Guinness & Guinness
[2007] FamCA 1
•5 January 2007
FAMILY COURT OF AUSTRALIA
| GUINNESS & GUINNESS | [2007] FamCA 1 |
| CHILDREN - With whom a child spends time CHILDREN - Family violence - Risk PROPERTY SETTLEMENT - Contribution |
| APPLICANT: | Mr Guinness |
| RESPONDENT: | Mrs Guinness |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | SYF | 3422 | of | 2002 |
| DATE DELIVERED: | 5 January 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Justice Cohen |
| HEARING DATE: | 17, 18, 19, 20, 21, 24, 25 October 2005 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Bizannes |
| COUNSEL FOR THE RESPONDENT: | Ms Reid |
| SOLICITOR FOR THE RESPONDENT: | Anne Marie Proctor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Christie |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Turner Whelan |
These proceedings require determination of contact and property issues. I have already made orders for contact but reserved my reasons. It is appropriate to provide these reasons before deciding the property issues. The contact orders were made on 30 June 2006 and are:
That the children E, born in May 1997, and L, born inAugust 1999, shall reside with the wife.
That the children have supervised contact with the husband subject to the husband’s compliance with Orders 8. to 12. inclusive for a period of 1 year from the date of these orders:
(a)On one weekend day every calendar month such as is available at the contact centre nominated below for four hours each such day or if supervision for such time is not available for the maximum time up to 4 hours which is available.
For the purpose of compliance with Order 2. the wife shall deliver the children to the contact centre nominated at the time appointed for commencement of contact and shall collect them from the said centre at the expiration of the appointment for contact.
That after 1 year from the date of these orders subject to compliance with Orders 10., 11. and 12. the husband shall have contact with the said children from 11.00 a.m. to 5.00 p.m.:
(a)on the 3rd Sunday of each month;
(b)on Father’s Day;
(c)on Christmas Day in each even numbered year;
(d)on Boxing Day in each odd numbered year;
(e)on New Year’s Day in each even numbered year;
(f)if contact is not otherwise scheduled on that day pursuant to these orders on the Sunday of each year occurring on or immediately after the husband’s birthday;
(g)if contact is not otherwise scheduled on that day pursuant to these orders on the Sunday of each year occurring on or immediately after L’s birthday;
(h)if contact us not otherwise scheduled on that day pursuant to these orders on the Sunday of each year occurring on or immediately after E’s birthday unless that Sunday is Mother’s Day and in that event on the Saturday immediately preceding Mother’s Day.
That for the purpose of implementation of Order 4. the husband shall collect the children from and return them to the wife’s home but shall not in doing so venture beyond the front entrance of the land on which the home is situated.
The husband shall have telephone contact with the children by telephoning them on each Sunday evening when he does not have face to face contact with them and on each Thursday evening for not more than 15 minutes per child between 5.45 p.m. and 6.30 p.m.
For the purpose of implementing Orders 3., 4. and 5. the wife shall forthwith in writing inform the husband of the address at which she and the children reside and the telephone number by which the said children can be contacted and shall thereafter inform him forthwith if there is any change in such address or telephone number and of the new address and telephone number.
That within 7 days the husband and the wife shall do all acts and things and sign all documents necessary to complete the registration process with Centacare Contact Service at N.
That each party pay one-half of any fee required by the contact centre for the provision of supervised contact within the time required by the said centre for payment.
10.That the husband attend a pathology collection centre nominated by the separate representative for supervised urine drug screening tests for cannabis not less than once every 14 days and pay the fees for such screening tests.
11.That the husband obtain a written record of each drug screening test result within one week of that test result becoming available and provide a copy of it to the separate representative and the wife forthwith upon receipt.
12.That the husband attend at Dr R, Psychiatrist, at least once per month and provide to the separate representative and the wife written confirmation of each attendance signed by Dr R within 7 days of such attendance.
13.That the Court release copies of:
(a)Dr RO’s Report;
(b)Dr S’s Report; and,
(c)the Orders in this matter;
to Dr R.
14.That each party is hereby restrained from making derogatory remarks about or otherwise criticizing the other to or in the presence or hearing of either child and from permitting either child to be in the presence or hearing of any person who is making derogatory remarks about or otherwise criticizing the other.
15.That the wife shall within 7 days notify the children’s school of the husband’s contact details and authorize release of all information ordinarily provided to parents.
16.That the wife shall provide the children with any letter, card or present sent to her post office box by the husband for the children.
17.That the wife and husband pay to the separate representative within 28 days of notification of the amount outstanding by the wife for Dr RO’s fees, as notified by the separate representative.
18.That the wife attend a parenting after separation course nominated by Dr S and the Court hereby requests that he make such recommendation with 14 days and conveys that recommendation in writing to the Court, and to the separate representative and each party’s solicitor.
19.The separate representative shall within 7 days supply Dr S by prepaid registered post with a copy of these orders.
20.That the reasons for judgment and the property orders are hereby reserved.
21.That costs in the children’s issues are reserved for one month after the reasons for judgment are published.
At the conclusion of the hearing in relation to contact the separate representative asked for these orders:
That the children
E (born in May 1997)
L (born in August 1999)
reside with the wife.
That the children have contact with the husband subject to his compliance with Orders 5-7 as follows:-
a) On one weekend every month, subject to the availability of the supervised contact centre nominated below, if available, for between two (2) and four (4) hours on both Saturday and Sunday or otherwise as offered by the centre, such contact to be on the first Saturday of the month and the Sunday which immediately follows.
b) By telephone on Sunday, Tuesday and Thursday evenings at 6:00pm, to be facilitated by the father telephoning the children on Tuesday and Thursday nights and the mother ensuring the children telephone the father on Sunday nights.
3. That within seven (7) days the husband and wife do all acts and things and sign all documents necessary to complete the registration process with Centacare Contact Service at N (“the contact centre).
4. That each party pay one-half of any fee required by the contact centre for the provision of supervised contact.
5. That the husband attend at a pathology collection centre nominated by the children’s representative for supervised urine drug screening for cannabis no less than once every fourteen (14) days.
6.That the husband provide copies of each drug test result to the wife forthwith upon receipt.
7. That the husband attend Dr R, physiatrist, at least once per month and authorise Dr R to provide written confirmation of attendance to the children’s representative.
8. That the Court release copies of:-
a) Dr RO’s Report;
b) Dr S’s Report;
c) The Orders in this matter;
to Dr R.
9. That neither party say unkind or unpleasant things about the other party or discuss these proceedings in the presence or hearing of the children or either of them, and both shall use their best endeavours to ensure no other person does so.
10. The mother shall within seven (7) days notify the children’s school of the father’s contact details and authorise release of all information ordinarily provided to parents.
11. The mother shall provide the children with any letter, card or present sent to her post office box by the father for the children.
12. That the mother and father pay to the children’s representative within 28 days of notification the amount outstanding by the mother for Dr RO’s fees, as notified by the children’s representative.
13. That the husband and wife pay one-half of the children’s representative’s costs.
14. That the mother attend a parenting after separation course.
15. That the children’s representative be discharged.
The husband’s application for contact in its final form was:
1. That Orders 1, 2 (a) & (b), 3, 4, 6, 7, 8, 9, 10, 11, 12 and 14 as set out in the minutes of proposed orders of the Children’s Representative be made.
2. That in lieu of Orders 5 as sought that the husband attend at a pathology collection centre approved by the Children’s Representative in an area local to the husband for supervised drug screening for cannabis no less than once a month.
3. That at the expiry of six (6) months subject to the husband complying with orders 5, 6 and 7 and that such results show negative cannabis activity the husband obtain regular unsupervised contact with the children E D.O.B. May 1997 and L D.O.B. August 1999 on the following basis:
a) regular overnight contact with the children one weekend each month between the hours of 6:00pm Friday night until 6:00pm the following Saturday night.
b) such contact to be alternated between one month in Canberra and the alternate month in Sydney and thereafter in alternate succession.
c) on such occasions as the husband attends in Canberra for contact that a suitable meeting point be established between the husband and the wife for the handover and subsequent delivery of the children to the wife.
d) on such occasions as the wife brings the children to Sydney for overnight contact a suitable meeting point be provided for the handover of the children and their subsequent picking up.
4. That after the expiry of 12 months from the date hereof and subject to the compliance with the conditions by each party the husband have contact with the children for one-half of the school holidays of the children and each alternate Christmas day and each alternate child’s birthday in each alternate year.
In his solicitor’s closing address the husband agreed to supervision for a period of six months and asked that it take place at The contact Centre, N. The wife was unwilling to permit the husband to have contact unless the contact was supervised. She asked that contact take place at and under the supervision of the M Centre, Canberra. Such contact would impose its own restrictions. The husband resides in S, a Sydney suburb, whereas the wife and children reside at an address in the ACT which had not been disclosed to the husband by the wife at the time of hearing. One of the issues between the parties is whether this address should be disclosed. The evidence suggests that the husband may already know it. Contact with the children will inevitably disclose it if he does not.
The orders that were made on 30 June 2006 identify the children. At the time of hearing the husband, who is the applicant, was aged about 41 years and conducted his own business from the former matrimonial home in S. He had a relationship with Ms V. The wife is about 4 years older than the husband and is a Commonwealth Public Servant. The parties ceased living in the same home in February 2002 after having married in January 1994 and separated under the one roof in January 2002. In January, the wife and children went to stay with her parents in M, Victoria until April, then moved to Canberra where she resumed much the same Commonwealth Public Servant employment as she had had in Sydney. She had lived and worked in Canberra until the parties married.
The husband’s opening argument was to the effect that he adopted the recommendations in relation to contact of Dr S, a Canberra forensic and clinical psychologist, who was appointed by the Court to provide a family report. It is “Exhibit B” and was made on 26 May 2004. The husband pointed out that, if contact is restricted to Canberra, it would be either in an hotel or the like or in public places and not in a normal and natural environment for contact between children and a parent. He wanted to achieve contact in Sydney by changeover at a middle point between Sydney and Canberra, but if the Court was to decide that contact should be supervised he would accept such contact rather than no contact but asked that it be at the contact centre in N.
Broadly, Dr S recommended that the children reside with the wife in Canberra and the husband have unsupervised contact with the children on each alternate weekend and for half of the school holidays. He was of the view that the wife had unduly made contact difficult for the husband and, if this persisted, she should be required “to return to live in Sydney.” He found no reason to be concerned that the children were at physical risk while in the husband’s care, but was concerned about the emotional risk to the children which he felt was raised by the parents’ attempts to undermine one another in the children’s minds if these continued. He recommended that the parties read an academic tract on the harm done to children when their parents are involved in high level conflict with one another and that they undertake four sessions of counselling to help them distinguish their emotional needs from those of the children.
The wife alleged the husband is a violent and irrational substance abuser who could not be trusted to behave responsibly and safely if and when he has the children in his care. It was said that he has a proclivity for behaviour which is likely to be a very bad example for the children. Because he had not received suitable therapeutic help and is resistant to it, it is submitted he would not be likely to change for the better and, if contact is permitted, the only suitable contact is supervised contact. The wife claimed to fear the husband. That is why she did not wish her address to be known. She said that would make it more appropriate to use the contact centre in Canberra as the supervisory agent and pointed out that the husband did not nominate any suitable individual as a supervisor. She alleged the children also fear the husband.
The separate representative’s stance before evidence was given was that the evidence did not disclose enough to make the Court feel there was no unacceptable risk inherent in unsupervised contact and that the Court should be concerned because of the evidence that, if there is no supervision, the children might be exposed to risk from the husband’s behaviour. He was said to be unpredictable and that there is realistic doubt about his ability to control his impulses. The Separate Representative, nevertheless, conceded that the children enjoy his company. The separate representative strongly relied on a report made by Dr J, an experienced psychiatrist, on 21 May 2002. She had been engaged by the husband for medico-legal purposes and is not his treating psychiatrist.
The husband’s response to the opening cases stated by each of the other parties was to assert that he had improved himself, is receiving psychiatric help and is drug free.
The parties were already living in the former matrimonial home in S when E was born in May 1997. The wife went on leave from her employment for 12 months after the birth. After L’s birth in August 1999 she took a shorter period of leave then recommenced her job part-time. This lasted for a year or two before she returned to full-time work. The husband usually worked full-time until separation. In fact, he usually worked very long hours.
The parties are in dispute over the extent to which the husband cared for the children during cohabitation. The wife says he did very little, he says he helped care for the children when he returned from work and every weekend. He says the children went to day care when the wife was at work but that he would, in concert with the wife, do all the things a parent might be required to do to care properly for the children from the time they woke in the morning until they went to bed in the evening. He says what he did amounted to shared care, although he did not suggest he did as much as the wife. The wife’s evidence is that he did very little.
Neither of the parties are credible witnesses. Both demonstrated a strong inclination to exaggerate to promote self-interest in the course of the hearing. I do not accept what either has said about the extent of the husband’s care of the children before separation. I think it is more probable than not, given the situation the parties were in, that the husband involved himself more with the children than the wife has admitted but less than he has claimed. It is probable that his relationship with the children was such that both parents assumed that the children should live principally with the wife on separation because they were more attached to her, but that the children had strong and appropriate ties to the husband.
Originally the wife asked the husband to vacate the former matrimonial home so she could remain there with the children. He refused. His refusal was not as unreasonable as might immediately appear. He conducted his motor mechanic business on the premises. It had been established there for some years.
The wife eventually left and took the children with her. The husband says that the wife said she was moving to a flat in W, a suburb quite close to S. The husband made no attempt to prevent her from going and taking the children and the things she wanted, although he was not seeking the separation and she had not told him the address in W where she intended to live. Instead, she took the children to her parents’ house in M, Victoria.
The husband says, and I accept, that if he had known she would do that he would have attempted to prevent the children’s move because it would interfere with their right to have contact with him. Later, when the husband questioned the wife about her actions, she said she did intend to live in W when she left the former matrimonial home but at the last moment changed her mind because the rent at W was too high, so continued on to M.
I accept the husband’s version of what occurred. The wife, in her affidavit, avoided saying that she told him she was moving to W but admitted she did so when she was cross-examined. Her admission was made in a manner which strongly infers that she had made up her mind to live elsewhere well before the actual day she and the children vacated the former matrimonial home. Although she did not admit this was her reason for distancing the children from the husband, she made it clear, because it was part of her case for the orders she sought, that she did not wish the husband to have free time with the children because she believes, and probably believed well before she left for M, that the husband has a propensity for violence towards others, although not the children, and is impulsive, inconsistent and unpredictable. She now wishes to avoid the children being exposed to the behaviour she says is associated with these characteristics. It is highly likely that she had the same wish at the time she left the former matrimonial home with them. The impression the wife left with me is such that I think it is much more probable than not that she felt that she should create as much impediment to the husband’s continued involvement with the children as she could and did not intend to live at W but always intended to move to Canberra, where she could continue working as a Commonwealth Public Servant, and attempt to hide the children from the husband.
Only two days after the wife left the former matrimonial home she informed the husband that she and the children were living with her parents at M. The husband then telephoned the wife on most days and was able to speak to the children, but he did not visit them. The wife and children left M in late April 2002 and, thereafter, he was not able to contact them because, although his mother-in-law told him they had moved to Canberra, he did not know any contact details. His mother-in-law refused to supply them and the wife did not contact him.
The wife says she did not want the husband to know where they were living because she was afraid of the husband. She claims the husband was violent and abusive towards her during the marriage and that the children had been witnesses to incidents when this had occurred. She said, in her affidavit, that “[o]nce I was no longer living with my parents I was afraid that the applicant would find me and assault me.” I do not believe this. It is an attempt to manipulate the Court and justify her actions in hiding the children.
Nevertheless, after she hid, there was an incident which shows the husband’s impetuosity and lack of self-restraint. In early April the wife applied for a Domestic Violence Order in the ACT Magistrate’s Court. An Interim Order was made ex parte. When the husband appeared unrepresented on 6 June 2002, he consented to final orders. After these were made by consent and without admissions the parties were still in court and the magistrate was still sitting when the husband spoke to the wife in a manner which demonstrates his lack of self-control. The husband said publicly “You can rot in hell woman.” His words are recorded in the Court transcript.
There are only a few incidents in the wife’s affidavit to support any claim of actual resort to violence directed by the husband at the wife. The allegations of physical violence are few and the extent of it is not, relatively speaking, great, although, on 18 August 2002 and 2 March 2003, he disparaged her and threatened to kill her. The first threat was a breach of the order of 6 June 2002 which was to endure for 1 year and which prohibited the husband from threatening or behaving offensively toward the wife.
After the husband had initiated proceedings in the Family Court, in May 2002, the parties agreed to interim orders which permitted the husband to travel to Canberra for contact with children.
In her oral evidence, the wife was asked to detail the husband’s assaults on her and the children. She said her husband spat on her and “abused” her before L was born and on another occasion when she was pregnant with him the husband had pushed her. She also said that once he “pulled” her breast and during another incident he “tried to choke” her and that there were no other assaults but that she always had concerns for her safety. In the course of the same part of the cross-examination, it was pointed out that in mid 2000, only about 9 months after L’s birth, she had attended a Drug and Alcohol Centre to support rehabilitative efforts which were being made to overcome the husband’s then habit of abusing substances. She had, when asked, told a worker at the centre that she had no current concerns for her safety or that of the children at the hands of the husband. Her efforts to extract herself from the inference of her inconsistent statements were quite disingenuous. She said at first she might have lied at the G Hospital, then sought to strengthen her position, claiming to be positive that she had lied. I am satisfied she lied on oath when she said before me, that she had lied to the G Hospital employees but, despite the husband’s denials, I accept that the husband had pushed her, pulled her breast and put his hands to her throat, but I do not accept that the incidents were as serious or as violent and frightening as she claims.
A few incidents which occurred after May 2002 are worthy of note and the incidents in August 2002 and March 2003 ought to be discussed. All are to be seen in the light of the orders which were made in May 2002. When the matter came before a registrar on 2 May 2002, the registrar made orders, which were not consented to, for the husband to have contact with the children at a contact centre in Canberra. No request for supervision had been made. The contact centre was used because the wife did not wish to disclose her address. The children were given the right to telephone contact 3 times each week. No provision was made for the frequency of face-to-face contact; almost certainly because the matter was adjourned to 20 May 2002 for an interim hearing. On the adjourned day, again without consent, interim orders were made. These provided for fortnightly contact from Saturday morning to Sunday afternoon in school term. That contact was to be in Canberra and Sydney alternatively. Contact was also afforded for half of each school holiday period, provided the husband would personally provide the children’s immediate care. The previously ordered telephone contact was continued. There was no requirement of supervision for face-to-face contact. When contact was to be in Sydney, delivery and collection was to take place in S. When contact was to be in Canberra, changeovers were to be at the home of the wife’s brother.
The first incident, other than the consent domestic violence order, which occurred after 20 May 2002 was in August 2002. The husband had had the children for the weekend and was to return them to the wife at McDonald’s, in a Canberra suburb. According to the wife, the husband said to her “You’re a slut. I’m going to take you and your family out. You are a low life bitch. I will screw you, I know where you live. If it takes me four months, I will get you. I would gladly go to gaol for killing you. You’re a bitch and a slut.” He then spat at her. She claims to have been frightened and says the children were frightened too. The husband did not effectively deny these claims but justified his actions by claiming that the wife did not arrive until hours after the arranged time and that he had to drive back to Sydney after delivering them. It seems from the wife’s affidavit that she resented the fact that the husband had taken the children to Sydney for the weekend although she had asked him to spend his time with them in Canberra. It is uncertain where the weekend contact would have been had the orders not been departed from by consent.
The husband was charged with breach of the apprehended violence order which he had consented to. If the wife and the children had been as fearful as she claims she would not have failed to arrive to collect them on time. It is noteworthy that the magistrate made no order against the husband except one which he must have known was redundant; to obey the domestic violence order which had originally been made. Despite this, the husband’s behaviour was at least as unreasonable, if less calculated, as that of the wife and, whereas the wife’s conduct was subtle and unlikely to adversely influence the children, that of the husband was an extremely bad example to them. I think this incident is a typical manifestation of the wife’s unreasonable behaviour achieving its end, in causing the husband to behave as she must have expected; badly, because of his lack of self-control. I do not accept that she or the children were driven to be fearful for their safety during this incident.
The incident of March 2003 was occasioned by much the same circumstances as that of August 2002. The husband claims that he became angry with the wife because she had resisted contact between himself and the children. The wife admits that there was no contact, either face-to-face or by telephone, from the 16 February 2003 until 31 July 2003. She says the husband made no attempt to see or speak to the children in that time. The husband says contact ceased because the wife “stopped co-operating.” Although the husband commenced telephone contact with the children in late July 2003, he did not have further face-to-face contact with the children before the hearing. He seems to have taken no steps to regain such contact in the intervening period.
The actual incident in March 2003 seems to be typical of the husband’s behaviour. It is not substantially disputed by the husband. The wife says he abused and threatened her with this outburst: “I am going to take you down. You are a slut. You are dead. I am going to get a bullet through your head. I will track you down and you are all dead. Your life’s not worth living. You are all dead. I’m going to get you.” This resulted in an appearance in a Local Court where the husband was charged with breaking the domestic violence order, convicted and given a bond to be of good behaviour for 12 months. From the context of his threats, it can be seen that his likely lack of knowledge of where the wife and children were living was a source of his anger and frustration. His threats, then and in August 2002, if believed by the wife to be genuine, would have warranted her refusal to disclose her address, but she did not hold this belief.
I am quite satisfied that the cause of the lack of contact between the husband and the children between February 2003 and July 2003 was a consequence of both parties’ behaviour but was essentially because the husband did not wish to go to Canberra to see the children and the wife would not “cooperate” by permitting him to have all his contact in Sydney and by meeting at a halfway point between Sydney and Canberra for all changeovers. The husband must have believed that, if the interim orders were not to become entrenched, he should not accept them and/or perform them or, simply and selfishly, he did not want to suffer the inconvenience they imposed. He was probably moved by a combination of both motives. The parties had had a dispute in February 2003 because the wife claimed that while the children had spent part of the Christmas school vacation with him he worked and failed to personally care for the children at all times, contrary to the interim orders. No harm came to the children whatever the situation was. The wife should have known that she was inflaming the situation between them by her complaints and general relevant behaviour. She admitted that much in her oral evidence. I think she did know and did it deliberately.
Demonstrations of any lack of self-control and tendency to violence in the husband are, according to the wife, not limited to actions specifically directed at her. There have been incidents before separation, a fairly recent incident involving Ms V and another incident which involved the wife somewhat indirectly.
The separate representative purported to rely on a bundle of documents to establish the husband’s behavioural history. However, although a list of these documents was tendered and became Exhibit “A”, the bundle of documents was not tendered and it was not, therefore, admitted into evidence. None of the individual documents listed were tendered.
I accept that the wife has been truthful in making the following allegations which are based on her own observations and experiences and admissions by the husband:
a.The husband suffered from mood swings.
b.He has threatened her. The threats included threats to kill her.
c.He has spat in the wife’s face.
d.He grabbed her around the throat in front of the children. He pushed her when she was pregnant. He also pulled her breast.
e.He has deliberately damaged household objects.
f.He put E on the roof of a shed when she was a toddler and failed to supervise her properly. At other times, such as when the wife used to go shopping and leave the children in his immediate care, he did not always supervise them properly.
g.He has attended the G Hospital under the care of the Acute Care Team for drug and alcohol addiction.
h.He used marijuana frequently.
i.He was referred to and attended at least two psychiatrists for treatment, one of whom wanted him to become an impatient for 2 weeks. Both prescribed medication which he refused to take.
Included in the allegations of the husband’s violent and erratic behaviour are two incidents where the wife claims the evidence proves that the husband committed assaults when he acted in ways which are commonly referred to as “road rage.” In each incident it is alleged that, after becoming dissatisfied with the way other motorists had behaved, he intimidated them, assaulted them or attempted to do so. The earlier incident is said to have occurred when L was about one year old in mid 2000. The second occurred in May 2003.
Of the earlier incident, the husband told Dr J that he went to the G Hospital in mid 2000 because he felt extremely depressed and this culminated, in the words of Dr J, in “an angry outburst at a fellow driver” which was “out of the context of the situation.” Despite this, his oral evidence in cross examination was that it was “a lie” that this was the reason he attended the G Hospital Mental Health Service on 28 June 2000. The wife alleges that during this incident the husband was holding L in his arms and that E, who was about 3, was in his car. Because of the husband’s admission to Dr J, I accept that he became angry with a motorist over a parking space at the time but due to the lack of other effective evidence of the situation I am not satisfied that the associated allegations which have not been admitted occurred.
In the incident of 20 May 2003 it is alleged that the husband followed a female motorist and verbally abused and threatened her. Although the husband admitted recalling that he had visited a police station to complain about the incident, he denied recalling the incident. As there is unsatisfactory evidence which might prove the relevant allegations, I shall not take it into account despite my impression, when he gave this evidence, that the husband was lying.
A more recent alleged incident involved Ms V. By April 2004 she was in a romantic relationship with the husband. She provided two affidavits in his support which were relied on by the husband. One affidavit was sworn on 20 April 2004 and the other on 13 October 2005. Yet, on the 7 January 2005, Ms V complained to the police in a formal statement that she had been assaulted by the husband. She said that 20 days earlier, in response to a very minor disagreement, he had become extremely angry and had pushed her. When she ran off out of fear, he followed her, grabbed her, then put her in a headlock and, after dragging her around, tripped over her foot so that both fell to the ground. Ms V regained her feet because the husband pushed her up but she fell over again and, on doing so, struck her head on the ground. The husband then commenced to kick her. The latter part of the action took place in the husband’s father’s presence.
During cross-examination, Ms V said that 80% of the statement is untrue. I did not and do not believe her. I think it is highly likely that what she told the police in her statement is true. In addition to the claims in it of assault, she said in her statement to the police that she had lived with the husband since June 2003 and in the period she had done so he had threatened to kill her, had hit her more than once and smoked marijuana “nearly every day.” She said she was afraid of him at the start of the incident because she had seen him “snap” before. Ms V did not impress me as a person who could be trusted to supervise contact between the husband and the children in a responsible manner. She is likely to help the husband evade the consequences of any irresponsible behaviour which might disadvantage the children when they are in his care.
Another to allege she had been threatened by the husband is the wife’s mother, Mrs W. She said the husband swore at and verbally abused her and, more than once, threatened to kill her. She particularised his efforts of 2 March 2003 when he also threatened to kill the wife and of 23 April 2005. She also said she had noticed his “extreme mood swings.” She obtained a domestic violence order against him.
Although the wife’s mother demonstrated a high level of animosity toward the husband when she gave evidence, I regard her evidence as true. Her animosity is probably based on her experience of the husband. In general, her view of him is confirmed by her husband. There is no reason to believe he swore to any untruths. In fact, the husband admitted in cross-examination that he can be unpredictable. He also admitted saying what Mrs W alleges he said to her on 2 March 2003 and admits the wife’s parents are terrified of him.
The husband also admitted abusing marijuana. However, he said he had given it up in January 2005 as a result of his determination to do so with the assistance of counselling. He admitted it had been common for him to smoke 30 cones each day. He justified his use by saying that it kept him going because it was an outlet for him after the children were taken away. Presumably, he meant to convey that it helped to resolve his anxiety and stress.
I do not regard it as coincidental that the husband claims he gave up marijuana in January 2005. Ms V’s statement to the police at that time accuses him of smoking it nearly every day during their relationship which had commenced in mid 2003. The husband is highly likely to have known what she said in this statement when he gave his evidence about giving up smoking marijuana in January 205 and points to the fact that he has since had urine analysis for illicit drugs which have not detected any.
The wife alleges the husband smoked marijuana frequently during the whole period of their relationship and that his demeanour and behaviour changed when he did so. He would become irrational and make “wild statements and allegations.” His moods would swing from happiness and elation to violence and dejection. The husband consulted psychiatrists and attended the G Hospital for his substance addiction. The wife alleges the husband refused the treatment offered in each instance. She says he cannot be regarded as likely to be free of the influence of drugs when he has contact with the children. This is one of the bases for her insistence that contact be supervised.
A major matter which she relies on is pertinent to the threats he has made and his potential for violence. She says he illegally possessed or possesses a number of guns. The husband denies this, but agrees that Ms V possessed a gun, but disposed of it.
The wife’s evidence is that the husband kept guns at home during the parties’ cohabitation and, once, after separation, L told her he had seen a gun in a cupboard in the husband’s home during a contact visit. The wife has informed the police of the possibility of the husband having illegal guns at home. Since separation there have been two searches by the police. They found no guns. The last search was in 2004. I am not satisfied on the evidence that the husband currently has any guns, although I accept he has had them in the past. There is much to suggest that the wife has relied on the husband’s past ownership of guns as a tactic rather than out of genuine fear. After all, she did not do anything about them when the parties lived together.
I am satisfied the husband has a volatile temper. As I have already said, I am not satisfied the wife has as much fear of him as she claims. I think she has used allegations of fear to justify her non-disclosure of the children’s whereabouts which she has used to aggravate the husband in the belief that to do so would probably cause him to do something which would assist her quest to exclude him from their lives. I accept that his behaviour has been such that she believes she is justified in taking this approach.
Apart from his lack of credit, the two most significant observations I have made of the husband during these relatively prolonged proceedings are that, although he seems to be smouldering with anger and seems set to lose his self-control if challenged, he did not do so during the proceedings despite extensive and very challenging cross-examination in circumstances when he must have been under considerable stress apart from that resulting from being so rigorously cross-examined. I observed that both opposing counsel, Ms Christie and Ms Rees, succeeded in putting the husband under considerable pressure for extended periods. It is of great significance that the husband has never shown any aggression or undue impatience with the children. It is of equal significance that the wife said, in oral evidence, that, in hindsight, there would have been less stress if she had allowed him more freedom in seeing the children. I have no doubt that she meant that the husband’s stress would have been reduced, his adverse reactions would have been avoided and she and the children would have been less stressed as a consequence.
There is evidence from two psychiatrists and a psychologist. I have already identified Dr J and Dr S. Dr RO, a well-known child and family psychiatrist, is the other psychiatrist. Her affidavit annexing her report was relied on by the children’s representative.
The earliest report is that of Dr J. It was made in May 2002. I have little doubt that the husband lacked candour when providing her with his then recent history. He told her of his “substantial” cannabis abuse and of mood and behavioural disturbances associated with it. He claimed to have never resorted to physical violence except in self-defence and that he had never struck the wife. He said it was the wife who had struck him and that she had the habit of goading him into losing his temper. He would, in reaction to her badgering, “verbally snap”. Although I think that it is probable that the wife has behaved to some degree as he told Dr J and repeated in evidence, I do not accept that he was candid about the extent of his reaction or his other behaviour. He told her he had not used drugs since December 2001. I am not satisfied that between that time and May 2002 he had been so abstinent despite a negative drug screening result. He said he only used it episodically, although he admitted use over many years. I think it is likely that he had used it virtually without significant break over the years.
Dr J had access to and read material which did not independently become part of the evidence before me. From her report, I doubt whether any of the material significantly altered what would otherwise have been her opinion. It seems to be largely based on her observations of the husband. She did not seem to accept all the history he gave. There is one important opinion Dr J reached which is not undermined by any misinformation he gave. In this particular instance, I accept that the information he gave was true. The observations of Dr S prove this was then the situation. He told Dr J the children do not fear him. Dr J concluded that such an attitude to him would be inconsistent with any repeated violent aggression in the family home. This aspect of Dr J’s opinion is convincing, highly relevant and not inconsistent with the wife’s claims of infrequent episodes of actual violence.
Dr J concluded the husband does not have a personality disorder but has behavioural disturbances which are a manifestation of poor stress management and cannabis abuse. She said that he demonstrated nothing when seeing her that would make it risky for the children to have contact with him without supervision. She recommended that he “continue” with drug and alcohol counselling and that he learn strategies to help him manage stress. Presumably, he would need some form of educational counselling to do this.
Of course, Dr J’s opinion must be judged in light of her limited access to information, including her failure to consider any input from the wife. It cannot be overlooked that she was not cross-examined because, although she was engaged on behalf of the husband, her affidavit annexing her report was tendered, rather than read, by the children’s representative. In the circumstances, I am of the view that her opinions are undermined a little because they have not been subjected to testing, but they are not so compromised that they should have no, or only a little, weight. I think her opinions are largely based on her observations of the husband together with a sceptical analysis of what he told her.
Dr S interviewed the husband and wife, Ms V and both children. He observed the children with the husband and also with Ms V and administered varying psychological tests of his choosing to the husband, wife and children.
In my opinion, a highly significant result of his participation in these proceedings is his observation of the children with the husband. Despite having not seen their father for more than a year and despite the wife’s claim that the children feared him, both wanted to see him and E was said to be “enthusiastic” about the prospect. They were relaxed with him and enjoyed the contact. Both children said they wanted regular contact with him, but said it should be supervised and at a Canberra contact centre. Dr S regarded the imposition of this condition as the result of the wife’s influence over the children. I have little doubt that this is correct. Both children told Dr S that contact would interfere with their sporting activities, yet E told him that she enjoyed visiting her father at his house. The inference is that the children’s expressed need to play sport in preference to seeing their father has also been the product of the wife’s efforts to influence them. L wanted regular and frequent face-to-face contact but was not so keen on telephone contact. Dr S attributed his resistance to telephone contact to his age.
A much more concerning instance of the wife’s influence was disclosed by L who said he thought the parents had separated because the husband “has a gun”, his “gun would kill my mum” and “he wants to kill my mum.” L told Dr S that either his mother or grandmother told him this. Based upon their evidence and my observations of the wife and Mrs W. I am satisfied that it is more likely to have been the wife but could have been both. Mrs W demonstrated a very high level of animosity toward the husband and seemed to feel justified in undermining him to the children. On 23 April 2005 he had driven to Mrs W’s home in M from Sydney with Ms V to see the children despite orders which had been made in October 2004 by consent providing for contact at a contact centre. The children were there and in my assessment Mrs W acted somewhat inappropriately in the manner in which she largely refused his request for immediate contact. This incident occurred at least partly in the children’s presence. In saying this, I am not suggesting the husband acted appropriately, but that Mrs W inflamed the situation by her defensiveness. I shall give my reasons for finding that probably the wife, at least, informed L that the husband wanted to kill her when dealing with the evidence of Dr RO.
Dr S found that both children’s good emotional and intellectual status and social development demonstrated that each party was a competent parent. Dr S, according to his assessment, thought both parties attempted to deceive him by portraying themselves in an inaccurate and favourable light, especially the husband.
The other findings made by Dr S which seem to me to be significant are:
a. neither parent seemed dysfunctional;
b. the husband had given up cannabis for the prior two years;
c. in seeing counsellors for his drug use, he was not seeking to help himself overcome it but was seeking to deceive others for his own purposes. No doubt the others would include the Court;
d. although the husband does not have a personality disorder, he has traits which make him “a very difficult person to deal with”;
e. his liability for involvement in conflict is heightened and he lacks inhibition and containment in the face of frustration which indicate that he has made threats to the wife, although, if there has been violence towards her, it has been episodic rather than chronic;
f. the wife is likely to have aggravated the latter situation by her post-separation conduct with respect to contact with the children;
g. the children did not demonstrate any fear of the husband despite the wife’s claim to the contrary;
h. credit for the children’s good emotional health should be given to the wife as their primary carer;
i. the children have been exposed to the parental conflict and the wife’s efforts to prevent contact have undermined their relationship with the husband to the extent that it will make it difficult for the children to build a reasonable relationship with him even with regular contact;
j. there are no concerns for the children’s physical safety arising from contact with each parent but there are concerns about their emotional and psychological development arising from the potential for each party to undermine the parental role of the other;
k. contact once a month in a hotel or the like is “very artificial and unhelpful” to the development of a proper relationship between the children and their father. That is why Dr S favoured contact in Sydney;
l. Sporting and recreational interests should not be permitted to interfere with regular contact.
I am highly impressed by Dr S’s conclusions and his reasons. It is a pity that his recommendations for the parties’ re-education are somewhat optimistic. He, like the other experts, read material which was not adequately proven. I am not of the view that this material influenced his opinions much at all. He relied on his observations, the tests he administered and only part of what the parties told him. It is clear that he was quite sceptical of the versions of the facts they related and found them to be quite untruthful and manipulative.
Dr RO’s report is an annexure to her affidavit sworn in mid 2005. She interviewed each party alone and with the children and interviewed the children both together and separately in April and May 2005. She gave oral evidence in August and October 2005. In her report, Dr RO recommended contact in Sydney once each month during daylight hours for 6 hours to be reviewed after 12 months, when she considered that overnight contact should be recommended if, in the meantime, random urine tests of the husband which she felt should be undertaken to screen for illicit drugs proved negative.
One of the things to emerge from Dr RO’s report is the extent to which the wife actually undermined the children’s relationship with the husband. Dr RO reported that E told her the wife “tells me stories about” how the husband had tried to kill the wife. As I have no doubt E told Dr RO this and that she was old enough at the time to be unconfused about what the wife told her, it is highly likely that it was the wife who told L something much the same. Although L told Dr S he did not know whether it was his mother or grandmother who said it, if only one of them did so, it is much more probable that it was his mother.
The interview between Dr RO and L was even more revealing about the extent of the wife’s efforts to undermine the children’s attachment to and feelings of need for contact with the husband. Dr S’s report makes it clear that he had already been influenced by her to reject his father to some extent well before the time he saw Dr RO. He told her of a number of allegations which have been made by the wife as part of her case. They were matters he could not have independent knowledge of and, at 5 ½ years of age, should not have known of them. Such knowledge could not have benefited him. He said, and I accept that it is the fact, that the wife had told him these things. They are listed in the first paragraph of page 7 of Dr RO’s report. The harmfulness and insidiousness of the wife’s behaviour is to be seen from the fact that although L told Dr RO he did not know if he wanted to see his father because of what he had been told, he regarded his father as “pretty nice” to him. He was, nevertheless, unwilling to spend overnight time with him. He had developed much less need for the husband than he had when he was interviewed by Dr S.
When the children were seen with the husband, both were quite standoffish. One should not have expected this, despite a year having passed since Dr S had observed that they were comfortable with their father. Little else could have happened between the children and the husband to cause their increased distancing from him. The wife’s adverse influence must have been the major cause. Nevertheless, it cannot be ignored that the husband simply failed to take advantage, for the children’s sake, of the face-to-face contact which was available through contact centres and, in doing so, must have contributed to the deteriorating relationship. Telephone contact was not sufficient to overcome or ameliorate the wife’s adverse influence and L, in particular, did not enjoy it.
Dr RO found that L, nevertheless, still has a “positive connection” to the husband and that E, although more ambivalent towards him, still wishes to “include him in her life and that neither child is intimidated by the husband.
Dr RO’s assessment of the parents is crucial to her recommendations and, for the purposes of the Court’s obligations, its accuracy is of great relevance to the weight the Court ought to give to her recommendations. Although the wife has, in Dr RO’s mind, deliberately and unjustifiably attempted to undermine the children’s image of and relationship with the husband for her own purposes and should not have done so and should not continue to do so, Dr RO has a significant degree of sympathy for the wife’s stance. She seems to have largely accepted the wife’s version of relevant events. She has not formed a very complimentary view of the husband. Correctly in my view, she did not accept much of what he told her about significant matters such as the behaviour the wife complains of, including his tendency to violence and abuse of illicit substances.
Dr RO also read material which did not get into evidence and which has not been proven. As in the case of the two other experts, I hold a firm view that nothing she read which was not proven has adversely affected her opinion of the husband. The same can be said about the exaggerations and inaccuracies in the history provided to her by the wife.
Dr RO found that the husband was difficult to diagnose because of his unpredictability and deceptiveness, but seems to have accepted that he has anti-social and adverse personality traits. She could not say whether or not illicit drug use was a continuing factor in these. It is a paradox that the husband’s case is, in my mind, stronger if his illicit drug abuse is continuing rather than, as he claims, had ceased in early 2005. In the latter event, his undesirable personality traits and inclinations would not be as easily overcome as they would be if they were largely caused by drug abuse. They would substantially resolve, if he would give up his drug habit, if he could.
Despite her adverse views of the husband, Dr RO said that the husband is not a present risk to the children. She explained that when they are older, if they become more assertive or inclined to challenge authority, including parental authority, and are less willing to please, he may react angrily toward them and cause them to become more detached from him with a resulting possibility of emotional damage to them. Dr RO concluded her report by saying that, if the husband remains drug free, she did not see the necessity for supervision provided the husband “continues” to receive appropriate psychological help to overcome his volatility and gain greater self-awareness. Dr RO’s reference to “continues” is a reference to the husband’s claim that he had been seeing a Dr R, psychiatrist, to overcome his difficulties by gaining greater self-awareness and was also doing an anger management course with Interrelate. Dr RO, although sceptical, assumes that a requirement of contact is that he remains drug free. She recommended that handovers be conducted in a manner which will avoid contact between the parties.
In oral evidence, Dr RO explained that she advocated monthly contact because she wished to maintain the children’s contact with the husband at a level where it is enough for them to overcome the false and unflattering picture the wife paints of him and make them realise that he is loving and kind to them while not becoming too dependent on him. To become too dependent would make them more vulnerable to emotional harm resulting from his volatility, selfishness, unreliability, aggression and other adverse traits he might not be able to overcome. The husband’s solicitor eventually suggested to Dr RO that it might be a good idea for a period of supervised contact, drug tests and continuing involvement of Dr R in the husband’s managerial and psychiatric help to take place before less restrictive contact should take place. Dr RO agreed. She said 6 months would be appropriate.
Although I regard psychiatric treatment as having a reasonable chance of improving the husband’s relevant behaviour, I am not in favour of other types of counselling for him. He would attend, but is unlikely to listen to or accept what the counsellors say. He would probably go through the motions of counselling in order to achieve his tactical aims. It is unlikely to be of benefit.
Section 68F of the Family Law Act requires the Court to consider specific matters so far as they are the subject of substantial evidence when deciding what is in the child’s best interests in proceedings for contact and related orders. A child’s best interests is the paramount but not necessarily the only consideration in such proceedings. One must consider the convenience, needs or feelings of the parties and the practicability of matters which may play a part in deciding where contact changeovers should take place or where contact itself is to take place if it is to be supervised. It is appropriate to deal with the specific matters which must be considered under S68F in the order they are enumerated in the Act.
S68F(2)(a) The wishes expressed by the children and factors relevant to their weight. - The children’s most recently expressed wish is to have supervised contact at a Canberra supervision centre. It is highly likely to be a product of the wife’s influence. The children do not have any other reason for their attitude. It is inconsistent with their lack of fear of the husband and their positive experience of face-to-face contact with and historical attachment to the husband. The children do not seem to appreciate why they have chosen to nominate supervised contact. Given the children’s ages, I do not accept that their level of understanding is such that this expression of their wishes ought to be given much weight.
S68F(2)(b) The nature of the children’s relationship with each parent and significant others. - The only significant others are the maternal grandparents and Ms V. I feel that the relationship between the husband and Ms V may not endure. In any event, the children are comfortable with but not close to her. Whether or not she maintains her relationship with the husband should not influence the orders which determine the children’s future. The husband’s parents live in Germany.
I am satisfied on the evidence that the children have a normal relationship with their maternal grandparents, but that, as they live in M, contact with the husband will not undermine the attachment they have to the wife’s parents. However, I am quite concerned that the maternal grandmother’s attitude to the husband will be obvious to the children. She conveyed it very clearly when she gave evidence. It is of great animosity and condemnation and is likely to adversely influence the children against the husband, especially if they do not experience enough of him to make their own assessment from their own experience of him.
The children are more attached to the wife than to the husband, but they appear to retain a strong attachment to the husband, want to see him and do not fear him. The wife is proven to have attempted to alienate the children from their father and has succeeded to the extent that they are at greater risk of emotional damage than would otherwise be the case. They can better resist continuing harm from their perception of the wife’s attitude to the husband and her probable continuation of her efforts to distance them from him by having the contact with him which will allow them to judge him for themselves.
The husband does not have as firm a grip on the prospect of continuing good relations with the children as he would have had if he had thought of the children’s welfare rather than of himself and had taken up all the opportunities he has had to have the contact with the children which was made available.
Any continuation and improvement in his relationship with the children will and should depend on his behaviour. He will have to control his adverse impulses, become a reliable presence and a good influence on them. To do this he will have to overcome his drug habit. I am far from convinced that he has done so. It is likely that he uses marijuana frequently and, if not, probably abuses alcohol as a substitute. He will need to be treated by Dr R and undertake testing before he is likely to be able to control his adverse impulses, become reliable as a contact parent and avoid bad behaviour in the children’s presence or which the children may learn of.
S68F(2)(c) The likely effect of relevant changes in the children’s circumstances which will be occasioned by the contact proposals, including the likely effect of separation from each party. - As the children want to see the husband, are still attached to him and are not afraid of him, they are not likely to be destabilised by the separation from the wife which regular and frequent weekend contact with the husband might otherwise bring despite not having seen him for a relatively long time and despite the wife’s efforts to alienate them from him.
The contact the wife is willing to provide is such that it could not be regarded as satisfactory except in the short term. Not only is it depersonalising and in artificial and strange surroundings, it is highly likely to be boring for the children and frustrating for the husband. The children are likely to reject it after a while, and the husband is too. In any event, it will not achieve the very purpose of regular face-to-face and telephone contact, which is to allow the children to experience and judge their father for themselves and thereby build a relationship with him based on reality. In that way, they will best cope emotionally when they are older if they challenge his will and he reacts badly to the challenge, yet they will benefit from the development of any closer and more loving relationship contact might encourage.
S68F(2)(d) The practical difficulties of contact with the husband and the effect of these on any rights the children have to maintain their attachment to and personal contact with the husband. – The actual expense of contact, whether supervised or not, although substantial, was not raised as a significant issue. The practical difficulties imposed by the distance between Sydney and the ACT and the availability of supervised contact places at centres which provide it are at the heart of a large part of the dispute between the parents. If there is no need for supervision, there is an issue over where the children should be collected from and returned to and, in effect, what contact will take place. If there is a need for supervision, the practical problems associated with it are magnified by the limitations and availability of suitable supervisors and facilities. If there is a need for imposition of conditions on the husband, they will create additional practical difficulties for him. Most of the main practical problems have been discussed already. All are obvious. Essentially, the distances between the parties’ homes and, if it is required, supervision will dictate what orders for contact are practical.
S68F(2)(e) The capacity of each party to provide for the children’s needs, including their emotional and intellectual needs. - There is little material to permit a finding about capacity to provide for the children’s intellectual needs. From my observations, each parent is well able to appropriately advance the children intellectually in the circumstance that they will continue to live with the wife for most of their time.
The children are not displaying any emotional problems and the wife must be given most of the credit for this. However, they are vulnerable to the development of emotional problems because of the wife’s attempts to alienate the children from the husband and the husband’s anti-social behaviour, lack of self-control and unreliability. This vulnerability occurs in the face of the children’s positive experience of the husband and the need to ensure their future welfare by balancing their need to get to know the husband from first hand experience and, therefore, to spend time with him against the need to exercise caution that they do not spend so much time with him that they become attached to him to the extent of dependence and therefore become vulnerable to any subsequent rejection by him.
The wife does not appear to me to have much ability to refrain from obstructing contact and explicitly, insidiously or unintentionally disparaging the husband to the children and therefore cannot currently provide properly for the children’s emotional need to have a balanced and appropriate relationship with the husband. I am confident that counselling would help the wife to improve in this respect.
The evidence leaves the strong conviction that the husband will continue to be self-indulgent, unreliable with contact, and when contact is taking place, selfish and unrestrained, so has reduced propensity for making contact an experience which will advance the children’s emotional wellbeing. Orders should be made which, as much as the Court can provide, tend to diminish the parties relevant adverse behaviour and limit the effects of it.
S68F(2)(f) The children’s relevant characteristics and cultural identity. - The only matter which seems to be relevant here is that the husband, although born in Australia, identifies strongly with the German element of his background. His father is German and mother Australian, but they live in Germany and the husband lived in Germany for some time as a child. Contact with the husband, whatever it may be, should be enough to cater for the children’s need to understand and maintain an appropriate connection with the German aspect of their roots. I do not think that more than a very modest amount of contact is necessary to achieve this.
S68F(2)(g) The need to protect the children from exposure to physical or psychological harm from being either directly subjected to or exposed to abuse, ill-treatment, violence or other abusive behaviour or from being cared for by a person who is subjected to these. - This is at the nub of the wife’s case. However, because both parties have, in quite different but relevant ways, behaved badly, the Court must balance the orders it makes to best protect the children from the harmful influence of each parent. It is necessary to protect them from the wife’s attempts to alienate them from the husband so that they will have a level of attachment to him which allows them to benefit from their relationships with him and feel loved by him without becoming so attached that, if they reject his efforts to control them as teenagers, they will not be too hurt by any rejection by him.
Of course, they should also be protected from being exposed to his lack of self-control, and the bullying and impetuous violence it tends to produce, although it is unlikely to be specifically directed at them until they become teenagers. Because the parties no longer live together, it is not difficult to make orders which prevent the husband from threatening, verbally abusing or attacking the wife physically. To help ensure he does not direct such behaviour at others in the children’s presence and knowledge, it is necessary for him to continue psychiatric help and abstain from substance abuse. Apart from the direct benefits these are likely to bring, they will tend to prove, to some extent, that he can behave properly while having care of the children.
In the wife’s case, an after separation parenting course as recommended by Dr S ought to be of help to lessen her intent to alienate the children from the husband in the light of her acknowledgment that, in hindsight, she should not have been so obstructive to contact.
S68F(2)(h) The parents’ attitudes to the children and to the responsibilities of parenthood. - The wife is, essentially, a responsible parent who loves and wishes the best for her children. But there are provisos. To some extent, she cannot distinguish their needs from her own and she has over reacted, from the children’s point of view, to the husband’s propensities for excess to meet her own needs. The husband loves the children, but is quite irresponsible toward them in the sense that he has not been prepared to have the contact which he could have had with them because it did not suit him or to modify his behaviour to ensure contact. I think that he needs to show that he can be more responsible as a parent before he can be trusted to have unsupervised contact.
S68F(2)(i) and (j) Family violence and family violence orders. - I have already dealt with these matters. I do not consider that the husband’s violence has been more serious than the wife’s psychological violence in keeping the children’s whereabouts secret, obstructing contact, alienating the children and her false and exaggerated claims to fear him in the knowledge that he would react badly and with insufficient self-control to such behaviour. I can see no reason why he should not know where she and the children live. He will not abduct them, as he does not wish that they live mainly with him. He will not be as frustrated by her, if she complies with reasonable orders of the Court, so is less likely to harm her than has already been the case. He will be much less frustrated if he can have more normal parental interaction with the children. Less frustration is highly likely to result in less conflict between the parties and a greater level of psychological and physical safety for all.
S68F(2)(k) The preferability of making orders which are least likely to lead to the institution of further proceedings over the children. – It is nearly always preferable that such orders are made. This does not mean that orders which recognise the possibility of further proceedings should not be made. Here, because there is a need to put the husband in a position which will test his responsibility and suitability to have unsupervised contact, this possibility should remain. If he behaves as he should during the testing period, it will be appropriate for him to then have unsupervised contact. If he does not, such contact may have to be denied. In an effort to make final orders which will not require the parties to return to litigation, a two stage contact regime is appropriate. The first stage should involve only supervised face-to-face contact while the husband is given the opportunity to demonstrate his responsibility and self-control by attending regular tests for the presence of cannabis in his system, by paying for those tests and by regularly attending the psychiatrist, Dr R, who he says has helped him gain greater control over his adverse impulses. By doing so, he will show that when the need arises, he can abstain from using it and exercise a degree of self-control in relation to his impetuosity. If these conditions are not complied with over the course of supervised contact, the orders for unsupervised face-to-face contact for the period thereafter should not come into force and the husband will have to rely on the telephone to have contact with the children unless he makes a fresh application for face-to-face contact and succeeds in it. If any cannabis tests are positive, the wife will be able to elect to bring proceedings to end contact which will probably succeed if they show that the husband is still using it to a degree which is likely to affect his ability to provide proper immediate care for the children. It is in the children’s best interests, in view of the level of irresponsibility, indiscipline, tendency for inappropriate behaviour and volatility which will be demonstrated by any substantial failure to meet the not very rigorous conditions, that he should not be permitted to automatically continue to have physical contact with the children.
S68F(2)(l) Any other facts are matters which are relevant but not otherwise required to be considered pursuant to S68F(2). - I have mentioned, considered and weighed all facts and matters which are alone or with others of sufficient significance to potentially affect the orders which will best advance the children’s welfare.
The issue of location of the venue for supervised contact must be resolved. Three matters make it preferable for this to be N rather than in Canberra. The first is the fact that it is essentially in the children’s best interests for the husband to be encouraged to maintain proper contact with them. He has shown that he might be inclined not to persevere with contact if it is too inconvenient. N is far more convenient for him than Canberra. It is a much shorter drive from his home, although from the children’s and wife’s point of view, it is not as convenient because it requires a significant drive from Canberra. The second reason is that there is no doubt that suitable supervised contact can be arranged at N on orders for it being made. The position was much less certain with the M Centre in Canberra. There has been a waiting list, and supervised contact appointments may not be available without a significant wait. The final reason is that something ought to be done to bring home to the wife that the proceedings were probably caused by her move from Sydney and other attempts to distance the children from the husband. She should be encouraged to understand that proper parenting necessitates an approach which is cooperative and designed to decrease conflict rather than inflame it. That she will have to suffer inconvenience caused by her own actions may assist to do this and result in a greater level of cooperativeness in the future. Nothing, in my opinion, is more likely to advance the children’s welfare than a reduction in the level of parental conflict over them. A course of parenting after separation as recommended by Dr S will also assist to bring home to the wife the need to be cooperative and to be able to distinguish her needs and wishes from those of the children.
I think that the most appropriate period of supervised contact to test the husband’s resolve and ability to improve his behaviour related to his parental capacity is one year. During that time he should have urinary drug screening for cannabis at least every 14 days. He should pay the fees for these tests and convey the results record to the separate representative and the wife on receipt. He should attend Dr R at least once each month for that year and obtain written proof of his attendance from Dr R and provide this to the separate representative and the wife. Each party should pay half the contact centre’s fees. Because of the distance to travel, it is best for the children that contact at the contact centre take place once each month, but each contact should last as long as the contact centre will provide the service up to a maximum of 4 hours. Any longer, in such an institutional environment, is likely to be counterproductive and to be too demanding for the children in view of the need to drive from Canberra to N for contact, then return to Canberra.
If, after a year of supervised contact, the husband has upheld his obligations to undertake cannabis testing and attend the psychiatrist, he will have shown a readiness for unsupervised contact which should be for about 6 hours on one Sunday in each calendar month, on Father’s Day, on the Sunday on or closest to each child’s birthday or if, in E’s case, it falls on Mother’s Day it can be on the Saturday before Mother’s Day, on New Year’s Day in alternate years and alternating between Christmas Day and Boxing Day. The problems with distance and my unwillingness to order overnight contact are the reasons I should not order more face-to-face contact. I am unwilling to order overnight contact because it is my opinion, gained from an overview of all the evidence which I accept and my own observations of the husband while he gave evidence, that he is basically a volatile, impatient, bad tempered and controlling person who will always be quite difficult to deal with notwithstanding avoidance of cannabis and continuing psychiatric treatment. Psychiatric treatment cannot change his personality, only his habits. Overnight and lengthy stays are likely to try his patience with the children and create situations in which he will probably revert to ill-tempered outbursts and inappropriate behaviour which will alienate the children from him and otherwise undermine their emotional health.
I am conscious of Dr RO’s advice to avoid the parties meeting at contact changeovers. I am equally conscious of the need to make these as normal as possible for the children. The wife’s claims of fear of the husband and her attempts to make the children believe he is a danger to her, and possibly to themselves, will be reinforced if the children realise the husband is not permitted to collect and deliver them in what must be regarded by them as the normal way: at their home. I think that it is very important for their welfare and the continuation of their best chance of developing an appropriate relationship with their father if he collects them from and returns them to their home. If he is restrained from advancing past the front entrance of the land on which it stands and the wife does not go past the front door at changeovers, the parties will not come into contact. Of course, the wife will have to inform and keep the husband informed of her home address. Each party should also know the telephone contact number of the other. This will encourage them to learn to communicate with one another about raising the children and will also tend to avoid the frustrations and anger which result from arrangements going awry.
Telephone contact can be used to partially make up for lack of face-to-face contact. I think the children should speak to their father at least twice each week. When he does not see them, the telephone must be the medium. As the children no doubt like watching TV and engage in other enjoyable activities when they are at home with their mother and are likely to be bored and frustrated by lengthy telephone calls, each should be limited to 15 minutes per child. There should be no limitation on the husband’s ability to send the children letters, cards and gifts. The wife should forward these to the children.
The husband should be able to take part in making decisions for the children’s future. It is in the children’s interests that they know he is taking an active part in rearing them. It is not likely to be good for them if there is any inference that he has not undertaken this responsibility or has abandoned them. The Act, which provides for default joint responsibility for the children’s long-term welfare, should apply here. To give the husband information he needs to make decisions about and assist them with their education he should receive copies of all school reports and the like.
As each parent and the wife’s mother have behaved in a manner which must have tended to undermine the children’s image of the other parent, each parent should be restrained from denigrating the other directly or indirectly to the children and should be required to shield the children from the prospect of others denigrating the other parent in front of the children.
The orders made on the 30 June 2006 were designed to implement this judgement. In making them, I considered all matters referred to in it and regard the orders as the best which could be made to advance the children’s welfare to the optimal extent.
The parties did not live together before they married in March 1994. The wife had worked as a Commonwealth Public Servant in Canberra and owned a fully-furnished and equipped but mortgaged home unit there. She also had no other debts, a car, some savings and had accumulated superannuation which was then worth $49,357. The unit was worth about $90,000 but secured the wife’s mortgage debt of about $20,000. Her equity was therefore $70,000 or 7/9 of its then value. When the wife moved to Sydney the unit was let. It was worth $140,000 at the time of trial and was let for $140 per week at that time. Presumably it had been let for a similar real rent over the whole period of cohabitation. That it, in particular, was the source of rental income for the parties was a product of the living arrangements the parties made. The rent should not be regarded as the wife’s contribution to the parties’ assets available for division because it was merely coincidental that the parties arranged their affairs so they would collect it from the property rather than live in it. Instead, they purchased and renovated their matrimonial home in S while they paid interest on borrowings and failed to earn interest on the funds which they would gave accumulated if they had not been spent on this home or if they would have let it.
The husband had $21,500 in savings at the time of marriage, but he was already a qualified in his trade working as an employee.
Soon after the parties married they purchased the former matrimonial home which is located S for $210,000. They used $21,000 which the husband provided and borrowed the balance. The borrowing was secured over the home and the wife’s unit. The husband’s father also guaranteed the loan. The value of the home is a major issue in these proceedings.
The wife moved employment to a Government Department in Sydney. To do so she had to accept a downgrading in her status with a commensurate reduction in her wages. She continued that employment until about the time E was born in May 1997. I have not been told what she earnt. After the birth she remained on maternity leave for 12 months and received full pay for the first 6 and part pay for the balance. She then returned to full-time work until a little before L’s birth in August 1999. This time she took 6 months maternity leave on full pay. She has been in full-time employment since she returned to work at the end of her maternity leave. By the time of the hearing, she was earning a salary of about $1,400 per week before tax from her employment which she had held for nearly 28 years. By that time her superannuation was worth $335,132.
Separation between the parties took place in January 2002 but the parties remained under the one roof until the wife and children left the former matrimonial home in February of that year. At the time of separation the wife’s superannuation had grown to $162,370. As the husband made little or no contribution to the wife’s ability to accumulate this before cohabitation and after separation, he contributed indirectly to it only for the period when it grew from $49,357 to $162,370; that is, while it increased in value by about $113,000 or by about 1/3 of its present value.
After the parties married the husband worked for a short time in his job then commenced his own business in a shed at the back of the former matrimonial home. When the property was purchased it was zoned as a residential property but the shed had been used for many years for a similar business and protection of the husband’s business use of the property was afforded its lengthy prior existence.
From the start, the husband worked very long hours in the business, usually about 110 hours each week. I cannot say what he earned because there is no evidence of his or the business earnings prior to the 2001 tax year. I do know that the husband’s superannuation is now worth $16,182. The business was conducted through the medium of a company called H Pty Ltd. The use of the premises which contained the former matrimonial home gave the parties the opportunity to gain tax benefits from interest paid on the home mortgage and other outgoings associated with ownership and use of the property.
When the wife was pregnant with the parties’ second child they decided to demolish the buildings on the S land and build a new and much larger home and an enlarged workshop in which to conduct the business. They borrowed an additional $270,000 to do this. On 30 June 2005 the mortgage debt balance was $288,421, so much of the borrowings had been paid off by this time.
Although the new home was built by a project builder, the wife’s father, who is a retired builder, assisted the parties in the rebuilding project. He helped clear the land and to build the front fence and gate. He also helped demolish the shed and rebuild it as a much larger workshop. He says that his efforts, including past improvements he had made to the old home, were worth about $30,000, but he did not charge or expect to be paid for his efforts. I accept that he did this work and that it benefited the parties to the extent of $30,000 approximately. There is no evidence to suggest it was done other than as a contribution made on behalf of the wife.
Before the parties commenced constructing their new home they rented the old house on the property and went to live, rent free, in a home owned by the husband’s parents. I do not know how long this was for. The husband says it was for about 2 years until the new house was completed. However, the wife claims that, on demolition of the old home, the parties moved to rented premises and that she paid the rent. It is most probable that they did live in the husband’s parents’ house for a time, then rented premises until the new home was ready for occupation. The time they spent living rent free in the husband’s parents’ property was probably a contribution made by them on behalf of the husband.
It is appropriate to deal with numerous claims each party has made which are to the effect that the party making any particular claim had made a specific contribution to their property which is now available for division by making specific payments from his or her income. It was mere coincidence that the parties arranged their finances as they did. Any other payments used for other living costs released any specific payment which is claimed to be a contribution. Any contribution by specific and easily identified payments released other funds to be used for the other expenses incurred by the parties. The result is that contributions from these other sources to meet the parties’ other financial obligations and needs, many of which are less easily identified, were, equally, contributions to the accumulation of property.
The real measure of a party’s financial contributions is the direct contribution by each to the relationship made up of the contributions which were initially made, income which was earnt, windfalls and the like, and contributions made by others on behalf of that party. Any payments made by a party from such contributions would be erroneously attributed to that party’s contributions because they would be doubly counted. Thus, I shall count each party’s income, the value of his or her assets at the start of the relationship, any financial windfalls received during it and the value of contributions made by others on his or her behalf as that party’s financial contributions.
When the shed used as the husband’s workshop was rebuilt, no development application was made for it. It has never been approved and is, therefore, an illegal existing structure. It is the subject of a council demolition order. This is a major source of the dispute between the parties over the value of the S real estate. According to the wife’s valuer, it is worth $820,000. The husband’s valuer says it is worth $740,000. As might be gathered by the difference, both parties would like the husband to receive the property provided their own valuations are accepted.
Mr B, the wife’s valuer, did not gain access to the interior of the home. He and the wife’s solicitor seemed to have been content with this situation because, after the valuer visited the property the first time to value it and failed to gain access, there is no suggestion that further attempts were then made to gain access before making the valuation. Mr B relied on the description of the interior of the property made in the valuation by the husband’s valuer.
The husband has made an application for a retrospective development approval. If this is granted, according to Mr B, the value of the property would increase by $90,000- $100,000. He calculated the increase by assessing the rental value of the workshop at $200 per week without inspecting its interior which contains a waiting room, office and kitchen. None of these facilities are mentioned in his written valuation. I do not know if the increased valuation involves assessment of the rent with them in mind.
The main problems with this valuation and that of the husband’s valuer is that I cannot know whether the workshop will gain retrospective council approval or not and, if it has to be demolished, what the cost might be to demolish it then restore the backyard of the home to appropriate condition after demolition. If, for example, an old, stained concrete slab has to be removed, the cost of demolition could be very substantial. I do not even know what might have to be done.
Less of a problem with Mr B’s valuation is the comparables he used. He is entitled to use them because any land may be compared with any other land, but they are not at all like the land in question. The two sales relied on in H St were of smaller blocks with inferior dwellings, but on a quiet street. S St is “an extremely busy, arterial thoroughfare linking [R Rd]. and [G Drive]” both of which are major 4 lane roads.
The other comparables used by Mr B are, in my opinion, even less like the parties’ property. One, SH St., was sold for $665,000. It had an old home on it which was then demolished. Its land is 541 sq.m. compared with the subject land, which is 660 sq.m.. Considering that the husband and wife must have used most of the money they borrowed to build their home; the balance being spent on the workshop, and that the subject land has the benefit of a rear lane entrance, it may be that this comparable suggests that the subject land is worth considerably more than $820,000.
The other comparable sales are each pairs of townhouses, one in S St and the other in a more suburban street. Each townhouse is built upon a block of roughly half the size of the land in question.
Nevertheless, the comparables Mr B used seem to have been measured against the land he valued in a realistic light, so the major problem with his valuation arises from the uncertainty surrounding the ability to obtain a retrospective development approval and the cost of demolition and restoration of the land if it cannot be obtained.
Ms V, the husband’s valuer, valued the property at $800,000 in February 2004 based upon its zoning as residential (c). She did not seem to take the rental value into account for this valuation. Four properties were regarded as comparable. One is in a quiet street but on smaller land with one less bedroom. Another is also on a quieter street on even smaller land with a 2 bedroom fibro house and the others are two townhouses in S St which can be assumed to be on much smaller blocks. Ms V said that the parties’ home was not well built, so much so she recommended a building report, but she did not say whether the cost of repairs figured in her valuation and, if it did, how much she estimated it would be. She recognised the illegal construction problem, but did not say to what extent it altered her valuation, if at all.
Ms V made a second valuation in mid June 2005, a few months before Mr B made his valuation. When Mr B was cross-examined, he said that there had been no reduction in values in the S area in the year prior to the time he gave evidence, which was in October 2005. He said the market in S was lower in 2004 than it was in 2005, although he did not deny that, overall in Sydney, there was a lowering of values in 2005 compared to 2004.
Ms V’s second valuation, at $740,000, was said by her in oral evidence to have been done because of an alleged reduction in values in the S area of about 10% and a general reduction in Sydney values between March 2004 and March 2005 of about 13%. However, she said that, because the subject property was on such a busy street, its reduction in value would be 15%. Yet she reduced the value by 7.5% not by 15%. She was recalled on the issue of her valuation method and explained that she mainly relied on comparables as the primary basis for her valuation, but took into account the reduction in home values provided by a firm of statisticians which specialises in the house market. It indicated that between her valuations the market had dropped 12.87%. Presumably, that was in the general residential market for Sydney, not S.
In Ms V’s later report, at paragraph 13, she says she took the rental value of the workshop into account, but did not say to what degree or indicate how the accounting was done. Yet, in cross-examination, she said she had not taken the rental value into account because the presence of the workshop could be either a negative or a positive factor in the valuation depending on what a prospective buyer might want. The workshop left little backyard and, to some, demolition might be seen as beneficial, while, to others, the workshop might be desirable. She made no attempt to include any cost of demolition and restoration of the backyard.
Ms V used four properties as comparables. Each is on R Rd, S. It is a very busy and wide divided 4 land road which is even noisier and less suburban than S St. One property was a development site with a house on a much larger block. The block is more than twice the size of the parties’ block. For two of the blocks, Ms V does not specify the land area. On each of these is a 1940’s 3 bedroom, brick and tile home. The fourth block relied on is of only 470 sq.m., but with a superior 4 bedroom home to that owned by the parties. Ms V considered, but did not rely on, sales of the S St. townhouses that Mr B regarded as comparables because each is on much smaller land and is of full brick, whereas the subject home is brick veneer.
I simply lack the confidence to say that either valuation is likely to be accurate. I am quite unable to say whether or not there has been a reduction in values in the S area. Neither valuer seemed more credible than the other. I do not think the methods of either valuer are likely to have identified the real value of the former matrimonial home. There is too much uncertainty created by the demolition order, the cost of demolition, the possibility that it will be avoided and that the workshop could increase the value of the property because of its rental value; a value I am not satisfied Mr B estimated correctly or Ms V considered at all. There is too much propensity for unfairness to one or other of the parties in an acceptance of either valuation. The property will have to be sold. This will not impose much hardship on the husband because, if his books and taxation returns and general evidence is to be believed, the business is not worth retaining.
Exhibit ‘E’ comprises the husband’s taxation returns from the 2001 tax year to 2005 inclusive, as well as a partnership return for the husband and wife for 2001 and the tax returns and financial accounts for H Pty Ltd from 2002 to 2005 inclusive. These documents have allowed the Court to know the details contained in the following table:
| Tax Year | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 |
| Gross Company Income | $62077 | $116051 | $94190 | $106376 | ||
| Net Before Tax Company Income | ($81.00) | 0 | ($231) | $211 | ||
| Husband’s Gross Income | $6507 | $5970 | $6000 | $11694 | $13388 | |
| Husband’s Net Income Before Tax | $5970 | $6000 | $10233 | $11488 | ||
| Partnership Income | ($2091) | ($2587) | $4940 | |||
| Wife’s Net Income Before Tax | $25057 |
The partnership was associated with the running of the husband’s business and was between the husband and wife. It must have ended at separation or not long afterwards. It seems that the rent from the flat has always been included un the wife’s income, but as she rented the home in which she lived, this rent ought to be set off against her rental income, making the rental income of no real value as a contribution.
The table clearly shows that, although the husband may have worked hard in the business, it has been of no value to him because he, and the wife immediately before separation, did not earn enough from it to warrant keeping it if his pre-separation financial returns were anything like those post-separation, provided the returns truly reflect his situation. The wife sought to show that the books and returns which are before the Court are other than accurate. As they stand, they show little financial contribution to the parties’ current financial situation by the husband from the time of separation until the hearing and do not indicate any substantial contribution before that, although the inferences from the evidence are to the effect that earlier, his contributions from his business were greater than they could have been after separation. Nevertheless, the husband has always worked hard and for long hours.
The wife has been in employment in which she must have earnt a steady, if modest, income since the parties married. This was reduced when she was on maternity leave and when she worked part-time for a couple of years when the children were very young.
The husband was a very early riser while the children and wife lived with him. He would go surfing. In the mornings before she went to work the wife would be solely responsible for the children’s care. The parties shared their care more equally in the afternoons and evenings after work and on weekends when the wife did not work at all and the husband worked much less. Once separation occurred, the wife undertook virtual sole care of the children. While living together, the wife probably did much more by way homemaking than the husband, but he should get credit for the fact that he worked long hours in his business instead.
The wife claims, in her financial statement, that the furniture in the S home is worth $20,000 and the husband’s tools are worth $100,000. She made no attempt to prove these allegations. I do not accept them. She also failed to prove, but admitted, the value of the contents of her rented home in the ACT are worth $6,000 and claimed that the husband’s business is worth $60,000 or thereabouts. The latter claim is ridiculous if it is based on disclosed earnings. It is also unsustainable if the husband’s true earnings and the business profits are not significantly more than an employed motor mechanic working his hours would earn. She also claimed that through her loan account with the company, it is $84,000 in debt to her.
The 30 June 2005 financial statement for the company indicates that $39,702 is owed in shareholders loans and the company’s net assets, without taking these into account, amount to about $36,000. The net assets probably comprise plant and equipment. The husband says the business is worth $5,000. The problem is that there is no evidence to inform the Court of the extent that the $39,702 debt is to either of the parties, although the husband does not claim in his statement of financial circumstances that the company owes him anything.
At most, any debt owed by the company is worth $36,000. The husband’s failure to claim any loan account debt could be as lax as the wife’s claim that there is about $84,000 owing to her. Neither party has made any proper attempt to enlighten the Court on the true position. It would not have been a difficult or costly task to prove the true situation properly. I am confident that there is a debt owing to one or both of the parties which should be taken into account because, if it is not, the company will not be properly valued. I shall regard the loan account debt to be owing to both parties because $44,000, approximately, was owing to shareholders in 2002, the last tax year when the parties’ partnership existed. They were both probably shareholders at that time although since then the wife has ceased to be a shareholder. It is most probable that this loan account was incurred to the partnership rather than the individuals. It has been reduced by about $4,000 since the partnership was dissolved. It is likely that the husband made the drawings which reduced it. Accordingly, it is likely that, of the $39,700 owed by the company, $22,000 is owed to the wife and $17,700 is owed to the husband. Because only about $36,000 is available, the values of the loans to each party are $19,950 and $16,050. The company should be regarded as valueless.
Both parties have debts for the legal costs of these proceedings. The wife owes $52,000 to her parents for money she borrowed to pay legal fees. In all, she has paid about $95,000 in legal expenses. The source of the $43,000 she paid has not been disclosed, but it is unlikely that it came from funds she had at the time of separation. The funds probably came from her wages earnt since separation. In the circumstances, it is appropriate to regard her contributions from those wages as reduced by the sum of $43,000 rather than to add the $43,000 to the pool of assets. The $52,000, if added back, would be cancelled by the $52,000 owing to the wife’s parents, so both should properly be ignored.
The husband is in much the same position except that his legal costs have been less. The husband has paid solicitors and other experts approximately $23,000. Of this, his father paid $10,000. There is no suggestion that this $10,000 was to be a loan. If it is regarded as a contribution, the $10,000 would have to be added back to the capital. It is more appropriate to ignore both the contribution and the additional capital.
Like the wife, the husband probably had no source of capital to meet the other $13,000 he has paid towards his costs. It probably came from income, although it may be difficult to see how in view of his declared income. The appropriate way to deal with this $13,000 is to regard it as a reduction in his financial contribution to the assets currently available for distribution rather than to add it back into those assets.
Thus, in addition to the home at S in which their equity is probably worth about $400,000 to $550,000 once the costs of sale are met and the mortgage debt of about $288,000 is discharged, the parties have no other debts, but the following additional property:
MS (wife) $140,000
H Pty Ltd NIL
H Pty Ltd loan account debt to wife $19,950
H Pty Ltd loan account debt to husband $16,050
Wife’s superannuation $335,132
Husband’s superannuation $16,182
Husband’s car $2,000
Wife’s car $300
Wife’s savings $1,000
Wife’s household contents $5,000
$535,614
As the parties have no relevant debts, they will probably have in the vicinity of $975,000 to $1,055,000 to distribute after the home is sold, the mortgage discharged and the costs of and associated with sale are paid. $501,382 of this is held by the wife and $34,232 is held by the husband, with the equity in the home jointly held.
It is the husband’s claim that he should become the sole owner of the former matrimonial home on taking over the mortgage debt and paying the wife $150,000 with the parties each retaining all their other individual holdings. For the sake of understanding his claim, I shall assume the former matrimonial home is worth $480,000 net. This would leave the wife with about $650,000 in assets and the husband with about $364,000 worth of the property, a division of about 64% to 36%, although in his opening address the husband’s solicitor said this would achieve a 50/50 division. He assumed that the former matrimonial home would be given a lesser value. He did not suggest there should be any adjustment for s75(2) factors.
The wife, in her counsel’s closing address, asked that I find that 75% of the contributions were made by the wife and 25% by the husband. She said there should be an adjustment under s75(2) of a further 15% in favour of the wife, making a distribution to her of 90%.
While the parties lived together it is likely that the husband earned more than she did. The wife’s relatively low income at the time of separation suggests this when compared to the ability of the parties to borrow such significant sums to purchase, then improve the property at S. It was also because of the husband’s work as a motor mechanic that the parties were able to arrange their financial affairs to be more tax effective. It is significant that each worked long hours. The wife in her ordinary job and in providing most of the care for the children; all of it in recent years, and most of the homemaking and in keeping the company books and accounts before separation. The husband in working as a motor mechanic and running the business while providing some child care and a little homemaking before separation.
It must be said that, since separation, the husband’s contribution by way of wages seems to have been unrealistically small. The home mortgage payments, which were made from the husband’s business sources before and after cohabitation ceased, were, in mid 2005, about $2050 per month. One must wonder where the money came from. The inference is that mortgage instalments were always at about this real level after the rebuilding commenced and were probably not at a much lower level before that. However, the husband is bound by his tax returns and cannot be given any benefit for a greater contribution than they show. Nevertheless, if his earnings and company profits were greater than declared, I do not think they were so great that H Pty Ltd has any goodwill or inherent value as a business.
A consideration and weighing of all the elements of contribution, both financial and non-financial, which have been mentioned, leaves me with the strongly held belief that the parties have contributed to their property now available for distribution between them to the extent of 67% by the wife and 33% by the husband. The major sources of the difference is the wife’s initial contribution of her equity in the MS unit and her superannuation, the after separation contribution she made to it which was largely made on her behalf by her employer in addition to her own contribution from her wages, her contribution from her wages in the period after separation, her sole care of the children after separation and the husband’s low income after separation.
There are some very significant matters to be considered under s75(2). The first is that, because the parties’ superannuation is not available to them, they will not have the flexibility in determining their living arrangements they would otherwise have. This will mainly adversely affect the wife until she retires, especially if she retains the MS unit. She will have to sell it and forego the rental income if she wishes to live in her own home. She will probably also have to borrow funds to purchase a home. Her home will have to have suitable accommodation for three. The husband, too, will need to purchase a home and borrow for that and will probably have to pay rent to continue his business. His home need only provide for casual accommodation for the children.
The wife’s employment income is likely to be relatively constant in real terms. Currently it is $1,400 per week gross. The husband appears to earn very little. I do not believe that this could be the situation. He is not behind in the mortgage payments, yet the company is not earning any profit, has no source of funds and the shareholders’ loan account has not been decreasing at a rate which suggests that the company has actually met the mortgage payments of more than $24,000 p.a.. In any event, from his tax returns and statement of financial resources, one can see there is no source available to the husband to draw these funds. The inevitable conclusion is that the husband has not declared his true income and/or assets or the company’s true income, profitability and/or assets. I shall apply Black v Kelner (1992) 15 FamLR 343 to his claim to have a low income. It is not inconsistent to do this, yet rely on his declarations of income for tax purposes to determine his level of contribution. The husband cannot be allowed to benefit from his failure to make a proper disclosure.
One benefit he must have gained from the level of income he has disclosed since separation relates to child support. He has only paid minimal amounts. The wife has had to bear virtually the whole brunt of keeping the children since she left the former matrimonial home. Nothing is likely to change in the future in this respect. I do not expect the husband to meet his proper child support obligations. In addition, the wife has effectively the whole obligation to provide the physical effort needed to care for the children. She will have to feed, clothe, care for and otherwise provide for the children’s needs for about another 10 years for E and 12 years for L.
Both parties are apparently in good health. The husband was aged 41 at the time of the hearing. He should have a working life of another 20 years from then, at least. The wife was then aged 45. She can be expected to retire at 55 years, in about 10 years time. She will then receive her current entitlement to superannuation plus the additional amounts that sum accumulates as well as future contributions and the interest on them. She will have a significant sum to ensure she remains relatively comfortable in her retirement. The husband is in a position to earn a significant income. In my estimation, his future earning capacity is much the same as that of the wife if her superannuation increases due to interest are taken into account.
Because s117 of the Act has the effect of providing that no order which, in effect, requires a party to meet any part of the legal costs of another party can be made without considering the matters required by it, a costs order is not appropriate at this stage. Yet s75(2) infers that debts for legal costs ought to be taken into account. There is a degree of inconsistency between the two provisions. I shall take into account the lasting debt to her family in respect of legal costs which the wife has while, at the same time, attempt to make no order which imposes any impact from those costs on the husband.
Currently, each party is easily able to live within his or her means. Neither has any debts from living expenses, although the wife claims her wages and rental income do not cover her weekly outgoings. Her total income is $1,583 per week and her outgoings are $2,079, about $400 of which is spent on the children, $273 on rent and $140 per week in forced savings by way of her personal superannuation contributions. Any reasonable division of property will put the wife in a position where she will probably be able to meet her outgoings from her income and will accumulate a large amount of forced savings which will be received on her retirement in about 10 years.
The husband claims his total income and benefits from his employment amount to $805 per week. I have little doubt that this is an understatement. He says, however, that his outgoings are $651 per week, most of which ($501), is on weekly mortgage payments. I do not believe he can keep himself on $150 per week in addition to the mortgage payments. Because the home will be sold, these payments will not have to continue but, because he will probably buy another home, they will be replaced by a new mortgage debt.
The division of the parties’ net assets, if it is not significantly dissimilar to their respective contributions to them, will leave the husband in a relatively similar immediate situation to that of the wife. Very approximately, she will have about 1/3 of the value of the parties’ estate immediately available and the husband will also have about 1/3 immediately available. The other 1/3 will be wife’s longer term security. The husband will have to make up any significant security for his retirement by savings. The wife has a great advantage in this respect. His retirement fund will have to come from income which will not be much greater than that of the wife while both have employment. However, the husband is likely to have a longer future earning life to help overcome his current lack of security.
In all the circumstances I think there should be a small adjustment in favour of the wife for s75(2) factors. I think 3% is sufficient because of the relatively small proportion of the parties’ assets which will be received by the husband. This will leave the wife with 70% of the net assets and the husband with 30%. Such a division is just and equitable, provided the former matrimonial home is sold and the proceeds divided within 6 months. I regard such a period as necessary to resolve the uncertainty surrounding the workshop and the possible cost of its demolition as well as the need for the husband to find new premises.
The manner of achievement such a division is simple in view of the need to sell the former matrimonial home. The wife currently holds $501,382 and the husband $34,232, so from any proceeds of sale of the home, if the husband is paid $180,646, he will have received 30% compared to the 70% which the wife’s $501,382 represents. The balance of the net proceeds of sale can then be divided with 70% going to the wife and 30% to the husband. This manner of achieving the required division of the value of the property is the most proper in the circumstances.
In reaching this conclusion I have not overlooked the prospect that the parties might, but will not necessarily, have to pay capital gains tax on the sale of the former matrimonial home. This prospect was raised on behalf of the husband because some of the outgoings on the S St home were claimed as business expenses. I do not know whether or to what extent the capital gains tax situation might be ameliorated by the fact that the property has always been the home of both or one of the parties. The parties will probably be liable to taxation, if they are liable at all, on half the capital gains each, but the rate of tax will likely be based on the different marginal tax rates applicable to each. I could have been informed by expert evidence of the practical effect but was not. Any capital gains tax is not likely to be great. It will be 10 years since the property was renovated by the time it is sold. In view of the cost, the amount borrowed and interest, the costs of sale and the sum still owing, I accept the submission of Ms Rees that the property would have to sell for more than $800,000 before such tax will become payable. I am not satisfied that any tax will be in a significant amount. It should lie where it falls if it is payable.
I shall make orders which reflect the above reasons, but shall reserve the issues of the mode and conditions of sale to permit the parties, if it is possible, to make consensual arrangements for sale. Either party will have leave to apply to me for orders which provide for these matters. Although I have not made up my mind, I am inclined to appoint an independent trustee for sale if the parties cannot agree.
The orders of the Court should be:
1. That the real property known as and located at S St, S shall be sold by or on behalf of the parties within 6 months of these orders and the proceeds of sale shall then be distributed forthwith as follows:
a) firstly, by payment from them to the Commonwealth Bank of Australia the sum sufficient to pay in full loan number … made to the parties by the bank and discharge the mortgage securing such loan; and,
b) secondly by payment of all costs of and associated with sale including solicitors fees, agents fees, advertising and other expenses and any fees owing to any persons appointed as trustees for sale; and,
c) thirdly, by payment to the husband of $180,646; and,
d) fourthly, by payment to the wife 70% and to the husband 30% of the remainder
2. Leave is hereby reserved to each party to apply to me for orders specifying the method, terms and conditions of sale to implement the sale required by Order 1.
3.Each party is hereby declared to be the sole proprietor at law and in equity of all other property in that party’s immediate possession or held for or on behalf of that party or in his or her name.
4.Costs of both the property and children’s proceedings are hereby reserved for one month.
| I certify that the preceding 154 paragraphs are a true copy of the reasons for judgment herein of his Honour Justice Cohen. Associate |
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Guinness & Guinness
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Abuse of Process
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Costs
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Discovery
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Stay of Proceedings
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