithstanding this concession, he seeks to include his possessions in the asset pool, which he says are in the possession and control of the wife to the value of $24,000.
[150] Paragraph 80 of father’s written submissions filed 19 June 2018.
The only evidence attesting to this is the husband’s financial statement which does not specify with particularity what these possessions are, whether they are in fact in the wife’s possession or any independent evidence as to their individual value.
Husband’s loans
Other than statements made in the husband’s financial statement, there is no evidence as to the nature of these loans, when they were incurred and the circumstances in which they are repayable.
There is insufficient evidence on which to base a finding that these loans ought to be included in the asset pool.
Findings as to asset pool
On the basis of the findings above, the net available asset pool for distribution between the parties comprises the following:
Assets
Value
Property A (joint valuation)
$650,000
Addback (sale proceeds of Motorcycle)
$8,000
Total
$658,000
Liabilities
Value
Bank 1 mortgage secured over Property A property
($158,928)
[Company] Pty Ltd
($7,315)
Total liabilities
($166,243)
TOTAL NON-SUPERANNUATION ASSETS
$491,757
Superannuation
Value
Super Fund L (husband)
$81,000
Super Fund M (wife)
$30,000
Total superannuation
$111,000
Contributions
The parties cohabitated for approximately five and a half years.
In relation to contributions, the husband submitted that he has made the overwhelming contribution to the assets of the parties.
The parties agreed that the husband contributed $63,749 to the deposit for the former matrimonial home and the mother contributed $41,200. It was also agreed that during the relationship, the father contributed $300,356 to the mortgage and the wife contributed $174,650.[151]
[151] See joint statement at annexure E-1 of the affidavit of the husband affirmed and filed 21 May 2018.
It is common ground that the father has, until sustaining his recent workplace injury, earned a significantly higher income than the mother.[152]
[152] Exhibit E and Exhibit O.
The husband’s evidence is that at the time of commencement of co-habitation, he had sold his home in Suburb Q for $205,000 and that he had “cleared approximately $100,000 from that sale”.[153] He also gave evidence that at the commencement of cohabitation, he was working as a fly in fly out worker and earning in the order of $150,000.
[153] Paragraph 48 of the affidavit of the husband sworn and filed 10 October 2017.
The husband further states in his October 2017 affidavit that:
a)in April 2012, he received a termination payment from his employer at the time of $50,000 and that this sum was used to reduce the mortgage;
b)that he arranged significant renovations to be undertaken on the former matrimonial home, undertaking much of that work himself with such work funded from his ‘wage and redrawing on the mortgage’;
c)he paid approximately $20,000 for the honeymoon;
d)in 2015, he paid for the wife’s ‘cosmetic’ surgery to the sum of $11,500.[154]
[154] Paragraphs 51, 53 to 55, 57 and 68 of the affidavit of the husband filed 10 October 2017.
The husband also states in his affidavit sworn 10 October 2017, that approximately six months after the marriage, he sold a motorcycle which was worth $12,000 and purchased a [Motorcycle].
The husband states that on his return following the parties’ honeymoon, he spent a short time working in Town L earning about $67,000 gross per annum, before returning to do fly in fly out work and then earning approximately $182,000 gross per annum. He says that he continued in this role until about [date] 2016. He was then unemployed for some 12 months due, he says to the stress associated with the breakdown of his relationship. At the time of swearing his affidavit in October 2017, his evidence was that he was receiving Workcover payments of $656 per week as a result of an injury to his finger.
The mother’s case is that contributions during the relationship were roughly equal and that she has contributed more post separation with minimal financial assistance from the father.
In the mother’s affidavit of 24 October 2017 she states that:
a)at the commencement of cohabitation, she had savings of $40,000, a motor vehicle and superannuation of no more than $10,000;
b)the husband had a motor vehicle and some furniture including a lounge suite; and
c)the parties purchased the former matrimonial home for $412,000 of which she paid $41,000 for the deposit.
320.The mother deposed to working throughout the relationship, initially on a full time basis and then after the birth of [X], on a part time basis other than for a short period of time after a car accident in 2014 when she was unable to work due to her injuries. She gave evidence that her income as a [occupation omitted] was significantly less than that of the father.
The father argues that on the basis of the agreed figures, he contributed 63% to the mortgage and the wife only contributed 37%. It appears that these figures purport to be based on the total contribution made by the parties to the mortgage including both the deposit and repayments during the relationship.[155]
[155] See joint statement at annexure E-1 of the affidavit of the husband affirmed and filed 21 May 2018.
Even if these figures are correct in absolute terms, this conflates the exercise which the court must undertake in weighing contributions for the purpose of section 79(4). The court must consider the respective contributions of the parties at the start of the relationship and then, separately, consider their respective contributions, including direct and indirect financial and non-financial contributions during the relationship and post-separation.
Although the father has given evidence, which I accept, that he sold his former home at the commencement of his relationship with the mother and ‘cleared’ $100,000, other than the payment of a deposit of $63,749, there is no evidence as to how the balance of that $100,000 was applied.
I also accept the father’s evidence that shortly after the commencement of cohabitation, the father received a retrenchment payment of $50,000 which related to pre-relationship employment and, to the extent that this amount was paid towards the mortgage, the husband should receive some adjustment in his favour for his further contribution towards the purchase of the former matrimonial home.
The father’s case appeared to be that his greater financial contribution towards the mortgage of the former matrimonial home and the expenses associated with the home renovations as well as his own personal exertion in this regard is evidence of his greater contributions during the relationship.
The father’s case was that the short duration of the marriage requires a “closer examination of the parties’ financial contributions.”
Counsel for the father referred the court to Damiani & Damiani [2010] FamCA 217 (“Damiani”) and McMahon & McMahon [1995] FLC 92-606; (1995) 19 Fam LR 99 (“McMahon”). Damiani’s case involved a marriage of only 19 months and, although like here, there was a child of the relationship, in Damiani, the husband made a significant initial contribution to the assets of the parties at the commencement of the relationship. That is not the case here.
In McMahon, the parties commenced cohabitation in 1987, were married in August 1988 and cohabitation ceased no later than 16 December 1993 (although there was a dispute about that). Whilst it was a six year marriage, there were no children of the relationship in that case. The Full Court of the Family Court said:
The short duration of and the unhappy nature of the marriage, coupled with the parties’ strict division of assets and their method of dealing with them lent itself to an asset-by-asset approach, particularly where they had separately identified another group of assets as joint.[156]
[156] McMahon & McMahon [1995] FLC 92-606; (1995) 19 Fam LR 99 at [104].
McMahon is distinguishable from the present circumstances for the following reasons:
a)firstly, there were no children of the relationship; and
b)secondly, there were different assets and the parties themselves treated some assets as those of the husband, some as assets of the wife and some as joint assets. There is no such distinction made here.
Moreover in McMahon, the Full Court made the following observation in reference to the case of Norbis v Norbis (1986) FLC 91-712:
One of the reasons why their Honours expressed a preference for the global approach is because it is natural to assess the contribution by a spouse as a homemaker and parent, either by reference to the whole of the parties’ property, or to some part of that property as distinct from individual assets.
However, this is not a case where the homemaker and parent contribution looms large and, having regard to the parties’ agreement that it should be regarded as equal for the period of the marriage, this presented no obstacle to the adoption of the asset-by-asset approach.[157]
[157] McMahon & McMahon [1995] FLC 92-606; (1995) 19 Fam LR 99 at [105].
The present case does involve an issue of contribution by the mother as homemaker and parent. The decision in McMahon does not assist.
It was submitted on behalf of the father that when the parties commenced cohabitation, there was no real merger of their financial resources. The evidence does not support such a finding.
It was further submitted that in a short marriage, section 75(2) factors are less likely to be important and that it may be just and equitable to make orders which reflect contributions. However, it is conceded that in this case, given that the mother is to remain the primary carer of [X], there will need to be some adjustment in the mother’s favour although this ought to be small.
The mother’s case was that contributions during the relationship were essentially equal. Moreover, it is said on behalf of the mother that post separation, she has had the sole care and responsibility for the child with minimal if any financial support from the father. It was submitted that there should be a loading to the mother to take into account these factors in the order of 10% to 12.5%.
As is clear from section 79(4) of the Act, the court is required to have regard not only to financial contributions but also other contributions which have been made either directly or indirectly to the acquisition, conservation or improvement of any property of the parties, as well as contributions made by the parties to the welfare of the family including any contributions made in the capacity of homemaker or parent.
I find that the father did make a slightly greater financial contribution at the commencement of cohabitation, however, their contributions during the relationship were roughly equal. Although the husband may have paid more off the mortgage and undertaken more of the manual labour involved in the home renovation including dealing with tradespeople, I find that the wife contributed both in the role of homemaker and also by working to the best of her ability beyond household duties. This is particularly so in circumstances where the husband was away for a significant part of the relationship whilst working as a fly in fly out worker.
I also find on the basis of the evidence before me that the wife, having effectively had sole care and responsibility for [X] post-separation, has made slightly greater contributions post-separation towards the maintenance of the former matrimonial home.
Lack of disclosure
In the course of cross-examination, the wife’s counsel put to the husband that he had failed to make proper disclosure about a range of financial issues in this case. For example, it was said that he had not disclosed proper records about his work history or his common law claim arising from the injury to his finger. In response, the husband stated that he felt that this was “irrelevant”.[158]
[158] Transcript page 40 at lines 19 to 20.
Section 75(2) factors
The wife also argued that the section 75(2) factors ought to result in an adjustment in her favour as she will have primary care for [X]. Not only will the wife have limited capacity to work on a full time basis for a number of years while [X] is young, but her income earning capacity is significantly less than that of the husband.
The husband’s case in relation to future needs is that, unlike the wife, he does not currently derive a good income but is rather in receipt of weekly payments as a result of a workplace injury. It is clear from the parties’ respective financial statements that even at present when the husband is in receipt of work cover payments, his earnings are more than double those of the wife’s.
Moreover, to the extent that the husband is planning to retrain, I am satisfied that any improvement in his income earning capacity will be represented in appropriate child support assessments.
The husband gave the following evidence in relation to his capacity for employment:
a)he received medical advice that he should be able to return to full time work within eight months of the hearing – although no medical evidence to this effect was produced to the court;
b)as a result of his injury to his hand, he was not likely to able to return to his pre-injury work;[159]
[159] Transcript page 151 at line 22.
c)however, he has recently received approval to undertake further study, which he hoped would improve his capacity to obtain employment.[160]
[160] Transcript pages 151 to 152.
On the basis of the husband’s prior income earning history, the absence of any evidence to the contrary from his treating doctors as to his future employment prospects and the husband’s own evidence, I find on the balance of probabilities that the husband has the capacity to earn a higher income than the wife. The evidence before the court is that the husband is approved to undertake a further course of study and that it is his expectation that this will assist him to return to work within his industry albeit in a different role.
It was argued that the wife’s claim for a greater adjustment on the basis that she will have primary care of [X] to the almost exclusion of the father “ought to be viewed with scepticism”[161] in light of her position in relation to parenting which would see the father have no or minimal involvement in [X]’s life.
[161] Paragraph 88 of the father’s written submissions filed 19 June 2018.
For the reasons set out in relation to the parenting aspects of this case, I do not accept this submission. As is evident from my reasons in relation to the parenting aspect of this case, there is good reason for the mother’s application to limit the father’s time with [X].
Both parties are of similar ages. Both parties have suffered injuries which has impacted upon their income earning capacity to some degree.
Subject to the injuries referred to above, neither party’s capacity to obtain and maintain gainful employment appears to have been permanently limited.
The wife will have the principal care of [X] who is still very young.
Neither party has re-partnered, nor has any other dependents.
The asset pool in this case is modest and unless either party is able to maintain the former matrimonial home following these proceedings, they will each need to obtain alternative accommodation. In any event, given that the former matrimonial home is the only real asset owned by the parties, one party will need to re-establish themselves in alternative accommodation.
The marriage was of five years duration, however, it produced a child of the relationship.
Both parents wish to have an ongoing role in [X]’s life. However, for the reasons set out above in this decision, the husband will have minimal involvement in [X]’s life at least for the foreseeable future.
Under section 75(2)(o) of the Act, the court may also have regard to any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account. In this case, although I have not included various assets or addbacks claimed by the wife in the asset pool, it is appropriate for the court to have regard to the following facts in determining this matter:
a)by his own admission, the husband withdrew $45,500 from the parties’ joint account at or around the time of separation and used a significant proportion of these amounts, on his own evidence, for his own benefit;
b)moreover, the husband, again on his own evidence, sold the wreckage of his car for something in the order of $20,000 and has used these funds for his own benefit post-separation;
c)the husband failed to disclose various issues relevant to the property claims in this matter, including that he is currently in the process of instituting proceedings in respect of his workplace injury; and
d)other than contributing $50 per week to the account established by himself and the wife for the benefit of [X], he has not contributed financially to [X]’s living expenses or to the cost of the mortgage for the former matrimonial home post-separation.
Whether it is just and equitable to alter the parties’ property interests
The parties agreed that it would be just and equitable to alter their property interests in this case.
In view of Stanford, the fact that the parties are no longer living in a marital relationship together with the various findings made above in relation to contributions and future needs, I also consider that it would be just and equitable to alter the parties’ property interests in this case.
What order is just and equitable?
Having regard to all of the circumstances discussed above, I am satisfied that just and equitable orders would see:
a)the wife retain or receive 60% and the husband retain or receive 40% of the non-superannuation assets; and
b)an equalisation of the parties’ superannuation entitlements.
Unfortunately, however, the parties have not provided any evidence that procedural fairness has been afforded to the trustee of the husband’s superannuation fund. An order for the equalisation of the parties’ superannuation would have resulted in a base amount from the husband’s entitlements to the wife’s fund in the sum of $25,500.
In the circumstances, it is just and equitable and in the interests of bringing these proceedings to a conclusion without the need for any further litigation, to make an order for a further cash adjustment in the wife’s favour of $17,000 of the non-superannuation pool in lieu of any superannuation split to equalise the parties’ entitlements. The adjustment to the wife is less than the amount which would have been ordered in a superannuation splitting order having regard to the fact that the wife will receive this as a cash payment rather than having to wait to access any superannuation entitlement at some point in the future. This adjustment has been taken off the total payment made by the wife to the husband to give effect to an overall 60/40% property division.
On the basis of these findings, it is just and equitable for orders to be made providing:
a)the wife to retain the former matrimonial home;
b)the wife to take on the liability for the mortgage and the [Company] Pty Ltd liability;
c)the wife to make a payment in the sum of $172,000 to the husband (payment of approximately $189,000 less the cash adjustment to equalise superannuation of $17,000);
d)there be a default provision for the sale of the matrimonial home if the wife fails to make the payment referred to above; and
e)each party otherwise retain all items in their respective names, possession and/or control including superannuation.
I therefore make the orders set out at the beginning of these reasons.
I certify that the preceding three-hundred and sixty (360) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 14 December 2018
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Costs
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Procedural Fairness
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Duty of Care
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