FINLEY & PRESCOTT
[2019] FCCA 82
•21 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINLEY & PRESCOTT | [2019] FCCA 82 |
| Catchwords: PROPERTY – Dispute about how a small amount in trust from the sale of the former matrimonial home should be divided – where the parties have debts which exceed the amount held in trust – mother to receive the money in trust. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 75, 79 |
| Cases cited: Mazorski & Albright (2008) 37FamLR 518 |
| Applicant: | MS FINLEY |
| Respondent: | MR PRESCOTT |
| File Number: | CRC 327 of 2015 |
| Judgment of: | Judge Terry |
| Hearing dates: | 11, 12 & 13 July 2017, 16 August 2017 and 22 February 2018 |
| Date of Last Submission: | 22 February 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 21 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Curtis |
| Solicitors for the Applicant: | Slater & Gordon |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr O’Brien |
| Solicitors for the Independent Children’s Lawyer: | Burridge Harris & Flynn |
ORDERS
Parenting
The mother shall have sole parental responsibility for the children [X] born …2010 and [Y] born …2010 (“the children”).
The children shall live with the mother.
The father shall spend no time with and have no communication with the children.
Pursuant to s.68B of the Family Law Act 1975 an injunction is granted restraining the father from:
(a)Entering, remaining in or removing the children from a place of residence, employment or education.
(b)Approaching or contacting the children and mother by any means whatsoever.
(c)Entering or remaining in a place of residence, employment or education of the mother.
The mother may travel internationally with the children or permit the children to travel internationally and may apply for a passport for the children notwithstanding the consent of the father having not been obtained.
Property
The mother is declared the owner to the exclusion of the father of the money held in trust from the sale of Property A and, if required, the father shall sign all documents and do all acts and things to authorise the firm in whose trust account the money is currently held to pay the money to the mother.
The parties shall forthwith sign all documents necessary to wind up the partnership known as Company M including the lodgement of all final taxation returns.
Except as otherwise provided in these Orders as between the parties, each party is declared to have no further interest in the items of personal property, any other assets or financial resources in the possession of the other.
Except as otherwise provided in these Orders any liability attaching to an asset received by a party shall become the sole responsibility of that party and that party shall indemnify the other against any further liability in respect thereof.
In the event that either party refuses or neglects or is unable to execute any instrument or document being an instrument or document the execution of which is provided for in these orders or is necessary to put into effect the provisions of these orders then at the request of the other party a Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute any such instrument or document in the name of the party refusing or neglecting or being unable to so execute the instrument or document.
IT IS NOTED that publication of this judgment under the pseudonym Finley & Prescott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT COFFS HARBOUR |
CRC 327 of 2015
| MS FINLEY |
Applicant
And
| MR PRESCOTT |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting and property.
I intend to refer to the applicant as the mother and the respondent as the father in these reasons.
The parenting matter concerns 8 year old twins [X] and [Y] who have lived with their mother since their parents separated three years ago. She sought orders that the children live with her, that she have sole parental responsibility for them and that they spend no time with and have no communication with their father.
It was the mother’s case that the father was violent to her during the relationship and had mental health issues and that after the parties separated in October 2015, his behaviour became highly dysregulated, frightening and threatening. This resulted in an order for him to share the care of the children being discharged very shortly after it was made and an order being made for him to spend supervised time with the children at a contact centre. However in June 2016, the contact centre ceased time as a result of the father’s behaviour and he has not seen the children since.
The father continued to have telephone communication with the children after that but this ceased in May 2017 after the paternal grandmother, with whom the father was then living, reported to police that the father had assaulted her and threatened to kill her and had spoken to her about killing the mother, her parents and her partner and finding a way to kill the children.
This led to the father being charged with a number of offences and to the police, who took the threats very seriously, putting in place various safety measures including giving the mother a tracking device to wear around her neck and organising a safety plan at the children’s school.
At the time of trial in July 2017 the father was on bail in respect of these charges and his bail conditions included restrictions on where he could live and where he could go.
It was the mother’s case that due to the father’s violence and mental health issues the children would be at unacceptable risk of harm if they spent time with him.
The father’s case insofar as it can be distilled from verbose material and a verbose presentation of his case was that he did not have a concerning mental health issue and did not pose any risk of harm to the mother or the children.
The father said that he had been driven to out-of-character and desperate actions after separation because of his concern for his children and his desire to see his children. This led to him being charged with some offences in December 2015 and after that he had been picked on and targeted by the police which saw him charged with further offences for trivial things such as breaching the ADVO by telephoning the mother because he wanted to spend time with his children.
Everything had snowballed to the point where the police had identified him as a dangerous man and the mother professed to be in mortal fear of him but that was not who he was. He was simply a loving father who wanted nothing more than to have a relationship with his daughters who loved him and wanted to have a relationship with him.
The mother well knew that but she had latched onto the characterisation of him as a dangerous mentally disordered man to justify pushing him out of the children’s lives and keeping the children for herself.
It was wrong to deny the children the opportunity to have a peaceful productive relationship with their father. The Family Law Act said that this was the children’s right.
The father sought an order for equal shared parental responsibility and at the commencement of the hearing said that he was seeking orders that the children spend time with him during the school holidays and on one weekend each school term although he put forward no practical proposal about how that was to occur.
In closing submissions the Independent Children’s Lawyer supported the orders sought by the mother. However, the Independent Children’s Lawyer asked the court to also make an order that the mother be restrained from consuming prescription medication that had not previously been prescribed for her.
The property matter involves a small pool, principally consisting of about $47,000.00 from sale of the former matrimonial home. On the mother’s case the parties have debts of $180,000.00, some in joint names and some in the mother’s sole name but all she said arising out of the business they operated prior to separation.
The mother proposed that she retain the money in trust and that each party otherwise retain the assets and superannuation in their possession or control. She said she would make the best arrangements she could with creditors who were chasing the parties but she did not make any proposal about paying specific creditors.
The property proposals as set out in the father’s case outline document were not strictly related to the pool available for division. He sought orders that the mother pay him a sum of money in compensation for some of her post-separation actions and that she pay for a forensic audit of the business. He also sought an order that he “be due maintenance paid for by the applicant mother given all the circumstances of the case” but he did not make an application for a spousal maintenance order in proper form.
Insofar as I am able to discern the father’s position about property from closing submissions, it was that it would be unfair if the mother kept all the money in trust when she had siphoned off money prior to separation and/or had mismanaged the business and was responsible for the parlous financial position the parties found themselves in following its closure. It was his case that the money in trust should be paid to him.
The evidence
The mother relied on her amended application filed on 5 July 2017, her affidavits filed on 16 January 2017 and 28 June 2017 and her financial statement filed on 28 June 2017.
The orders the mother sought were contained in her case outline document.
The father relied on his amended response filed on 9 February 2017 and his affidavit and financial statement filed on 10 February 2017.
I also read the father’s affidavit filed on 2 March 2017 in support of a contravention application he filed alleging breaches of the order for telephone communication order. I did this to ensure no unfairness to the father because at the commencement of the hearing, I dismissed the contravention application but indicated to the father that he could raise issues of non-compliance with the telephone communication order during the hearing.
The Independent Children’s Lawyer called Detective Inspector Mr C to give evidence about the events surrounding the father’s arrest in May 2017.
The mother, father and Mr C were cross-examined.
On 8 July 2016 an experts report was prepared by Dr D, a child, family and adult psychiatrist.
Dr D produced a lengthy, cogent and comprehensive report. She spent two hours interviewing each of the mother and the father and four hours with the children which included an observation of one hour involving the children and the father. She also interviewed by telephone the father’s older child from a previous relationship, the paternal grandmother, Dr E who was the father’s psychiatrist between 2014 and 2016 and Dr F who at the time of the report interviews was the father’s girlfriend.
In closing submissions the father said that Dr D’s report should be thrown out. However, the report was in evidence and it was too late to suggest that course.
Dr D was cross-examined, including by the father. I cannot throw the report out but I will need to consider in the light of other evidence and answers in cross-examination whether I accept her conclusions about such matters as whether the father perpetrated family violence and the weight I should give to her recommendations.
The matter was not an easy one because the mother failed to file a comprehensive trial affidavit and I was left confused about the time line for some little while, and the father not only failed to file a comprehensive trial affidavit focussing on relevant issues but was not a witness of credit.
The father addressed ad nauseum in his material the things he felt like addressing such as his allegation that he had been targeted by corrupt police and wrongly charged with breaching ADVOs arising out of telephone or email communications but failed to deal adequately or at all with significant matters such as why he entered the former matrimonial home on two occasions on 28 November 2015 and 9 December 2015.
The father was conspicuously untruthful about the events of 9 December 2015 and he gave evasive and contradictory evidence about other matters such as whether he had made certain diary entries and why the paternal grandmother had made a complaint to the police about him in May 2017.
I cannot simply because the father was not a witness of credit, accept everything the mother says and reject everything the father says but the father’s lack of credit as a witness will be relevant when I have to assess whose evidence I accept about matters in dispute.
The hearing
The matter was listed for hearing in Coffs Harbour in February 2017 but was not reached. The hearing commenced on 11 July 2017 and continued on 12 and 13 July. All of the witnesses gave evidence and were cross-examined during that period.
The matter was then adjourned to 16 August 2017 for submissions and for the court to receive evidence about the outcome of the May 2017 charges against the father.
Submissions were made on 16 August 2017 but I was informed that the hearing in respect of the May 2017 charges had still not been finalised and the matter was adjourned to 19 October 2017 and then to 18 December 2017 in the hope that it would be concluded.
On 18 December 2017 the father filed an application seeking to re-open his case. He sought orders that the report of Dr D be released to Dr G and Dr E, his psychiatrists, for comment, that the court order a transcript at the mother’s expense, that the mother undergo a further hair test to test for use of illicit substances, that the mother’s solicitor be made available for cross-examination in respect of events which occurred in December 2015, that his alleged diary be produced immediately and that communications made to Dr D by all parties during the final hearing or otherwise relating to Detective Inspector Mr C be provided immediately.
I ordered the mother to file a response to this application and a brief affidavit in support by 19 January 2018 and adjourned consideration of that application to 5 February 2018. I was also hopeful that if some further time was allowed the father’s outstanding criminal proceedings might be concluded.
The mother filed a response seeking that the father’s application to re-open be dismissed.
On 5 February 2018, I was informed that the hearing into the charges laid in May 2017 was still not concluded, that the father had a pending District Court appeal against some convictions or orders made against him and that there may be further Local Court proceedings for breaches of an ADVO which was in force to protect the mother.
I therefore further adjourned the matter to 22 February 2018 for the purpose of hearing submissions about the application to re-open and receiving any information the Independent Children’s Lawyer was able to obtain about the state of any other court proceedings concerning the father.
On 22 February 2018, I heard submissions about the father’s application to re-open which the Independent Children’s Lawyer also opposed and I dismissed the application. I received information about some District Court appeals which had been concluded. I was informed that the hearing into the May 2017 charges was still not concluded but in all the circumstances of the case I informed the parties that I would not wait any longer to find out about the outcome of those proceedings and would prepare a decision.
Regrettably, I did not get to the decision quickly and I apologise for the delay. I spent 2018 trying very hard to catch up on decisions outstanding from 2017 (which was a very difficult year in Newcastle) while endeavouring to deliver decisions in the 2018 matters I heard in a timely fashion. Due to workload pressure, I was simply unable to reach this matter during 2018.
Background
The mother is 44 and the father 51. They commenced cohabitation in …1997, married on …2001 and separated on 23 October 2015. They have two children, twins [X] and [Y] born on …2010.
The mother has no other children. The father has a daughter Ms H who is 18. She spent time with the mother and father during the early part of their relationship but has not had much to do with her father for some years. She told Dr D, who contacted her as part of preparing her report, that she and the father were estranged. She did not however, have anything negative to say about him and the flavour of that section of Dr D’s report was that Ms H felt uncomfortable about being drawn into the dispute between the mother and father.
The parties lived in Town B, Canberra and Sydney before moving to Town C in …2002. The impetus of the move was that the maternal grandparents owned a business in Town D. In 2003 the parties purchased a block of land at Property A for $75,000.00 and built a house on the land and this was their home for the remainder of the relationship.
Both parties have qualifications as legal professionals but they are also qualified medical professionals. Around the time they moved to Town C, they set up a business which provided … and they operated that business throughout the relationship.
The mother alleged that the father subjected her to serious physical violence and intimidation during the relationship. The father either denied the allegations or minimised the extent of the problem and I will need to make findings about the allegations in due course.
The mother said that the father had psychiatric problems. The father was not continuously engaged with a psychiatrist but in 2013 he consulted a psychiatrist who concurred with the father’s opinion that he had Attention Deficit Hyperactivity Disorder (ADHD) and prescribed Ritalin.
The father alleged that the mother also had mental health issues and that she used illicit drugs or abused prescription drugs. He alleged that she used amphetamines on occasions, became addicted to Duromine and took and used his Ritalin. There is no evidence that the mother has suffered from mental health issues but I will need to make findings about the allegations concerning her drug use.
During 2015 the situation in the parties’ home became fraught. The mother began searching on websites for ways to extricate money and create a fund to enable her to separate from the father and start a new life. The father became suspicious about the mother’s internet activities. His behaviour deteriorated resulting in complaints being made about him to the Health Care Complaints Commission (HCCC) and on the mother’s case his intimidating behaviour toward her escalated. The business suffered and each party blamed the other for this.
On 23 October 2015, the mother left the former matrimonial home with the children and commenced residing with her parents in Town D. She alleged that following this the father stalked or tracked her. She alleged for example that on 7 November 2015 she was at her parents’ house when the father was spotted at the rear of the property in bushland.
I accept that the mother felt that the father was stalking and tracking her but I cannot make a definitive finding about this issue as it was not explored during cross-examination.
On 19 November 2015 the father, who it would appear had not seen the children since separation, approached the mother, maternal grandparents and children in a park. An argument developed and the police were called. When police arrived, the children expressed a wish to go with the father and as there were no family law orders in place the police allowed the father to leave with the children.
Regrettably the father chose to drive to Queensland with the children.
On 24 November 2015 the mother filed an application for a recovery order and it was listed on 26 November 2015.
The father became aware of the application and he returned to Town C with the children and attended court.
Orders were made by consent for the parents to have equal shared parental responsibility and, subject to the father receiving a “satisfactory” report from his treating psychiatrist Dr J confirming that he did not pose a risk to himself or the children, for the parents to share the care of the children in the family home at Property A.
The orders provided for the children to live in the home with the mother from 26 November to 6 December and then from Tuesday to Saturday in Week 1 and Wednesday to Saturday in Week 2 and live in the home with the father commencing on Saturday 6 December 2015 from Saturday to Tuesday in Week 1 and Saturday to Wednesday in Week 2.
Order 11 provided as follows:
That the parent who has the children in their care has exclusive occupancy of the family home and the other parent is injuncted from attending the home or the children’s school during that time.
The mother moved into the Property A home with the children on 26 November 2015.
On 28 November, in breach of the injunction, the father entered the home while the mother was asleep in bed with the children and woke her causing her extreme fright. The mother said that she awoke to the father shaking her and saying “Ms Finley Ms Finley, why are you doing this.” She said that it was in the early hours of the morning; the father said that it was at 11.00pm but nothing turns on which is correct. The mother said that she froze in fear and then tears began streaming down her face and she pleaded with the father to leave.
The father agreed during his cross-examination of the mother that the mother was extremely frightened by his actions but said that he had not intended to frighten her.
The mother reported the incident to the police and they made a provisional Apprehended Domestic Violence Order for her protection.
On 2 December 2015, the father obtained a letter from his psychiatrist Dr J in which Dr J stated that the father was not suffering from any axis one disorder other than ADHD and in particular, was not suffering from any bipolar affective disorder or any other major mental illness. Dr J stated that he had not had time to assess the father’s personality structure. He stated that based on a two hour consultation he had no reason to believe that the father posed a risk of harm to himself or the children.
On 5 December 2015, the father telephoned the mother and she reported it to police as a breach of the ADVO. However, the father when questioned said that the contact was accidental and the police felt that there was insufficient evidence to pursue the matter.[1]
[1] Exhibit J
Not unsurprisingly given the incident on 28 November 2015, on 6 December 2015 notwithstanding the report from the psychiatrist the mother refused to hand the children over to the father pursuant to the 26 November 2018 orders and she remained in occupation of the home with the children.
On 8 December 2015, an interim ADVO was made for the mother’s protection.
After the incident on 28 November 2015, the mother put up ladders and other obstacles to give her advance warning if the father tried to enter the home again and on 9 December 2015, he did so notwithstanding the obstacles and the ADVO. The mother said that she tried to ring the police but the grabbed her mobile phone out of her hand and pushed her on the right shoulder and left elbow causing her to fall back on the lounge. She went into the bathroom and used another phone to call the police. The father took that phone from her as well and pushed her causing her to fall and he decamped with both phones.
The mother went to a neighbours who called the police. Police attended and found the father walking along the road. They took hold of him to try to talk to him but he kept walking away and began thrashing his arms about and slid out of his t-shirt. He ran away and was caught by the police but he struggled and they used OC spray to subdue him. He was restrained and handcuffed with the assistance of a member of the public. After a search the police recovered the two phones.
The father told a benign story about this incident in his trial material. He said that he went to the home to look for his medication and that he took the phones because they were his.
I prefer the version of events given by the mother and contained in the police records. The father was not a witness of credit and police made very detailed notes about the incident including about the father attempting to secrete the phones and about how they were recovered from two separate locations, which is inconsistent with the father’s claim that he thought he had a right to the phones.
The father was charged with and convicted of assault, stealing, resisting an officer in the execution of his duty, intimidation and contravening an ADVO arising out of this incident.
The father subsequently lodged an all grounds appeal to the District Court but later withdrew his appeals against the convictions. Some of the sentences were varied on appeal.
The mother vacated the home after this incident.
On 16 December 2015 the father was somewhere in the vicinity of the home when he saw the police coming down the steps and the father ran off and hid in long grass. The police were looking for the father in respect of complaints about breaches of the ADVO. Neighbours told them that they had seen the father run off and they used an Alsatian to find him and he was arrested in respect of the charges of breaching the ADVO.[2]
[2] See Exhibit G
The father made no reference to this incident in his affidavits but it emerged as a significant issue at trial because the father alleged that he had PTSD as a result of hearing the safety catch of a gun click off as the police approached him.
On 17 December 2015 the matter came before the Federal Circuit Court and the previous parenting orders were discharged and an order was made for the children to live with the mother and spend time with the father supervised by Interrelate, a children’s contact service.
Around this time the father left Town C and moved to Melbourne, He began flying up to Town C once a fortnight to spend the supervised time with the children.
There were issues with the supervised contact including a complaint by the service that in April 2016 the father would not desist from talking to the children about the mother having had a boob job in Country X and on 28 June 2016, Interrelate suspended the supervised contact visits citing repeated breaches by the father of the Service Agreement. They said that the last breach involved the father refusing to change conversation topics despite repeated requests by staff and despite visible distress by the children.[3]
[3] See Exhibit H
The father has spent no time with the children since.
Dr D’s report was released in July 2016 and the matter was next before the court on 11 August 2016. An order was made for the children to “spend time with the father via telephone communication” each Monday, Wednesday and Friday between 6.00 and 6.30pm and it was listed for a final hearing in the Coffs Harbour Circuit in February 2017.
In October 2016 the father was arrested for further breaches of the ADVO and spent a period of time in custody. On 20 December 2016 he was convicted of breaching the ADVO and placed on a good behaviour bond. A further ADVO was made for the mother’s protection for a period of four years.
At some point the father began residing with the paternal grandmother at her home in Town E.
The father had maintained a good relationship with the paternal grandmother after separation. She sent him supportive emails and spoke very positively about him to Dr D. However, on 1 May 2017 she went to Town E Police Station alleging that the father had threatened to pull her face off and squish it and told her that he could strangle her and watch her die and make it look like she had had a heart attack.
She said that she was terrified and left the house and drove to the police station. She also told police that a short time before the father had forcibly dragged her by the arm and that following that incident he swore at her and berated her all day. Police took photographs of bruising and an abrasion on her arm.
The paternal grandmother also told the police that a week earlier the father had asked to borrow her car and she told him that she was worried about the insurance. She alleged that the father said that he would kill her, steal her car, kill the mother, her partner and her parents and find a way to kill his children.
Police went to the paternal grandmother’s home to try to find the father. They were unsuccessful on the first occasion but on the second occasion they found him lying under a tree in the backyard. They asked him to get up but the father reacted violently to their presence. He was subdued with capsicum spray and placed in a police vehicle, He was charged with assaulting the paternal grandmother, resisting an officer in the execution of his duty and other offences.
The police were extremely concerned about the allegations that the father had made the threats to kill and went to considerable trouble to obtain evidence to support a refusal of bail. However the father was granted bail subject to stringent conditions including a restraint on him being in Town C subject to an exception allowing him to come to court for the hearing of the family law matter.
By the time of the hearing the father had not seen [X] or [Y] for twelve months. Some telephone communication occurred after the August 2016 orders although not without difficulty and not without some breaks but it ceased completely after the paternal grandmother went to the police in May 2017 and the mother was made aware of the threats.
At the time of trial the mother was living in the Town C area with [X] and [Y] and was doing some work for Employer.
The father was on bail which included conditions about where he lived and where he went. He informed me that after the hearing he intended to travel up to the Region 1 for a short period and then return to Melbourne to live. He was in receipt of Centrelink benefits.
[X] & [Y]’s best interests
Any orders I make about [X] and [Y] must be orders determined by treating their best interests as the paramount consideration and s. 60CC(2) & (3) of the Family Law Act contain the matters to which I must have regard in order to determine their best interests.
The primary considerations in s. 60CC (2) are:
(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.
S. 60CC (2A) provides however that in applying the considerations set out in subsection (2) the court is to give greater weight to the consideration set out in paragraph (2)(b).
The additional considerations are contained in s. 60CC (3) and I intend to begin by making findings about the additional considerations before returning to the primary considerations.
The first additional consideration is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
[Y] and [X] were 6 at the time of the report interviews in July 2016. Dr D spoke them individually and asked them to do tasks such as drawing their family and indicating who they would like to live in three houses and asked them what they would wish for if they had three wishes.
Nothing emerged from that which suggested that the children had any view about future parenting arrangements.
I must consider the nature of the relationship of the children with each of their parents and other persons (including any grandparent or other relative of the children).
The children related well to both of their parents at the report interviews.
They were much more excited and active when with the father but they were warm with the mother and Dr D expressed the view that they had a secure attachment to her. She provided reasons for that opinion and I accept it.
At the time of the report interviews the mother was in a relationship with Mr K and that was still the case in July 2017.[4] The children related reasonably well to Mr K at the interviews and their only complaint about him was that he yelled. It was not suggested that anything adverse was known about Mr K.
[4] Mother’s financial statement part E
The children spent an hour with the father and were disappointed when the time was over. Dr D expressed some concern about the father’s interaction with the children which I will refer to in the parenting capacity section of this judgment but the children clearly had a strong bond with their father.
They have not seen the father for over two years and at present they have no relationship with him.
I must consider the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children.
The father made a considerable effort to see the children until his supervised time was suspended, flying up from Melbourne each fortnight to do so.
However, he ceased spending time with them in June 2016 after Interrelate indicated that they would not continue supervision. He filed an application in a case in October 2016 seeking among things that by way of compensation for the fact that the mother’s solicitor misled the court in December 2015 the children be immediately placed in his care or alternatively that they commence spending unsupervised time with him but that application was dismissed and the hearing date of February 2017 affirmed.[5]
[5] I checked the court file to see if such an application had been made as I was not the docket judge at the time.
I must consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children.
The mother has financially supported the children since separation. She applied for child support and the father paid some amounts but the mother said and I accept, that the payments were modest and irregular. However, the child support issue is not central to the resolution of the parenting case.
I must consider the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the children), with whom he or she has been living.
The mother said that she had found the children calmer and easier to manage after time at the contact centre ceased in June 2016. This is credible in light of the opinion of Dr D about the way the children interacted with the father and if the father was still the same person as he was when he spent time with the children at the report interviews then they might become whipped into a frenzy of excitement if they saw him again.
This does not necessarily mean that no sort of contact should be considered. If the contact was for a limited duration or was only by Skype it might not impact adversely on the children’s behaviour.
If orders are made as the mother proposes then the children will have no relationship with their father. This is a loss for any child and Dr D was of the view that these children were likely to yearn for contact with their father. This is consistent with what she observed of their interaction with the father.
However, I also have to consider whether the children would be at risk of harm if they spent time with or had communication with the father and the impact on the mother of an order for time or communication and the issue of the likely effect of a change in the children’s circumstances is something I can only properly assess after making findings about the remaining s.60CC (3) matters and the s.60CC (2) matters.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis.
The mother lives in the Town C area.
The father has not lived in that area there for some time and at trial he was banned from going there save to attend the hearing. He has also not had settled accommodation since separation. At the time of the interviews for the expert report in July 2016 the father was living in Melbourne having moved there in March 2016.[6] In the affidavit he filed on 10 February 2017 he gave his address as Town F Queensland. In April/May 2017 he was living with the paternal grandmother in the Town G, NSW. This ended after he was charged with assaulting and intimidating her in May 2017.
[6] Expert Report page 13
At the hearing in July 2017, the father said that after the trial he intended to travel to the Region 1 to stay with a friend for a few weeks and that he then intended to return to Melbourne.
The father made no attempt to address the practical issues associated with orders for him to spend time with the children, which even if there were no other issues in the case would make it almost impossible for me to consider making orders for time although they would not prevent an order being made for communication.
I must consider the capacity of each of the children's parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including their emotional and intellectual needs.
The mother is caring well for the children. At the time of trial they were in Year 2 at School 1 in Town C.
The father complained that the mother abused prescription medication or used medication which was not prescribed for her.
The mother suffers from severe osteoarthritis and has had multiple operations on her knees. In the past she has been required to be heavily medicated with prescription pain relief. She admitted that on one occasion when she was suffering from knee pain she borrowed Endone from a neighbour rather than attending a doctor and getting a prescription of her own. This was the wrong thing to do but the mother asserted that she needed the medication for pain, not a claim I can lightly dismiss given her osteoarthritis.
In her January 2017 affidavit the mother said that she no longer required medication for pain.
The father was not a witness of credit and I cannot place weight on his assertions about the mother’s use of medication in the face of the mother’s denials and even if I could it would be difficult to make much use of the information when the father did not spell out exactly how taking non-prescribed medication or abusing prescription medication if she did so affected the mother or affected her parenting capacity, for example by asserting that her behaviour changed or that she became sleepy, frenetic or aggressive.
Dr D discussed the use of opioid medication by patients who go into knee surgery in her report and digressed into a consideration of whether they needed the medication for pain or to modulate mood. However most importantly, she also observed that there was no evidence that the mother’s use of analgesics was affecting her parenting.
The father alleged that the mother used amphetamines although he may have been referring to her alleged use of his Ritalin or abuse of Duromine. Again, he threw out a bare assertion but did not flesh it out with any detail or provide any evidence about its impact on the mother and he was not a witness of credit so I cannot place weight on this evidence.
There was no comprehensive drug testing regime during this matter. The one test the mother did do was negative for amphetamines or illicit drugs. I cannot in the light of the evidence as a whole find that the mother has a drug problem.
The father said that he had a hands on role in the children’s care prior to separation and that he was more than capable of providing them with adequate care.
The mother expressed concern about the father’s capacity to provide physical care for the children because they returned from the period they spent with him in Queensland in November 2015 unkempt. However, she said that they were happy and the fact that they were unkempt is not evidence that the father cannot provide for their basic needs.
She did however raise more serious concerns about him and one was about his alcohol use.
The mother alleged that the father often drank alcohol to excess and said (and it was reported in police material that the paternal grandmother also said) that he became aggressive after consuming alcohol.
The father was aware that the mother was concerned about his alcohol consumption because he reported to the mother in an email he sent her after the children returned from Queensland that he had not been drinking at night when they were with him.
This lends some colour of credibility to the mother’s claim that the father’s use of alcohol was a problem on occasion and police records about the father include incidents where he was involved in altercations while intoxicated. However, on the state of the evidence it is impossible for me to make a finding about the extent to which alcohol consumption plays into the problems with the father’s behaviour.
The one thing I would say is that this is not a case where ordering that the father do drug and alcohol counselling or imposing a restraint on him consuming alcohol when the children were with him is a solution to the problem posed by his behaviour because many of the incidents involving him both before and after separation occurred in circumstances where there was no evidence that he had been drinking.
Dr D did not consider that the father completely lacked parenting capacity. She observed that the children enjoyed spending time with him but considered that he sometimes took things too far. She said as follows:
During the assessment, the children were delighted to be with him but he tended to overdo the excitement. He tickled them roughly until they had to tell him to stop and complain he did it “too hard”. The noise level in the room was almost unbearable and was disturbing my co-worker in the neighbouring office. Twice I almost intervened, but I waited to see what would happen. At neither time did the father quieten or calm the girls down. I found this lack of self-reflexivity curious in a psychologist.
The father was excellent at intellectually stimulating the girls, teaching them times tables, he read to them, tested them on various subjects including arithmetic and storytelling.
Entitled behaviour is the most worrying dimension of his parenting. When he wanted to have his extended family come to my office to see the children, he rang my temporary secretary and put her under pressure, then got Dr F to ring and called twice. Then, when his aunt turned up on the second day of the assessment and I asked her to leave, she remained without his taking any action. I was forced to take a highly authoritative stance and reinforce the boundary that my office was not a contact centre, but that I was conducting an assessment mandated by the Family Court.
The mother told me that the father “doesn’t know when to stop” and, in tickling the girls and with his firm desire that family visitation should be there, was clear evidence that this view had been witnessed.
Dr D expressed the opinion, and there is ample foundation for it in the evidence, that the father’s poor judgment and poor self-control resulted in him being quick to anger and went on to say:
This would be difficult for little girls to manage as they grow older into adolescence and they express their own ideas, disagreeing with their father. Furthermore, the father had chosen the brighter of the twins, [Y], “to be like [him]” and may devalue the other twin as resembling the mother in a derogatory way. It is most important that siblings are not compared to each other in a negative way by their parents.
His lack of judgement and tendency to make impulsive decisions had repeatedly gotten him into trouble with authorities and with transgressing court orders. Rather than accepting the boundary, no matter how unfair he believed it to be, he was unable to stop himself from waking the mother in the middle of the night to talk or from calling her repeatedly. He had no insight into the harm that he had done to his own marriage, to his therapy patients and to the therapeutic relationship with them, through not listening and from not taking the advice of others.
Due to his lack of insight and judgement, he had little likelihood of being sensitive enough to his daughters’ emotional needs to understand them accurately. If they are compliant and obedient and adoring, he will get on well with them. Unfortunately, girls become subject to emotional changes as they approach puberty. This, together with their growing individuality, would pose a problem with the father. While he basks in their adulation, they get on well, however, if they ignore or devalue him, he is likely to become angry an intolerant. It is inevitable that the children will disagree with him when they got into adolescence. It is one thing to learn about children’s changing emotional needs from a book, and another to be in touch with their changing mood and to be able to parent them patiently and consistently.
The fact that there might be problems in the children’s relationship with the father when they entered adolescence is not centrally relevant at present and the father was able to engage the children in a supervised setting. However he sought much more extensive time, on weekends and during school holidays, and I have to consider whether if they spent that extended unsupervised time with him the children would be safe and would be in a calm stable situation with a parent who was responsive to their needs rather than highly reactive to situations, and the father’s behaviour both prior to and since separation and at trial suggests that he can fulfil none of those requirements.
Dr D seemed to feel that the problems for the father both as a person and a parent had their genesis in his mental health issues. She spoke at length to his psychiatrist Dr E who told her that the father was diagnosed with ADHD in September 2013 and was prescribed medication. He commenced taking Ritalin in February 2014. In July 2015 he suggested to his doctor that his dose needed to increase and this occurred after a second opinion was obtained.
Dr D said that Dr E told her that shortly after this the father began to experience problems and become unstable. She reported as follows about her conversation with Dr E:
I asked what manifestations of instability were seen. He said: “He got into trouble with the registration board. He voluntarily stepped aside and wouldn’t hear about it again until he wants to reinstate registration. There were significant boundary violations. Not sexual that I am aware of it. He befriended patients, contacted them through social media an outside practice. He would make patients part of his life.
Dr E said that complaints were made about the father to the HCCC in February, May, July, October and December 2015 and January 2016.
Dr D asked Dr E if he had considered whether the father might have bipolar disorder and he said that he had concerns that the father had Cluster B personality traits and not Bipolar disorder.
On the basis of the evidence available to her including information about his upbringing with a violent father, information provided by Dr E, information about the complaints made about the father to the HCCC and her conversations with the father and observations of him with the children Dr D concluded that the father was right in self-diagnosing himself with ADHD and that Ritalin might have helped a little with management of the condition. However, she pointed out that the father had been using the Ritalin in an idiosyncratic way and that the evidence of continued complaints against him and his behaviour generally suggested that notwithstanding the medication his behaviour had deteriorated.
Dr D recommended that the father be switched to a long-acting form of methylphenidate such as Concerta 54mg. She said that this was an osmotic capsule which could not be broken open and delivered the drug over the course of eight hours progressively.
It was outside Dr D’s remit to make a recommendation about the father’s medication and in any event the father evinced no interest in making such a change. Not only that, he took huge exception to Dr D’s opinion that he was misusing his Ritalin.
I consider it somewhat unlikely that Dr D was mistaken about how the father was using his Ritalin but even if she was this does not invalidate her opinion based on the evidence available to her from a number of different sources that the father was at the time she saw him mentally unstable.
However, a change to the way the father takes his medication would not be a complete answer to the problem of the father’s behaviour as Dr D observed both in her report and during cross-examination. In her report she said as follows:
Unfortunately, Attention Deficit Disorder (ADD) is a frontal lobe condition in which stimulant medication improves concentration and temporarily reduces the impulsivity, but does nothing to treat the associated executive function problems. These include: the inability to see the consequences of actions and the inability to see the similarities between two different situations. (For example, a girl with ADD might be warned not to walk across the playing field at night to avoid being abducted and raped but she then goes and walks across a deserted carpark at night without seeing the same risk.) These executive functions direct social behaviour and are an important component of judgement. Executive function deficits are unaffected by stimulant medication and are only poorly treatable with behaviour therapy and psychoeducation.[7]
[7] Page 52 of the Expert Report.
The father was taking his medication when he repeatedly behaved impulsively and displayed very poor judgment in the months following separation. His poor judgment and impulsivity resulted in him failing to obey court orders and get into trouble with the police and caused him to rapidly lose his chance to share the care of the children. He could not stop himself speaking inappropriately at Interrelate and he lost his supervised time as well.
The father was taking Ritalin in May 2017 but that did not prevent him behaving in ways which caused the paternal grandmother to go to the police and resulted in him being arrested after a struggle with police in which he was capsicum sprayed. He was then incarcerated for 34 days which effectively put an end to his opportunity to have telephone communication with his children.
The father maintained at trial that he not only had ADHD but that he had PTSD arising out of hearing a safety catch released on 16 December 2015. He seemed to blame this for his reaction to the police in May 2017.
There was no independent evidence to support this save for a letter Dr G, a psychiatrist, which the father sent to Centrelink. Dr G was not called to give evidence and when asked about it in cross-examination Dr D said that she did not see any signs of the father having PTSD.
The father did not provide any psychiatric evidence at trial. He maintained that Dr D was wrong and that he was taking his Ritalin appropriately but while taking Ritalin, he has got into endless trouble with the HCCC and the police and repeatedly manifested poor judgment and impulsivity. Absent evidence that the father’s mental health was better managed, I could not consider making an order that the children spent unsupervised time with him.
In December 2017, the father sought to re-open the hearing but it was on the basis of his old criticisms about Dr D. He did not provide any evidence of changed circumstances or evidence from a psychiatrist which indicated that his mental state had settled which it might have been worth the court’s while to receive for the sake of ensuring that the best possible decision was made about the children.
I can have no confidence that the father’s behaviour is going to change or that he is going to make good child focussed decisions or seek useful therapeutic treatment in the future when he can see nothing wrong with his past behaviour and believes that he is always right.
Whether that means that he does not see his children at all however, is something I will have to consider after making all the necessary findings in the matter.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant.
This is not relevant as a separate consideration.
I must consider the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children's parents.
This does not assist me as a separate consideration.
I must consider any family violence involving the children or a member of the children's family.
I have outlined above the events that followed separation but the mother alleged that the father subjected her to family violence throughout the relationship.
The mother’s allegations included the following:
a)In 2002 she was speaking to old school friends inside a pub when the father tackled her to the ground. He continued to argue with her and later used a cigarette to burn her neck causing a scar.
b)Between 2008 and 2009 there was an occasion when the father strangled her to the point of unconsciousness, another occasion when he kicked her and pushed her down the stairs and after she got up and went to the bedroom and lay on the bed got onto the bed and kicked her with both feet causing her to hit the wall and fall off the bed. The father continued to kick her when she was on the ground.
c)On other occasions, the father grabbed her and pinned her to the bed with his knees and held her down with his bodyweight and put his hands over her mouth pressing down hard.
d)On other occasions the father slapped her face.
e)On one occasion the father locked her out of the house when she was wearing no clothes.
f)The father would wake her by yelling at her and belittling her and would not allow her to sleep.
g)On one occasion when she was holding both babies, the father assaulted her and she had to turn one of the babies’ heads to protect them.
h)In 2013 the mother went to a concert and the father rang her repeatedly until 4.00am.
i)In August 2015 the father went through her phone looking for her internet browser history.
j)On a date in 2015 the mother could not recall the father woke her at about 1.00am screaming at her. He ripped off the doona and said “Get outa bed, get outa bed. You’re going to fucking die. I’m going to put concrete blocks on your feet and throw you in the ocean. No one will ever fucking find you”
k)On 10 September 2015, the mother was on crutches following knee surgery and tripped and dropped a drink. The father got up out of bed and began to clean up the drink but said “What are you, a fucking idiot, you’re such a fucking idiot.” He raised his arm above his head and closed his fist and motioned as if to hit her. She said that the children were standing nearby crying.
The father denied to Dr D that there was any history of violence.[8] In his affidavit he was a little more circumspect and denied that there was any physical conflict after the children were conceived in …2009. He said that the parties experienced a high level of conflict in 2008 and that there was verbal conflict in the last 12 months of the relationship.[9]
[8] Dr D’s report page 16 paragraph 6
[9] Father’s affidavit filed on 10 February 2017
The father asked the court to have regard to the fact that the mother made no complaints to police before separation and that she agreed to the orders on 26 November 2015, but neither matter means that the mother’s allegations are false.
I am satisfied for a number of reasons that the mother’s evidence about the violence she experienced at the father’s hand including some serious physical violence should be accepted.
First, physical violence is not out of character for the father. He has been charged on a number of occasions during his life with offences of violence. He was charged with assault on 10 February 1997, although the charges were withdrawn, assault (3 counts), malicious damage, unlawful entry and assault occasioning actual bodily harm in March 1997 and resist and hinder police in September 2001 which was withdrawn.
In 2009 a report was made to police that the father had rung his biological father and said “I’m coming to find you and kill you.”
When cross-examined about this, the father did not admit using the word “kill” but he admitted that he rang his father and told him that he remembered what he had done to his children and said “I’m coming to get you”. I consider it more probable than not that the word “kill” was used as reported to the police at the time.
Dr D set out in her report extracts from the father’s diary in which he made admissions about violence he perpetrated on the mother. This material bolstered Dr D’s opinion that the father had perpetrated family violence during his relationship with the mother. It included admissions by the father that he had been physically violent and sexually abusive and had smashed and thrown things.
During cross-examination, the father admitted that he kept a diary but said that Dr D had misquoted the entries. However, when some of the entries were put to him by the mother’s counsel, he admitted that they were accurate. He admitted that on one occasion he threw and dragged the mother. He admitted calling the mother a gang-bang whore and gave a lengthy evasive answer when asked whether in 2008 he had been punishing the mother through sex. He repeatedly said that 2008 was a horrible time.
The father submitted that the court should ignore the information in Dr D’s report which derived from his diaries because extracts from his diaries were sent to her by the mother’s solicitor without his consent and further, he was in the habit of writing stories and that the material was fiction written for his own therapeutic purposes or fictional scenarios intended to be enacted by psychologists for training purposes.
The father did not put forward this story of the diary entries being fiction during cross-examination. He admitted that some of the things Dr D mentioned as being in the diary entries had occurred. He made sufficient admissions and was sufficiently evasive for me to be satisfied that the entries Dr D set out in her report are accurate and contain admissions about severe family violence perpetrated by the father.
Finally, the mother was generally a witness of credit and some of her allegations are consistent with the father’s post separation behaviour in entering the home in the early hours of the morning and waking her up.
I accept the mother’s evidence about the violence which occurred during the relationship and unreservedly accept her evidence about the violence which occurred after the relationship ended which is corroborated by police records setting out their personal experiences with the father in December 2015.
I am going to deal with the allegations made by the paternal grandmother in a later section of the judgment. However, I would observe here that the fact that the father perpetrated family violence in respect of the mother both before and after the relationship has many implications for the case, not the least of which is that the mother’s belief that the father did indeed make threats in May 2017 about killing her and the members of her family is entirely credible given what she experienced at the father’s hands both during the relationship and in December 2015.
It is also entirely credible that in light of all of this she is very fearful of the father and would have considerable difficulty complying with an order for the children to spend time with him.
I must consider if a family violence order applies, or has applied, to the children or a member of the children's family - any relevant inferences that can be drawn from the order, taking into account the following the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
A number of family violence orders have been made in this matter, commencing in late November 2015.
At the time of trial in July 2017 a four year ADVO made in October 2016 was in place for the protection of the mother.
Considering the ADVO’s as a separate issue will not assist me to determine the parenting matter.
I note here that the father was charged with a number of breaches of the ADVO made in December 2015 which took the form of telephoning or emailing the mother. He was convicted by a Local Court Magistrate in respect of those charges but he appealed to the District Court which overturned the convictions on 12 December 2017. The District Court judge said that he could not be satisfied beyond reasonable doubt that the father had committed the offences because he could not dismiss his evidence either that he did not send certain emails or that when he made telephone calls he did not know that this was in breach of an order. [10]
[10] See Exhibit V
The fact that these convictions were overturned is not material to the decision I need to make.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
That order would be a no time order. The father’s behaviour resulted in the orders made on 26 November 2015 failing before they had a chance to begin and he ceased spending supervised time with the children in mid-2016. There is reason to be concerned about his mental health and a very high risk that if orders are made for time the situation will break leading to further court proceedings.
However there is also a possibility of further proceedings if that order is made because the father may come back to court if he considers that he is able to demonstrate that circumstances have changed.
I must consider any other fact or circumstance that the court thinks is relevant.
The father put to the mother in cross-examination that since separation she had actively blocked the children having a relationship with him. The mother denied it and the evidence does not support it.
On 26 November 2015 the mother agreed to the father having extensive time with the children subject to him obtaining a satisfactory psychiatric report. He torpedoed the arrangement by entering the home two days later in the early hours of the morning in breach of a very clear order made by the court restraining him from doing so.
An order was then made for supervised time at Interrelate and this stopped only because the father refused to comply with Interrelate’s rules.
In August 2016 an order was made for telephone communication. The mother only applied for its discharge following the May 2017 incident.
The mother said and I have no reason to disbelieve that since separation she had taken steps to ensure that the children remained connected with the paternal family. She said that she had arranged visits with the paternal grandmother, the father’s brother Mr L and other uncles, aunts and cousins.
Returning to the primary considerations, it would be of benefit to [X] and [Y] to have a relationship with their father.
They were very excited to see him at the report interviews and he interacted with him for an hour. Their reaction to him suggests that they must have had many positive experiences with him prior to separation and that he was potentially a person with whom they could have a relationship which was “important, significant and valuable to them”.[11]
[11] Mazorski & Albright (2008) 37FamLR 518
Dr D was concerned about the father’s over the top interaction with the children, the appearance of him favouring one over the other and the potential for difficulties in the relationship between himself and the children when the children reached adolescence. She did not suggest however that this meant that father should have no relationship with the children at all.
However the situation is complex because if the father has a mental condition which is not controlled and he behaves in dysregulated, threatening and physically aggressive manner to other people including the children’s mother, there is no prospect of him being a significant and valuable person in the children’s lives no matter how much they enjoy his attention and enjoy playing with him.
This leads into the second primary consideration which is whether there is an unacceptable risk of the children being subjected to or exposed to abuse, neglect or family violence as a result of the father’s behaviour.
Pursuant to s. 60CC(2A) in applying the considerations in s. 60CC(2), I am required to give greater weight to this consideration than to the benefit to the children of having a meaningful relationship with each of their parents.
There has been some quite severe family violence in this matter. During the relationship the father assaulted the mother, called her vile names and engaged in threatening or intimidating behaviour. The twins were present on at least two of those occasions.
Soon after the relationship ended he assaulted, stalked, intimidated and stole from the mother. The children were in the home on one of these occasions but there was no evidence about them witnessing the incident.
The father left Town C not long after the post separation incidents which occurred at the home and no further offences of this nature occurred.
However in May 2017, the paternal grandmother reported to police that the father had assaulted her and that he had threatened to kill her and to kill the mother, her parents and her partner and find a way to kill the children.
The police took these threats extremely seriously. They commissioned a report from Dr M, a psychologist, as to the level of risk the father posed to the mother and children. They (unsuccessfully) opposed the father being granted bail and put into place safety measures for the protection of the mother and children.
The paternal grandmother did not give evidence at trial before me and I cannot make findings about exactly what occurred between her and the father but I cannot lightly dismiss that something serious occurred which involved actual harm and threats of harm.
The paternal grandmother had to that point been in the father’s camp in respect of the matter as evidenced by her interview by Dr D. It is significant that she went to the police and made a detailed complaint against the father including informing the police about threats made against the mother, her family and the children.
The father gave several different versions about why the paternal grandmother would have made a complaint about him to police. When he was asked in cross-examination about what happened with the paternal grandmother he gave answers such as:
My mother went to the police to get mental health help for me.
I’m not saying my mother is lying, I’m saying those events are broadly taken out of context.
Another version the father gave was that his mother misheard him and that he used the word “Call” not “Kill” when referring to the mother, her partner, the maternal grandparents and the children.
Alternatively he alleged that the paternal grandmother made a report to police because she was worried that if he went to Town C, the police might kill him and felt that reporting to the police that he had committed offences was a way of ensuring that he did not go to Town C.
Finally during cross-examination of Dr D, he suggested that the paternal grandmother made the complaint due to her own mental health issues.
The father was dismissive of any suggestion that he might kill anyone, particularly his children but the issue for me is whether I can so lightly dismiss the allegations.
The father was not a witness of credit and the variable evidence he gave about why the paternal grandmother went to the police does not inspire confidence.
The father committed some severe family violence against the mother in their relationship and he was charged with family violence offences. He is capable of inflicting physical violence.
The father has a mental health issue which manifests itself in unstable and impulsive behaviour and he is sometimes incapable of containing himself even when the consequences for him are dire. He lost the opportunity to share the care of his children in December 2015 because of his actions and he lost the opportunity to see them in June 2016 because he would not abide by the Interrelate rules.
The mother certainly takes the threats in respect of herself seriously. The father put to her in cross-examination in July 2017 that before May 2017 she did not believe he had any intention of killing her and the girls and she replied:
I wouldn’t have thought the girls but I’ve seen how you’ve deteriorated and I will always hold myself in fear of you.
Dr D was informed about the allegations made the paternal grandmother during cross-examination on 12 July 2017. She ruminated on the father’s obsessive behaviour and observed that if a point was reached where he knew that he was not going to see his children he might act in a self-destructive way. Her view however was that the father was more likely to commit suicide than kill the mother and children.
A hypothesis which needs to be considered is that the father made the threats exactly as the paternal grandmother described but they were intended to intimidate and coerce her because she was displeasing him by refusing him use of her motor vehicle.
It is difficult to come to a conclusion about whether the father would actually kill his children if he felt he had nothing left to lose. Such events are rare but when they happen they are catastrophic. The father’s poor mental state, his extreme dislike of the mother and his capacity to inflict physical violence mean that I cannot rule out the possibility of that occurring and that makes the risk to the children of spending unsupervised time with him unacceptable.
There is also an unacceptable risk of the children being exposed to family violence if they spent unsupervised time with the father given his history, his denial about perpetrating family violence and therefore his complete failure to deal with his own propensities and his inadequately managed mental health issues.
That leads into another relevant matter which I need to be consider now that I have made findings about all the s. 60CC (2) & (3) matters and that is the impact on the mother of an order for face to face time.
I am satisfied that the mother would be beside herself with worry if ordered to facilitate unsupervised time between the children and the father. At the very least she would worry about where they were and whether they would be returned. It is hard to see how she could dismiss from her mind a fear that the father might deliberately harm them. The mother is the only parent available to provide the children with uneventful day to day care. It would be not be in the children’s best interests to make orders which she would find extremely worrying and with which she may not be able to bring herself to comply.
Dr D put this a different way saying that what the children needed was security, reliability, calmness and a stable home. The mother can provide that and the father cannot and the mother’s capacity to provide that should not be undermined by an order for the children to spend time with the father which she might not be able to bear.
She also said that even if the current charges against the father were dismissed the previous issues were of concern.
Parental Responsibility
Pursuant to s. 61DA of the Family Law Act when making a parenting order in relation to children the court must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them.
The presumption does not apply if there are reasonable grounds to believe that a parent of the children (or a person who lives with a parent of the children) has engaged in abuse of the children or family violence.
The father has engaged in family violence and the presumption does not apply. I can still make an order for equal shared parental responsibility but it would very clearly not be in the children’s best interests for me to do so.
The parents have been in high conflict since separation and multiple ADVO’s have been made for the mother’s protection. She is genuinely frightened of the father. The father also has no time for the mother. His affidavits are peppered with allegations about her perfidious nature, her efforts to destroy him and her misleading and false evidence.
These are not parties who could productively discuss matters and attempt to reach a joint decision if a decision was required nor could I reasonably require the mother to do this.
Even on the father’s case, the children will remain living primarily with the mother and the only appropriate order is that the mother have sole parental responsibility for the children.
Dr D’s recommendations
In July 2016 Dr D did not consider that the father’s behaviour and his deficiencies as a parent meant that he should not see his children at all. She recommended that he have supervised contact with the children every second Saturday from 10.00am to 6.00pm or similar and that the father’s partner be interviewed as a potential supervisor. The children’s pleasure at seeing the father and their positive interaction with him at the interviews were no doubt a deciding factor.
At trial after being informed about the May 2017 allegations, Dr D re-iterated that in her view the father still had something to offer the children. She did not suggest face to face contact or even supervised time but she suggested that perhaps the children could have Skype communication with him.
The problems with this which had already manifested themselves were explained to her and toward the end of her cross-examination, Dr D said that:
To be considered for any form of contact he needs to be in weekly therapy with someone who has authority over him.
12 months of weekly therapy at a minimum should occur before he should be considered for time with the children.
However, she expressed the view that the father would probably not go to therapy and that if he did it would probably fall through.
I will have to consider after weighing and balancing all of my findings what I do with those recommendations.
Conclusion
The positives for the father’s case are the children’s behaviour during the observation session conducted by Dr D, which although it raised some concerns suggested that the children had historically had a good relationship with him together with Dr D’s view that the children would miss their father and her view that even if due to his issues he posed some risk to the children’s emotional well-being, this did not necessarily preclude him having some role in their lives albeit of a minor nature.
In light of this, if I could find that the father’s behaviour after separation was an aberration arising out of extreme distress at the breakdown of his relationship with the mother and that things had settled down for him and that he was now in a good place in his life, I would have to consider whether orders could be made for the children to spend time with the father.
However I cannot and there are a cascading series of difficulties with making any order for the children to spend time with the father.
The first is that the father provided no evidence that he had a stable address. He has lived in a number of different places since separation. He said that after the trial in July he intended to return to Melbourne but he had previously gone to Melbourne and not remained there. Given all the issues with the father, I could not order that time occur outside a supervised setting unless I was very sure about where he was living.
This kind of difficulty in isolation could potentially be dealt with by an order but unfortunately it is the least of the difficulties for the father.
The second difficulty is that I cannot be satisfied that with his mental health issues he has the capacity to provide for the children’s needs on a day to day basis, even in terms of arranging safe accommodation for them and ensuring that they are not subjected to unwanted discussion about his woes and the mother’s failings. He is highly reactive and unable to control himself even when it is to his detriment not to do so and that cannot be overcome with an order.
The third difficulty is a much more serious one which also could not be overcome with an order, and it is that I could not expect the mother to comply with an order for the children to spend unsupervised time with the father. She would be either distraught while the children were away from her or would not be able to bring herself to comply with an order.
The mother has been through too much; family violence during the relationship, the father taking the children on 19 November 2015 and not returning them until the mother applied for a recovery order, family violence in November and December 2015 including waking up and finding the father shaking her awake, being assaulted and having phones taken from her, being informed by police in May 2017 about the threats to kill made in respect of her, her family and the children and being made aware that the police viewed the threats very seriously, evidenced by them giving her a device to wear around her neck and putting in place a safety plan at the children’s schools.
Finally I consider that the children would be at unacceptable risk of harm in the father’s care, perhaps by exposure to his aggression toward others, perhaps by exposure to violence directed at family members and in a catastrophic worst case scenario by him doing as he threatened to do and finding a way to kill them.
The father is dismissive of that possibility but I cannot discount the possibility that he did utter the threat to the paternal grandmother and that in a certain state of mind he might carry it out. He lost control with the police in May 2017 allegedly as a result of a memory of past treatment by the police being triggered and behaved in an extremely violent matter. I certainly cannot discount that possibility in the absence of evidence that the father’s mental health is properly managed.
The father has never accepted any responsibility for his behaviour or showed any recognition of the impact his behaviour has had on the mother. Throughout the trial in July 2017, he either denied allegations made against him, obfuscated and evaded dealing with issues or completely failed to address them and acted as if the alleged events had not happened and maintained that all his woes were due to the mother lying about him, her lawyer acting corruptly and corrupt police targeting him.
The father was highly critical of Dr D but provided not a shred of evidence to support a finding that things had changed for him and that his mental health was properly managed, indeed although his answers were not always consistent some of them suggested that the paternal grandmother was motivated to go to the police in May 2017 because of concern about his mental health. He said that he lost control when the police came to the paternal grandmother’s house in May 2017 because he had PTSD and or was triggered by a memory of something that happened to him during one of his periods of imprisonment.
The father obtained Centrelink benefits by getting a letter from a psychiatrist stating that he was suffering from PTSD, ADHD, Major Depressive Disorder and Adjustment Disorder and he relied on or sought to rely on s. 32 in relation to how some of his criminal charges were dealt with, so even on his case he is suffering from mental health issues which have caused some aggressive outbursts.
The father rejected Dr D’s opinion that he was misusing his medication but did not obtain for trial any evidence about his mental health which might have clarified what was going on for him or given the court or the mother some confidence that his mental health was properly managed and that there was no risk of bizarre episodes, threats or violence toward the mother, police or anyone else in the future.
In the application to re-open which the father filed in December 2017, he sought an order that the report of Dr D be provided to Dr G and Dr E for comment but this would not have assisted.
This all leads to the conclusion that it would not be in the children’s best interests to make an order that they have unsupervised time with the father.
No party asked me to consider making an order for supervised time and if they had I would not have made one for a combination of reasons. The father has a propensity for breaking rules which means that even supervised time might not be safe, there was no evidence that supervised time could practically be organised and the children have not seen the father for two years, and I would not be prepared to unsettle them and re-introduce them to the father in the absence of evidence that there had been a significant change which meant that he did not pose a risk of harm to them, that his mental health was well managed and that there was a real prospect of time moving to unsupervised in the future.
Dr D suggested at one time that consideration be given to Skype communication. Whether that would be appropriate if it was the only order I could make must be open to question but it has been tried and failed and to reinstate it would re-create a highly stressful situation for the mother.
There is an inherent problem with this however. It was attempted between August 2016 and May 2017 and it caused endless stress and difficulty. The father made numerous complaints about non-compliance with the orders by the mother, fired off letters or emails to the Independent Children’s Lawyer and filed a contravention application. The children are too young to handle this kind of communication without the mother being involved and there is nothing to suggest that an order for skype communication would work for the children’s benefit in the future unless there was a dramatic change in the father’s functioning.
The only appropriate orders in this case are those sought by the mother.
If at some time in the future the father feels that he is able to demonstrate that he has changed, he can bring another application but his presentation at trial was such that it is open to question whether he will ever be able to do so. He was intensely self-focussed and showed no empathy for the mother or the children. He expressed no remorse about his conduct toward the mother, and his children hardly rated a mention in the material he presented at trial. His focus at trial was on presenting evidence about how badly he had been treated by the mother, her solicitor and the police.
The mother sought an order that she be able to obtain a passport for the children and travel internationally with the children without needing to obtain the father’s consent. There is nothing to suggest that the mother intends to leave Australia permanently and it is sensible to make this order rather than require the mother to come back to court seeking it when she wishes to travel.
The Independent Children’s Lawyer asked me to make an additional order namely that the mother be restrained from using drugs not prescribed for her. I do not intend to make such an order. Among other things, there is insufficient evidence to suggest that this is an issue which needs to be addressed by an order of the court, there will be no one to enforce it as the father will not be seeing the children and it creates an unfair stigma about the mother who will be required to give these orders to authorities such as the children’s school.
Property
The assets and liabilities
The parties have the following assets:
Description
Ownership
Value
Proceeds of sale of Property A held in trust
Joint
$46,857.00
Household contents
Mother
200.00
Motor vehicle
Mother
Not known
Motor vehicle
Father
$1,000.00
Motorcycle
Father
2,000.00
The mother said that her motor vehicle was purchased for her post-separation by her parents for $25,000.00. I have otherwise taken the items in this list from the parties financial statements but the focus of the parties at trial was solely on the money in trust from the sale of the Property A property.
When the hearing commenced the amount in trust was $50,982.00. On 11 July 2017 I made an order that Slater & Gordon, in whose trust account the money was held, be authorised to release $3,025.00 to Dr D to cover the cost of her giving evidence at the trial in July 2017.
On 16 August 2017 I ordered that a further $1,100.00 be released to the Independent Children’s Lawyer who was out of pocket in respect of the cost of Dr D appearing to give evidence in February 2017 when the matter was not reached. The Independent Children’s Lawyer obtained a grant of aid from the Legal Aid Commission to pay Dr D’s fee for that appearance but it only went part of the way and the Independent Children’s Lawyer paid $1,100.00 from her own pocket to ensure that Dr D attended. The money was thrown away as the matter was not reached.
The amount in trust from the sale of the home following that second order is $46,857.00.
The mother said that the parties had the following liabilities:
Description
Ownership
Value
National Australia Bank Visa
Joint
$21,373.00
National Australia Bank Visa 2
Joint
$42,000.00
Bank
Mother
$22,000.00
St George Bank
Mother
$11,331.00
Bank Rewards
Mother
$17,229.00
Bank
Mother
$9,843.00
ANZ
Mother
$17,524.00
Miscellaneous Business Creditors
Joint
$40,000.00
Statutory Superannuation liability for staff
Joint
Unknown
Total
$181,300.00
The mother was allowed to give some additional oral evidence about these debts. She said that the debts were all business debts, including all the debts in her name, and I have no reason to disbelieve this evidence.
I am concerned that there may be some doubling up in this list. In oral evidence the mother said that the amount owing to ‘miscellaneous business creditors’ was in respect of superannuation owed for three employees. She then said that only one employee had actually complained about non-payment of superannuation which makes the amount seem high and she did not explain why there was a second entry called “statutory superannuation liability”.
The credit card debts and the National Australia bank loan certainly exist. The mother gave unchallenged evidence that on 16 February 2017 National Australia Bank sent the parties a letter offering a 50% reduction in the amount owed provided that the parties paid $21,203.65 by 2 March 2017 in respect of account 083-117 47-505-1426.
The Bank also indicated that it was prepared to accept $11,000.00 in full settlement of the debt on Card No. …provided that the amount was paid by 16 April 2017.
These payments were not made.
Even if there is some inaccuracy about the figure for miscellaneous creditors the debts vastly exceed the amount in trust.
The father’s issue with the property matter was that the mother had run up excessive debt without his knowledge or consent and had attempted to secrete money. He alleged that as a result of her actions their debt “ballooned out of control” in 2014 and 2015.
He alleged that she had been making inquiries about how to set up overseas bank accounts. He alleged that she had embezzled many tens of thousands of dollars in the last few years of the marriage.
The mother denied that she had taken any money. She admitted that she had done internet searches about opening a bank account overseas but said that she was trying to find a way to put some money aside so that she could get away from the relationship.
There is no evidence that the mother ever actually opened an account overseas or transferred money overseas or had undisclosed assets, nor was there any evidence which would justify me making a finding that she should be held solely responsible for the parlous state of the business. The father’s behaviour in the second half of 2015, during which he was the subject of a number of complaints to the HCCC, could well have contributed to the state of the business.
There is nothing in the evidence about the operation of the business or the whereabouts of business money which would found a claim for add-backs, nothing which would impact on findings about contributions and nothing which might be a relevant s. 75(2) factor as a result of s. 75(2) (o) which allows me to take into account any other fact or circumstance which the justice of the case requires me to take into account.
The mother made allegations about the father’s contribution to their financial situation. In answer to a question from him in cross-examination she said:
You kept hiring staff we didn’t need. You rented premise in town we couldn’t fund. You stopped seeing people toward the end and in the end the money ran out.
This evidence although heartfelt and genuine is too vague and imprecise for me to do anything with in terms of me making a finding about either contributions or s. 75(2) matters.
The parties’ financial situation as a result of the business ceasing to operate is as it is. The principal asset in the non-superannuation pool is $46,857.00 in trust and it is dwarfed by debits of at least $140,000.00 and possibly $180,000.00 and higher.
The parties have the following superannuation:
Description
Ownership
Value
Bank
Mother
$35,000.00
Bank (from 2015 financial statement)
Father
$30,000.00
$65,000.00
The applicable law
S.79 (1) of the Family Law Act 1975 empowers the court to make such orders as it considers appropriate altering the parties’ interests in property.
S.79 (2) provides that the court shall not make an order under this section unless it considers that it would be just and equitable to do so.
In Stanford & Stanford the High Court stressed that when an application for a property settlement was made, the court must first identify the parties interests in property and then consider whether it was just and equitable to make an order altering those interests. It stressed that this question could not be answered simply by considering whether a party had made contributions as set out in s. 79(4) of the Family Law Act. [12]
[12] Stanford & Stanford (2012) FLC 93-495
Neither party proposed an alteration of interests in their superannuation or proposed that the court look into and possibly redistribute the smaller items they had but it is necessary that I make a decision about what is to happen to the money in trust as the parties are separated and there is no prospect of them agreeing about how it should be used.
I intend to take the usual steps to resolve the question of what particular alteration of interests would be just and equitable and those steps are:
i)to assess the contributions of the parties under s79(4)(a), (b) and (c);
ii)to consider the matters in s.79(4)(d), (e), (f) and (g), which includes the matters in s.75(2) so far as they are relevant, and determine whether any adjustment should be made as a result to the contribution based entitlements;
iii)to consider the effect of those findings and resolve what orders are just and equitable in all the circumstances of the case.
Often findings about contributions and s. 75(2) matters are made on a percentage basis. That would be meaningless in this case where there is a very small amount of money in trust and very large debts and in the end the obligation of the court is simply to make the orders which it considers just and equitable.
Contributions
The mother said that neither she nor the father had any significant assets when the relationship commenced and the father did not contradict this assertion.
The mother gave little evidence and the father less about the acquisition, conservation or improvement of the house or the business but the evidence generally supports a finding that the parties both earned income during the relationship and both contributed to the acquisition conservation and improvement of the assets.
The business was in the end a financial drain. It has ceased to operate and the parties owe a very large amount to creditors. There are issues with preparation of final partnership returns and payment of staff entitlements and superannuation.
The parties both claimed to be the primary carer of the children during the relationship. It is impossible for me to make a finding about primary care as both parties worked and they had the assistance of a nanny and toward the end of the relationship the children attended day care. I accept that both parties were involved in caring for the children.
No evidence was given about the performance of homemaker and parenting tasks or performance of work such as repairs, maintenance and gardening.
The father alleged that his maternal grandmother gave the parties $5,000.00 in 2003 toward the purchase of the land in Property A. He also alleged that he cashed in Long Service Leave after working for ten years for the Employer and that he received a substantial windfall from the estate of his brother but in 2009 but he did not put a dollar figure on either of those things.[13]
[13] Contained in Part D of the father’s amended response filed on 9 February 2017.
I have referred earlier to the father’s allegations about the mother’s conduct which he claimed resulted in the running up of debts and the destruction of the parties’ financial circumstances. Insofar as this could be made into a contribution issue, the father did not bring sufficient evidence to allow me to make a finding that the mother did things in relation to the business which are relevant to the assessment of contributions.
I could speculate that the unravelling of the father’s mental health in the last part of 2015 may have contributed to the parties’ financial situation but the mother did not press me to make a finding to that effect.
For the majority of the post-separation period, the mother was living with the maternal grandparents or away from the former matrimonial home and the father was living interstate. No comprehensive evidence was given about payment of the mortgage on the former matrimonial home after separation.
The mother had the care of the children after separation. She has received little child support.
Conclusion about contributions
On the state of the evidence, it is open to me to find that contributions during the marriage were equal. The $5,000.00 the father may or may not have received to assist with the purchase of Property A is not a sufficient amount to justify an adjustment in his favour in the context of a marriage of reasonable length with two children.
Post-separation matters insofar as I have evidence about them favour the mother because she has had the primary financial care of the children.
S. 79(4) (d) (e) (f) and (g) matters
I am required to consider the matters in s. 79(4) (d) (e) (f) and (g) of the Family Law Act. The only relevant subsection is (e) which requires the court to have regard to the matters in s. 75(2) of the Act.
S. 75(2) matters
The mother is 44 and is a medical professional. In …2017 she was employed as a professional by Employer and was earning the equivalent of $62,400.00 per annum.
The mother has the care of the eight year old twins. She was not receiving child support at the time of trial. The father’s life was in a state of chaos. There is nothing in the evidence to inspire confidence that the mother will receive much child support in the future.
The mother has been considerably assisted by her parents since separation. They have paid the children’s school fees to the tune of $18,000.00 and her legal expenses to the tune of $37,692.00.
At the time of trial the mother was in a relationship with Mr K and this relationship had been in existence for about eighteen months. Mr K earns income but there is nothing about the mother re-partnering which is relevant to my assessment of the s. 75(2) matters.
The father is 51. In his affidavit filed on 10 February 2017 he gave his occupation as professional but he said that he had given up his registration as a medical professional on …2015. He said that he was in the process of applying for re-registration. He said that he was in receipt of “Centrelink Sickness Allowance.”
Prior to separation the father had a history of being employed or generating income by self-employment. If his mental health was stable he might be able to do this again in the future. It is however impossible for me to know what the future holds for the father.
Conclusion
This matter involves a small amount in trust and considerable debt. The mother has the primary care of the children. They will not be seeing the father in the future so her financial and non-financial responsibilities for them will be greater than might often be the case.
This would normally lead to a finding that the small amount in trust go to the mother. My only misgiving about this is that the parties have significant debt and in some ways the amount in trust is a mirage.
An alternative which might better ensure justice and equity would be to order that the money in trust be used to pay at least some of the joint debts. If this order is not made the mother may choose to pay none of the joint debts forcing the father into bankruptcy.
However there are two other realities to consider. One is that the money in trust would only make a small dent in the joint debts anyway. The father’s financial situation may be no different if none of the joint debts are paid than it would be if some of them were paid.
The other is that the mother is working and is more likely to be the target of debt recovery action. Giving her the means to make some difference to her financial situation is overall, the just and equitable outcome and if she does not use the money in a way which assists the father then sobeit.
In respect of the property, I intend to order that the money in trust is the property of the mother and the parties otherwise retain the assets and superannuation in their possession or control.
In the minute of orders attached to her case outline document, the mother sought an order that the parties sign all documents, including taxation returns, necessary to wind up the partnership Company M. This was not addressed in submissions but as it does not place any financial burden on the father and as the parties have long been separated it is sensible that I make this order.
The payment of Dr D’s fees from the money in trust
During the course of the hearing I ordered that some of the money in trust be used to pay Dr D. The father objected to this and I said that I would consider in this decision whether there should be any adjustment in his favour to take account of this being done over his objection.
The father was highly critical of Dr D’s report and took the position that the mother should pay the cost of her attending for cross-examination.
It was the tenor of the father’s case that Dr D’s report not be admitted into evidence but that horse had bolted and if Dr D’s report was to be received it was essential that she be available for cross-examination if for no other reason that that there had been developments since her report was released. The position of the mother’s counsel that he did not require Dr D was untenable. Clearly she needed to be available to be cross-examined by the father, the mother and the Independent Children’s Lawyer.
The Independent Children’s Lawyer could not obtain a further grant of Legal Aid to pay for her to attend and it was entirely appropriate that each parent contribute when there was a fund of money in their possession which enabled them to do so.
Given the very small asset pool, trying to make an adjustment in the father’s favour even if I felt that he had been unfairly required to contribute would be problematic. However if the $3,025.00 and the $1,100.00 were still there, I would have given that to the mother as well so the issue of payment of Dr D’s fees becomes a non-issue.
I certify that the preceding three hundred and fourteen (314) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 23 January 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Jurisdiction
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Fiduciary Duty
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Remedies
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Constructive Trust
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