GOLDSMITH & GOLDSMITH
[2017] FCCA 1987
•30 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOLDSMITH & GOLDSMITH | [2017] FCCA 1987 |
| Catchwords: FAMILY LAW – Property – where the parties divided their property soon after separation in 2011 – where the wife seeks orders under s.79 of the Family Law Act 1975 – whether it is just and equitable for the Court to make any orders altering the parties’ property interests. |
| Legislation: Family Law Act 1975, ss.79, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 79(2), 79(9) |
| Cases cited: Mazorski v Albright (2008) 37 FLR 518 Tait & Densmore [2007] FamCA 1383 |
| Applicant: | MR GOLDSMITH |
| Respondent: | MS GOLDSMITH |
| File Number: | MLC 4177 of 2013 |
| Judgment of: | Judge Small |
| Hearing dates: | 7 September 2016, 8 September 2016, 9 September 2016, 19 December 2016 and 20 December 2016 |
| Date of Last Submission: | 20 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 30 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Agresta |
| Solicitors for the Applicant: | Agricola Wunderlich & Associates |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Ms Jenkinson |
| Solicitors for the Independent Children's Lawyer: | Bowlen Dunstan & Associates Pty |
| Counsel for the Department of Health and Human Services: | Mr Martin |
ORDERS
Parenting
All previous parenting Orders in relation to the children:
X born (omitted) 2005 (“X”);
Y born (omitted) 2007 (“Y”); and
Z born (omitted) 2010 (“Z”)
(collectively “the children”) are hereby discharged.
The father shall have sole parental responsibility for the children.
The children shall live with the father.
The mother shall spend time with the children:
(a)only at the instigation of the children;
(b)according to the children’s wishes; and
(c)by agreement between the parties in writing
The mother is hereby restrained by injunction from:
(a)attending at the children’s place of residence without a prior written and specific invitation from the father;
(b)attending at the children’s school or schools without a prior written and specific invitation from the father; and
(c)attending any sporting or other extra-curricular activities in which the children or any of them might be engaged without a prior written and specific invitation from the father.
The Order of 17 September 2013 appointing the Independent Children’s Lawyer is hereby discharged.
Property
The Court having found that it is not just and equitable to alter the property interests of the parties:
(a) each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b) monies standing to the credit of the parties in any joint bank account shall be deemed to be in the possession of the husband;
(c) insurance policies remain the sole property of the owner named thereon;
(d) each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e) each party forgoes any claim they may have to any inheritances or superannuation entitlements to which the other party is entitled to either presently or in the future; and
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Goldsmith & Goldsmith is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4177 of 2013
| MR GOLDSMITH |
Applicant
And
| MS GOLDSMITH |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property proceedings between the parties Mr Goldsmith (“Mr Goldsmith” or “the Father”) and Ms Goldsmith (“Ms Goldsmith” or “the Mother”).
The parenting proceedings concern their three children X born (omitted) 2005 (“X”), Y born (omitted) 2007 (“Y”) and Z born (omitted) 2010 (“Z”) (collectively “the children”).
This has been a troubled matter for a number of reasons. The Department of Health and Human Services (“the Department”) has had a high level of involvement with the family over several years during which the Children’s Court of Victoria (“the Children’s Court”) multiple Interim Accommodation Orders which placed the children with their father.
At trial, I gave the Department leave to intervene in the proceedings. This matter has been in one court system or another for a number of years, and the Court is concerned to finalise this matter so as to provide some certainty for the children about their care arrangements.
It should be noted that, very regrettably, as a result of the pressure of work, it has taken a considerable amount of time to complete this judgment. Nevertheless, my recollection of the demeanour of the witnesses is clear, and, in addition, I have had the benefit of the transcript from the trial.
The parties, and unfortunately the mother in particular, made a very vivid impression upon me, and that impression has in no way been dimmed by the unfortunate passage of time.
The issues for determination in the parenting proceedings are:
(a)whether the mother should spend any time with the children, and, if so, how much and in what circumstances;
(b)whether the parties should share parental responsibility for the children or whether that responsibility should rest with the father;
(c)where the children should live; and
(d)whether any orders ought be made altering the parties’ current property interests.
Background
The father was born on (omitted) 1978 and is a (occupation omitted).
The mother was born on (omitted) 1982 and at the time of trial was working in a (employer omitted), although she was pregnant and expecting another child in the months following the trial.
The parties married on (omitted) 2004 and separated in March 2011. They divorced on 9 July 2013.
It is not disputed between the parties that the Department has been involved with the family for a considerable number of years. The parties separated and reconciled, it would appear, on a number of occasions prior to final separation. The father was involved in a very significant motorcycle accident in January 2011.
By 2013, Children’s Court proceedings were under way, and the children, to a greater or lesser extent, were expressing a fear of their mother and a preference for living with their father. This was particularly the case with the two elder children, X and Y.
The children have been living with their father since October 2011 and have not seen the mother since March 2016.
Procedural History
The parties first appeared before me on 17 September 2013 in the Duty List. I made Orders for the children to live with the Father and for him to have sole parental responsibility. I also made an order for the appointment of an Independent Children’s Lawyer and for the mother to file material.
The matter next returned before me on 12 December 2013 where I made procedural orders. Interim orders providing for the mother to spend supervised time with the children were made by consent on that day.
The parties next appeared before me on 13 June 2014, where I made procedural orders for the matter to return in the Duty List and where I vacated the final hearing dates of 15, 16 and 17 December 2014.
I parties next came before me on 17 November 2014 when I adjourned the matter for an interim hearing.
On 20 November 2014 the parties appeared before me for an interim hearing. Further Orders were made by consent on that day and I made an Order for unsupervised time between the children and the Mother. I ordered for the parties to attend s.11F counselling and otherwise adjourned the matter.
On 9 February 2015, the parties returned before me and I made further parenting Orders for the children to spend overnight unsupervised time with the mother at a place to be agreed between the parties but failing agreement, at the maternal grandfather’s house. I also made an Order for the children to attend therapy, specifically in relation to their spending time with the mother overnight. I ordered the preparation of a family report and adjourned the matter.
The parties next came before me on 17 August 2015 where I set the matter down for a trial. The parties were otherwise able to sign consent Orders in relation to the children attending therapy and their attendance at the “Our Kids” Parenting Orders Program.
A further family report was ordered on 25 February 2016, that report being released on 6 July 2016.
On 7 September 2016 the parties came before me for trial and after some discussion as to whether I would allow the Department to appear as amicus curiae, I granted leave for the Department to intervene in the proceedings.
I initially heard the matter over three days. The trial was not completed during this time and I adjourned it part heard to 19 December 2016 where the balance of the evidence was heard for two further days.
Witnesses were the father, the mother, Family Consultant Dr K (“Dr K”), and the children’s counsellor Ms M (“Ms M”).
At the end of the hearing on 8 September 2016 I made Orders reserving the mother’s time with the children unless they told their counsellor that they wished to spend time with her, and upon completion of the trial reserved my judgment.
The Evidence
The parties have filed a number of affidavits in this proceeding, and I have, of course, read them carefully and take proper account of their contents.
I do not, however, propose to refer to the parties’ affidavits in any great detail. This is because the evidence given at trial was so telling, and more importantly, in the most unfortunate circumstances of this case, the independent and effectively unchallenged evidence is so clear.
It is perhaps sufficient to note that the father’s affidavit material asserts ongoing mental health difficulties on the part of the mother, a pattern of assaults and uncontrolled and aggressive behaviour by the mother both against himself and on occasion against the children (notably X), and an alleged total failure on the part of the mother to understand the significance of her conduct.
Apart from examples of direct violent behaviour reported by the children to their counsellor and to the Department (confirmed in independent reports), other examples of the mother’s alleged behaviour include turning up at the children’s school and attempting to force them to come home with her, and attending at X’s birthday party when she had specifically been asked not to, and causing a scene to the extent that the police were called and the mother was removed from the premises.
I note that the mother has a criminal record for persistently breaching a Family Violence Intervention Order between November 2013 and November 2015, and that there is currently a five-year Intervention Order in place against her.
Child protection proceedings have been conducted in the Children’s Court over several years to protect the children from their mother, and it is because of those proceedings that this matter has remained in this Court’s list for so long.
The mother and the children have attended upon counsellors at the Children’s Court Clinic and elsewhere, and there have been times when the mother has spent time with the children at a supervised contact centre for periods before then spending unsupervised time with the children. However those unsupervised times have led to further incidents, and in particular to an incident only months before the first three days of trial where the wife is alleged to have dragged X out of the bath by her hair.
By way of contrast, the mother’s affidavit material is almost entirely self‑exculpatory. She makes light of an attempted suicide in 2013 and any other possible psychiatric difficulties. She attributes the acknowledged reluctance of the children to see her entirely to them having been brainwashed by the father. She refers to the Department and its involvement with her family as “a joke”.
At this point, perhaps unusually, it is appropriate to turn to the family report of Dr K.
The Family Report
It should be noted that I do not deal in this judgment with the comprehensive family report prepared by family consultant Mr N dated 30 July 2015. Mr N, who is, of course, a very well‑respected and senior family consultant, wrote a comprehensive report, but, in my view, it has been overtaken by events.
It will be noted, however, that even at that stage, Mr N was concerned with disclosures made by the two elder children to the Department and to their counsellor Ms M in 2013. Ms M later described those and further disclosures in her affidavit sworn on 1 December 2016 and filed on 6 December 2016. These disclosures included concerns by both children about their mother’s verbal aggression towards them and several assaults by the mother on X, as well as aggression by the mother against their father.
Dr K noted, at pages 4 to 5 of her report, difficulties with the mother during the interview process, describing the mother as “argumentative and hostile”.
Having set out the lengthy history of the matter at pages 5 to 9, Dr K noted at paragraph 13 that:
Since the most recent alleged incident detailed in the background of the report, X and Z have been offered weekly supervised time with Ms Goldsmith. To date they have refused to spend time with her. Y similarly refuses to spend time with Ms Goldsmith. Ms Goldsmith last spent time with the children in March, 2016.
The incident referred to is that reported in a Children’s Court confidential protection report dated 29 March 2016. That report detailed an incident on 8 February 2016 in which X had sustained bruising following Ms Goldsmith pulling X out of the bathtub, and a subsequent incident on 2 March 2016 when Ms Goldsmith injured Z while trying to forcibly collect her from school.
It should be noted that the mother admitted pulling X’s hair because the children had been squabbling, but that she entirely blamed the father for all allegations made against her.
The mother’s attitude to the father is clearly expressed at paragraph 50 of Dr K’s report as follows:
With regard to the relationship she said I never loved him, I never liked him, I have so much hatred towards the man, I would be the happiest person in the world if he had died” (sic). Ms Goldsmith returned to this topic later in interview and repeated that “I wished he didn’t make it, I never told him, but I would have been so happy”. She said that it was “a massive celebration when the marriage ended”. Ms Goldsmith said that “I cannot say his name, I feel sick when the children say daddy, I cannot be nice.”
Ms Goldsmith’s reference to “wishing he didn’t make it” apparently refers to the serious injuries sustained by Mr Goldsmith in the motor cycle accident in January 2011.
In her interview with Dr K, X expressed a clear view that she did not wish to see her mother and described a stable and loving home with her father.
Dr K noted of Z, at paragraph 71:
While possibly influenced by her sister, she expressed a clear desire not to spend time with Ms Goldsmith.
Y, whose opposition to seeing his mother has always been the strongest of the three, simply refused to be interviewed.
It should be noted that by way of contrast to the difficulties experienced with the mother, the father cooperated pleasantly and cooperatively with the interview process. It should also be noted that he denied seeking to influence the children against their mother and asserted that he had done what he could to support the relationship between the children and the mother.
Perhaps the essence of the report can be seen at paragraphs 75 and following as follows:
The matter is characterised by a history of Ms Goldsmith being unable to cope with the care of the children; unstable mental health and verbal and physical aggression against Mr Goldsmith and the children. DoHHS documents list concerns of Ms Goldsmith using inappropriate physical discipline; being unresponsive to the children’s emotional needs (not attending to them when upset or distressed); inability to prioritise the children’s needs over her own; a lack of insight into her attitude towards the children invalidates them and exposure of the children to violence perpetrated by Ms Goldsmith towards Mr Goldsmith.
It is noted in the family report that the most recent Departmental confidential Court Report prepared for Children’s Court proceedings dated 29 March 2016 states that:
Child Protection are concerned about the impact of cumulative harm due to prolonged and extensive protective concerns surrounding the children’s ongoing exposure to family violence. There have been ongoing concerns around Ms Goldsmith’s physical discipline of the children, which have not been resolved despite ongoing Child Protection and Family Court Orders.
The concerns regarding Ms Goldsmith’s behaviour are thoroughly documented in the child protection and Court materials. Despite multiple reports and evidence of the same concerns and the children consistently reporting incidents, Ms Goldsmith continues to deny being inappropriately physical with the children and being unresponsive to the children’s emotional needs, causing ongoing distress.
During interview with Dr K, Ms Goldsmith’s presentation was of great concern. She externalised all blame to Mr Goldsmith and failed to accept any responsibility for her current situation.
She denied all allegations against her. She demonstrated cognitive rigidity and an inability to listen, process new information or integrate and adapt her beliefs. Her presentation is quite perplexing as she clearly presents as interpersonally and socially accomplished, and she is an intelligent woman, yet her cognitive processing and emotional functions appear seriously impaired.
Ms Goldsmith’s mental health history is somewhat elusive. It is suggested she has no formal mental health diagnosis, yet she reported to the Department having “two personalities, a mother and a single woman” and that she has obsessive‑compulsive disorder. It appears that she has not sought any psychiatric intervention or counselling.
Ms Goldsmith does not accept the descriptions of her past or alleged behaviour or the impact of any personal traits to the extent suggested.
I note that Dr P conducted a psychiatric assessment of the mother in 2014, that assessment being annexed to an affidavit sworn and filed on 10 June 2014. It was his opinion that she suffered from previous adjustment disorder with depression that was in remission, but no ongoing diagnosable psychiatric condition.
While Ms Goldsmith’s presentation may not be psychiatric in origin, she has most certainly displayed, in interactions with the Department, and in her interview with Dr K, and indeed in her appearance before this Court, a seriously concerning lack of insight. She shows little ability for self‑reflection, an inability to accept responsibility for her behaviour, and deficits in empathy and perspective‑taking.
Dr P made recommendations for intervention, and while participation may not change the parenting arrangements which will result from orders made in these proceedings, it would nonetheless appear that there might be personal benefit to Ms Goldsmith in addressing issues such as her intense anger and hostility towards Mr Goldsmith.
Given her reported history of violence and breaches of an Intervention Order, Ms Goldsmith’s disregard for Mr Goldsmith’s life is of concern. It is possible that there is a risk of future violence against Mr Goldsmith. It is also possible that Ms Goldsmith over‑exaggerates her expressed hostility due to the influence of her personality characteristics. However, Ms Goldsmith’s past behaviour suggests significant levels of physical aggression and impulsivity, and her expressed hatred of and wish to see harm come to Mr Goldsmith should be taken seriously.
Having noted the difficult history of the spend‑time regime between the mother and the children in the past, Dr K went on to recommend supervised time only and on a limited basis, with the children living with their father and he to have sole parental responsibility.
The Evidence Given at Court
The matter was heard over a total of some five days. Unfortunately, the initial tranche of three days in September 2016 proved insufficient, partly because of the number of parties and partly because the mother was self-represented, and the matter was completed on 20 December 2016 after two further days of hearing.
The father’s evidence was consistent with his affidavit material and was, in my view, unremarkable. He impressed as a gentle and sincere man who had endured much at the hands of his former wife, and his obvious principal concern was to provide a safe and secure home for his children.
Ms M, the children’s counsellor, was called and adopted her affidavits as true and correct. It was apparent that she had seen the children on numerous occasions since 2013 and more particularly in 2015 and 2016.
She was asked: “How well you think you know and understand these children’s situation?”, to which she replied:
I feel like I have a very good understanding, and I also feel like I have built up a really lovely rapport with the children. So yes, they have been able to be open and honest with me during these sessions.
She had formed a very favourable view of the father as a parent. The evidence given by Ms M confirmed the position of the parties and in particular that of the mother:
[…] she was quite angry, and she denied those allegations, and she externalised blame. […] she was blaming Mr Goldsmith and saying that Mr Goldsmith, you know, had put – put the kids up to this, this sort of thing.
It should be noted that cross‑examination by the mother of Ms M was extremely brief and took the matter no further.
The mother gave evidence and was extensively cross‑examined by counsel for the father and by counsel for the Independent Children’s Lawyer. She was also asked a small number of questions by counsel for the Department, and it is noteworthy that she confirmed that it was still her position that she had not in any way contributed to the position that now exists.
Dr K was called for cross-examination, and despite the fact that she was cross‑examined by counsel for the father at some length, the mother elected to put no questions to her. Dr K gave her evidence in a calm and composed manner, and she was an impressive witness. She confirmed her recommendations as made in the family report.
Consistently with the position she adopted during the trial, the mother had, effectively, very little, if anything, to say in final submissions. It should be noted that this remark, and the observations about her failure to cross‑examine, are not intended to be and should not be seen as criticisms of her. They simply record what occurred. The obvious corollary of the mother’s approach, however, is that the evidence of the parties she failed to cross‑examine has simply not been tested by her in any meaningful way.
Findings on the Facts
It is clear from the material before the Court, including the affidavits, the oral evidence given and, noteworthily, the reports from time to time by the Department, that the father’s assertions as to the history of the matter are essentially correct and those of the mother essentially incorrect.
The mother has, over a protracted period of time, conducted herself entirely inappropriately. She has assaulted the father in the presence of the children. There are various other assaults attested in affidavit evidence, including those on X, who has been smacked, put in a closed room below the stairs and had been pulled out of a bath by her hair. The mother maintains that all the matters put against her are, effectively, either false in the case of adults, or concocted by brainwashing on the part of the father in the case of the children.
This most unfortunate and, as Dr K pointed out, surprising lack of insight on the mother’s part is very concerning. There is no doubt, as I find, that things the father says about the mother are true and that her denials are not true. She may well believe what she says, such is the state of her denial, but having heard all the trial evidence and after seeing her in the witness box, I do not.
The Law
The law in relation to parenting matters is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act states that when a Court is considering whether to make any particular parenting order, the child’s best interests must be its “paramount consideration”.
Section 60CC then lays out a framework of “considerations” for the Court to follow when deciding what Orders might be in a child’s best interests and I will deal with each of those considerations in turn.
Section 60CC How a court determines what is in a child’s best interests
[…]
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The question of what constitutes a “meaningful relationship” in this context was considered by Brown J in Mazorski v Albright (2008) 37 FLR 518, where Her Honour said at paragraph 26:
[…] a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In Tait & Densmore [2007] FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders [2007] FamCA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. […] The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
That is, in the context of this case, if the relationship between the children and their parents can be said to be important, significant, valuable, healthy, worthwhile and advantageous to the children, and the parents are able to “lead by example” in that relationship, then the benefit to the children in maintaining and developing those relationships must be a primary consideration of the court in considering what is in their best interests.
In this case, unfortunately, the evidence leads to the inevitable conclusion that while Mr Goldsmith’s relationship with the children contains all those factors set out by Brown J and Cronin J, Ms Goldsmith is incapable of maintaining a “meaningful relationship” with her children.
She most certainly has shown herself unable to “lead by example about self-discipline” and indeed the opposite could be said to be true.
The need to protect the children from harm as set out in s.60CC(2)(b), is palpable in these proceedings, and in crafting orders for their care I note that even if the children did have “a meaningful relationship” with their mother, I am bound to give more weight to the need to protect them from harm.
Section 60CC(3) then sets out 14 “additional considerations” for the Court to have regard to when deciding what orders might be in children’s best interests as follows:
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The children have expressed clear opinions. The opinions of X and Y are explicit and run throughout the materials and have been in place for some considerable time. I note that Dr K felt that Z might have been influenced by her elder sister at the family report interview, but nonetheless Dr K accepted that Z likewise does not presently wish to see her mother.
These children are not tiny infants and, at least in the case of the elder two, their views must be given some weight.
I note that there is agreement between the Department, the Independent Children’s Lawyer and, of course, counsel for the father, that the children have not been coached or influenced in expressing their views.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The children have a close and loving relationship with the father. There is no necessity to say more than that. It is simply not a matter materially in issue.
As already explained under other headings, the mother’s relationship with the children is fractured in in terms of the time she spends with them, and, for present purposes, fractured in emotional terms as well. Indeed it could be said that the children currently do not have a relationship with their mother, as they have not seen her since March 2016.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
There is no doubt that the father, as the primary carer of recent times, and during the relationship itself, has adequately participated in making decisions about major, long‑term issues in relation to the children and spending time and communicating with them.
The mother’s participation in this regard has been more limited since separation. It should be noted that she has, however, pursued her case to trial and has never voluntarily given up all contact with the children or her role in their lives.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The father has entirely fulfilled his obligation to support the children since separation.
The mother’s conduct under this consideration is necessarily impacted by her lack of time with the children and the difficulties inherent in the case.
The father complained at trial that she had not paid child support at times when she was working and that at that time she was paying the minimum possible, albeit that those payments were pursuant to a Child Support Assessment.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
If I were to make orders providing for the children to spend time with their mother, all of the expert evidence indicates that they would find that situation traumatic and distressing.
The mother’s complete lack of insight as to the extent of her past conduct, her responsibility for it, and the effects it would have on both the father and the children remains deeply concerning.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The practical difficulty with the children spending time with their mother is their refusal to do so and their fear of her as shown to the family report writer and in the materials more generally. The Court is also required to consider whether there is any difficulty associated with expense, and it is clear, in my view, that this is not a relevant consideration in this case.
Section 60CC(3)(f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The father is well able to provide for the children’s needs and, indeed, does so on a routine basis.
For all the reasons already given, it is apparent that the mother cannot do so. Her incapacity to get X to get out of a bath without pulling her hair is of itself a vivid exemplar of her incapacity as a parent.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
There is nothing particularly remarkable in the maturity, sex, lifestyle and background of the father.
The children are still relatively young, albeit, as already observed, not babies or tiny infants. Nonetheless, as indicated, they are developing as well as one could hope in what, for them, are plainly stressful circumstances.
The mother is a woman, it would seem, of intelligence and social skill (see the report of Dr K), but her personality has the deficiencies to which I have referred and which are set out more fully in the materials.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not relevant.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
This subsection is, of course, vitally important in this case. Nonetheless, in my view, in the particular circumstances of this case, it has been adequately covered above.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
In the context of this case, this subsection is of critical significance. There has been family violence within the extended definition in s.4AB of the Act. This is constituted, if nowhere else, by the mother’s assault upon the father in the presence of the children. It is also self‑evidently present in the slapping of X and the pulling her out of the bath. It is not necessary to address each and every allegation made and/or denied because the ones that are clear beyond any possible doubt are more than sufficient to establish the most reprehensible and significant violence upon the children.
I note, however, that there has never been any suggestion in these proceedings of any family violence being committed by the father.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
On 19 November 2014, a final Family Violence Intervention Order was made in the Sunshine Magistrates Court against the mother naming the father and all three children as Affected Family Members.
That Order, which contains the usual Family Law Act Order exceptions, and was made in the absence of the mother, will last until 19 November 2019.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is plain that this is a case in which it is preferable to make final Orders. The proceedings have been on foot since 2013 and have, on any view of the materials, caused great stress not only to the adults but even more so to the children. It is entirely desirable to make final Orders and to limit, thereby, the likelihood of further proceedings.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
The only other matter requiring note at this point is the position of the Department, which has had a long involvement with this family. The Department supports the proposals of the father, which involve only supervised time between the mother and the children at the instigation of the children.
Parental Responsibility
The mother seeks equal shared parental responsibility, but both the father (very strongly) and the Independent Children’s Lawyer (perhaps slightly less strenuously) oppose orders being made in those terms. Counsel for the Department did not specifically address this area, although the Department says that the children should spend supervised time with the mother as agreed between the parents in accordance with the children’s wishes.
The law in relation to parental responsibility is found in s.61DA of the Act, which states:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Note omitted)
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parents’ family (or that other person’s family); or
(b)family violence.
It is clear beyond doubt that the presumption of equal shared parental responsibility does not apply in this case because of the degree of family violence that has occurred. Even the mother’s version of the events makes it clear not only that there has been such violence, but that the mother has no insight whatsoever either into what impact it might have on the father’s attitude towards her, nor the attitude of the children to her.
The legislation is clear that even if the presumption does not apply, the Court may still make an Order for parents to share parental responsibility for the children if it is in the children’s best interests for such an order to be made. Clearly, in this case, for all the reasons set out above, the Court does not consider that it is in the children’s best interests for their parents to share parental responsibility for making major decisions about their long-term care, welfare and development. I will therefore assign that responsibility to the father.
Property issues
The father’s Initiating Application, filed on 9 August 2013, seeks the following order:
4. That, by way of final property division, the parties each retain all assets, debts and entitlements currently in their sole name and/or possession.
Mr Goldsmith also filed a sworn Financial Statement on that day.
In his initial affidavit sworn on 5 August 2013, Mr Goldsmith states:
56. During the marriage, I attended paid employment until I was injured in the motor vehicle accident. The wife did not attend paid employment, and was the main homemaker and caregiver to the children.
57. At the time of our marriage, neither of us had significant assets and we stayed at my parents’ home for around 3 months to save money.
58. In approximately 2004, we purchased the property at Property A for $265,000.00. A deposit of $27,000.00 was paid and we obtained a mortgage for the balance.
59. The property was sold in 2011, and we split the proceeds of sale of $107,000.00 equally between us. The wife has retained the Toyota (omitted) van which was valued at $28,000.00.
In her Response filed on 10 December 2013, the mother does not seek any orders in relation to the parties’ property. However, in a handwritten self-prepared Amended Response filed on 1 July 2015, the mother seeks the following orders:
1.To Receive $10,000+ From Property settlement (sic).
2.Work certificates ((omitted)) to be given back
3.access (sic) to home contents that is in storage.
In an affidavit sworn and filed on 1 July 2015, the mother deposes only as follows:
1.Mr Goldsmith Received (sic) an extra $20,000 cash when we had our property settlement. in aug 2011 (sic).
2.Mr Goldsmith (sic) has keys to a storage unit with my belongings in it including my home contents and work certificates that I need for work.
She also filed a handwritten and sworn but apparently undated Financial Statement on 1 July 2015. That document has the word “DRAFT” stamped on the front but nevertheless appears to have been filed with and accepted by the Court.
In an affidavit sworn on 4 August and filed on 5 August 2015, the father deposes the following in relation to the mother’s affidavit sworn and filed on 1 July 2015:
86. I have read the Affidavit of the mother signed on 23 June 2015 (sic) and respond as follows.
87. In respect of paragraph 1, the net proceeds of sale of the home were $89,000.00 approximately. We were each to receive $45,000.00 so that there was an equal split of the net proceeds. However, I had paid the mortgage for the home while the mother was living there for a period of six months, with those mortgage payments totalling $10,000.00. Therefore, the mother and I attended the bank and the mother transferred $5,000.00 to my account from the amount. Therefore in effect, the mother received $40,000.00 and I received $50,000.00 from the proceeds of sale of the home. The mother received the van which was valued at $28,000.00, and she traded it in. She also received all of the contents of the home, except for my clothes.
88. In respect of paragraph 2, I do not have keys to the storage unit in which the mother placed her belongings after having been evicted from her rental home. After we separated, the mother rented a storage unit but did not pay the fees and therefore the owners of the storage unit threatened to sell the contents by auction. I believe that the mother then signed over the contents of the storage unit to me without my consent, presumably with the assumption that I would pay the fees incurred by her and obtain the keys for the storage unit and the contents of the storage units. However I did not do so, and have never had the keys or the contents of the storage unit. I informed the mother, through the storage unit assistant, that I had no money to pay her fees for her. I believe that all of the property in the storage locker was auctioned.
The above passages encompass the totality of the affidavit evidence filed by the parties in relation to property matters.
At trial, when giving his evidence in chief, Mr Goldsmith said that he had been in a serious motorcycle accident in January 2011, just two months before the parties separated. As a result of that accident he had been paid a lump sum in damages of about $430,000 which was received from the Transport Accident Commission (“TAC”) in November 2014.
It was his evidence that he had bought the house in which he and the children now live in January 2015 for $512,000, and that he had obtained a mortgage of $112,000 for that purpose, using his damages from the TAC to complete the purchase. The mortgage balance at the time of trial, he said, was about $96,000.
He said that his income consisted of about $550-$570 per week before tax, plus Family Tax Benefits of about $240 per week plus child support from the mother of about $14 per week.
He said that he had at the time of trial about $55,000 worth of superannuation entitlements and that those entitlements had been worth about $40,000 at the time of separation in March 2011. It was his evidence that he thought the mother had also had superannuation entitlements but he did not know how much.
Under cross-examination by the mother, Mr Goldsmith denied that she had looked after him after his accident, although she had visited him in hospital most days, saying that when he came home from hospital she essentially left him on the couch to fend for himself. In addition, he said, she refused to allow him to accept help from his family.
Otherwise he confirmed the contents of his affidavits in relation to property matters, save to say that when the parties divided their property in 2011, he had retained cars that were not in working order worth between $2000 and $3000, his personal belongings, and a motor vehicle worth about $500 which had been given to him by a friend. It was also his evidence that the deposit for the parties’ family home had been paid from his savings.
I note that no evidence was presented to the court in relation to the nature of the payment received by the husband from TAC. For instance, there was no evidence about how much of that payment was for pain and suffering, and how much was in compensation for future lost earnings.
In her final submissions, counsel for the father submitted that the Court should not further alter the parties’ property interests, and that specifically there should be no order in relation to the father’s TAC payment because he had applied those monies for the benefit of the children in providing them with stable accommodation.
I note that under s.79(2) of the Act, the court is prevented from altering the property interests of parties to a marriage “unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”.
What the term “just and equitable” means in the context of s.79(2) was discussed by the High Court of Australia in Stanford v Stanford[1] where the Court stated that it is not a simple matter to decide what is just and equitable. At paragraph 36 of their judgment, their Honours stated:
The expression "”just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
[1] Stanford v Stanford (2012) FLC 93-518.
In the circumstances of this case, where the parties underwent a division of their property in the aftermath of their separation which slightly favoured the mother, where the only significant asset not included in that division was the father’s TAC claim, where the accident which gave rise to that claim occurred only two months before the date of separation, and where the father has the full-time care of the three children of the marriage with minimal child support from the mother, I cannot find that it is “just and equitable” to further alter these parties’ property interests.
In any event, perusal of the Court’s file indicates that the parties did not attend a conciliation conference during the proceedings, and even if it were just and equitable to further alter their property interests, s.79(9) of the Act may prevent the Court from doing so.
I will therefore make an Order that each party essentially keep what he or she currently has in his or her possession.
Conclusion
This is, of course, a terribly sad case. Any estrangement of children from either of their parents no doubt has repercussions in their later lives, and in usual circumstances, every effort ought to be made to repair relationships affected by such estrangement.
However, over the many years that this matter has been before this Court, and the Children’s Court of Victoria, there have been many attempts to foster the relationship between the mother and the children by way of counselling and supervised time. None of those attempts has resulted in the children ultimately wishing to spend time with their mother.
I have no doubt that the mother loves her children. I have, equally, no doubt that she has no insight whatsoever into the impact on the children of either her hatred for their father or her behaviour in relation to the children themselves.
Consideration of all the relevant matters set out above leads inexorably to the conclusion that it is in the children’s best interests that the father have sole parental responsibility for them, that they live with him, and that they spend time with the mother only at their instigation and according to their wishes, and that such time be by agreement between the parents in writing.
There will be ancillary Orders to restrain the mother from attending the children’s home, school or sporting or other extracurricular activities. Given the mother’s behaviour in the past, including her attendance at the family home and the children’s school causing great distress to the children, it is plain that these Orders are necessary.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 30 August 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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