Ericsson and Ericsson
[2014] FCCA 2953
•18 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ERICSSON & ERICSSON | [2014] FCCA 2953 |
| Catchwords: FAMILY LAW – Whether wife should have sole parental responsibility – whether children’s time with husband should be extended – whether wife made greater contribution to property. |
| Legislation: Family Law Act 1975 (Cth), ss.4B, 4AB, 60B, 60CA, 60CC, 61DA, 65DAC, 75(2) |
| Dundas & Blake [2013] FamCAFC 133 |
| Applicant: | MR ERICSSON |
| Respondent: | MS ERICSSON |
| File Number: | DGC 1317 of 2013 |
| Judgment of: | Judge Phipps |
| Hearing dates: | 19, 20, 21 & 22 May 2014 |
| Date of Last Submission: | 22 May 2014 |
| Delivered at: | Dandenong |
| Delivered on: | 18 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Carne |
| Solicitors for the Applicant: | Chaim Geron Solicitors |
| Counsel for the Respondent: | Ms Jenkins |
| Solicitors for the Respondent: | Rockman & Rockman |
| Counsel for the Independent Children’s Lawyer: | Mr McIvor |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
That the wife have sole parental responsibility for the children of the marriage X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2008 (“the children”), in regard to the children’s education (both current and future) and health save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a)Use her best endeavours to advise the father in writing of the decision intended to be made;
(b)Seek the father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the children, any such response prior to making any such decision;
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
Other than in paragraph (1) the parties have equal shared responsibility for the children.
That the children live with the wife.
That the children spend time and communicate with the husband during the school term as follows:
(a)Each alternate weekend from after school or like time on Friday to 5.00pm Sunday;
(b)Each alternate Thursday from after school or like time to 7.00pm;
(c)As otherwise agreed in writing between the parties.
That the children spend time and communicate with the husband during Jewish festivals as follows:
(a)In each even numbered year for the first 2 days of Passover, the 2 days of Shavuot, the 1 day of Yom Kippur and the last 2 days of Sukkot which are otherwise known as Shmini Atzeret and Simchat Torah; and
(b)In each odd numbered year for the last 2 days of Passover, the 2 days of Rosh Hashana and the first 2 days of Sukkot;
(c)On any other Jewish festival that fall within the time that the husband would otherwise be spending time with the children.
That the children spend time and communicate with the wife during Jewish festivals as follows:
(a)In each odd numbered year for the first 2 days of Passover, the 2 days of Shavuot, the 1 day of Yom Kippur and the last 2 days of Sukkot which are otherwise known as Shmini Atzeret and Simchat Torah; and
(b)In each even numbered year for the last 2 days of Passover, the 2 days of Rosh Hashana and the first 2 days of Sukkot;
(c)On any other Jewish festival that falls within the time that the wife would otherwise be spending time with the children.
That for the purposes of spending time with the children pursuant to paragraphs 4(a) & (b) and 5(a) & (b) hereof:
(a)The party with whom the children shall spend the Jewish festival shall collect the children from the conclusion of school or 3.30pm if a non school day;
(b)In the event that the Jewish festival ends at a time that the party would not otherwise be spending time with the children pursuant to these orders the party with whom the children spend the Jewish festival shall return the children to the other one hour after the conclusion of the Jewish festival; and
(c)In the event that the Jewish festival ends at a time that Shabbat commences then the time to be spent with the party shall be extended to one hour after the conclusion of Shabbat.
Subject to the specific orders in relation to Jewish Holidays, herein, the children spend time with the husband and the wife during school holiday periods on a week about basis as follows:
(a)In week one with the wife;
(b)In week two with the husband from 8.00am on Monday until 8.00am on Wednesday, with the wife from 8.00am on Wednesday to 8.00am on Friday and then with the husband from 8.00am on Friday until 5.00pm on Sunday.
That the children spend time with the husband on Father’s Day from 10.00am until 6.00pm.
That the children spend time with the wife on Mother’s Day from 10.00am until 6.00pm.
That the children spend time with the husband on their Jewish birthdays each year, provided same do not fall on a day when driving is prohibited, as follows:
(a)For two hours, after school, if same falls on a school day;
(b)For four hours as agreed or otherwise from noon to 4.00pm at times to be agreed, should same fall on a non-school day.
That the children shall continue to attend (omitted) College and the cost of tuition, books, uniforms, excursions, camps and the like and any extra-curricular activities for the children be shared equally by the husband and the wife.
That each party keep the other informed of their current residential address, email address and telephone numbers.
That each party shall inform the other of their intention to remove the children from Victoria no less than 7 days prior to doing so and in the event that the party is to travel interstate with the children they shall inform the other of their destination and a telephone number for such period.
That should the husband be required to return to (country omitted) for any period of time that he communicate with the children whilst he is overseas by Skype of telephone at 7.00pm Australian Eastern Standard Time each Tuesday and Thursday or as otherwise agreed in writing between the parties.
That unless otherwise ordered by the court the parties their servants and agents be restrained by injunction from:
(a)Discussing these proceedings or the intervention order proceedings to or within the hearing of the children or any of them;
(b)Discussing any part of the evidence in these proceedings or the intervention order proceedings, including but not limited to oral evidence, recorded material, evidence in affidavits, reports and exhibits to or within the hearing of the children or any of them; and
(c)Showing the children, or allowing the children to have access to any written or other material relating to court proceedings between the parties.
PROPERTY
That the funds held by the husbands solicitors in a controlled money trust account on behalf of the parties be divided as to 72.5 per centum to the wife and 27.5 per centum to the husband.
That if they are in his possession, the husband deliver to the wife within 14 days the following items:
(i)The photo album with baby photos of the children; and
(ii)The wife’s Certificate of Conversion from the (omitted).
That the wife be solely responsible for repayment of Family Tax Benefit overpaid.
That the husband be solely responsible for any repayment of Centrelink payments made to him while he was receiving insurance payments.
Otherwise save for the purposes of enforcing payment of monies due under these or any subsequent orders;
(a)Each party be solely entitled to all property (including choses-in-action) in the possession of such party at the date of these orders;
(b)Each party be solely liable for any liability affecting any item of property to which that party is entitled pursuant to these orders;
That the wife’s solicitors send by e mail to the Associate to Judge Phipps Minutes of Proposed Order providing for a splitting order of the husband’s superannuation in favour of the wife with a base amount of $12,397 together with evidence that the Trustee of the husband’s superannuation fund has be afforded procedural fairness.
The application is adjourned to 27 February 2015 solely for the purpose of making the superannuation order unless made earlier in chambers.
IT IS NOTED that publication of this judgment under the pseudonym Ericsson & Ericsson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1317 of 2013
| MR ERICSSON |
Applicant
And
| MS ERICSSON |
Respondent
REASONS FOR JUDGMENT
Introduction
The husband and wife, Mr Ericsson and Ms Ericsson have three children, X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2008. The issues concerning the children are the allocation of parental responsibility, the amount of time the children should spend with the husband and some aspects of their Orthodox Jewish religion. The parties’ property is the proceeds from the sale of the former matrimonial home, approximately $800,000 and superannuation. The husband proposes that the $800,000 be divided 53% to the wife and 47% to him and the superannuation be equalised. The wife proposes that the $800,000 be divided 80% to her and 20% to the husband, with some additional adjustment against the husband and that the superannuation be equalised.
Proposals
The husband proposes this order:
1.That the parties have equal shared parental responsibility for the children of the marriage, namely X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2008.
2.That the children live with the husband as follows:
(a)During school term periods each alternate weekend from the conclusion of school Friday until the commencement of school on Monday;
(b)During school term periods each other alternate week from the conclusion of school Wednesday to the commencement of school on Thursday until 1 January 2015 and thereafter in each alternate week from the conclusion of school Tuesday to the commencement of school on Thursday.
(c)Each alternate Tu BiSvat Eve commencing 2014 from the conclusion of school (or 3.30pm if a non-school day) until 8.00pm;
(d)Each alternate Purim commencing 2015 from the conclusion of school (or 3.30pm if a non-school day) for one night concluding 8.00pm the following day (or the commencement of school if a school day);
(e)Each Passover:
i.Commencing 2015 from the conclusion of school (or 3.30pm if a non-school day) for the first 4 out of 8 nights concluding at 6.00pm and each alternate year thereafter;
ii.Commencing 2016 from the conclusion of school (or 3.30pm if a non-school day) for the second 4 out of 8 nights concluding at 6.00pm and each alternate year thereafter;
(f)Each alternate LG B’omer for one night commencing 2014 from the conclusion of school (or 6.00pm if a non- school day) concluding at 6.00pm;
(g)Each alternate Festive of Shavout commencing 2015 from the conclusion of school (or 3.30pm if a non-school day) for two nights concluding at 7.00pm (or the commencement of school if a school day);
(h)Each alternate Festive of Rosh Hashana commencing 2014 from the conclusion of school (or 3.30pm if a non-school day);
(i)Each alternate Yom Kippur commencing 2015 from the conclusion of school (or 3.30pm if a non-school day) for one night concluding at 8.00pm (or the commencement of school if a school day);
(j)Each alternate Festival of Sukkot commencing 2014 for the first 5 out of 9 nights from the conclusion of school (or 3.30pm if a non-school day) and in the alternating year 4 nights;
(k)Each alternate Chanukah commencing 2015 from the conclusion of school (or 3.30pm if a non-school day) for 4 out of 8 nights concluding at 6.00pm (or the commencement of school if a school day).
3.That during school holiday periods for one half the school holidays being the second half of school holiday periods in 2014 and the first half of school holiday periods in 2015 and then alternate years thereafter.
4.That on Father’s Day from 5.00pm the previous day (Saturday) until return to school on the following day (Monday) noting that the children’s time with the husband shall be suspended for Mother’s Day from 5.00pm on the previous day (Saturday) until return to school on the following day (Monday).
5.That on each child’s Jewish and Gregorian birthdays the children spend time with the parent with whom they are not living on that day as follows:
(a)If the child’s birthday falls on a school day then the parent with whom the child is not living on that day shall spend time with all children form 5.00pm until 8.00pm on the day before the child’s birthday;
(b)If the child’s birthday falls on a weekend then the parent with whom the child is not living on that day shall spend time with all children from 11.00am until 4.00pm on that day;
(c)At such other times as agreed between the parties.
6.That the children live with the mother at all other times.
7.That the parties shall each be at liberty to attend any school activity or function at which parental participation or attendance is required or encouraged no matter with whom the children are living at that time.
8.That neither parent shall organise an extra-curricular activity for the children or either of them if that activity is to take place within a time when the children would be living with the other parent, without first gaining the consent of the other parent.
9.That the costs associated with any extracurricular activity which is jointly consented to will be shared equally by the parties.
10.That each party shall keep the other informed at all times of their home address, email address and telephone numbers including mobile telephone numbers and in the event that a party is holidaying out of Melbourne with the children, that party shall inform the other of their holiday destination and a telephone number for such period.
11.That each party encourage and facilitate the children communicating with the other parent at all reasonable times by phone, email, Skype, test message and any other such means.
12.That should the husband be required to return to (country omitted) for any period of time that he communicate with the children by Skype as follows:
(a)From 7.00pm on each Tuesday and Thursday Australian Eastern Standard time;
(b)By phone, email or test message at all other reasonable times.
13.That the parties are restrained from:
(a)Speaking to the children or either of them about the following mattes any part of the evidence in these proceedings, including but not limited to oral evidence, recorded material, evidence in affidavits, reports and exhibits;
(b)Showing the children, or allowing the children or either of them to have access to any written or other material relating to court proceedings between the parties.
14.That all costs of tuition, education and extracurricular activity for the children will be equally shared by the parties.
15.That all tuition preparation for each of the children’s Bar Mitzvahs be the sole responsibility of the husband and the children’s Bar Mitzvah shall each be held in (country omitted).
16.That any costs of preparations and celebration of Bar Mitzvah held in Australia will be born equally by the parents.
17.That every two years during the school summer holiday commencing in 2016, the husband be at liberty to take the children to visit the husband’s parents and family overseas for a duration of three weeks and failing agreement the last three weeks of that holiday.
18.That the children’s passports will be held by a third party solicitor or alternatively by the court and shall not be released without the prior written consent of the parties or by court order.
19.The parties forthwith undertake joint counselling regrading parental communication.
PROPERTY
20.That the proceeds of sale for the former matrimonial home situated at Property B, which are held in trust by the applicant’s solicitor, shall be applied as follows:
(a)43% to the applicant husband;
(b)57% to the respondent wife.
21.That the parties’ superannuation entitlements shall be equalized.
THE COURT NOTES
22.That the parties are in agreement that children’s Jewish education shall continue at the (omitted) College.
23.Where the conclusion of a Jewish Festive day falls on Shabbat, the party with the children at the time shall have their time extended until the conclusion of Shabbat.
The wife proposes this order:
1.That the wife have sole parental responsibility for the children of the marriage X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2008 (“the children”), in regard to the children’s education and health.
2.That the children live with the wife.
3.That the children spend time and communicate with the husband during the school term as follows:
(a)Each alternate weekend from after school or like time on Friday to 5.00pm Sunday;
(b)Each alternate Thursday from after school or like time to 7.00pm;
(c)As otherwise agreed in writing between the parties.
4.That the children spend time and communicate with the husband during Jewish festivals as follows:
(a)In each even numbered year for the first 2 days of Passover, the 2 days of Shavuot, the 1 day of Yom Kippur and the last 2 days of Sukkot which are otherwise known as Shmini Atzeret and Simchat Torah; and
(b)In each odd numbered year for the last 2 days of Passover, the 2 days of Rosh Hashana and the first 2 days of Sukkot;
(c)On any other Jewish festival that fall within the time that the husband would otherwise be spending time with the children.
5.That the children spend time and communicate with the wife during Jewish festivals as follows:
(a)In each odd numbered year for the first 2 days of Passover, the 2 days of Shavuot, the 1 day of Yom Kippur and the last 2 days of Sukkot which are otherwise known as Shmini Atzeret and Simchat Torah; and
(b)In each even numbered year for the last 2 days of Passover, the 2 days of Rosh Hashana and the first 2 days of Sukkot;
(c)On any other Jewish festival that falls within the time that the wife would otherwise be spending time with the children.
6.That for the purposes of spending time with the children pursuant to paragraphs 4(a) & (b) and 5(a) & (b) hereof:
(a)The party with whom the children shall spend the Jewish festival shall collect the children from the conclusion of school or 3.30pm if a non school day;
(b)In the event that the Jewish festival ends at a time that the party would not otherwise be spending time with the children pursuant to these orders the party with whom the children spend the Jewish festival shall return the children to the other one hour after the conclusion of the Jewish festival; and
(c)In the event that the Jewish festival ends at a time that Shabbat commences then the time to be spent with the party shall be extended to one hour after the conclusion of Shabbat.
7.Subject to the specific orders in relation to Jewish Holidays, herein, the children spend time with the husband and the wife during school holiday periods on a week about basis as follows:
(a)In week one with the wife;
(b)In week two with the husband from 8.00am on Monday until 8.00am on Wednesday, with the wife from 8.00am on Wednesday to 8.00am on Friday and then with the husband from 8.00am on Friday until 5.00pm on Sunday.
8.That the children spend time with the husband on Father’s Day from 10.00am until 6.00pm.
9.That the children spend time with the wife on Mother’s Day from 10.00am until 6.00pm.
10.That the children shall continue to attend (omitted) College and that the cost of tuition, books, uniforms, excursions, camps and the like and any extra-curricular activities be shared equally by the husband and the wife.
11.Payments made pursuant to paragraphs 0 hereof are not to reduce or be credited against any amount payable under any administrative assessment of child support.
12.That each party keep the other informed of their current residential address, email address and telephone numbers.
13.That each party shall inform the other of their intention to remove the children from Victoria no less than 7 days prior to doing so and in the event that the party is to travel interstate with the children they shall inform the other of their destination and a telephone number for such period.
14.That should the husband be required to return to (country omitted) for any period of time that he communicate with the children whilst he is overseas by Skype of telephone at 7.00pm Australian Eastern Standard Time each Tuesday and Thursday or as otherwise agreed in writing between the parties.
15.That unless otherwise ordered by the court the parties their servants and agents be restrained by injunction from:
(a)Discussing these proceedings or the intervention order proceedings to or within the hearing of the children or any of them;
(b)Discussing any part of the evidence in these proceedings or the intervention order proceedings, including but not limited to oral evidence, recorded material, evidence in affidavits, reports and exhibits to or within the hearing of the children or any of them; and
(c)Showing the children, or allowing the children to have access to any written or other material relating to court proceedings between the parties.
PROPERTY
16.That the funds held by the husbands solicitors in a controlled money trust account on behalf of the parties be divided as to 80 per centum to the wife and 20 per centum to the husband.
17.That the husband pay the wife the sum of $27,800 from the amount to be received by him pursuant to paragraph 16 hereof.
18.That the husband pay to Centrelink the sum of $1,250 from the amount to be received by him pursuant to paragraph 16 hereof.
19.That the husband deliver to the wife within 14 days the following items:
(a)The photo album with baby photos of the children; and
(b)The wife’s Certificate of Conversion from the (omitted).
20.That the wife retain her superannuation interests and there be a split of the husband’s superannuation interests so as to equalise the superannuation interests held by the parties.
21.Save for the purposes of enforcing payment of monies due under these or any subsequent orders;
(a)Each party be solely entitled to all property (including choses-in-action) in the possession of such party at the date of these orders;
(b)Each party be solely liable for any liability affecting any item of property to which that party is entitled pursuant to these orders;
(c)Any joint tenancy of the parties in any real or personal property be expressly severed.
22.That the husband’s application for interim and final orders filed 21 May 2013 be otherwise dismissed.
NOTATIONS
A.For the purposes of these orders it is noted that a Jewish day commences at sundown on the eve of a day and concludes upon the appearance of 3 stars in the sky on the following calendar day.
B.Times for commencement and conclusion of Jewish days are widely published and are readily available to the public.
The Independent Children’s Lawyer supports the mother’s proposal except for these changes and additional paragraphs:
A.The mother shall have sole parental responsibility in respect of all “major long term issues” in respect of the children’s education (both current and future) and the children’s health save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a)Use her best endeavours to advise the father in writing of the decision intended to be made;
(b)Seek the father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the children, any such response prior to making any such decision;
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
B.Save as set out I paragraph A the parties have equal shared parental responsibility for the children.
C.That the children spend time with the husband on their Jewish birthdays each year, provided same do not fall on a day when driving is prohibited, as follows:
(a)For two hours, after school, if same falls on a school day;
(b) For four hours as agreed or otherwise from noon to 4.00pm at times to be agreed, should same fall on a non-school day.
Until the last day of the hearing the husband’s proposal was that until the end of 2014 the children live with him each alternate weekend from the conclusion of school Friday until the commencement of school on Tuesday and each other alternate week from the conclusion of school Wednesday for the commencement of school Thursday and from 1 January, 2015 he proposed that the children spend equal time with each parent.
A significant issue in the children’s issues is whether the husband committed family violence during the marriage. The wife alleges physical violence, threats, abuse, harassment and controlling behaviour.
Background
The husband was born on (omitted) 1963. He is 49. The wife was born on (omitted) 1974, she is 40. The parties started living together in early 1993 and married on (omitted) 1993. They separated on 8 December 2012. The wife left the former matrimonial home in Property B. She moved first to emergency accommodation and now lives with the children in rented accommodation in (omitted).
The husband was born in (country omitted). His family moved to (country omitted) where he grew up. They met when the wife was 18 and the husband was in Australia on a holiday. After six months back in (country omitted) he returned to Australia and the parties married in a civil ceremony on (omitted) 1993.
The parties did not undertake any Jewish observance in the early years of their marriage. When they were contemplating children the husband asked the wife to enquire about converting. She undertook the necessary instruction and converted to the Jewish faith.
The parties lived initially in rental accommodation in (omitted) and then (omitted). The wife’s father lived in a unit in (omitted) on his own. He suggested to the parties that he could sell his flat and put in one third of the cost of a new house so that the husband and wife could own a home. That was done and they purchased Property B in 1998. The wife’s father occupied the flat or bungalow at the rear of the house until his death on (omitted) 2004. It was then used by the husband as an office.
The parties visited (country omitted) in 2002 for their Jewish wedding ceremony and the wife passed the (omitted) conversion test. She became pregnant soon after they returned to Australia.
Both parties were employed. The wife in (occupation omitted). She took several months off around the time of the birth of each child. The husband has not been employed since the end of 2012.
Following separation the children spent time with the father on several days in December 2012 in the presence of other families. The parties commenced mediation in February 2013. On 7 March 2013 the husband left the mother a voicemail message which caused her to apply for an Interim Intervention order under the Family Violence legislation of the State of Victoria. The order was made on 12 March 2013 and names the wife and the three children as the affected persons.
By this time both parties had retained solicitors and eventually agreement was reached for supervised time, initially by family friends and then by Rabbi (omitted).
The husband commenced these proceedings on 20 May 2013. At the first court date on 9 July 2013 an order was made pursuant to s.11F of the Family Law Act1975 (Cth) the for the parties to attend a conference with a family consultant, Ms O on 11 July 2013. Following this conference orders by consent provide for the children to spend time with the husband each Sunday from 8.15am to 7 00pm and each Monday from 4.00pm to 8.00pm.
Ms T prepared two family reports. The first is dated 15 August 2013. Following this on 21 August 2013, following a contested hearing I made orders that the children live with the wife and spend time with the husband each alternate weekend from after school Friday until 5.00pm Sunday each alternate Wednesday from after school until 7.00pm. I made orders for the appointment of an independent children’s lawyer and for a conciliation conference for property matters.
In early January 2014 the husband travelled to (country omitted) and returned on 14 February 2014. The father’s time with the children remains as in the order of 21 August 2013 except that the alternate time from after school until 7.00pm is on Thursdays.
Family violence
Section 4B of the Family Law Act1975 (Cth) defines family violence:
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
The wife describes many incidents. I will refer to only some.
When the parties were expecting the third child they purchased a new car that could fit three car seats. The wife says that the husband set up the children’s car seats in advance of the baby being born. However after putting the two children in their seats a couple of times she told the husband that having to reach over one car seat to buckle a toddler was very uncomfortable and asked that the seats could be moved. She says the husband got very angry and told her she was talking rubbish as usual. She says that rather than argue she went outside thinking she would attempt to change them herself. The car was in the garage and she opened the back door to climb in. She says the husband followed her out and started yelling at her that she damaged the car door by allowing it to touch the wall of the garage. He slammed the door on her leg and tried to shove her in the car. She was afraid he might lock her in so she pushed back to open the door and they got into a struggle. She says when she got out the husband grabbed her wrists and was yelling at her for damaging the car. She says he was violently shaking her and she felt very afraid. Eventually she ran inside and locked herself in the bathroom for a long time until she thought he had gone out to the flat at the back of the house.
The wife says that throughout 2010 when Y was three years old he had a problem soiling himself periodically. She says this aggravated the husband. On one occasion Y had gone to the toilet and left faeces on the toilet seat which the husband found. She says he started yelling at Y, “You are disgusting”. She says he found Y and dragged him into the toilet to show him the mess and then the husband discovered Y had also soiled his underpants. She says Y was crying and the husband dragged him into the shower. He stripped off Y’s clothing and put him into a cold shower, yelling the whole time about it being revolting. The wife says when she heard the commotion she ran to the bathroom and begged the husband to stop the cold water. She says Y was huddled crying in the cold shower and when she tried to reach the tap the husband pushed her with his right forearm and she fell against the bathroom wall. She says by this stage she was screaming at the husband to stop the water and he simply turned around and walked out of the room.
The wife says that the husband became increasingly obsessive about religious observance. She says that Y received a big red (omitted) truck for his fourth birthday. The front section was detachable and he frequently carried this part around. She says one Friday night Y brought this toy to the Shabbat table when called to come and sit down. Y played with the truck at the table and was not paying attention to the husband’s blessing. She says that without warning the husband grabbed the plastic truck off Y, threw it on the floor and stomped on it until it was broken.
The wife says that one Sunday evening she was putting the boys to bed and was giving them a kiss good night. Y had only just turned five. She says there was nothing out of the ordinary that happened that day but Y came out and said “I hate Daddy, he hits me all the time”. The wife says she told Y that it was bedtime he should think about good things and have a sleep. She said she patted him quietly for a while. She said the husband was there and said to her “I heard what you said” in a very menacing way. She said she told him that Y was upset and she comforted him but did not prompt him to say anything. She says the husband then got very close to her, bent down put his face near hers and said “if you come between me and my kids, I will finish you”. The wife then goes on to describe going to her mother’s house to cry and calm down and then returning to the house.
The wife says that the husband always obsessed about his possessions however due to his highly unregulated nature he would often misplace keys, wallets and phone after leaving them lying in odd places. She says that sometimes the children found his items first and played with them. She says this put the husband into an absolute fury and she reminded the children over and over not to touch Daddy’s items. She says that the husband would sometimes find the children with an item and react by giving them a smack as punishment. She says the husband would sometimes drag the children by the arm screaming to them to show him where an item was. Often the children had no idea and she told the husband that repeatedly. She says she asked him not to be rough with the children, reminded him that they were only little and that his actions were intimidating them. She says the husband’s standard response was that she was talking rubbish. She says she had previously found bruises on the arms of the children that looked like fingers around the bruised area from where the husband had forcefully held and dragged them.
She says that in 2012 there was an occasion that the husband could not find the shed key. Only the husband was allowed to have the key and access to the shed. He decided that he had seen Z, three years old at the time, with the key. The husband was screaming at Z about the whereabouts of the key but Z only cried and could not answer. She says the husband dragged Z up the steps of the flat and pushed him inside. The husband told Z he could not come out until he said where the key was. She says Z was crying hysterically and she pleaded with the husband to let him out. He told her to shut up and keep out of it. She went to get the spare key to the flat. When she got back to try to open up the flat the husband pushed past her to open the door. He went inside and picked up Z who was lying on the floor crying. The husband held Z upside down by one ankle and shook him, yelling at him about the key. The wife says she grabbed Z by the waist to release him from the husband. The husband then saw the shed key under a table and picked it up. She says she was shaking and could barely carry Z back to the house. She says she saw the husband laughing at her struggling to carry Z.
She says that the husband would often grab the children by the ears when he wanted to discipline them and she describes one occasion where the following day she noticed bruising on Y’s ear. The husband for most of these events denies they occurred. On this occasion he acknowledges holding the children by the ear and justifies it because they had interfered with his computer. He denies the bruising.
The voice message the husband left for the wife on 7 March 2013 which led to the wife applying for a family violence intervention order is as follows:
Ms Ericsson, this is the last time you are knocking the phone up in my face. If you are going to continue to do so I am just going to come and escalate our situation pretty badly and I will not care at all.
I tell you what, I will be coming and actually dragging our kids and taking them off your hands.
You can fuck off you fucking bitch.
Ms Ericsson is the wife’s Jewish name used by the husband in addressing her.
The husband acknowledges leaving the voicemail and says he regrets it. He says he was frustrated at not seeing the children. There is force in the submission by counsel for the wife that the husband only acknowledges it because it has been recorded and cannot deny it.
For a number of reasons I accept that the wife’s description of the husband’s behaviour is largely accurate. The wife’s descriptions of the many events are detailed. I consider it improbable that she could invent so much detail for so many events. The husband’s behaviour she describes shows a consistent anger management problem and obsessive behaviour.
The wife describes what happened leading up to the separation. The husband was under pressure at work and she says that his employer was effectively managing him out. The wife had previously sought counselling. In early December 2012 her caseworker telephoned her and advised her she had a furnished house available through (omitted) which was 90 day emergency accommodation. The caseworker told the wife she had 24 hours to accept it otherwise she would pass it onto someone else in need. The wife says that in that evening she realised in conversation with the husband that the loss of his job was imminent. She was concerned how this would affect his moods and the fact that he would be at home for longer periods. She called the caseworker the following day and told her she would take the offer.
The next Shabbat day, Saturday, 8 December 2012 was very hot and the husband and she agreed it was too hot for the children to walk to the synagogue. Once the husband left she called her mother who took the children, the wife hired a small truck and had two friends help her load as many items for the children and her as she could gather. She left the husband a note with contact details for Mensline. She says she knew that he would be upset.
The wife’s behaviour in obtaining help and then leaving is consistent with her description of the husband’s behaviour towards her and the children and how it affected her and the children. The husband acknowledges that she is a good mother and devoted to the children. Ms T reached the same conclusion. The wife and the children had a comfortable home with a small mortgage and although the wife knew the husband was about to become unemployed she was employed and they had savings of about $90,000. She said she expected that the husband would cut off access to funds which he did. He cancelled her credit card. Her attempts to obtain some of the savings yielded only $5000 and when the husband knew that she was attempting to access those funds he transferred them to another account. Thus, the wife knew that in leaving she would be facing a difficult financial situation.
The wife would not have done what she did unless she felt she had no choice. She says she considers that she and the children were in an intolerable situation. There is no suggestion the wife has any mental ill-health. She would not have left with the children as she did unless she was in an intolerable situation brought about by the husband’s behaviour.
There is corroboration for what the wife says about the husband’s behaviour. In August 2010 the wife employed Ms G as a mother’s helper. Her role was to assist with the care of the three children and with general house work. At the time the children were aged six, three and one. She says that at the time she commenced her employment the husband was unemployed but she rarely saw him. He was generally in the flat at the rear of the property. Later when he obtained employment he arrived home at various times between 6.00pm and 8.00pm. She said that the husband showed little interest in the affairs of the children when he was there but from time to time she observed him deal with the children in a very oppressive manner. She says that on several occasions she saw him scream directly in the face of one or other of the children and observed him to do the same to the wife. She says she did not see it but the children did tell her that their father smacked them.
Ms G says that in addition to the regular times she assisted there were occasions when she was called in by the wife to assist when the wife was working during school holiday periods. She describes an incident on one occasion when she was asked to help on the day the Jewish New Year Festival was to commence. She says that the wife left her with very specific instructions that the children needed to be showered and dressed in their suits for synagogue by 5.00pm. She says she recalls that the husband was around the house on that day and was rushing around all day attending to various matters. She says the husband became very agitated when she was showering the children and tried to hurry them out despite there being plenty of time to spare and to set routine.
After the shower she dressed the children in their suits and each was wearing a white shirt. She then served the children some spaghetti bolognese for dinner and whilst X and Z agreed to put on a serviette to cover their shirts Y refused. She says the husband was in the kitchen at the time and overheard the conversation with Y and the husband suddenly erupted. He moved right next to Y and screamed very loudly directly in this face. She says she was shocked and felt that his actions were totally unnecessary. She says Y became visibly distressed and as soon as the husband left the room she took Y away and explained to him that he would not be allowed to eat any more spaghetti until he put on a serviette. Y settled down quickly put on a serviette and she gave him the rest of his dinner.
Ms G says that after the incident the husband refused to take the children to synagogue and the children were very disappointed. In cross examination it was put to her that the husband took the children to synagogue and she said that he left the house and may have gone to the flat, she did not know, and may have come back after she had left and taken the children to synagogue.
When asked in cross examination if he recalled this incident the husband’s response was that Ms G exercised very little judgement in terms of feeding his boys just before a festive event, with their clothes for synagogue, when they should have been fed with normal clothes on and then dressed. He said that is what he recalled. He denied screaming at Y. He says he took the children to synagogue after Ms G left.
Ms G’s description of the incident is specific and detailed. I can accept that she is sympathetic to the wife but at most that might affect what she says in her general description of each parties’ behaviour. It does not explain the specifics of Y refusing to use a serviette while eating spaghetti bolognese and the husband’s intervention. Ms G’s description of the husband’s behaviour on this occasion is consistent with the wife’s description of the husband’s behaviour in the many events the wife describes. I find that the husband did behave as Ms G says.
While, as I said, I can accept that Ms G is sympathetic to the wife that does not mean that overall her evidence should be rejected in other respects. The description of the lack of involvement by the husband with the children is detailed in that she says when he was home much of the time he was in the flat and that the many tasks involved in caring for three young children were largely done by the wife rather than the husband. The husband denies shouting but does say he raised his voice from time to time. Ms G describes the husband as screaming directly in the face of the children and the wife. This is behaviour is of a different character to a raised voice, and I do not consider that Ms G has invented this description of the husband’s behaviour. Again it is consistent with the behaviour of the husband described by the wife in many of the events she details. I accept that the husband did behave as both the wife and Ms G describe.
More corroboration comes from statements by the children to the family consultants. The parties and the children attended an appointment with the family consultant Ms O on 11 July 2013. The appointment was ordered under s.11F of the Family Law Act. X, aged nine at the time, confirmed his father “hurt” him in the past, hitting him on his back. Ms O’s memorandum records X confirming his father hit him on the back, every two weeks, not every day. X said that it hurt him on the inside rather than the outside. The husband told Ms O in disciplining the children he has only smacked them on the hand once in five years; that he disciplines by removing privileges.
Ms T conducted interviews for the first family report on 31 July, 2013. She records X saying he was “scared” of his father in the past but “not now”. X said that his father smacked him in the past. Y, aged six years and eight months at the time, talked about his father having smacked him and his mother “trying to protect me”.
Ms T conducted the interviews for the second family report on 19 February 2014. When asked about his father X said, “He was never at home, very busy, always at work, home at 10 PM… Only saw him once in the early morning if I got up early enough. He used to smack us, now has not smacked us for over two years, so he is changed”.
There is good reason to doubt the husband’s credibility. He failed to disclose income he was receiving from Centrelink in his Financial Statement filed on 22 November 2013. He made an application to an estate agent for a rental property in which he made a false statement about his income. The husband has been diagnosed as having a major depressive disorder with traumatisation features and anxiety, of moderate severity. His nondisclosure and false statement of income may be explained by his mental state, rather than dishonesty, but whatever the reason they show him to be an unreliable witness.
The husband applied for and obtained Centrelink Newstart benefits because he was unemployed and was receiving those benefits when he filed his first financial statement on 21 May 2013. They showed he was receiving income from Centrelink of $275 per week.
The husband had an insurance policy with (omitted) which insured him against unemployment because of illness. The insurance company accepted that he could not work because of his mental state. The first payment of $2,675 was made on 28 May 2013 and has continued monthly since. The husband did not disclose this in his financial statement filed on 22 November 2013, he did not do so until his financial statement of April 2014. He said that in November 2013 he did not think we had to. In cross examination he acknowledged that he had only recently informed Centrelink. He said that that he did not realise he needed to until told by his lawyers.
The husband’s explanation for non-disclosure of the insurance payments is possibly explained by his mental state. His application to (real estate omitted) for leasing his current address at (omitted), states that he has been self-employed for one year and two months and earning monthly income of $4,800. His explanation is that he had made earlier applications and could not obtain rental if he said he was unemployed. He gave as explanation that he had registered a ABN number and he was self-employed. To some extent that may be true although he was receiving insurance payments on the basis that his ill-health meant he could not work. He may have thought his statement about his employment status was acceptable but rational thought says otherwise. Whatever the explanation it is a basis for saying that his interpretation of events is not how a reasonable person would see them.
The husband was assessed by Dr R, Consultant Psychiatrist, for the purpose of his insurance claim. Dr R was appointed by the insurance company and so was not a treating doctor or making a report for the purposes of these proceedings. Extracts from the Summary and Assessment in Dr R’s report are:
For several years, he had had recurring anxiety and depression related to marital conflict, for which he was treated.
…
He presented as an unhappy man, preoccupied with his circumstances, his condition and with what has happened to him. He is somewhat bitter. He presents with depression of mood, sleep, appetite, energy concentration. He has lost confidence and he recently thought of suicide for the first time. He is anxious, with some somatic symptoms. He was traumatised by the desertion and has some traumatisation symptoms.
The diagnosis is major depressive disorder with traumatisation features and anxiety, of moderate severity. He leads an inert life and neglects his personal and domestic activities of daily living
In describing his interviewing of the husband Dr R says:
He often paused before responding and his responses tended to be oblique and elusive, and sometimes he responded with a rhetorical question.
His answers were often irrelevant and uninformative. I had to ask several questions to get information that could have been provided with a simple answer: sometimes I gave up
This description by Dr R can be applied to much of the husband’s responses to questions in cross examination.
Dr R’s report is dated 25 March 2014 and much of his diagnosis is based on the effect on the husband of the loss of his employment and the ending of his marriage at the end of 2012. The report does refer to earlier bouts of depression. Dr J referred the husband to psychologist Mr K under a mental health plan dated 13 December 2007. The problem in the mental health plan is described as “Angry & Distressed & very emotional brought up by work & now also ramifications in personal life”
The husband commenced seeing Dr C, Consultant Forensic Psychologist under a Mental Health Care Plan prepared by Dr P. Dr C’s report records the husband as being depressed but concludes that he has little psychological issues that require attention surrounding aggression. This professional assessment must be acknowledged but it is clear from the report that the father denied the family violence allegations by the wife and that part his distress arose from those allegations being made.
The husband’s mental state may be the explanation for his denial of the behaviour the wife describes. He may genuinely believe his interpretation of events is correct. Whatever the reason for the husband’s denial I accept the wife’s description of the husband’s behaviour throughout the marriage is accurate and that the husband’s description of his behaviour is not. I find there was violent, threatening or other behaviour by the husband that coerced and controlled the wife and the children and caused them to be fearful. It was family violence as defined in s.4AB of the Family Law Act1975 (Cth). The explanation for the husband’s behaviour may be his mental state but that does not alter the effect of his behaviour.
Family reports
In the first report Ms T saw little evidence of the husband’s engagement with the children except for reading. In the second report she said “there was little indication he has gained many management skills with the boys since the last assessment”. Ms T says the husband has little insight into how he should behave with the children and his methods of dealing with them did not promote his relationship with the children. Ms T acknowledges that the husband’s management of the children had improved in the observation session for the second report.
In the second report Ms T says there is substantial evidence the husband has persistently inappropriately involved the children in disputed matters between him and the mother. She says some examples included the mother’s claims about what the children reported to her, the ICL’s comments (contained in the ICL’s outline of case) about what the children told her, the children’s comments to the family consultant and the direct evidence of the father’s coaching of X during the observation period.
In the interview for the second report the wife said to Ms T she feared the amount of negativity she gets from the children. The wife says, for example the children angrily accuse her about a range of adult matters saying “it’s not fair we have to sell the house… He won’t have anywhere to live and it’s your fault.” The wife said they tell her that “it’s not fair that he doesn’t get more time, that daddy’s by himself and doesn’t have enough money”. She said X pressures her about it and has angry outbursts, “Not fair that we don’t have equal time, it’s so unfair, why are you doing this?
A little further on in the report Ms T records that the wife said that the husband was clearly coaching the boys a lot before they saw the children’s lawyer as X complained about the father “going on and on about what I have to tell my lawyer”.
Ms T reports a number of things X said to her. It includes that “My lawyer didn’t tell the Court what I said I wanted so the Court doesn’t know.” Ms T says that when asked how he knew that X replied “My dad told me… My dad thinks it’s important that I know what is going on, not the other two no, no, they’re too little, it would not be good for them to know “. “My father is feeling a bit disappointed and wants more time with us and mum shouldn’t take that away from him.”
What Ms T refers to as direct evidence of the husband coaching X during the observation period is this. At the end of the observation period with the father one of the younger children wanted to go to the toilet. He knew where the toilet was but Ms T stepped out of the room to make sure that that was where he went. As she returned the father was leaving the room looked directly at X with a forceful stare saying “you understand!” Ms T said it implied you need to remember what I’ve told you.
The husband says he does not remember Ms T leaving the room. He says as the session was coming to an end and the children were required to put away the games. He told them they needed to pack up and he says he looked at X and said words to the effect of “you understand”.
Ms T disputes that this could have been the context. She said that as she was about to complete the session the youngest boy said he needed to go to the toilet. She asked him if he remembered where the toilet is because she had previously shown him. He said yes, she opened the door for him, he went out and she followed him halfway down the corridor to make sure he knew where he was going. As she came back the husband was on his way out, the interview was complete. She said as he left the room he turned around and gave “what I describe as a forceful or concerted stare” to X and said “you understand”. She says her implication and belief is that the father was saying to X you understand what you’re supposed to say.
Ms T acknowledges that she did not put this to the father. She said she was rather shocked. She acknowledged that perhaps she should have asked him what he meant.
Ms T is a family consultant with many years’ experience, used to observing the interaction between parents and children. Given the findings I have made about the father’s credibility I do not accept his explanation about the statement “you understand”. In addition the context the father puts, that of telling the children they need to pack up toys, does not explain Ms T’s observation of a forceful or concerted stare accompanying the statement. I am satisfied on the balance of probabilities that Ms T’s interpretation that the father was coaching X is correct.
The mother’s evidence about statements made to her by X are consistent with the statements Ms T records. I find that Ms T’s observation that there is substantial evidence the husband has persistently inappropriately involved the children in disputed matters between him and the mother is correct.
Children’s provisions
Children’s provisions are contained in part VII of the Family Law Act. The objects of the part and principles underlying it are s.60B.
1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of these objects and principles has relevance in this dispute.
Section 61DA provides that the court when making a parenting order in relation to a child must apply a presumption that it is in the best interests of the child for parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child a member of the parent's family or family violence. The findings I have made mean that there are reasonable grounds to believe that the husband has engaged in family violence and so the presumption does not apply. This does not of itself mean that there should not be order for equal shared parental responsibility. The husband applies for such an order and the mother opposes it. I must consider whether it is in the best interests of the children to make an order for equal shared parental responsibility, but without applying the presumption.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interest the court must consider the matters set out in s.60CC(2) & (3).
The best interests considerations.
The relevant best interest considerations from s.60CC(2) and (3) are
a)Both primary considerations :
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
b)The additional considerations
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(f) the capacity of:
each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
I will refer to the additional considerations first
The first of these is the views of the children and any factors the court thinks are relevant. For the second family report X told Ms T that he wanted “equal time… Three days with each” (as) “it’s not fair that my mother gets more time… I want to live with both, most of the time”.
Y said to Ms T “we should have week about, very fair to both, unfair to dad now…should be equal” and “we only get him three times a week. We should have equal time, same amount each”. Ms T says that Y seemed less than clear about how the different time arrangements would work in practice, for example, when asked about not seeing his mother for seven days, he did not think that was good and then said, “so maybe just Friday, Saturday Sunday or maybe one more day.”.
Z aged five, when asked about the time he was seeing his parents said he “I like it the way it is”.
In assessing the children’s views Ms T says this:
In assessing whether the children were able to convey their own independent views, it was clear that they felt considerable pressure to report their preference for an equal time arrangement as they considered that to “be fair” to both parents. It was considered that none of them had a clear idea of what that would actually mean in practice and it was noted that when asked about the general care arrangements, they all commented that things were going well.
Ms T’s conclusion, that the children felt considerable pressure, is soundly based. I am satisfied that the husband has discussed the dispute with the children and has pressured them to say that they want equal time. When that is combined with Ms T’s conclusion that none of the children had a clear idea of what equal time would actually mean in practice little weight can be attached to the children’s expressed views.
The next relevant consideration is the relationship of the children with each parent. The husband acknowledges that the wife is a good parent and that is confirmed by Ms T. Ms T’s observations of the wife with the children were wholly positive. The wife is the children’s primary carer. In the second report Ms T describes the children as very relaxed with the wife, noticeably more settled than six months earlier.
In the second report Ms T says the boys were very affectionate towards the father and happy and smiling to see him. She says that while keen to play with the father initially, the boys were not responsive to his limit setting attempts and both X and Z became unhappy and restless during the half hour observation period. Ms T says there was evidence of the potential for difficulties as the father did not demonstrate sufficient skills to manage the boys.
In her oral evidence Ms T was asked to expand on her reasons for the recommendation. She said she has concerns about the children being with the father for more extensive periods. She said she could see no evidence that he would be in a position to effectively parent them for the longer period of time, without having to resort to possibly inappropriate behaviour. She said in her short observation session he had to physically remove one child in order to get him to do what he wanted and that was with her present. She said if there was no one present she would be concerned that the husband’s skill level is such that he would have to resort to physically enforcing what it was he wanted and she said she would be concerned if the children were with him for an extended period of time.
Ms T was asked if there was any merit in extending the time to the Monday morning and having changeover at school rather than between the parties. Ms T said she discussed it with the mother and the mother felt it was important for the children to have some time with her to settle for school. Ms T acknowledged the advantage of going back to school on Monday with the father which is that the parents do not have to be in touch with each other at all. She said she came down on the side of returning on the Sunday night, principally because the mother felt that that was the best thing to do for the children and she, Ms T, had confidence in the mother’s ability to focus on the needs of the children, rather than wanting to limit the children’s time with the father.
Ms T recommends that the children spend holiday time with the husband for periods of two or three nights. She was asked to expand on her reasons. She said she had concerns about the children being with the husband for more extensive periods than that. She said she could see no evidence that he would be in a position to effectively parent them for that period of time, without having to resort to possibly inappropriate behaviour.
In the second report Ms T says none of the children spoke specifically about there being any problems with the current arrangements and the boys refer to the current arrangements as being fine.
I conclude from Ms T’s evidence that under the current arrangements, the children have a happy and affectionate relationship with their father and that extending the time may have an adverse effect on the relationship because of the limitation in the father’s parenting skills she describes. At the time Ms T made her observations and gave evidence the father’s proposal was for the children spending equal time with each parent. Ms T did not consider the father’s ultimate proposal of alternate weekends from the conclusion of school Friday to the commencement of school Monday and in the other week from the conclusion of school Tuesday for the commencement of school Thursday. However, I conclude that because she recommends against extending the father’s time, including, on balance, to Monday morning, she would recommend against the father’s proposal for two nights in the alternate week.
The next consideration is the extent to which each parent has participated in decision making and spending time with the children. Contentious issues about the children have largely been governed by court decision. Both parties have participated in the proceedings. The father has spent the time ordered with the children except for the weeks he spent in (country omitted), that being explained by family illness.
So far as fulfilling obligations to maintain the children are concerned the father has paid minimal child-support but he has made some contributions to expenses. In this case this consideration has little relevance.
The next consideration is the effect on the children of any change in circumstances. The evidence of Ms T and the mother already referred to concerning the father’s parenting skills is relevant under this consideration. The extension of the children’s time with the father means a greater chance of the father resorting to physically enforcing what he wants the children to do, something Ms T considered.
The next consideration is the ability of each parent to provide for the children’s needs including emotional and intellectual needs. The mother’s capacity is strong. The evidence of Ms T about the limitations on the father’s parenting skills is relevant. So too is Ms T’s statement that while the father repeated phrases such as “the best interests of the children” and “for the betterment of the children”, he talked about the children from his point of view referring to his emotional loss when they left rather than what the children might have experienced. Relevant too is Dr R’s report. In addition, Ms T referred to the passage of the report where Dr R under the heading “Originating and presenting complaints” says that the husband’s mood is low, except when he is with his children. Ms T says this shows that the husband is emotionally dependent on the children whereas it should be the other way around.
Immediately after the passage where Ms T describes the husband as referring to his emotional loss she says this:
Additionally, having observed the father’s difficulties in managing the children together for the short observation periods, the family consultant considered that extending his time with the children would likely produce further problems for them and it is recommended that extensions of his time should be avoided.
Adding force to this conclusion of the Family Consultant is Dr R’s statement that “His attitude was characterised by his being fixated on his “need” to be able to spend more time with his children.”
This evidence shows that the father has considerable limitations on his ability to provide for the children’s emotional needs and shows that the family consultant’s conclusion that extending the husband’s time with the children would likely produce further problems for them is soundly based.
The evidence relevant to the children’s characteristics is their sex and ages and the Jewish religion. The Jewish religion is important to both parents and to the children. The wife considers that the husband is overzealous in the observance of his religion whereas the husband considers the wife is not as observant that she should be. Opinions of others in their community probably differ although this can only be a general observation because there is no direct evidence of others’ opinions. The relevance to considering the best interests of the children is twofold. It is part of the tension which exists between the parents and as can be seen from each parent’s proposal there is a dispute about what orders should be made about the time the children should spend with each parent on Jewish religious and festival days.
The next consideration is the attitude to the children and the responsibilities of parenthood. One responsibility of the parents of children who are separated is to protect the children from any dispute between the parents. The evidence that the husband has spoken to the children about the dispute and about what they should say shows a lack of insight by the husband about how such discussions can have an adverse effect on the children.
The wife obtained a family violence order. The circumstances in which that was done have been referred to already.
The first of the primary best interest considerations is the benefit to the children of having a meaningful relationship with both parents. The wife is the children’s primary carer and they will maintain their meaningful relationship with her. The children’s relationship with their father under the current arrangements is good so that they do have a meaningful relationship with him. The evidence and discussion of the evidence above shows that extending the children’s time may, as Ms T says, lead to further problems for the children, and so the relationship with their father may be that much less meaningful.
The second of the primary considerations is the need to protect the children from harm. The past history shows some physical violence to the children but I consider it unlikely to be repeated if the father’s time with the children is limited. Ms T sees a risk of the father using physical means to manage the children if the time is extended and so a risk of behaviour that meets the definition of family violence. She concludes that extension of the father’s time might lead to further problems for the children and so some risk of psychological harm.
The evidence under the best interests considerations show that Ms T’s conclusion that the children’s time with the husband should not be increased is soundly based. The current arrangements are working well. The children have a good and meaningful relationship with both parents. An extension of the father’s time might change their relationship with him. There are limitations on the father’s ability to deal with the children and provide for their needs and a change might have adverse effects on them. The conclusion from the consideration of the best interests considerations is that the children’s best interests are met by the mother’s proposal.
Parental responsibility
The father applies for an order that the parties have equal shared parental responsibility for the children, the mother an order for sole parental responsibility for education and health. The independent children’s lawyer proposes sole responsibility with the mother for health and education and other wise equal responsibility.
An order for equal shared parental responsibility imposes obligations on each parent. Section 65DAC provides:
This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
Major long-term issues are defined in s.4:
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
Potential issues could arise under any of (a) and (b), Notwithstanding that I am satisfied that the presumption of equal shared parental responsibility does not apply, it is still a serious matter to make an order that excludes one parent from decision making about major long-term issues. Dundas & Blake [2013] FamCAFC 93-552 is an example in which the Full Court of the Family Court held that the order for sole parental responsibility should not have been made.
The parties do not speak to each other. When the father went to (country omitted) he says he did not tell the mother directly. His explanation is that the parents do not speak on the phone. He does not feel comfortable speaking to the wife.
At the interview for the second family report Ms T conducted a joint session with the parents. The wife says that she did so despite her initial reluctance to be in the same room as the husband. Thus in terms of being able to communicate, they do not speak directly. She says her concerns were reaffirmed because she considered the husband showed his lack of acknowledgement of the real issues behind the breakdown of the marriage and the trauma inflected upon her and the children over many years. She says when she went home was violently ill. She went to bed shaking and in tears. She said that she had been largely contact free from the husband since separation and gradually been feeling emotionally stronger.
The wife says she has responded civilly to a number of emails from the husband. She says she responds to keep him informed and responds in a cooperative manner because she does not want to be conflictual. She said of one exchange of emails that it was a good example of what she and the husband could do at a base level and probably no more than that. She said later that she thought the communication by email were manageable as basic messages.
Ms T was asked for comments about the issue of parental responsibility. She said she would consider it more appropriate that there be sole parental responsibility for the wife. The reason is the general communication between the parties. She gave an example. She said if one of the children were to require psychological assistance, if there was equal shared parental responsibility there would have to be agreement. Ms T said she could see it would potentially cause a lot of difficulty for the mother to obtain the appropriate assistance. She said this was not because the father does not love his children, does not want to do the best for them, but simply because of the difficult communication between the parties.
The children’s best interests are not served by requiring the parties to undertake the important task of consulting and making a genuine attempt to reach agreement about major long-term matters when their level of communication is at such a low level. Ms T’s concern that there may be difficulties when a decision needs to be made is justified. I am satisfied that the children’s best interests are met by taking an order that the mother have sole parental responsibility, for education and health with a requirement to notify the father as proposed by the independent children’s lawyer.
I have concerns that the parties may have conflicting views about some aspects of religious matters but the parties are agreed on equal shared responsibility for religious matters.
The difference between the parties about the importance of the various religious and festival days is not something I can resolve. In terms of determining what is what is in the children’s best interest I have the assistance of Ms T’s evidence. That supports the mother.
The husband’s proposal for an order that he be solely responsible for Bar Mitzvah preparation is contrary to the parties’ agreed position that they have equal shared parental responsibility for religious and cultural matters. I will not make the order.
The husband proposes an order that the children’s bar mitzvah be held in (country omitted) where his parents reside. His proposal means that the children would spend three weeks in (country omitted). In terms of the children’s relationship with the father Ms T recommends against an order that would have the children away for the three weeks with the father.
The mother’s proposal that she have sole responsibility for education and health is in the children’s best interests.
Reasonably Practical
Section 65DA applies if an order is made for equal shared parental responsibility. The section requires the Court to consider whether equal time or if not substantial and significant time is in the best interests of the child and reasonably practical. Equal time is not an issue and the orders I propose making are reasonable practical. The parties live close to each other and have a basic level of communication that is sufficient to enable them to deal with any issues that might arise.
Counselling
The husband proposes an order for couples counselling, recommended by Ms T. The wife opposes it. She gave evidence of her reaction to the joint meeting with the husband and Ms T. Given her opposition and her reaction to meeting with the husband I do not consider it as necessary in the best interests of the children to make the order.
Property
The property is agreed:
Net proceeds of sale of Property B $885,225
Partial property settlement to husband $27,500
Partial property settlement the wife $27,500
Husband’s (omitted) mortgage offset account $10,000
Superannuation
Husband $108,090
Wife $83,296
Each party owns a motor vehicle for which the parties give estimated values. There is no great disparity in the values. I will not include them in the property pool. Neither party will sell their motor vehicle unless for the purpose of replacing it with another vehicle.
The wife asserts that a further $28,000 of money retained by the husband from the parties savings should be added back in. At separation the parties had $98,000 in bank account savings. None of it remains. Much effort was expended in the course of the hearing on what happened. What did happen is relatively straightforward. The wife transferred $5,000 to her mother’s account at about the time of separation. The husband asserts that the wife transferred a total amount of $58,000 but that all of it was recovered by (omitted) Bank except for the $5,000 transferred to the wife’s mother’s account.
What occurred is this. At separation the wife wished to have some money available from the parties’ funds which on 7 December, 2012 was about $98,000 held in an account with (omitted) Bank in the name of the husband. The wife could access the account. (omitted) Bank statement shows debits totalling $58,000 on 7 and 8 December. The account shows all were reversed on 9 December except for $5,000 which went to the wife’s mother. None of the other amounts reached the wife’s bank account. The husband asserted that the wife did transfer the money but while she attempted to transfer the individual amounts only $5,000 to her mother’s account was successful. Whatever the mother was attempting to do what happened is known. The other point of note is that the husband’s attitude was that the money was his. It was in an account in his name but it had accumulated by the parties joint efforts. The wife had as much entitlement to it as the husband.
In July 2003 the parties agreed on an order that each should receive a distribution of $27,500 from the money in the (omitted) Bank account, the wife’s $27,500 to include the $5000 she had already received. This exhausted what was left. The husband had expended about $28,000, this being the amount that the wife’s case asserts should be added back into the pool and treated as a premature distribution to the husband.
The husband has provided an explanation for the expenditure of this money. Some was used to pay the balance of a credit card in the wife’s name which I am satisfied was money used for family purposes. Some was spent on specific expenses for the children and the balance was used by the husband on living expenses. The authorities show that money should only be added back if there has been extravagance. There is no evidence of extravagance by the husband. The money should not be added back but it is still relevant that the husband had use of it.
The parties agree the $27,500 each received should be added back into the property pool.
The parties have separated and the basis on which they shared their finances has come to an end. Each wants an order made dividing their property. It is just and equitable to do so.
There is no dispute about the parties financial contributions except for some minor issues about the extent to which the husband was unemployed which makes no difference to the assessment of contributions.
The extent to which the husband contributed as a home maker and in the care of the children was disputed in the evidence
At the commencement of cohabitation in 1993 both parties were employed full-time, the wife as an (occupation omitted) and the husband as a (occupation omitted). The wife was employed except for combined periods of approximately 15 months when she took maternity leave over three pregnancies. Until the birth of X she worked full time and since returning to work from maternity leave with X she has worked four days a week.
The husband had some periods of unemployment but otherwise was employed until February 2009 when he was made redundant. He received a termination package of $74,500 and further compensation of $17,799.10. He had surgery in 2009 and did not return to work until January 2010. He was employed until June 2010 then had another period of unemployment and was again employed from November 2010 until 30 November 2012. Since then has been unemployed. He has since been receiving about $600 a week under an insurance policy.
The husband sets out his salaries and income for his various periods of employment. Detail of the wife’s salaries is not in the evidence. The nature of the work suggests that there was not a great disparity in income.
There is a dispute between the parties about the extent to which the husband assisted in the care of the children but there is a common submission that apart from financial contributions other than wages the parties contributions over the length of their relationship was equal. The husband did at one stage receive a termination payment of some $90,000 but then had some periods of unemployment. The wife had time off work because of the birth of the children. Whatever the extent of the husband’s involvement with the children the wife was the principal child carer and homemaker. Whatever greater financial contribution the husband may have made, including his redundancy payment, is matched by the wife’s role as child carer and homemaker.
The parties had no savings in 1998 and at the wife’s father’s suggestion he sold his residential unit and contributed $80,000 to the purchase price of what became the parties’ matrimonial home at Property B. The purchase price was $264,750 and the husband and wife obtained a mortgage with (omitted) Bank for $184,750. The husband, wife and wife’s father were registered as owners as tenants in common with a one third interest each.
The wife’s father lived in the flat at the rear of the premises. There is a dispute about the extent to which the husband helped with his care. I am satisfied that the wife’s father was largely self-sufficient until he had to move to hospital and then care. Any assistance given to the wife’s father by either party does not alter my assessment of equal contributions.
The wife’s father died on (omitted) 2004 and the wife inherited his one third share of the matrimonial home and additional cash and investments of $143,265.31. When she received this amount she applied it to largely extinguish the mortgage over the property.
The inventory of assets and liabilities in the Probate of the wife’s father’s estate values his one third share in the property in Property B at $146,666.66, a total value of $440,000. The parties purchased the property in 1998 for $264,750 and it was sold at the end of 2013 for $950,000. This means that the wife made a contribution of $290,000. The father died in mid 2004 and probate was granted on 1 June, 2005. Thus the reduction of the mortgage was shortly after that date. There was an assertion by the husband that in some way some of this amount should be assessed as his contribution but it is an inheritance from the wife’s father and there is no doubt that it must be taken as a contribution by her.
The contribution of the one third value of the property must be put in the context of the property having been acquired in 1998 in the circumstances already described. The wife’s contributions through her father and his estate enabled the parties to purchase their major asset, the matrimonial home. At the time of separation their other assets were savings of about $98,000 motor vehicles and household goods and furniture. The disbursement of the $98,000 has already been described.
There is no expert valuation evidence of the $440,000 value in the middle of 2004 but given the known purchase and sale prices in 1998 and 2013, in the absence of any other evidence it is a reasonable amount to use for the purpose of assessing contributions.
While the wife received the one third interest in the home from her father in 2004 or 2005 the parties had the benefit of the property from 1998. Strictly speaking she made the contribution of the one third value of $146,666.66 to the matrimonial assets in 2004 or 2005 but the use the parties had had of the matrimonial home since 1998 means that in practical terms the parties receive the benefit of the contribution in 1998.
The wife’s substantial financial contribution requires recognition. The husband occupied the former matrimonial home after separation rent free for 12 month and had the use of a substantial part of $28,000 of the parties savings above what the wife received. Without taking that into account the adjustment for the financial contribution of the wife through her father is 10%. The adjustment for the husband living rent free in the former matrimonial home for twelve months and having a greater use of the parties savings after separation is 2½%. 2½% of $900,000 (assuming with interest that is the amount now in trust) is $22,500 a reasonable assessment in the circumstances.
This means that the parties contributions are 62½% by the wife and 37½% by the husband.
Section 75 (2)
The husband is aged 50, the wife is aged 40. Both have had some time off work for medical issues, but the only current illness is the husband’s depression. The husband’s financial statement of May 2014 gives the payment he receives from his income protection insurance policy at $692 per week. That same statement includes a Centrelink payment but clearly it should not have been made and the husband will have to pay back some thousands of dollars.
The husband says he is seeking work. The psychiatric report suggests his time off work might be one or two years. There is no evidence of the time his income protection insurance will pay the amount of $692 per week. The husband did not place this evidence before the Court. I approach the issue on the basis that when the insurance payment does cease it will be because he is fit for employment. Since he has (omitted) skills and had regular employment until 2012 my assessment is that it will be able to obtain employment in the future.
The wife is employed four days a week in (occupation omitted) at the (employer omitted). Her gross income is $1,401 per week. She has the principal care of and responsibility for expenses for the children. Given the children’s ages part-time employment now and for some time into the future is reasonable.
The husband has $10,000 left from the previous distribution. Rather than include that as part of the property pool I will take into account under s.75(2) as any other matter.
Once the husband obtains employment, since he can work full time his income is likely to at least equal that of the wife. He will be liable for child-support which the wife will receive but she will have significant expenses for children. Both parties want the children to continue attending (omitted) College and while they may share the cost of the fees attendance at such a school will lead to day-to-day needs and expenses most likely to be borne by the wife.
The wife has a liability to repay Family Tax Benefit of $2500 over paid. The husband has a liability to repay the Centrelink Newstart Benefit he received while he was receiving the insurance payment. The amount is not quantified but it seems he received both payments from about May 2013 to April 2014, so he must repay eleven months at $275 per week so about $11,000. To ensure that the parents’ financial relationship is brought to an end I will order that the wife be solely liable for the Family Tax Benefit repayment and the husband the Centrelink Newstart repayment and take this into account as a liability for each party under s.75(2).
Assuming the amount in trust with interest is $900,000 an adjustment of 10% means the wife will receive an extra $90,000. 10% is the appropriate adjustment under s.75(2).
Both parties propose that they share education expenses. The wife proposes a specific order that it be in addition to assessed child support. This order is unnecessary. The wife proposes an order that the children attend (omitted) School. The husband proposes a notation to the same effect. Since they agree and notwithstanding the wife will have sole parental responsibility for education the order is unnecessary.
The parties have agreed that the amount of $27,500 each received be added back into the property pool. Not doing so will give the husband a slight advantage but since the money has all been expended I will not do so. I do not have evidence of the husband’s superannuation trustee being given procedural fairness. The orders provide for this to happen.
The proposed order for division of the proceeds of the sale of the former matrimonial home and the division of superannuation is just and equitable.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Phipps
Date: 18 December 2014