ELIAS & ELIAS
[2018] FamCA 244
•20 April 2018
FAMILY COURT OF AUSTRALIA
| ELIAS & ELIAS | [2018] FamCA 244 |
| FAMILY LAW – CHILDREN – Best interests – Sole parental responsibility – Where the relationship between the parties is poor – Credit – Where both parties have serious mental health issues – Findings of family violence – Where both parents pose some risk to the child – Where the child has always lived with the mother – Where the child would be at an unacceptable risk in the unsupervised care of the father – Where regular telephone communication between the child and father found not to be in the best interests of the child – Restraint on relocation – Where the wife is free to change her location of residence as long as orders are complied with – Ordered that the mother have sole parental responsibility for the child – Ordered that the child live with the mother – Order for the father to spend supervised time with the child. FAMILY LAW – PROPERTY – Sale of property – Where the wife made an application seeking an order permitting her to sell her property to cover legal fees – Where consent order was made to sell the wife’s property – Where the wife sought leave to reopen her case in the substantive proceedings to provide evidence about the proceeds of the sale of the wife’s property, discharge of the mortgage and repayment of a loan – Leave granted. FAMILY LAW – PROPERTY – Settlement proceedings – Where it was found to be just and equitable to make an order under s 79 of the Family Law Act 1975 (Cth) – Contributions at time of cohabitation – Where both parties found to have made direct financial contributions – Where the wife has been the major income earner – Where both parties have made significant contributions to the welfare of the family – Where wife’s contribution in this regard was greater than that of the husband – Contributions following separation – Contributions fall significantly in favour of the wife – Contributions assessed at 57 per cent to the wife and 43 per cent to the husband – Section 75(2) factors Where both parties have serious mental health conditions – Where both parties likely to earn current level of income for the foreseeable future – Where the wife is the primary caregiver for the child and will continue to have major financial responsibility for the child – Where the husband pays only modest child support – Where there is a substantial level of personal debt of both parties – Adjustment of 10 percent made in favour of the wife – Wife to receive 67 per cent of available property and superannuation and husband 33 per cent. | |
| Family Law Act 1975 (Cth): ss 4AB, 60B, 60CA, 60CC, 61DA, 65AA, 65DAA, 69ZT, 75(2), 79(2) Surveillance Devices Act 2007 (NSW) | |
| A v A (1998) FLC 92-800 | ||
| APPLICANT: | Ms Elias | |
| RESPONDENT: | Mr Elias |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 7597 | of | 2013 |
| DATE DELIVERED: | 20 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 16, 17, 18, 19, 20 January 2017, 30 March 2017 and 24, 25, 26, 27, 28 and 31 July 2017, 1 and 10 August 2017 and 19 February 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie |
| SOLICITOR FOR THE APPLICANT: | Gordon & Barry Lawyers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Batey on 16, 17, 18, 19 and part of 20 January 2017; Mr Knox SC for remainder of 20 January 2017; Mr Gardiner on 30 March 2017; Mr Sansom SC on 24, 25, 26, 27, 28 & 31 July and 1 August & 10 August 2017 |
| SOLICITOR FOR THE RESPONDENT: | MCW Lawyers for 16, 17, 18, 19, 20 January 2017; Willis & Bowring Solicitors for 24, 25, 26, 27, 28 & 31 July and 1 August & 10 August 2017 and 19 February 2018 |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Neville |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parenting
The following parenting orders are made in relation to the child X born on … 2012 (“the child”):
All previous parenting orders are discharged.
Parental Responsibility
The wife shall have sole parental responsibility for the child.
Live With
The child shall live with the wife.
Time Spent
The child shall spend time with the husband as follows:
(4.1)for a period of three months from the date of these orders, each alternate Sunday for six hours commencing on 29 April 2018 to be supervised by C Group (or other professional contact supervision service);
(4.2)Thereafter:
(4.2.1)each alternate Sunday for six hours;
(4.2.2)on Father’s Day for six hours;
(4.2.3)on Christmas Day in even numbered years for six hours;
(4.2.4)on New Year’s Day in odd numbered years for six hours;
(4.2.5)on the child’s birthday and on the husband’s birthday for three hours as agreed but failing agreement from 4.00 pm to 7.00 pm;
all time spent to be supervised by C Group (or other professional contact supervision service) or the husband’s sister, Ms D Elias or a combination of both.
All occasions of time spent shall be as agreed between the husband and the wife but failing agreement shall be from 10.00 am to 4.00 pm unless otherwise specified in these orders.
The husband shall be solely responsible for all associated costs of C Group supervision services (or other professional contact supervision service).
For the purposes of the child’s changeover:
(7.1) C Group is to collect the child from the wife’s residence at the commencement of periods with the husband and return him to the wife’s residence at the conclusion of such periods (the Court noting the location of the wife’s residence is to remain confidential);
(7.2)the husband’s sister Ms D Elias is to collect the child from the bandstand in Suburb E Square at the commencement of periods with the husband and the wife is to collect the child from Ms D Elias at the bandstand in Suburb E Square at the conclusion of such periods.
Within 14 days the wife is to provide to Ms Elias a letter sent by express post to F Street, Suburb G with confirmation of her mobile phone number and her email address (with any changes to such number and email address to be notified in writing to Ms Elias).
The wife shall be at liberty to suspend the child’s time with the husband up to four occasions each year provided that:
(9.1) she gives the husband at least 14 days’ notice; and
(9.2)the times she nominates do not occur on more than two consecutive occasions.
The husband continue to attend his psychologist Mr H for a further period of 12 months or other such period as may be recommended by Mr H and at a frequency as recommended by Mr H. In the event that Mr H becomes unavailable to provide such services, the husband is to engage with a psychologist recommended by either Mr H or the J Clinic.
The wife continue to attend upon her counsellor Mr K for a further period of 12 months or such other period as may be recommended by Mr K and at a frequency as recommended by Mr K.
The wife and the husband shall not denigrate or insult the other to or within the hearing of the child and they shall use their best endeavours to ensure that no other person does so.
Within 14 days of these orders, the husband shall contact L Group NSW on … to enrol in the ‘Taking Responsibility’ Program and to attend and complete the course.
BY CONSENT the husband shall pay one half of the costs of the Independent Children’s Lawyer and the Court notes that the husband has paid this in the amount of $16,771.05.
The wife shall pay one half of the costs of the Independent Children’s Lawyer, unless payment is waived, and payment shall be suspended for three months.
That pursuant to s 62B of the Family Law Act 1975 (Cth) (“the Act”), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
That pursuant to s 65DA(2) of the Act, the particulars of the obligations these orders create and the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
Property
That the husband and the wife forthwith do all things and sign all documents necessary to cause all funds in the controlled monies account with the Commonwealth Bank of Australia in the name of the wife, the signatory being her solicitor, Mr David Barry, to be paid to the wife.
That within 60 days the husband pay to the wife the sum of $84,932.
That upon receipt of such payment and the funds in the controlled monies account the wife shall provide the husband with a Withdrawal of Caveat in respect of the property at M Street, Suburb E (“the M Street property”).
That in the event that the husband fails to comply with Order 19 above the wife shall be appointed Trustee for Sale of the M Street property and the following shall apply:
(21.1)the M Street property shall vest in the wife as Trustee for Sale, she shall have exclusive possession thereof and the husband shall forthwith vacate the property;
(21.2)the wife as Trustee for Sale shall hold the said property on trust to sell it at the best price reasonably able to be obtained;
(21.3)the wife shall have all the powers of a Trustee for Sale of real estate appointed pursuant to the laws of New South Wales including or in addition thereto, the wife is empowered to do all things, including signing all documents necessary to effect a sale of the M Street property including but not limited to:
(a)determining whether the sale is to be by private treaty or auction;
(b)determining the real estate agent or agents with whom to list the property;
(c)determining the sale price, including the listing price from time to time, or the reserve price in the event of sale by auction; and
(d)nominating the conveyancing solicitor, such solicitor to be agreed upon by the husband and wife within seven days of such nomination, and failing agreement, to be appointed by the Real Estate Institute of New South Wales.
(21.4)the wife shall pay the proceeds of sale as follows:
(a)all costs and expenses of the sale of the M Street property including legal costs and disbursements, agent’s commission, valuer’s fees, advertising and sale expenses;
(b)all amounts necessary to discharge the mortgage, including any arrears;
(c)all amounts necessary to discharge all outstanding rates, electricity, amounts incurred in preparing the said property for sale or other service accounts in respect of any service provided for the property outstanding as at the date of completion of the sale of the property;
(d)to reimburse each of the parties for all payments made by each of them in preparing the property for sale;
(e)to the wife the sum of $84,932 plus interest calculated in accordance with the Family Law Rules 2004 (Cth) as from the date of default by the husband to the date of receipt by the wife; and
(f)to the husband, the balance then remaining.
In default of either or both the husband and the wife executing all such documents as may be necessary to comply with these orders within the time provided:
(a)a Registrar of this Court shall be authorised to execute all such documents on behalf of either or both parties; and
(b)if either party procures compliance with this order by obtaining execution of documents pursuant to this order, then the party procuring such execution of documents will be indemnified by the other party for his or her costs and expenses incurred in obtaining such compliance.
That the husband forthwith do all things and sign all documents necessary to transfer to the wife his interest in the joint Westpac account …94.
That the husband and the wife are declared the sole owner of all other items of property and superannuation in their possession and/or control respectively.
That all exhibits be released.
That both parties have leave to relist these proceedings in relation to implementation of the property orders by arrangement with the Associate to Johnston J.
Costs
That the wife’s application that the husband pay her costs of her application to reopen her case be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Elias & Elias has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7597 of 2013
| Ms Elias |
Applicant
And
| Mr Elias |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Elias (“the wife”) and Mr Elias (“the husband”) commenced cohabiting in 2006. They married in 2009 and separated in October 2013. They have one child, X who was born in 2012 (“the child”). They are in dispute about what parenting arrangements are in the best interests of their child and also in relation to their property and superannuation.
They have asked this Court to determine these matters.
Applications
Parenting
A copy of each party’s minute of orders sought (as amended) is included as Annexures “A”, “B” and “C” to these reasons.
The Independent Children’s Lawyer (“ICL”) seeks orders to the following effect:
·that the wife have sole parental responsibility for the child;
·that the child spend time with the husband as follows:
(i)until 1 September 2018 each alternate Saturday for six hours supervised by C Group;
(ii)between 1 September 2018 and 28 February 2019 with time to be supervised by a combination of C Group and the husband’s sister Ms D Elias:
1.each alternate Saturday for six hours;
2.on Father’s Day 2018 for six hours; and
3.on New Year’s Day 2019 for six hours.
(iii)from 1 March 2019, with time to be in the presence of the husband’s sister, Ms D Elias:
1.each alternate Saturday for six hours;
2.on the child’s birthday for three hours;
3.on the husband’s birthday for three hours;
4.on Father’s Day for six hours;
5.on Christmas Day ending in odd numbered years for six hours; and
6.on New Year’s Day ending in even numbered years for six hours;
·in the event that Ms D Elias is not available to be present then the time is to occur in the presence of an employee of C Group or other professional contact supervision service;
·the husband be solely responsible for all the costs of C Group;
·the wife be at liberty to suspend the child’s time with the husband for up to four occasions each year provided she gives the husband at least 14 days’ notice and the times she nominates do not occur on more than two consecutive occasions;
·the husband to continue to attend upon his psychologist;
·the wife to continue to attend upon her counsellor;
·neither party to denigrate or insult the other party within the hearing of the child; and
·the husband to enrol in the “Taking Responsibility” program and attend and complete the course.
Although the ICL’s Minute of Orders did not include a residence order, it was clear that the ICL supported the wife’s case that the child live with her.
The wife sought orders similar in substance to those sought by the ICL with some differences. Rather than the child spending time with the husband each alternate Saturday for six hours the wife sought such time on each alternate Sunday but in accordance with the periods sought in the ICL’s Minute.
In addition, the wife sought an order that the husband continue to attend upon his psychiatrist, Dr N. The wife also sought detailed orders concerning changeover, detailed restraints for the protection of the wife and the child, as well as orders permitting the wife to travel with the child overseas.
The wife’s Minute of Orders did not include an order for the child’s residence. But there was no contest about residence. It is clear from the wife’s Application and submissions on her behalf that the wife is seeking an order that the child live with her.
On the other hand, the husband seeks orders to the following effect:
·the child live with the wife;
·until 1 January 2019 the wife have sole parental responsibility for the child’s long-term care, development and welfare on the basis that she inform the husband by email of any decision she is to make and to seek his views in writing, and to consider such views prior to making her decision;
·from 1 January 2019 the parents have equal shared parental responsibility in relation to the child’s long-term care, welfare and development;
·each parent to have sole parental responsibility for the day to day decisions in relation to the child’s short-term care, development and welfare whilst he is in their care respectively;
·the child spend time with his father as follows:
(i)until the child commences primary school each alternate Saturday from 10.00 am to 4.00 pm in the company of at least one of the paternal grandparents or paternal aunt; Tuesday and Thursday each week from 2.00 pm to 4.30 pm in the company of one of the above paternal family members; on Father’s Day from 10.00 am to 4.00 pm; on the husband’s birthday from 2.00 pm to 4.30 pm; on each of the paternal grandparents’ birthdays from 2.00 pm to 4.30 pm and on Christmas Day from 10.00 am to 4.00 pm;
(ii)upon the child commencing primary school, in the presence of one of the paternal family members, each alternate weekend from 10.00 am Saturday to 4.00 pm Sunday in Week 1 and each Wednesday evening from the conclusion of school to the commencement of school the following day and during school holiday periods as specified in the Minute of Orders;
(iii)upon the child commencing the school year in 2019, each alternate week from the conclusion of school Thursday to the commencement of school on the following Tuesday and for one half of all school holiday periods and on special occasions for not less than six hours;
(iv)upon the child attaining six years of age, telephone communication between 6.00 pm and 7.00 pm and at any time requested by the child in any form of communication, including electronic communication;
· various orders concerning notification about health, safety or welfare issues, any emergency situation and details of any proposed overseas travel by the wife and child;
· the husband continue to attend upon his psychologist;
· the wife continue to attend upon her counsellor;
· a restraint on any relocation of the child’s residence; and
· certain orders in relation to school.
Passage of trial
The hearing commenced on Monday, 16 January 2017. There was considerable irrelevant material in the affidavits of the wife and her mother. Ms Christie prepared marked up copies of those affidavits to reduce the irrelevant material. Mr Batey strongly objected to the serious allegations of sexual and other misconduct being admitted into the evidence.
I ruled that the provisions of s 69ZT of the Family Law Act 1975 (Cth) (“the Act”) would apply, that is, that the provisions of the Evidence Act 1995 (Cth) would not apply subject to relevance. This required consideration of the Full Court case of Khalil & Tahir-Ahmadi (2012) FLC 93-506. Mr Batey had argued that the matters before the Court were of such seriousness, that is, allegations of non-consensual sex and violence as to bring them within the exception in s 69ZT(3)(a) and therefore the rules of evidence should apply. I indicated in very brief oral reasons that I did not accept the argument.
It was conceded by Ms Christie that the rules of evidence could apply to the matters which were the subject of certain proceedings in the New South Wales District Court referred to below.
There was a disqualification application on behalf of the husband which I dismissed giving ex tempore reasons.
There was an issue about the admissibility of certain recordings which the husband made of conversations between him and the wife without her knowing that he was recording such. I admitted the recordings into the evidence after giving brief reasons for finding that the recordings were not illegally obtained as defined in the Surveillance Devices Act 2007 (NSW).
On Friday, 20 January 2017 Mr Batey sought leave for his client to give evidence on the voir dire in respect of the recordings. What emerged was that the husband gave evidence which was different from his instructions to his legal representatives.
Both Mr Batey and the husband’s solicitors MCW Lawyers then sought leave to withdraw from the proceedings. In respect of both applications I granted leave.
Later that day Mr Knox of senior counsel appeared to seek an adjournment for the husband which I granted, the details of which can be seen by the orders and directions made on 20 January 2017.
The trial resumed on Monday, 24 July 2017. The husband had engaged new solicitors, Messrs Willis & Bowring. Mr Sansom of senior counsel appeared for the husband. The matter proceeded for a further seven days concluding on 10 August 2017. There was a further brief appearance by the husband and the wife on 19 February 2018.
Background
The background facts are as follows.
The husband was born in 1973.
The wife was born in 1979.
In approximately June 2003 the husband purchased an apartment at O Street, Suburb P (“the Suburb P property”) for $280,000. This was funded by a loan on mortgage from the ANZ Bank for approximately $267,000 and the balance came from the husband’s savings and funds from his parents.
In October 2005 the wife purchased an apartment at Q Street, Suburb E (“the Q Street property”) for $275,000. She used savings and a mortgage to R Bank. The wife rented out the spare bedroom of the apartment for $140 per week. She undertook renovations to the property at a cost of approximately $30,000.
In 2006 the parties commenced cohabitation when the husband moved into the Q Street property.
In September 2006 the wife commenced working for S Accountants on a salary of $110,000 per year including superannuation.
In October 2006 the wife refinanced the mortgage secured against the Q Street property and borrowed a further $14,500 to reduce other debt.
In 2007 the parties purchased a motor vehicle for $42,000 using a hire purchase agreement.
In November 2007 the husband was made redundant from his employment and received a payment of approximately $33,000 gross.
On 16 June 2008 the husband registered the company T Pty Ltd (“TPL”).
In 2009 the parties were married.
In November 2009 the parties refinanced the loan secured against the Q Street property and borrowed a further sum.
In June 2010 the wife refinanced the Q Street loan increasing it to $352,000 to assist the purchase of another property and to fund some renovations.
On 22 June 2010 the parties purchased the property at M Street, Suburb E (“the M Street property”) for $940,000. The purchase was financed using a home loan with Westpac. The husband’s parents provided a guarantee of up to $200,000. After the purchase the parties leased the property back to the vendor for 12 months.
In mid-2010 the husband was charged with assaulting a bus inspector. In August 2010 the husband was found to have perpetrated the assault but no conviction was recorded and he was placed on a 12 month good behaviour bond. The husband appealed but his sentence was confirmed.
On 3 November 2010 the husband registered the company U Pty Ltd.
On 25 January 2011 the husband sold the Suburb P property for $369,500 producing net proceeds of approximately $92,000.
In January/February 2011 the wife became concerned about the husband’s behaviour. She observed him to become increasingly agitated. She described his behaviour as being “extremely paranoid and erratic”. The husband’s parents also became very concerned about his behaviour.
On 8 February 2011 the husband was admitted to V Hospital for a mental health assessment. He was later transferred to V Mental Health Facility and later The W Unit at B Hospital. He was in hospital for approximately three weeks.
In mid-2011 the husband commenced working for Company Y. He worked part time and was paid at the rate of approximately $135,000 per annum. The husband was made redundant in late 2011.
In 2012 the child was born. After the birth of the child the wife took six months maternity leave and when she returned to work the child commenced attending day care three days per week.
In late September 2012 the wife became concerned about certain things the husband was saying. She became seriously concerned that he might have been experiencing a relapse in his mental health. The wife reached out to the husband’s parents but felt unsupported by them.
On 23 December 2012 the parties moved into the M Street property. From this time the Q Street property was leased for $545 per week.
From 19 August 2013 the parties rented out the upstairs apartment in the M Street property for $490 per week. Another apartment in the property was rented out for $790 per fortnight and the parties lived in the third apartment.
On 20 August 2013 the husband withdrew $76,000 from the facility secured on the Q Street property and deposited it into the parties’ joint bank account. He then transferred $50,000 into his personal account and withdrew an amount totalling $30,792.90.
On 23 August 2013 the parties went on a holiday to Europe.
On 18 October 2013 the parties separated. The husband left the former matrimonial home. The following day, the husband was charged with assault and also with sexually assaulting the wife. A provisional AVO was issued against the husband for the protection of the wife and the child. From the date of separation until December 2014, the husband did not spend time with the child. After separation the child commenced attending day care five days per week.
On 21 October 2013 the wife arranged to have the parties’ joint account frozen.
On 28 October 2013 the husband attended V Hospital in a distressed and agitated state, accompanied by his parents. The husband subsequently attended his general medical practitioner, Dr Z who referred him to Dr N, psychiatrist. Dr N considered that the husband had experienced a relapse of paranoid psychosis.
On 29 October 2013 the husband appeared at Suburb BB Local Court in relation to the criminal proceedings and an interim AVO issued.
In 2013 the criminal proceedings were adjourned to for a month.
On 20 December 2013 the wife commenced these proceedings in the Federal Circuit Court in respect of financial issues only.
In early 2014 the wife commenced attending counselling sessions as part of a Victims Support program. She attended 44 sessions in total and ceased this in 2015 when the subsidised sessions became unavailable.
On 4 February 2014 the husband filed a Response and sought orders for parenting and property settlement.
On 6 February 2014 interim orders were made by consent providing that amongst other things, the wife have exclusive occupation of the M Street property and that the parties each meet expenses related to the properties in equal proportions. It was ordered that the husband be permitted to retain $50,000 being the remainder of the funds he removed from the parties’ joint account on 20 August 2013. The Court ordered that an ICL be appointed.
On 5 September 2014 the Federal Circuit Court ordered that the child spend two hours per week of supervised time with the husband at the CC Contact Service, to commence once the criminal proceedings against the husband had been finalised. The orders also provided for the paternal grandparents to spend time with the child at his day care centre once per week, which commenced thereafter. Dr DD, psychiatrist, was appointed as the single expert to prepare a report about relevant matters. The proceedings were transferred to this Court.
In 2014 the husband’s criminal proceedings were heard by the District Court of New South Wales (“the District Court”). He was found not guilty on all charges.
On 20 December 2014 the husband commenced spending time with the child at the CC Contact Centre.
On 24 January 2015 when the husband was spending time with the child at the contact centre, the supervisor noticed bruises on the child. The supervisor subsequently made a report to the Department of Family and Community Services (“FACS”). A Joint Investigation Response Team (“JIRT”) investigation was conducted but nothing adverse was substantiated.
On 10 March 2015 the husband amended his Response, seeking orders to have the primary care of the child.
On 7 April 2015 a divorce order was made.
On 29 June 2015 the report prepared by Dr DD was released.
In July 2015 the husband commenced a relationship with Ms EE.
On 27 August 2015 the wife reported to the police that she believed the child had been inappropriately touched by someone at childcare. This was investigated by JIRT the following day, who determined that nothing inappropriate had occurred.
On 14 October 2015 a final AVO was made in the Local Court at Sydney against the husband. The husband filed an appeal.
On 20 October 2015 orders were made that, in addition to the time permitted in the 5 September 2014 orders, the husband spend supervised time with the child on 23 December 2015. Orders were made about financial issues including transfer of the M Street property to the husband and a payment to the wife by the husband of $100,000.
On 12 January 2016 the wife and the child moved out of the M Street property.
In March 2016 the husband’s appeal against the AVO was heard and the AVO was dismissed.
In 2016 the husband commenced a relationship with Ms FF.
On 3 January 2017 Dr DD completed her second report.
On 19 February 2018 orders were made by consent granting leave to the wife to reopen her property case for the purpose of confirming the net proceeds of sale of the Q Street property and noting that after payment of the loans on Q Street and repayment of the joint Company GG loan … the sum of $351,908 was deposited to a controlled monies account held by the wife’s solicitors. The wife had prepaid $3,835 to the agent for marketing the property. This amount will be reimbursed to the wife.
Credit
This is a matter in which the credit of the parties and their witnesses is important.
The Wife
The wife appeared to have considerable difficulty with the process of cross‑examination. Initially she was unable to remain composed and appeared to be in a state of great distress.
When the hearing resumed on 24 July 2017 and opening remarks were being made by counsel, the wife rushed out of the courtroom holding her mouth as though to stop herself from throwing up. At other times during the hearing she removed herself from the courtroom.
Because of her distress I arranged for her evidence to be given from a different courtroom to provide space between her and the husband.
During her cross-examination the wife appeared to make little effort to speak at a volume which did not cause me to struggle to hear her to the point where I asked her to endeavour to co-operate more by speaking at a higher volume. She did this briefly before lapsing back into what appeared to be a state of morbidity. The wife seemed to spark up when she was asked about her parenting of her son and she spoke more clearly.
Overall she was a poor witness. She has given different accounts of the revolver incident which I shall refer to below. In my view, this affects her credit seriously. But I accept the submission by her counsel that if the Court did not believe the wife’s evidence about this incident, this would not be sufficient reason simply to disbelieve her evidence in respect of every issue and I do not do so.
As will become clear below, Dr DD, the single expert psychiatrist, has diagnosed the wife as suffering from post traumatic stress disorder (“PTSD”). She said that the wife is experiencing a high state of anxiety particularly as a consequence of these proceedings.
Ms HH
Ms HH is the wife’s mother. She was thoughtful and responsive in her answers to questions.
Generally I regard her as a truthful witness. But I had a sense that she was not as forthcoming as she could have been in relating her experience of the wife’s anxiety. I also have reservations about the truthfulness of her denial about the revolver incident.
Ms II
Ms II was not required for cross-examination and therefore her evidence comes in unchallenged.
The Husband
The husband was thoughtful and reasonably responsive in his answers to most questions. He made concessions in relation to numerous matters. But in response to allegations about violence and the state of his mental health he appeared either to be in a state of denial about the seriousness of these matters or to minimise them.
I have reservations about the reliability of his evidence. At times he did not demonstrate a precise recollection of events.
Mr JJ Elias
Mr JJ Elias is the husband’s father. He took a measured, thoughtful approach to his answers and gave me the impression that he was endeavouring to assist the Court. He made concessions.
It was the case that he could not always remember details but I did not regard this as him being in any way evasive.
I regard Mr JJ Elias as a truthful and reliable witness.
Ms KK Elias
Ms KK Elias is the husband’s mother. She was responsive in her answers to questions. Ms KK Elias was thoughtful and careful to give an accurate answer. She made concessions and acknowledged that the wife was a good mother and looked after the child well.
I regard Ms KK Elias as a witness of the truth.
Ms D Elias
Ms D Elias is the husband’s sister. She too was responsive, thoughtful and co‑operative. I accept her evidence as truthful.
Mr LL
Mr LL is a friend of the husband. He was responsive to questions and forthcoming.
I regard his evidence as likely to be reliable.
The Professionals
Each of Dr DD (psychiatrist and single expert), Dr MM (psychiatrist) and Mr H (clinical psychologist) were very professional and co-operative as the Court would expect. I shall refer to the evidence of each of them in some detail below.
The revolver incident
This matter was afforded some prominence in the hearing so I shall deal with it in some detail.
The husband said that a couple of times during their relationship the wife spoke to him about an incident during her childhood where her mother had threatened to commit suicide or murder/suicide with a revolver after an argument with the wife’s father. The husband said that the wife said as follows:
I was there when my parents were arguing and then my mum tried to commit suicide with my dad’s revolver.
The husband said that in June 2013 the parties spoke about this for the second time. He said he clarified what had happened and asked the wife whether the gun had discharged. He said she said “Yeah, it went off. It was lodged in the wall between the lounge and the bathroom”. He said he asked “Where were you at the time?” and that she said “In my bedroom”.
Ms Christie asked the wife during examination in chief whether she had ever said to the husband words to the effect that her mother had allegedly threatened suicide or her father threatened murder/suicide such that a bullet lodged in their home. The wife replied “No”. Ms Christie then asked did any incident involving suicide or murder/suicide or the discharge of bullets occur between her parents in their home or otherwise. The wife replied “No”. Ms Christie then asked to the extent that the husband’s account in his affidavit suggested that the bullet lodged in a wall between the lounge room and the bathroom, what would she say? The wife replied “no such wall exists”.
The following day, during the course of Mr Batey’s cross-examination of the wife, he suggested to her that she certainly denied whether there was any suggestion that her mother had tried to commit suicide and fired a revolver and that a bullet had lodged in the wall of their home. The wife said that she had never said that. Counsel for the husband sought to play a recording to the wife about which strong objection was taken. Ultimately after much argument a recording was played to the wife after which counsel for the husband asked her whether she would want to change her evidence in respect of the revolver and bullet matter. She said that she wanted to change the evidence that she had given. It was suggested to her that she had lied about this part of her evidence. To my perception she had great difficulty conceding that she had lied about the matter. But eventually the wife conceded that she had said those things. The wife then attempted to shift the responsibility for this account of what she said had occurred onto the husband saying that she had not made all this up. She said “I just went along with what he was asserting so that he would leave me alone”.
Upon being cross-examined on the later occasion by Mr Sansom of senior counsel about this matter, and being reminded that it was she who said these things to the husband, the wife said that she did this to “placate” him.
In my view, all this reflects poorly on the wife who was obviously lying.
The husband’s mental health
The state of mental health of each of the parties is highly relevant in these proceedings, each having serious mental health issues.
In relation to the husband, there is some difference of medical opinion about his current state of mental health
Dr DD
The husband was interviewed by the Chapter 15 single expert Dr DD on 3 February 2015, 31 March 2015 and again on 7 November 2016 and 29 December 2016. Dr DD has prepared two reports for the purposes of these proceedings.
In her first report dated 24 June 2015, Dr DD opined that the husband has had at least one psychotic episode having been admitted to V Hospital (in February 2011) followed by transfer to B Hospital as an involuntary patient, such period of hospitalisation continuing for what she said was about a month. She described this as clearly not a transient psychotic disturbance, as sometimes occurs in the context of trauma, but a more sustained illness and said that the file showed a diagnosis of delusional disorder. She said she would designate his condition as psychotic disorder. She said the file indicated that recommendations were made for continued medication and follow up but this did not eventuate. Dr DD said that during her interview with the husband he presented as calm and contained but his thought processes were at times tangential and disordered, which she said suggested that some psychotic disorder continues to affect him. She said the husband is not in ongoing treatment and does not have any insight into the nature of his disturbance or the need for treatment which she said is a concern. She said it is also a concern that the husband’s parents appear not to accept that he is suffering from mental illness yet when they arranged his admission to hospital they clearly conveyed to staff their concerns about his mental health. Dr DD said there is sufficient evidence from the clinical records and from her assessment on that occasion to suggest that the husband has an untreated psychotic illness.
In her second report dated 3 January 2017 Dr DD said that while the husband presented as less thought disordered than at her previous assessment in 2015, nevertheless his style of communication was unusual and the impression persisted that there were still signs of paranoid thinking and thought disorder. Dr DD said that the husband was seriously minimising his admission to hospital as having been a minor event when he was actually scheduled to a mental health unit and detained as an inpatient for four weeks (actually three weeks). Dr DD noted that the husband’s period of hospitalisation, from February 2011, followed legal proceedings over an incident with a bus which had occurred in March 2010. She said that the Police narrative showed that in that encounter the husband displayed considerable aggression, whether this was an entirely aggressive act or whether it was fuelled by some paranoid thinking at the time was difficult to say, but he was charged with assault. He kept this matter a secret from the wife for some time which Dr DD said tended also to suggest paranoid thinking and when he did tell her about it apparently he said that his lawyer had put something in his coffee, which she said was also suggestive of paranoid thinking. Dr DD noted that finally the husband apparently told his father that the inspector who gave him the “ticket” and the man who came to court were two different people. Dr DD said that this is suggestive of a “delusion of substitution” or “delusional misidentification syndrome” which she said usually develops in association with a specific mental disorder such as psychotic disorder or schizophrenia. She said that if that is the case then there is more likelihood that the husband has an ongoing mental disorder and there is therefore a greater risk of relapse.
Dr DD said it was not clear to her whether there were two episodes of paranoia, one relating to the bus incident and one developing after the court process relating to the incident, or whether paranoid ideas about the inspector began earlier in relation to the incident and continued until the hospital admission. She said that perhaps there were two episodes or else the episode leading to admission had been developing for quite some time. She said that in any event, if the bus incident was not reflective of a psychotic process but was simply an act of aggression that would reflect poorly on the husband’s personality attributes, particularly if the Court was to accept the wife’s assertions about domestic violence perpetrated by the husband against her. She said that men who are violent, both outside and inside the home, more often conform to an anti-social profile. She said that that was not to say that the husband has an anti-social personality disorder but history would suggest that he has some anti-social traits.
Dr DD noted that at the husband’s discharge the hospital recommended ongoing treatment but the husband has not pursued this. It appears that he does not accept that he had experienced a significant episode of mental illness.
Dr DD went on to report that at interview in November 2016 the husband’s thought disorder was not as marked as it had been at interview in 2015 but in her view it still remained mildly evident, with tangential form and some idiosyncratic word usage which she said is often a feature of psychotic thinking. She said her impression was that there had not been a complete resolution of his illness.
Dr DD said that what was also of concern and clearly evident at interview, was the husband’s reconstruction of events and what she described as the marked externalising processes whereby he minimised his difficulties and attributed them to problems with the wife’s adjustment and behaviour. She said that such externalisation of blame is related to anti-social and aggressive behaviour and that domestic violence offenders often minimise their aggression or attribute blame to their partner.
Dr DD remained of the view that the husband suffers from an ongoing psychotic process which she said is only mildly evident at present but carries a risk of relapse. Dr DD said the risk is documented in the scientific literature and she quoted the following:
There is a high rate of relapse within 5 years of recovery from a first episode; this risk is diminished by maintenance antipsychotic drug treatment, while discontinuing antipsychotic drug therapy increases risk of relapse by almost 5 times (Robinson et al, 1999) and non-adherence to treatment is associated with relapse, hospital admission and persistent psychotic symptoms (Morken et al, 2008). Non-specific early warning symptoms of relapse include ‘sub threshold’ or transient psychotic symptoms (Fitzgerald, 2001); relapse is usually preceded by subtle changes in thought, affect or behaviour, and medication initiated at early warning signs and maintenance medication reduce relapse rates (Birchwood et al, 2000).
Taking the above into consideration, Dr DD noted that the husband did not adhere to recommended treatment and she said the concerns she has already noted about his thought processes were in keeping with “subtle changes in thought”. Dr DD also said that the matters which continued to cause her concern that the husband’s psychotic situation had not completely resolved included the following:
· subtle disturbances in the husband’s thought processes;
· making recordings of his partners which she said is really unusual behaviour and this has become a pattern of behaviour with his partners including recent relationships in respect of which there appear not to have been difficulties. Dr DD thought this was likely to be connected with the husband’s previous paranoid thinking; and
· a longstanding preoccupation with fertility - using testosterone, presenting the wife with a cup of his semen during his hospitalisation in 2011 (and informing her that it was his legacy).
Dr DD expressed concern that the husband’s parents appeared not to accept that he is suffering from mental illness and do not accept that there are any limitations of his parenting capacity. She said that this contrasts with their clear concerns about his mental health, including concerns about him holding a knife at the time when they had arranged his admission to hospital. Dr DD again referred to the husband’s denial, minimisation and attribution of blame and said that this is a common phenomenon in family violence. She said that if this is the case then, independently of any question of psychotic illness, such history and such externalisation processes suggest significant personality disturbance and a lack of insight that bode poorly for the husband’s future adjustment and for his rehabilitation from previous psychiatric difficulties.
Dr MM
The husband had approached Dr MM, forensic psychoanalyst, for an examination and report concerning his state of mental health, after the husband had read Dr DD’s first report. Dr MM interviewed the husband on 29 March 2016 and reported on his examination on 4 April 2016. Dr MM presented a more favourable opinion about the husband’s state of mental health than that of Dr DD.
Dr MM noted that in February 2011 the husband first received psychiatric care and was diagnosed with a first onset psychotic illness characterised by ideas of a paranoid or persecutory type. He said that the husband appears to have responded relatively quickly after hospitalisation and with a relatively short treatment period with an anti-psychotic medication. He went on to say that he understood that there had been no subsequent episodes of psychosis and no ongoing psychiatric care. Dr MM also noted that the illness had not returned and said it was now in complete remission. Dr MM said that the husband does not have any evidence of suffering from a psychiatric illness and the previous diagnosis of his psychotic episode-delusional disorder has now fully resolved. But Dr MM did go on to note that as the husband has had one psychotic illness episode, his risks, compared to the general population are increased in terms of him possibly developing a second psychotic episode. Dr MM said that if and when or whether at all this will occur cannot be predicted. He said based on the husband’s history of apparently being well now for a number of years this would suggest his risks of suffering further illness of an acute psychotic type are probably reducing.
Dr MM said based on the husband’s current history and presentation he would not normally be recommending that the husband see a mental health professional. However he noted the husband’s current situation and recognised the concerns others might have in relation to his past history and the need for some possible ongoing support during this time of stress. Accordingly, he recommended that the husband again consult his psychologist, Mr H for ongoing psychological support.
Mr H
Mr H, clinical psychologist, has prepared several reports about the husband’s mental health. Before the Court were reports dated 21 July 2015, 6 September 2015, 17 November 2016, 14 January 2017 and 19 July 2017.
Initially Mr H was approached to prepare a report about the state of the husband’s mental health. More recently the husband has been engaging with Mr H in a therapeutic relationship. Mr H interviewed the husband on numerous occasions for the purpose of preparing a report and also conducted psychological testing as has been referred to in the report of Dr DD. Mr H has read the reports by Dr DD, Dr MM and Dr N. Mr H interviewed the husband on 17 July 2015 and administered the Personality Assessment Screen (“PAS”) which he said measures potential problem areas in mental health. He said that the husband scored in the low range which indicated his potential for behavioural and emotional problems was substantially less than is typical for community adults. His results were low for depression, low for anxiety and low for stress. Mr H, referring to the husband’s hospitalisation said that he likely suffered a single episode of psychosis, which the husband attributed to sleep deprivation and stresses in his marriage at the time. Mr H said that the husband did not display any signs of psychiatric or psychological disorder as at 17 July 2015 and he said that the psychometric test results and clinical review rules out the presence of any frank symptoms of psychiatric or psychological disorder, particularly psychosis.
Mr H has subsequently interviewed the husband. He has remained of the opinion that the husband has shown no evidence of psychotic illness, abnormal speech patterns, paranoid thought process or disturbance in affect or mood. Mr H has consistently remained of the opinion that the husband suffered a single episode of psychosis and that he continues to exhibit excellent coping skills with improved emotional and psychological resilience.
Mr H referred to Dr DD’s opinion that the husband presented with residual signs of psychotic illness. Mr H said that exhaustive examination by way of the Personality Assessment Inventory (“PAI”) which he administered on 12 July 2017 did not indicate any such symptoms.
But when this matter was raised with Dr DD she said that the PAI was not “looking for” psychotic phenomena but rather, was concerned with personality profile. She said that she thought a more relevant test would be one designed to exclude psychotic phenomena.
As indicated above, more recently the professional relationship between the husband and Mr H became a therapeutic relationship. Mr H said that this was in accordance with the recommendations of Dr MM that the husband would benefit from ongoing psychological contact. This therapeutic focus occurred from mid to late 2016.
Preference
I must say I prefer the professional opinion of Dr DD about the husband’s state of mental health over the opinions of both Dr MM and Mr H. Dr DD was much more fully informed about the husband’s behavioural history than the others.
It became clear during the hearing that Dr MM did not have the husband’s complete history when forming his opinion. In particular, Dr MM was not aware of the likelihood that the husband had suffered a relapse in his mental health in late 2013 and early 2014.
Dr MM conceded during cross-examination that Dr DD was in a better position than him to make an assessment of the husband because of the greater breadth of relevant material which she had read and also because she had the advantage of interviewing the wife. Dr MM said that he was unaware that the husband’s psychiatrist, Dr N had concluded in October, November and December 2013 and January 2014 that the husband had suffered a relapse of his mental health condition. Dr MM agreed that if the husband had suffered a subsequent episode, then that would increase his risk of further relapse. Furthermore, Dr MM was not aware of the following:
·that the husband had indicated that there was some history in his family of mental illness (Dr DD said that the husband had informed her that an aunt had mental health issues);
·that during an argument with the wife the husband had punched the wall with sufficient force to break his hand;
·that the husband had had an altercation with a bus inspector and was found guilty of assault;
·that during the entirety of their relationship the husband required sex almost every day; and
·that the husband had used testosterone, steroids and Viagra.
Dr MM agreed that these matters would be relevant to forming his professional opinion. Upon being shown the letter dated 16 January 2014 from Dr N to the husband’s general medical practitioner, Dr Z, Dr MM acknowledged that there was a clear second episode of mental illness but acknowledged that that had resolved in response to anti-psychotic treatment. Dr MM also agreed that as a protection against any further psychotic episode the husband should see an appropriately qualified mental health professional on a regular basis to monitor his mental health.
Mr H was clearly privy to less information about the husband’s behaviour than Dr DD. Mr H was not aware of all relevant information about the bus incident. Nor was he properly informed about all the details of the husband’s behaviour at the time of his hospitalisation, as well as many other relevant matters including the fact that the husband had been engaged in recording conversations between himself and his partner, Ms FF without her knowledge.
The wife’s mental health
Dr DD said in her first report that the wife presented as terrified and traumatised. She said at the last interview the wife was manifestly in a state of severe hyperarousal, hypervigilance and preoccupation. She said that this constitutes PTSD of the type that is frequently seen in the context of family violence. Dr DD said that the trauma is chiefly the result of a difficult relationship with the husband, the various legal proceedings that have arisen and allegations made against the wife that she had caused physical injury to the child. Dr DD observed that the latter matter had been determined by JIRT to have arisen out of accidental injury at the child’s kindergarten.
When Dr DD again interviewed the wife on 7 November 2016 she described her as being very agitated and distressed and expressed the opinion that the wife continued to suffer from PTSD.
The husband appears to have the view that the wife might suffer from a borderline personality disorder. In his affidavit he made numerous observations and criticisms about behaviour of the wife during the parties’ relationship and referred to behavioural matters which he alleged she had told him occurred before the commencement of their relationship.
Such observations and criticisms included the following:
· The wife told him that she had an unhappy childhood and upbringing and that she was bullied at school. It appears to be conceded that the wife had been bullied at school.
· The wife told him about the revolver incident referred to above. As indicated above, the wife denied this. But, as indicated above, when presented with the recording of her conversation with the husband about the matter the wife said that it was the husband who had made the assertions. The view which I have arrived at, having considered all of the evidence in relation to this matter, is that it is more probable than not that the wife told the husband such an incident occurred. Whether the incident described by the wife actually occurred or the wife made it up is not clear to me.
· The wife argued for the sake of arguing and often after an argument would wish to have sex with him. I am satisfied that the wife discussed issues concerning her anger about the husband with her psychologists. In April 2011 she informed her psychologist Dr NN that she felt guilty because she had a short temper with her husband and felt angry all the time. The wife said she tried not to get angry but found herself taking it out on the husband later. In June 2013 the wife informed her psychologist Mr OO that her anger had improved a lot.
· The wife would threaten self-harm. He said she would say things like “I’m going to get myself stabbed” and “I’m going to drive off a cliff” or “I’m going to drive into oncoming traffic”. He said he arranged for a kill-switch to be installed in her motor vehicle without her knowledge although he said during cross-examination that he never used this.
· The wife experienced night terrors and would wake screaming and shaking in her sleep.
· In 2008 the wife threatened him with a large kitchen knife then lunged towards him and screamed. The wife said it did not happen like that, saying amongst other things that pain from her endometriosis felt like a knife.
· In approximately 2007, apparently during foreplay to sex, the wife asked him to slap her. The wife denied that she requested the slapping .
· In approximately 2012 the wife smashed a clock in anger throwing it on the floor. The wife said that she knocked the clock off the wall out of anger and frustration.
· In August 2012 the wife was having difficulty with breastfeeding their new baby the child and dropped him into the husband’s lap from a distance of approximately 40cm, at which the child immediately commenced crying. The wife denied this.
· The wife would scream at the child after he began to cry. The wife denied this.
· In mid-2013 the wife hit her head on the bedside table and demanded sex saying “I’m a psycho bitch. If you don’t have sex with me see what else I can do to myself”. The wife agreed that she sought to have sex with the husband on this occasion but denied hitting her head on the bedside table. The wife conceded that she had initiated sex with the husband on some occasions but said that she did so only to appease him.
· In July 2013 the parties were arguing and the wife suddenly began to strangle the husband. She said she just wanted to have sex.
Dr DD said in her second report that if the husband’s account is reliable
…then it suggests ongoing features of personality disturbance of the borderline type in which case there may be issues of risk of psychological harm to the child … Such assessment of the mother would need to be informed by longitudinal evidence of borderline symptoms and behaviours, which in my view is lacking.
As can be seen from the above, there is evidence of the wife arguing with the husband, being very angry with him and to use her words “taking it out on him, feeling angry all the time”, knocking a clock off the wall in anger and, I would accept, demanding that he have sex with her. The wife also conceded that on occasions she would “fly off the handle”.
The wife wrote a handwritten letter to the husband which assumed prominence in the hearing. The husband said this letter was written in 2007 shortly after the incident which involved him slapping the wife during sex. The wife denied this and said that she wrote the letter in 2011 in circumstances where she was forced to do so by the husband. She said that he was preparing his defence “for the bus inspector incident and he wanted evidence that he had not hurt me”.
The wife was cross-examined in considerable detail by the husband’s first counsel, Mr Batey, about the circumstances of writing this letter. I have no hesitation in preferring the husband’s evidence that the letter was written to him in 2007 over the wife’s assertion that she wrote it in 2011. There are significant differences between the account she gave about this in the District Court proceedings compared with her account in these proceedings. She also agreed during the District Court hearing that she had written the letter shortly after the 2007 incident.
In any event, the tone and content of the letter appear to me to be likely to be the outpourings of the wife as a person frustrated, somewhat depressed and anxious about the state of her relationship than as a work of the husband attempting to provide evidence that he had not hurt the wife. To my mind, there is a very personal element which does not align readily with the latter.
It is also clear from the wife’s handwritten letter to the husband during the course of their marriage that the wife suffered low self-esteem, describing herself as “not worthy of your acceptance”, saying:
I think you must just be using me for gratification or to help you get ahead or whatever and so I resent you. And then I think that’s all I deserve anyway so that’s why I want you to be rough or hit me or whatever, because I think that’s what I deserve. But at the same time I’m angry because I think it’s not fair … I feel like my life is one big episode of never being good enough or worthy including being good enough or worthy of you … I’m afraid one day you’ll wake up and realise what a loser I am and how much better you could do … I just get … the whole thing in my head again of deserving pain because I’m worthless, and then I resent you and hate myself and get carried away and either get angry at you or just want you to hurt me more… Maybe I’m responsible for all the problems between us, in which case I’d understand if you left, but you can’t blame me for preparing myself for that by protecting myself emotionally.
That within 14 days of these orders, the Father to contact L Group on … to enrol in the ‘Taking Responsibility’ Program and to attend and complete the course.
Order in relation to the costs of the Independent Children's Lawyer herein.
That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
That pursuant to s.65DA(2) of the Family Law Act, 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 the Fact Sheet, attached hereto and these particulars are included in these orders.
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