Huffman & Gorman - [2015] FamCA 317

FAMILY COURT OF AUSTRALIA

HUFFMAN & GORMAN

[2015] FamCA 317

FAMILY LAW – CHILDREN – Final parenting arrangements – where the father is the victim of domestic violence – where the father covertly recorded conversations between himself and the mother – where recorded conversations were admitted into evidence – where there are serious allegations of family violence – where the mother alleges the father was violent to her – where the mother alleges that the father maltreated the children – credibility of witnesses – meaningful relationship between each parent and each child – risk of harm – best interests of the children.

FAMILY LAW – PROPERTY – Final property orders – pre and post separation contributions.

Evidence Act 1995 (Cth) s 140(2)

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(3), 61C, 61C(1), 61DA, 61DA(2), 61DA(4), 65DAC, 75(2), 79, 79(4),

Bevan & Bevan [2013] FamCAFC 116
Briginshaw v Briginshaw (1938) 60 CLR 336 at 362
Farmer and Bramley [2000] FamCA 1615; (2000) FLC 93-060
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Jones v Dunkel (1959) 101 CLR 298
Johnson & Page [2007] FamCA 1235
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Mazorski & Albright (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Stanford v Stanford (2012) 247 CLR 108
W & W (abuse Allegations: Unacceptable Risk) 2005 FLC 93-235

APPLICANT:

Mr Huffman

RESPONDENT:

Ms Gorman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

PAC

3882

2011

DATE DELIVERED:

29 April 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

13 - 17 October 2014, 1 - 5, 11 December 2014 & 30 January 2015.

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maddox

SOLICITOR FOR THE APPLICANT:

Caldwell Martin Cox

COUNSEL FOR THE RESPONDENT:

Ms Judge

SOLICITOR FOR THE RESPONDENT:

Redmond Hale Simpson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wearne as advocate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Parramatta

Orders

PARENTING

All previous parenting Orders with respect to the children L born … 2006, S born … 2008 and Z born … 2010, (collectively, “the children”) are discharged.
Living arrangements
The children shall live with their father, Mr Huffman (“the father” or “the husband”).
Parental responsibility
The father shall have sole parental responsibility for the children.
“Time with” arrangements
The children shall spend no time with their mother, Ms Gorman (“the mother” or “the wife”), for a period of 12 months from the date of these orders.
Thereafter, the children shall spend supervised time with their mother each second month, at a supervised contact centre.
The mother shall be at liberty to make the child T born … 2013 available to spend supervised time with the children at the same times the mother is spending time with the children pursuant to Order 5.
Communication
The mother may communicate with the children by forwarding to them letters and gifts on two occasions per year:
(a)On each of the children’s birthday each year; and
(b)At Christmas
AND the father shall do all acts and things to ensure that the children receive such letters and gifts from their mother, provided that the letters contain no denigration of the father, his wife, or other member of his family.
The father shall forward to the mother:
(a)Any letters, gifts, artwork and other items as he is asked to do (whether for the mother or for the child T) by the children or any of them; and
(b)Photographs of the children
on no less than two occasions each year
Therapy:
The father shall do all acts and things necessary to engage and continue to consult a therapist recommended to him by the Independent Children’s Lawyer in consultation with Dr K to address the recommendations made in the Expert Report of Dr K dated 14 May 2014 and to facilitate this order the father shall:
(a)Attend at such frequency and for such duration as directed by the therapist;
(b)Do all acts and things necessary to encourage and arrange for his wife, Mrs H, to attend appointments with the therapist at such frequency and for such duration as directed by the therapist; and
(c)Make the children and each of them available for consultations with the therapist; and
(d)Be responsible for the costs of the therapy.
Facilitation
The order for independent representation of L, S and Z shall continue for a period of 15 months from the date of these orders.
Within 14 days of 29 October 2015 each parent shall do all acts and things and sign all documents necessary to make application for facilitated / supervised contact service to the M Children’s Contact Service, or such other supervised contact service as may be recommended to them by the Independent Children’s Lawyer.
The parents share equally the costs of the children’s supervised time with their mother, even if the supervised time is provided on a “full fee for service” basis.
The parents shall forthwith do all acts and things necessary to obtain an extract of transcript of the oral evidence of Dr K given in this matter on 3 December 2014 and upon receipt of same, shall provide a copy to the Independent Children’s Lawyer.
The Independent Children’s Lawyer shall provide to:
(a)The therapist in Order 9;
(b)The NSW Department of Family and Community Services (“FACS”)
copies of the following:
(c)Dr K’s expert report dated 14 May 2013 (if required by the therapist in Order 9);
(d)A transcript of Dr K’s oral evidence in these proceedings on 3 December 2014; and
(e)The Court’s Reasons for Judgment in these proceedings.
It is requested that Staff of FACS place a copy of these Orders and the Court’s Reasons for Judgment on their KIDS database so that it is available and accessible to Helpline staff and any caseworkers subsequently assigned to the matter.
The Independent Children’s Lawyer may provide to the co-ordinators of any supervised contact service which facilitates the children’s time with the mother a copy of:
(a)Dr K’s expert report dated 14 May 2013;
(b)A transcript of Dr K’s oral evidence in these proceedings on 3 December 2014; and
(c)The Court’s Reasons for Judgment in these proceedings.
The mother may provide to any therapist that she consults for psychotherapy:
(a)A copy of Dr K’s expert report; and
(b)A copy of the transcript of Dr K’s oral evidence in these proceedings on 3 December 2014; and
(c)The Court’s Reasons for Judgment in these proceedings.
The father shall provide to the therapist in Order 9 above an irrevocable authority to facilitate the Independent Children’s Lawyer obtaining information from the therapist in relation to the children’s progress, welfare and development in the care of the father.
Injunction:
The father is restrained by injunction from consuming any alcohol for a period of 12 months from the date of these orders.
Notations
The Independent Children’s Lawyer may arrange for the parties to attend Family Dispute Resolution or restore the matter to the list to consider the establishment of other time arrangements between the children and the mother upon being:
(a)Served with a report from an appropriately qualified therapist (other than Ms B) who has regularly and consistently treated the mother for a period of no less than 12 months to address:
(i)the “Cluster B” personality traits;
(ii)her role in perpetrating family violence against the father;
(iii)her awareness of her coercive capacity;
(iv)her acceptance of the children’s living arrangements in the care of the father; and
(v)other issues identified by Dr K in his expert report dated 14 May 2014 and in the oral evidence he gave in these proceedings on 3 December 2014; which report confirms the mother’s:
(vi)consistent and current attendance at behavioural change therapy; and
(vii)co-operation with and progress towards the therapeutic goals of that therapy.
AND
(b)An authority to facilitate the Independent Children’s Lawyer obtaining information from the mother’s therapist in relation to the mother’s work with the therapist.

PROPERTY

The wife shall pay to the husband the sum of $424,613.00 within six weeks of the date of these Orders.
In the event that the wife has not paid the said sum of $424,613.00 to the husband within six weeks of the date of these Orders, the parties shall forthwith join in the sale and do all such acts and things and shall execute all deeds, documents and instruments as may be necessary to list for sale and sell the former matrimonial home situate at and known as O Road, Suburb P in the State of New South Wales (being the whole of the land comprised in Certificate of Title Folio Identifier …) for a list price and sale price and with an agent to be agreed upon between the parties or, in default of such agreement as to the list price and/or selling price and/or agent for more than 14 days, at a list price and with an agent appointed by the President of the Australian Property Institute Inc. (NSW Division) whose decision shall be final and binding upon both parties.
That upon completion of the sale of the former matrimonial home in accordance with Order 22 above, the parties shall distribute the proceeds of sale in the following order and priority:
(a)in payment of legal costs, real estate agent’s commission and GST upon the said sale;
(b)in payment of any fees due for the nomination of a valuer and fixing of a price as hereinbefore provided, in payment of valuation fees, and GST, if any;
(c)in payment of municipal council and water rates;
(d)in payment of 55 percent of the balance then remaining together with interest, if applicable, to the husband;
(e)in payment of a further sum of $6,600.00 to the husband (being 55 percent of the estimated value of the Subaru motor vehicle retained by the wife at separation);
(f)in discharge of any mortgages secured over the title to the home as at the date of these Orders;
(g)in payment of the balance to the wife.
The husband shall be declared to be the sole legal and beneficial owner of all his right, title and interest in and to:
(a)all cash at bank and monies invested by him in his sole name;
(b)all furniture and personal effects in his possession;
(c)any motor vehicle in his possession;
(d)any superannuation entitlements received by the husband and invested by him or on his behalf.
Upon the husband being paid all monies due to him pursuant to these Orders, the wife shall be declared to be the sole legal and beneficial owner of all her right title and interest in and to:
(a)all cash at bank and monies invested by her in her sole name;
(b)all furniture and personal effects in her possession;
(c)any motor vehicle in her possession;
(d)any superannuation entitlements received by the wife and invested by her or on her behalf.
Unless otherwise specified in these Orders, and except for the purpose of enforcing the payment of any money due under these or any subsequent Orders, each party shall be solely entitled to the exclusion of the other in both law and in equity to:
(a)all property (including choses-in-action) in the possession of such party as at the date of this agreement;
(b)all insurance policies in relation to which they are the Life Insured.
In the event that either party fails to sign any necessary documents or instruments or to do any acts required or contemplated by these Orders to be done, with such failure continuing for 14 days, then the Registrar of the Family Court of Australia shall pursuant to section 106A of the Family Law Act 1975, have the power to execute any documents or instruments in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.
Each party shall be solely liable for all debts and liabilities in their sole name and/or encumbering any item of property in their possession and each party shall indemnify the other in relation thereto.
Liberty is granted to the parties to re-list the matter upon seven days’ notice in relation to the implementation of these Orders.
By consent, it is declared that the wife holds on trust for the benefit of the children all her interest in AXA and Telstra shares owned by her at the date of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Huffman & Gorman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3882 of 2011

Mr Huffman

Applicant

And

Ms Gorman

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the long term parenting arrangements for L who is eight, S who is six and Z who is four, the three children of Ms Gorman (“the mother”) and Mr Huffman (“the father”) who separated after a five year marriage. The parties are also in dispute in relation to property.
Following the breakdown of the parents’ relationship, the children continued to live with their mother. The children have spent limited time with their father, but he now seeks to have them live with him as he is concerned that they require protection from their mother who he contends has a personality dysfunction and is violent. The Independent Children’s Lawyer (“ICL”) supports the father’s position and proposes orders which would see the children live with their father and spend very limited time with their mother.
The mother denies that the children have been or will be harmed as a result of her personality or behaviour and seeks orders that she have sole parental responsibility for long term issues concerning the children, that they live with her and spend defined time with their father. She also contends that the children would be at risk of physical harm if they were to live with the father and his wife.
My task is to make orders in relation to parenting that are in the best interests of the children.
So far as property is concerned the mother proposes that the father receive a very small amount of the total asset pool and the father proposes that it be a significant proportion of that pool. I must make orders adjusting the parties’ property interests if it is just and equitable to do so.

Background

The beginning of the relationship 1999 – 2005

The mother is 42 and the father is 43 years old. The parties commenced a relationship in 1999 when they were in their late twenties. At that stage the mother was living in a property in Suburb P (“the P home”) which she had purchased for $240 000 in January 1998, using $24 000 of her own funds and borrowing $216 000, which was secured by a mortgage.
From the time the mother purchased the P home she took in a number boarders or housemates who lived at the property and the money they paid in rent was used to assist in repaying the home loan.
The father says that he and the mother lived together in her house from about November 1999 and that he made a contribution to the accumulation of joint property. Although the mother agrees that the father stayed at her home in Suburb P from time to time, and sometimes regularly, she says that they did not live together until after they were married. She also says that the father made no contribution to the accumulation of assets prior to their marriage. This issue is dealt with later in these Reasons.
The mother alleges that the father was violent to her throughout the relationship and that this violence escalated by around 2005. The father denies that he was ever violent towards the mother and contends that the mother was violent and coercive towards him which she denies. This significant area of dispute is dealt with later in these Reasons.
The parties were married in 2005 and lived in the P home throughout the marriage.

The Marriage – October 2005 – December 2010

In March 2006 the parties purchased a property in Town N in joint names for $430 000. $41 925 was paid by way of deposit and the balance was borrowed with the loan being secured by a mortgage. The property was let and the rental income was applied to mortgage repayments. The father also paid $440 per month towards this mortgage. The mother paid for expenses associated with this property from bank accounts in her name.
The first child L was born in late 2006. The mother worked full time up until the child’s birth and had approximately three months maternity leave following his birth.
From about December 2006, the father began secretly taping conversations, particularly arguments between himself and the mother. The father says that his motivation for making the recordings was that they could be used as evidence if he or his children were killed or seriously injured by the mother. The father used a dictaphone to record the conversations which was placed inside his belt buckle or waistband of his pants and covered with his shirt. The tapes record arguments between the parents in which the mother is threatening and abusive towards the father and in some conversations threatens to harm the child L. Some of the recordings are of entire conversations, while others are of portions of conversations. All of the conversations were recorded without the mother’s knowledge.
At some time between mid-2007 (according to the mother) and mid-2008 (according to the father) the mother discovered the father’s hidden dictaphone at their home and demanded that the father give her any tapes that he had made. He gave her four or five tapes that he had in the garage at home and the father has not seen the dictaphone or those tapes since. The father retained many more tapes of recorded conversations. He made no more recordings following this incident.
The recorded conversations were not mentioned by the father subsequently until late 2013 when he sought for the first time that they be provided to the expert psychiatrist appointed in the proceedings. A large number of the taped conversations were transcribed by a transcription service at that time agreed upon between the parties. The mother was also provided with the recordings so that she could compare the transcripts with them and ensure that the transcripts were accurate. For the purposes of the hearing, the father selected 22 recorded conversations from the tapes and the transcripts of those conversations are reproduced in his affidavit. Although the mother agrees that it is her voice and the father’s voice recorded in the taped conversations and that the transcripts in the father’s affidavit accurately record the words spoken by them, she sought to exclude the taped conversations and the paragraphs in the father’s affidavit that contained the transcripts from evidence in these proceedings. My reasons for admitting the taped conversations and transcripts in these proceedings were given in a judgment on 4 December 2014 ([2014] FamCA 1077). These Reasons should be read in conjunction with that judgment. Each of the 22 taped conversations was played in Court.
The mother returned to work initially one day, then increasing to four days per week when L was three months old. The child was cared for in a day care centre when the mother was working, as the father also worked full time.
The parents’ second child, a daughter named S, was born in 2008. The mother also took three months maternity leave following S’s birth and returned to work in about November 2008 four days a week. The child S also went to day care.
The parents each describe themselves as having “separated” in early 2009, but both remained living in the P home with the children.
From the date of their marriage until at least this “separation” each of the parents applied their income towards family expenses. They also held a joint bank account which was used from at least November 2005 for the receipt of funds from both parties and for the payment of joint expenses. The parties also held separate accounts in their own names and paid for some joint expenses from their personal bank accounts. Financial and non-financial contributions of each of the parents in this period are a matter of dispute which is dealt with later in these Reasons.

In about April 2009 the mother became pregnant with the father’s child, but this pregnancy was terminated due to life-threatening malformations in the baby.
In around January 2010, the parties’ third child was conceived, though there is a dispute surrounding the circumstances of this conception.
While the father still lived at the P home, improvements were made to add a fourth bedroom for the impending arrival of the parents’ third child. The mother paid for these improvements.
The parties’ third child, a daughter named Z was born in 2010.

Final separation – December 2010

The father moved out of the P home in December 2010. He continued to make payments on the N property until about May 2011. This property was subsequently sold and after discharging the mortgage and payment of fees associated with the sale, almost $65 000 was deposited into the parties’ joint bank account. These funds were subsequently used to pay various joint expenses in accordance with court orders.
The financial and non-financial contributions from the date of “separation” in early 2009 until December 2010, when the father moved out of the family home, are also dealt with later in these Reasons.
The mother has re-partnered with Mr X, who is 39 and resides overseas. This relationship commenced in early 2011 shortly after the father left the family home.
The father started living with his current wife, Mrs H, in April 2011. Mrs H agreed at that time to allow the mother to attend her home to satisfy herself about the circumstances if the children were to spend time at their home.
On 22 August 2011, the father commenced these parenting proceedings.
The parents reached agreement about interim parenting orders which were made by consent on 5 October 2011. Under these orders L and S were to spend alternate weekends, including overnight on a Saturday with their father and all three children were to spend two hours with him each Wednesday afternoon. The father was to travel to the mother’s home for the purposes of spending time with the children and changeover and the mother was not required to do any of the travelling.
On 18 November 2011 the parenting orders were amended so that the father could spend time with the children on L’s birthday and over Christmas. The orders were also amended so that changeover was to occur at a McDonalds Restaurant.
At two changeovers at McDonald’s on 3 December 2011, there was an incident between one of the mother’s friends (Mr C), Mr X, who had attended changeover on behalf of the mother, and the father.
On Christmas Day 2011, there was a further incident arising from a dispute between the parents concerning changeover, which involved the attendance of police who handed the child Z over to her father.
On 28 January 2012, when the children were spending overnight time with their father, the mother contacted police to carry out a welfare check on the children. No matters of concern were noted by police.
The parties divorced in March 2012.
The father married his current wife in May 2012. Mrs H has two adult daughters and a five-year-old daughter from a previous relationship. The father, his wife and her daughter live in Suburb V.
At the time of separation the father was employed at a courier company, but was made redundant in August 2012.
In August 2012, there were concerns about L’s behaviour at school when he was in kindergarten. He was described as showing concerning attention-seeking behaviours and was regularly in trouble.

Federal Magistrates’ Court proceedings (August 2012) and events following

On 22 August 2012, the proceedings were listed to commence in the Federal Magistrates Court and affidavits had been filed by the parties for the purposes of those proceedings. On that date the parents sought that the Federal Magistrate, as he then was, make orders the parents had consented to, which provided for the children to reside with the mother and spend alternate weekends with the father. The father had made serious allegations of violence against the mother for the first time in his affidavit filed in those proceedings and the Federal Magistrate declined to make the consent orders sought. The mother had not made any allegations in her case that the father or his wife had harmed the children.
On 29 August 2012 the children spent time with their father on a Wednesday afternoon in accordance with their usual arrangements, but the mother alleges there was an incident at McDonald’s in which the father harmed L. The father denies this and the issue is dealt with later in these Reasons.
On 19 October 2012 the father amended his parenting application to seek orders that the children reside with him and spend alternate weekends with their mother.
On 22 November 2012, there were negotiations at Court between the parties and the ICL, concerning a gradual increase in the father’s time with L and S to two consecutive nights and for overnight time with Z to commence. There were some other matters that were not finally agreed and no orders were made by the Court at that time, but the children spent time with the father from late December in accordance with the agreement that had been reached. The father’s time increased to two nights each alternate weekend for all three children from February 2013 and this arrangement continued until about the beginning of April 2013.
The mother’s fourth child, T, whose father is Mr X, was born in early 2013.
The child L’s classroom teacher described difficulties in L’s behaviour throughout 2013. The teacher told the Court appointed expert, for example, that the child had thought it was funny to push someone down the stairs or to wrap his hands around someone’s neck and apply pressure and that the child was struggling to build friendships. The child reported to his teacher that he loved his step-dad Mr X and mentioned once or twice that he did not like his biological father.
From the beginning of April 2013 the pattern of the children’s time with their father changed. Although the parents had reached agreement that all three children were by this stage to spend two nights on each alternate weekend with their father, there were many occasions when this did not occur. There were some specific difficult incidents such as on Mother's Day in May 2013, when L refused to spend time with his father and the father contacted police. In August 2013 there was also an incident in which police were involved, when the father followed the mother for a considerable distance in his car after a failed handover which caused the mother to become upset.
From August 2013 the arrangements changed so that the mother delivered the children to the father’s home for the purposes of his time with the children. On 21 out of 25 occasions from August 2013 to June 2014, the mother transported the children to the father’s home but the children did not pass into the care of the father. On these occasions Z remained in her carseat and the older two children walked out of the car and told their father they would not be coming to spend time with him, while the mother stood next to the car.
In August 2013, Dr K, the Court appointed expert, interviewed the parents and members of their households and observed the children with them.
On the weekend of 27 – 29 September 2013 the children spent time with their father for the first time in almost three months. During the weekend the father and his wife observed that Z’s foot was swollen and appeared sore. Z was later diagnosed with cellulitis, a skin infection, and was hospitalised for a few days.
L’s classroom teacher reported to Dr K that that towards the end of 2013 L’s behaviour again deteriorated.
On 18 October 2013 the ICL advised Dr K that the father had made an application to provide him with the recorded conversations for the purposes of his assessment. The doctor decided to suspend finalising his report until the issue of the additional material had been resolved.
The children spent a single 24 hour period of time with their father at his home over Christmas 2013.
On 31 January 2014 there was another incident following the children being brought to the father’s home but failing to pass into his care. After the failed changeover the father’s wife, Mrs H, was followed by the mother and Mr X in their car when she took her dog for a walk and she became shaken and upset. The incident was reported to police.
On 17 March 2014 Foster J determined that the sound recordings and transcripts of conversations covertly recorded by the father were not to be provided to Dr K for the purposes of his assessment.
On 5 May 2014 Dr K had further telephone conversations with each of the parents and on 14 May finalised his report which was released to the parties on 16 June 2014. Dr K recommended that the court consider suspending the children’s time and all contact with the father on an interim basis to “protect [the children] from needing to take a role in the partisan conflict” leading up to the final hearing. An application for such an interim order was not made.
After the release of Dr K’s report, the children spent time with the father on four occasions without any apparent difficulties at changeover. On the last of these weekends, 29 – 31 August 2014, there was an incident which gave the father cause to admonish L about his behaviour. In the course of the conversation the child became very angry and said “I want you to treat me bad. Then I can go home and tell Mum the bad things you do to me cause she wants to tell the court.” On 10 September 2014 the father’s solicitor contacted the mother’s solicitor on the father’s instructions and advised that the father would not see the children between that date and the hearing as had been recommended by Dr K in his report of 14 May 2014.

Hearing in October 2014 and events following

At the time of the first hearing days in October 2014, the children had not spent any time with their father since he suspended it on 10 September. However, on 17 October 2014 when the matter was adjourned until early December, orders were made by consent for the children to spend time with their father each alternate weekend from after school Friday until Sunday afternoon. The children recommenced spending time with the father in accordance with these orders.
On Sunday 23 November 2014, after the children had spent time with their father, the mother says that she observed a scratch on L’s neck. L then complained that he had been injured by Mrs H on the previous Saturday night. The mother’s sister, Ms D, took L to a Police Station to report the incident. The child told the police officer that Mrs H came into the bedroom at bedtime when he was talking with his sister, told him to stop talking and came to him and scratched him on the neck. A JIRT team subsequently interviewed L and S (who had reported that she heard L cry) and each child repeated the complaint in similar terms. A provisional Apprehended Violence Order (“AVO”) was made against Mrs H for L’s protection but was revoked at a subsequent court hearing.
At the time of the adjourned hearing in December 2014, the children were living with the mother and their half brother, T, who was almost two. T’s father, Mr X, visits from the overseas from time to time on a visitor’s visa and stays with the mother and the children at the P home. The mother is an assistant manager with a food wholesaler and works two full days per week. She currently earns about $30,500.00 per year.
Mrs H owns a three bedroom home which she and the father propose extending if finances allow.
At the time of hearing, the father was casually employed as a part time food production assistant for about 15 hours per week. His wife has worked full time for many years. The father proposes to continue to work part-time in the event the Court makes the orders he seeks and the children come to live with him.

The Areas of Dispute

In relation to parenting there are three significant factual disputes. First, the father contends that he was the victim of serious systematic violence perpetrated by the mother for most the relationship. The mother contends that it was the father who was violent towards her and that if she also engaged in violence, it was in response to the father’s antagonism. Second, the mother contends that the father and his wife Mrs H abused the children after separation, which is denied by the father. Finally, it is central to the father and the ICL’s case that the mother has a significant personality dysfunction with prominent narcissistic, antisocial and borderline personality traits. The mother disputes this diagnosis.
There were other factual disputes between the parties which did not ultimately become significant issues regarding the best interests of the children such as whether the father’s dogs are dangerous, the details of disputes that occurred at some of the changeovers and assertions about the mother’s lack of co-operation with the father after separation. As these matters were not pursued in final submissions and are not in my view of significance, no determination about them will be made in these Reasons.

Family violence

The father’s allegation of the mother’s violence from 1999 to December 2006

As noted, it is the father’s case that he was the victim of serious violence perpetrated by the mother for most of the relationship. The father first detailed allegations of this nature in the affidavit he filed when these proceedings were to be heard in August 2012.
So far as the period prior to the first child’s birth (in late 2006) is concerned, I understand from submissions made on behalf of the mother, that she denies that she was violent during this period.
The father says in his affidavit that the first indication of the mother’s violence was about six months into the relationship, when the mother had a verbal outburst on Christmas Day 1999 and within a week of Christmas Day she first physically attacked him.
The first assault according to the father occurred on New Year’s Eve in 1999 when he and the mother had a disagreement when he was driving and without warning the mother hit him hard in the face with a closed fist.
The father says that the abuse worsened just before the parties married in October 2005 and that he sought assistance from their priest and also made an appointment for them both to see a counsellor at a mental health service. The father says that the mother refused to attend these appointments and became very angry with him, and that in the course of an ensuing argument, the mother hit him, threatened suicide, and jumped through a large window at their front of their house. The father said he subsequently learnt that their flatmate at the time was at home in a back bedroom and the father claims that this flatmate heard the incident but was too scared to come out and pretended not to be at home.
The father says that the abuse intensified after the wedding and that the mother said she would only obtain counselling or help if the problems continued after they had a child.
The father deposes to a specific occasion before the parties’ first child was born when the mother was ironing her clothes and became angry with him and grabbed him by the hair. The mother held the iron very close to his face and he could feel the heat and the mother threatened to “burn [his] face off”.
The father gives no other specific instances of abuse between the date of the parties’ marriage in October 2005 and late 2006, but says generally that as the relationship continued, the abuse worsened. Initially he says that the violence was accompanied by considerable anger and a lack of control by the mother, but as the relationship progressed the father describes the mother as being more in control and on occasions very calculated and pre-meditated when violent.
The father was not cross examined about any of the specific alleged incidents of violence in this period, nor was it put to him that the mother was not violent towards him between the commencement of their relationship and the first child’s birth.

The mother’s violence after December 2006

The father says that he became particularly concerned about the mother’s behaviour from the time of L’s birth and was of the view that she was suffering from a psychiatric condition. The father’s affidavit contains numerous specific instances of abuse towards himself that he says occurred from this time.
The father says that the mother also regularly denigrated him and made him feel worthless and isolated from his friends and family. He also says that the mother falsely alleged that he was the person abusing her and said that he was always the person at fault in these incidents.
It is also the father’s case that the mother harmed the children, particularly the eldest child, on occasions, threatened to harm the children on other occasions and perpetrated violence against him in the presence of the children on other occasions.
In about late 2006, the father began collecting evidence of the mother’s conduct. He covertly taped conversations between the mother and himself and relies upon the contents of some of these recordings in the proceedings, as evidence of some instances of the mother’s violent, coercive and threatening conduct.
The mother does not dispute that her voice and the father’s voice are recorded on the tapes, though she does dispute the date of some of the conversations. Although the mother gives no evidence about the dates on which she says the various recorded conversations occurred, it is her case that she discovered some of the father’s tapes and his dictaphone in June or August 2007, and that none of the recorded conversations occurred after August 2007. The father says that the mother did not find some of the tapes until around mid-2008, and that he had been recording conversations up until this time. He did not make any further tapes after the mother discovered the dictaphone.
It is the mother’s case, as I understand it, that the recorded conversations may have been in some way reconstructed, and that one or more of them consists of a selection of recorded sentences joined together in an order other than the order in which they were recorded. However, the mother does not identify any particular conversation in which she suggests that this has occurred. The father denied under cross-examination that he changed the order of any of the sentences spoken. Although he says that he did make selections from some parts of conversations and put them together to make the recordings “manageable”, he denied portraying these conversations as complete conversations. He says that one, or possibly two of the tapes he relies upon, contain parts of conversations put together in this way. He said that in these one or two recorded conversations he selected full sentences and did not put them together to create the appearance of one conversation. There is no expert evidence that the tapes were reconstructed, or the recordings interfered with.
Under cross-examination the father agreed that on one occasion and possibly more he engaged in “contact” with the mother, left the area, made commentary on a tape and went back “into the fray”.
The father says that there was a particularly bad period approximately four weeks after the eldest child’s birth (late 2006) where the mother demanded that he commit suicide and gave him a deadline of a couple of days after Christmas in which to do it. The father says the mother also threatened to kill or harm the child.
At this time the following conversation between the parents was recorded by the father. “M” indicates words spoken by the mother and “F” indicates words spoken by the father.
M:You’ve got Thursday off. I’ll give you till the end of Thursday to say goodbye to your son properly. If you dare to fuckin think I’m kidding again, I’ll suffocate him in the meantime, okay?
F:Yeah.
M:Understood?
F:Thursday, alright, end of (background noise).
M:Understood?
F:Understood.
M:Understood?
F:Understood.
M:I swear, as God is my witness, [father’s first name], I will fuckin kill him if I think you’re taking it as a joke, do you understand me?
F:I understand you. I understand.
M:you have got to the end of Thursday to say your proper goodbye. You either kill yourself or I swear to you, [father’s first name], your son and I go. You fuckin dare, at any stage, treat this like a fuckin joke again, which is what you’ve done for the past three fuckin days – I almost did it yesterday, I’m telling you now, because I fuckin knew you were going to do what you did. Then I thought, give you the benefit of the doubt, like I always fuckin do, but I promise you, I won’t do it again. If you think for one moment you take this for granted, I’ll fuckin’ kill him – that I’m still alive because I’ve got (indistinct) gaol, do you fuckin hear me?

The father also says that at this time, when the child L was just a few weeks old, following an argument between himself and the mother, she acted on her threat to harm the child. It is not clear whether the father alleges that the following events occurred after the particular conversation set out in the above paragraph, but he says he saw the mother walk towards the child’s bedroom and followed her. He then saw her place a pillow over the child’s face and hold it there. He says he removed the pillow and stopped her.
The following conversation between the parents was also recorded by the father at around the same time and is said by the father to relate to L.
M:Do it again and I swear to God I’ll kill your son. Do it again. I’ll walk in there and fuckin stab him to death now. Want to push me again?
F:No, I don’t want to.
M:I’ve got a real fuckin lack of sleep at the moment because of you, fuckin prick. You known I’ll carry out. [sic]
F:Yeah.
M:Just fuckin told you I tried to suffocate him, so you fuckin push me again. Push me again. Yeah you just fuckin argued with me didn’t you cunt?
F:Yeah.
The father says that he and the mother had a number of conversations along these lines in late 2006 where the mother demanded that he kill himself and that if he did not do so she would kill the child and herself. The father says these threats were not said in anger, but were said in a very calm voice and that he believed them. He said that on the day he was expected to kill himself, he was driving to work and rang his parents at about 6:00 am. As a result of the father informing his parents about the mother’s threats, the paternal grandparents telephoned the mother’s obstetrician and the doctor made arrangements to attend upon the mother at the home that morning. The father left work and travelled home and saw the doctor at the home but did not have a chance to speak to the doctor alone. The mother presented to the doctor as fine and unconcerning though the doctor recalled that the father and his family seemed concerned. The father did not tell the doctor about the threats to kill the baby.
The father says that the mother regarded the involvement of the doctor as a betrayal of her and following this incident the mother attempted to isolate him from his family, and her level of abuse towards him greatly increased.
The father also alleges that threats towards the child L continued. He says that the following conversation between himself and the mother, which was recorded by him, occurred in early 2007.
M:Fucking lying cunt, you did fuckin realise
(Child crying)
M:Shut him up. Fucking shut him up or I’ll punch him in the fuckin head.
F:I’ll shut him up (inaudible conversation)
M:Put him in there now, fuckin cunt.
(Child crying)
F:Good boy. Good boy.
M:I’ll tell you what, you’re determined to be the death of us aren’t you?
F:No.
M:Fucking will be. You are absolutely determined. We shouldn’t have brought him into the world for me to kill him, [father’s first name]. I swear to you the end is near, I fuckin swear to you.
At around the same time that the father started covertly taping conversations with the mother, the father also began taking photographs of injuries he says he received when he was assaulted by the mother. At the time the father stored the camera or phone which was used to take the photographs at his parents’ home or hid it in the garage, but did not print the photographs until the commencement of the proceedings. The father says that he took the photographs as he wanted evidence of the mother’s assaults and he had genuine fears for his safety and the safety of his children. He said he did not report the incidents to police as he was frightened of the consequences and he did not want the mother to hurt the children. He said that he planned at some point to use the photographs, if he decided to report the mother to the police or Community Services.
The father also says that between about March 2007 and 19 August 2007 he made notes at the time of, or shortly after particular incidents. He says that these notes do not record all of the incidents involving himself and the mother. The father still had these notes in his possession at the time of the hearing and they were originally annexed to his affidavit and relied upon as evidence of the matters asserted. After they were objected to in that form, the father filed a further affidavit setting out the events he alleges occurred and the admission of the notes into evidence was not pressed.
By reference to the photographs and the two affidavits, the father alleges that there were numerous incidents where the mother assaulted and threatened him and L between late 2006 and December 2010, when he and the mother finally physically separated. Some of these incidents are outlined in the following paragraphs.
The father says that he was struck by the mother on an unspecified occasion in late 2006 causing his nose to bleed. A photograph of the father with a bleeding nose is annexed to his affidavit. On two other occasions in late 2006, the father says that he was struck and scratched by the mother to his neck, chest and arm and he took photographs of the marks and bruises which he says were occasioned during this time, which are also annexed to his affidavit.
The father denied under cross examination that at least some of the injuries shown in the photographs were as a result of playing soccer and were not caused by the mother. It was, however, not put to him that the mother did not assault him in the way in which he alleges resulting in the injuries depicted in the photographs. When the mother was cross examined about the photographs she agreed that they appeared to show injuries, that she had seen injuries like that on the father and that some of them were caused by physical contact between the father and herself. She also maintained that he was also injured in soccer and was lying when he asserted that all of the injuries came from her violence.
According to the father, on 20 March 2007 he received a call at work from the mother who was at home with L. He deposes that the mother said:
He was screaming so I hit him, not really hard but it was hard enough that the shock made him scream so much he couldn’t breathe. I stuffed his feeding towel into his mouth to muffle him but could still hear him snorting, so I picked up a pillow to finish the job. As I did I started crying and he stopped screaming because he could see I was upset so I didn’t need to do it… it’s lucky I am working tomorrow because he won’t last the day I’ll kill him for sure.
In a conversation which the father says he recorded after March 2007, the following words were said:
M:Don’t forget [father’s first name].
F:Okay.
M:And don’t you (indistinct) that because I (INAUDIBLE CONVERSATION) fucking idiot (INAUDIBLE CONVERSATION) is going to make me (indistinct) more. No fucking shit cunt. When I smacked him [father’s first name] he screamed so bad he can’t fucking breathe, and I know that’s coming?
The father says that there were further threats to harm the child in April 2007. He recorded a conversation which he says occurred in late April 2007. Some of the words spoken by the mother and father are as follows:
M:That’s when the fuckin homicide happens dickhead. Do you know what you just caused?
F:No.
M:You know what you just caused? You don’t? You don’t know what you just caused?
(CHILD CRYING)
F:Caused you to hold him.
M:You don’t know what you just caused?
F:No.
M:You’re gonna come home and find him dead now. (INAUDIBLE CONVERSATION)
F:Oh, oh, ow.
…
M:Yeah. (CHILD CRYING) You just told me I’ve got no rights. (CHILD CRYING) (INAUDIBLE CONVERSATION) I’ve got no fucking rights. I’ll show you what my fuckin rights are right – you fucking watch what comes next [father’s first name]. (CHILD CRYING) He’ll be dead by tomorrow night I swear to God. [emphasis added]
F:Who will?
M:[L]. (CHILD CRYING) You’ve just done it [father’s first name]. You just told me I have no fuckin rights. (CHILD CRYING) You took what little fuckin rights I had in this house, you just took from me. (CHILD CRYING)
F:Yes [mother’s first name], I shouldn’t have taken your rights.
M:You fucking did. Too late.
…
F:Do you want to go and pick him up or put him in the car or something?
M:No, you fucking leave him there.
F:Okay.
M:So you (INAUDIBLE CONVERSATION) ---
F:I’ll leave him.
M:---(INAUDIBLE CONVERSATION) be dead tomorrow so it won’t matter. [emphasis added] (CHILD CRYING) He can scream all he fuckin wants. The last days on Earth. (CHILD CRYING) (INAUDIBLE CONVERSATION) [father’s first name] (INAUDIBLE CONVERSATION). (CHILD CRYING) You’re gonna pay for what you just did [father’s first name]. (CHILD CRYING)
(STATIC)
F:I’ll, I’ll get it out of the car. Okay, I’ll get it.
M:(INAUDIBLE CONVERSATION)
F:I’ll get it out of the vehicle.
M:(Indistinct)
F:Ow.
M:(INAUDIBLE CONVERSATION)
F:I’ll get it out of the vehicle. (CHILD CRYING) I’ll get the Panadol. I’ll get the ---
M:I’ll fuckin kill him [father’s first name]. I’m gonna kill him. [emphasis added]
F:No, you don’t want (indistinct) ---
M:(INAUDIBLE CONVERSATION) [father’s first name]. Don’t leave him, I’m gonna kill him. [emphasis added].
F:Okay you don’t need to kill him. I’ll get the Panadol.
M:No I do. I fucking do now.
F:You don’t.
M:Yes I fuckin do. Yes I fuckin do. Fuck. (CHILD CRYING) Fuck. (CHILD CRYING)
F:Sit down and I’ll get the Panadol.
M:Don’t you fuckin tell me what to do.
F:Okay, okay. (CHILD CRYING)
The father also relates incidents of the mother’s controlling and coercive behaviour, other than violence, such as an incident in about March 2007 where the parties argued one evening and in the course of the argument the mother told him that he could not use her car the next day and would have to walk to work. The father says he walked to work from Suburb P the following day, a distance of about eight kilometres. He said he left at about 4:00 am to arrive just before 6:00 am. The father also says that he was regularly forced by the mother to sleep on the floor, in the car, on the driveway or front or back porch, including on occasions in winter. He also alleges that the mother withheld food from him and regularly cut up or otherwise damaged his clothing.
The father also alleges that the mother controlled his access to finances and regularly gained access to his wallet and went through its contents and questioned about him receipts and his expenditure. He gives an example of buying a packet of chewing gum for 70 cents and the mother questioning him about it saying “who said you could buy it? You didn’t ask me. Who said you could buy it?” The mother agreed under cross examination that she said these things but denied exercising financial control over the father. The father says that in around April 2007 he complained about the mother’s financial control and some of the assaults and abuse to his brother, and that his brother set up and continued to fund a bank account for him, which the father says he used to buy food and other personal items.
The father also related humiliating punishments that he says the mother inflicted in response to actions he had taken in relation to the children. For example, he says that when L was a few months old, he changed the child on the floor near the front door of the house. The mother accused him of being stupid and selfish, and said “So you think it’s good for him, you can do it for yourself and see how you like it” and then took the father to the backdoor and required him to go outside, take off all his clothes and stand there naked for five minutes. The father says he did what he was told as he was fearful of the consequences if he did not.
On 25 April 2007 an incident occurred in relation to L’s reflux medication, which the parents administered by way of a syringe. The father says that the rubber plunger seal of the syringe had become loose and he put glue on it to fix it. The mother came into the room and saw him and said “you’re poisoning him. You can put some glue into your mouth and see how you like it.”
A lengthy argument ensued, and in the course of the argument when the father left the room, he obtained the dictaphone and recorded the following conversation:
M:So where were you when I just asked?
F:In the kitchen putting the syringe back on the cart thing for washing.
M:So I beg your pardon?
F:Okay, I’m sorry for doing that first before getting the glue. (Background TV noise).
M:In the shit one more time [father’s first name], one more time I swear on my own dying oath I’ll fucking stab you, do you understand?
F:I understand.
M:(indistinct) one more time.
F:I understand.
M:(inaudible conversation) now or I’ll stab you to death, which is first?
F:I don’t want you to stab me to death.
M:(inaudible conversation) in your mouth or I’ll just stab you.
F:I wasn’t going to squeeze this in his mouth though.
M:No [father’s first name] you were putting it in his mouth.
F:In the syringe.
M:Squeeze (Background noise)
F:I will squeeze that in my mouth no problem, but I’m not squeezing the glue straight from the tube into my mouth.
M:[Father’s first name]?
F:What?
M:You’ve got a choice, I’m not kidding, he’s overdue for his feed and I haven’t even given him solids. Squeeze it in your fucking mouth or I’m going to just stab you [father’s first name].
F:Okay, was I going to squeeze the glue straight from the tube into his mouth?
M:[Father’s first name], I’ve had this conversation so you can question me all you want.
F:No I wasn’t.
M:I’ve got the (indistinct) behind me, squeeze it in your mouth or else ‘I’m going to stab you.
F:No I’m not going to squeeze glue from the tube into my mouth.
M:(indistinct) which one do you want?
F:No it’s not a toy. [Mother’s first name].
M:Which one do you want?
F:I don’t want either.
M:(indistinct) I swear to God you’ve got a choice. Squeeze that in your mouth or you will be fucking stabbed to death.
F:No. I’ll squeeze out of a syringe into my mouth, no problem.
M:[Father’s first name]?
F:But I won’t squeeze glue out of a tube into my mouth.
M:You’ll squeeze it into your mouth.
F:No I won’t because I wasn’t doing that to him.
M:Squeeze it into your mouth.
F:No I won’t because I was not doing that to him [mother’s first name].
M:[Father’s first name] I swear on my own dying oath now, now you’ve just fucking dared me to do it.
F:No I haven’t dared you to do that.
M:I swear on my own dying oath one or the other?
F:Well I’m not squeezing glue into my mouth?
M:One or the other?
F:I’m not squeezing glue into my mouth.
M:Want me to swear on his life because I’m about to do it.
F:No I don’t want you to do (indistinct).
M:Fucking squeeze It in your mouth now?
F:Mel it doesn’t make sense –
M:Squeeze it in your mouth now?
F:No, it doesn’t make sense to squeeze glue –
M:Squeeze it in your mouth [father’s first name].
F:-- out of a tube into my mouth.
M:Squeeze it into your fucking mouth?
F:No (inaudible conversation).
M:I don’t care if you go wash your mouth. Squeeze it in your fucking mouth.
F:If it sits (sic) in your mouth you can’t wash it.
M:Squeeze it in your mouth.
F:Here, are you happy, ready. There, happy? Bloody happy? I hope you’re happy. Are you happy that I squeeze glue into my mouth?
M:If I was you I would shut up now [father’s first name] (Baby talking).
At various stages throughout this conversation, a baby is heard crying in the background. The father says because he was so frightened he did put some glue in his mouth.
Although the mother does not give a version of this event in her affidavit, the father was closely cross-examined about this particular conversation. It was put to the father that in this incident the mother walked into the kitchen and found him with a smile on his face and that he was holding the medication syringe against the baby’s mouth. The mother said “[Father’s first name], that’s not [medication] that’s glue in the syringe”. It was then suggested that the father was laughing and saying that it was not glue and that the mother asked him to give her the syringe. The father denied this version of events or that he had in any way set up the scene so that the mother would become angry and he could gather evidence. Although it was not put to the father that he had interfered with the recording of this conversation, it was put to him that pieces of the conversation were missing from the recording and transcription, which he denied. The words said to have been missing were not put to him.
The father also alleges in March 2007 that the mother threatened to harm herself and to harm their pet dog. He annexes a lengthy transcript of threats of this kind contained in a recording of an argument between them in about March 2007, which was played in the proceedings and includes the following:
M:Fuck off. Fuck off. Fuck off. You’re so fucking damaging. Fuck off, [father’s first name]. Fuck off before I fucking cark it. I’m so fucking sick, [father’s first name], I can’t even laugh. It hurts. I can’t cry. It’s hurting. I’m in so much fucking pain.
F:Okay, and I want to help you.
M:Bullshit.
F:I want to. I don’t --
M:You’re making it worse. You’ve done nothing but damage my home and my life. Fuck off. Fuck off. You want help, fuck off, selfish fucking little cunt. (Background noise). (Screaming).
F:[Mother’s first name], [mother’s first name]
…
M:(Indistinct). I can’t (Inaudible conversation). (Crying). Oh, I want to die (Screaming). (Indistinct). (Crying).
F:Are you going to hit me again?
M:(Screaming). (Crying).
F:Don’t hit me.
M:(Inaudible conversation). (Crying). I can’t (Indistinct).
F:Hey, off. Off. Fuck.
M:(Indistinct). (Crying).
F:Oh, ow, ow please.
M:(indistinct).
F:Oh. [Mother’s first name], don’t. oh.
…
F:Don’t hit your head, okay.
M:(Crying). Oh, fuck off.
F:Don’t hit your head. Don’t hit your head.
M:(Indistinct).
F:You’re hitting your head.
M:Fuck, I don’t give a fuck. I want to die.
F:You don’t want to die, [mother’s first name].
M:(Crying). Leave.
…
M:You fucking Jesus, you little cunt.
(Background noise).
F:Oh.
M:Don’t fucking speak to me like that, you fucking piece of shit. Fuck off, Fuck off.
F:I’m going.
M:Get out of my house now.
F:I’m going.
M:Leave my fucking car. Fuck off and take your fucking (indistinct) with you.
(Background noise).
(Static).
M:(Inaudible conversation).
F:What, sorry?
M:You heard.
F:I didn’t hear you.
M:If you’re here when I walk out of this room, you’re dead.
…
M:You can fucking take your dog now, you fucking cunt of fucking cunt. Fucking piece of shit, you want the house to look like fucking shit.

(background noise). Thanks for doing things, [father’s first name]. Thanks very much (background noise). Thanks for your help.
(Background noise).
(Child in background).
M:[E].
F:What are you doing with [E]?
M:[E], come here.
F:You can’t put her out on the road.
…
F:I won’t let you. You can’t put her on the road. She’ll get hit by a car.
…
F:[Mother’s first name], you can’t throw a dog out on the road because the dog barks.
M:I can do whatever I fucking want. I can do whatever I fucking want.
F:If you want to get rid of her, get rid of her properly. Go and do it that way.
M:Come on, [E]. (Child in background). Keep going, [father’s first name].
F:Okay, I’m not going to let you throw the dog out on the road.
M:[Father’s first name].
F:What?
M:I’m going to stab you to death. I am going to do it tonight, you fucking dare to come near me again. Fuck off out of my home now.
F:Okay, look, [mother’s first name], if you want me to go, I’ll go. Let me get my stuff and I’ll go.
M:No, no, no. We’ve all discussed this a thousand times. Get the fuck out of my home now. Get the fuck out of my home. Get the fuck out of my home or I’ll call the police. Get out now.
F:Well, can I get my –
M:Get out now. Get the fuck out of my home.
F:Well, at least let me get some shoes or something.
M:Get out of my home.
F:Well, can I –
M:Get the fuck out of my home.
(Background noise).
(Static).
(Background noise).
M:I swear to God, I’ll (indistinct). I’ll get a fucking knife and I’ll stab it through so fucking quick you won’t know what’s hit you.

The father gives evidence of a number of particularly serious assaults or threats between late March and August 2007. In many of these incidents the father alleges that the mother used a knife to assault him or damage his property. In particular he says that on 26 March 2007 when he and the mother were sitting on the lounge in their home and eating, following some conversation the mother threw the TV remote control at him, hitting him on the knee cap hard enough so that the remote control ceased operating. He then says the following occurred:
I got up, pushed her back on the cushion which was there, and started to walk out the back of the house. She approached me with the tea towel and started hitting me with it and it flicked around my head, so that it nearly flicked into my eye. I said: “Don’t do that again”. She headbutted me and I pushed her away. My nose was bleeding and the blood dripped onto the tea towel. I went to the tap to wash the tea towel and she said “That’s it. I’m going to shred your stuff.” I couldn’t get the blood off with water, so I went to the laundry to use detergent. [The mother] had cut up 8 items of my clothes, using a chef knife. I said “stop it” and she waved the knife at me and said “You’ll be next”.
Later that day she hit and kneed me in the face near the nose. I had pain in my nose and it started bleeding. I went outside. [The mother] locked me out of the house and cut up 3 more of my items of clothing. She soon let me inside and said to me “I will shred your legs so badly you will never play soccer again.”
On an unspecified Monday in March 2007 the father says the mother hit and kneed him, so that his ear was bleeding and bruised. He says that she sliced up his jacket with a knife and when he followed her and told her to stop, she pointed the knife at him. In the struggle that followed, the mother hit the father with her other hand, kneed him and bit his shoulder. Two days later the father says that the mother threw a knife at him, cut up more of his clothes and threatened to kill him. It was put to the father that these incidents did not occur but no alternate version was suggested to him under cross-examination or in the mother’s affidavit.
On 6 April 2007, the father says that he and the mother had an argument about him doing the washing at 10:00 pm the previous night, and the mother obtained a knife and cut up a shirt and said “I will slice you if you try and stop me”. He said that the following then occurred:
… she threw a thin black-handled knife at me from about three to four metres away, hitting me on the arm. She said “get out of the house”. I had nothing except my clothes and my phone. She said “get your parents to come and get you. I would rather kill [L] than let you have anything to do with him.”
The father says on 18 April 2007 the mother also kneed and kicked him and hit and poked him with a vegetable knife and threatened to kill him. He said that the knife cut his arm and the back of his fingers.
The father relates a particularly serious incident which he says occurred on 6 May 2007 when he and mother were arguing about him going to soccer training. The father says that when he was seated the mother hit him in the face which caused his nose to bleed and as he tried to make his way to the laundry, she struck him in the back. The father turned around and pushed the mother and she said “you hurt me. You’re gone. That’s it.” The mother walked away and he walked to the laundry sink. Moments later he saw the mother come at him swearing with a knife which she was swinging in the air. The father says he put his arm up and tried to avoid contact with the knife but it connected with his sleeve three times before cutting his skin. The father says that the mother cut him on the outside of his right elbow and the wound bled badly, and that the mother kept swinging the knife at him. He grabbed the mother and wrestled the knife from her hand and put it in the laundry sink. The father says that when he told the mother of his injury she accused him of overreacting and told him to grow up. He pulled up his sleeve, looked at the wound and could see the bone. The father said he wrapped his elbow in toilet paper and a towel and drove to the Emergency Department at the local hospital. He was admitted to the hospital, had surgery to his right elbow the following day, and remained in hospital another night.
Under cross-examination, it was put to the father that in this incident an argument began in the kitchen, that he moved aggressively towards the mother, that she grabbed a knife and ran to the laundry crying and distressed, that she was against the wall in the corner of the laundry and he came at her in a threatening manner and that she waved the knife at him and told him to stay back, all of which he denied. It was not put to him that the mother cut him in these circumstances.
Following the surgery on 7 May 2007, the father says he telephoned the mother and told her that there would be weeks of recovery, to which the mother said “I should have killed you. You’re fucking useless to me now. You can’t go to work. How are we going to pay the bills?”
The father says that he was required to keep the wound bandaged for ten days and was not able to move his arm at all and had two to four weeks off work. He also says he was not well enough to return to soccer that year.
The father also relates an incident on 17 May 2007, 10 days after the serious knife injury, when in the course of an argument the mother threw a cup of hot water on the side of his face. The father says that the water was not boiling but was hot enough to be painful and when he ran to wipe the water off his face the mother approached him with a knife and hit him with it forcefully enough to put a hole in his sleeve. He says she then cut up some of his clothing and waved the knife around, kicked him and hit him with the handle of the knife.
The father also says that in the course of an argument on 9 June 2007 the mother grabbed “two of the largest knives we had and came after me screaming, ‘Sorry, I’ve got to kill you’”.
In a number of the recorded conversations relied upon by the father, the mother refers to using a knife. For example, in an undated recorded conversation the mother says “if I use the knife we’ll achieve more”. Later in the same conversation she says:
That’s your last warning. Talk to me like it again like I’m a fuckin piece of shit, you’ll know how it all works and I’ll fuckin show you how it works with a fuckin knife to your throat. One more time [father’s first name]. You (indistinct) out to me one more fuckin time. You know what (INAUDIBLE CONVERSATION) (CHILD CRYING) completely ignoring the problem (INAUDIBLE CONVERSATION) you piece of shit (INAUDIBLE CONVERSATION) (CHILD CRYING) (INAUDIBLE CONVERSATION) fuckin put you out of this life. That is your last warning [father’s first name], do you understand me? (emphasis added)
In another conversation which the father says he recorded on 6 August 2007, the following is said:
M:No you’re not. (Indistinct). Where the fuck is my hot tea?
F:I, well I’m getting you a hot drink now.
M:Ah cunt?
F:Yes.
M:Talk to me like that again. Right. You know what? I’m absolutely fed up with empty threats. I’m fed up. You know what? I’m gonna get to a point very soon, I’m really close to it now, where I’m not gonna warn you. You’re gonna just fuckin walk in and I’m gonna have the knife already out and I’m gonna fuckin stab you to death cause I’m fed up with warning you cause you don’t believe me. (emphasis added)
F:I do.
M:And you know what? The more I empty threat you (sic) out loud, the more disappointed I get in myself.
F:I do believe you [mother’s first name].
Another conversation which the father says he recorded in late December 2007 to early 2008 includes the following words spoken by the parties:
M:I hate lying. (RUSTLING SOUND) I kid you not, [father’s first name]. I’m going to fuckin take your life. I told you I’d cut you open that night and I fuckin did it. (emphasis added)
In his affidavit, the father says that in addition to physical abuse, the mother also often threatened to harm him, destroy his possessions, maim and kill him. He says the mother also threatened self-harm and ultimately suicide and sometimes threatened to damage her own property and threatened the lives of their dogs and children. The father says he tried to avoid further abuse by attempting to comply with anything the mother wanted.
The father says that during many of their arguments the mother demanded that he leave but when he did start to leave, the mother’s behaviour would escalate.
The father also says that the mother often required apologies of him for his actions or she harmed him in retaliation if she perceived the father had harmed her. For example, he relates an incident in late August 2007 where he says that in the course of an argument he pushed the mother away because she struck him. In doing so he touched her breast and the father said the following occurred:
She became very angry and said “because you hurt me, just to pay you back I am going to kick you in the nuts”. [The mother] made me stand there in front of her and allow her to kick me in the testicles.
By reference to the photographs and trial affidavits the father alleges that in 2008 he was assaulted by the mother on a number of occasions including three times in June, once in July, four times in August, twice in September, once in October and once in November. He describes being struck and/or bitten and/or scratched on each occasion and annexes photographs to his affidavit which show injuries to various parts of his body, including his ear, back, shoulder and arms.
On 13 September 2008, the father says that in the course of an argument when he was driving the mother hit him. He says he pulled over to the side of the road, the mother was scratching and grabbing him, and he got out of the car. He says the car was parked on a hill and the mother threatened to take the handbrake off and let the car go. He saw her release the handbrake and he says he had to hold the car to prevent it from moving. After further argument the mother agreed that if he got back into the car she would put the brake on, which he says occurred. The father said a police car then approached and stopped next to them and that he had blood on his face from the scratches and strikes. Police spoke to both of the parents.
It is also the father’s case that the mother’s threats or actual assaults upon the child L continued while the parties remained in a relationship. He says that in about October/November 2008 when they were out shopping and the child was crying, the mother said to him “shut him up or I will – for good”. He says that at one point she hit the child across the face while he was in his pram in an aisle at K-Mart and a little while later when he was still crying she placed her hands on his throat and the father saw the child’s face go red. The father says he pushed the mother away and told her not to do that.
The parents both agree that they “separated” in early 2009 but continued to live together after this date. The father also alleges that the mother’s abuse of him and L continued after this “separation”.
He says that on 7 January 2009 he saw the mother smack the child L hard on his thigh and that it left a very red hand mark. He says that he took the child away and comforted him. The father annexes to his affidavit a photograph which he says he took of the mark on the child’s leg from this incident. The annexed photograph shows a large red mark on a male child’s thigh.
The father alleges that the mother scratched and struck him on the weekend of 17 to 18 January 2009 and annexes photographs of injuries to his arm and chest which he says he took at work on the following Monday.
The father says that on the weekend commencing 14 February 2009 he saw the mother put her hands around L’s mouth and head and he heard the child struggling to breathe. The father says he intervened and the mother said to him “if you don’t shut up I’m going to smack you in the fucking head”.
The father says that in the course of an argument with the mother on the Mother’s Day weekend in May 2009 the following occurred:
She admitted to me that she had thrown [L] across the room when he was naughty and said words to the effect of: “I will do serious damage to him and break bones if you don’t fix it” and “I’ll end up suffocating him” and “I hate the fuckin cunt and I’d rather kill him” and “I think he’s disgraceful, he’s just like you, he’s a rude fuckin liar”.
The father alleges that the mother scratched and hit him on the long weekend in June 2009, on one occasion in August and one occasion in September 2009 and annexes photographs he took following these events of injuries to his chest and neck.
Although the parents “separated” in early 2009, both parties remained living in the P home, and their third child, Z, was conceived in about January 2010. The father says that the mother threatened to kill the other two children and herself if he did not assist her in conceiving a third child. He said that she repeatedly told him that if he did assist her in this way he would be permitted to see the children whenever he wanted. He says that in these circumstances, he and the mother agreed that he would remain at the P property until the third child was born and additions to the home were completed to accommodate the child.
The father says that during the 12 months prior to vacating the family home, the mother insisted he remove all of his clothing from the house and that his clothing stay in the garage for that period. He says that on the day he left the premises in December 2010 he saw the mother tip a bottle of turps or methylated spirits over his clothing, and when he approached her she turned around and threw the contents of the bottle into his face. This was the event which he says caused him to leave.

Father’s allegations of mother’s violence or coercion after physical separation

It is the father’s case that the mother’s physical violence and coercion towards him continued for a short time after separation. He says that soon after he left the home in December 2010 he received a telephone call from the mother at midnight complaining that one of their dogs was barking, and asking him to collect the dog. The father says that he told the mother that he would come the next day, but the mother said that if he did not come and get the dog then she’d stab the dog to death. The father says he was concerned for the dog’s safety and collected the dog and brought her home to his parents’ home.
Following their physical separation the father contends that he continued to have concerns about the mother’s behaviour and the children’s safety. Under cross-examination he did not agree that the behaviour he complains of had been “put behind” the parties and that he was confident that the children were in good hands.
The father alleges ongoing abuse by the mother against the children. He says that on the weekend commencing 8 September 2012, L told him that he was “scared of mummy”, that she “locks [him] outside” and had “put [him] in the bin [when] it was dark”. The father says that S confirmed that their mummy had put L in the bin “because he did not eat his dinner”. According to the father, on the same weekend S told him that the mother had hit her in the tummy and that it hurt and she indicated a closed fist and punching actions when describing the incident. The father says that L told him on a number of other occasions in the previous 12 months that his mother put him in the bin with the yellow lid or the yellow bin.
The father maintained all of his evidence concerning the mother’s violence under cross-examination.
The mother says in her affidavit that she and the father had a very volatile relationship and some of their many arguments “involved physical violence”. She admits that she pushed and hit the father on occasions in self defence and outlines three specific incidents which are dealt with later in these Reasons. She does not, however, generally deny the allegations of violence made against her by the father or provide an alternative version for specific allegations.
Under cross examination about the allegations of violence against her, the mother agreed that her counsel had conceded on her behalf that the transcriptions are an accurate representation of the words spoken on the tapes. However, she said that when she heard the taped conversations she did not accept that they accurately reflected what was said. Although she agreed that she was “the aggressor” in a lot of the taped conversations she initially maintained that she had not ever been violent towards the father. She also did not agree that she had ever threatened to harm the child L, or had actually harmed him.
The mother was cross-examined about particular words spoken by herself in the recordings that had been played in Court. She said that she did not remember hearing herself say particular words which were clearly spoken by her when the recording was played in court. For example, she said she did not believe she had ever threatened to kill L.
In relation to the allegation that she had stabbed the father on 6 May 2007, the mother agreed that the father “was cut” but said it did not occur as alleged. She agreed that there was an incident where she required the father to put glue in his mouth but said it did not occur as alleged by the father.
Under later cross-examination, the mother agreed that she had been “physically violent” toward the father on occasions other then when his arm was cut and he was hospitalised. When asked to identify these incidents the mother was unable to do so but said there were occasions over the years where she “would push back if [she] was being pushed”.
The mother has at all times said that she was shocked when she heard her use of language on the recordings of taped conversations as she had always maintained she did not swear. Under cross-examination she said that she had sworn on the tapes because she was “reacting to a man who was abusing her”.
The mother agreed under cross-examination that she had cut the father’s clothes on more than one or two occasions but said that she did so in response to him damaging her car and her belongings. She denied all other behaviour alleged by the father that was coercive, controlling or punitive.

The mother’s allegations about the father’s violence

The mother alleges that the father “started being physically aggressive” toward her from about September 2002 when her flatmate moved out of the P home. It is the mother’s case that the father was not living at the home at this stage. She describes the father’s violence as starting “with small incidents like pushing me or grabbing my arm, but after … 2005 [date of their marriage] it escalated to pushing, punching, slapping and grabbing me”.
The mother says there was no pattern to the violence but the father was “more vicious towards me verbally and physically” when he had been drinking. She says that on occasions when the father was physically violent she defended herself and did push and hit him.
There are only three specific incidents set out in the mother’s affidavit of the father’s violence towards her.
First, the mother says that “in [an unspecified occasion in] 2007” the following occurred:
During an argument in which [the father] was forcibly pushing me, I had grabbed a knife and ran to the back of the house. [The father] ran after me and I was in our laundry against the wall holding a kitchen knife and saying to [the father] “get away from me”.
No other details are provided concerning this incident.
The second incident was said to have occurred in around mid‑December 2007. The mother says that during an argument the father forcibly pushed her, knocked her off balance and caused her to land on her bottom, and that she was pregnant at the time. The mother suggests that this incident led to her losing one of the twins she was then carrying, as she refers to attending the Emergency Department following some bleeding two weeks after the incident and being informed on 3 January 2008 that she had a surviving baby (the child S) but had lost the twin.

The father says that the repayments on the $243,000.00 loan came from the rent received from the W property which was let. The mother’s affidavit does not address repayment of this loan. It is the father’s case that the mother was responsible for and in control of the financial arrangements of both parties at the time. He says that the rent from the W property may have been insufficient to meet the mortgage payments and that the mother may have made up the shortfall from pooled finances during this period.
There is no dispute that the W property was sold for $350,000.00 in early October 2005, around the time of the parties’ marriage. After the discharge of mortgage the mother received just over $104,000.00 which she deposited into the parties’ joint credit union account.
The mother’s evidence concerning the period between the commencement of the relationship and the date of marriage is mainly related to her position that she and the husband were not living together. Apart from referring in passing to the jointly held bank account and the $27,000.00 loan document, she does not address the father’s evidence of his contributions in this period in her affidavit.

Contributions following marriage

The mother’s position, related to her contention that she and the father did not live together prior to marriage, is that her interest in the P property as at November 2005 is to be treated as her contribution alone from the date of marriage. It is the father’s position that as he made contributions for the previous six years to the reduction in the mortgage on that property his contribution should be recognised. The value of the property at the commencement of the marriage is agreed to be $440,000.00 and the debt secured by a mortgage had been reduced by $83,426.00 between the date of the commencement of the relationship and the date of marriage.
The mother also contends that the proceeds of the sale of the W property should be treated as her contribution while the father’s position is that due to his payment of the deposit and the fact that he and the mother were intermingling their finances, this should also be regarded in part as his contribution.
So far as contributions to the P property after November 2005 are concerned, there is no dispute that the mother paid the mortgage repayments and all outgoings associated with the property from her personal Westpac account and clearly separated the expenses associated with the home from other family expenses.
The mother worked full-time until the first child was born in late 2006 and continued to receive an income through long service leave and annual leave payments during her three months maternity leave. She returned to work for one day per week then built up to four days a week from around March 2007 until the second child was born in 2008. She also took maternity leave following S’s birth and returned to work in about November 2008 four days per week. The mother’s actual income in this period is unknown.
The mother also received bonus payments from her employer totalling $20,000.00 in 2008 to 2009 and paid $18,560.00 towards the loan account on the P property from these bonus payments.
The father was in full-time employment throughout the relationship. Between July 2007 and 30 June 2011, he earned between $52,349.00 and $81,293.00 per year. He applied his income to meet his own personal expenses and family expenses and says he provided money to the mother to assist in meeting household and other expenses. It is not disputed that he paid health insurance for the family between October 2006 and 2 May 2011 totalling $10,488.10 and childcare expenses between April 2009 to 30 September 2010, totalling $25,038.54.
Both parties agree that the net amount received from the sale of the W property was $104,000.00 which was deposited into their joint Credit Union account in October 2005. In February 2006, the mother used $44,000.00 from the sale proceeds to buy a new Subaru motor vehicle which she held at the time of separation.
In about March 2006 the parties purchased an investment property in Town N in their joint names. The purchase price of this property was $430,000.00 and the deposit of $43,000.00 was withdrawn from the parties’ joint Credit Union account. The balance of the purchase was financed by a loan from St George Bank secured by a mortgage.
From the date of the purchase of the N property until October 2006, the father says he provided the mother with cash each week. From 2 October 2006 until 28 February 2011, the loan repayments on this loan were funded by the rent on the property and regular weekly payments of $440.00 made by the father. The father contributed $81,620.00 towards the home loan in this period. The father also made a number of lump sum payments to reduce the mortgage over the N property between October 2007 and December 2009 totalling $37,800.00.
Although the parties say they “separated” in 2009 but remained living at the P property together, it appears that their financial relationship at least continued on the same basis until physical separation in December 2010. The mother continued to make the mortgage repayments on the P property and paid $20,000.00 between June and October 2010 for renovations on that property. The father continued to apply his income to household and family expenses and continued to make weekly payments on the N mortgage.
In determining the respective contributions of the parties prior to their marriage and after their marriage up until physical separation, I prefer the father’s version over the mother’s where the two versions differ for the following reasons.
Firstly, although I do not regard the issue of cohabitation as crucial, in my view, the totality of the evidence is more consistent with the father having lived with the mother from the date he contends, around November 1999, than with the mother’s assertion that cohabitation commenced at the date of marriage.
The father relies upon the mother’s comments in a number of the taped conversations as evidence of cohabitation during this time. For example, in a conversation, which he says was recorded in late May to early June 2007, the mother is recorded as saying: “In eight years, … you are the only person I’ve had to continuously warn about the toilet paper and I’ve lived with all males”. In another conversation which the father says he recorded in about August 2007 the mother is recorded as saying: “You lived here for a long fucking time, fucking five nights a week and never paid a fucking cent”. A particularly compelling piece of evidence is the mother’s statement to Ms Y, L’s counsellor recorded in Ms Yr’s notes, that the mother “and her ex-partner lived together for six years from 1999 to 2005”.
The undisputed fact that the father did not contribute to household bills during the period is also consistent with his contention that he and the mother intermingled their finances at this stage and that he had a different status than the “housemates” who were required to make a contribution to household bills. I do not attach particular weight to the father’s continued use of his parents’ address during this period as evidence that he lived with his parents, as it is not contested that he continued to use their address for some purposes after the parties were married when there is no dispute that he was living at Suburb P.
Second, so far as the credit of the parties is concerned, the general credit findings I made in relation to the parenting issues are equally applicable in relation to the parties’ evidence generally.
Further, the objective evidence such as the parties having a joint Credit Union account from as early as 1999 and the use of it to receive the proceeds of the W property are consistent with the father’s contention that he and the mother operated financially as a couple from an early stage in their relationship.
The parties’ agreed position that they discussed the possibility of buying a property about 2002 is consistent with them operating as a single unit financially at that stage.
The execution by the father of the non-refundable gift document is consistent with him giving the mother $27,000.00 in 2002 as he asserts, especially as the mother made the deposit on the W property in this exact sum at this time.
It was submitted on behalf of the mother that as the husband was not frank in relation to his post-separation employment this affects his credit as to the entirety of his evidence. It is also submitted on behalf of the mother that as the father did not call his parents to give evidence in support of his contention that the $27,000.00 he gave to the mother was given or lent to him by them an inference should be drawn[8] that the parents would not be able to assist the father’s case. The husband’s lack of frankness concerning his recent employment does cause me to make an adverse credit finding against him. However, this is the only adverse finding I make as to his credit and on balance he is in my view the far more creditable witness. The provenance of the $27,000.00 given by the father to the mother is not, in my view, of great significance in circumstances where the mother relies upon the document evidencing that gift in her own case for another purpose. She also does not indicate where she says $27,000.00 came from apart from asserting it was from her own “savings” without producing any bank records to corroborate that assertion.
[8] Jones & Dunkel (1959) 101 CLR 298
Extensive submissions were made on behalf of the mother to the effect that the parties had always agreed that the P property would belong to the mother regardless of the circumstances of the relationship. In particular, it was submitted on her behalf that she brought the asset into the relationship, it remained in her sole ownership at all times, she made the sole contributions to the payment of the mortgage and maintenance of that property and the finances in relation to it were kept separate. There is no doubt that the mother asserted throughout the relationship that the P property was hers and there are vehement assertions to this effect recorded in many of the taped conversations. However, these assertions while supporting the mother’s belief about entitlement are not matters to which I attach much weight in determining contributions. In my view, their greater significance is as evidence of the mother’s entitled stance within the relationship with the father which is a feature of her personality dysfunction.
As a result of accepting the father’s version in relation to contributions throughout the relationship up until the time of physical separation, I make the following findings:
·At the commencement of the relationship the mother had an interest in the P property of $66,000.00.
·The parties commenced living together in November 1999.
·Each party had a small superannuation interest at the commencement of their relationship which was roughly similar and which increased over time.
·The father contributed $15,000.00 in cash when the parties commenced living together.
·The parties began intermingling their finances and operating their finances jointly from the time they commenced living together.
·The father made contributions to the purchase of motor vehicles which were used by both parties and contributed to joint household expenses other than the mortgage on the P property from the time of cohabitation.
·Repayments for the mortgage loan on the P property came from the rent paid by boarders or housemates prior to the marriage and from bank accounts held in the mother’s sole name throughout the entire period prior to separation.
·The W property was purchased in the sole name of the mother with a $27,000.00 deposit provided by the father and the balance from a loan from Aussie Home Loans.
·Repayments of the W property loan came from the rent received from the tenant at the W property and some pooled finances of the parties.
·After the sale of the W property the proceeds were paid into a joint bank account and treated as the joint funds of the parties.
·The father worked full-time throughout the relationship to the date of physical separation and his income was utilised by himself and the mother for joint purposes and later when the children were born for family purposes.
·The mother worked full-time prior to the birth of each of the children and after three months maternity leave for each child returned to work for between one to four days per week. The entirety of her income was applied to joint expenses of her and the father and later the family and, in particular, was utilised to make mortgage repayments on the family home at Suburb P.
·The N property was purchased with joint funds and the mortgage repayments were funded by the rent received from the tenant and regular payments made by the father.
·Each of the parties paid lump sums from time to time towards the loan accounts for the N and P properties.

Contributions after separation

Although there are not any significant factual disputes concerning the parties’ respective financial and non-financial contributions after physical separation, it is convenient to outline those contributions here.
At the time of separation in December 2012 the loan from Aussie Home Loans for the Pt home had been fully paid with only a nominal amount less than $50.00 owing on it.
The father continued to make regular loan payments on the N property until the end of February 2011 and he made one payment on that loan in May 2011. The N property remained tenanted until it was sold in January 2012 and the mother continued to receive the rent payments. She initially paid the father his share of the rent, but from 27 May 2011 to January 2012 did not account to him for this rent. No payments were made on this mortgage during this period.
The father and mother reached an agreement at the time the father left the family home that the father would pay $200.00 per week for the children’s expenses and he says he did so from December 2010 to May 2011. The mother says that although they reached this agreement the father paid only half this sum during this period. I prefer the version of the father for the reasons earlier given in this Judgment. The father also transferred $2,000.00 to the mother on 22 December 2010 and paid health insurance for the family and some of the children’s other expenses such as swimming lessons and some household bills up until May 2011. From May 2011 the father paid child support as assessed by the Child Support Agency of $1,291.33 per month.
In July 2012 the father was made redundant and received a $26,000.00 payout which he spent on living expenses and legal fees. After this date until February 2013 the father paid a reduced but unknown amount in child support as assessed by the Child Support Agency. The father made a single payment of $700.00 in child support in mid-2013 and otherwise made no other payments in support of the children from February 2013 until just prior to the trial when he recommenced employment and paying child support.
After the father was made redundant in July 2012 he followed financial advice that he should not actively look for work. It was revealed under cross-examination that from early 2014 he attended the business premises of a friend who now employs him and remained on a number of occasions for many hours at that business. He said under cross-examination and I accept his evidence that he was not paid for “helping out” on these occasions. He agreed at this time that he prioritised his current household over supporting the mother at the former residence.
Since the date of separation the mother has borne all of the expenses and outgoings on the P property, though she has had the benefit of occupation of that property for the benefit of herself and the children. She also received the benefit of all of the rent on N from the end of May 2011 until January 2012. In September 2012, the mother paid an unknown sum for renovation of the bathroom at the P property. This renovation and the fourth bedroom added in 2010 have resulted in a modest increase in the value of the property. A significant increase in value of the property has occurred over time and its agreed value at the date of the hearing was $750,000.00.
The mother has continued in paid employment since around the beginning of 2011. She drew down on the Aussie Home Loans account for her own purposes to purchase a car and to pay legal fees in the post-separation period so the repayment of that loan since separation is her own liability.

The Law & Discussion - Property

The approach to the determination of an application for property settlement orders is set out in Stanford v Stanford[9], which was considered in detail by the Full Court in Bevan & Bevan[10].
[9] (2012) 247 CLR 108
[10] [2013] FamCAFC 116
The starting point is a consideration of “whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property”.
This involves identifying the existing interests and then considering whether having regard to the particular circumstances before me, it would be just and fair to make orders for the alteration of property interests.
I should next consider the matters set out in s 79(4)(a) to (c) of the Act, that is the financial and non-financial contribution made by the parties to the property and to the welfare of the family.
I must then consider the remainder of the matters in s 79(4) including the matters referred to in sub-section 75(2) so far as they are relevant, and determine on this basis whether there should be a further adjustment to the parties’ contribution-based entitlements.
Finally, I must then consider the justice and equity of the proposed orders. As was said in Bevan at [86], the just and equitable requirements are “not a threshold issue, but rather one permeating the entire process”.

What are the existing interests of the parties?

There is agreement between the parties as to their current interests. Some items on the balance sheet were excluded by agreement due to their minimal value and other items were excluded in the course of submissions. The current interests of the parties are set out in the following table:

LIST OF ASSETS AND LIABILITIES
ASSET	FATHER	MOTHER	JOINT
O Road, Suburb P	$ 750,000.00
Proceeds held in trust by mother’s solicitor’s	$ 5,717.00
Subaru … car	$ 12,400.00
Shares	$ (6,000.00)*
Total Assets	$ NIL	$ 762,400.00	$ 5,717.00
LIABILITIES	FATHER	MOTHER	JOINT
Mortgage on O Road	$ 28,000.00
NET ASSETS	FATHER	MOTHER	JOINT
$ NIL	$ 734,400.00	$ 5,717.00
SUPERANNUATION	FATHER	MOTHER	JOINT
$ 77,624.00
$ 85,418.00
TOTAL NET ASSETS	$ 77,624.00	$ 819,818.00	$ 5,717.00
TOTAL ASSETS			$ 903,159.00

*Wife holds AXA and Telstra shares on trust for children. The parties have consented to a Declaration of Trust being made in relation to the shares and they are excluded on this basis.

The question to be determined is whether it would be just and equitable to leave the property rights intact having regard to there currently being total assets to the value of $903,159.00 with the husband’s interests totalling $77,624.00 and the wife’s interests totalling $819,818.00.
As was indicated in Stanford the requirement that it would be just and equitable to make an order is in many cases readily satisfied by observing that at [42]:
… as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. … any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marriage relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the Court make a property settlement order. …

In this case, the parties were in a relationship where they lived together for 11 years before physically separating. Each brought property and financial resources to the marriage. Assets were accumulated over time for the common purpose of providing for their life together in their future and this arrangement continued to some extent while the parties remained separated within the same household. That arrangement came to an end upon actual physical separation. At this time, virtually all of the assets were owned by the mother even though the father had made significant contributions. In these circumstances, I am satisfied that it is just and equitable to make orders under s 79 of the Act.

The Balance Sheet

As noted, agreement was reached concerning the current interests of the parties which included the exclusion of certain items which could not properly be characterised as matrimonial assets and liabilities. The table set out in paragraph 400 reflects that agreement.
In addition, the $28,000.00 owed by the mother on the mortgage over the P property also should be excluded from the “pool” for the purposes of adjustment as the loan for the purchase of that property was fully repaid at the time of physical separation, and the further loan after that date was incurred by the mother alone and is not a matrimonial liability. Accordingly, for the purposes of property adjustment the current matrimonial assets and liabilities are set out in the following table:

LIST OF ASSETS AND LIABILITIES
ASSET	FATHER	MOTHER	JOINT
O Road, Suburb P	$ 750,000.00
Proceeds held in trust by mother’s solicitor’s	$ 5,717.00
Subaru … car	$ 12,400.00
Total Net Assets	$ NIL	$ 762,400.00	$ 5,717.00
SUPERANNUATION	FATHER	MOTHER	JOINT
$ 77,624.00
$ 85,418.00
TOTAL NET ASSETS	$ 77,624.00	$ 847,818.00	$ 5,717.00
TOTAL ASSETS			$ 913,159.00

Contributions

In Farmer and Bramley [2000] FamCA 1615; (2000) FLC 93-060, Kay J stated two things clearly:
The Court's task is to evaluate all of the contributions from the time of the commencement of the parties' relationship until the time of the hearing and give such weight to such contributions as the Court thinks is appropriate in the circumstances. Further, there is nothing in the legislation that requires s 79(4) (a) (b) and (c) contributions to be measured only in terms of what either party contributed to the assets of which they are presently possessed.
Under s 79(4) of the Act, in considering what order should be made in property settlement proceedings, I must take into account the financial and non-financial contributions directly or indirectly made to the acquisition, conservation or improvement of any of the property of the parties and the contributions made to the welfare of the family and the children, including contributions as a homemaker or parent.
I assess the initial financial contribution of the mother ($66,000.00 equity in the P property and superannuation) as significantly greater than the father ($15,000.00 cash and superannuation). On the basis of my findings summarised at paragraph 385 the financial contribution of each of the parties throughout the relationship until their final physical separation is, in my view, roughly equal.
After physical separation, on the basis of the discussion and my findings at paragraphs 365 to 393 the financial contribution of the mother was slightly greater than the father.
So far as the non-financial contributions are concerned, I note that it is not in dispute that each of the parties made some contributions towards the maintenance and up‑keep of the home and the care and support of the children after they were born, although the mother made a greater contribution than the father in relation to the care of the children up until the time of separation. After physical separation the mother also made a greater non-financial contribution than the father to property and to the welfare of the children.
The father’s financial contributions and more particularly his contributions to the welfare of the family and as a parent were impacted by the serious violence upon him perpetrated by the mother for the entire relationship. So far as financial contributions are concerned, he was hospitalised and required surgery following a serious knife attack in May 2007 and he missed several weeks work as a result of this injury. On one occasion the father was required to walk to work and on many occasions was required to sleep outside, on the floor or in the garage by the mother as part of her course of violent conduct. His parental contributions were diminished by his reduced capacity to advocate for and protect the children throughout the course of the relationship.
Having regard to my assessment of the relevant contributions up until the date of hearing, I make a five percent adjustment in favour of the mother. Accordingly, I assess the mother’s contribution based entitlement under s 79(4)(a) to (c) to be 55 percent of the asset pool and the husband’s contribution based entitlement to be 45 per cent.
In my view relevant matters under s 75(2) are as follows:
·Both parties are of a similar age and in good physical health.
·Each of the parents is equally physically and mentally capable of full‑time employment in the future, though currently each of them works part-time.
·The only significant property owned by the mother is the P home which is the major matrimonial asset being considered. The father owns no other property.
·Under the proposed parenting orders the father will have care and control of the three children and due to the nature of the orders he will incur all expenses associated with their care. This is a significant issue due to the age of the children.
·The mother has the care of her two year old child, T.
·Each of the parents lives with another person. The father has remarried and sets out in his financial statement that his wife earns an average gross income of $1,117.00 per week. Mrs H also owns the home in which they reside. The mother’s partner and father of her child, Mr X resides with her from time to time and at the time of the trial was not financially supporting her or their child. Their financial circumstances in the future and his income are unknown.
·It is likely that the mother will be liable to provide child support for the children in the future especially as the father will have their exclusive care and she will spend very little time with them. On the basis of the mother’s past conscientious attitude in supporting her children, I am of the view that it is likely she will pay any child support as assessed to be paid by her.

Conclusion

Having regard to the s 75(2) factors and attaching particular weight to the fact that the father will have the full-time care and control of the three children of the marriage who are aged between four and nine years of age, I make an adjustment of 10 percent in favour of the father.
The final orders I propose making will involve the father receiving 55 percent of the total pool of assets and the mother receiving 45 percent of the pool.
Each of the parties accepts that the respective superannuation interests should remain untouched. The father’s 55 percent share of the total net assets of $913,159.00 is $502,237.00 and the mother’s share is $410,921.00. When the respective superannuation interests are deducted then the father is entitled to receive $424,613.00 and the mother is to receive $325,503.00.
In my view having regard to all of the evidence in relation to the property these orders are just and equitable.
For the reasons given, I have found that the non-superannuation pool is more than as contended by the husband. On this basis I make the associated mathematical adjustments to the Orders he seeks. I also make an order declaring that the mother holds her shares on trust for the children. Otherwise, I make orders in the terms sought by the father with respect to property for the reasons given.
The orders that I make are set out at the forefront of these reasons for Judgment.

I certify that the preceding four hundred and nineteen (419) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 29 April 2015.

Associate:

Date: 29 April 2015