HASHIM & HASHIM
[2012] FamCA 135
•19 March 2012
FAMILY COURT OF AUSTRALIA
| HASHIM & HASHIM | [2012] FamCA 135 |
| FAMILY LAW – PROPERTY – Where both parties give unreliable evidence – Where there are large amounts of conflicting evidence – Notional add backs – Where valuation evidence problematic – Where court unable to determine the value of the former matrimonial home – Value to be determined through its sale – Assessment of contributions – Where father’s initial financial contributions greater – Where mother’s financial contributions and contributions as homemaker during the marriage exceeded those of the father – Where parties’ families advanced funds – Where mother has had primary responsibility for the children’s care – Assessment of s 75(2) of the Family Law Act 1975 (Cth) factors – Where there is a disparity in earning capacity in favour of the mother – Where the mother will continue to have primary responsibility for the care of the children – Where the mother’s assets constitute a proportionately significant sum in superannuation – Where the father pays little child support – 66/34 per cent split in favour of the mother considered just and equitable. FAMILY LAW – CHILDREN – Parenting Orders – Best interests of the children – Where parental relationship is hostile – Where it is agreed that the children will reside primarily with the mother and that the mother have sole parental responsibility – Allegations of family violence and aggressive behaviour perpetrated by the father – Where father is receiving professional assistance in relation to anger management – Where children have a good relationship with both parties – Ordered that the time spent with the father to incrementally increase. |
| Evidence Act 1995 (Cth) s 140 Family Law Act1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65AA, 69ZT(3), 75(2), 79 |
| Bell and Bell [2000] FamCA 1301 Cerini [1998] FamCA 143 Farmer & Bramley (2000) FLC 93-060 Goode & Goode (2006) FLC 93-286 In the Marriage of Clauson (1995) FLC 92-595 In the Marriage of Ferraro (1993) FLC 92-335 In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626 Jones v Dunkel (1959) 101 CLR 298 Maluka and Maluka (2011) FLC 93-464 Marker [1998] FamCA 42 Pierce & Pierce (1999) FLC 92-844 Russell v Russell (1999) FLC 92-877 Townsend (1995) FLC 92-569 |
| APPLICANT: | Mr Hashim |
| RESPONDENT: | Ms Hashim |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 3459 | of | 2010 |
| DATE DELIVERED: | 19 March 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 1-5 August 2011, 23 & 24 January 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Stenmark SC |
| SOLICITOR FOR THE APPLICANT: | Gergis Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | John R Quinn & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Alexandra Wearne |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parenting
That all prior parenting orders in relation to the children, H Hashim born … December 2003 (“H”) and A Hashim born … March 2007 (“A”) (“the children”) are discharged.
That Ms Hashim (“the mother”) shall have sole parental responsibility for major long term issues in relation to the children.
That the children live with the mother.
That the children spend time with Mr Hashim (“the father”) as follows:
(a)In accordance with orders dated 13 April 2011 as varied on 5 August 2011;
(b)Commencing from the last day of school Term 1, 2012 as follows:
(i)during term in the first week and each alternate week thereafter during school term from Saturday at 2.30 pm until the commencement of school on Monday;
(ii)during term in the second week overnight from the conclusion of school on Friday until the commencement of Saturday language School or 9.30 am Saturday whichever is the latter;
(iii)in the first weeks of the Term 1, 2 and 3 school holidays from the conclusion of school on the last day of term until 2.00 pm on the immediately following Tuesday or the day which is the fifth day from the last day of term, whichever is the shorter;
(iv)in the long summer holidays, for three non-consecutive blocks of five consecutive days and four nights, one block in December and two blocks in January. Unless the parties agree otherwise these periods will commence on 16 December, 4 January and 20 January;
(v)from 6.30 am to 11.30 am on both Big Eid and Little Eid in 2012 and each alternate year thereafter;
(vi)from 2.00 pm to 7.00 pm on both Big Eid and Little Eid in 2013 and each alternate year thereafter;
(vii)in the event Father’s Day occurs on a weekend when the children are not in the father’s care, from 10.00 am to 6.00 pm on Father’s Day;
(viii)in the event that the father’s birthday occurs on a day when the children are not in the father’s care, from after school to 6.00 pm that day if it is a school day and from 3.00 pm to 6.00 pm if it not a school day; and
(ix)at other times as agreed between the parties.
That prior to any progression in the children’s time with the father from the arrangements set out in Order 4 the father shall do all acts and things necessary to:
(a)Continue to engage in an ongoing programme of anger management and behavioural change therapy with Ms T, Psychologist, or such other therapist as may be agreed between the parties (“the therapist”); and
(b)Accept all referrals and recommendations as to treatment made by the therapist; and
(c)Continue to attend for therapy for as long as and at such frequency as the therapist recommends and for no less than six (6) months (from 24 January 2012).
That no sooner than the commencement of Term 3, 2012, and
(a)provided that the father has complied with all aspects of Order 5 above; and
(b)upon the father providing to the mother a report from the therapist confirming;
(i)the father’s ongoing consistent and current attendance at anger management and behavioural change therapy; and
(ii)co-operation with and progress towards the therapeutic goals of that therapy, including confirmation that the father has developed the capacity to recognise the impact of his behaviour upon others.
then the children shall spend time with the father as set out in Order 7.
Subject to Orders 5 and 6, the children shall spend time with the father:
During school terms in a two week cycle:
(a)In the first week from the conclusion of school on Friday until the commencement of school the following Monday; and
(b)In the second week overnight from the conclusion of school on Friday until 9.30 am Saturday or the commencement of Saturday language School, whichever is the later.
During school holidays
(c)For the first half of each shorter school holiday periods.
(d)For one half of the long summer holidays which shall be divided into separate equal periods, being one period in December and the second period in January.
(e)From 6.30 am to 11.30 am on both Big Eid and Little Eid in 2012 and each alternate year thereafter.
(f)From 2.00 pm to 7.00 pm on both Big Eid and Little Eid in 2013 and each alternate year thereafter.
(g)In the event Father’s Day occurs on weekend when the children are not in the father’s care, from 10.00 am to 6.00 pm on Father’s Day.
(h)In the event that the father’s birthday occurs on a day when the children are not in the father’s care, from after school to 6.00 pm that day if it is a school day and from 3.00 pm to 6.00 pm if it not a school day.
(i)At other times as agreed between the parties.
Commencing end of Term 1 2014, for one half of all short school holiday periods, such times to be agreed between the parents and if no agreement for the first half of the school holiday period, to commence from the conclusion of school term and to conclude at 5.00 pm on the day which falls mid-way through the holidays.
Notwithstanding any other order, in the event Mother’s Day occurs on a weekend when the children are in the father’s care, the father’s time with the children is suspended from 10.00 am on Mother’s Day.
That for the purpose of the father spending time with the children during school term time, the father will collect the children from school and return the children to school.
That save for occasions when these orders require that changeover occur at school, the changeovers will take place at McDonalds at B and shall commence and conclude at 10.00 am, unless otherwise specified or agreed between the parties in writing.
That for the purpose of Orders 4(b)(iv) and 7(d) herein:
(a)The father shall nominate his proposed summer school holiday times with the children in writing to the mother no less than three (3) months prior to the commencement of the first day of the summer school holidays; and
(b)In the event that the father does not comply with Order 12(a) above within the time frame stipulated; the mother shall no less than two (2) months prior to the commencement of the first day of the summer school holidays nominate the father’s school holiday times with the children.
The children’s term time contact with the father is suspended during school holidays and shall resume as follows:
(a)Where the children have spent the first week or first half of the school holidays with the father, then the first week of the children’s cycle of time will occur in the first week of term.
(b)Where the children have spent the last week or second half of the mid-term school holidays with the father, then the first week of the children’s cycle of time will occur in the second week of term.
The father shall ensure that the children and each of them continue their attendance at language school on Saturdays when they are in his care and other extra curricular activities.
The parties are hereby restrained from denigrating the other party in the presence and/or hearing of the children.
That the cost of therapy in Order 5 be met by the father.
That the ICL has leave to forward to the therapist copies of:
(a) The Court’s reasons for judgment; and
(b) The Court’s final orders.
That the appointment of the ICL continues for a period of 9 months.
Except in the event of an emergency, that the mother shall prior to implementing a decision about the children’s education and health:
(a) Attempt to contact the father; and
(b) Attempt to ascertain his views in relation to the decision; and
(c) Give his views proper consideration.
That the father has such parental responsibility as is necessary for any health or educational professional or institution dealing with the children, including but not limited to doctors and schools, to:
(a)Obtain necessary medical treatment when the children are spending time with him; and
(b)Obtain any information about the children to which a parent is normally entitled, including but not limited to medical reports, school reports and school photographs.
The mother shall ensure that the father has up to date details, including name, contact telephone number and address, of:
(a)Each medical practitioner (including allied health professionals) who provides treatment to the children or either of them.
(b)Information about medical treatment required by the children.
(c)Information about any extra-curricular learning activities, including tutoring, obtained by the children.
Neither party shall arrange any extra-curricular sporting or social activities for the children which require the children’s attendance in the other parent’s time, without first obtaining the written consent of the other parent.
In the event that the father is required to obtain medical treatment for either or both of the children when they are spending time with him, he shall inform the mother as soon as practicable including the name and practice address of the treating doctor and any recommendations for treatment.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property
That the father and mother forthwith do all acts and things necessary and sign all documents, deeds, instruments and writings necessary to put the property known as S property (“the property”) to sale by public auction within four (4) months or such other period as they agree.
With respect to the sale of the property by public auction the parties shall do all acts and things to give effect to Order 25 including but not limited to:
(a)Place the property with an estate agent in the area (hereinafter called “the real estate agent or the auctioneer”) for the sale of the property at the earliest possible date. If the parties are unable to agree on the appointment of a real estate agent to conduct the sale, then an agent nominated by the President of the Australian Property Institute of New South Wales will be appointed.
(b)Execute all documents requested by the real estate agent or the auctioneer for the sale of the property.
(c)Agree to a reserve price at least one (1) month prior to the auction date and in the event that the parties cannot agree on the reserve price the parties shall do all acts and things to agree to appoint a valuer to nominate the reserve price and in the event of the parties failing to agree on a joint valuer for this purpose the parties shall forthwith do all acts and things to request the President of the Australian Property Institute or his or her nominee to appoint a licensed valuer for this purpose.
(d)Pay equally to the real estate agent or the auctioneer a reasonable sum for advertising expenses in relation to the sale.
(e)Give such instructions as are necessary to John R. Quinn & Co., Lawyers or other legal representative appointed by the wife for the preparation of a contract for sale in conjunction with Gergis & Co, Solicitors and for the contract for sale to be made available to the real estate agent or the auctioneer and to carry out the conveyance of the sale of the property and to apply the net proceeds in accordance with these orders.
(f)Attend at the auction sale of the property and negotiate with the highest bidder in the event that the reserve price is not reached.
(g)The mother has the right to bid at the auction. The father is restrained from bidding at the auction or appointing any agent, representative or nominee to bid on his behalf to acquire a legal or beneficial interest in the property.
(h)Execute the contract for sale.
(i)Co-operate in every way with the real estate agent or the auctioneer in relation to the sale of the property including allowing inspection of the property at all reasonable times requested by the real estate agent or the auctioneer and ensuring that the property is in a neat and clean condition at the time of inspection by prospective purchasers.
(j)Execute all other documents necessary to complete the sale.
In the event the property does not reach the reserve price and that in addition to the mother there were two or more registered bidders and the property is not sold at auction, provided within 72 hours after the auction the mother gives written notice she wishes to do so, the mother may purchase the father’s interest at a price equal to the highest bid. In this regard the mother will pay the father the amount to which he is entitled pursuant to these orders within a further six (6) weeks and provide him with either a discharge of mortgage or release from the mortgagee as well as evidence of payment to her parents of the amount due pursuant to Order 33(e). Upon payment the father shall simultaneously transfer to the mother his title and interest in the property.
In the event in addition to the mother there was only one registered bidder and the property does not reach the reserve and is not sold at auction, provided within 72 hours after the auction the mother gives written notice she wishes to do so, the mother may purchase the father’s interest at a price equal to the reserve price. In this regard the mother will pay the father the amount to which he is entitled pursuant to these orders within a further six (6) weeks and provide him with either a discharge of mortgage or release from the mortgagee as well as evidence of payment to her parents of the amount due pursuant to Order 33(e). Upon payment the father shall simultaneously transfer to the mother his title and interest in the property.
In the event that the mother does not give the father written notice in accordance with Orders 27 and 28 above the father may, upon giving her written notice within a further 72 hours, purchase the mother’s interest in the property at a price equal to the highest bid or reserve price (which shall be determined by reference to whether the auction resulted in the number of bidders referred to in Order 27 or Order 28. In this regard the father will pay the mother the amount to which she is entitled pursuant to these orders within a further six (6) weeks and provide her with either a discharge of mortgage or release from the mortgagee as well as evidence of payment to her parents of the amount due pursuant to Order 33(e). Upon payment the mother shall simultaneously transfer to the father her title and interest in the property.
In the event that the property is not sold:
(a)at an auction pursuant to these orders; and
(b)neither party seeks to acquire the other parties interest in the property,
the father and the mother shall do all acts and things and execute all documents necessary to hold a further auction of the property within four (4) months after the date of the first auction.
Pending completion of the sale of the property the mother shall have exclusive occupation of the property.
Until the property is sold the mother shall pay all rates, taxes and mortgage instalments in relation to the property as and when they fall due and maintain the property in good condition.
Upon the sale of the property the proceeds of sale be paid in the following manner and priority:
(a)Payment of agent’s commission and auction expenses if any due on the sale of the property,
(b)Payment of all moneys outstanding under the mortgage registered on the title of the property,
(c)Payment of legal and selling costs on the sale of the property,
(d)Water rates and council rates,
(e)Payment of $40,000.00 to the mother’s parents,
(f)34% of the then balance to the father,
(g)Balance to the mother from which she shall pay the father $18,606.00 together with 34% of any mortgage arrears and arrears of water and council rates.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hashim & Hashim has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3459 of 2010
| Mr Hashim |
Applicant
And
| Ms Hashim |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for property settlement and parenting orders.
The parenting orders relate to the parties’ two children, H who is seven and A who recently turned five (“the children”).
The parties lived together for about 10½ years, albeit for the final 10 months separated in the family home. From when it was clear separation was likely, tensions in the home escalated as each party sought to take control of the children and remain in occupation.
Mr Hashim (“the father”) commenced property settlement proceedings in mid 2010 which, stated simply, sought the sale of the family home and an equal division of the net sale proceeds. Although he also wanted the children’s time divided equally, time constraints impeded this being raised at the outset, and it was in his Reply that these orders were sought.
Ms Hashim (“the mother”) filed her Response in mid 2010. In essence, she proposed that she have sole parental responsibility and a regime of unsupervised time for the children and the father which would see overnight time commence in 2013. The mother sought to retain the family home and proposed that she pay the father $150,000.00.
Once it is appreciated that the matrimonial assets constitute the family home, a business and modest cash and chattels it would be reasonable to anticipate that the parties could reach agreement and, failing that, a reasonably ordered and contained hearing might be required. Self-evidently the property issues did not resolve and unfortunately it is appropriate to observe that the hearing was anything but contained. Lest it be thought that this sorry state of affairs is something for which the Court or those appearing for the parties and the Independent Children’s Lawyer (“ICL”) are responsible, it behoves the parties to reflect upon the matters which they said were germane, as well as their refusal to concede the obvious and attempts to mislead each other, this and other courts. The approach taken by each party complicated this hearing, increased costs and made the Court’s task more difficult than was necessary.
That said there is no doubt that the children are loved and love both parties. It is beyond dispute that the parties ought to be able to communicate constructively about them but cannot. The parental relationship is hostile and shows no sign of improvement. It is also beyond dispute that this is an outcome to which each party has contributed and must bear significant responsibility. In recognition of these matters, during closing addresses, the father agreed that the mother should have sole parental responsibility. In relation to his time with the children, he abandoned his application for equal time in favour of substantial and significant time along the lines proposed by the ICL.
When the hearing did not finish in the allocated four days, interim orders were made which saw the children spend time with the father overnight each alternate weekend and for three consecutive nights during school holidays. These arrangements worked well and it was proposed by the mother that final orders along those lines be made. Thereafter, provided the father continues therapy for another two years and following review by a family consultant the children’s time with him might be increased.
Unfortunately, in relation to the property settlement proceedings, the parties were further apart when the hearing finished than when it started. The value of the family home was surprisingly contentious and the subject of evidence from two valuers. Senior counsel skilfully exposed difficulties in each valuer’s evidence. Thus, I raised the possibility that the only way to determine the value of the family home was to order its sale. The mother is in occupation and at all times she has sought to retain the home. On the other hand, from the outset, the father’s application has been that the family home be sold. In the context of discussion about possible conditions for sale, which included preservation of the mother’s opportunity to purchase the property at auction, the father said he too wanted to purchase the property at auction. Thus, the spectre arose that in order to retain the home she has always wanted to keep, the mother would need to outbid the father. This is a simple vignette of the many difficulties which beset this hearing.
Background Facts
Throughout these reasons statements of fact are findings of fact determined upon the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
The father was born in Lebanon in 1972.
The mother was born in Australia in 1973.
In 1994 the father moved to Australia where he lived rent free with his grandparents. He was quickly employed and thereafter worked in the building industry. He earned at least $45,000.00 annually, more it would seem when he worked overtime and in high rise buildings. In addition to paying $13,000.00 - $14,000.00 for a car, he said he saved $80,000.00 which he advanced to his aunt and uncle as well as $25,000.00 which he contributed when the parties commenced cohabitation.
According to him and his aunt, Ms A Hashim, between 1994 and 1998, he lent her $80,000.00. It is common ground that after the parties married the father’s aunt and her husband, O, advanced $80,000.00 to the parties. According to the mother, this was a loan which the parties repaid. According to the father, his aunt and uncle merely repaid the monies advanced by him. The question is whether the father made a contribution of $80,000.00. There is no suggestion that the parties are indebted to A and O Hashim. For reasons discussed later, the father and his aunt’s evidence are accepted.
In April 1999 the parties married.
The father’s application for Australian Permanent Residency, on the basis of his claim as a refuge, was refused, as a consequence of which, in June 1999, he returned to Lebanon. The mother (who is a teacher) sponsored his subsequent and successful application for Permanent Residence which resulted in him returning to Australia in May 2000. He has since been granted Australian citizenship.
Upon the father’s return to Australia, for a few months the parties lived in the mother’s parents’ home. By July 2000 they had moved into rented premises.
When the parties commenced cohabitation they had the following assets and liabilities:
Father - cash $25,061.00
Father – funds loaned to A and O Hashim $80,000.00
Mother – Toyota Corolla $18,000.00
Mother – Colonial Bank Account XX 81 $26,806.00
Mother – Colonial Bank Account XX 27-81 $5,139.00
Mother - superannuation (approximately) $6,000.00
In addition, the mother had a quantity of household goods and clothes to which she attributes the values identified at paragraph 100 of her affidavit sworn 2 July 2011. The father also had a quantity of personal effects and tools. Although values are attributed to these items by the mother, neither she nor the father has qualifications which suggest that this opinion evidence is reliable. An example of the mother being willing to proffer evidence designed to manipulate the outcome of the property proceedings is found in her baseless opinion that the business, (the husband’s asset) had goodwill in the amount of $100,000.00. Another example is found in her evidence that at cohabitation her clothing was worth ($5,000.00) compared to the nominal value ($1,000.00) which she claims her clothes and jewellery are now worth. It is clear that what might otherwise be seen as admissions against interest, should be regarded as evidence designed to maximise her contribution at the commencement of cohabitation and minimise the value of items retained by her at separation. Thus, while I am satisfied that the mother had the additional items referred to, the values of these are unable to be determined. Their nature suggests they had little value.
The mother also had a joint bank account with her father which, according to her, contained funds owned by him. The father alleged that it is more likely that the mother deposited the funds into the account and thus when her parents later advanced $64,000.00 this was a ruse which masked the fact that this was the mother’s money. However, during cohabitation the father signed a loan agreement in which he acknowledged that the parties owed the mother’s parents the funds advanced by them, which indebtedness was also acknowledged in documents he filed during these proceedings. The mother has never waivered from the position she took when the funds were advanced that this money belonged to her father. Her constancy compared to the father’s inconsistency in relation to this matter satisfies me that these funds belonged to the mother’s father.
As part of the wedding arrangements, the father contracted to pay the mother a dowry in the amount of $70,000.00. The marriage contract records that he paid her $25,000.00 prior to their wedding and that a further $45,000.00 remained outstanding.
The mother’s evidence that she did not accept the $25,000.00 as payment or settlement for marriage under Sharia law, is inconsistent with the marriage contracts she signed, the translation of which is annexed to the father’s affidavit sworn 31 July 2011. There is an issue whether this $25,000.00 is in addition to the sale proceeds of the father’s car. There is no dispute that shortly prior to the father’s departure for Lebanon he sold his car for $22,000.00. It is the father’s evidence that he deposited the sale proceeds into a joint account which the parties opened a few days prior to their marriage. In the vast quantity of financial records produced, evidence of this deposit was not provided. Nor was this asset disclosed in the father’s property questionnaire. As will be revealed there were significant deficiencies in the father’s (and mother’s) evidence the effect of which is that one needs to carefully consider the surrounding evidence in order to determine contentious facts. In this instance I am not satisfied that the father’s evidence can be accepted. It follows that I do not accept that he used the sale proceeds from the car to purchase furniture when the parties moved into their own accommodation.
When the parties married, the father gave the mother gold, which included a pendant and necklace, the values of which are not in evidence.
In 2002 the father completed a trade recognition test and was licensed to work in his own right as a skilled tradesman. Shortly after he commenced a business named “G Company”.
On 26 June 2002, $76,680.00 was deposited into the Credit Union account. The mother’s parents, Mr and Ms L loaned them $64,200.00 which formed part of the $76,680.00. The balance was withdrawn from the mother’s CBA account. Two amounts made up the $64,200.00, namely $20,000.00 which came from the mother’s father’s account (Exhibit Q) and $44,200.00 from a joint account of the mother and her father (Exhibit L(2)). As discussed earlier, I am satisfied the funds advanced from the joint account belonged to the mother’s father.
In July 2002, in their joint names, the parties purchased the S property (“the family home”) for $305,000.00. They paid $9,241.15 stamp duty and $841.50 in legal fees. Thus, the acquisition costs were $315,582.65. The parties jointly borrowed $242,579.00 from Aussie Home Loans with the balance of $73,015.00 withdrawn from the mother’s account.
On 1 August 2002, the parties withdrew $100,000.00 from the Credit Union account which was paid onto the Aussie Home Loans mortgage. This comprised the $64,200.00 advanced by the mother’s parents, $12,480.00 transferred by the mother, with the balance taken from the parties’ accumulated savings.
From when the parties established their own home they basically lived on the father’s wages and saved the mother’s wages. The mother’s wages were deposited into a CBA account in her sole name (Exhibit “L(1)”) and the father’s wages were deposited into the parties’ joint Credit Union account. The father’s wages were modest and it is evident that the parties lived frugally.
The father obtained an owner builder’s licence and the parties retained a builder to build the home. The house cost about $169,000.00 to build. The builder acquired material at trade price and arranged tradesmen at a discounted price. The father worked alongside the builder as a labourer. This meant that the house was built for less than full market price. His work included cleaning the site, painting, waterproofing, tiling and landscaping. Photographs attached to the valuers’ affidavits show that the house is tiled extensively and it is clear that in the approximately year and a half it took to complete the house, the father contributed in a very significant way to its completion. The parties moved in before the home was fully completed.
In December 2002, the father’s aunt and uncle advanced the $80,000.00 already mentioned. Notwithstanding the father’s earlier representations that at the commencement of cohabitation he owed his aunt and uncle $80,000.00 and his failure to record this as an asset when the parties applied for a home loan, in this hearing, he and his aunt said that these funds comprised repayment of an earlier loan he made to them. This was kept secret from the mother to whom they represented that the $80,000.00 was a loan made to the parties. Because the mother believed the funds were a loan, at her instigation, a loan agreement was drawn up and signed by the parties and the father’s aunt and uncle (Exhibit “P”). The loan agreement is set out below:
This is to confirm that I [O Hashim] and my wife [A Hashim] of [… NSW] have loaned [the father] and [the mother] the sum of eighty thousand dollars ($80,000.00) as a loan to build a house.
This amount has been obtained from the property we owned at [address deleted], which was sold to Mr [S] on the 20th of December, 2002. (See attached letter from Consolidated Lawyers).
[The father] and [the mother] agree that this money is a loan and that we may request this money at any time, however, we will aim to give them one month notice.
[signed] [signed] 20-12-02
[the father] [the mother]
[signed] [signed] 20-12-02
[O Hashim] [A Hashim]
If the father and his aunt’s evidence is accepted they and his uncle signed a document which they knew was false. According to the father, this was done so that if the parties’ marriage failed, he could protect his $80,000.00 from the mother. Notwithstanding that the mother said that the $80,000.00 has been repaid, amid the sea of financial records produced by her, there is no record of funds paid to the uncle and aunt.
When the father’s aunt was called to give evidence (through an interpreter) she initially declined to take an oath or affirmation. She pointed out that the events in which she was involved occurred years ago and that she could not remember everything 100 per cent. Once it was explained to her that she would be required to answer questions truthfully and to the best of her ability, which included being able to honestly say she could not remember she took an affirmation. Further difficulties arose when she, in effect, disavowed her affidavit. Leave was then given to counsel for the father to cross-examine this witness. In the event there appears to be no doubt that from the sale proceeds of her home $80,000.00 was paid to the parties. She is illiterate in English. According to her she signed the loan document, which is in English, at the father’s request but without really knowing why he wanted her to do this. She was adamant that the advance had not been repaid and denied that another document which evidenced repayment had been retained by her. It is unlikely that she was unaware of the contents of the document and it is likely that the father gave her at least the gist. That the father asked his aunt to lie to his wife is not out of character. On the other hand, the considerable difficulties in relation to the mother’s evidence persuades me that in relation to this issue, greatest weight should be placed upon the absence of documentary evidence that the parties have repaid (as is alleged by the mother) the $80,000.00. In short I am satisfied that the $80,000.00 was owed by the father at the commencement of cohabitation and returned to him in the manner alleged by him and his aunt. Were I not so satisfied, the lack of documentation which would support the mother’s evidence that the loan was repaid would otherwise result in the amount of $80,000.00 being included in the pool of matrimonial assets as a joint liability.
The mother’s parents loaned the parties further sums in relation to the home so that by November 2003, they were owed $84,500.00. The mother’s parents and the parties signed a loan agreement on 20 November 2003 which evidenced the loan and provided a mechanism for its repayment. According to the mother $40,000.00 remains outstanding to her parents. This balance takes into account $8,000.00 of a $10,000.00 withdrawal she made (without the father’s knowledge) from her CBA Account XX 751 on 10 August 2009.
The father’s evidence about whether the parties are indebted to the mother’s parents is confused. Ultimately, greatest weight is placed on the Joint Balance Sheet dated 9 November 2010 where he and the mother agreed that they owed her parents $40,000.00. Both parties were represented by lawyers and the representations contained therein constitute authorised representations, as well as agreed facts. On balance, I am satisfied that the loan remains outstanding and is a debt which should be taken into account.
The child H was born in December 2003.
According to the father, on 11 August 2004, his now deceased grandfather loaned him $12,500.00. No documents were provided which evidence this transaction including how the funds were used. A further $9,000.00 was allegedly loaned on 8 November 2007 by his grandfather which was paid into the mortgage. A copy of a bank cheque is attached to the father’s affidavit. Although the grandfather was of modest means I am not persuaded that he lacked the capacity to save and advance these amounts.
It is further alleged by the father that on 13 December 2004 his parents gave him $12,000.00. No documents were provided which evidence this transaction including how the funds were used. Again, although the father’s parents are of modest means, his father had paid work and acquired a number of properties overseas. The evidence is sufficient to persuade me that the father’s parents had the capacity to advance the alleged funds. The mother said there were no such advances. The father’s uncle allegedly advanced $30,000.00 which was repaid in April 2004.
In order to appreciate the likelihood that funds were advanced by the father’s relatives (including advances discussed later) in the amounts alleged by him, it is useful to here record the parties’ taxable income and lump sum payments of $1,000.00 or more paid onto their mortgage (Exhibit “F”). These figures are set out in the table below. So that it is clear, from this income and their savings (plus family allowance) the parties’ income tax, routine mortgage instalments, some costs incurred improving the family home and day to day living expenses were paid. It is immediately apparent that the only way the parties would have been able to make these payments and live is if additional money was received into the household. In addition I am strongly satisfied that they could not have managed to pay $80,000.00 to the father’s aunt and uncle between 2002 and 2004.
In the absence of credible evidence that there existed yet other sources of income, I am satisfied that in addition to funds advanced by the mother’s parents, the only way the parties were able to meet these expenses is because members of the father’s family advanced funds the details of which are discussed in these reasons.
| Year ended 30 June XX | Father’s taxable Income | Mother’s taxable Income | Combined Income | Mortgage Lump Sum Payments | Remaining Income |
| 2003 | 16,291 | 53,749 | 70,040 | 260,200 | -190,160 |
| 2004 | 21,757 | 34,845 | 56,602 | 26,260 | 30,002 |
| 2005 | 19,001 | 36,463 | 55,468 | 58,500 | -3,032 |
| 2006 | 31,823 | 64,467 | 96,290 | 67,036 | 29,254 |
| 2007 | 26,228 | 49,158 | 75,386 | 66,148 | 9,238 |
| 2008 | 31,913 | 23,269 | 55,182 | 44,950 | 10,232 |
| 2009 | 21,252 | 70,879 | 92,125 | Incomplete records | 92,125 |
| 2010 | 31,742 | 67,562 | 99,304 | 23,000 | 76,304 |
The child A was born in March 2007.
The mother denies the father and his brother’s (“M”) evidence that in November 2007 M loaned them $7,500.00 which was paid onto the mortgage. There is no dispute that $7,500.00 was paid towards the mortgage, the issue is the source of funds. According to the mother the father told her that the bank cheque in this amount was provided by a customer. The father and his brother say that the brother obtained a bank cheque. In response to line of questions designed to undermine the father and his brother’s evidence, they both agreed that the father provided his brother with a letter which falsely claimed that the brother was employed by the father in relation to which he was paid $65,000.00 annually. The purpose of the letter was so that M could obtain rental accommodation in a competitive rental market. Their dishonesty in this regard does not mean that it necessarily follows that their evidence on oath should be impugned. I observe that it makes little sense for the father to receive a bank cheque from a customer payable into a mortgage account in his name and I am not persuaded that this occurred. Although the father’s brother is of modest means I am persuaded he advanced the $7,500.00.
On 21 November 2008 the father was charged with possession of a knife in a public place. This followed an ugly altercation at the mother’s parents’ home, the catalyst for which related to what should happen with the children if misfortune befell the parties during an imminent trip to Mecca. The discussion resulted in serious disagreement and, as the situation deteriorated, the father taking a knife from the kitchen as he was chased through the house by the mother’s brothers. As he attempted to flee, the mother’s brothers and her father tried to stop him. During the melee her father was stabbed. A neighbour called police following which there was sufficient evidence for them to charge the father with being in possession of a knife in a public place. There was insufficient evidence for more serious charges, such as that the father stabbed the mother’s father. The mother and her mother did not see what occurred. Although available, her brothers did not give evidence and I am satisfied that their evidence would not have assisted the mother. So that it is clear, although I am satisfied that the knife by which the maternal grandfather was stabbed was that introduced by the father I am unable to determine the sequence of events which resulted in the stabbing.
In November 2008 the parties took a three week trip to Mecca.
By mid 2009 the mother contemplated separation. She consulted her solicitor, for the first time, in mid August 2009. There is an issue which will be discussed later about her use of funds withdrawn from her ANZ account from August 2009 until April 2011. Throughout this period, this is the account into which her salary was paid.
On 16 February 2010 the parties separated. Although separated they continued to live in the family home. In effect, there unfolded a tug of war in relation to the children and dispute in relation to who would keep the home. The mother, with her parents’ assistance, effectively maintained control of the children who spent a lot of time at the maternal grandparents’ home, albeit rarely overnight.
On 2 June 2010 the father filed an application for property settlement. As was mentioned earlier, he applied for orders that the home be sold.
The mother filed her response on 24 June 2010 in which she sought parenting and property settlement orders.
Following this, tensions in the home continued to escalate.
The parties and children attended upon a Family Consultant in relation to a Children’s & Parents Issues Assessment on 6 October 2010. The Family Consultant made the following recommendations:
Summary
· This assessment provides preliminary expert advice to the family and the Court about the issues and the children’s needs.
· Children of all ages tend to do better across all areas of their development in environments that are (relatively) stress, tension and conflict free. Among other things, the confidence to explore, experience and play and learn, requires children to be relatively free from unnecessary anxiety and worry. While the parents said that they are aware of the need to protect the children from overt conflict e.g. verbal (and physical) arguments/disagreements, their awareness of the (negative) impact on the children of covert conflict e.g. ignoring the other parent, no exchange of pleasantries, unspoken tension etc. needs to be developed.
· While both children are aware that their parents are now “divorced” it seems unlikely that either child can anticipate the emotional impact of their parents’ “divorce” until they (i.e. the parents) have physically separated. How well [the children] cope with their parents’ physical separation will, in many respects, be determined by how well it is managed by [the father] and [the mother]. If the parent’s (and [H’s]) description of home life is accurate, it may be that the parents’ physical separation could actually provide the children with some much needed relief from, what appears to be, daily exposure to conflict and tension.
Future directions
· Should this matter remain in the Court, the exact nature of each parent’s concerns, including the issue of family violence, will need to be explored in order for the Court to fully determine the impact, if any, of these issues on the children’s wellbeing and development. However, it is suggested that any assessment only occur once the children have experienced being parented from two (physically) separate households.
· The parents were encouraged to seek legal advice in relation to the issue of sole occupancy and negotiating a parenting arrangement which would, on an interim basis, allow for the children to continue spending time with each of them.
· The parents may benefit from attending a community based organisation such as Relationships Australia and, independently from one another, undertake a parenting after separation course.
On 9 November 2010 the parties attended a Conciliation Conference. According to the mother that evening, the father threatened to kill her, her brother and father. Police attended the home and a provisional ex parte apprehended domestic violence order (“AVO”) was made for the mother’s protection from the father. He was charged with “intimidation” and, that evening, moved into a motel. Two days later, without informing the mother, he arranged for the electricity to be disconnected. While it was reasonable that the account be transferred into her name, his failure to inform her was not and potentially made the children’s circumstances briefly uncomfortable.
An issue arose about whether pursuant to s 69ZT(3) of the Act, the rules of evidence otherwise excluded by s 69ZT(1) should be applied in relation to threats attributed to the father that he would kill the mother and others. Over her counsel’s objection I ruled to apply the otherwise excluded evidentiary provisions. As I understood the facts in issue, it was to the effect that the father had made grave threats which should be afforded real weight. A threat to kill a family member, which it is submitted should be given real significance, is exceptional. Given the subject matter of the proceedings potentially it was very important and unless direct evidence was given would be of little probative value. In circumstances where the evidence could be met by having witnesses introduced to give first hand evidence the ruling in favour of s 69ZT(3) was made. Maluka and Maluka (2011) FLC 93-464.
Apart from allowing the father to see the children for Eid, between 9 November 2010 and 13 December 2010, the mother withheld them.
At the Local Court on 4 December 2010 the intimidation charge and AVO application arising from the 9 November 2010 incident, were appropriately dismissed. That same day the father moved back into the family home. During the month that the father was away from the home he did not pay child support or contribute to its outgoings.
Of her own volition and, in relation to the children, without the father’s consent, the mother and children moved into her parents’ home at S. The father lived in the home until mid 2011 when he was ordered to vacate and the mother resumed occupation. During this approximate seven months the father paid $300.00 in total in child support and contributed to expenses associated with the property.
The paternal grandmother arrived from Lebanon on 22 December 2010 and moved in with the father. The mother cites this as evidence that the father would prefer to delegate care of the children to others. Indeed, his attempts post separation to include his family in the children’s lives attracts an array of criticisms from her. Given the extent to which she involves her family in the children’s lives, there is an element of hypocrisy about her approach to the paternal family. In any event, her complaints about the extent to which the father involves his relatives in the children’s lives are rejected. His evidence that if the children spend time with him he will be primarily responsible for their care is accepted.
On 6 January 2011 the father telephoned the mother and asked to see the children. She told him that he could only see the children if he signed an undertaking to return them. Having taken legal advice, curiously the father refused.
The parties ran into each other at the shops on 11 January 2011. Each was accompanied by their mother and the children were with the mother. An altercation took place in relation to which the mother said that the father pushed her about seven times. Photographs are in evidence of bruising she said she suffered in the incident. This is a matter to which I shall return. Police were called and the father was charged with “common assault” and an AVO was obtained for the mother and children’s protection from him. Following a defended hearing in which the parties and the maternal grandmother gave evidence, on 22 November 2011, the assault charge was dismissed. The AVO was listed for further hearing in February 2012.
On 25 January 2011 on a “Without Admissions” basis, the father agreed to an interim AVO pending the conclusion of the “common assault” charge. In relation to the charge, he was granted conditional bail.
According to the father, between 14 December 2010 and 15 March 2011, the mother denied him contact with the children. While contact did not take place, it was only on 2 March 2011 that the father’s solicitors wrote to the mother’s solicitor formally requesting time with the children. That said, the mother was in no doubt that the father and his mother wanted to see the children.
On 11 March 2011 the mother’s solicitors replied and repeated the offer originally made in November 2010 that, provided the father entered into interim parenting orders, he could see the children after school each Tuesday and Friday and each second Sunday between 10.30 am and 7.30 pm. Curiously because he wanted the children every Sunday the father refused the mother’s offer. This is a simple example of how poorly the parties communicate and that even when the children’s interests are at stake, compromise in their interests is elusive. This is the sort of matter which shows the logic that one party has sole parental responsibility and indicates that equal time arrangements are contraindicated.
The proceedings came before the Court on 15 March 2011, at which time, an ICL was appointed, the proceedings were adjourned and, by consent, the following parenting orders were made:
1.That the father spend time with [the children] as follows:
1.1from 4 pm to 7 pm on Wednesday 16 March 2011;
1.2from 4 pm to 7 pm on Thursday 17 March 2011;
1.3from 8 am to 7 pm on Saturday 19 March 2011;
1.4from 8:30 am to 11:30 am on Sunday 20 March 2011.
2.That changeover take place at McDonalds Restaurant [B].
Thus contact between the father and children resumed.
The proceedings were again before the Court on 21 March 2011 when the following orders were made:
1.That the parties attend a Child Dispute Conference at 11:00 am today.
2.That these proceedings are adjourned to the Judicial Duty List at 10:00 am on 13 April 2011.
3.That by consent and without admission until 6:00 pm on 13 April 2011 [the children] shall spend time with their father:
3.1 Each Tuesday and Friday from after school until 6:30 pm; and
3.2 Each Sunday from 10:00 am to 6:30 pm
with changeover, other than when school is in operation, at McDonalds [B].
On 13 April 2011, the following further interim parenting orders were made by consent:
1.That [the children] live with the mother.
2.That the children spend time with the father as follows:
a. Every Tuesday and Friday in school term periods from after day care and school to 7:30 pm, and every Tuesday and Friday in school holiday periods from 9.00 am to 6:30 pm commencing Friday, 15 April 2011.
b. Every alternate weekend from after the children’s [language] school on Saturday to 4:30 pm on Sunday commencing Saturday, 16 April 2011.
c. For three consecutive days and nights in the first half each school holiday period, with the father to give the mother 21 days notice of which days he intends to spend with the children.
d. Other times as agreed between the parties.
3.That for the purpose of the father spending time with the children, the father will collect the children from day care and school on Tuesdays and Fridays in school term periods and from [language] School on Saturdays. All other changeovers will take place at McDonalds at [B].
4.The father’s overnight time with the children under Order 2 is subject to the father having accommodation in which the children have their own bedroom and own beds. In the event that the father does not have such accommodation, his time with the children each alternate weekend will commence at 9.00 am on Sunday.
5.The parties are hereby restrained from denigrating the other party in the presence and/or hearing of the children.
6.That the father’s time with the children is suspended for the second half of each school holiday period.
The father has spent time with the children in accordance with these interim orders. Thus, from mid April 2011 he saw the children each alternate weekend overnight and twice during the week.
The father vacated the family home on 13 May 2011, following which the mother and children moved in. They have lived there ever since.
The common assault charge was heard, but not completed, on 30 May 2011. The hearing was adjourned until 22 November 2011 as was the interim AVO.
The father’s mother returned overseas on 25 June 2011. That day, he took the child H out of her Saturday language school 10 minutes early. Although the father denied it, he did not have the school Principal’s (Mr D) permission to remove H and he behaved aggressively in the presence of the children as well as other students. This is a matter to which I shall return.
In July 2011, the Family Consultant interviewed the parties and children for the purpose of a family report. Her report is attached to an affidavit sworn by her on 15 July 2011. Commenting upon the children’s relationships with the parties, the Family Consultant said:
24.Throughout the day [the children] both appeared relaxed and comfortable in the presence of their mother. Observations raised no concerns about the nature of the children’s relationship with their mother, who they seem to have the utmost confidence in, to meet all of their day to day needs.
25.While on the information available to the family consultant (and consistent with observations), the children’s primary attachment would appear to be with their mother, they both had good quality interactions with their father on all occasions they were observed with him.
26.When observed with their father (without their mother present) neither child showed any signs of fear or anxiety. Both children appeared animated and relaxed in their father’s company. They readily engaged with him and unhesitatingly accepted his direction and assistance. [H] was particularly chatty when with her father and [A] was observed to join in with their conversation to clarify or to object to a point his sister was making. In observation with his father [A] demonstrated a preference for his father’s assistance over other people available to him e.g. when asked by the family consultant if he wanted a drink, [A] shook his head to refuse, then immediately approached his father and asked for a drink of water. Observations raised no concern about the nature of the children’s relationship with their father.
27.When the children were observed with their parents together (in the waiting room and briefly in the childcare room) they (i.e. the children) appeared apprehensive and watchful and more constrained. They were unable to move freely between their parents, even to approach or greet their father, who they were obviously pleased to see. Both children appeared to experience some uncertainty and apprehension about their parents being in close proximity to one another. (pp 11-12)
Primarily because the nature and extent of family violence was contested, the Family Consultant did not make specific recommendations. In relation to family violence, she said:
38.[The father] denies that he has been in any way abusive or threatening towards [the mother]. If the mother’s allegations of family violence are found to be correct, the father demonstrates no insight into the extent to which his actions have had an effect on the children and their mother. In this scenario [the father’s] lack of recognition of how the mother and the children may have been affected could increase the risk of the children being exposed to harm in the future (when in his care) and raises concerns regarding his overall parental capacity.
39.On the other hand, if the mother’s allegations are unsupported or are found to have been exaggerated or fabricated to further her cause in these proceedings, this raises concerns about her parenting capacity. There is also cause for concern that, in this scenario, the mother may be unable to consider the negative impact of such destructive behaviours on the children. (p 15)
The Family Consultant was troubled about the parties’ poor parental relationship, which she accurately described as being “hostile” and how they might be able to co-operate and share information about the children. She did not support the father’s equal time application and was concerned that substantially shared parenting could result in “… continuing to expose the children to the considerable difficulties that exist in the parental relationship (and between family members other than the parents)”. By way of recommendation, the Family Consultant said:
58.It is assessed that the best interests of these children would be served by reducing the number of times that they go backwards and forwards between their parents in a fortnightly period and by reducing the occasions of direct contact between the mother and the father and the family members who assist with changeovers.
59.It is suggested that it would be in the best interests of the children for both of their parents to attend, albeit separately, a six week Parenting After Separation Program with the hope that it may improve their communication in respect of the children and their understanding of why it is so important that the children are adequately shielded from the difficulties in the parental relationship and the parental conflict. (p 21)
When the hearing could not be completed in the allocated time, it was adjourned with the following further interim orders made on 5 August 2011:
1.All prior orders which granted photocopy access to documents produced under subpoena are discharged.
2.That all inspection of documents produced under subpoena, the Court file and / or exhibits may only take place in the exhibits room where they will be monitored by video recording facilities.
3.That these proceedings are adjourned part heard to 23 and 24 January 2012.
4.That the father shall forthwith do all acts and things necessary to:
4.1Forthwith engage in an ongoing programme of anger management and behavioural change therapy with [Ms T], Psychologist, or such other therapist as may be agreed between the parties ("the therapist"); and
4.2Provide written notification to the mother and the Independent Children’s Lawyer (“ICL”) when he has scheduled his first appointment with the therapist; and
4.3Accept all referrals and recommendations as to treatment made by the therapist; and
4.4Continue to attend for therapy for as long as and at such frequency as the therapist recommends.
5.That Order 2(b) of the consent orders dated 13 April 2011 is varied:
5.1By deleting the words “after the children’s [language] school” and inserting the words “3.00 pm”; and
5.2By deleting “4.30 pm” and inserting “5.30 pm”.
6.That Order 3 of the consent orders dated 13 April 2011 is varied by deleting the words “and from [language] school on Saturdays”.
7.That in the long summer holidays, the children spend time with the father for three non-consecutive blocks of three consecutive days and nights, one block in December 2011 and two blocks in January 2012.
8.That Order 2(b) of the consent orders dated 13 April 2011 (as amended herein) is suspended during school holidays.
9.That the respondent wife has leave to file and serve an Affidavit by [the maternal grandmother] within 21 days.
BY CONSENT, THE COURT ORDERS:
10.That the parties are hereby restrained from denigrating the other party in the presence and / or hearing of the children.
11.That the cost of therapy in Order 4 be met by the father.
12.That upon the father’s compliance with Order 4.2, the ICL shall forward to the therapist copies of:
12.1Family Consultant [Ms R’s] Child and Parent Issues Assessment dated 8 October 2010.
12.2Family Consultant Ms R’s Family Report dated 15 July 2011.
12.3A copy of these Orders.
12.4A copy of the handwritten Police Statement of [Ms E] dated 27 June 2011.
13.That save as provided in Orders 14 and 15, the mother have sole parental responsibility for the children in relation to education and health.
14.Except in the event of an emergency, that the mother shall prior to implementing a decision about the children’s education and health:
14.1 Attempt to contact the father; and
14.2 Attempt to ascertain his views in relation to the decision; and
14.3 Give his views proper consideration.
15.That the father has such parental responsibility as is necessary for any health or educational professional or institution dealing with the children, including but not limited to doctors and schools, to:
15.1Obtain necessary medical treatment when the children are spending time with him; and
15.2Obtain any information about the children to which a parent is normally entitled, including but not limited to medical reports, school reports and school photos.
16.That in the event that the father is required to obtain medical treatment for either or both of the children when they are spending time with him, he shall inform the mother as soon as practicable of that medical treatment including the name and or practice address of the treating doctor and any recommendations for treatment.
17.That pursuant to section 13 C of the Family Law Act, the mother and father within seven days of the making of these orders do all acts and things necessary to enrol in, and then attend as required, a Parenting after Separation or like course of no less than six weeks duration, and
17.1upon enrolment advise the ICL and the other parent of the name of the course and the dates of attendance required to complete the course; and
17.2upon completion of the course, provide the other parent with a copy of their certificate of completion with respect to the course.
I am not satisfied that the father requires further therapy with Ms T, in order to reduce to acceptable levels the risk of exposure to family violence or to enable him to be a good enough role model, before longer periods of time with the children are appropriate. Rather, further therapy enhances his parenting capacity and is likely to result in him becoming a more insightful and intuitive parent with an even lower level of risk that the children might be exposed to angry outbursts or violence.
Although the mother says the children are bored with the father and unlikely to view favourably more time with him, she is not a reliable reporter on these matters. The warm interaction observed between the children and the father by the Family Consultant carries far greater weight and persuade me that it is likely that the children would welcome extra time with their father.
The father lives in the same vicinity as the mother and children. Photographs show he has pleasant accommodation which is nicely furnished. Although the mother has little regard for his extended family, the father has a reasonably large extended family in Australia to whom he is close. It would appear common ground that his sister-in-law has at times struggled and it is not his intention that she or other members of his family would do anything other than occasionally assist him with the children’s care. In short, I am satisfied the father is able to adequately meet the children’s physical needs for the periods of time proposed by the ICL. Although it was his heart’s desire that the children live with him half of the time, he recognised that their emotional and psychological wellbeing require that they live predominantly with the mother. Nonetheless his lack of insight into the effect of his behaviour on others, including the children, raises questions about his capacity to meet their emotional and psychological needs. Although there is scope for improvement, for the periods proposed by the ICL, in this regard the father’s parenting capacity is adequate.
So that it is clear, the mother also lacks insight into the effect of her behaviour and attitude towards the father in the children’s presence. She too should reflect upon her role in the tensions which developed in the home, on 9 November 2010 and at the local shops. Her decision to call the Police to the home on 20 August 2010 was unwarranted. It is highly likely to have heightened the children’s anxiety about the parents and the situation in the home and to have sent a fairly strong message that their father was a bad person. In short, in her desire to prevail the mother showed a serious lack of regard for the children’s relationship with the father, as well as their affection for him. In my view, it would be to her and the children’s benefit if, just as the father does, she obtains therapeutic assistance to assist her to adapt to the breakdown in the marriage and to help her support the children’s relationship with the father. She has already seen a domestic violence counsellor and, as she has shown herself amenable to counselling, orders requiring her to attend will not be made. But for this and her attitude towards the father’s family, I have no doubt that she is a highly committed and capable parent.
Although she does not support a change in the children’s time with the father, she has the capacity to cope with the time they spend with him being increased along the lines proposed by the ICL. So that it is clear, increasing the children’s time with the father along the lines proposed by the ICL will not compromise the mother’s ability to continue to meet their needs.
Increasing the children’s time with the father has as its key advantage giving them the opportunity to develop their good relationship with him. On the other hand, if their time with him does not increase, they are denied the opportunity to experience, in a real way, him as their parent. While regular short periods and fortnightly overnights, as a general structure, has enabled the children’s relationship with the father to survive separation, if this style of contact continues too long the sort of day to day parenting which usually underpins strong and meaningful relationships will be absent. For these children, the quality of their relationship with the father will be enhanced and more meaningful if orders along the lines proposed by the ICL are adopted. Unless those types of changes are made the children’s relationship with the father may begin to struggle. In circumstances where theirs is a mutually affectionate relationship which contributes to the children’s identity and wellbeing, steps which would potentially compromise these relationships should not, absent strong contra-indicators, be taken.
Both parents take seriously their parental responsibilities, albeit the father has not had primary responsibility for the children’s care and has paid minimal child support. In both parties’ care the children’s cultural identity is assured.
There is considerable overlap between s 60CC(4) and (4A) with s 60CC(3). In regard to my findings made thus far, nothing further needs be said in relation to s 60CC(4) and (4A).
Conclusion and structure of orders
Because the parties agree that the mother will have sole parental responsibility, which I agree is in the children’s best interests, equal time need not be considered. The point being that as there will be sole parental responsibility, the children’s living arrangements are “at large” as those words are understood in Goode & Goode, and to be determined in accordance with their best interests. This necessarily involves considerations of my findings discussed above.
Although phrased slightly differently, I am satisfied that the children enjoy a mutually affectionate relationship with the father. It is fundamentally important to each child’s sense of identity and happiness that their relationships with their parents continue in a meaningful way. In this regard, the children’s relationship with the mother is assured, albeit more needs to be done by the father, to relieve the children of apprehension and anxiety they feel because of their perceptions of his attitudes towards their mother. I make similar findings in relation to the mother.
That said, I am satisfied that in the context of tensions between the parties as their marriage failed and they continued to cohabit resulted in the children observing angry exchanges between their parents, as well as being involved in the ugly incidents discussed earlier. In addition, I have accepted that to the exclusion of the mother, the father was involved in the two most serious violence incidents, namely when the maternal grandfather was stabbed and at the languge School. The latter shows, that unlike the mother, when angered he can use foul language in the presence of children. The evidence does not establish the physical violence by her whereas the father was physical on 9 November 2010 and at the language School. While this is not his usual mode of behaviour, in essence, it is in his and the children’s advantage that he has attended Ms T. With her, he has established a good working relationship and the situation now is that there is a reasonably low level of risk that he would behave in an abusive or violent manner towards the mother or in the children’s presence. So that it is clear, it is appropriate and in the children’s best interests that their time with the father continues unsupervised.
By now it would be apparent that I am satisfied the children’s time with the father should be increased so that their warm relationship can continue to develop. Because the parties live nearby and will almost certainly continue to do so regular contact is easily implemented. The orders I will make provide for age appropriate increments to the children’s time with the father and pace the changes to their circumstances at a rate to which they should readily adjust. No changes are made during Term 1 2012. This is the child A’s first year at school and it is appropriate that he is afforded the opportunity to settle into Kindergarten before changes are made to other aspects of his routine.
Thus, the first incremental change will coincide with the end of Term 1 2012. Because the children are used to frequent time with the father, they will continue to spend time with him every week. Although I understand the rationale for the ICL’s approach that the first increment involves an increase from one to four nights during each term fortnight, this is a significant change which might be problematic for at least the child A.
Notwithstanding that the mother argues for the continuation of the current orders, I am strongly satisfied the children are mature enough and ready for an increase in their time with the father. An immediate increase, however, to four nights a fortnight during term (as proposed by the father and ICL) is too dramatic a change and, three nights spread over each two week period, will help the children take this change in their stride. I strongly agree with the ICL that the Family Consultant’s evidence about the children’s anxiety in the presence of both parties makes it desirable that as far as possible changeover is effected without the parties coming into contact. To a considerable extent, this can be achieved if changeover takes place at school. The parties agree that the children will continue to attend the language School which provides a satisfactory changeover venue on weekends. Notwithstanding the school’s unhappiness about the June 2011 incident the father has not been instructed to keep away. Changeover which does not require the parties to meet addresses any ongoing concerns the mother may have that the father might physically or verbally abuse her.
Because of the mother’s attitudes in relation to the father’s inability to assist the children with homework and, to avoid this becoming a contentious practical problem, the orders will be structured so that during the school week the children are with her and the father’s time is structured more around weekends.
The approach I have taken will still provide the mother with an amount of weekend time, albeit none that are completely free. With the children attending language School on Saturday the reality is that neither party will be able to take the children away for full weekends in any event. With the mother’s parents and her family close by, just as she did from December 2010, the mother will be able to maintain close contact between the children and members of her family during the week and on weekends when the children are with her.
The next incremental change will take place no sooner than the commencement of Term 3 2012. By then, the children will have had a full school term of longer periods with the father, during which he will have continued to attend Ms T. Essentially, in order to put the mother more at ease the father will be required to provide her with a report from Ms T which confirms her satisfaction that he has developed the capacity to recognise the impact of his behaviour upon others. It is then in the children’s best interests to increase their time during term to four nights each two weeks.
Sitting alongside the increases to the children’s time with the father in term are time increases during school holidays. Again, a stepped approach is appropriate until these are eventually shared equally. Although the mother is concerned that the father’s holiday time, particularly at Christmas, impedes her ability to holiday away with the children, her terms of employment means that she will always have holidays for the full amount of the school holidays. Although the father is self-employed, his modest income means he does not have the same degree of flexibility and thus, in relation to summer school holiday time, he will have the first opportunity to nominate his proposed time. Three months notice should give the mother sufficient opportunity to make summer holiday arrangements. However, if the father does not give notice within the timeframe stipulated the mother will have the opportunity on two months notice to determine the dates. Although the father will eventually have the children for half of the summer school holidays, this will be divided into two blocks. Simply put, this strikes the correct balance between the father’s parenting capacity and the strength of the children’s relationship with the mother.
In other respects, days which are important to the children and parties, namely Eid, Mother’s and Father’s Day are shared or spent with the relevant parent. Because the children will regularly move between both parents, further adjustments in relation to birthdays is unnecessary and would introduce too much change into the children’s lives.
The balance of the orders are self-explanatory. Most are designed to facilitate the passage of information between the parties and with the father’s therapist. The rationale for a non-denigration order is simply to ensure that the children are not burdened by unpleasant remarks about their parents from others.
For these reasons I am satisfied the orders are in the children’s best interests.
I certify that the preceding two hundred and thirty six (236) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 19 March 2012.
Associate:
Date: 19 March 2012
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Remedies
-
Costs
2
4
2