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 | of | 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…
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- Huffman & Gorman [2015] FamCA 317
- Case
- [2015] FamCA 317
- Decision Date
CaseChat Overview and Summary
The court's reasoning focused on the paramount consideration of the children's best interests. Despite the mother's allegations, the court found that the father was the victim of domestic violence and that the children's safety and well-being were best served by living with him. The court applied principles relating to the assessment of risk of harm and the importance of a stable and safe environment for children. The admission of the covertly recorded conversations was a significant factor in assessing credibility and the dynamics of the family violence. The court also considered the father's need for therapeutic support and the mother's need for therapy to address her role in perpetrating family violence and her coercive capacity.
Consequently, the court ordered that the children live with the father and that he have sole parental responsibility. The mother was prohibited from spending time with the children for 12 months, after which supervised time at a contact centre was permitted. Communication between the mother and children was restricted to letters and gifts on birthdays and at Christmas, with strict conditions to prevent denigration of the father and his family. The father was also ordered to engage in therapy and to facilitate the mother's attendance at therapy. In relation to property, the wife was ordered to pay the husband a sum of $424,613.00 within six weeks, with provisions for the sale of the former matrimonial home if this payment was not made. The proceeds of sale were to be distributed according to a specified priority, with the husband receiving 55 percent of the balance. Each party was declared the sole legal and beneficial owner of their respective assets and liabilities, with specific provisions for the distribution of shares held in trust for the children.
Orders
Orders of the court
PARENTING
1.
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
2.
The children shall live with their father, Mr Huffman (“the father” or “the husband”).
Parental responsibility
3.
The father shall have sole parental responsibility for the children.
“Time with” arrangements
4.
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.
5.
Thereafter, the children shall spend supervised time with their mother each second month, at a supervised contact centre.
6.
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
7.
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.
8.
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:
9.
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
10.
The order for independent representation of L, S and Z shall continue for a period of 15 months from the date of these orders.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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:
19.
The father is restrained by injunction from consuming any alcohol for a period of 12 months from the date of these orders.
Notations
20.
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
21.
The wife shall pay to the husband the sum of $424,613.00 within six weeks of the date of these Orders.
22.
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.
23.
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.
24.
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.
25.
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.
26.
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.
27.
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.
28.
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.
29.
Liberty is granted to the parties to re-list the matter upon seven days’ notice in relation to the implementation of these Orders.
30.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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