GOULD & GOULD
[2018] FCCA 86
•7 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOULD & GOULD | [2018] FCCA 86 |
| Catchwords: FAMILY LAW – Property – spousal maintenance – alleged loans from husband’s family – adjustment for future needs of primary carer – contributions and future needs. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| Cases cited: Stanford v Stanford [2012] HCA 52 In the Marriage of Hickey [2003] FamCA 395 Brown and Brown (2007) FLC 93-316 |
| Applicant: | MR GOULD |
| Respondent: | MS GOULD |
| File Number: | MLC 8215 of 2014 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 20, 21 and 22 November 2017 |
| Date of last submission: | 22 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 7 February 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr Howe |
| Solicitors for the applicant: | RRR Lawyers |
| Counsel for the respondent: | Mr Kistler |
| Solicitors for the respondent: | Sabelberg Morcos Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Agresta |
| Solicitors for the Independent Children’s Lawyer: | Perry Weston Lawyers |
ORDERS
PARENTING
The mother have sole parental responsibility for the children of the marriage, namely:
(a)W born (omitted) 2005;
(b)X born (omitted) 2007;
(c)Y born (omitted) 2012; and
(d)Z born (omitted) 2013 (collectively referred to as “the children”).
The children live with the mother.
The children spend time with the father:
(a)each alternate Sunday from 12:00 noon until 6:00pm, with the paternal grandmother to be in substantial attendance until such time as the father completes individual counselling and a post-separation parenting skills course pursuant to these orders;
(b)that upon the father completing individual counselling and a post-separation parenting skills course and providing the mother with proof of same, the father’s time with the children pursuant to order 3(a) continue without the requirement that the paternal grandmother be in substantial attendance, with such time to continue for a period of six months;
(c)thereafter, each alternate weekend from 12:00 noon on Saturday until 6:00pm on Sunday, conditional upon the paternal grandmother being in substantial attendance at the father’s home commencing from 6:00pm on the Saturday evening until at least 8:00am on Sunday morning;
(d)in the event that the father’s birthday and/or Father’s Day do not fall on a day that the father would normally spend time with the children, the children spend time with the father from 9:00am until 6:00pm if it falls on a weekend or from 3:30pm until 7:30pm if it falls on a weekday, provided that if such time is to occur before the father has completed the individual counselling and a post-separation parenting skills course pursuant to these orders, the paternal grandmother is to be in substantial attendance;
(e)for a period of six hours on Christmas Day each year, at times to be agreed between the parties in writing at least seven days prior to Christmas Day, and in the absence of agreement from 10:00am until 4:00pm, provided that if such time is to occur before the father has completed individual counselling and a post-separation parenting skills course pursuant to these orders, the paternal grandmother is to be in substantial attendance;
(f)if the (religion omitted) falls on the father’s weekend, such time shall be suspended and the mother provide make up time on the following weekend;
(g)for a period of six hours on Easter Sunday each year commencing 1 April 2018, at times to be agreed between the parties in writing at least seven days prior to Easter Sunday, and in the absence of agreement from 10:00am to 4:00pm, provided that if such time is to occur before the father has completed individual counselling and a post-separation parenting skills course pursuant to these orders, the paternal grandmother is to be in substantial attendance;
(h)in the event that the children’s birthdays do not fall on days that the father would normally spend time with the children, for a period of not less than four hours on each of the children’s birthdays, at times to be agreed between the parties in writing and in default of agreement, from 3:30pm until 7:30pm if it falls on a weekday or from 1:00pm until 5:00pm if it falls on a weekend, provided that if such time is to occur before the father has completed individual counselling and a post-separation parenting skills course pursuant to these orders, the paternal grandmother is to be in substantial attendance; and
(i)at any other times as may be agreed between the parties in writing.
In the event that the mother’s birthday and/or Mother’s Day do not fall on a day that the mother would normally spend time with the children, the arrangements referred to in paragraph 3 be suspended, and the children spend time with the mother from 9:00am until 6:00pm with the father to have make up time the following weekend.
Notwithstanding paragraph 1 hereof the mother shall:
(a)advise the father of the details of any school at which the children or any of them is enrolled and authorise any such school to provide to the father, at his expense if any, copies of the children’s school reports and photograph order forms each year;
(b)advise the father of any serious illness or injury suffered by any of the children whilst they are in her care and advise him in the event that any of the children are hospitalised and the mother do authorise any medical practitioners treating the children in such circumstances to provide information to the father relevant to the children’s medical welfare;
(c)advise the father of her current residential address and a current telephone contact number on which the children can be contacted and further advise him of any changes to such details within seven days of any change; and
(d)the father is at liberty, subject to any direction to the contrary from any school at which the children attend, to:
(i)attend parent/teacher interviews separately to the mother; and
(ii)attend any school concert, sports carnival, fete, family day or any other school event to which parents are ordinarily invited save that the father will not approach the mother at any time during such occasions.
The mother and father forthwith utilise a communication book for the exchange of information between them, such information to be limited to matters relevant to the children’s welfare and such communication book to be provided to the other parent at the time of changeover and each of the mother and father shall ensure that the children are not used as messengers or allowed access to the communication book and that the father organise and initiate the communication book to be utilised by the parties and provide same to the mother at first instance.
Subject to any other agreement between the mother and father in writing, all changeovers take place in the foyer of the (omitted) Police Station between the paternal grandmother and the mother.
The mother forthwith undergo counselling on a continuing basis with a counsellor or psychologist to assist her to overcome any anxiety associated with the children’s time with the father and to assist her to support the children’s relationship with the father and do so at such frequency and for such duration as recommended by the said counsellor or psychologist.
The father forthwith undertake at least twelve individual counselling sessions with a counsellor or psychologist to address the issues raised by Dr A in his report dated 17 May 2017 and to facilitate this order, the father shall ensure that the counsellor or psychologist engaged by him is provided with a copy of Dr A’s report.
Upon the father completing twelve sessions of individual counselling as provided for in paragraph 9 hereof, he provide to the mother a letter from the counsellor or psychologist confirming the father’s attendance and confirming that such counselling was directed to the issues raised by Dr A.
The father forthwith undertake and complete a post-separation parenting skills course and provide proof of completion of same to the mother.
The order for the appointment of the Independent Children’s Lawyer be discharged.
The father immediately advise the mother by text message or telephone in the event that the children or any of them suffer a significant illness or injury whilst in his care and return the children to the mother immediately or follow the mother’s directions as to the required medical attention for the child or children.
The mother and father, their servants and agents be restrained by injunction from:
(a)discussing the court proceedings with the children or any of them nor allowing anyone else to do so;
(b)denigrating the other in the presence of the children or any of them or allowing another person to engage in such conduct or otherwise exposing the children or any of them to the parental conflict; and
(c)physically disciplining the children or any of them or exposing any of them to any form of family violence.
All parenting applications otherwise be dismissed.
Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
(A)Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
PROPERTY
Within 90 days from the date of these orders (“the date”), the husband shall pay to the wife the sum of $83,750 (comprising $88,000 less $4,250 being the wife’s contribution to the expenses relating to the family consultant’s report prepared by Ms E and the psychiatric report prepared by Dr A) by way of property adjustment in favour of the wife (“the payment”).
That contemporaneously with the payment:
(a)the husband shall do all such acts and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his right, title and interest in the property situate at Property A (“the Property A property”) and the property situate at Property B, (“the Property B property”);
(b)the wife shall indemnify the husband against all payments and liabilities pursuant to any mortgages secured over the Property A property and the Property B property and all apportionable rates, taxes and outgoings of or with respect to those properties of whatsoever nature and kind;
(c)the wife shall do all such acts and sign all such documents as may be required to transfer to the husband, at the expense of the husband, all of her right, title and interest in the property situate at Property C, (“the Property C property”); and
(d)the husband shall indemnify the wife against all payments and liabilities pursuant to any mortgage secured over the Property C property and all apportionable rates, taxes and outgoings of or with respect to the Property C property of whatsoever nature and kind.
In the event that the whole of the payment has not been made by the date, the Property C property be forthwith sold altogether out of court (“the sale”) and upon completion of the sale, the proceeds of the sale shall be applied as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage and any other encumbrance affecting the Property C property;
(c)thirdly, so much of the payment as is then outstanding together with interest thereon at the rate prescribed by the Family Law Rules adjusted monthly from the date to the wife; and
(d)the balance remaining, if any, to the husband.
Pending compliance by the parties with these orders:
(a)the wife shall have the sole right to occupy the Property A property and the Property B property and during such right of occupation, the wife shall pay all instalments pursuant to the mortgages and all rates, taxes and like apportionable outgoings of those properties as they fall due;
(b)the husband shall have the sole right to occupy the Property C property and during such right of occupation, the husband shall pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the Property C property as they fall due;
(c)the parties hold their respective interests in each said property upon trust pursuant to these orders; and
(d)neither party may encumber the other’s said property without the consent in writing of the other party.
The husband shall forthwith do all acts and things and sign all necessary documents as may be required to transfer to the wife, at the expense of the wife, all his right, title and interest in the (omitted) shares in his name, valued at $6,573.60 as at 15 November 2017 (“the shares”), to be held by the wife on trust for the children.
In the event that the husband has sold the shares prior to these orders coming into effect, the husband shall pay to the wife the sum of $6,573.60 within 21 days from the date of these orders.
Unless the parties otherwise agree in writing, the following assets will be sold forthwith:
(a)the husband’s boat and trailer; and
(b)the wife’s (omitted) motor vehicle.
The proceeds of the sale of the items in paragraph 7 herein be applied as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale; and
(b)the balance to be divided in the proportions of 70% to the wife and 30% to the husband.
The husband otherwise retain, to the exclusion of the wife, all items of property (both real and personal and including choses-in-action and financial resources) in his name, possession and/or control, including but not limited to:
(a)the (omitted) motor vehicle;
(b)the (omitted) motorcycle;
(c)his bank accounts and savings;
(d)furniture, furnishings and household contents at the Property C property;
(e)his superannuation contributions and entitlements with (omitted) and (omitted) Super, subject to paragraphs 11 to 14 herein; and
(f)his personal belongings and effects including but not limited to fishing equipment, sporting gear, tools and men’s jewellery which may be located at the Property A property.
The wife otherwise retain, to the exclusion of the husband, all items of property (both real and personal and including choses-in-action and financial resources) in her name, possession and/or control, including but not limited to:
(a)furniture, furnishings and household contents at the Property B property;
(b)subject to paragraph 9(f) above, furniture, furnishings and household contents at the Property A property;
(c)her bank accounts and savings;
(d)her personal belongings and effects; and
(e)her superannuation contributions and entitlements with (omitted) Super.
The court allocate, as required by section 90MT(4) of the Family Law Act 1975 (Cth), a base amount of $24,097 of the husband’s interest in (omitted) superannuation (“the fund”) as at the date of these orders to the wife.
Pursuant to section 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever the trustee of the fund makes a splittable payment out of the husband’s interest in the fund, the trustee will:
(a)pay to the wife, or her administrators, executors, beneficiaries, heirs or assigns, to the extent permitted by law, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)make a corresponding reduction in the entitlement that the husband would have had in the fund but for these orders.
Paragraph 11 has effect from the operative time and the operative time for the purpose of these orders is four working days after the service of a sealed copy of these orders on the trustee, with such service to be effected by the husband.
The trustee of the fund will do all such acts and things, and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law (Superannuation) Regulations 2001 (Cth), the trustee can calculate the entitlement awarded to the wife in accordance with paragraph 11 of these orders and pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the fund.
Each party and the trustee of the fund have liberty to apply in relation to the implementation of orders 11 to 14 inclusive.
Unless otherwise specified in these orders, and save for the purposes of enforcing these orders:
(a)each party is solely entitled to the exclusion of the other to all property (both real and personal and including choses-in-action, financial resources and superannuation contributions and entitlements) owned by or in the possession of such party as at the date of these orders;
(b)all insurance policies become the sole property of the policy owner named thereon;
(c)each party be solely liable for and indemnify the other with respect to any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
SPOUSAL MAINTENANCE
The wife’s application for spousal maintenance be dismissed.
AND THE COURT NOTES THAT:
(A)Pursuant to section 81 of the Family Law Act 1975 (Cth), these orders shall, as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.
(B)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Gould & Gould is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8215 of 2014
| MR GOULD |
Applicant
And
| MS GOULD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting and property orders and for spousal maintenance.
The applicant father and husband is 38 years old and is employed as a (occupation omitted) on a full-time basis. The respondent mother and wife is 37 years old and is employed in home duties on a full-time basis. The parties commenced cohabitation and married on (omitted) 2005.
There are four children of the marriage, namely W, born (omitted) 2005 (“W”), X, born (omitted) 2007 (“X”), Y, born (omitted) 2012 (“Y”) and Z, born (omitted) 2013 (“Z”) (collectively referred to as “the children”).
The parties separated after approximately eight years in late 2012 or early 2013. The father states that the parties separated in October 2012 and the mother states that the parties separated in January 2013. The parties divorced on 15 May 2015.
Issues in dispute
At the commencement of proceedings, the following issues were in dispute with respect to parenting:
a)whether the mother should have sole parental responsibility for the children;
b)who the children should live with; and
c)the amount of time the father should spend with the children.
The mother also made an application for spousal maintenance which the father opposed.
The following issues were in dispute with respect to the property proceedings:
a)how the Property B, (“the Property B property”) ought to be treated, given that it was the wife’s case that this property was bought and paid for by the maternal grandmother prior to the commencement of the relationship as a gift to the wife;
b)whether regard ought to be had to ‘loans’ that the husband alleges he received from his mother and brother of $5,000 each;
c)whether payments made by the husband of $8,500 for the family report and psychiatric assessments in these proceedings ought to be brought to account in the property settlement; and
d)the value to be attributed to:
i)the wife’s motor vehicle (a (omitted vehicle)); and
ii)the husband’s boat and trailer.
Following three days of hearing this matter, the Independent Children’s Lawyer (“ICL”) made a number of recommendations in relation to the parenting arrangements for the children.
The orders proposed by the ICL were substantially agreed to by both the father and the mother. The following issues remained in dispute with respect to parenting:
a)whether the parents should have equal shared parental responsibility for the children;
b)whether the father’s time should move to unsupervised time including half the school holidays and special occasions such as Christmas Day and Easter; and
c)additional orders relating to incidental matters which are detailed below.
Summary
In relation to parenting matters I have determined that it is in the children’s best interests that:
a)the mother have sole parental responsibility for the children;
b)the children live with the mother and spend time with the father in accordance with the orders attached to this decision; and
c)the children spend time with each parent on special days, occasions and holidays.
In relation to property settlement, I have determined that the asset pool including superannuation entitlements should be divided between the parties so that the wife receives 70% and the husband receives 30%.
I have also determined that the wife’s application for spousal maintenance should be dismissed.
The reasons for my decision are as follows.
Background
| Chronology of events | |
| (omitted) 1979 | Birth of the father |
| (omitted) 1979 | Birth of the mother |
| (omitted) 2005 | Parties marry and commence cohabitation |
| (omitted) 2005 | Birth of W, currently 12 years old |
| (omitted) 2007 | Birth of X, currently 10 years old |
| (omitted) 2012 | Birth of Y, currently 5 years old |
| October 2012 / February 2013 | Parties separate |
| (omitted) 2013 | Birth of Z, currently 4 years old |
| 15 May 2015 | Parties divorce |
Proposals of the parties
Parenting
As stated above, following three days of hearing, the parties, to their credit, each moved from their initial proposals and substantially (although not entirely) agreed to the orders proposed by the ICL.
The father departed from the orders proposed by the ICL in that he continued to seek:
a)equal shared parental responsibility;
b)after three months of time spent each alternate weekend with the children from 10:00am Saturday until 6:00pm Sunday (conditional upon the paternal grandmother being in substantial attendance from 6:00pm Saturday until 8:00am Sunday), he should spend time with the children on alternate weekends from after school on Friday until 6:00pm on Sunday and every alternate Wednesday from after school until 7:30pm as well as half of all holiday periods and half of Christmas Day and Boxing Day (without the paternal grandmother’s attendance); and
c)the children spend time with him on special days and birthdays.
The mother also agreed with the ICL’s proposal save that she sought:
a)an additional order that the father be responsible for organising and initiating the communication book to be utilised by the parties and provide same to the mother at first instance; and
b)special orders in relation to birthdays and special days and a non-denigration order.
Property
The husband sought orders in accordance with paragraphs 16 to 28 of the orders sought in his outline of case.
The wife sought orders that there be a split of the non-superannuation pool in the proportions of 80% to the wife and 20% to the husband.
Both parties sought a superannuation split in accordance with the minute handed up to the court at trial of $24,097 to the wife.
Spousal Maintenance
The wife sought an order that subject to the husband’s net income after living expenses, he pay her periodic spousal maintenance in the amount of up to $450 per week. The husband opposed that application.
Documents relied upon by the parties
The father relied upon the following documents:
a)initiating application filed 12 September 2014;
b)affidavit of Mr Gould filed 12 September 2014;
c)financial statement filed 12 September 2014;
d)affidavit of Mr P filed 14 November 2014;
e)affidavit of Mr P filed 19 December 2014;
f)affidavit of Mr Gould filed 19 January 2015;
g)affidavit of Mr Gould filed 23 January 2015;
h)affidavit of Ms M filed 18 February 2015;
i)affidavit of Ms A filed 18 February 2015;
j)affidavit of Mr B filed 18 February 2015;
k)affidavit of Mr J filed 18 February 2015;
l)affidavit of Mr Gould filed 18 February 2015;
m)affidavit of Mr Gould filed 21 October 2015;
n)response filed 28 October 2015;
o)affidavit of Mr Gould filed 5 November 2015;
p)affidavit of Mr P filed 23 August 2016;
q)affidavit of Ms A filed 7 December 2016;
r)affidavit of Mr Gould filed 17 May 2017;
s)affidavit of Ms A filed 20 October 2017;
t)affidavit of Mr Gould filed 24 October 2017; and
u)amended financial statement filed 13 November 2017.
The mother relied upon the following documents:
a)response filed 13 November 2014;
b)affidavit of Ms Gould sworn 13 November 2014;
c)affidavit of Ms Gould sworn 21 January 2015;
d)affidavit of Ms Gould sworn 15 October 2015;
e)affidavit of Ms Gould sworn 17 February 2016;
f)affidavit of Ms Gould sworn 22 August 2016;
g)affidavit of Ms Gould sworn 16 May 2017;
h)affidavit of Ms Gould sworn 6 November 2017;
i)amended response filed 16 October 2015;
j)financial statement filed 17 November 2014;
k)financial statement filed 18 February 2017; and
l)financial statement filed 15 November 2017.
The ICL relied upon the following documents:
a)family report of Dr M dated 15 February 2016;
b)family report of Dr M dated 17 October 2017; and
c)psychiatric assessment report of Dr A dated 17 May 2017.
Evidence
I do not propose to discuss all of the evidence in this matter, which, as is evident from the above, was substantial. I did, however, consider the totality of the evidence relied upon by each of the parties in coming to my decision.
Both the mother and father gave evidence in this matter and were cross-examined. I had the benefit of observing each of the parents in the witness box for significant periods of time and, importantly for this case, I had the benefit of observing Ms A, the paternal grandmother who was cross-examined at length by both the mother’s and the ICL’s counsel.
Dr M, the family report writer in this matter gave evidence by telephone and was asked questions by counsel for the ICL and was also questioned by both parents’ counsel.
Whilst there are many factual issues in dispute in this matter, it is common ground that:
a)the four children live with the mother and that post-separation, the mother has predominantly provided food and clothing for the children. The father gave evidence that he did try and assist the mother financially and that he purchased food and clothing for the children although the mother disputes this;
b)post-separation, the children’s time with the father was, until 2016, sporadic and inconsistent;
c)since August 2016, interim orders were made for supervised time between the father and the children with the paternal grandmother in attendance and this time has occurred consistently;
d)as a result of an agreement between the parents following the birth of the eldest child W, the children are being raised in accordance with the mother’s (omitted) religion and the father takes no issue with this continuing; and
e)there is, and was throughout the marriage, significant antipathy (and, at times, open hostility) between each parent and their respective parents-in-law.
Family violence
Family violence is defined in section 4AB of the Family Law Act 1975 (Cth) (“the Act”) as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Section 4AB(2) goes on to relevantly provide:
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family
violence if the child sees or hears family violence or otherwise experiences the effects of family violence.(4)
Examples of situations that may constitute a child being
exposed to family violence include (but are not limited to) the child:
… (b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or…
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
There is evidence of family violence in this matter. Some of the allegations made by the mother are denied by the father, others admitted either in whole or in part.
For example, the mother alleges that on or about 17 October 2011, an altercation occurred in which the father became aggressive and when she tried to leave, he punched her in the face.[1] The father denies that this occurred at all.[2]
[1] Paragraph 26 of the mother’s affidavit sworn 13 November 2014.
[2] Transcript page 50 at lines 30 to 40.
Both parties agreed that their relationship was characterised by verbal arguments and there is substantial agreement that certain incidents of violence did occur, although the exact nature of those incidents, and who the perpetrator of the violence was in each case, remains in dispute.
It is not disputed, for example, that:
a)in November 2010 during an altercation between them, the father head-butted the mother and she suffered an injury for which she sought medical attention. The father maintains that he was acting in self-defence as the mother had her hands around his throat (“the head-butting incident”). This incident was reported to the police and the police sought an intervention order against the mother in favour of the father. The father ultimately did not proceed with his application which was withdrawn;[3]
b)on 5 June 2013, not long after separation, there was an altercation at the matrimonial home which involved the father, the mother and the maternal grandmother (“the June 2013 incident”). Whilst there is some dispute about exactly what happened and how this altercation came about, it is not disputed that the mother was heavily pregnant at the time, that the altercation occurred at the matrimonial home, that the father went to the home after being told that the previous arrangement for him to mind the children was no longer required, that the father pulled the maternal grandmother’s hair, that the police were called and that the mother was taken by ambulance to the hospital following this incident. It is also not disputed that as a result of the June 2013 incident, the father was charged with recklessly causing injury and was convicted of that charge following a contested hearing.[4] Whilst the parties disputed exactly what the children saw or heard in relation to this incident, it is conceded that the older three children were at the house when the June 2013 incident occurred; and
c)on 31 July 2016, following an informal agreement reached between the parties’ solicitors for the children to spend time with the father, an altercation occurred at changeover on the first such visit which commenced in McDonald’s at (omitted) and continued in the car park of the (omitted) Shopping Centre (“the McDonald’s incident”).
[3] Paragraphs 31 to 34 of the mother’s affidavit sworn 13 November 2014.
[4] Transcript page 11 at lines 39 to 47.
The head-butting incident
The mother’s evidence as set out at paragraphs 26 to 30 in her affidavit sworn 13 November 2014 alleges that there were two occasions where the father was violent towards her during the marriage. On the first occasion, she alleges that the father punched her in the face and the second occasion is herein referred to as the head-butting incident. When asked about these matters in cross-examination by the ICL’s counsel, the father denied the first incident – that is, that he punched the mother in the face – but agreed that the head-butting incident had occurred. In relation to the head-butting incident, the father stated that he was acting in self-defence and pointed to the fact that the police took out an intervention order against the mother as evidence that he was not at fault.[5]
[5] Transcript page 50 at line 30 to page 51 at line 10.
At pages 51 and 52 of the transcript the following exchange occurred between counsel for the ICL and the father:
Okay. All right. Can I ask you this? You’re in a house – in regard to that, you’re in a house with children probably around. There were three children – that stage, were there three children? Two children? – – – I think there were only two – – –
Okay? – – – during that head-butting.
Right. Do you have a difficulty with the fact that you head-butted your wife to the extent that she was bleeding and had to be taken to a medical clinic? – – – Of course I do.
And tell us about that. So what is your responsibility in regard to that? – – – Well, it was either allow her to choke me and stop breathing or do something to get her hands off my throat because, like I said, I had one hand in plaster. So it was either sit there and allow her to continue choking me or try and do something to get her away.
So in regard to that – that incident, clearly you take no responsibility; is that right? – – – Of course there’s responsibility because I – – –
What’s the responsibility? – – – Well, I head-butted her, so obviously I inflicted pain and a wound to her. So I do accept responsibility for that.
…I’m trying to make you understand the circumstances of which it took – took place. There’s no point in saying incidents that took place without finding out the facts of how they came about. Do I regret what happened on that day? Course I regret it. Do I regret causing injury to her? Course I regret it. Did I intend to do that before any of this started? No way at all. But they happened and, yes, I am definitely sorry for it, as I am on the day of 13 June, the incidents that took place there.
I am satisfied that the head-butting incident falls within the definition of family violence set out in paragraphs 28 and 29 above.
The June 2013 incident
As stated above, the fact that this incident occurred and that the mother was taken to hospital is not disputed.
The mother gave evidence that this incident resulted from violence by the father directed at her and the maternal grandmother.
The father gave evidence that he was provoked into responding. He conceded that he did grab the maternal grandmother by the hair although he says that this was in response to the maternal grandmother biting him on the leg in the scuffle. The father also conceded that the mother fell to the ground when she was heavily pregnant with the couple’s fourth child Z, although he denied that he punched and kicked the mother or the maternal grandmother as alleged.
In relation to the presence of the three older children during the incident, the father maintained that the children were not physically present in the same room where the incident occurred but rather were elsewhere in the home. He did concede however that they may have heard the commotion associated with the incident.[6]
[6] Paragraph 37 of the father’s affidavit sworn 12 September 2014.
The June 2013 incident and the dynamics between the parties is telling and warrants some analysis.
It is common ground that at the time of this altercation, the parties had separated. It is also common ground that there was significant antipathy at best, and antagonism at worst, between the father and the maternal grandmother. The father took the view that the maternal grandmother was unnecessarily interfering in his relationship with the mother and that this had significantly led to the breakdown of their relationship.
The mother had initially asked the father to care for the children on the day in question. She later told him that this was no longer necessary. Forming the view, rightly as it turned out, that the maternal grandmother was at the matrimonial home at the time, the father sent a text message to the mother saying ‘she’d better not be there otherwise there’ll be hell to pay’.[7]
[7] Transcript page 55 at line 39.
On this basis, the father attended the matrimonial home and the incident described above ensued.
In the course of giving his evidence, the father ultimately expressed remorse about the June 2013 incident and said that he wished he had left before it escalated as it did. Counsel for the ICL put to the father that given the situation and the antipathy between himself and the maternal grandmother and the fact that there was a chance (as acknowledged in his text message) that the maternal grandmother would be at the home, that he should not have gone there at all.
After a lengthy exchange the father ultimately conceded that ‘in hindsight’ it would have been preferable if he had not gone to the matrimonial home at all.[8]
[8] Transcript page 55 at line 10 to page 59 at line 35.
It is common ground that arising out of this incident, the father was charged with recklessly causing injury and convicted following a contested hearing in March 2015.[9]
[9] Annexure G-1 of the mother’s affidavit sworn 15 October 2015.
Having regard to this conviction, I am satisfied that this incident constitutes an act of family violence by the father against the mother as defined in section 4AB of the Act.
The McDonald’s incident
Pursuant to interim orders made on 22 October 2015, the father commenced supervised time with the children in January 2016 at (omitted) Children's Contact Service which continued until May 2016. The father’s lawyers wrote to the mother’s lawyer on 16 May 2016 requesting that unsupervised time recommence once the supervised time at the contact service came to an end.
Following somewhat protracted negotiations between the parties’ legal representatives, it was ultimately agreed that the paternal grandparents would provide supervision to facilitate additional time between the father and the children.[10]
[10] See the affidavit of Mr P filed 23 August 2016.
Importantly, as will become evident, the location of the time spent with the father was the subject of some discussion in this correspondence. For example in the letter from the ICL to the parties’ representatives dated 12 July 2016, the ICL states:
As an interim measure, the Independent Children’s Lawyer would suggest contact on each alternate Saturday from 1.00pm until 5.00pm with the contact to take place somewhere where the older children have plenty to do (emphasis added).[11]
[11] Annexure R-10 of the affidavit of Mr P filed 23 August 2016.
There was then a flurry of correspondence between the parties and the ICL on 28 July 2016 regarding the need for an interim hearing to ensure that time with the father recommence. It was following this correspondence that an agreement appears to have been reached for the father to spend time with the children on Sunday 31 July 2016 from 2:00pm to 6:00pm.
Annexure R-13 to the affidavit of Mr P filed 23 August 2016 appears to be a text message between the parents’ legal representatives indicating that changeover at the commencement of this time was to occur at McDonald’s and at the end of time at McDonald’s in (omitted).
The mother’s affidavit sworn 22 August 2016 also attaches a series of letters and emails between the parties’ legal representatives, including the ICL, about this issue. That correspondence shows that the proposal put by the father’s lawyers to the mother’s lawyers at 5:51pm on Friday 29 July 2016, was that time with the father occur between 2:00pm and 6:00pm on Sunday 31 July 2016, supervised by the paternal grandparents with ‘changeover at McDonalds Restaurant cnr (omitted) and (omitted).’
It was against this background that the McDonald’s incident occurred.
The mother’s case is that she attended to drop the children off at McDonald’s in (omitted) on the understanding that the time spent was confined to it occurring at that McDonald’s restaurant.
The paternal grandmother gave evidence in relation to the McDonald’s incident, both in her affidavit filed 7 December 2016 and in her responses to cross examination.[12] In summary, her evidence is that:
[12] Transcript pages 97 to 104 at line 18 and pages 114 to 119.
a)it became apparent at the changeover on 31 July 2016 that there was a difference of opinion between the parents as to whether the father had to spend the entire four hours with the children at the (omitted) McDonalds;
b)the father spoke to his lawyer three times who confirmed that the agreement did not contain any such restriction;
c)as such, the father left the (omitted) McDonalds and the mother then commenced a pursuit of them in her car;
d)as the mother was driving alongside the father’s car she was yelling at him to pull over;
e)the children were becoming distressed;
f)the father pulled over at the (omitted) Shopping Centre car park, which was the first place where it was safe to pull over;
g)the mother was screaming and trying to get the children out of the car;
h)the father called the police and remained in the car;
i)at some point, the mother called out ‘domestic violence’ or words to that effect;
j)at some point, the car doors became unlocked and the mother started removing the children from the car;
k)the police eventually arrived, took the children, calmed them down, then gave them to the mother who took them home;
l)the father did not push the mother to the ground as alleged; and
m)from the paternal grandmother’s perspective, the mother simply ‘flopped’ to the ground.
Although the mother attached some of the communications regarding the time arrangements on 31 July 2016, relevantly, she did not attach the text message correspondence annexed to Mr P’s affidavit. Nor did she attach the subsequent letter from the ICL dated 10 August 2016[13] in which the ICL made the following statement in reference to the McDonald’s incident:
Clearly there is a major factual dispute between the parties as to what occurred. In the view of the Independent Children’s Lawyer however, there is no doubt that there was never any intention that the father’s time spent with the children was to be restricted to the McDonald’s Restaurant. Quite the contrary, our proposal was that the four hours of time take place somewhere that was interesting and where the older children had activities that could keep them occupied rather than become bored as they had at the contact centre.
We have absolutely no idea why the mother believed the contact was to be restricted to McDonald’s. Equally, we have no idea why she did not leave after dropping the children off. Even if she took the view that something else had been agreed, her subsequent reaction was completely inappropriate and unacceptable. There is absolutely no suggestion that the children were in any way in danger or at risk… (emphasis added)
[13] Annexure R-17 of the affidavit of Mr P filed 23 August 2016.
In her affidavit sworn 22 August 2016, the mother makes reference to this letter without attaching the letter in full.[14] The selective reporting of this letter is consistent with my observations of the mother in the witness box that she would not give the father any credit, nor make concessions, when they were reasonably open to her.
[14] Paragraphs 44 to 46 of the mother’s affidavit sworn 22 August 2016.
The mother states that she was concerned about the welfare of the children and therefore when the father started driving off, she pursued the father and asked him to pull over. Irrespective of her motives, it is clear that when the father pulled over into a car park at the (omitted) Shopping Centre, the mother removed the children from the father’s car in what became a very traumatic and distressing incident for all concerned.
It is also conceded that following this incident, the police were called and that an investigation was conducted and the police formed the view that it was not possible to determine who was at fault in this incident. The mother alleged that the father had again engaged in violence towards her, in particular, by pushing her over as she was trying to remove the youngest child, Z from the car. The father categorically denied this and stated that he was sitting in the back of the car trying to calm Z down who was visibly distressed as a result of the goings-on around him.
The father and the paternal grandmother both categorically denied that the father hit or pushed the mother during this incident. On the basis of the evidence before this court, it is not possible to make a finding one way or the other. It is possible to draw an inference however, and I do so, from the fact that the police chose not to lay any charges against either the mother or the father in relation to this incident that the evidence available to the police was not determinative. Both the father and the mother gave evidence that there were witnesses present in the car park at the time who could corroborate their respective version of events. They also gave evidence that it was their understanding that the police interviewed each of those witnesses.
I am therefore not satisfied that the McDonald’s incident is an example of the father engaging in family violence towards the mother.
The McDonald’s incident however, is relevant to my consideration of what is in the children’s best interests. It is clear that, irrespective of who initiated the situation, the children who witnessed their mother driving alongside their father’s car yelling at the father and telling him to pull over and then witnessed their mother seeking to remove them from their father’s car, were distressed by the incident.
In cross-examination, the mother agreed that when she was driving alongside the father, she was screaming at him to pull over.[15] Even at trial, the mother maintained that the agreement was that the father was to remain at McDonald’s for the entire duration of the time. The mother stated that she was of the view that the father was kidnapping the children.[16]
[15] Transcript page 133 at line 44.
[16] Transcript page 169 at lines 12 to 13.
The following exchange occurred in cross-examination by counsel for the ICL:
Okay. So in regard to that, can I just say this, that the starting point of that problem was the fact that they thought they were allowed to do something, and you thought they were allowed to only do something else. Do you agree? – – – Correct. [17]
[17] Transcript page 163 at lines 41 to 43.
In response to questions from counsel from the ICL, the mother conceded that in relation to the McDonald’s incident, there were two competing versions of what happened, that the police investigated and concluded that it was not possible to clearly determine whose version was correct, and consequently their choice was to either prosecute both the father and the mother and leave it to a court to decide or not prosecute either party. The police ultimately chose the latter path.[18]
[18] Transcript page 162 at lines 32 to 47 to page 163 at lines 1 to 16.
Having heard from the paternal grandmother on this issue, I am satisfied that she attempted to liaise between the mother and the father initially to clarify the basis on which the time would be spent and that she did her best in all the circumstances to shield the children from the altercation, although this ultimately was not possible.
The mother reluctantly conceded in cross-examination by counsel for the ICL that her conduct contributed to the distress and trauma suffered by the children as a result of the McDonald’s incident. Notwithstanding this concession, the mother maintained that she felt that she behaved appropriately insofar as she was seeking to protect her children and she was fearful of what the father might do to them.
There is no evidence before this court that, aside from the inherent risks of being pursued on a road by the mother, the children were in any danger in the father’s care on this occasion.
Moreover, the mother’s conduct in this situation could not be described as child-focused.
Similarly from the father’s perspective, although he may well have been in the ‘right’ on this occasion, it was evident from the maternal grandmother’s discussions with the mother at the commencement of time, that there was a lack of clarity around the arrangements and perhaps a different response on his part may also have minimised the escalation of the situation. The father’s conduct also could not be described as child-focused on this occasion.
Other relevant matters
Against this background and in considering the issues for determination in relation to parenting arrangements, the following matters are relevant:
a)the extent to which the father accepts responsibility for his conduct to the extent that he has admitted or has been found to have perpetrated violence against the mother;
b)the paternal grandmother’s capacity to continue to provide support to the father;
c)communication between the mother and father;
d)the mother’s anxiety about the children having any time with the father and the impact this has on her ability to support the children in pursuing a positive relationship with the father; and
e)whether there are any mental health concerns with respect to the parents and the impact on their capacity to parent the children.
Father’s acknowledgement of his conduct
The father’s evidence, particularly in relation to the violence in the relationship, was to minimise his responsibility for it and to seek to explain the circumstances which gave rise to his conduct. The father did not readily make concessions that would have been reasonable. Having said this, he did ultimately state that he was sorry that he had hurt the mother.
I am satisfied that the father is genuinely concerned about having an ongoing role in the lives of his children. In the course of his cross-examination, the following exchange occurred with counsel for the ICL:
…I suggest to you that every bit of evidence that you’ve given in this case until just now has been to completely distance yourself from responsibility that day – to completely continue to deny and to minimise your responsibility for your part in what happened that day. That’s what I suggest to you, Mr Gould? – – – If I was trying to deny or minimise any part of this, I would have turned around many, many years ago and said, “Well, there’s the children. I want no part of it. I’ve got better things to do with my time” and I would be a whole lot richer and not have this stress put upon me. If that’s what I was trying to do, that’s what I would have done. I’ve run this case for the last four years – do not have a penny to my name, in debt up to my eyeballs, for no other reason than I want to have a meaningful relationship with my children.
Yes? – – – I want to see my children grow up. I want them to be happy, content and I want everything to be in the best interest of my children.
And perhaps the first thing that you could have done, and perhaps the most significant and the most compelling thing that you might have done in order to achieve that end, would have been, as I say, to seriously – seriously and with some conviction – express some really profoundly felt remorse about your part in all of the circumstances that have got us to today. Isn’t that right? – – – That’s correct. And as I say, again – I will say it again – – –…
You thought you – – –? I thought – – – had done that?[19]
[19] Transcript page 60 at line 26 to page 61 at line 3.
The father gave evidence about the anger management course that he had undertaken and appeared to demonstrate a certain level of insight into the factors that trigger his anger and ways in which to defuse anger. In the course of cross-examination, the father did concede that his children had suffered trauma and that as a result they may perceive him yelling at them even though he in fact is simply speaking with a raised voice.
The father also agreed that as there had been a significant amount of time since separation, any time spent with the children needs to be on a graduated basis.[20]
[20] Transcript page 81 at line 23.
The father also acknowledged that if required he would be happy to undertake any further parenting course as directed and undertake counselling provided that these things could be done in a way that did not interfere with his working hours.
The role of the paternal grandmother
The paternal grandmother gave evidence and was subject to lengthy cross-examination as to her role as a supervisor and her inability or lack of desire to put the interests of her grandchildren ahead of her son’s interests.
I found her to be a concerned grandmother who clearly cares for her grandchildren and would like to continue to play an important part in their lives. Having observed and listened to the paternal grandmother in giving her evidence over the course of some two hours, I formed the view that whilst she clearly is supportive of her son, she takes her responsibility to her grandchildren seriously and would prioritise their interests over those of her son should that need arise. The paternal grandmother has supervised the father’s time with the children since orders were made in this court on 24 August 2016.
The mother made a number of allegations about the paternal grandmother’s inability to protect the children from the father’s behaviour whilst in his care and under the paternal grandmother’s supervision. Examples of the paternal grandmother’s alleged failures to act protectively towards the children include the following:
a)during a family Christmas lunch in 2016 where the father was alleged to have raised his voice at the children;
b)where the father is alleged to have yelled at and/or struck W whilst at a shopping centre;
c)on the way home from the (omitted) in September 2016 when the father was in a car accident and he allegedly yelled at the children and scolded them for making him late and thereby causing the accident; and
d)the McDonald’s incident.
The paternal grandmother gave evidence about the family Christmas event that was hosted at her daughter’s home at Christmas in 2016. She stated that as it came time for the father to get ready to take the children home and deliver them to the mother at the end of the day, the youngest child Z asked for another ice-cream or jelly or something of the sort. The paternal grandmother gave evidence that at the time she was also attending to a number of other things for the children including making sure that some clothes that they had bought for the children fit properly and it was in that context that the father raised his voice to the paternal grandmother. The paternal grandmother gave the following evidence in the course of cross-examination:
So when it was time – as they finished their dinner and lunch and thing it was getting closer to go Z said to me, my daughter had made some jelly or ice-cream or something which had – I think it was jelly which had marshmallows on top of them, and he said “Granny, granny, can I have another one?” And at the same time I was trying to get W to wear one of his trousers to make sure that they fit. If they didn’t fit I would return them, but I wasn’t actually paying attention to the time, and it was getting late to drop off the kids, and Mr Gould said to me, “Mum” in a – in quite a loud voice he said, “Mum, forget about the jelly, and forget about the clothes. Just get the kids ready. We have to go. It’s getting late”, and that was the only incident when he raised his voice a little bit more than normal because he was panicking that it was time to get kids back to Ms Gould on time.
The paternal grandmother’s evidence is consistent with that given by the father on this issue. The father conceded that he raised his tone but denied yelling at the children.
In relation to the allegation about W at the shopping centre, the father denied this allegation categorically. Similarly, the paternal grandmother denied that this ever happened.
In relation to the (omitted), the father gave evidence that he did not blame the children for the accident and quite the contrary said as the driver he was responsible. This comment was made in response to a comment from W who said that the accident was the children’s fault for distracting the father.[21]
[21] Transcript page 70 at lines 34 to 44.
The paternal grandmother also gave similar evidence.[22]
[22] Transcript pages 121 to 123.
In the course of questions from counsel for the ICL about what she would do if she had seen the father push or punch one of the children as alleged, the paternal grandmother said ‘if it happened, I would immediately ring Ms Gould or I would personally take the kids back and hand them over to her’.[23]
[23] Transcript page 120 at lines 33 to 34.
The paternal grandmother gave a very detailed description of her version of what occurred in the McDonald’s carpark. Importantly she stated that she initially sought to discuss the issue with the mother and it was only after she was told by her son that he had spoken to lawyers three times and was advised that there was no restriction on the location of the time spent, that she left with him and the children.
The second consideration under section 75(1) that the court must have regard to is whether the other party is reasonably able to pay the spousal maintenance to the applicant.
The husband has given evidence that he does not have any capacity to pay spousal maintenance to the wife.[61]
[61] Paragraph 31 of the husband’s affidavit filed 24 October 2017.
The husband has given evidence that he currently works as a (occupation omitted) for (employer omitted) and that until recently, he has been working approximately 45 to 55 hours per week and earning approximately $1,000 per week although his base pay for 37.5 hours per week is $825 per week gross.[62]
[62] Paragraph 23 and annexure G-61 of the husband’s affidavit filed 24 October 2017.
The husband also deposed to having suffered a ‘vertebral compression’ fracture in his back on (omitted) 2015 and as a result he was unable to work from that time until January 2016.[63] He further stated that he obtained his current role in June 2017 and is on a six month probationary period. He said that he still suffers from back pain and may have a limited capacity to work regular hours in future because of that.[64]
[63] Paragraph 24 of husband’s affidavit filed 24 October 2017.
[64] Paragraph 25 of husband’s affidavit filed 24 October 2017.
In the circumstances and having regard to the husband’s amended financial statement, I am not satisfied that the husband has the capacity to pay spousal maintenance to the wife. This is particularly so, given the orders which I have made in relation to the property settlement above.
In those circumstances, I do not propose to make an order for spousal maintenance and dismiss that application.
I certify that the preceding two hundred and eighty-four (284) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 7 February 2018
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Injunction
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