FLEISCHER & FLEISCHER
[2013] FamCA 415
FAMILY COURT OF AUSTRALIA
| FLEISCHER & FLEISCHER | [2013] FamCA 415 |
| FAMILY LAW – CHILDREN – Family violence – where the mother’s allegations of her sexual assault by the father were not established on the evidence – where the evidence established on the balance of probabilities the father had physically assaulted the mother on two occasions – where the mother’s remaining allegations of family violence were not established on the evidence – where both parties’ evidence was unreliable – where the father had been acquitted of serious criminal charges in concurrent criminal proceedings FAMILY LAW – CHILDREN – Children’s living arrangements – children reside with the mother conditionally – children spend time with the father, supervised by the paternal grandparents for three (3) months, and thereafter spend substantial and significant time with him – if the mother fails to ensure the children spend time with their father within twelve (12) months of the making of orders the children will then reside with the father, spend no time with the mother for three (3) months and thereafter spend substantial and significant time with the mother FAMILY LAW – CHILDREN – Best interests of the children – where the children would benefit from meaningful relationships with their father – where there was no risk of harm to the children through subjection or exposure to abuse or family violence in the care of either parent – where the mother had deliberately aligned the children against their father – where there was a need to restore and promote the children’s relationships with the father – where the father lacked sensitivity in his parenting approach – where both parties had contravened interim parenting orders and ignored State family violence orders – where the children had not spent time with the father for two (2) years – where a State family violence order remains in place for the protection of the children and mother against the father for the next two (2) years FAMILY LAW – CHILDREN – Parental Responsibility – mother has sole parental responsibility – in the alternate, if the mother fails to successfully implement the orders within the first twelve (12) months the father is allocated sole parental responsibility – where the presumption of equal shared parental responsibility was rebutted due to the occurrence of family violence – where it was not in the children’s best interests to allocate equal shared parental responsibility FAMILY LAW – PROPERTY – Property Settlement – husband receives thirty-nine (39) per cent and the wife receives sixty-one (61) per cent of the asset pool – where the parties’ contributions were admittedly equal – where an adjustment was made in favour of the wife – where the wife would likely have the majority future care of the parties’ four (4) children – where the parties’ respective superannuation entitlements were treated separately from matrimonial assets |
| Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 16, 36, 38, and 42 Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CF, 60CG, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 75, 79, 90MZ and 106A |
| Goode & Goode (2006) FLC 93-286 Marriage of Coghlan (2005) 33 Fam LR 414 MRR v GR (2010) 240 CLR 461 Omacini & Omacini (2005) FLC 93-218 Re David (1997) 22 Fam LR 489 Slater & Light (2011) 45 Fam LR 41 |
| APPLICANT: | Ms Fleischer |
| RESPONDENT: | Mr Fleischer |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Grant, Grant & Co |
| FILE NUMBER: | NCC | 1640 | of | 2011 |
| DATE DELIVERED: | 6 June 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 20, 21, 22, 23 & 24 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr R Wilkinson |
| SOLICITOR FOR THE APPLICANT: | Sneddon & Partners |
| COUNSEL FOR THE RESPONDENT: | Mr T Bates |
| SOLICITOR FOR THE RESPONDENT: | Fielden & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr C Fraser |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Grant, Grant & Co |
Orders
Parenting orders
All former orders relating to the following children (“the children”) are discharged:
(a) B, born … June 1997;
(b) C, born … June 1999;
(c) D, born … July 2001; and
(d) E, born … September 2002.
Unless otherwise agreed, subject to compliance with Order 2(c) hereof for a period of 12 months from the date of these orders:
(a)The mother shall have sole parental responsibility for the children;
(b)The children shall live with the mother; and
(c)The parties shall take all reasonable steps to ensure all of the children spend time with the father as follows:
(i)Up to and including Saturday 20 July 2013, from 1.00 pm until 5.00 pm each Saturday, supervised by either the paternal grandmother or paternal grandfather;
(ii)Commencing on Saturday 27 July 2013 up to and including Sunday 6 October 2013, from 1.00 pm Saturday until 1.00 pm Sunday each alternate weekend;
(iii)Thereafter:
(A)During NSW public school terms, each alternate weekend from Friday 5.00 pm until Sunday 5.00 pm, commencing on the first Friday of each school term;
(B)During NSW public school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.
(C)During the NSW Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
Unless otherwise agreed, in default of compliance with Order 2(c) hereof within 12 months of the date of these orders:
(a) The father shall have sole parental responsibility for the children;
(b)The children shall live with the father, which residence must be at the home of the paternal grandparents up to and including Sunday 6 October 2013; and
(c)The parties shall take all reasonable steps to ensure all of the children spend time with the mother as follows, commencing no sooner than the date three months from the date upon which the children begin to live with the father pursuant to Order 3(b) hereof:
(i)During NSW public school terms, each alternate weekend from Friday 5.00 pm until Sunday 5.00 pm, commencing on the first Friday during the school term which is three months after the children begin to live with the father pursuant to Order 3(b) hereof;
(ii)During NSW public school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.
(iii)During the NSW Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
Orders 2(b), 2(c), and 3(c) hereof are suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years; and
(b)Between 5.00 pm Saturday and 5.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on Father’s Day weekend.
Order 3(b) is suspended during the following periods, but only from the date three months after the date upon which the children begin to live with the father pursuant to that order:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years; and
(b)Between 5.00 pm Saturday and 5.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on Father’s Day weekend.
For the purposes of implementing 2(c) and 3(c) hereof, the NSW public school holidays are deemed to commence at 5.00 pm on the last day of term, the holidays are deemed to end at 5.00 pm on the last day preceding the day upon which the children are due to return to school, and the mid point is the day halfway between those first and last days.
Unless otherwise agreed, for the purposes of implementing Orders 2-5 inclusive hereof the parties shall cause the exchange of the children between them at the McDonalds Restaurant at Town A, NSW.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:
(a)The father each Wednesday when the children are living or spending time with the mother, between 6.30 pm and 7.00 pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time;
(b)The mother each Wednesday when the children are living or spending time with the father (except for the period of three months following the children commencing residence with the father pursuant to Order 3(b) hereof), between 6.30 pm and 7.00 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time; and
(c)The parent with whom they are not then staying, on the children’s birthdays, between 6.30 pm and 7.00 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party shall notify the other of any medical emergency, illness or injury suffered by any of the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
The party with sole parental responsibility for the children shall authorise and request the principal of any school attended by the children to provide to the other party, at the other party’s expense, copies of all school reports and school photograph order forms relating to the children.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Within seven days hereof:
(a)The Independent Children’s Lawyer shall furnish to the single expert witness, Dr F, a copy of these orders and the reasons delivered by the Court for such orders; and
(b)The parties shall cause the children to be delivered to the single expert witness to have explained to them the effect of these orders, and if deemed appropriate by the single expert witness, the reasons for such orders, for which purpose the parties shall bear any costs in equal shares.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Property settlement orders
The parties shall forthwith do all such things and sign all such documents as are necessary to divide and ensure payment out of the residue sale proceeds of the former matrimonial home in the following manner:
(a) The sum of $55,531 to the mother; and
(b) The remainder to the father.
The father shall indemnify, and keep indemnified, the mother in respect of any and all liability owed by the parties jointly or severally to:
(a)The paternal grandparents, or either of them; and
(b)Citibank Visa
Unless otherwise provided:
(a)Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders and the other party shall forthwith do all such acts and things necessary to transfer his/her right, title, and interest in those assets to the other, for which purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed in the possession of the superannuant; and
(b)Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession and any debts in their respective sole names.
Miscellaneous orders
In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s.106A of the Family Law Act.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fleischer & Fleischer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 1640 of 2011
| Ms Fleischer |
Applicant
And
| Mr Fleischer |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
The evidence adduced in these proceedings unfortunately demonstrated that both the applicant mother and respondent father had an epic capacity for misrepresentation and disobedience of Court orders.
The mother’s allegations against the father of acute and prolonged family violence, which were completely denied by the father, were the focal point of the litigation. Because of the underlying factual conflict about the occurrence of family violence, the single expert promulgated alternate hypotheses and sets of recommendations to determine the parenting orders for the parties’ children.
The first assumed the family violence occurred as the mother alleged, in which case the children should remain living with her and have their relationships with the father severed, or at least grossly truncated.
The second assumed the family violence did not occur and the mother’s allegations were fabricated, in which case serious consideration needed to be given to removal of the children from the mother and their placement with the father. This scenario was complicated by the enforced absence of the father from the children’s lives over the past two years and the consequent deterioration of their relationships with him.
A third option, mooted during the single expert’s cross-examination, provided for the children to remain living with the mother but only on condition she ensures the father’s future meaningful involvement in the children’s lives.
Apart from their dispute over parenting orders for their children, the parties could not entirely compromise their property settlement dispute. These reasons deal with both aspects of their conflict.
Background
The parties commenced their relationship and began cohabitation in either 1995[1] or 1996.[2] They were married in February 1997.[3]
[1] Father’s affidavit, para 4
[2] Mother’s affidavit, paras 3, 6
[3] Mother’s affidavit, para 7; Father’s affidavit, para 7
The parties’ four children were born in 1997, 1999, 2001, and 2002. The eldest is now aged nearly 16 years and the youngest is aged 10 years.
The parties separated and reconciled on at least two occasions before their relationship finally ended.[4] The first separation occurred in late 2002 or early 2003.[5] The second separation occurred in February 2010.[6]
[4] Single expert report, page 14
[5] Mother’s affidavit, para 39
[6] Mother’s affidavit, paras 41-43
The parties’ final separation occurred on 27 September 2010.[7] The mother went straight to the police and made a statement containing a litany of complaints against the father, which resulted in a provisional apprehended violence order being made by police against the father in favour of the mother and the children.[8] That order was subsequently endorsed by the Local Court of NSW, firstly on an interim basis[9] and later on a final basis.
[7] Mother’s affidavit, para 46
[8] Mother’s affidavit, paras 47-48
[9] Mother’s affidavit, paras 59, 80
Despite the existence of the apprehended violence order, the parties continued to see and contact one another. The father alleged the mother often instigated the interaction.[10] The mother conversely asserted such interaction was initiated by the father and was unwanted by her,[11] but even on her version, by March 2011 she “gave in” and her meetings with the father were consensual.[12]
[10] Father’s affidavit, paras 195-197, 208-210, 216, 308; Single expert report, pages 24, 29
[11] Mother’s affidavit, paras 58-69
[12] Mother’s affidavit, paras 81-82, Annexure H (statement 9/4/11, paras 17-20)
The parties’ relationship was completely severed following an incident on 6 April 2011. It is uncontroversial the parties met that evening in the car park at a local sport club. The mother alleged the father physically and sexually assaulted her during that meeting and she later reported the assaults to police. The father was charged several days later with several serious offences of sexual and physical assault,[13] but was eventually acquitted of all charges.[14]
[13] Mother’s affidavit, paras 86-87, Annexure I; Father’s affidavit, para 16
[14] Father’s affidavit, para 36
The mother only permitted the children to have intermittent interaction with the father in the months following their separation.
Two sets of interim parenting orders were made after these proceedings were commenced by the mother in July 2011. The orders made in September 2011 provided for the children to spend time with the paternal grandparents, but not with the father whose prosecution on the serious criminal charges was still pending, and the orders made in October 2012 provided for the children to spend supervised time with the father. It is common ground those orders have not been satisfactorily implemented.
Apart from the children’s meeting with the father under the observation of the single expert in March 2013, the children have not spent any time with the father since April 2011 when he was first charged with having physically and sexually assaulted the mother.
Proposals and primary evidence of the mother
The mother abandoned the parenting orders set out in her Amended Application filed on 16 January 2013. She still proposed that the children live with her and she have sole parental responsibility for them, but she instead proposed the children spend time with the father pursuant to a graduating regime which, after about nine months, culminated in the children spending unsupervised time with the father on weekends and during school holidays. The mother’s proposal was only explained in broad terms during final submissions. No minute of orders was tendered.
The mother also abandoned the property settlement orders set out in her Amended Application. Aside from lingering disagreement with the father about whether assets and superannuation interests should form part of the same pool, the parties at least agreed their assets should be divided on a 61/39 basis in favour of the party with whom the children would live.
The mother relied upon:
a)Her affidavit filed on 28 March 2013;
b)The affidavit of the maternal grandmother, Ms G, filed on 27 March 2013;
c)The affidavit of the maternal aunt, Ms I, filed on 28 March 2013;
d)The affidavit of Ms J filed on 28 March 2013; and
e)The affidavit of MS H filed on 28 March 2013.
Proposals and primary evidence of the father
The father abandoned the orders set out within his Amended Response filed on 30 January 2013 and tendered a minute of the orders he proposed.[15]
[15] Exhibit F11
The father proposed parenting orders which provided for the children to live with him, for him to have sole parental responsibility for the children, and for the children to spend time with the mother in circumstances which were determined by a complicated series of factual findings by the Court, future therapeutic achievements by the mother, and the expression of further expert opinions by unidentified professionals.
The father abandoned his proposed property settlement orders in favour of the agreement reached between the parties, as already described.
The father relied upon:
a)His affidavit filed on 29 March 2013;
b)His financial statement filed on 28 March 2013; and
c)The affidavit of the paternal grandmother, Ms K, filed on 28 March 2013.
Proposal of the independent children’s lawyer
The Independent Children’s Lawyer did not begin the hearing with any fixed position. His proposal was announced to the Court during final submissions, but no minute of orders was tendered.
The Independent Children’s Lawyer’s proposal, which was a variation of the recommendation made to the Court by the single expert during her cross-examination, entailed:
a)The children living with the mother and she having sole parental responsibility for them, subject to the mother ensuring the children’s compliance with orders requiring them to spend time with the father over only the next two months;
b)The children spending time with the father each week for two months, to be supervised at a contact centre during the first month and then overnight at the paternal grandparents home during the second month. In default of those orders, it was proposed the children spend time with the father at the paternal grandparents’ home for three continuous months and only spend one hour per week with the mother during that period, after which the children would return to live with the mother and spend alternate weekends and half school holidays with the father; and
c)So long as the children successfully spend time with the father as envisaged over the initial two months, the children remain living with the mother and the children then spend time with the father on alternate weekends and for half of school holidays. If, from that point onwards, the mother and/or children failed to comply with the orders there would, axiomatically, be no repercussions.
The Independent Children’s Lawyer did not separately adduce any evidence.
Additional evidence
The parties and Independent Children’s Lawyer additionally relied upon:
a)The Family Report prepared by the Family Consultant on 5 July 2012; and
b)The report prepared by the single expert psychiatrist, Dr F, on 26 April 2013.
The single expert report was procured, with the consent of the parties and Independent Children’s Lawyer, upon the recommendation of the Family Consultant.[16]
[16] Family Report, page 5 (para j), para 112
The single expert was cross-examined but the Family Consultant was not.[17]
Parenting proceedings
[17] Notation C made on 13 December 2012
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Allegations of family violence
These proceedings were commenced in July 2011 and so the amendments to the Act, and in particular to the provisions concerning the definitions of “family violence” and “abuse” and the considerations relevant to findings about the children’s best interests, wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) do not apply (see Schedule 1, items 44 and 45).
Relevantly, the definition of “family violence” includes actual or threatened conduct that causes a member of the family to reasonably fear for or to be reasonably apprehensive about his or her personal wellbeing or safety (s 4(1)). The new definition of “family violence” does not presently apply (s 4AB).
The mother made grave allegations against the father concerning his commission of family violence over the duration of their relationship.
The mother alleged that from an early stage of their relationship:[18]
[The father] began to push me and punch me whenever we had an argument…I was regularly smacked, kicked, punched in the ribs or slapped hard about the face and told to obey. Following an argument, [the father] would turn as if to walk away, and then swing his arm round and slap me across the face with the back of his hand. At other times he would push me to the ground and kick me to my body.
[18] Mother’s affidavit, para 13
The mother alleged the “verbal and physical abuse” escalated shortly after the birth of the second child in 1999.[19]
[19] Mother’s affidavit, para 20
The mother alleged the family violence “continued daily”, although she was reprieved when the father was away working for a few months and when the family lived with the paternal grandparents for a few months.[20]
[20] Mother’s affidavit, paras 17, 31
Over a period of some two years following the parties’ separation on 27 September 2010, the mother made numerous statements to police containing her grievances about the father. The police statements about which evidence was adduced were made by the mother on:
a)27 September 2010;[21]
b)15 December 2010;[22]
c)14 March 2011;[23]
d)9 April 2011;[24]
e)14 April 2011;[25]
f)28 March 2012;[26]
g)2 August 2012;[27]
[21] Mother’s affidavit, Annexure A
[22] Exhibit F3
[23] Mother’s affidavit, Annexure H (statement 14/4/11, para 14)
[24] Mother’s affidavit, para 84, Annexure H
[25] Mother’s affidavit, para 84, Annexure H
[26] Father’s affidavit, paras 29-30, Annexures B, C; Exhibit F6
[27] Father’s affidavit, para 21
It is likely the mother made other police statements that were not adduced in evidence in these proceedings. That inference arises from the fact that none of the above police statements contain the mother’s allegations about her sexual and physical assaults on 6 April 2011, which led to the father’s prosecution. It is likely such a statement was taken from her by police.
The mother’s allegations against the father and her description of the effects upon her of that conduct became progressively more florid over time.
In her police statement made in September 2010, the mother alleged she was subjected to “verbal, physical and sexual abuse” over the duration of their relationship,[28] but then went on to elaborate only a few specific incidents of physical violence.[29] She alleged the father possessed a handgun, which he used in both threatening and sexualised ways.[30] She generically alleged that the sexual abuse occurred whenever the father wanted.[31] As the police noted at the time, the mother “would not provide specifics of incidences (sic)”.[32]
[28] Mother’s affidavit, Annexure A (para 4)
[29] Mother’s affidavit, Annexure A (paras 4, 14, 15)
[30] Mother’s affidavit, Annexure A (paras 11-13, 17)
[31] Mother’s affidavit, Annexure A (para 6)
[32] Mother’s affidavit, Annexure B
In her police statement made in December 2010, the mother alleged the father sexually assaulted her on 15 November 2010, but she was too upset to provide any details. She also alleged the father persistently contacted her and was thereby repeatedly in breach of the existing apprehended violence order.
The father was charged with contraventions of the apprehended violence order following the mother’s complaints to police in November and December 2010, but all but one of those charges were eventually dismissed.[33] The father said he has lodged an appeal against the solitary charge which was sustained, which related to him making a telephone call to the mother in November 2010.
[33] Father’s affidavit, paras 14-15, 38; Exhibit F13
The police statement made by the mother in March 2011 was not exhibited in evidence so its contents remain unknown.
In her police statement made on 9 April 2011, the mother alleged the father sexually assaulted her on “at least five further occasions” in the period six weeks prior to the sexual assault which allegedly occurred on 6 April 2011.[34]
[34] Mother’s affidavit, Annexure H (statement 9/4/11, para 22)
In her police statement made on 14 April 2011, the mother alleged her former statements contained only a selection of past incidents. She intended to give the police more information about the father but was unable to do so because it “makes [her] too upset to talk about it”.[35]
[35] Mother’s affidavit, Annexure H (statement 14/4/11, para 5)
In her police statement made in March 2012, the mother made another complaint about her sexual assault by the father. She was unspecific about when it had occurred, but by implication it was some time reasonably proximate to the report she made to her domestic violence program co-ordinator only some days before.[36] The mother’s suggestion she was still then only reporting incidents antecedent to the sexual assault on 6 April 2011, nearly a year before, seems quite unlikely.[37]
[36] Father’s affidavit, paras 29-30; Exhibit F6
[37] Single expert report, page 14
The mother met with the Family Consultant in July 2012. The mother reported to her that she was subjected to abuse by the father for the duration of their relationship. The mother described “controlling coercive behaviour as well as verbal and physical abuse (including pushing and punching)”.[38] She said she was fearful the father would “eventually kill her”, which was the catalyst for their final separation in September 2010.[39]
[38] Family Report, para 10
[39] Family Report, para 34
In her police statement made in August 2012, the mother alleged the father sexually assaulted her on 28 March 2011 and on a further four occasions about which she was unable to give any details.[40]
[40] Father’s affidavit, para 21
The mother met with the single expert in February 2013. She refused to elaborate on some aspects of the alleged abuse,[41] but did speak openly about some of her allegations. She alleged the father tried to set fire to the house in 2011 when she and the children were inside and tried to run them off the road a few times.[42] She also alleged the father had held a loaded gun to her head on more than one occasion and “used it in other ways” she did not wish to discuss, implying some form of sexual perversion, just as she earlier did with the police.[43] The mother said she first became aware the father had a gun when they lived in Western Australia,[44] which was in 1997 and 1998,[45] but she told the police and the Court a completely different story of first seeing the gun on the parties’ bed “a few years” before she made her statement in September 2010.[46] She also told the single expert there had only been “about ten” occasions of consensual sexual intercourse throughout the parties’ relationship, implying that all other instances of sexual intercourse over the years of their relationship were without her consent.[47]
[41] Single expert report, page 13
[42] Single expert report, pages 14, 18
[43] Single expert report, page 14; Mother’s affidavit, Annexure A (para 17)
[44] Single expert report, page 17
[45] Mother’s affidavit, para 10
[46] Mother’s affidavit, para 40, Annexure A (para 11)
[47] Single expert report, page 14
The mother consulted Professor L in relation to her medical condition following routine surgery in late 2006. The mother’s psychological condition was then under consideration as a possible explanation for her physical symptoms, about which the mother must have known.[48] When asked by the single expert in February 2013 about why she said nothing to Professor L of the stress she endured as a consequence of the father’s alleged domestic violence over the years, the mother explained she was “scared for [her] life”.[49]
[48] Family Report, paras 19-28
[49] Single expert report, page 18
As would be obvious, the mother’s allegations against the father could scarcely be more serious. On her version of events, she was subjected to repeated physical and sexual violence, degradation and humiliation over a long period, which culminated in her fearing for her life and the lives of the children.
The father refuted all of the allegations made by the mother. He did so to the Family Consultant,[50] to the single expert,[51] in his affidavit,[52] and during his cross-examination.
[50] Family Report, para 10
[51] Single expert report, pages 21, 24
[52] Father’s affidavit, paras 189, 215
Given the irreconcilability of the parties’ evidence on the topic, their respective reliability became an important issue in the proceedings. Careful scrutiny of the evidence showed the evidence of both parties was unreliable. Their evidence proved to be false or incongruous in many respects and their behaviour was Machiavellian.
The mother alleged she felt “like a prisoner in [her] own home” as a consequence of the father’s conduct and was too frightened to leave the home,[53] yet that is exactly what she did muster the courage to do more than once. She separated from the father and left the former matrimonial home on three separate occasions over the years.[54] She was employed and had an independent income, so it was financially feasible for her to remain separated. Her guileless reconciliations and returns to the family home was not the only pragmatic option open to her.[55]
[53] Mother’s affidavit, paras 14, 33
[54] Mother’s affidavit, paras 39, 41-44, 46
[55] Mother’s affidavit, para 45
The mother said in cross-examination that once she finally separated from the father in September 2010 she was so frightened of him she could not bear to be near him or to be in contact with him, and moreover, that her attitude had remained constant ever since. The objective evidence, however, demonstrated a quite different picture.
The mother flatly denied sending any text messages to the father after their separation, however, incontrovertible records proved she sent text messages to the father on literally dozens of occasions, and that was only in a confined period between January 2011 and April 2011.[56] The father said that was the situation from September 2010 onwards.[57] The telephone number to which the mother both sent many text messages and made many telephone calls (…) was the number of a mobile telephone the mother admitted was then being used by the father.[58]
[56] Exhibit F2
[57] Father’s affidavit, para 216
[58] Mother’s affidavit, Annexure H (statement 14/4/11, para 11)
The content of the text messages sent by the mother to the father clearly infer she was willing to instigate contact between them and she was not acting under duress, as the following selection of examples serve to illustrate:[59]
[59] Exhibit F12
12/2/11 Hey there did u get enough sleep what r u up 2
12/2/11 Here parked down side where we were b4
12/2/11 Thanks for 2nite the kids n I enjoyed ourselves talk 2morrow
13/2/11 Hey how ya going. What r u up 2
14/2/11 Happy valentines day
16/2/11 R we still good for fri nite tea…
18/2/11 Are u still wanting 2 do dinner 2nite
18/2/11 Im sorry that once again Ive ruined your nite
7/3/11 Need 2 talk
7/3/11 Meet where we were last nite in 15mins only ring this
6/4/11 K at 7.30 first turn 2 left off highway
The mother’s evidence was therefore deliberately false in two respects. She lied when she denied sending any text messages to the father and she lied when she said any contact with the father only occurred as a consequence of his coercion.
When they were geographically distant from one another the father could not have forced the mother to telephone him, send him text messages, or clandestinely meet him late in the evening at various venues. The mother’s assertion she did so only because of the father’s coercion is both incredible and illogical for a number of reasons: there was then an apprehended violence order in existence for her protection; she had already willingly made complaints to the police about breaches of that order in November and December 2010, which resulted in the father being prosecuted; and she enjoyed the continuing emotional support of domestic violence counsellors.
The mother admitted she began to consensually meet with the father after their separation,[60] but she lied about when those meetings began. She told police she only “started” to see the father on 7 March 2011.[61] In fact, she agreed to meet the father on other occasions much earlier than March 2011. She admitted to doing so as early as 15 November 2010[62] and she admitted to her own therapist she did so at some point prior to their counselling appointment on 24 February 2011.[63] The content of the mother’s texts messages to the father bear out those facts. The mother earlier admitted to police she met with the father on “may (sic) occasions” up until 6 April 2011,[64] which admission the mother conceded in cross-examination was meant to mean “many occasions”. Her denial in cross-examination of frequently meeting with the father was patently false.
[60] Mother’s affidavit, para 81
[61] Mother’s affidavit, Annexure H (statement 9/4/11, paras 17, 19)
[62] Exhibit F3, paras 11-14
[63] Exhibit F1
[64] Mother’s affidavit, Annexure H (statement 9/4/11, para 20)
The evidence indubitably proved that the parties voluntarily contacted and met with one another covertly on many occasions between November 2010 and early April 2011. They did so by use of numerous mobile telephones, at least one of which was procured for and dedicated to telephonic contact between only them, and by meeting secretly at deserted locations late in the evening while the children were at home alone asleep in bed. Such behaviour occurred in flagrant contravention of the apprehended violence order precluding their interaction, of which both parties were well aware.
The father also lied about his contact with the mother in the period between September 2010 and April 2011. He carefully abstained from making any admissions about his contact with her in his affidavit, but the issue could not be avoided. His counsel cross-examined the mother about their contact, no doubt on his instructions, and it was inevitable the matter would arise during his cross-examination. On the first day of his cross-examination the father said he had only ever initiated telephone contact with the mother on one occasion, which was to arrange their lunch together on 24 December 2010, but then on the second day of his cross-examination the father conceded he had initiated telephone contact with the mother an average six times per week in the period between late October 2010 and early April 2011, excluding a period of weeks in January 2011. When his attention was drawn to the stark inconsistency, unsurprisingly, he was unable to satisfactorily reconcile it. He simply disregarded the apprehended violence order.
If the mother’s allegations of her sexual and physical abuse by the father were true, it was completely absurd she would remain in telephonic contact with him and continue her secret liaisons with him, particularly between March 2011 and 6 April 2011, which is the period during which she alleged to police the father continued to sexually assault her.[65] The mother acknowledged the paradox of such a situation. She told the police she had “no idea” why she continued to meet with the father.[66]
[65] Mother’s affidavit, Annexure H (statement 9/4/11, paras 20-22); Exhibit F2
[66] Mother’s affidavit, Annexure H (statement 9/4/11, para 19)
The mother openly admitted to lies in her formal police statements. In the statement she made on 9 April 2011 she admitted telling the police the father had done nothing to her when in fact she alleged he had,[67] and in the statement she made on 14 April 2011 she admitted having lied to them when she denied her contact with the father in the statement she made to them a month before on 14 March 2011.[68] Contrary to her initial denial, on 14 March 2011 the mother actually telephoned the father once and sent two text messages to him.[69] By her own admission then, the mother is prepared to lie when she perceives the need to do so. Moreover, she is prepared to lie to authorities in solemn circumstances where she is aware of the strict requirement for both truth and accuracy.
[67] Mother’s affidavit, Annexure H (statement 9/4/11, para 10)
[68] Mother’s affidavit, Annexure H (statement 14/4/11, para 14)
[69] Exhibits F2, F12
The mother admitted she alleged in evidence during the father’s criminal trial that he sexually assaulted her when he attended the former matrimonial home late on the evening of 10 November 2010. However, in the formal police statement the mother made only a month later on 15 December 2010, while she mentioned the father’s attendance at the home on the evening of 10 November 2010, she said he departed that night without incident.[70] She eschewed that contemporaneous opportunity to allege any sexual assault. Of course, if the father did sexually assault the mother on that occasion it is inconceivable she would not have informed the police when she made the statement a month later, the very purpose of which was to collate her complaints of the father’s recent breaches of the existing apprehended violence order. There could be no other rational explanation, given the mother alleged in that statement another sexual assault by the father on 15 November 2010.[71] The mother must have either deliberately withheld important information from the police or later lied about the sexual assault on 10 November 2010.
[70] Exhibit F3, paras 4-8
[71] Exhibit F3, paras 11-14
The mother said during her cross-examination that all of the parties’ sexual encounters after their separation were without her consent. However, the mother told her counsellor during a counselling session on 24 February 2011 that she consensually engaged the father in sexual intercourse. The counsellor’s notes from that session disclose the mother told her:[72]
Met [the father] – had sex
he gave me cash
feel dirty
[72] Exhibit F1
The mother lied to the single expert about making further reports of her sexual assault by the father after the event on 6 April 2011. She denied making such reports,[73] but she did make such reports to her domestic violence counsellor and police in March 2012.[74] In any event, the mother’s allegations of her sexual abuse by the father in or about March 2012 were most probably false. At that time the father was still on bail in respect of the charges relating to the incident on 6 April 2011, the conditions of which required him to live in Town M, NSW and to report to police in Town M on a daily basis. The driving time between Town M and the locality of the mother’s home is over six hours. It would have been virtually impossible for the father to undertake the return journey to sexually assault the mother between his daily reports to police. The police informed the father they considered the mother’s allegation unsubstantiated.[75]
[73] Single expert report, page 29
[74] Father’s affidavit, paras 29-30; Exhibit F6
[75] Father’s affidavit, paras 31-32
The mother’s evidence about the father’s possession of a gun was patently inconsistent. She told police she first saw the gun only a few years before separation in September 2010,[76] but told the single expert she first saw it when the parties were living in Western Australia in 1997 or 1998.[77] The father denied possession of any gun. Following the mother’s allegations in September 2010 the police applied for and obtained a search warrant,[78] after which they searched the house for a gun and found none.[79]
[76] Mother’s affidavit, para 40, Annexure A (para 11)
[77] Single expert report, pages 17, 29
[78] Mother’s affidavit, Annexure B
[79] Family Report, para 34
The mother also gave false evidence about the gun in another context. She gave evidence in the father’s criminal trial to the effect that the father threatened her with the gun at their evening meeting on 6 April 2011,[80] which was why she unwillingly submitted to his sexual assault. However, during her cross-examination in these proceedings the mother said the exact opposite: the father did not have the gun in his possession on that evening. In her affidavit the mother adopted the truth and accuracy of the police facts about that incident,[81] and there is no mention of the father’s use of any gun in those facts. The mother therefore lied during her evidence before the NSW District Court.
[80] Exhibit F9
[81] Mother’s affidavit, paras 85-87
The mother grossly embellished her evidence about an alleged arson attempt by the father at the former matrimonial home. She told the single expert the father tried to set fire to the house while she and the children were inside and, when police attended, they found petrol splashed around the house and a petrol tin beside the house.[82] There was, however, no reference in the police report to petrol being spilt about the house and no identification of the father as the culprit.[83] The mother and police must not have perceived danger because the mother and children remained in the house. For the whole of that evening the father was at work on nightshift and his alibi was verified by police.[84] Notwithstanding such incontrovertible evidence, the mother unreasonably maintains the father’s guilt.
[82] Single expert report, pages 14, 18
[83] Single expert report, page 29
[84] Father’s affidavit, paras 202-206
The alleged sexual and physical assaults of the mother by the father were not witnessed by any other person, but more importantly, the mother did not make any contemporaneous complaint of such assaults to any person before the marriage began to disintegrate in 2010.
The mother did not complain of any family violence to even her own mother or sister, whose evidence was silent about family violence between the parties. Nor did she mention it to the paternal grandmother, with whom she worked on almost a daily basis for many years.[85] Even the mother’s best friend, Ms J, was ignorant of any such violence until her conversation with the mother in September 2010, at about the time of the parties’ separation. Ms J deposed to telling the mother when informed of her assault by the father:[86]
I can’t believe I’m finding out about this now.
[85] Paternal grandmother’s affidavit, para 27
[86] Affidavit of Ms J, para 17
Ms J said in cross-examination the mother had previously mentioned to her the father had blocked her path during arguments, but significantly, had “gone out of his way to avoid assaulting her”. Another of the mother’s friends, Ms H, said the mother had only mentioned to her being “pushed and shoved” by the father.
Ms J said she noticed slight swelling to the mother’s face during their conversation in September 2010. She described the swelling as “visible but not immediately obvious”. Ms J also deposed to seeing a small cut inside the mother’s mouth.[87] Curiously, the mother did not tell the police of any assault by the father upon her in September 2010 when she made her first statement,[88] but she did subsequently allege such an assault when she made another statement in April 2011.[89] A hostile incident certainly occurred between the parties at the time of their separation because one of the children felt the need to call Ms H for help.[90]
[87] Affidavit of Ms J, para 17
[88] Mother’s affidavit, paras 46-48, Annexure A
[89] Mother’s affidavit, Annexure H (statement 9/4/11, para 11)
[90] Affidavit of Ms H, para 17
The later incident between the parties on 6 April 2011 was a watershed in their relationship. The parties’ clandestine dalliance, which had been continuing for months in contemptuous disregard of the existing apprehended violence order, came to an abrupt end that night.
The police facts relating to the incident, which were adopted as accurate by the mother,[91] alleged the father punched the mother “in the face and cheek area”. There are various sources of evidence about the mother’s sufferance of injury contemporaneously with the parties’ meeting that evening.
[91] Mother’s affidavit, Annexure I
According to the charges proffered against the father, the parties parted company that night at about 9.15 pm,[92] which accords with the father’s evidence in cross-examination. Within the next few hours the mother drove to Centacare at Town N to see her domestic violence support person[93] and then presented at Town N Hospital by 1.06 am on 7 April 2011. At the hospital the mother complained of pain to her cheek, caused by a punch.[94] The mother then met up with Ms H, who took her home. Later that day Ms H returned to collect the mother from home and take her to Hospital O.[95] The hospital notes reveal the mother was then “puffy” around the left cheek and she complained of tenderness to the cheeks and neck, but there was no change to her skin colour.[96] Over the next couple of days, both Ms J and Ms H noticed injury to the mother’s face. Ms J deposed to seeing the injury[97] and described it in cross-examination as gross facial swelling. Ms H described seeing facial swelling and redness under the mother’s eyes. The police facts asserted the injury to the mother’s “face and neck” was photographed. The parties acknowledged those photographs were taken on 9 April 2011.
[92] Mother’s affidavit, Annexure I
[93] Affidavit of Ms J, para 21
[94] Exhibit M3
[95] Affidavit of Ms H, para 18
[96] Exhibit M2
[97] Affidavit of Ms J, para 21
The father conceded the parties met on 6 April 2011 and engaged in sexual intercourse, which he asserted was entirely consensual. He denied there was any oral sex. He asserted their penile/vaginal intercourse was accomplished by the mother facing and straddling him while both of them had their shorts and underwear removed.
Both parties agree they were in the middle of three rows of seats within the mother’s mid size 4WD car. The mother left the driver’s seat to join the father in the middle row behind the driver’s seat. I reject her evidence that she did so under threat of the father, either with a gun, as she told the NSW District Court, or without, as she said in these proceedings.
The father’s version of their tryst, which entailed mutual removal of clothing below the waist and consensual sex in an upright position face-to-face, is more probably correct than the mother’s version. It is difficult to conceive how, in the close confines of the middle row of seats and without her consent, as the mother alleged, she had her clothing forcibly removed, her face forced into the father’s lap, his penis forced into her mouth, her forcible performance of fellatio until his ejaculation, and then her forcible restraint upon her back and penetration of her vagina with his penis.
While I accept the father’s version of the parties’ sexual encounter as more probably correct, I do not accept the father’s evidence in all respects.
The father alleged there was no violence at all during their meeting. He denied he punched or struck the mother at any point. According to his evidence, the mother could not have sustained any injury at all. Indeed, he asserted the mother had no injury at the time they parted company that evening. However, his denials were false. He obfuscated and generally made it inordinately difficult to extract simple responsive answers from him.
The evidence comfortably established the mother sustained facial injury on the evening of 6 April 2011 and that it was caused by the father. There was no other reasonably rational explanation as to how the mother could have sustained that injury. The father’s fatuous suggestion that the mother sustained her injuries during a struggle with Ms J on 8 April 2011, when she was in a dissociated state,[98] was pure conjecture and inconsistent with the abundance of evidence that proves the mother’s facial injury became progressively more noticeable in the hours and days after the evening of 6 April 2011.
[98] Family Report, para 41; Single expert report, page 16
I am satisfied on the balance of probabilities that the father physically assaulted the mother on two occasions. The first occurred at a time proximate to the parties’ separation in September 2010 and the second occurred months later on the evening of 6 April 2011.
The remainder of the mother’s allegations of family violence are not substantiated on the balance of probabilities. I accept the parties’ relationship was fractious, perhaps even volcanic at times, but the evidence does not vindicate the mother’s allegations of a grossly abusive relationship in which she was subjected to endless sexual and physical assaults from which she was unable to escape. The single expert reached much the same conclusion.[99]
[99] Single expert report, page 30
It is unnecessary to speculate why the mother’s version of the parties’ history is so unreliable, but the Family Consultant’s opinion that the mother’s perception of events is tainted and she has a “tendency towards catastrophising and exaggerating events and to generally view the world through a distorted lens”[100] seems plainly correct.
[100] Family Report, para 108
The parties have not associated or communicated with one another since April 2011 and they have each endured the chastening experience of having their behaviour criticised and their parenting performances laid bare over the last two years in both these and the parallel criminal proceedings. The prospect of the father subjecting the mother to further family violence in the future is therefore quite remote (s 60CG), and so the prospect of the children suffering harm as a consequence of their exposure to future family violence is even more remote (s 60CC(2)(b)).
Allegations of child physical abuse
The mother informed the Family Consultant and single expert of, and adduced evidence about, the father’s adverse treatment of the children over many years, which treatment she characterised as abusive. However, once analysed carefully, the evidence was really meaningless.
For reasons already explained, the historical definition rather than the new definition of “abuse” applies in these proceedings. Consequently, some form of assault upon the children must be proven before “abuse” is established (see Slater & Light (2011) 45 Fam LR 41 at [35]-[37]).
The incident of principal concern to the mother was the father’s use of a belt to discipline the eldest child in September 2010, which led to the parties’ temporary separation.[101] The mother pejoratively described how the father “flogged” the eldest child,[102] but it transpired the mother uses the term “flogged” to describe a child receiving “a couple of hits with a belt across the backside”.[103] It was duplicitous for the mother to criticise the father for use of corporal punishment because, significantly, that is precisely how the maternal grandfather disciplined the mother when she was a child. The mother informed the single expert “[the father] did exactly the same to our kids as Dad did to me”.[104] The mother was not, however, critical of the maternal grandfather for treatment of that kind. On the contrary, she spoke of him in loving terms.[105] It would therefore be inconsistent for the mother to believe the children could not similarly think lovingly of the father despite such discipline.
[101] Mother’s affidavit, paras 41-42; Father’s affidavit, paras 144-150
[102] Family Report, para 30; Single expert report, pages 14, 19
[103] Single expert report, page 18
[104] Single expert report, page 19
[105] Single expert report, page 15
In any event, the mother’s allegations against the father were far from convincing. The eldest child gave a version of the disciplinary incident in February 2010 that was much more consistent with the father’s version than the mother’s version.[106] The other allegations against the father, which included hair pulling, smacks with a wooden spoon, regulation of the children’s clothing and telling the children to “shut up”,[107] were puzzling because, even as late as June 2010, within a few months of the parties’ separation, the mother admitted to her counsellor that the children had not been physically abused by the father.[108]
[106] Family Report, para 30; Single expert report, page 7
[107] Mother’s affidavit, paras 37, 90, Annexure H (statement 9/4/11, paras 6-7);
[108] Exhibit F8
Nevertheless, the father’s blanket denials of striking the children were false.[109] He lamely told the single expert such allegations were probably fabricated to hide their abuse by the maternal grandfather, but in fact, the father was compelled to concede in cross-examination he had struck the children with an implement as a method of discipline when they were quite young.
[109] Single expert report, page 21
Undoubtedly the father was more authoritarian than the mother, but that does not mean he was abusive. The single expert described the father as a “concrete thinker”[110] who lacked sensitivity and sophistication as a parent, which seems a particularly apt description. Subtlety is certainly not his strong suit.
[110] Single expert report, page 20
The mother ultimately acknowledged the evidence she adduced against the father did not prove “abuse”, but rather only reflected adversely upon the father’s “parental attitude” and was consequently a consideration pursuant to s 60CC(3) and not s 60CC(2)(b) of the Act.
Children’s best interests – primary considerations (s 60CC(2))
Given the findings already made in respect of the allegations of “family violence” and “abuse”, the only primary consideration presently affecting the children’s best interests is the benefit they will derive from meaningful relationships with the parties.
There is no doubt the children enjoy meaningful relationships with the mother. They will derive benefit from maintenance of their relationships with her.
The nature of the children’s relationships with the father was a matter of some controversy. Although their relationships with him were formerly close and loving, they have deteriorated to some extent, the reasons for which will be discussed under s 60CC(3) of the Act.
Despite the disparity in the parties’ evidence, the proceedings were concluded on the concurrent basis that the children would derive benefit from having meaningful relationships with the father and steps must be taken to ensure restoration and maintenance of those relationships. The residual debate was about how that would best be achieved.
Children’s best interests – additional considerations (ss 60CC(3), (4))
Apart from the children’s meeting with the father in the presence of the single expert in February 2013, the children have not spent any time with him since April 2011.[111] The mother severed the children’s relationships with the father following the incident between the parties on 6 April 2011, which led to the father being charged with criminal offences several days later. The prosecution was finalised in December 2012,[112] but the children’s relationships with the father were not revived following his acquittal.
[111] Father’s affidavit, para 265
[112] Father’s affidavit, para 36
Despite the children not spending time with the father after April 2011, their positive relationships with him remained intact for months afterwards.
When the children conferred with the Family Consultant in September 2011 they all informed her they were not fearful of the father and would like to continue their relationships with him.[113]
[113] Family Report, paras 47-48
When the eldest child spoke with his counsellor in October 2011 he was noted to say he would “love to see [the father]”.[114]
[114] Father’s affidavit, para 240
By the time the children spoke with the Family Consultant on the second occasion in July 2012 their attitudes towards the father had begun to wane. The children still liked to receive correspondence from the father,[115] but they were equivocal about personal interaction with him. The eldest child could still envisage having a good relationship with the father in the future, implying their relationship was not particularly good at that point in time,[116] the second child suspected the father of an unprovoked physical attack upon the mother,[117] and the third child was angry with the father and paternal grandparents.[118]
[115] Family Report, para 53
[116] Family Report, para 77
[117] Family Report, para 68
[118] Family Report, paras 62, 65
By the time the children conferred with the single expert in February 2013, although the eldest child was more equivocal, the attitudes of the three youngest children towards the father were uniformly negative. They were reluctant to meet with him, reserved in their interactions with him, and later spoke critically of him.[119]
[119] Single expert report, pages 3-12, 27
It is important to appreciate that the deterioration in the children’s relationships with the father, which started from late 2011 or early 2012, occurred at a time when they were neither spending time nor communicating with him. Consequently, the deterioration in their relationships with the father could not have been caused by their own experiences with him. It must have been caused by the mother either deliberately or inadvertently inculcating the children with her perceptions, which aligned them with her against the father. It is easy to see how the children’s attitudes were influenced by chronological events.
In November 2010 the mother made an emergency call to police about her suspicion the father tried to burn down the family home whilst she and the children were inside. The police attended, but once they departed the scene the mother and children “slept huddled together” for the rest of the night[120]. It is likely the children felt they were under siege and it is probable they knew or suspected the mother attributed the danger to the father.
[120] Single expert report, pages 18, 29
When the father was granted bail in July 2011 in relation to the criminal charges proffered against him in April 2011, the mother withdrew the children from their schools and left the area with them for several months.[121] The mother said she took those steps on advice from a police officer. Even if that is so, the children were still informed their flight was due to them being “under police protection”,[122] which they must surely have inferred was necessary to protect them and the mother from the father.
[121] Father’s affidavit, paras 220-222
[122] Family Report, para 44; Exhibit F10
It was impossible for the mother to inure the children against her criticism of the father. The Family Consultant saw evidence of it at the interviews in July 2012, when the children were aware of the mother’s distress at even the prospect of them seeing the father in her presence within the Court building.[123]
[123] Family Report, page 4 (para b)
The mother’s criticism of the father was trenchant and consistent. She told the single expert, in the presence of the children, they had “been though hell [with the father]”.[124] She informed the single expert she and the children were “terroris[ed]” by the father’s family violence.[125] She told the single expert she remained so frightened of the father that even the sight of him caused her to shake and her heart to race. The mere discussion of it caused the mother to rush to the toilet to vomit.[126] She informed the single expert the making of parenting orders that re-introduced the children to the father would “destroy [them] all”.[127] The mother took the children out of school to accompany her to her second interview with the single expert in Sydney because they were “scared of being left” in Newcastle without her.[128]
[124] Single expert report, page 3
[125] Single expert report, page 14
[126] Single expert report, page 17
[127] Single expert report, page 19
[128] Single expert report, pages 4, 16
Interim orders were made in October 2012 for the children to spend a short amount of time each week with the father under supervised conditions at a contact centre, but that did not occur.[129] The children have not even seen the father once in accordance with those orders. In cross-examination the mother protested she had done all she could to ensure the children complied with those orders, but I do not accept her evidence. She inexplicably delayed her registration at the contact centre and she knew the children were expressing wishes not to see the father at the contact centre and to return home early from visits to the paternal grandparents’ home. That suited the mother perfectly, since she assumed the Court would accept the orders were frustrated by the children’s choice. She failed to realise that a competent parent would have ensured the children complied with the orders.
[129] Father’s affidavit, paras 257-263
It is complete nonsense that the paternal grandparents “walked away” from the children, as the mother alleged to the single expert.[130] The mother curtailed the children’s interaction with the paternal family after the father was charged in April 2011, which interaction was not revived until interim orders were made in September 2011.[131] Since then the paternal grandparents have capitulated to the children’s express wishes to return home early to the mother so as not to exert additional pressure upon them.[132]
[130] Single expert report, page 13
[131] Paternal grandmother’s affidavit, paras 24-25, 33
[132] Single expert report, page 26; Family Report, para 93;
The children appear to have become enmeshed with the mother. Albeit perhaps to varying degrees, they worry about her and express a desire to take care of her.[133] It is truly concerning that children feel responsible for ensuring the happiness of a parent and speak openly about the need to emotionally support that parent. It is redolent of a reversal of the parenting dynamic. As the Family Consultant explained, the “long term negative effects” of such a situation are well researched and documented.[134] Unfortunately, the maternal grandparents do not afford the children any respite from the pressure because they concur with the mother’s views that the children’s relationships with the father should be obliterated.[135]
[133] Family Report, paras 70; Single expert report, pages 10, 12
[134] Family Report, para 81
[135] Family Report, para 84
The mother’s influence of the children was probably deliberate rather than merely inadvertent. The mother was unapologetic about influencing the children’s views. She told the Family Consultant she believes the father “gave up his right to be a father” and the children “have a right to be informed of the truth”,[136] or at least her version of it.
[136] Family Report, para 95
The Family Consultant formed the view the mother’s alignment of the children against the father was deliberate.[137] The opinions of the Family Consultant can safely be accepted as correct since she was not required for cross-examination by either party or the Independent Children’s Lawyer.
[137] Family Report, para 110
The single expert described the “aetiology” of the children’s behaviour as “multifactorial”, but she considered the mother and those supportive of her undoubtedly influenced the children by repeatedly reinforcing in them the belief the father was dangerous and threatening.[138] Upon the assumption the children’s expressed fear of the father is unwarranted, as is found, the single expert opined the children’s responses were “pathological” and a “process of alienation” was occurring.[139]
[138] Single expert report, page 27
[139] Single expert report, page 28
The mother surprisingly said in cross-examination she was concerned the children were not seeing the father and she would like the children to have relationships with him, provided they are safe. She also said she had done her very best to ensure the children did spend time with the father and the paternal grandparents. It is difficult to accept that evidence as truthful, particularly when she deposed to her doubts about whether the father actually possesses and demonstrates “real affection” for the children.[140] Alternatively, if that aspect of her evidence was truthful, one can only wonder how she could possibly do any more to encourage the children’s relationships with the father in the future.
[140] Mother’s affidavit, para 26
The Family Consultant and single expert both concluded the mother was oppositional to the children’s relationships with the father. The Family Consultant considered the mother’s beliefs were “fixed”,[141] which may well be correct in light of her refusal to allow the children to even briefly see the father in the presence of the Family Consultant.[142] The mother and her supporters who attended the Family Consultant’s appointments created a hostile and tense environment in which the children were quite anxious.[143] The single expert said during cross-examination that the prospect of the mother being able to adopt even merely a neutral attitude about the father in the “near future” was “small”.
[141] Family Report, page 3 (para a), para 72
[142] Family Report, page 4 (para b)
[143] Family Report, page 4 (para c), paras 57-58, 60
The orders will therefore test the veracity of the mother. If she fails to ensure the promotion of the children’s relationships with the father then, without the need for further litigation, the orders will operate to reverse the children’s residence consistently with recognised principles (see Re David (1997) 22 Fam LR 489 at 506-507).
However, the mother’s antipathy towards the father is not the only impediment to restoration of workable family relationships. The father’s pre-occupation with criticism of the mother similarly diverted his attention from the best interests of the children. He was unable to tell the single expert of any parenting strengths possessed by the mother,[144] notwithstanding the children have been clothed, housed, fed and educated satisfactorily by her without his physical assistance over the last two years. What possessed the father to instruct his solicitor to send letters to the children’s schools openly questioning the mother’s mental health and implicitly criticising her remains a complete mystery. It was inflammatory and entirely unnecessary.[145]
[144] Single expert report, page 23
[145] Exhibit M1
The orders are carefully crafted to avoid the chance of overt hostility between the parties in the future because there is a final apprehended violence order in force for the protection of the mother against the father. Since the children live with the mother, they are also protected by the order (see ss 5, 16, 36, 38, and 42 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)).
The apprehended violence order was made final on 6 May 2013 for a period of two years.[146] The terms of that order are consistent with the parenting orders, since the order permits the father to interact with the children and the mother pursuant to this Court’s orders, provided his behaviour is unexceptional and he does not approach the mother’s residence or any place of her employment.
[146] Copy order filed on 6 May 2013 as per Act (s 60CF) and Family Law Rules (r 2.05)
Parenting orders
The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father perpetrated family violence upon the mother in September 2010 and April 2011 (s 61DA(2)(b)).
It is still possible to allocate equal shared parental responsibility for the children to the parties, albeit not presumptively, but such an order would abide decisions about the children’s best interests. However, it is certainly not in the children’s best interests to allocate equal shared parental responsibility to the parties.
For the duration of the hearing, which was conducted over five days, the parties could not even bear to look at one another. Their disaffection with one another is deeply ingrained. Other than through solicitors, they have not spoken or even corresponded since the incident on 6 April 2011. The chances of them now being able to communicate, even in writing, to civilly discuss and negotiate issues of long-term importance to the children are virtually non-existent. Forcing them to do so would be foolish. They each realise as much, since they both proposed that they have sole parental responsibility for the children.
The only feasible outcome is for one of them to have sole parental responsibility, and for that to be the party with whom the children live.
The residential alternatives are, firstly, for the children to remain living with the mother, or secondly, for them to move and live with the father, perhaps temporarily in the paternal grandparents’ home. Both options have disadvantages.
Continued residence with the mother will risk the continuing exclusion of the father from the children’s lives or, at the very least, his marginalisation in their lives. While the children will cope with that paradigm in the short to mid term, it will have deleterious consequences for them in the long term. As the single expert pointed out, without contradiction:[147]
…[the mother] continuing to parent the children without them spending significant time with their father would be extremely detrimental in all domains of their development.
They need exposure to him to disabuse their current perception he is an abusive parent, to ensure they are able to internalise a sense of a father with positive attributes and to have a parent and extended family members who can help them develop a more normal perception of reality.
[147] Single expert report, pages 32, 33
The alternative reversal of the children’s residence, by forcing them to live with the father, would undoubtedly cause marked emotional upheaval in the short to mid term. The single expert said an immediate reversal of residence would be the most traumatic option for the children. The two oldest children are at or approaching ages where they will be inclined to act on their own whim and could easily rebel by running away. The father admitted to the single expert his fear the second child would refuse compliance with any orders requiring her to live at the paternal grandparents’ home and that the third child may follow her lead. The single expert described that eventuality as “highly likely”.[148] The father was aware of the need for the children to be re-introduced to him gently and so he proposed the process start by supervised visits.[149]
[148] Single expert report, pages 21, 33
[149] Father’s affidavit, para 272
The single expert expressed a preference in her report, assuming the father was “not an abusive father and husband”, for the children to live with the father in the paternal grandparents’ home, even if only temporarily.[150] Although she did not dispense with her preliminary view that the children should live with the father, assuming the Court did not find he was unfit to be part of their lives, during cross-examination the single expert openly discussed another alternative, which ultimately proved more attractive.
[150] Single expert report, pages 32, 33
The single expert mooted the prospect of the children continuing to live with the mother, but only upon condition that she ensures their re-introduction to the father and the maintenance of their relationships with him through orthodox unsupervised visits. If the mother was unable to ensure the children’s compliance with such a regime then the repercussion would be reversal of the children’s residence and a temporary moratorium upon their interaction with the mother to help them stabilise in the father’s care.
The single expert agreed such a conditional and self-executing parenting model had a higher probability of success. She said the children need to realise that adults had considered their predicament and determined the parenting regime that reflected their best interests, with which they should comply. The single expert considered the children would likely comply with orders if they knew there would be consequences in the event of their non-compliance.
I agree with the single expert’s assessment. The children will probably have a sense of relief their residence with the mother need not be disturbed and they are not only free, but obliged, to ensure their relationships with the father are recovered. In cross-examination the single expert said the children are “confused” and “torn” about their estrangement from the father, which opinion I accept as correct.
The children despair at the responsibility which has been foisted upon them in the past to make decisions about what happens in their lives. They know or suspect the mother opposes their involvement with the father and paternal family. They compromise the conflict by visiting the paternal grandparents’ home in accordance with the interim orders made in September 2011 on most, but not all occasions, and by returning home to the mother after only a few hours rather than after the whole weekend,[151] and by refusing to see the father at all pursuant to the interim orders made in October 2012.
[151] Single expert report, page 4
But the pressure upon them to manage the adults’ conflict is now too burdensome. The eldest child asked the single expert to convey his message to the Court to “just fix it”.[152] The second child really does want to retain her link with the father, but is “sick of talking” about it.[153] The third child only really wants re-assurance the father will not abduct them.[154] The youngest child wished for a “good family [with] no fighting”.[155] The children clearly want relief from the burden of conflicting expectations exerted upon them by the maternal and paternal families.
[152] Single expert report, page 7
[153] Single expert report, page 8
[154] Single expert report, page 10
[155] Single expert report, page 11
I accept as correct the single expert’s opinion that:[156]
[The children] are protective of [the mother] but want an end to the legal action for their own sakes as well as hers.
They want a decision made and, while I doubt they will follow orders completely (particularly those their mother objects to), they are likely to be relieved there is a structure in place and the paternal conflict in the legal domain has ended. The legal process has reinforced a sense they have to take sides and choose between maternal and paternal families.
[156] Single expert report, page 27
Conditional retention of the children’s residence with the mother is a more attractive option than the immediate reversal of their residence. The father presently lives in a caravan a long distance from the mother and children. Any order providing for the children to live with the father was only recommended by the single expert, and then agitated as an idea between the parties and Independent Children’s Lawyer, on the assumption the father and children would then live with the paternal grandparents in their home for a period of months.
Such conditions would not be conducive to the children’s recovery of their relationships with the father, as they would be thrust against their will into a household shared with the paternal grandparents, the father, and potentially his new partner, whom the children have not even yet met. The father correctly acknowledged such circumstances would entail a “very big change” for the children. If the chances of the children’s adherence to changed circumstances are to be maximised then the extent of the changes should be minimised. The single expert was correct to be concerned about the father’s lack of subtlety depriving him of the ability to woo the children’s affections, particularly in challenging residential circumstances.
I am satisfied the outcome that best suits the children’s interests is the conditional model discussed by the single expert during her cross-examination. Significantly, while each party still pressed their individual proposals, neither spoke against that model in final submissions. In fact, they each adopted it as a fall-back position should their own proposals be rejected. The Independent Children’s Lawyer also proposed orders which were a variation on the single expert’s idea.
The orders therefore implement arrangements under which the children continue to live with the mother and are re-introduced to the father incrementally, but relatively swiftly. Initially the children’s visits with the father must be supervised by at least one of the paternal grandparents. That is to alleviate any anxiety of the children, not to supplement any shortcoming of the father. Supervision at a contact centre is unnecessary, firstly because the children are comfortable with the paternal grandparents, and secondly because of the usual delays encountered with use of contact centres. The model culminates with the children spending alternate weekends and parts of school holidays with the father.
Of course, it remains possible the children will refuse compliance with the orders and the mother is unwilling or unable to cajole their compliance. If that occurs, the family relationships will have completely broken down. In an effort to salvage the situation, the orders then provide for reversal of the children’s residence and restraint of the mother from causing or allowing the children to interact with her for a period of three months, as recommended by the single expert.[157] Even that may not work to rectify the family problems, but the children cannot be allowed to petulantly usurp the Court’s power or the parties’ control. Investiture of the children with such power, principally by the mother, is part of the reason for the current imbroglio.
[157] Single expert report, page 33
However, the conditional reversal of the children’s residence will only apply for a period of 12 months. If the orders have not achieved restoration of the children’s relationships with the father within that period then the opportunity will have been lost.
If it becomes necessary for the children to live with the father within the next 12 months, the paternal grandparents’ home is large enough to accommodate the children and the father on a short term basis and it has the additional advantage of being proximate to the children’s schools.[158]
[158] Paternal grandmother’s affidavit, para 3
The orders provide for the children to be exchanged between the parties, or their nominees, at a public venue which is situated in reasonably close proximity to the homes of the mother and paternal grandparents. The public nature of the venue should adequately address the mother’s apprehension about her interaction with the father.
The orders make provision for the children to communicate with the parties by telephone. That will facilitate the children’s recovery of their relationships with the father and to maintain contact with the mother when they are with the father. For consistency, the children will not communicate with the mother for the period of three months immediately following any necessary transition of their residence to the father.
The remaining orders could not be the subject of reasonable opposition.
The father sought an order permitting him to provide copies of the orders, the reasons for the orders, and the single expert report to any current or future medical provider the mother sees fit to retain, the police, and the principals of the children’s schools.[159] The need for such an order was not explained. I decline to make the order, which manifests the father’s desire to exert control over the mother and influence the opinions of others against her, much like his solicitor’s imprudent letters to the children’s schools.[160]
[159] Exhibit F11, Order 18
[160] Exhibit M1
The father proposed an order restraining the parties from changing the children’s school enrolments.[161] I decline to make such an order, which was not the subject of any cross-examination or submission. Such decisions will be made by the party with sole parental responsibility for the children.
[161] Exhibit F11, Order 12
The father sought family violence orders against the mother.[162] I decline to make such orders. In reality, the father has no fear of the mother apart from her propensity to make false allegations against him. The terms of the orders proposed by the father would not preclude that eventuality.
[162] Exhibit F11, Orders 21-22
The single expert acknowledged during cross-examination she would be content to explain the orders to the children. It is appropriate that she do so, since the situation is vexed, she is well qualified and experienced, she will probably command the children’s respect, and the parenting orders are modelled on her idea.
Property settlement proceedings
Pool of property
During the trial the parties tendered a joint balance sheet.[163] Using that exhibit as a template, I find the matrimonial pool of property and resources to comprise the following:
[163] Exhibit M4
No
Assets
Party
Value
Total
1
Sale proceeds from family home
Joint
124,173
2
Cash at bank
W
300
3
Cash at bank
H
200
4a
Toyota motor vehicle
W
35,000
4b
Holden motor vehicle
H
2,000
5
Furniture and contents
W
5,000
6
Surf skis and personalty
H
1,000
Sub-total
167,673
167,673
Add-backs
7a
Partial property distribution
H
40,000
7b
Partial property distribution
H
nil
8
Partial property distribution
W
40,000
Sub-total
80,000
247,673
Liabilities
9
Personal debt to parents
H
10,000
10
Citibank Visa
H
15,000
11
ICL costs
Joint
nil
12
(intentionally omitted)
Net assets
25,000
222,673
Superannuation
13a
Super Fund W # …65
H
6,507
13b
Super Fund W # …95
H
50,069
13c
Super Fund P
H
21,834
14a
Super Fund Q
H
6,932
14b
Super Fund R
H
6,063
15
Super Fund S
H
1,063
16
Super Fund T
W
35,933
17a
Super Fund U
W
10,687
17b
Super Fund V
W
10,909
Sub-total
149,997
372,670
Total net assets/resources
372,670
There were some points of difference between the parties that require explanation.
The parties disagreed about the value of the Toyota motor vehicle (item 4a). There was no expert evidence of its value. The car is in the possession of the mother. The best evidence is the mother’s admission of its value at $35,000.[164]
[164] Mother’s affidavit, para 119(a)
The parties failed to agree upon the value of the Holden motor vehicle (item 4b). There was no expert evidence of its value. The car is in the possession of the father. The best evidence is the father’s admission of its value at $2,000.[165]
[165] Exhibit M4, item 4
The parties disagreed over an add-back of $14,000 attributable to the father’s expenditure (item 7b). The father deposed that money was used to repay his brother, who had paid credit card debts on his behalf.[166] The mother admitted if that was true then there should be no add-back. However, the mother alleged the father’s evidence should be rejected and, inferentially, the Court should find the expenditure of that money was reckless or unwarranted (see Omacini & Omacini (2005) FLC 93-218 at [30]-[39]). There was no basis to reject the father’s evidence on the issue, as the mother seemed to finally concede. There is consequently no add-back.
[166] Father’s affidavit, para 280(a)
Although the mother did not concede the quantum of the liabilities in the joint balance sheet, in final submissions she confirmed her concession of the liabilities for the stated values (items 9-11).
The parties agreed the debt due by them in respect of the Independent Children’s Lawyer’s costs would approximate $16,500 (item 11). However, neither of them may owe any costs to the Independent Children’s Lawyer. Even if the Independent Children’s Lawyer makes an application for costs against each of them at the conclusion of these proceedings, there is no guarantee such costs will be awarded. Even if costs are awarded, the order may not be made against both of them or in equivalent shares. Those decisions will be made pursuant to the relevant provisions of the Act on the evidence adduced and the submissions then made. Accordingly, any prospective liability of the parties to the Independent Children’s Lawyer for costs is ignored.
The Court is generally exhorted to assess the parties’ contributions to superannuation entitlements separately, but that is not obligatory (see Marriage of Coghlan (2005) 33 Fam LR 414 at 428-429). The parties disagreed over whether their superannuation entitlements should be treated differently from their other assets, but neither proffered any argument about why their position was preferable. It is appropriate to treat the parties’ various superannuation interests separately from their other assets. That is because the father already had accrued superannuation entitlements of approximately $30,000 at the commencement of the parties’ cohabitation,[167] the mother then had none or minimal superannuation entitlements,[168] and the differential in their combined superannuation entitlements is still now only about $35,000. The father’s present superannuation interests are collectively worth $92,468, while the mother’s are collectively worth $57,529.
[167] Father’s affidavit, paras 6(c), 274(c)
[168] Father’s affidavit, paras 5, 273(c)
It is impossible to make any superannuation splitting orders, even if the mother’s application for such an order in her Amended Application had not been abandoned, because she failed to comply with the Act (s 90MZD) and Family Law Rules 2004 (Cth) (r 14.06).
Contribution based entitlements
The parties agreed their contributions assessed under ss 79(4)(a)-(c) of the Act were equal. There is consequently no need to intricately trawl through the evidence to vindicate their agreement, which seems a fair assessment.
Adjustment of entitlements
The parties agreed the party with whom the children are to live should, on account of the fact of that party’s continuing residential responsibilities, receive an adjustment of 11 per cent. No additional or countervailing adjustment on any other grounds under ss 79(4)(d), (e), (f) and (g), and s 75(2) of the Act was contemplated by the parties.
Since the children will initially live with the mother and likely remain with her, she will have an adjustment of 11 per cent in accordance with that agreement.
Consequently, the mother’s share of the non-superannuation pool is 61 per cent ($135,831) and the father’s share is 39 per cent ($86,842).
Property settlement orders
The mother already has in her possession assets (items 2, 4a, 5) and add-backs (item 8), the net value of which is $80,300. The mother therefore needs to receive an extra $55,531 (= 135,831 – 80,300) to fulfil her entitlement.
The father’s retention of assets (items 1, 3, 4b, 6), add-backs (item 7a), and liabilities (items 9, 10) will mean he receives assets with a net value of $142,373. If he is compelled to pay to the wife the sum of $55,531 from the net proceeds of sale of the former matrimonial home (item 1), he will be left with his proper entitlement of assets worth $86,842 (= 142,373 – 55,531).
The parties will retain their own superannuation interests.
Such orders are just and equitable.
I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 6 June 2013.
Associate:
Date: 6 June 2013
Single expert report, page 14; Family Report, para 37
Family Report, para 40
Maternal grandmother’s affidavit, paras 8-13; Paternal aunt’s affidavit, paras 6, 8, 9;
Single expert report, page 19
Paternal grandmother’s affidavit, paras 38-110
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