GALEA & EMERSON

[2009] FamCA 1113

FAMILY COURT OF AUSTRALIA

GALEA & EMERSON [2009] FamCA 1113

FAMILY LAW - CHILDREN - With whom a child lives
FAMILY LAW - CHILDREN - With whom a child spends time
FAMILY LAW - CHILDREN - Best interests
FAMILY LAW - CHILD ABUSE - Allegation
FAMILY LAW - PROPERTY

APPLICANT: Mr Galea

RESPONDENT: Ms Emerson

INDEPENDENT CHILDREN’S LAWYER:	T J Mulvany & Co
FILE NUMBER:	MLC	7910	of		2007

DATE DELIVERED: 13 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 13 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Hutchings

SOLICITOR FOR THE RESPONDENT:	Womens Legal Service
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr Mulvany

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER T J Mulvany & Co

IT IS ORDERED THAT

1. The wife have the sole parental responsibility for making all decisions with respect to the care, welfare and development of the children of the marriage S born … January 2004 and T born … January 2006.

2. The children live with the wife.

3. All questions of the husband spending time and or communicating with the children be and are hereby reserved.

4. The wife be and is hereby authorised to provide a sealed copy of this order, a certified copy of the reasons for judgment delivered this day and the report of the Family Consultant in these proceedings dated 24 July 2009 to:

   (a)any education professional assisting either or both of the children;

   (b)any medical professional and/or allied health professional assisting either or both of the children;

   (c)any Officer of the Department of Human Services of the State of Victoria; and

   (d)any medical professional and/or allied health professional assisting the wife.

5. All applications pursuant to Part VII of the Family Law Act 1975 as between the wife and the husband be and are hereby dismissed.

6. Paragraph 2 of the order made on 9 October 2009 be varied to provide that the applications between the paternal grandfather Mr Galea Snr and the wife be listed before Justice Mushin at 10:00am on 15 January 2010 for the making of such orders and directions as may be necessary for the future conduct thereof.

7. The wife indemnify the husband and keep him indemnified against all liability past, present and future in respect of the following:

   (a)any mortgage registered on the title to the wife’s property known as and situated at R in the State of Victoria and being more particularly described by Certificate of Title Volume … Folio …, together with all outgoings including all rates and taxes thereon; and

   (b)any debt of the husband and wife or either of them to the wife’s parents or either of them.

8. Save as provided by these orders property in all items of personal property forthwith vest in the party presently having possession thereof.

9. All applications pursuant to Part VIII of the said Act be otherwise dismissed.

10.The hearing date of 27 November 2009 before Justice Brown be vacated.

11.The wife cause a sealed copy of this order to be served on the husband as soon as practicable as follows:

(a)by posting to him by pre-paid registered mail to his last known address for service being K in the State of Victoria; and

(b)by delivery to the husband’s father Mr Galea Snr care of his solicitors … together with a letter requesting him to use his best endeavours to bring the orders to the attention of the husband.

12.Pursuant to the provisions of s.117 of the Act the husband pay the wife’s costs of and incidental to these proceedings fixed in the sum of $2500.

13.General liberty be reserved to both parties to apply.

IT IS CERTIFIED

14.Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Galea & Emerson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7910 of 2007

Mr Galea

Applicant

And

Ms Emerson

Respondent

REASONS FOR JUDGMENT

1. These proceedings, which are in the Magellan List, concern the children of the parties’ marriage, S, born in January 2004 aged nearly six, and T, born in January 2006, aged nearly four.  In addition, there are proceedings before the Court seeking an alteration of property interests pursuant to section 79 of the Act.

2. Before proceeding to the substance of these applications, it is appropriate that I note that I have given leave to the wife and the independent children’s lawyer to proceed on an undefended basis.  These proceedings have been before the Court for over two years and concern serious and worrying allegations with regard to the interests of the children.  The husband has had no contact whatsoever with the children for approximately 12 months and prior to that has only had little contact.  He declined to attend interviews for preparation of the family report to which I will refer in due course.  He also knows about this hearing today, having been advised of it by the Court by two letters, the first of which referred to it being listed in a three week rolling list period, and the second two days ago advising of today’s date for hearing before me. 

3. I am advised by counsel for the wife, and accept, that he telephoned the wife’s solicitor this morning asking if the proceedings could be adjourned because of work commitments.  He obviously, therefore, knows about today’s hearing, has declined to attend or be represented, and given his past history of non‑involvement in the proceedings and particularly the best interests of the children, I am persuaded that I should continue on an undefended basis.  I am reinforced in that view by my preparedness to afford natural justice to him by having a sealed copy of the orders served on him and giving him leave to apply to vary or to set them aside.  I will provide appropriate stays in the orders to that extent. 

4. The husband has filed no application or financial statement in support of his case.  He previously had solicitors acting for him who withdrew some weeks ago.  Accordingly, I only have material from the wife.  I have read it in detail and have found it to be credible and consistent.  I accept that material in its entirety and find as follows. 

5. The wife was born in 1975 and is presently aged 34 years.  The husband was born in 1971 and is presently aged 38 years. 

6. The parties commenced cohabitation upon their marriage in February 2003 and separated in August 2005.  Their marriage was dissolved by decree on 6 September 2007.  They had commenced their relationship in approximately 1996. 

7. Since the breakdown of the relationship the wife has lived in the former matrimonial home at R.  That property is the main asset in the proceedings for alteration of property interests.  To the best of the wife’s knowledge, the husband lives in a rental property in K. 

8. In considering proceedings pursuant to Part VII of the Family Law Act 1975, the best interests of those children is the paramount consideration. “Paramount” does not mean sole, it means most important.

9. Section 60B of the Act contains the object and principles underlying that object which particularly emphasise the rights of children to know, be cared for and be brought up by both their parents subject to it not being contrary to the children’s best interests. 

10. I must then consider the presumption of shared parental responsibility of the children.  As I will relate, there are significant issues with regard to the husband’s conduct towards the children and particularly questions of their safety were they to be in his care.  Given that the husband has made no responding application and the facts which I will relate during these reasons for judgment, I find that that presumption has been rebutted in accordance with the requirements of the legislation. 

11. I turn to the various considerations with regard to the children’s best interests, and in doing so I refer to the family report of the family consultant, Ms B, which I have read and accept in its entirety.  It is not challenged.  

12. The wife has been the primary carer of and for the children throughout their lives and virtually exclusively so since the parties’ separation.  She has a  meaningful, close and loving relationship with both the children. 

13. Conversely, by virtue of his non‑involvement with the children, the husband does not have such a relationship.  He was often absent from the parties’ home, informing the wife that he had to work long hours of overtime, and was often away from 4 am until midnight.  The wife and children were usually in bed when he left for work and when he arrived home at night.  During his long absences the wife regularly stayed at her parents’ home and they supported and assisted her, particularly with S’s care. 

14. The younger child T was born during a period of attempted reconciliation of the parties and the husband has had little to do with him.  I accept the wife’s evidence as to times that the husband has spent with the children as recorded in her affidavit of evidence‑in‑chief which demonstrates a very low level of involvement. 

15. I am required by the legislation to consider questions of family violence and risks to the children of psychological harm and abuse.  There is significant evidence from the wife corroborated by the family consultant that the husband sexually abused S in 2005.  In August of that year the wife witnessed the husband masturbating in the shower in S’s presence and several months later she disclosed to the wife that she had been sexually abused by the husband. 

16. During a visit by S and the wife to the husband in August 2005, the wife went into the bathroom while the husband was taking a shower and observed S in the bathroom staring at the husband while:

    [h]e stood in the shower masturbating and staring back at [S].  I immediately picked [S] up and took her into the kitchen.

17. Upon finishing his shower the wife confronted the husband about the facts which she witnessed and he:

    [d]id not answer me.  He went into the bedroom and commenced packing his bags.  I stopped the husband from packing his bags because he refused to answer my questions.  The husband became very irate and kicked a hole in the wardrobe door.

18. S became very upset and began to scream, as a result of which the wife had a panic attack and fainted.  She was taken to hospital in an ambulance and her sister cared for S. 

19. In approximately November 2005 the wife was changing S’s nappy.  S said to her:

    Pappa poked me in the bum bum, gave me booa.

20. She asked S how her father had poked her and S:

    [b]egan vigorously poking her vagina with her finger.

21. The wife took S to the family doctor who advised that S should go directly to the Royal Children’s Hospital. 

22. S repeated her disclosure on a few occasions but sometime thereafter ceased talking about the incident, something which, in my view, is entirely understandable. 

23. There are other disclosures which were made which are unnecessary to detail here.  Sensibly, having contacted the Victoria Police, the wife also contacted, presumably on referral, the Gatehouse Centre at the Royal Children’s Hospital, which in my view is an outstanding organisation for issues relating to the sexual abuse of children.  S commenced counselling at the Gatehouse Centre at about that time. 

24. In March 2007 the husband was telephoned by the wife, who informed him of S’s disclosures.  He asked her whether she believed her and said:

    Somebody put it in her head.

    The wife:

    [i]nformed the husband that I was not comfortable with him seeing the children whilst [S] was undergoing counselling.

    In my view, that was an entirely reasonable position for the wife to take. 

25. In November 2008, the children spent some time with the husband in accordance with orders made by the Court on 18 April 2008.  The wife has deposed:

    Following the visit, both children were unusually clingy, quiet and withdrawn.  I observed that [S] had urinated in her clothing and that her genital area was red and sore.

26. The wife bathed S that evening and:

    [s]he began screaming and she informed me that it was hurting her.  [S] informed me that during the visit with their father the children had visited a family friend’s farm.  She told me that the husband had gone to a party and left the children, including the friend’s child [C], in the care of the paternal grandfather.

27. The wife then proceeds to repeat disclosures allegedly made by S against the paternal grandfather.  In this regard I note that the grandfather has made his own application for contact with the children and that application has been listed for hearing in January 2010.  In light of that listing, it is not appropriate that I make any finding with regard to the paternal grandfather without his having the opportunity to be heard. 

28. The report of the family consultant notes the father as having not attended the initial interview session and notes the consultant having formed the view that:

    [i]t became apparent that Mr [Galea] was not going to participate in the family report interviews.

29. The family consultant reported having observed the children to be engaged with their mother and maternal grandmother:

    [i]n many games in the playroom and they were comfortable and happy in their presence.  The children played well together and they appeared to have a close relationship with each other.

30. There is some suggestion of a possibility of the mother having somehow or other coached the children with regard to their disclosures, particularly S’s disclosure.  However, as noted by the consultant, this could also be consistent with the history of this matter and the evidence does not go as far as making out, in my view, a prima facie case in that regard against the mother.  That is particularly so given that there is no evidence by or on behalf of the father and the mother’s position in all respects is supported by the independent children’s lawyer, who has appeared in these proceedings today. 

31. In my view, the history of this matter, the fact that the wife has been the virtually exclusive homemaker and parent for the children throughout their lives, and the husband’s non‑involvement and concerns with regard to his treatment, particularly of S, leads to the clear finding that it is in the best interests of the children that the wife have the sole parental responsibility for all matters concerning their care, welfare and development.  The children will live with her and all questions of the husband spending time and communicating with the children will be reserved.  

32. Given the forthcoming application by the paternal grandfather, the proceedings will otherwise remain on foot resulting in the independent Children’s Lawyer continuing as a party in the proceedings. 

33. I turn to the application of the wife for alteration of property interests and again note that there is no competing application by or on behalf of the husband and his non‑attendance and right to be afforded natural justice by notice of the orders applies equally to this part of the proceedings. 

34. I may make such order for alteration of property interests between the parties as I consider appropriate but I must not make any such order unless I find that it is just and equitable to do so.  In considering whether it is just and equitable, I must have regard to the various matters in subsection 79(4) of the Act to which I now turn. 

35. The first three paragraphs of that subsection refer to contributions, direct and indirect, financial and non‑financial made by or on behalf of the parties to the property of the parties, or either of them, together with the contributions as homemaker and parent to the family as constituted by the parties and the children of their marriage. 

36. I am satisfied that in all respects the wife has been the overwhelming homemaker and parent and her parents have made very significant contributions to the welfare of the family.  Not least was the sum of $15,000 early in the parties’ marriage by her mother to pay off debts of the husband arising out of a previous relationship.  They included debts for parking and related matters which is not necessary to detail. 

37. The husband has made little contribution in any of the respects to which I have referred and in that regard I also note his lack of involvement with the children. 

38. I must have regard to the various matters in section 75(2) as a result of paragraph (e) of the subsection.  Again the wife will have the almost exclusive responsibility in all respects for the children.  That may be absolute if the husband stops paying child support, which he has only been paying recently in the sum of approximately $180 per month. 

39. He has arrears of some $10,500 which it is extremely unlikely that he will pay. 

40. The assets of the parties are the former matrimonial home inhabited by the wife at R valued in the sum of $330,000, funds in two CBA accounts totalling $3205 and $170 respectively, household contents in the sum of approximately $3000, the husband’s motor vehicle valued at approximately $10,000 and contents of the husband’s home, which apparently he rents, in the sum of $500, yielding a total of gross assets of $346,375. 

41. The liabilities are a first mortgage on the home in the wife’s name, the home having been transferred to the wife in the sum of $226,202; the second mortgage in the sum of $14,473; a personal loan from the wife’s parents in the sum of $15,000, to which I have referred; and a Visa account in her name of 2609, yielding a total of $258,284, leaving net assets exclusive of superannuation in the sum of $88,091. 

42. The husband’s superannuation is valued in the sum of $58,212.  The wife has superannuation of $4,500 giving a total of $62,712 by way of superannuation.  If one adds in the superannuation to the nett asset, that pool achieves a total of $150,803. 

43. As I have already noted, I must not make any order unless it is just and equitable so to do.  In my view, percentages, given these low figures, become of little point.  It is appropriate the wife receive by far the great majority of the assets. 

44. In my view, it is appropriate that she should receive, exclusive of the superannuation, the nett assets other than the husband’s motor vehicle and contents of his home deriving approximately $336,000 and be responsible for the liabilities in the sum of $258,284. 

45. In saying that, there is no evidence to satisfy me of any intention by the wife’s parents to call in the personal loan in the sum of $15,000 and I discount the significance of that. 

46. Counsel for the wife seeks orders for the equal splitting of the husband’s superannuation, particularly in the hope that the wife is able to realise her proportion as a result of the needs exceptions in the legislation.  However, as pointed out by counsel, this would adversely affect her pension rights, may affect her child support rights, and if not accessible under the needs provisions, would not be accessible by her for a period of some 25 years. 

47. In my view, that would be of little point, given that very large amount of time before it is realisable and I decline that part of the application. 

48. If the wife receives the balance of the nett assets in the sum of $77,591, being of a total nett asset position of $88,091, she would receive 88 per cent of the nett assets other than superannuation.  In the circumstances, it is just and equitable to order accordingly. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date: