HOULIS & HOULIS
[2010] FMCAfam 972
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOULIS & HOULIS | [2010] FMCAfam 972 |
| FAMILY LAW – Children – with whom children live – family violence – concerns in respect to father’s attitude to physical discipline – supervised time – equal shared care. FAMILY LAW – Property – superannuation – contributions – just and equitable. |
| Family Law Act 1975, ss.60CA, 60CC, 60B, 61DA, 4 (1) |
| In the Marriage of Hall (1979) FLC 90-713 Lindsay & Baker (2007) FLC 93-347 West & Green (1993) FLC 92-394 |
| Applicant: | MS HOULIS |
| Respondent: | MR HOULIS |
| File Number: | HBC393 of 2009 |
| Judgment of: | FM Baker |
| Hearing dates: | 26, 27 & 28 May; 24 June; 21 & 22 July; 11 August 2010 |
| Date of Last Submission: | 11 August 2010 |
| Delivered at: | Hobart |
| Delivered on: | 9 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fitzgerald |
| Counsel for the Respondent: | Mr Houlis in Person |
| Counsel for the Independent Children’s Lawyer: | Ms Mooney |
ORDERS
Ms Houlis (“the wife”) and Mr Houlis (“the husband”) have equal shared parental responsibility for the four children [W] born [in] 2000, [X] born [in] 2001, [Y] born [in] 2003, [Z] born [in] 2007 (“the children”).
The children live with the wife.
The children spend time with the husband at church each Saturday, at Scouts, at the children’s sporting events and such other times as agreed, such time to take place in public.
The children spend such other time with the husband as agreed, such time to be supervised by a responsible adult as agreed.
The children communicate with the husband by telephone twice each week.
The parties commence and maintain a communication book with respect to the children, such book shall travel with the children between each party.
Both parties:
(a)Attend and complete, as soon as practicable, a Post Separation Parenting Program.
(b)Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program.
(c)Pay and otherwise be responsible for all costs associated with the program.
(d)Provide evidence to the other parties’ solicitor that they have enrolled in the program.
(e)Provide evidence to the other parties’ solicitor that they have successfully completed the program.
Neither party denigrate the other in the presence of the children or within hearing distance of the children or make derogatory comments about the other party to the children or within the hearing distance of the children.
The wife be restrained from leaving the children in the sole care of
Mr N.
The Independent Children’s Lawyer’s application for costs be reserved.
Property orders
From the net proceeds of sale currently invested, the parties pay the sum of $100,000.00 to Mr and Ms H and the sum of $25,000.00 to
Ms N.
The balance net proceeds of sale currently invested be divided as follows:
(i) To the wife $323,545.00.
(ii) To the husband $150,772.00
The interest accumulated on the net proceeds of sale be divided equally between the parties.
Each party be solely entitled to the exclusion of the other to all other property and superannuation owned by or in the possession of such party as at date of these orders.
Each party be solely liable for and indemnify the other against any liability each party has.
The wife’s costs of the parenting and property applications be reserved
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Houlis & Houlis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC393 of 2009
| MS HOULIS |
Applicant
And
| MR HOULIS |
Respondent
REASONS FOR JUDGMENT
These are proceedings between the parties (“the wife” and “the husband”) for parenting and property orders. The parenting application is in respect of the four children of the parties’ marriage, ranging in age from 3 to 10 years.
The children are currently living with the wife. They are not currently spending time with the husband. This is because the husband will not abide by a court order that he not physically discipline the children.
In respect of the parenting application, the issues in dispute are as follows:
·The allocation of parental responsibility.
·Whether the children should live in an equal time arrangement, or primarily with the wife.
·Whether the children are at risk of excessive physical discipline from either party, and if so, the nature and degree of that risk and whether it should affect the nature and extent of the time that the children spend with either parent.
In respect of the property application, the wife proposes a percentage division of the assets in the ratio of 70/30 per cent, in her favour. The husband proposes an equal division of the assets. In respect of the parties’ superannuation, the wife proposes that she receive a cash adjustment of $50,000.00. The husband proposes that there be no cash adjustment.
The parties filed contravention applications against each other. Those applications were listed for hearing together with the parenting and property applications. Both parties agreed for these applications not to be heard.
Background
The parents married [in] 1999 and separated on 29 April 2009.
The children of that marriage (“the children”) are:
·[W] born [in] 2000 (“[W]”).
·[X] born [in] 2001 (“[X]”).
·[Y] born [in] 2003 (“[Y]”).
·[Z] born [in] 2007 (“[Z]”).
The parties lived in the matrimonial home in [omitted] from October 2001. On 6 May 2009 the wife left the home with the children. The parties have subsequently sold the former matrimonial home and both live in rental accommodation.
On 4 June 2009 interim Consent Orders were made. They provided that the children live with the wife and spend time with the husband. An order was made that neither party physically discipline the children. On 12 March 2010 the wife filed a Notice of Child Abuse alleging the husband abused the children on 31 December 2009, 25 February 2010 and 28 February 2010.
The husband subsequently told the Court Expert, Dr W, that he could no longer abide by the Court order not to physically discipline the children. He has not spent unsupervised time with the children since some time around the end of March 2010. He spends time with the children in public places such as at church and at the children’s soccer games.
The husband is aged 60 and the wife is aged 36. They are both [occupation omitted]. The husband retired in 2004, and has received a superannuation pension since then. The wife continued to work part-time. The wife is currently on leave as she is caring for the children on a full-time basis.
Issues – Application for parenting orders
The husband was self-represented during the hearing. His case may be broadly summarised as follows:
·As a general position, the husband accepted that he hits the children. At times, he also agreed with the evidence about specific incidents on which he hit the children.
·The husband argued that his hitting of the children does not constitute family violence; rather, it constitutes an acceptable level of domestic discipline. To support this position, he argued the following:
·The children do not fear for their personal well-being or safety.
·That his acts did not constitute a crime under the criminal law of Tasmania.
·That he has a religious and moral duty to exercise physical discipline.
·The husband frequently disputed the evidence surrounding those specific incidents, as identified by the wife and other witnesses, on which he was alleged to have hit the children. Whilst he rarely disputed that he had struck the children, he argued that the context surrounding those events differed in key respects. The father’s evidence usually supported his position that the act of striking the children constituted domestic discipline, or was part of what might generally be called “rough play”.
The husband also admitted that incidents of domestic violence did occur during his relationship with the wife. He pointed to several incidents that he believes were examples. Those examples consisted of violence between the parties. Where such violence had occurred, the husband argued the following:
·That the wife exaggerated the extent of injuries sustained by her, and the level of violence and anger exhibited by the husband.
·That the wife downplayed the level of violence and anger exhibited by her.
In support of her application the wife pointed to a large number of specific incidents that she alleges are family violence. The husband also identified some incidents. Discussion of these incidents formed the bulk of evidence at hearing.
On a number of occasions the husband hit the children with a paint stick. The husband presented that paint stick to the Court, and it was tendered as an exhibit by the Independent Children’s Lawyer.[1] The stick is a piece of wood approximately 27cm long, 3.5cm wide and 0.5cm thick. It has evidently been used to stir house-paint, which has dried into a thick coating around the wood.
[1] Exhibit “ICL 3”
The wife’s proposals
At the commencement of the trial the wife sought the following:
·An order for several parental responsibility.
·An order that the children live with the wife and spend unsupervised time with the husband, conditional upon the husband completing the “Changing Abusive Behaviours” program and agreeing not to physically discipline the children.
After the evidence was heard, the wife amended her application. She now seeks the following:
·An order for sole parental responsibility.
·An order that the children spend supervised time with the husband or time in public places, where the husband cannot use physical discipline upon the children.
The husband’s proposals
The husband seeks the following:
·An order for equal shared parental responsibility.
·An order that the children live with him each alternate week.
·An order that the children not be left in the care of Mr N, the wife’s brother.
The Independent Children’s Lawyer’s proposals
At the commencement of the trial the Independent Children’s Lawyer sought the following:
·An order for several parental responsibility.
·An order that that the children live with the wife and that the children live with the husband each alternate week from Thursday after school until Sunday, conditional upon him not physically disciplining them: The husband’s time with the children to commence once he has completed the “Changing Abusive Behaviours Program.”
·Injunctive orders that the parties not use physical discipline upon the children.
After the evidence was heard the Independent Children’s Lawyer changed her recommendation that the children spend unsupervised time with the husband. Her previous recommendation was based on the assumption that the husband would abide by an order not hit, smack or threaten the children. The husband gave oral evidence that he cannot abide by any such order. Accordingly, the Independent Children’s Lawyer now recommends that the husband spend supervised time or time in public places with the children.
Recommendations of the Court Expert
In the first report, the Court Expert (“Dr W”) recommended against a substantial shared care arrangement. Noting the benefit to the children of a relationship with the husband, Dr W recommended that measures be taken to minimise any of the children’s fears. Those recommended measures included supervised time with the husband, until he was able to accept responsibility for his actions and to demonstrate an understanding of the effect his behaviour, had or will have on the children’s wellbeing.
In the addendum to the first report, Dr W stated that the husband had clearly told him that he will no longer abstain from using physical discipline with the children. It was apparent to Dr W that the husband does not recognise the negative impact this violence has had, and will continue to have, on the children. Dr W was of the opinion that the wife is not attempting to alienate the children from the husband. He recommended that the time the children spend with the husband be monitored to ensure that there is no further violence committed towards the children and that the time be supervised either by the Children’s Contact Service or alternatively by another responsible adult that both parties can agree upon.
Dr W was cross-examined by Counsel for the wife, the Independent Children’s Lawyer and the husband. At the end of the cross-examination his recommendations remained as outlined in his reports.
Evidence
The wife relied on the following:
·Her affidavits filed 5 August 2009, 12 March 2010, 19 May 2010, and 2 August 2010.
·Her Financial Statement filed 25 May 2010.
·Notices of Child Abuse filed 5 August 2009, 12 March 2010 and 13 May 2010.
·Affidavit of Ms K (“Ms K”) filed 24 May 2009.
·Affidavit of Ms W (“Ms W”) filed 25 May 2009.
·Affidavit of Ms C (“Ms C”) filed 25 May 2009.
·Affidavit of Mr J (“Mr J”) filed 25 May 2009.
·Hobart Children’s Contact Centre reports dated July and August 2009.
·Documents produced to the Court by Tasmania Police and Child Protection pursuant to subpoenas.
The wife, Ms C, Ms K, Ms W and Mr J were cross-examined.
The husband relied on the following:
·Statement of Dr G (“Dr G”) filed 3 May 2010.
·
Affidavits of husband filed 29 May 2009, 22 April 2010,
8 September 2009, 15 March 2010 and 26 March 2010.
·His Financial Statement filed 3 May 2010.
·Affidavit of Mr D (“Mr D”) filed 29 May 2009.
·Affidavit of Ms D (“Ms D”) filed 29 May 2009.
·Affidavit of Ms P (“Ms P”) filed 29 May 2009
·Response to Amended Initiating Application filed 19 April 2010.
·Tasmanian Police Records.
·Child Protection Service records.
·Two Hobart Children’s Contact Service reports dated July and August 2009.
The husband was cross-examined.
The Independent Children’s Lawyer relied on the following documents:
·Order dated 4 June 2009.
·Two Hobart Children’s Contact Centre reports dated July and August 2009.
·Report by Court Expert, Dr W dated 18 February 2010.
·Addendum report Dr W dated 30 March 2010.
·Issues Assessment by Ms S dated 3 June 2009.
·Documents produced to the Court by Tasmania Police and Child Protection pursuant to subpoenas.
Ms S was cross-examined by all parties.
Evidence of the Family Consultant Ms S
Ms S prepared a Memorandum to Court following a child dispute conference which was held on 3 June 2009. Unexpectedly, the wife brought the children with her to the conference. Although this was the result of confusion and not a planned occurrence, Ms S took advantage of the situation and briefly interviewed [W], [X] and [Y].
[W] disclosed that the husband uses a belt to punish him, [X] and [Y], and that he makes them all scared. He hits [Z] with a wooden cooking spoon. [W] was scared for [Z]’s sake, as the husband hits them two or three times on each occasion, and [W] was worried that the husband could hurt [Z]. [W] had seen an argument between his parents and said he would feel safer having the changeover at the Contact Centre.
[Y] told Ms S that the husband smacked her on her leg and back and that he used a spoon, belt or his hand. When asked who was hit the most, [Y] said herself or [X]. She said that [X] was hit when he trampled on flowers.
[X] told Ms S that his father used to give them lots of smacks with his belt, hand or wooden spoon and swore at them. He said that he would be scared to see his father because he may start hitting them.
In respect of the wife’s discipline of the children, Ms S was told by [W] that she hit him on the leg with her hand and threatened to use a wooden spoon, but never did. [X] said that he has been hit by the wife, but that she only used her hand, and she has not hit him as much as the husband has.
Ms S made a report to the Child Protection authorities after hearing these disclosures.
Ms S was of the opinion that the children’s statements were age appropriate. She said that their statements were made from their own experience because of the details they gave. During the husband’s cross-examination of Ms S, she said that the children were expressing fear, but not to the point of not wanting to see the husband. Physical discipline is what they fear.
Evidence of Dr W
On 24 August 2009 Dr W was appointed as the Court Expert pursuant to division 15.2 of the Federal Magistrates Rules 2001. Dr W prepared two reports dated 26 February 2010 and 15 April 2010.
Dr W concluded that the husband does not recognise or accept that his style of parenting and discipline of his children inherently involves family violence. He thinks the Bible supports his actions. He sees physical discipline as an appropriate, effective way of changing behaviour in children. The husband told Dr W that he will not continue to abstain from using physical discipline with the children. It was apparent to Dr W that the husband does not recognise the negative impact this violence has had, and will continue to have, on the children. The impact is not only apparent in their relationship with the husband but in their own psychological well-being.
In his oral evidence, Dr W stated that fear-based control creates significant anxiety for children, who can be in a constant state of anxiety and apprehension, not knowing what may occur at any time. Swearing at children and swearing in their presence can also have a significant effect on them.
Dr W said that the negative impact of physical discipline on the children far outweighs the positive impact of their relationship with the husband. Notwithstanding this, he said that significant and prolonged grief will occur if the children and the husband are separated. If some form of communication, such as telephone or written communication, is used, their level of distress will be reduced.
Dr W’s evidence was that the children presented as anxious. [X] was fearful and concerned about further violence. [W] exhibited a high level of arousal, being attuned to danger. [Y] was anxious of the prospect of spending time with the husband and was confused. Dr W believed that the wife influenced the children to be more finely attuned to the violence which could occur. The wife has made the children aware of the unacceptable nature of the violence.
In respect of the husband’s assertion that the wife was violent towards him, Dr W said that it seemed to him to occur in situations when she was angry with the husband’s discipline of the children, and was reactive in nature.
Dr W was of the opinion that although the husband can be a loving and considerate father to his children, the children should live with the wife. This recommendation was based on the assumption that the husband will not abide by an order not to hit, smack or threaten the children. This assumption proved to be correct, as the husband gave evidence that he will not abide by such an order.
In respect of the wife, there is no evidence of her committing family violence post-separation. She may have been verbally violent towards the children immediately following separation. Dr W is aware of her attitude towards family violence. She does not want to parent with family violence because she understands the impact it will have on the children.
When asked what was in the children’s best interests, Dr W said that until there is a change in the husband’s attitude to physical discipline, only supervised time should occur, despite the fact that the children want to spend time with the husband.
The husband told Dr W that he had agreed to an order that he would not physically discipline the children but that his position had changed and he could no longer commit to that order. He said that he would live his life according to his own standards, and not those of society. He would use the Bible to guide to his standards.
In his report, Dr W discussed family violence and its impact on children.[2] He concluded that all four children exhibit behaviour that would suggest that witnessing and being the victim of chronic family violence had significantly affected them. All four children exhibit signs of heightened arousal, and all express ongoing fear as to their father’s aggressive responses towards them. When cross-examined by the husband about the evidence of the effects of chronic family violence on the children, Dr W reiterated that the most overt sign was their anxiety of spending unsupervised time with the husband and the husband’s inability not to become physically aggressive with them and react in an aggressive manner.
[2] Page 44 – 51 first report
The husband was critical of Dr W because the bulk of his report was “a rehash” of affidavits and reports, and his conclusions were not based on his observations of the husband, but on the file material including the wife’s affidavit, the Centrecare reports and research for his doctorate. The husband was very critical because Dr W had made factual errors, some of which Dr W conceded were errors. He also did not observe the children with the husband for more than a few minutes on two occasions.
The husband was also critical of Dr W because he relied on reports from the Child Protection authority and the Tasmanian Police records which did not substantiate allegations of abuse. The husband was of the view that Dr W wrongly found that the children had been victims of family violence and exhibited symptoms of post-traumatic stress.
I refer to the case of In the Marriage of Hall, [3] a decision of the Full Court of the Family Court. In that case the Full Court discussed how family reports should be used in parenting proceedings, and what weight should be given to such a report. The Full Court held as follows:
[3] (1979)FLC 90-713
(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC ¶90-098 at p. 75,447; Harris and Harris (1977) FLC ¶90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. We draw attention to an article by Mrs. A. Marshall, Director of Court Counselling Sydney Registry -- ''Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia''. The article appears in the March 1977 edition of Australian Social Work, vol. 30 No. 1, p. 9 and at p. 11 appears the passage:
"Family Law reg. 117 provides for the cross-examination of a counsellor in relation to the Report. It is seen as an advantage by counsellors that they can in this way be held accountable for the Report.”
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied.
These principles also apply to reports of a Court Expert.
I accept the criticism by the husband that Dr W made some factual errors and that he did not observe the children with the husband, except for a very brief period. Notwithstanding this, Dr W’s conclusions were largely based on much evidence which was not in dispute. The husband conceded that he has hit the children with implements, such as a wooden spoon or a paint stick, that he has smacked them around the head, that he has sworn at them and that he has kicked [X].
Dr W’s evidence of the children’s presentation, namely, that they were anxious, that [X] was fearful and concerned about further violence and that [W] and [Y] were confused, is consistent with what the children said to Ms S. The husband asserted that the wife has coached the children. Dr W was of the view that the children have not been coached. Ms S was also of the view that children’s disclosures to her were age appropriate and detailed. I accept their assessments.
The husband told Dr W that the relationship between him and the wife had been a volatile one. He agreed that both argued in the presence of the children and on some rare occasions their behaviour towards one another, in the presence of the children, was poor. He also acknowledged that at times, the language used by the parties had been averse and the way they had dealt with each other physically on occasions went ‘over the top’.
The Independent Children’s Lawyer submitted that although Dr W had made some errors of fact, some of which were conceded and some which were not, the husband’s attack on the report did not affect the strength of the report. She submitted that the evidence on which Dr W has drawn conclusions are not in dispute.
I place weight upon Dr W’s evidence about family violence and its impact on children. I place weight upon Dr W’s evidence about the children having exhibited signs of fear of the husband’s physical discipline of them. I place weight on his conclusion that if physical violence towards the children continues, the children will suffer distress at a level that impacts detrimentally their psychological well-being. I place weight upon Dr W’s recommendations of which parent the children should live with and the time they should spend with the husband.
The wife’s evidence
In her trial affidavit the wife detailed three episodes of family violence which occurred between her and the husband; one in 2004, and two in April 2009. She could not recall an incident in 2005.
The first incident occurred after the husband had hit [X] across the face. The husband hit her face with an open hand and she hit him back. She denied hitting him with her fist to the side of his head.
The second incident occurred when the husband called her a “fucking slut” and hit her. On the third occasion the husband called her a “fucking contentious slut” and hit her with an open hand across the head and across the face about three times and then under the jaw with a closed fist. She called the police. The husband never apologised to her for calling her a “fucking contentious slut”. There was never any remorse or making up between them. During the third incident of family violence, the husband agreed that he hit her once to the face with open hand but disputed that he hit her across the face about three times and then under her jaw with a closed fist.
It became apparent during the wife’s cross-examination that she attended her general practitioner, Dr O, on 1 May 2009. She told him that she had been assaulted by her husband and that the police had been called. The notes of Dr O indicated that there was a bruise the size of a 20 cent piece on her right mandible[4]. A photograph of the wife was tendered by the Independent Children’s Lawyer which evidenced a bruise under the wife’s jaw.[5]
[4] Exhibit “ICL 4”
[5] Exhibit “ICL 2”
The wife detailed numerous incidents on which the husband physically disciplined the children by hitting them with his hand, a wooden spoon, paint stick or belt. He has hit them across the face and head.
The following are some of the incidents described by the wife: -
In April 2005 [X] vomited in the car. The husband stopped the car and got out and smacked [X] around the head. He then threatened to leave him on the side of the road. The wife cleaned [X] up and sat with him in the back seat for the remainder of the trip home. The husband swore about the smell of vomit most of the way and when they arrived home he hit [X] with the paint stick.
In 2005 the husband left [X] on the footpath when walking to collect [W] from Kindergarten. [X] refused to walk with the husband. He was upset and started crying. A man saw him alone and crying and called the police. By the time the husband returned to [X], in the car with [W] and [Y], there was a policeman with [X]. Another police car arrived at the same time as the husband. The husband asked [X] whether he wanted to go with the police or come with him. The husband told the wife that “[X] will not do that again.”
On 4 or 5 February 2007 the wife noticed welt marks on [W]’s and [Y]’s legs. [W] had told her that he and [Y] had been arguing and the husband hit them with a spoon.
In late October 2008 the children were fighting in the car whilst waiting for the husband. The husband came into the garage and got the paint stick off the shelf. He took all the three children out of the car and hit them at least three times with the stick across the upper leg. The family had intended to go to the Hobart Show but did not attend as a result. All the children went to their room crying.
In November 2008 the wife noticed welt marks on [Z]’s legs. [W] told her that [Z] was running around in the kitchen and got behind the candlestick and knocked it over. The husband had held [Z] still and smacked him with the wooden spoon on his legs.
In December 2008 the wife noticed welt marks on [Z]. [W] told her that [Z] would not stay still whilst the husband tried to dress him. [Z] had tried to run away downstairs so the husband got the spoon, held him still and smacked him.
In early March 2009 the wife observed welt marks on [X]’s leg. [W] told her that [X] had accidently broken a plate and the husband had yelled at him and hit him with the belt.
In late March 2009 [W] was sitting between the husband and wife watching television on the couch. [W] passed wind. The husband pushed [W] off the couch with his hand. [W] tripped and fell. The husband kicked him in the bottom and shouted at him to go to the toilet. [W] was crying. The husband slapped [W] around the face.
The wife deposed that she has given the children a light smack on the bottom or the hand but that she has always regretted doing so, even when she felt that she had a reason. She believes that the children should be disciplined by a “time out method” and by removing privileges.
The husband cross-examined the wife about whether she had kept a record of all the incidents of physical discipline of the children. The wife answered that she remembered significant events, but that the children were hit around the head at least once each week.
She was asked about Christmas Day 2008 when [X] and [W] were playing with boxing gloves. The husband became angry and she heard him say, “I will teach you”. He put on one of the boxing gloves. She heard [W] scream and then saw that [W] had blood on him. [W] then went to the tap and started to clean himself up. The husband said, “don’t make a fuss over him”. [W] was visibly upset for about two hours after the incident. The wife said the husband was angry and showed no concern or compassion for [W]. [W] was so distraught that he did not have any dessert and sat subdued in the corner of the courtyard.
The husband asked the wife why she did not do something about it, if she thought that his discipline put the children in danger. Her answer was that she was frightened and confused and was at fault for not protecting them and should have removed them. The older boys thought that the way the husband hit them was normal. She thought that she should have put a stop to it.
The wife gave evidence that the children were scared of the husband when he hit them or threatened to hit them. She used to tell the children to be good otherwise, “Daddy will get angry.” She was trying to protect them by stopping their behaviour before the husband hit them. She did not think that any child should be threatened with a belt for not brushing her hair. In respect of the welts and bruises the children suffered as a result of the husband hitting them, the wife said that she was ashamed about not taking them to the doctor. She covered them up and put long trousers on them. She said she confronted the husband about the physical discipline on occasions, but the husband would tell her to “shut up.” On occasions she did not confront him, but would comfort the children. The wife denied that she had embellished the evidence about welts and bruises on the children. She said that the information contained in her trial affidavit was the bare minimum of what happened.
During her interview for his first report, the wife told Dr W that until recently she believed that the right thing to do was to keep the physical discipline a secret, and to keep it within the family. She reported that harsh physical discipline was carried out for minor incidents and perceived wrongdoings. She expressed increasing concern for the safety and wellbeing of the children which led her to disclose that the abuse had been occurring for many years.
The husband put to the wife that the form of fear the children had of him was one of respect and reverence. The wife answered, “no, I don’t agree, they were scared, they are fearful of you, you break trust in a child.” She said that they were afraid of being disciplined. She said that after the family violence order was made they knew that the husband would not be able to hit them, and they were happy to spend time with the husband. However he broke that trust when he hit them. When the husband asked the wife whether she thought fear or being scared is a bad thing when it leads to a child behaving, she answered “I don’t think any child should be fearful of a parent.” When asked whether she thought respect and fear is good because it helps train the child, the wife answered, “I would expect love, you never showed love.”
During cross-examination by the Independent Children’s Lawyer, the wife admitted that she has smacked the children on the hand or bottom with an open hand. She also admitted that she has shouted at the children, but has never called them hopeless. She has sworn in front of them but not at them. She said that she did not agree with physical discipline, but that the husband did agree with it. The husband said it was necessary for the wife and children to show respect to the husband, not the other way around. Their discussions were never resolved. The wife admitted that she hit the husband in 2004 but that was the only time. She admitted that there was name calling between them.
The wife wants the husband to remain in the children’s lives but only if he adheres to an order not to physically discipline the children. She wants the children to be able to trust the husband.
Currently in place is an agreement that the children spend time with the husband at church, at Saturday football games, school events and other events such as Scouts. He makes telephone calls twice per week to the children. When his relatives visit him the children spend time with them and with him.
Evidence of Mr J
Mr J is the wife’s brother-in-law. He has known the husband since July 1998. He deposed that in about June 2005 he witnessed [W] accidently spilled a drink over the table at [location omitted]. He heard the husband raise his voice and then he stood up and slapped [W] around the head in a forceful and violent manner. The husband showed no remorse or shame for this physical punishment.
The husband cross-examined Mr J about an incident he deposed about in February 2007. Mr J conceded that he had retracted a statement which he had made that the husband had “bashed” the wife. The husband did not cross-examine the witness about what he saw at [location omitted]. The Independent Children’s Lawyer cross-examined about this and he confirmed that he saw the husband slap [W] around the side of the head.
Evidence of Ms K
Ms K met the husband sometime in early 2007, when she began attending services at the church of which he is a member.
Ms K deposed that in April 2009, whilst camping, [Z] vomited over himself, the wife and the chair they were sitting on together. The husband became angry and shouted at the wife demanding to know what she had fed [Z]. He offered her no assistance, care or compassion. The wife left with [Z] to have a shower.
Ms K later discussed this incident with the husband. He told her how angry it made him feel, as it seemed that every time they have a family holiday, one or more of their children have a stomach upset that results in vomiting.
During her oral evidence Ms K said that she had been with the Houlis family on other family occasions and this incident was out of the ordinary as far as Mr Houlis was concerned.
Evidence of Ms C
Ms C is a [omitted] employed at the [R]. She first met the husband during the course of her employment at [omitted].
Ms C deposed that in January 2007 she had lunch with the Houlis family at [omitted].
Ms C saw [X] playing with some round objects that had fallen from a tree. He was picking them up and throwing them around the beer garden. She saw the husband pick up some of the round objects and chase [X] around the garden, pelting him with the objects until [X] burst out crying and asked the husband to stop hitting him. The husband then said something to the effect of “he will not do that again” and “that will teach him a lesson.”
The husband put to Ms C that he was playing with [X]. Ms C answered that it stopped being play when the husband pelted [X] and he was crying and asked him to stop. Ms C said that she left soon after, as the incident put a dampener on the whole lunch.
Evidence of Ms W
Ms W has known the husband since 1987. She worked as a [omitted], alongside the husband at the [R] over the periods between February 1987 to January 1991 and May 1995 to May 1996.
Ms W deposed that she spent Christmas Day 2008 with the Houlis family and the [J] family.
She deposed that after the main course had been eaten the children went away to play. After a while [W] appeared at the back door area with a bleeding nose. He had been struck in the nose with a boxing glove. She heard the husband say words to the effect that he did it. He did not at any time display any remorse or distress at having injured [W]. She was surprised by his lack of concern and observed him to smile when recounting how it happened.
[W] was unwell following this and spent a significant time sitting quietly. He declined dessert. He remained subdued for the rest of the afternoon, and did not even show interest in his Christmas presents. She did not at any time observe the husband comfort [W] or ask how he was feeling.
Husband’s evidence
The husband described three incidents of family violence, which occurred between him and the wife during the marriage. The first occasion occurred in 2004. The husband said what occurred was “appalling and wrong”. The husband was having a shower and the wife was in bed. The husband heard [X] screaming and shouting out. The husband was hoping that the wife would get up to [X] but when [X] continued to shout and get more agitated the husband got out of the shower and saw [X], who was disorientated and screaming. He asked him what he wanted and he kept screaming. The husband slapped him to make him pay attention. The wife was standing there and the husband told her to go back to bed as she was interfering. She said “get away from my child”. The husband slapped her to the side of her face and she hit him with her fist to the side of his face about four times. The husband admitted that he was annoyed that he had to get out of the shower to attend to [X] when the wife was in the next room. He conceded that it would have been better to cuddle [X] and reassure him
Another episode of physical violence occurred when the husband told the wife he would “knock her flat” if she touched him again. He said that this was in response to the wife hitting him several times to the chest without provocation. He admitted calling the wife “a fucking slut” on this occasion.
On another occasion in April 2009 the husband hit the wife with an open hand after calling her “a fucking contentious slut”. The husband denied that he hit the wife under her jaw with a closed fist. The husband did not concede that the wife suffered a bruise. He believed that the photograph of the bruise under her jaw had been computer enhanced. On this occasion the wife telephoned the police, who came to the home and took a statement from her and then took the husband to the police station. The husband admitted that he told a neighbour, as he was getting into the police car that he had hit his wife. I am of the view that the husband did hit the wife under the jaw. I accept the wife’s evidence that she suffered a bruise as a result. The photograph of the bruise is consistent with Dr O’s description of a 20 cent piece bruise at right mandible.
The husband conceded that there were a number of occasions when he was over the top with the discipline of the children. He was not happy about this and knew it had not been within a reasonable ambit of physical discipline. He said it was wrong and the force he used with the spoon or belt was excessive. He said that, “…physical discipline is not wrong, the children did not die, they did not suffer any effects to their well-being. It was beneficial to their development.”
His evidence was that he did not always hit the children across the buttocks, he also hit them across their legs. He has never hit them in the head or chest. He said “I would not want to harm the children or their development”. He would not contemplate assaulting them by a blow to the head, causing damage to the eyes or head. He said “I am a loving father who does not intend to harm. In the short-term it may cause discomfort and anxiety which contributes to them refraining from behaviour.” The husband said he had agreed to an order that neither party discipline the children because his lawyer told him that he would lose the children unless he agreed. He said that he is aware of the need to abide by laws but it has never been his position not to discipline the children.
He admitted that he used a paint stick, which he produced to the Court[6] and a wooden spoon, for the purpose of training the children. On a number of occasions he smacked [X] with the paint stick. In October 2008 on the way to the Hobart Show, he smacked all three older children with the paint stick across the upper leg.
[6] Exhibit ‘ICL 3”
The husband admitted that he used a belt on all the children except [Z]. He used the paint stick on all three older children. He said he used a wooden spoon which the wife also used. On occasions it left marks. He hit them once per week and at times more than once per week. Towards the end of the marriage it was less than that.
The husband admitted that he vented his anger with some profanities such as ‘fuck’ and ‘bloody’. He said it was unacceptable. He knowingly and deliberately used those words to show the children he was unhappy with the way they were behaving. The husband admitted that he pulled [X] by his hair on one occasion.
The degree of force he used was a problem at times and he acknowledged this to Dr W. He said he had misjudged the level of force which was appropriate. He said that he had told Dr W that he believes that if a child does not respond to directions, instructions, admonitions, the last resort is physical discipline.
The husband disputed Dr W’s opinion that all four children have expressed ongoing fear of him and disputed that any of the children were anxious. The husband was of the view that the wife had coached the children before speaking with Ms S and Dr W. He believed that [Y]’s difficult behaviour towards the wife was because the wife removed the children from the home at separation.
The husband disputed that he has threatened or abused the children. He said that he gives the children warnings as part of discipline such as “If you don’t do what I say I will get the belt”.
The husband made it clear that he will not agree with an order made by the Court not to physically discipline the children because this is against what God instructs. The Bible makes it clear that physical discipline is an essential part of training a child and if not applied in the long-term, the child’s interests will be at risk. He said that God does not give him a licence to use physical discipline, God gives him a responsibility.
The husband said he would make himself available for counselling but it will not change his convictions. He said “I am not a bully lacking self-control, an unfit father. Counselling will not change my convictions on parenting”.
When cross-examined by the Independent Children’s Lawyer, the husband conceded that he smacked [Z] when he knocked a candle stand over. He told him not to run inside the house and he hit him with the wooden spoon so that he had welts on his body. He said that he generally gives warning to the children. There were bruises on the children when they were hit with a spoon or a belt.
When the Independent Children’s Lawyer asked the husband to give an example of what he regretted most, the husband answered this was when he excessively used the belt on [X]. He realised that his discipline was “over the top” and conceded that anger may have something to do with it. He accepted that he used swear words to the wife and children and expressed regret. He agreed it was not appropriate and not a good role model for the children.
When questioned about whether an order should be made for equal shared parental responsibility, he said that he was not confident that it would work because the communication between him and the wife is fraught with conflict.
Evidence of Ms D
The affidavit of Ms D does not identify her relationship with the husband, or the length of time she has known him.
Ms D deposed that she supervised the children’s time with the husband on 11, 18 and 25 May 2009. Her observation was that the children were happy and enjoyed their visits. The husband showed love, thought and care for the children. However she deposed that he spoke very harshly on some subjects when he was putting his point of view to the children. She said “[W] said to [Mr Houlis] about mummy’s first husband and he’s going to Sydney, [Mr Houlis] told the boys what happened in that regard, including related financial matters.”
Evidence of Mr D
The affidavit of Mr D does not identify his relationship with the husband, or the length of time he has known him.
Mr D deposed that the husband treated the children with love and respect when he was supervising the husband’s time with the children. He said that the children were very happy to be with the father and enjoyed their visits.
Evidence of Dr G
Dr G is a social friend of the husband’s. He has known the husband for eight years.
Dr G deposed that he has seen the husband walking with the children and found the children to happy and smiling. He has seen the children with the husband at the local playground on a number of occasions. They appeared to enjoy their interaction with the father. He was of the view that the husband is a pleasant, caring and loving father who always acted in a responsible way towards his children.
Evidence Ms P
Ms P is a member of a [omitted] club, of which the husband is also a member. She has known the husband for a number of years. Her affidavit is co-signed by a certain “[initials omitted]”, who is not otherwise identified, but who has known the husband on similar terms for the same length of time.
Ms P deposed that the husband has on many occasions brought the children to her [omitted] club. She has observed the children to be delightful, the boys showed a relaxed and friendly relationship with the husband and at all times he showed himself to be a caring, loving father.
Conclusion as to evidence
I accept the evidence of the wife’s witnesses. They were cross-examined by the husband and their evidence was not shaken. I also accept the evidence of the husband’s witnesses whose evidence was not tested.
Credibility between the husband and wife is not an issue in this matter. Both parties are intelligent people who generally agreed about incidents that occurred during the marriage, although they had different opinions and interpretations about the level of violence and anger exhibited by each of them.
The main issue in this matter is whether the children are at an unacceptable risk of harm by spending unsupervised time with the husband. The husband’s own evidence can be used when assessing the risk to the children about his use of physical discipline upon them. Accordingly, I do not intend to make decisions on which version of the contested events I prefer in every instance.
Relevant Law
Section 60CA of the Family Law Act 1975 provides:
In deciding whether or not to make a parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.
A court, in determining what is in a child’s best interests, must consider the primary considerations and the additional considerations set out in s.60CC, informed by s.60B, which set out the objects of Part VII of the Family Law Act 1975. Section 60B provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are set out in s.60B(2).
The s.60CC(2) primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Family violence is defined in s.4 as:
“Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the persons family that causes that or any other member of that persons family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”
Abuse is defined in section (4) as:
“an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, enforcing the State or Territory in which the act constituting the assault occurred;…”
The Court must assess whether the husband presents an unacceptable risk of behaving violently or abusively. In Lindsay & Baker[7] her Honour Bryant CJ said that the unacceptable risk test requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
[7] [2007] FLC 93-347
Not only does direct physical or emotional abuse adversely affect the welfare of children, violence occurring between family members may have the potential to cause the children stress and harm them. I refer to the judgment of Chisholm J in JG & BG[8]:
“The authorities, then, require the Court to make a judgment about the relevance of family violence to the welfare of the children. In what circumstances is family violence relevant to the children’s welfare? Its relevance may be more obvious in some situations than in others. Where the violence is directed at the children themselves, it is obviously and directly relevant to their welfare. Section 64(1)(b)(a) expressly requires the Court to have regard to the need to protect the child from abuse and ill-treatment. Similarly, when violence is committed in the presence of the children, it will obviously have the potential to frighten and distress them”.
[8] (1994) FLC 92-515
Section 60CG requires the Court to ensure, to the extent that it is possible to do so consistently with the principle that the child’s best interests are the paramount consideration, that an order does not expose a person to an unacceptable risk of family violence.
Orders should therefore be made, which protect children from the risk of harm and ensure that they have a meaningful relationship with both of their parents, wherever appropriate.
The Court is also required to consider s.61DA, which establishes the presumption that, if a court makes a parenting order, it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of child abuse or family violence and may be rebutted if equal shared parental responsibility is not in the best interests of the child.
Section 60CC considerations
Section 60CC (2)(a)
The benefit of the child having a meaningful relationship with both of the child’s parents.
One of the objects of Part VII of the Act is to ensure that the best interests of the children are met by ensuring that the children have the benefit of their parents having a meaningful involvement in their lives[9].
[9] Section 60B(1)(a)
One of the principles underlying the objects of Part VII is:
“Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”.
The Court is required to take into account the importance of the benefit to a child of having a meaningful relationship with both parents. If even if such a benefit is established it must still be weighed alongside the other relevant factors.[10]
[10] G & C FAMCA 994
Section 60CC (2)(b)
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
The children have been exposed to family violence. The parents have argued in the presence of the children and in 2004 [X] witnessed the parties hit each other. In April 2009 children witnessed the husband push the wife and slap her and call her a ‘fucking slut’. The older boys were crying and were visibly upset and clung on to the wife. The husband told the children that he called the wife a slut because she was married before she met him and did not tell him straight away that she was married. The husband admitted that he has hit the wife and threatened to hit the wife on a number of occasions. He admits that the children have witnessed him be violent towards her, and make threats towards her. He admitted that these acts constituted family violence.
The husband has admitted that he has hit the children with a wooden spoon, belt and paint stick and has on occasions applied excessive force, which was not reasonable to discipline the children. The children told the Family Consultant that their father hit them with a belt, spoon and hands. The children have reported use of physical force against them to the Court Expert and the force caused them to be apprehensive about their personal well-being or safety.
The wife argued that the husband’s actions constitute family violence as defined in s.4 (1) of the Act.
The husband argued that his actions do not constitute family violence because the children did not have cause to reasonably fear or be apprehensive for their well-being or safety, because they knew that he had their best interests at heart. He argued that, “…they are fearful of the consequences of wrong behaviour”, and not of the violence itself. To support this position he argued that he only hits the children in accordance with established rules; for example, the children are not to run in the house. The children, he contends, are aware of these rules, and, because of that, are not fearful of capricious or random violence.
Parents are entitled to discipline their children. That will depend upon age, circumstance and the cultural background of the parties. Bearing that in mind, I do not accept the husband’s argument. The Act makes no distinction between fear of a system of rules and fear of violence itself. It is the fear that is significant. The evidence of the Family Consultant, the Court Expert and the wife is that the children are afraid of the husband in terms of their well-being and safety. I accept that evidence.
I am not persuaded by the husband’s arguments on this point. I find that these acts of the husband hitting the children with implements fall outside the ambit of acceptable discipline, and constitute family violence as defined by s.4(1) of the Act
The husband also argued that his actions did not amount to physical violence because they fell within s.50 of the Criminal Code Act1924 (Tas) (“the Criminal Code”). That section reads as follows:
It is lawful for the parent or a person in the place of a parent to use, by way of correction, any force towards a child in his or her care that is reasonable in the circumstances.
This is a parenting application. The Court is required to consider the making of orders which are in the best interests of children. The Criminal Code deals with crime and the above section provides a defence to the crime of assault. I am not required to determine whether the husband’s acts of physical discipline are in breach of the laws of Tasmania, nor have I been asked to do so by the wife. The husband’s submissions on this point do not assist my considerations in this matter.
The wife has used physical discipline on the children in the past. She now believes the children should be parented without physical discipline.
There is a need to protect the children physical or psychological harm from being subjected to abuse or family violence.
Additional considerations
Section 60CC (3)
The relevant additional considerations pursuant to s.60CC(3) are as follows: -
Section 60CC (3)(a)
Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
[W], [X] and [Y] have expressed their views to Dr W and Ms S. [Z] is too young to express his views. Dr W spoke with [W], [X] and [Y] on two occasions. Ms S spoke with them on one occasion.
Dr W reported that [W], [X] and [Y] have expressed fear of the husband because of his use of physical discipline. [W], [Y] and [X] said they would prefer that the arrangements for spending time with their father remain as they were, then from Thursday to Sunday each fortnight. They all expressed concern about the husband’s ability to develop and maintain a non-violent parenting approach.[11]
[11] Page 56 – Report dated 26 February 2010
On 5 March 2010 Dr W spoke again with [W], [X] and [Y]. They told him that on their last visit to the husband’s house, the husband had threatened [Y] with the belt when she refused to brush her hair. The husband kicked [X] when he did not get out of [Z]’s way. [W] had been pulled by his hair and hit over the head. [X] said that he had also been swearing at them. [X] was not sure if wanted to see the husband again. [Y] said that she wanted to continue seeing him but did not wish to spend any more time than she spent with him at present. [Z] was too young to express a view.
Dr W has indicated that [X] was worried that the husband was not going to let the children see their Uncle [Mr N] because the only time they could see him was on the weekends when they were with the husband.
Ms S reported that [W] told her the husband makes the children scared. [W] told her he was scared and worried that the husband would hit [Z]. [X] told her that he would be scared to see his father.
[W], [X] and [Y] appear to be sufficiently mature to express their views about the husband's parenting. They appear to have a sufficient level of understanding. Their views are consistent between all three reports, and appear to be based upon their need to feel safe. Both Dr W and Ms S have indicated that the children's expressed views are most likely their own. I accept the evidence of Dr W and Ms S, and I place weight upon the views of the children.
Section 60CC (3)(b)
The nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child).
Dr W was of the view that the children have a close and loving relationship with the wife which is improving now that they are free of past family violence. He said that since separation the wife has been attempting to establish a stronger parental role with the children whilst at the same time attempting to be more emotionally supportive of each of them. She had appeared to struggle in her ability, since separation, to manage their behaviour.
Whilst Dr W observed the husband with the children for a brief period, and he observed the husband exhibiting a “close and emotionally supportive response” to the children, he said that the children respond to the husband in a fearful way and that there appears to be an anxious and insecure relationship between the husband and each of the children. Dr W has based this opinion upon his interviews with their children and their expression of fear to him.
Dr W observed [Z] to have a close and loving relationship with the husband. [Y] is aware that the husband loves her but is violent towards her. [W] shows a very strong alignment with the husband and a concern for his well-being. [X] is anxious and resistant to spending time with the husband.
The husband disputed that the children show any signs of fear whilst in his presence apart from a form of respect and reverence which ensures that the children behave appropriately.
Dr W said that the husband can be a loving and considerate father to the children and this can co-exist with them being scared of his physical discipline of them. This is consistent with the observations by the husband’s witnesses. Dr W acknowledged that the children will experience significant grief if separated from the husband.
The wife deposed that the children have a relationship with her father and his current wife. The children have also had a good relationship in the past with her brother, Mr N (“Mr N”), and she wants the children to have a good relationship with him in the future.
The husband deposed that he has had concerns about Mr N for some years. The wife agreed with him throughout the relationship that the children were not to be left in his unsupervised care. The husband alleged that Mr N has shown what he believes to be an unhealthy interest in children for the long period that he has known him.
The wife disputed that the parties agreed that none of the children should be left with Mr N. The wife agreed that the children did not spend unsupervised time with him, but said it was because the husband would not allow this to happen.
The wife disputed that her brother had divested himself completely of all his computer equipment and invested in a new computer set up after a friend of his was investigated for paedophilia. The wife disputed that she had ever said anything about her brother. She said that the husband dislikes him immensely and thinks that he is a bad influence around the children. The wife disputed this and said that he is a kind, loving person and she fully trusts him around the children.
Section 60CC (3)(c)
The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
The wife wants the children to spend time with the husband however her concern is his use of physical discipline upon them.
The husband has alleged that the wife has attempted to alienate the children from him in an attempt to create a situation where the children do not want to spend any time with him. Both Dr W and Ms S were of the view that the children’s expressed views were their own views.I am not satisfied that there is any evidence that the wife has attempted to alienate the children from the husband.
I am satisfied that each party has the willingness and ability to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
Section 60CC (3)(d)
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The husband’s evidence was that he will not abide by an order not to physically discipline the children. Dr W is of the view that if the children are separated from the husband they will grow up without his contribution as a father and will experience significant grief. If some form of communication such as telephone or written communication is used, the level of distress will be reduced.
Section 60CC (3)(f)
The capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The husband’s attitude to the physical discipline of the children, and his characterisation of it as domestic discipline for the benefit of the children in order to train them to behave appropriately, gives an insight into his capacity to provide adequately for the emotional needs of the children. The husband was not prepared to accept any of Dr W’s evidence of the impact of such discipline upon the children. He was dismissive of his evidence, and that of Ms S, about what the children had told them because he believes that the wife had coached the children. He does not accept that any of the children are fearful of him. He relied on the Hobart Contact Centre reports as evidence of him being a loving a considerate father. He relied on Dr W’s observation him with the children in his waiting room, when he saw that the children were responsive and affectionate and there was no evidence of fear of him.
The husband used the description, “domestic discipline”, to justify his use of physical discipline. However, it is clear from his evidence that on occasions he has used excessive force, he has “gone over the top”. He conceded that the incident which he regretted the most, that of using the belt on [X] excessively, involved anger on his part. He has also hit [Z] with a wooden spoon and caused welts to his body.
The husband said that he will not change his attitude to the use of physical discipline unless God’s word changes, which will not happen. He said that God’s word is that physical discipline is an essential part of training a child, if they first do not listen to warnings or admonitions. He said that a child’s long-term interests are at risk if physical discipline is not used.
The husband’s lack of empathy towards the children is of concern. He wants to control the children rather than nurture them. The husband’s character is one of being unable to resolve conflict and control his anger. He said that he had lost his temper with the children on rare occasions. Yet, he said he vented his anger and used swear words, such as “fuck and bloody”, at the children knowingly and deliberately. He said he gets angry when the children refuse to respond to verbal discipline, resulting in physical discipline. He minimised the frequency of his anger by saying that it was not frequent over a period of ten years. He minimised the seriousness of the use of excessive force by saying the force used had been embellished.
The incident of the husband leaving [X] on the footpath alone and the boxing glove incident with [W] shows the husband’s lack of empathy towards the young children. The wife’s witnesses corroborate this lack of empathy.
The wife has admitted to swearing in the presence of the children and has fought with the husband in the presence of the children. This is poor role modelling by the wife.
There is evidence that the wife was overwhelmed by the task of parenting post-separation, which is consistent with the husband’s assertion that she found it difficult to cope. In the first few months after separation Dr W was concerned about the wife’s ability to parent, about her managing the children and the stress of managing them. This concern lessened over time. He was of the view that the wife has since been able to parent more effectively.
Section 60CC (3)(g)
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The husband is an intelligent man who has a strong belief system. In the witness box he presented as assertive and certain that his views and beliefs were correct and those of the Court Expert and other professionals involved in this matter were wrong. He presented as inflexible and unprepared to consider a point of view other than his own.
The wife presented as emotional in the witness box, and at times immature. However she is an intelligent woman and was genuine in her desire for the husband to remain part of the children’s lives. Her main concern is the physical discipline of the children, and the children’s fear of the husband.
Both parents are Christian and they are regular participants of the same congregation. Before and after separation they exposed the children to and brought them up according to each parent’s religious convictions.
The husband’s case is that his religion justifies physical discipline. However, general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them. Religious conviction is not a solvent of legal obligation.[12]
[12] Church of the New Faith v Commissioner of Pay-Roll Tax VIC (1983) 8CA40 per Mason A.C.J. and Brennan J. at para.16
In P & L[13] the Full Court said:
“The effect of a parents religious beliefs on the upbringing of his or her child has been raised in many parenting proceedings, and discussions are found in reported decisions in Australia and in overseas jurisdictions, in particular, those of the courts of the United Kingdom. The principles emerging from the cases are conveniently summarised by Dickey in Family Law (Sydney: Law Book Co, 4th ed, 2002) at 418 as follows:
‘In cases concerning parental responsibility, the courts have long refused to prefer one religion to another or even, in more recent times, to prefer a religious upbringing of a child or a non religious upbringing. What may weight heavily in the mind of a judge in a case involving a party who is a member of a non conventional religion, however, is the effect on the welfare of a child of the practices of this religion’.
[13] (2006)FAMCA 947
It is important to respect religious beliefs, however the Court must consider the effect on the welfare of the children of the practice of the husband’s religious conviction. The Court is required to consider the best interests of the children as the paramount consideration.
Section 60CC (3)(i)
The attitude to the children and the responsibilities of parenthood demonstrated by each of the child's parents.
Dr W said that both parents presented with a responsible attitude to the responsibilities of parenthood, however their capacity is vastly different.
The husband’s use of physical discipline, at times in anger, reflects his attitude to the responsibility and duties of parenthood. He lacks insight into the effect that his behaviour has upon the children. He is not willing to change his behaviour, notwithstanding meetings with the Court Expert and completion of the “1, 2, 3 Magic” parenting course.
Whilst he has acknowledged that swearing at the children is inappropriate and he has acknowledged that at times his physical discipline has been “over the top”, he is not prepared to change his behaviour or attitudes in relation to parenting. He is prepared to put his belief system before the best interests of the children and before the importance of continuing to spend regular unsupervised time with them.
The husband is harsh at times with the children. Ms D corroborated this. She deposed that the husband spoke harshly on some subjects when putting his point of view to the children.
Section 60CC (3)(j) and (k)
(j) Any family violence involving the child or a member of the child's family.
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person.
I have already discussed incidents of family violence involving the parents and the children.
A family violence order was made on 9 May 2009 for the protection of the wife against the husband for 12 months.
Section 60CC (3) (l)
An order that the children spend unsupervised time with the husband is likely to lead to further proceedings, due to his attitude to the physical discipline of the children.
Section 60CC (4) and (4A)
These sections overlap to some extent with s.60CC (3) (c) and (i).
Since the interim orders were made in June 2009 the husband has admitted that has pulled [W] up by the hair, kicked [X] on the bottom because he would not get out of [Z]’s way. He deposed “in hindsight I could have given him a verbal warning”. He has also threatened [Y] with a belt for not fetching a hairbrush to brush her hair when she was told to do so.
Because the husband indicated to Dr W that he would not abide by the June order not to physically discipline the children he has not spent time with the children in accordance with the order.
Parental responsibility
The presumption of equal shared parental responsibility is displaced as there are reasonable grounds to believe that family violence has occurred between the parties.
An equal shared parental responsibility order requires the exercise of parental responsibility, involving the making of decisions about major long-term issues in relation to the child. Decisions are required to be made jointly by the persons who are sharing the responsibility. Each person is required to consult with the other person and make a genuine effort to come to a joint decision about the issues.
Major long-term issues include issues about the child’s education, the child’s religious and cultural upbringing, the child’s health, the child’s name and changes to the child’s living arrangement that it make it significantly more difficult for the child to spend time with a parent.[14]
[14] Section 4(1) of the Act
The wife’s Counsel submitted that there should be a sole parental responsibility order. He relied on the husband’s evidence that communication between the parties is poor and is fraught with conflict and the husband is not confident that an order for equal shared parental responsibility would work. He also relied on the evidence that the husband called the wife a “contentious slut”, which indicates that he has a low regard for her. His reason for calling her this on a number of occasions was because she had not told him about a previous marriage before commencing a relationship with him. He has held the view throughout the marriage that the wife is an argumentative, disagreeable person.
The Counsel for the Independent Children’s Lawyer sought an order for several parental responsibility, but submitted in her closing address that an equal shared parental responsibility is an option for the Court. She submitted that the Court will need to weigh up the desire of the husband to be involved in the children’s lives, it being a positive factor for the children to know that he is involved, against the incapacity of the parties to meaningfully negotiate.
It is a serious step to make an order for sole parental responsibility. It means that the husband will have no rights, responsibilities and authority in respect of major long-term issues for the children.
In Oscar and Traynor[15] Murphy J commented:
“the exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their children, particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a serious interference with the fundamental rights of a person.”
He continued:
“It seems to me that the greater the degree of mistrust, lack of communication, disrespect and dysfunction in a co-parenting relationship, the greater the indication that an attempt for those parents to equally share the responsibilities (and, importantly, actively carry them out) is unlikely to be in the children’s best interests.”
[15] [2008] FamCA 95 at para 260
There was little evidence about this issue. The husband has sought an order for equal shared parental responsibility because of the significant role he has played in the children’s upbringing and in recognition of the importance of the role of each parent in the raising of the children.
I am concerned that there is a difficulty with the communication between the parties. To date the parties have been able to agree upon church attendance and schooling for the children. The main issue they have not been able to agree about is the physical discipline issue. The parties have made derogatory comments about the other; however, I will be making an injunctive order in respect of this.
I consider that there is a possibility that an equal shared parental responsibility order may not work. However, I am not convinced that the parties’ relationship is “so dysfunctional with such a degree of mistrust” that such an order should not be made. I consider that it is important for the husband to be involved in making such decisions and consider that it is in the best interests of the children for both parents to be involved in making these decisions. To assist the communication between the parties I will order that a communication book be used. I will also order that the parties attend a post-separation parenting program.
As to where the children should live, an equal shared living arrangement between the parties is proposed by the husband. An equal shared living arrangement is not supported by the wife or by the Independent Children’s Lawyer.
In MRR v GR [2010] HCA 4 the High Court said:
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order…
As there is to be an order for equal shared parental responsibility in this case I must apply the provisions of s.65DAA, as explained by the High Court.
In the light of the findings of fact and the s.60CC considerations set out previously in these Reasons, I am to consider whether it would be in the best interests of the children for them to spend equal time with the parties. I am required to do this by virtue of s.65DAA(1)(a).
The main issue of the parenting application is whether the children will be at risk of excessive physical discipline, the nature and degree of that risk and whether it should affect the nature and extent of the time that the children are to spend with either parent. The husband indicated during the trial that he will not obey a court order not to physically discipline the children. The husband has indicated that he will attend an anger management course but this will not change his attitude to physical discipline.
I am satisfied that the husband is a risk to the children if he has unsupervised time with them. Having regard to all the evidence I consider there would be an unacceptable risk to the children from his use of physical discipline upon them.
On numerous occasions the husband has physically disciplined the children with a belt, paint stick or wooden spoon with such force as to cause welts and bruises to their bodies. He uses physical discipline when he is angry. In my view, this amounts to abuse within the definition of abuse in s.4(1) of the Act. The husband is unwilling to accept his attitude to physical discipline is not in the children’s best interests.
Although the wife has used physical discipline in the past, she is of the view that it is inappropriate discipline. She was clear to Dr W about the inappropriateness of the children witnessing and being the victims of family violence. She is aware of the negative consequences of such violence for the children. Dr W had no concerns as to risk to the children’s physical or psychological wellbeing whilst in the care of the wife. I accept Dr W’s view that the children are not at risk whilst in the care of the wife.[17] I accept that when the children are in her care, she will not use physical discipline on them.
[17] See para.51 of these Reasons
I consider that in the circumstances of this case it would not be in the best interests of the children for them to spend equal time with the parties. I have had regard to the children’s expressed views. I consider the wife has a more responsible attitude to parenting and can better provide for the children’s emotional needs. I refer to my findings about the children being at risk of harm in the care of the husband. I accept Dr W’s opinion that the children should live with the wife.
I am now required to consider whether it will be reasonably practicable for the children to spend equal time with the parties. I base these considerations on the factors set out in s.65DAA(5). Although the parties live close to one another, it is not a reasonably practicable arrangement for the children to spend equal time with each parent because of the risk of harm being caused to them by the husband as already discussed. The husband does not and will not agree to a non-punitive approach to parenting.
As per s.65DAA(2)(a), I will now consider whether spending substantial and significant time with each of the parents is in the best interests of the children. Dr W’s view is that it is in the best interests of the children to spend substantial and significant time with the husband as proposed by the wife, each alternate Thursday until Sunday, if the husband agreed to abide by a Court order that he not physically discipline the children. As I have already indicated, the evidence of the husband is that he will not abide by such an order.
I consider that it is not in the best interests of the children to spend substantial and significant time with the husband because of the risk of harm being caused to them. Such time is also not practicable because of the husband’s refusal to abide by an order not to physically discipline the children.
I intend to order that the children spend supervised time with husband or time with him in a public place. This time will include time at church each week, school events and sporting activities, at Scouts, and also by telephone.
I am satisfied that the children will not be at risk of harm whilst they are spending time with the husband on this basis. There is no evidence that he has used physical discipline on the children since the children have been spending time with him in public since around March 2010.
In my view, the period of time in a public place should continue indefinitely or supervised time. The husband will need to change his attitude to the use of physical discipline and will need to demonstrate an insight into the impact on the children of his use of physical discipline before the Court could consider varying the order for his time with the children. If these matters are addressed in the future, the husband would not be prevented from applying to vary the orders.
In my view, the orders I intend to make provide the children with the maximum meaningful involvement with the husband, consistent with my findings as to risk and the children’s best interests.
In respect of the husband’s proposal for an injunctive order against the wife to prevent her leaving with children with her brother Mr N on an unsupervised basis, I intend to make such an order. Whilst the wife has indicated that she trusts her brother with the children and she only agreed for the children not to spend unsupervised time with him during the marriage because of the husband’s demands, she did not call her brother to give evidence. She knew that this was an issue and because she did not call him, I was not able to make an assessment about him. As the wife did not explain her failure her brother to evidence, I draw an inference that his evidence could not have assisted her position[18].
[18] See Jones v Dunkel (1959) 101CLR 298
I will order that each party be restrained from using profanities in the presence of the children. I will also order that each party be restrained from referring to the other party to or in the presence of the children in a derogatory, abusive or demeaning manner to ensure that the children are protected from witnessing such abuse.
Property application
Issues
The husband seeks an equal division of the assets. The wife seeks a division of the assets 70%/30% in her favour. The parties have agreed that $100,000.00 is to be paid to the husband’s parents in repayment of a loan, and that $25,000.00 to be paid to the wife’s mother in respect of a contribution she made.
The husband seeks that each party retain his or her own superannuation entitlement. The wife seeks that she receives a cash adjustment of $50,000.00.
Relevant law
Section 79(2) of the Family Law Act 1975 requires that any order made under a s.79 application must be just and equitable. Section 79(4) provides the matters which are to be taken into account in considering what order should be made.
Section 79(4) involves a four step exercise namely:
(i) The identification of the property of the parties, their assets and financial resources.
(ii) The evaluation of the contributions.
(iii) The evaluation of the matters referred to in s.79(4) (d), (e), (f) and (g), including the matters referred to s.75(2).
(iv) A determination as to whether the result is just and equitable by considering the real impact in money terms of the orders.[19]
[19] Hickey & Hickey 2003 FLC 93-141 and Ferraro & Ferraro 1993 FLC 92-335
The court is not required to undertake a mathematical approach when deciding what orders to make under s.79. The court is required to consider the competing claims and relevant considerations broadly and fairly when making orders that are just and equitable.[20] The usual approach in property proceedings is for the Court to consider the property of the parties as an overall pool. It is open to the Court to undertake the asset by asset approach.
[20] Dickey A, Family Law (Law Book Co 5th Addition, 2007) at page 532
Neither party suggested that an asset by asset approach be taken. The parties’ marriage was around 10 years long, and during the marriage both parties have made direct and indirect financial and non-financial contributions to the acquisition, conservation and improvement of the property of the parties and contributions to the welfare of the family. I am of the view therefore that to determine the just and equitable alteration of the property interests of the parties I should adopt a global and not an asset approach to the assessment and evaluation of contributions.
Neither party is seeking a splitting order in respect of superannuation. The wife is seeking a cash adjustment of $50,000.00 be paid to her to adjust the difference in the two superannuation values.
In my view, it is appropriate to adopt a two pool approach and apply section 79(4) considerations to both pools in accordance with the approach in C v C[21].
[21] [2005]FLC 93-220
Agreed assets
·Sale proceeds from the matrimonial
home held at Bendigo Bank $599,317.00
·CBA account (husband) $10,000.00
·Westpac account (wife) $1,055.00
·2002 Toyota Landcruiser (husband) $26,000.00
·Toyota Yaris (wife) $16,950.00
Total $653,322.00
Less payment to husband’s parents $100,000.00
Less payment to wife’s mother $25,000.00
Net $528,322.00
Agreed Superannuation
Both parties superannuation entitlements have been valued in accordance with the Act and the Family Law (Superannuation) Regulations2001.
·[F] (husband) $355,176.00
·[F] (wife) $85,649.00
Total $440,825.00
The husband’s superannuation is in the payment phase. He receives a life pension of around $31,563.00 per annum. Both parties agreed that the value of the pension be included in the superannuation pool.
Contributions
At the commencement of the marriage the wife owned a property at [O] and the husband owned a property at [L]. Both properties were sold for $120,000.00 and the net proceeds of sale were used towards the building of the former matrimonial home.
The wife asserted that, at the time of the sales, the mortgages on both properties were about the same amount; around $20,000.00. The husband asserted that the mortgage secured over his property was around $1,852.00.[22] No other documentation was produced in respect of the mortgage repayments. During cross-examination the husband gave evidence that he obtained the mortgage when he built the home in the early 1980’s. He took the mortgage over a 20 year period and it was repaid over a 20 year period. It was repaid on 16 January 2001.
I accept the husband’s evidence about this.
[22] Exhibit “H3”
The husband’s parents loaned the parties $100,000.00 to use towards the building of their home. The loan was made in two payments of $50,000.00. Interest was paid on one amount of $50,000.00 at the rate of 4% until before separation. The wife’s mother contributed $25,000.00 which the parties used to purchase a car and other items for the home.
The wife gave evidence that she breastfed all four children and had six weeks’ leave after each birth. She got up in the night to feed them. The husband asserted that he was the primary carer of the children after he retired in 2004. The wife asserted that she was the primary carer of the children on the days she was not working. She mostly looked after the children, did the cooking and cleaned the house. The husband did the gardening, some vacuuming and collected the children from school at the end of the day if she was at work.
I am of the view that the wife was the primary carer of the children until 2004. After that time both parties were involved in the care of the children. I do not need to make a finding as to who was the primary carer after that date, as both parties assert that all their contributions during the marriage were equal.
The husband paid most of the household bills including rates and petrol. The wife paid for food and the children’s clothing and education and extracurricular activities.
The husband ceased employment in 2004 when he converted his [F] superannuation to a life pension, earning an income of around $30,000.00 per annum. The wife worked part-time as a [omitted] and earned an income of around $50,000.00 per annum. The husband cared for the children when she was at work. When she was not at work they shared the care of the children.
Since separation the parties have sold the former matrimonial home and they both live in rental accommodation.
The children have lived with the wife since separation. They have not spent unsupervised time with the husband since around March 2010.
The husband pays the wife the sum of $729.00 per month for child support.
Both parties contributed income from their employment to pay living expenses and to support the children.
Notwithstanding the dispute of the initial contributions of the parties and the dispute of which parent was the primary carer of the children after 2004, both parties submitted that their financial, non-financial and contributions to the welfare of the family during the marriage were equal. Neither party made submissions as to their contributions since separation.
Conclusion as to contributions
I attach some weight to the greater initial contribution of the husband of the sale proceeds of his [L] property which was approximately $18,000.00 greater than that of the wife. However, this contribution must be considered in the context of a ten year marriage and the parties’ subsequent contributions.
Both parties have contributed financially throughout the marriage from income earned from their employment. There is no issue that the husband has contributed his pension towards the benefit of the family after he ceased employment in 2004.
Both parties have been involved with the care of the children during the marriage. Since separation the children have lived with the wife and since around March 2010 the husband has not spent unsupervised time with children. The wife has therefore had the greater share of the responsibility for the care of the children since separation.
The husband has been required to pay child support to the wife since separation.
In my view, weighing up all the contributions of the parties, overall they should be assessed as equal, as submitted by them both. Each party is entitled to assets worth $264,161.00.
Superannuation
The husband is seeking that there be no superannuation split in respect of the parties’ entitlements or any adjustment of non-superannuation assets in respect of the superannuation.
The wife is seeking an adjustment of cash of $50,000.00 in respect of superannuation, rather than a superannuation split.
As a guide to the Court both parties made calculations, in accordance with the formula used in West & Green[23], although neither party urged me to adopt that approach. The wife’s position was that the justice and equity of the case should result in an adjustment to her of $50,000.00. In considering what order is just and equitable I intend to use the four step process.[24] The Full Court in C v C[25] said:
“If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to;
(a) value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);
(b) consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;
(c) consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and
(d) ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.
In the context of a consideration of the matters referred to in sub-paragraphs (b) and (c) of the last paragraph, the following matters may well be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present and/or future entitlements under the fund.”[26]
[23] [1993]FLC 92-394
[24] Op sit
[25] (2005) FLC 93-220
[26] Paragraphs 65 and 66
The husband became a member of the [F] Scheme on 16 March 1978. The date of commencement of his service period was 3 September 1974. It is not disputed that he had superannuation from his previous employment which was rolled into the [F], although there was no evidence of that amount. He exited the plan on 19 November 2004 when the gross amount of lump sum benefit of his superannuation entitlement converted to pension was $331,808.00.[27] No valuation was obtained of its value as at that date. The amount of the superannuation pension was $27,650.00 per annum. As at 16 November 2009 his pension was $31,563.00 per annum. The life pension is indexed in accordance with movements in CPI twice yearly. The husband’s superannuation is therefore in the payment phase.
[27] Exhibit “H5”
The husband commenced making contributions to his superannuation entitlement in 1974, which was 25 years before the parties started their relationship. There was no evidence of the amount of his contributions at the commencement of the relationship. The husband ceased making contributions when he made an exit from the scheme in 2004.
The wife’s service date was 11 December 1994 and her scheme benefit date was 10 October 1996. It was not disputed that the wife started contributing to the fund from 11 December 1994. She is currently on leave without pay.
The wife started making contributions to her superannuation entitlement in 1994, which was five years before the commencement of the relationship. The wife has made contributions towards her entitlement throughout the marriage and after separation. The only evidence of her contributions was her [F] statement, which showed personal contributions of around $1,043.00 since separation between 11 July 2009 and 22 August 2009.
The wife said that she was able to make contributions whilst on maternity leave. She was on paid leave most of the time and for a few months after [Y]’s and [Z]’s births she paid a little bit extra. She received employer contributions throughout the whole period.
During cohabitation, the wife made an indirect contribution to the husband’s superannuation entitlement. She gave evidence that she took 6 weeks off work after the births of each of the three older children, enabling the husband to continue to work. She also made contributions as a homemaker whilst he was still in the scheme.
The husband made an indirect contribution to the wife’s superannuation entitlement during the period of cohabitation by caring for the children whilst she was at work and he also made homemaking contributions.
Since separation the wife has made contributions towards her superannuation entitlement to which the husband has not made a contribution.
The wife conceded that a significant adjustment has to be made in the husband’s favour, by virtue of his contributions to superannuation having started so long before the relationship commenced.
I find that the husband’s initial contribution of his superannuation entitlement is significant. His contributions to superannuation have been substantially greater than that of the wife.
I find that the parties’ contributions result in an order which reflects 85% in his favour and 15% in favour of the wife.
The effect of my findings as to contributions will result in the wife receiving $66,123.00 of superannuation and the husband receiving $374,701.00 of superannuation.
75(2) factors
The husband is 60 years of age and the wife is 37 years of age. Both parties are in good health.
The husband works part-time and earns around $430.00 per week. He gave evidence that he has been offered full-time work which he declined. He indicated that he could work full-time if he is not to have any parenting responsibilities as a result of these reasons. The husband therefore has the capacity to increase his income. He also receives around $600.00 per week from his life pension, although the pension is being treated as “another species of asset.”[28]
[28] C v C
The wife is not working due to her commitments to look after the children full-time. Her employer, [R], has given her a further year’s leave without pay. Her position as a [omitted] has been kept open. The wife has the capacity to return to employment. She indicated that she is considering applying for a Monday to Friday position [omitted] and she could work from 9am until 3pm.
The wife is currently in receipt of a government pension of $672.00 per week, rent assistance of $58.00 per week, amounting to a total $730.00 per week. She receives $729.00 per month for child support. This amount is likely to increase if the husband works full-time. It is likely to decrease when the husband retired from employment.
The parties have commitments as set out in their financial statement. The wife has weekly commitments of $1075.00 including the costs of the children. The husband has weekly commitments of $1007.00.
The wife has the main financial burden of the four young children of the marriage, although the husband will pay child support to the wife. The youngest child is three years old, so she has a long period to support them in the future. She has a need to rehouse the children. She will be solely responsible for their care as a result of the orders I will make.
Neither party is cohabiting with another person.
The effect of the findings as to contributions is that each party will receive assets to a value of $264,161.00.
I find that there should be an adjustment of the wife’s contribution based entitlements by a further 10% in her favour having regard to relevant matters pursuant to s.75(2) of the Act.
As a result of my findings the wife shall receive 60% of the non-superannuation pool, which amounts to assets to a value of $316,993.00 and the husband will receive 40% and assets to a value of $211,329.00.
The wife has a greater working life expectancy than the husband, the wife being 23 years younger than the husband. She will be able to contribute to her superannuation entitlement in the future. The husband has received his entitlement and has converted it to a pension payable for life.
I consider that these factors should result in an order which will increase the wife’s entitlement by 10%. The superannuation will be awarded 25% in favour of the wife and 75 % in favour of the husband, which means that the wife should receive superannuation to the value of $110,206. She has superannuation of $85,649.00, so an adjustment of $24,557.00 needs to be made. Neither party proposed a splitting order. The wife seeks a cash adjustment of the non-superannuation assets. The husband did not oppose this, although his position was that there not be any adjustment. I intend to order a cash adjustment which will assist the wife to purchase a house for her and the children. This adjustment will increase the disparity between their respective assets. The husband will retain his superannuation pension worth $355,176.00. There is a disparity between the superannuation entitlements of the parties.
The order which I propose to make in respect of the non-superannuation and superannuation assets does not affect the earning capacity of either party.
Is the order just and equitable?
To make an order under s.79 the Court must be satisfied that all the circumstances it is just and equitable to do so. I must stand back and look at the overall result to ensure it is just and equitable.
As a result of my findings the wife shall receive non-superannuation assets to a value of $316,993.00 and a cash adjustment of $24,557.00 for the superannuation.
The wife shall receive:
·motor vehicle worth $16,950.00
·savings of $1055.00.
·cash of $298,988 plus $24,557.00, a total of $323,545.00.
Total $341,550.00
This sum should enable the wife to purchase a modest home. She will retain her superannuation entitlement of $85,649.00
The husband will receive non-superannuation assets to a value of $211,329.00 less a cash adjustment of $24,557.00 for the superannuation. He will receive:
·motor vehicle worth $26,000.00
·savings of $10,000.00
·cash of $175,329.00 less $24,557.00 - $150,772.00
Total $186,772.00
He will retain his superannuation entitlement valued at $355,176.00.
A cash adjustment means that his income stream is not affected, giving him financial security for the future. The wife is receiving $172,773.00 more in cash than the husband. She needs to re-house herself and the children.
Overall, I am satisfied that this is just and equitable.
I certify that the preceding two hundred and seventy-seven (277) paragraphs are a true copy of the reasons for judgment of Baker FM
Date: 9 September 2010
[16] Para 256
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