Hutton and Hutton
[2008] FMCAfam 875
•20 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUTTON & HUTTON | [2008] FMCAfam 875 |
| FAMILY LAW – Parenting – with which parent the youngest child should primarily live. FAMILY LAW – Property – husband’s greater initial financial contribution – husband diagnosed with multiple sclerosis – husband has greater income earning capacity – future needs. |
| Family Law Act1975 (Cth), ss.60CC(2), (3) & (4), 65DA(2), 68L |
| Ferrero & Ferrero (1993) FLC 92-335 Hickey & Hickey (2003) FLC 93-143 |
| Applicant: | MS HUTTON |
| Respondent: | MR HUTTON |
| File number: | PAC 4030 of 2007 |
| Judgment of: | Henderson FM |
| Hearing dates: | 15, 16 & 17 July 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 20 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thistleton |
| Solicitors for the Applicant: | Shaddick Baker & Paull |
| Counsel for the Respondent: | Mr Batey |
| Solicitors for the Respondent: | Matthews Dooley & Gibson |
| Counsel for the Independent Children’s Lawyer: | Mr Berry |
| Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
Parenting
All previous parenting orders in relation to the children, [B] born in 1992 and [C] born in 1996 are discharged.
The parties to have equal shared parental responsibility for the children.
The child [B] live with the mother and spend time with the father in accordance with her wishes.
The child [C] spend time with the mother:
(a)From after school Thursday to the commencement of school on Tuesday morning each alternate week commencing the first Thursday after delivery of this judgement; and
(b)From after school Monday to he commencement of school Tuesday morning each week.
(c)On Mother’s Day from 9am to 5pm.
(d)From 3pm Christmas Eve until 3pm Christmas Day in 2009 and each alternate year thereafter ending in an odd number and from 3pm Christmas Day until 3pm Boxing Day in 2008 and each alternate year thereafter.
(e)For one half of all NSW School Holiday periods as agreed but failing agreement for the first half in 2008 and each alternate year thereafter and for the second half in 2009 and each alternate year thereafter. For the purposes of this order:
(i)When the mother’s time is in the first half of the holidays it shall commence at 10am on the day following the last day of the term and conclude at 5pm on the day in the middle of the school holiday period.
(ii)When the mother’s time is in the second half of the holidays it shall commence at 10am on the day in the middle of the school holiday period an conclude at 5pm on the day before the commencement of the new term.
(f)At such other times as the parties may agree.
The child [C] live with the father at all other times including:
(a)Each Father’s Day from 9am to 5pm;
(b)From 3pm Christmas Eve until 3pm Christmas Day in 2008 and each alternate year thereafter ending in an odd number;
(c)From 3pm Christmas Day until 3pm Boxing Day in 2008 and each alternate year thereafter.
The order for [C] to live with the mother in accordance with order 4(a) and (b) be suspended during all school holiday periods and recommence in accordance with order 4(a) on the first Thursday following the commencement of the school term.
If the father does not take the child to soccer training or misses a match on one occasion without a reasonable excuse that satisfies the mother, thereafter the mother will collect the child from school or the father’s home in sufficient time to be able to take him to all soccer training and soccer matches and will return the child to the father’s home if he is not otherwise living with her.
In the event that changeover is not at school then the mother is to collect the child from the father at McDonalds [P] at the commencement of her time and the father to collect the child from the mother at McDonalds [P] at the cessation of her time .
In the event that any of the children suffer any illness requiring medical attention or hospitalisation during any period that they are living with the mother then she shall immediately notify the mother of such illness and the name of the medical practitioner or hospital to which the child or children have been taken.
Both parties are to sign all documents and do all acts and things necessary to authorise the school or schools at which each of the children may attend from time to time to;
(a)Furnish the other party with copies of all school reports, notices and advices concerning:
(i)The children or each of them; and
(ii)Any activity involving the children or each of them.
(b)Make available to the other party copies of any school photographs of the children or each of them at that party’s expense.
The parties notify the other immediately of any major illness suffered by the children or any of them and any hospitalisation of the children or any of them and:
(a)Make available to the other copies of any medical report or reports that may be sent to them in connection with such illness or hospitalisation; and
(b)Authorise any hospital in which the children or any of them may be admitted and any medical practitioner under whose care the said children or any of them may be to give such information to the father as he may request.
Neither party shall denigrate and shall use their best endeavours to prevent any other person from to denigrating either parent or a member of the other parent’s household in the presence of or hearing of the children.
The parties are to forthwith do all acts and things to cause the child, [C], to be assessed at Relationships Australia for the most appropriate form of counselling for him to deal with the consequences of the breakdown of his parents’ marriage.
The father is to forthwith do all acts and things necessary to attend an intake at Relationships Australia in relation to counselling specifically designed to assist him to deal with the breakdown of his marriage, his inability to come to terms with that breakdown and the impact of the diagnosis of MS upon him.
Property
Within sixty days of the date of these orders the husband pays to the wife the sum of $222,365.
Simultaneously upon compliance by the husband with order (15) the wife shall do all acts and execute all documents as are necessary to transfer to the husband the whole of her right, title and interest in the properties situate at and known as Property O in the State of NSW being the whole of the land in Certificate of Title Folio Identifier Lot [omitted] DP [omitted] and Lot [omitted], Property S.
In the event the husband fails to pay the amount specified in Order (15) within the time stipulated then each party immediately do all acts and things and sign all documents necessary to list the former matrimonial home at Property O for sale by private treaty with a Real Estate Agent agreed between the parties or failing agreement within fourteen (14) days after the failure to comply with Order (15) then as determined by the President from time to time of the Real Estate Institute of New South Wales or his nominee as an expert not an arbitrator.
The proceeds of the sale of the former matrimonial home be disbursed as follows:-
(a)In payment of the costs of sale including the Real Estate Agent’s fees and legal fees;
(b)In payment of the mortgage to the St George Bank;
(c)In payment of any rate of adjustments as at the date of the settlement of the sale;
(d)In payment of $222,722 to the Wife together with interest calculated in accordance with the Act;
(e)In payment of the balance to the Husband.
That a base amount of $52,840 is allocated, as required by section 90MT(4) of the Family Law Act 1975 to Ms Hutton out of Mr Hutton’s interest in the State Authorities Superannuation Scheme.
In accordance with section 90MT(1)(a) of the Family Law Act 1975:-
(a)Ms Hutton is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001; and
(b)Mr Hutton’s entitlement to payment out of his interests in the State Authorities Superannuation Scheme and State Authorities Non-Contributory Scheme, and the entitlement of such other person to whom a splittable payment may be payable is correspondingly reduced by force of this order.
The Trustee of the SAS Trustee Corporation Pooled Fund (“the Trustee”) shall do all acts and things and sign all documents as may be necessary to –
(a)Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulation 2001, the entitlement created for Ms Hutton by Order (19) of these Orders; and
(b)Pay the entitlement whenever the Trustee makes a splittable payment out of the Mr Hutton’s interest in the State Authorities Superannuation Scheme and State Authorities Non-Contributory Scheme.
These Orders have effect from the operative time and the operative time for this Order is 15 July 2008.
This Order binds the Trustee of the State Authorities Superannuation Scheme and State Authorities Non-Contributory Scheme.
Unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
(b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
IT IS NOTED that publication of this judgment under the pseudonym Hutton & Hutton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4030 of 2007
| MS HUTTON |
Applicant
And
| MR HUTTON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting and property orders which was listed as a two day hearing, commencing 15 July 2008. The matter was heard over three days and was completed on 17 July 2008.
Mr Thistleton of Counsel appeared on behalf of the applicant mother, Mr Batey of Counsel appeared for the respondent father and Mr Berry of Counsel represented the Independent Children’s Lawyer.
Evidence of the parties
The evidence for the parties is as follows
For the mother I read:
a)Affidavit filed 7 July 2008;
b)Financial statement filed 7 July 2008.
For the father I read:
a)Affidavit filed 20 June 2008;
b)Financial statement filed 20 June 2008.
The Exhibits tendered were as follows:
a)The report of Mr Lemaire Court expert marked Court Exhibit 1.
b)Exhibit H1 is a letter from the husband’s employer dated 3 July 2008 indicating that he has some flexibility in his work hours commensurate with caring for the child.
c)Exhibit H2 [B]’s school records. The ICL asked me to read in particular the note on 12 December 2007.
d)Exhibit H3 [C]’s school records from [omitted] School. I was requested to read in particular documents marked in green on 16 July 2007 and 28 November 2007.
e)Exhibit H4 original AVOs sought by the wife since separation.
f)Exhibit H5 downloads from the internet obtained by the husband in relation to Multiple Sclerosis, a disease he was diagnosed as suffering from shortly after separation.
g)Exhibit W1 the husband’s 2007 State Super statement together with other superannuation documents.
h)
Exhibit W2 husband’s application for an AVO taken out on
30 June 2008just prior to this hearing.
i)Exhibit ICL1 a list of police involvement for the parents’.
j)Exhibit ICL2 a Minute of Order sought by the Independent Children’s Lawyer.
k)
Exhibit ICL3 being Annexure D to the wife’s affidavit filed
3 August 2007 being a letter to her dated 15 June 2007 from the Agency.
Both the husband and wife were examined and cross-examined and
Mr Lemaire was cross-examined.
Applications
In relation to property matters the parties agree that the present superannuation entitlement each have should be divided equally between them. The wife’s Counsel agreed with orders proposed by the father’s Counsel in relation to superannuation.
In relation to the remaining assets the wife seeks she receives 70% and the husband seeks he receive 60% of the assets.
In relation to parenting the father sought orders set out in his amended response filed 5 October 2007 as follows:
a)The parents have equal shared parental responsibility for the children [B] born in 1992 and [C] born in 1996.
b)That the children live with him and spend time with their mother from Friday until Tuesday morning each alternate week and from Monday after school until Tuesday morning in the alternate week, half school holidays and the like.
These were the orders he was still seeking the court make at the interview with the Court Expert Mr Lemaire held on 24 June 2008 and set out in paragraph 3 of Mr Lemaire’s report.
It was only in the case outline prepared by his Counsel the day or so before the hearing that he sought no orders in respect of [B] and repeated the orders in his amended response in respect of [C].
The mother’s application which was not finalised until the second day of the hearing and not reduced to writing until the third day was that:
a)The parties’ have equal shared parental responsibility for the children.
b)[B] lives with her mother and that there be no orders for her to spend time with her father that being a matter between [B] and the father having regard to her age and their current non existent relationship.
c)[C] live with his father each alternate week from after school Thursday to before school Tuesday in one week and from after school Thursday until before school Friday in the other week, half school holidays and the like.
As I read these competing applications there is only a difference between them of one night a week for [C]’s time with his parents and whether in the off week the overnight be a Monday night or some other night.
The hearing was not conducted in a manner that indicated such a small difference in the real time either parent said the child should spend with the other. For on any reading of the competing applications both agreed [C] should spend no less than substantial and significant time with the other parent.
From the father’s stance the hearing was run as if the difference in time was weeks or months not one night a fortnight. Much time was spent on objections to evidence, questions in cross examination and complaints of being denied procedural fairness and the Court falling into error in its approach rather than to focus on the narrow, albeit important areas of differences in the competing applications.
As the evidence unfolded, however, the reasons for this approach by the father became apparent. The father has waged a campaign against the mother since her separation from him. The hearing was conducted in a similar combatative manner. The father’s approach to the hearing was in stark contrast to the mother’s which I found to be child focussed and reasonable.
The Independent Children’s Lawyer provided a minute of order on the last day of the hearing. The orders proposed were that [C] spend time with his father from the cessation of school Monday to the commencement of school Tuesday each alternate week and from the cessation of school Thursday to the commencement of school Tuesday in the other week, half school holidays and the like.
This is a similar regime to that currently in place pursuant to orders made by me on 3 August 2007 following the mother bringing an application to the Court for the return of [C] to her care. [C] has spent time with his father in accordance with those orders. The mother was content to adopt the ICL’s position.
I will deal with the parenting aspects of this matter first as it is important for that issue to be determined prior to a decision being made in relation to property. The property aspects of this hearing took a back seat. These parents are extremely concerned for the welfare of their children and they have a deep love and affection for their children.
Parenting
Mr Lemaire’s report dated 4 July 2008 recommends that [B]’s views be taken into consideration in any order. [B]’s views are that she spends no time with her father by order and only such time as she agrees.
In relation to [C], Mr Lemaire recommended that he live with his father and spends time with his mother on alternate weekends and two evenings during the other week and that the parties be directed to participate in the Parenting After Separation Program. Both parties indicated that they would so participate. The mother has already made her appointments. The father says he will do so. However I will make an order that he does so as it is crucial and essential he undertakes such a program as it is in his and [C]’s best interests he do so.
Mr Batey took exception that only at the end of the proceedings did the Independent Children’s Lawyer put their position in relation to parenting orders. The mother took no such objection. Where there is only a one night a fortnight difference in the parties competing proposals, I fail to see what was so disadvantageous for the father in this approach by the Independent Children’s Lawyer. This is a common enough occurrence: Namely, for the Independent Children’s Lawyer to wait until all the evidence is in before formulating a firm option or proposal.
That the Independent Children’s Lawyer favoured [C] living for more time with is mother than his father was of no disadvantage to the father at any time during the hearing. Options had been canvassed with the expert and parties in cross examination. The Independent Children’s Lawyer was not wedded to alternate Monday nights and the mother agreed an alternate Thursday night was also appropriate.
The Independent Children’s Lawyer agreed with my option that that if I favoured the father and Mr Lemaire’s position that [C] live for more time with his father than his mother then the flip of the orders proposed by the Independent Children’s Lawyer would be appropriate. The mother agreed with that proposal
This option elicited much complaint from Mr Batey. He posited that his client was being denied procedural fairness, that this option had come about at last minute and was not an option favoured by the court expert.
The parents had agreed on Father’s Day, Mother’s Day, the sharing of school holidays, Christmas Day and the like. They agreed if they were not collecting [C] from school that they would meet at McDonald’s [P].
The real dispute was the one day difference between their respective applications.
Which precise nights this child spends with his parents is not the gravamen of the issue here. It is with which parent he primarily spends his time or lives with. It is agreed [C] should spend nights each week with each parent.
This determination is one which involves balancing competing proposals and consequences of each proposal and is one of degree and judgement. It is not a precise science. The precise formulation of [C]’s time with his parents is a matter of judgment for the Court after receiving all the evidence and then making an order in the child’s best interest.
Father’s health
The father’s diagnosis of Multiple Sclerosis, MS, has been a double blow to him. Mr Lemaire’s report highlighted the importance for the father to attend his own specific counselling and therapy to assist him to overcome the breakdown of his relationship, loss of his family and deal with the diagnosis of MS. It was clear to Mr Lemaire that the father had not yet come to terms with separation even though almost two years have passed. The father was diagnosed with MS a month or so after separation and thus has had two life changing events to cope with in very quick succession.
From reading Exhibit H5, “MS The Mystery Disease”, it is crucial and important for a family, and the sufferer of MS to engage in counselling and psychotherapy. Exhibit H5 is the father’s tender and I was exhorted to read it which I did. Reading from page 26 of that exhibit:
Long-standing or severe depression or excessive anxiety can be helped with appropriate medication, which can be prescribed by a GP or a psychiatrist.
In these situations counselling and psychotherapy are extremely useful in helping people with MS and their families to explore the often complex emotional reactions.
At page 11
MS is it a fatal disease?
Rarely. Most people with MS can expect a near normal lifespan. For some people, MS is a severe disease causing life-threatening complications. However, the majority of people with MS die from unrelated causes and have a near-normal life expectancy…
…The person with MS can be judged as not trying hard enough, or of being apathetic or lazy. Alterations in cognitive function or behaviour are almost always due to the disease itself and not to a failure of personal motivation.
At page 23
Assistance and support
The emotions and reactions that so commonly accompany this disease usually settle with the simple passage of time and discussions with family, friends and favourite health professionals. For many, however, these feelings can get out of control and do not resolve easily. In these circumstances psychological treatment and/or support can be helpful. MS Societies provide counselling and support groups that can assist. For more complex reactions, referral to a clinical psychologist is recommended and short-term therapy usually resolves the distress quite rapidly…
At page 28:
Care for oneself as well as love and support for a family member with MS must be valued equally. Family members will be more likely to be sure of a long term capacity to deal with the reality of living with MS if they are able to match concern for the person with MS with recognition of their own needs and aspirations.
This information coupled with Mr Lemaire’s specific recommendations make it clear that the father in particular needs ongoing and urgent counselling. He has not taken one step to obtain counselling for himself and this has caused me real concern regarding his capacity to overcome in the future the difficulties these events have caused him.
Wishes of the child
It is clear from all the evidence that this little boy has been asking for some considerable period of time to live with his father. The reason for this cannot be defined with precision. It may be as the mother asserts due to the pressure the father has placed upon him to which I will refer later. It may due to the reaction of the mother to the child’s expressed desire to spend more time with his father and /or as a consequence of her parenting style. It may be a reaction to his sister’s lack of a relationship with the father. It may simply be as the father asserts his genuinely held wish despite all that has, and is, going on around him.
[C] has, since I made orders in August 2007, consistently told his mother, his school, his father and Mr Lemaire that he wishes to live with his father and spend time with his mother.
It became clear from Mr Lemaire’s evidence and from the picture painted by each of the parents, that [C] is a physically small child, he is not robust or large and his nature may be more in line with his father’s personality than his mother’s. He is naturally quiet and somewhat introverted. His father presented similarly before me. [C] has been bullied at school in the past. His mother agreed that his need to spend more time with his father has increased since separation.
[C]’s mother is demonstrably emotional and much more outgoing and flamboyant than the father.
Short chronology
The husband is 41 years of age and the wife is 39 years of age.
The parties commenced living together in 1986. The mother was at that stage 18. The parties had met and commenced a relationship when she was about 14 years of age.
In 1988 the parties bought land. The husband’s parents gave the parties $14,000 and the husband used his $20,000 in savings towards the purchase.
In August 1989 the parties’ moved into their home.
In 1991 the parties married.
In 1992 the child [B] is born, she is now 15.
In 1996 the child [C] is born, he will shortly be 12.
In January 2003 the parties bought land at Property S.
On 3 September 2006 the parties separate. The husband has remained in the former matrimonial home since separation. The wife has privately rented.
The wife received a $57,000 redundancy payment shortly after separation.
On 23 October 2006 the husband was diagnosed with MS and commenced a course of Betaferon injections. His condition is responding well to this treatment according to his specialist.
In June 2007 the wife moved to her current accommodation.
The wife has obtained no less than eight AVO’s against the husband since separation.
The husband has made complaints to Police regarding the wife’s conduct or fears for the children whilst in her care on no less than six occasions since separation and in June 2008 obtained an AVO against the wife.
In August 2007 I made orders that [C] be returned to his mother. The father has spent time with him alternate Fridays to Tuesdays and Monday overnight in the other week, half of school holidays and the like.
October 2007 was the first occasion since March 2007 that [B] agreed to spend time with her father. That evening the mother came to collect [B] earlier than expected at [B]’s request. The father determined this was an appropriate time to demand the mother return the Honda vehicle she had been driving since separation to him. The car is registered in his name. The father has the use of a work vehicle for his day to day transport needs. This was the mother’s only motor vehicle. The father took the mother’s car keys which included her front door keys and the Police were called.
[B] has not spent any time with her father since that scene.
In late November 2007 the father alleges that the mother struck [C] on the back with such a forceful blow that he was concerned enough to report the matter to the Department of Community Services and to the Police and have [C] give a statement to Police. Nothing has resulted from these reports.
In December 2007 the mother begins receiving child support pursuant to a child support assessment.
In May 2008 the mother’s AVO is renewed after a contested hearing for further two years.
On 30 June 2008 the father takes out an interim AVO against the mother.
Evidence at the hearing
It is agreed that the husband had savings of $20,000 at cohabitation and that his parents gave him $14,000 towards the purchase of the land on which they built their first home.
The husband has been in full time employment all his working life.
The wife had no assets at cohabitation she was just 18 years old. The parties each worked until the birth of the child [B] in November 1992 when the wife ceased working. The wife commenced casual employment a year later at [omitted] Hospital for two days a week.
The wife ceased employment at [C]’s birth in 1996 and returned to work two days a week in 1997, later increasing to three days a week. The wife commenced full-time employment on 1 February 2007 with [organisation omitted].
The parties’ separation has been very painful for both of them. This was commented on by Mr Lemaire. [B] has not spent any time with her father for some time. Despite the father’s evidence that he is in no way to blame for this sad state of affairs I have formed a contrary view.
I have spent some time reviewing the evidence and the husband’s conduct in a hope he will read this decision and come to a realisation of his urgent need for counselling and the negative impact his behaviour has had and continues to have on his family.
The father presented to Mr Lemaire as still not over the separation and loss of his family and not understanding why his wife left him. He is still seeking answers which his wife has not given him. It may be in the wife’s interests, in the best interests of her children and the husband to sit down with him in safe environment and give him those answers. This has not happened however.
The husband has been hoping for some time that his wife would come back to him. I am not sure he does accept his marriage is over despite his saying at the hearing he now accepts it is. He believes [B] does not want to see him because of the denigrating things her mother has said about him. He believes he is blameless in this regard.
He agrees that his son is very sad due to the separation but that he has a good time with him. The father has not taken [C] to his soccer matches because he is concerned for his own safety at those games due to the behaviour of the mother’s friends.
The father described [C] as a quiet child; he is clever but can be stubborn. He is doing well at school but has been bullied.
The father agreed the mother had seen psychologists and counsellors and he had not. Even at the close of the hearing I was not convinced the father saw any benefit or need to for him to attend counselling.
The mother on the other hand has been proactive in assisting herself to come to terms with her unhappy marriage and its breakdown. The father was quite critical of the mother for attending counselling yet cannot see that is precisely the steps he needs to undertake to assist him to recover from what has been for him a double blow of the breakdown of his marriage and the diagnosis of multiple sclerosis.
He could not give me any reason why counselling would assist him.
He will go if the Court thinks he should was the best he could say.
He has placed himself in the role of victim and I found his demeanour of real concern. He was flat, defensive and completely self-absorbed. He was unable to view any matter from another perspective than his own. He was entirely parent centric and not at all child focussed.
The father need to commence specific and targeted counselling as soon as possible is urgent. However this will only work if the father accepts he has a need for counselling.
The parents agree they do not communicate. They each agree that equal time for [C] would not work because of their lack of communication.
The mother said the father was controlling and negative and that they had very different parenting styles and would fight over little things. The mother was most unhappy I the marriage. The mother had a relationship with a female friend during the marriage which caused further problems for the relationship.
The mother agreed her son is shy and lacks confidence. She believed he was struggling at school. She wants him to attend a Catholic School and does not believe her son can cope at a state high school. The mother agreed she is beginning to have difficulties in controlling and disciplining her son. That is of real concern to the Court.
The mother is certain [C] is being pressured by his father to live with him most of the time. On the evidence to which I will refer later that is an assessment with which I agree. She believes her son is disturbed by his father’s inability to cope with the separation and believes the father questions the child as to what happens in her household. She said she cannot get [C] to open up to her concerning what he does at his father’s home and that causes her concern.
The mother’s real fear is that if [C] spends more time with his father than with her she will lose her relationship with him. The mother’s fears have basis in reality.
The mother is sad and concerned that [B] does not have a relationship with her father. [B] has said to her “Dad blames me for it Mum. He said if I came back you would come back. Everything would be well”.
[B] also believes the father does not love her and does not like the way she has turned out. I accept this is [B]’s experience of and view of her father. The mother has tried to deal with this but has had difficulties because the father does not accept he has played any role in [B]’s negative view of him.
The multiple sclerosis diagnosis has been very concerning for the children and the father. The father has not handled the sadness and pressure the children would feel from his diagnosis at all well. He has not handled his own sadness and fears for the future in any meaningful or constructive manner.
Mr Lemaire said [B] presented as a mature 15-year-old. When she was asked how she saw her future with her father she said “Not that good. I’ve never really had a father-daughter relationship.” She complained that when she does speak to him all he says is “Come home. If you come home mum will come home.”
[B] told Mr Lemaire “He speaks badly of mum’s side of the family saying they are all druggies”. Mr Lemaire reports that [B] tried to stay the night with her father in October 2007 but had to ring her mother because her dad was putting pressure on her saying things such as “See what is going to happen to me if you don’t come home and live with me.” [B] complained her father had criticised her hairstyle and her boyfriend.
[B] said she was not surprised by her parents’ separation. She said “They separated many times and it was better they broke up. Mum and Dad kept fighting. Mum would leave and come back.” [B] said her father had told her that not seeing her made him sick and he may kill himself.
[B] refused to see her father at the assessment.
Mr Lemaire said [B]’s views simply must be taken into account. She is a mature 15-year-old and has firm views and there is no point making parenting orders for her. The father ultimately accepted that position.
[C] presented to Mr Lemaire as a quiet child, well aware of the Court processes and immediately said to him “I want to live with my Dad”. He was asked “Why?” and said “Because I miss Dad. I have more fun with him. I go to the movies and go to the city and go bowling. It is not much fun at Mum’s house and my sister is mean”.
It appears [C] and [B] do not have a close sibling relationship.
Mr Lemaire described it as normal for their ages and genders.
[C] does not want to live with his parents equally and said “I want to live with Dad permanently”. He would like to spend time with his Mum a couple of days every two weeks. He would like his parents to be together but since they separated he wants to stay with his father and he was happy when he was with him before I made the orders for his return. He likes to spend time with his Mum on the weekends.
[C] wept throughout the interview. He had to be asked questions several times before he could answer but he was unambiguous when he said he wanted to live with his father. He indicated affection for his mother but was unperturbed by any sense of loss she may feel. He is happy to see her on alternate weekends. It was clear that [C] was saddened by his parents’ separation and he is finding it difficult to adjust to the loss of his family as is his father. He is also clearly aware of and is distressed by his parents’ conflict. Mr Lemaire says [C] may have aligned with his father as a way of dealing with his sense of divided loyalty.
The parents’ inability to communicate is a significant factor. It is clear the mother had been very unhappy in the marriage for some time yet the father was distraught and dismayed when she left
Mr Lemaire accepted that it is probable that the father has been driven to involve [B] in the dispute by questioning her about her mother to relieve the distress he feels generated by his own uncertainty and confusion. The result is that he has demonstrated little or no capacity to put [B]’s need to have relationship with him whilst living with her mum before his own need to find out what happened and why.
Mr Lemaire said the father had attempted to manipulate [B], obtain her sympathy and sees her as a conduit to her mother. When the father adjusts to the separation and is able to focus on his daughter’s needs then perhaps her hostility to him will dissipate. I find the likelihood of this occurring is wholly dependent on the father seeking help for his inability to deal with the marriage breakdown rather than, as he has done, lay that responsibility on his daughter.
At paragraph 29 Mr Lemaire said that:
It is possible that Mr Hutton, in his efforts to secure nurturing and understanding, has appropriated his son’s affection and support.
As the evidence unfolded I find that is precisely what has occurred. However, Mr Lemaire also said that:
…[C]’s strong connection to his father is the more significant factor in creating the alliance which has developed between father and son.
I accept the evidence also supports that conclusion.
What was clear from the assessment is that [C] loves his father and wants to live with him. The mother is having difficulty disciplining [C] which was a concern for Mr Lemaire. With the father not dissuading [C] from disobeying his mother, perhaps even encouraging his defiance, and pressuring his son to align with him will only cause significant problems for the mother.
Mr Lemaire’s assessed [C] as follows.
He presented as an unhappy child, his affect was blunted and he was unsuccessfully attempting to hold back his tears.
I find this was mirrored in his father’s affect in Court.
Mr Lemaire continued:
He loves his mother. He interacted closely with her with and showed no animosity or avoidance. However, at a stage where paternal attention and involvement is sought and needed the father has the resources to care for him and provided the father does not emotionally damage [C] by embroiling in child in his own adjustment to separation and loss he can care for his son.
The obvious danger in placing the child with his father stems from his father’s lack of adjustment to the separation and the father’s attitude to the mother may serve to further alienate [C].
Mr Lemaire found him a hard child to interview. He was naturally resistant and he had an inability to turn his thoughts into words. Partly he said because of his emotional state, he was tearful and choking back tears, and with what he had to express. He clearly said to him “I want to live with my Dad”, but reiterated very few reasons why he would want that and did not articulate with him the consequences in living with his father.
Mr Lemaire considered that fundamentally [C] has a strong relationship with his mother. She has been his primary carer and they are strongly attached. The strength of the relationship he believes will likely be able to withstand his father’s present behaviour and attitude. Mr Lemaire opined that this, coupled with the father’s eventual adjustment, will lessen the possibility of alienation.
Mr Lemaire said that if the father follows the usual pattern of adjustment which is probable, he will function more positively as time passes and if he participates in counselling this will be of great assistance. That is a big “if” in this matter.
It has been two years since separation and the father is as embroiled and enmeshed in the separation as he ever was. He is still back at the time of separation. He has not moved on. Even after the diagnosis of MS and the clear need for counselling and psychotherapy he has done nothing and criticises the mother for seeking help. I am concerned the father may never get past the separation.
Mr Lemaire said that if [C] went to live with his father then [C]’s assessment of his mother may become more positive and his distress reduced.
On balance Mr Lemaire recommended an order which allowed [C] to substantially live with his father was a more favourable option. The father must participate in the Parenting After Separation course if [C] lives with him and [C] would need some specific counselling.
The Independent Children’s Lawyer asked Mr Lemaire that if the Court was satisfied that the father was unable to separate [C]’s feelings from his own would this change his recommendations. No direct answer was given.
Mr Lemaire said that as indicated if [C] lived with his father [C] himself would need therapeutic intervention. The Independent Children’s Lawyer asked would it be a pre-requisite to the child living with his father that the father attends counselling. Mr Lemaire said not a pre-requisite but a co-requisite.
It was put by the Independent Children’s Lawyer that at paragraph 32 Mr Lemaire set out the real risk in sending this boy to live with his father being he may be alienated from his mother. Mr Lemaire agreed with this but reiterated that [C]’s strong bond and attachment to his mother would allow him to weather being separated from her and the strong bond would carry him through any damage at his father’s hand.
Mr Lemaire said that was a difficult question to answer because it depended on whether the father was able to get to a proper level of adjustment to the separation and his capacity to be healed. As
Mr Lemaire opined, this is one of the matters I must judge: Whether this man has a capacity to heal from the double-headed blow of this loss of his marriage and multiple sclerosis.
Mr Lemaire had no idea when the husband would adjust to separation. I find if he does not obtain help he will never adjust. If he does not recognise that he needs assistance he will never adjust. If he does not want to adjust he will never adjust.
I am concerned that the father may never adjust to the separation.
He has lost control and is not dealing with this loss at all. Mr Lemaire reiterated that the husband is struggling to come to terms with the loss of his family and he needs therapeutic intervention. Therapeutic intervention is strongly recommended for sufferers of multiple sclerosis yet the father has not taken that on board.
Mr Lemaire agreed that if [C] lives with his father this would very much change the dynamics in the father’s life and may possibly change the father’s attitude.
The Independent Children’s Lawyer asked Mr Lemaire if the father attending the [omitted] Police Station last month due to a comment made to him by the mother was of concern. Mr Lemaire said that it is a concern that the father would keep the dispute alive over such a trivial matter.
The father’s conduct makes it clear to the Court that the dispute and separation is still the focus in the father’s mind.
The real risk assessment is:
a)the damage that may occur to the child and his relationship with his mother if the child is placed primarily with his father and there is no change in his father’s attitude and conduct; and
b)the damage that may occur to the child and his relationship with his mother if he is not granted his wish to live primarily with his dad.
Mr Lemaire was clear that he did not believe that Thursday to Tuesday and alternate Monday night is sufficient time for this child to develop the relationship with his father he is saying he wishes to develop. These are the orders proposed by the Independent Children’s Lawyer and agreed to by the mother.
Mr Lemaire said the Court must balance [C]’s wishes and the consequences of not granting his wishes against the risk of breaking his relationship with his mother because of the father’s attitude to the mother.
Mr Lemaire was concerned that if [C]’s wishes were not granted he would need to be supported in his family by specific counselling from Unifam or Relationships Australia.
Mr Thistleton asked Mr Lemaire “What was the possible emotional damage that [C] could suffer as alerted to in paragraph 31 of your report?” Mr Lemaire said this damage was about [C] having to take sides in the parental dispute, living with divided loyalties. The stress of seeing parents he both loves and who love him, fighting and unable to protect him from their dispute. This stress can cause regressive behaviour, sleep disturbance and behavioural problems. There is a possibility of [C] being bullied. Mr Lemaire agreed [C] is a very sensitive child and that his alignment with his father is quite possibly [C]’s coping mechanism.
Mr Lemaire was unaware of the incident in June when the mother said to her son “You can go and live with your father” wrote a note to that effect and put him out the front door. This was not discussed by the parents.
Mr Lemaire was unaware his father took him to the police station in November 2007 because the father believed his mother had assaulted him and the child was interviewed by a detective.
Mr Lemaire was unaware of both of those incidences.
Mr Lemaire agreed with Mr Batey that [C] felt more at ease in his father’s household. Although Mr Lemaire said that he did not think that [C] felt sorry for his father there was clearly a degree of compassion and feeling for his father in [C]’s wishes to live with him.
I find it has been the father not the mother who has involved the children in this dispute. The mother has never taken the children to the police station to have them interviewed as the father has. The father has been the one who has taken the photographs of alleged injuries. He has been completely self absorbed in his loss and his children have suffered as a consequence.
Mr Lemaire said [C] will continue to be a child living with divided loyalties if he remains living in his mother’s care. If he lives with his father this will satisfy his need to live with him and there is less emotional risk to him if he lives with his father than if he lives with his mother.
Mr Lemaire agreed that there could be an improvement in [C]’s emotional state if he lives with his father primarily because his need has been satisfied.
The mother’s evidence
The mother accepted that her son had been expressing for some time his strong wish to live with his father. The mother could not agree that this came from his heart despite her making the most child focussed comment to her son when he was attending for the report: “I told him to speak from your heart. You need to say what’s best for you”.
The mother admitted she had a sexual relationship with [Ms M] but did not see that this had caused her relationship with the father to further deteriorate because the mother said the relationship was already poor.
The mother was cross examined concerning [B]’s school records for in 2006 and 2007. [B] was self-harming in May 2006. The school notes state:
[B] said she cut herself with a piece of glass. She said she gets so upset about her parents fighting and her grandfather died two months ago. She wanted to change what she did and regrets it. She would have a session with her mother.
In December 2006 the notes state:
[B] said she has not seen her father for a few months now. She has been coping quite well but worries about her father and what will happen to him. She’s happy at school but finds it hard without any money. She’s finding it difficult not to see her father over Christmas.
The mother did not facilitate the children seeing their father at Christmas 2006. That was not child focussed conduct by her and she was not putting the needs of the children before her own. After separation the mother was so angry with the father, his behaviour towards her, his constant asking her to return, his failure to pay child support that the children missed out seeing their father at Christmas in 2006. It is clear that both children wanted to see their father.
[B]’s grades have suffered since separation but have improved this term. [B] has a boyfriend who lives in Canberra. [B] spends some time with his parents in Canberra and he spends time with her and her mother in Sydney.
The mother said that [C] is a confused boy. She makes no complaint about his care with his father. She was asked “Why not let [C] go and live with the father?” She said that “If [Mr Hutton] has [C] living with him full-time he will turn him against me. He looks at his father before he gives me a cuddle. I’ve never done that to the father, [C] or [B]”. The mother was very upset whilst giving this evidence and was crying.
It is clear from the emails attached to the mother’s affidavit that her concern over the non existent relationship with [B] and her father is real and she has endeavoured to do something about it. The emails attached to the mother’s affidavit demonstrate a concerned mother with a considerate, child-focussed approach and a father completely embroiled in his own self pity, sense of loss and demonstrating his lack of control.
The mother sent an email to the father on 29 October 2007 headed “Regards swapping weekends”. The email said:
Hi [Mr Hutton], I am planning to go away for the weekend with [R]’s family, as [R]’s parents have not been very well. I have mentioned this to [C] and he would love to come with [B] and myself for the weekend, as he would love to spend some time with [X] and [Y].
But the weekend happens to fall on the weekend you have [C] 09/11/07. If this is ok with you I will swap weekends and you can have him the following weekend 16/11/07. I hope that you will agree as [C] would really love to come and I would love to take him with us. Can you please get back to me as soon ASAP regarding this matter? Thanks…
And tell [C] that I love him heaps and I miss him soooooooooooooooooooooooooooooooooooooo much.
The father writes back almost immediately. Part of his response is:
· I will not hang up on you like you have done to me, you have done it so much and stopped me from seeing my children, you are a very bad person to say the least, the way you have acted and the things you have done to me, I have been heartbroken and hurt for over a year now, if you only knew what it is to be like me now, the pain, the suffering, the torture you have put me through, WHY?... Do you have a conscience or do you not realise the way you have acted, you are controlled by everyone elses comments and seem to do what they tell you, I know you better than you know yourself, I know you have a mental problem, I have assessed you for years and seen the up and down changes in you lifestyle, your reaction to your own family (thats me, [C] and [B]), you seem to want to be involved in everybody elses family issues, put your family as number one, no one else, they have their lives, their own children, their own issues to look after, they are adults, they need to be in control of their own lifes, let them live it.
· As for [K] and [J] and anybody else who wants to interfere in my business and my family business/issues, and as you are always involved with these interfering losers instruct them to mind their own business [these are the parents of the children referred to in the email]…they are interfering gutter trash of the lowest kind…I thought they were friends, and also instruct them to keep away from my children. [C] has had enough of [J’s] yelling, he has had enough of being tormented…I have concerns about her [[B]’s] welfare... you hang around lesser people than you are and you get dragged down to their level. My children deserve better, you seem to want them to be dumbed down by the environment and things your family/ friends do, I do not want this, they need to be told that is not a nice way to live your life…If you strive forward and have goals set you will reach them one day, I know [C] will and I will make sure he will do that, he will make me a proud Father…
· Why are going away with [R]’s family?...
I may be booked for the weekend for something, I will see if I can change it and see what [C] would like to do…
You want me to do things for you, how about doing something for me, stopping the CSA stuff …do what we had before, a private agreement, I am not paying for your lifestyle, the CSA assessments are a joke and you will be on the other end of the foot one day.
I am more than happy to pay the actual costs of what my children need, they don’t need a lot…
If you had any morals and were a normal person you would agree to that…
I really don’t know how you can live with yourself in every thing that you have done to me, you have to make lies about me to justify whatever it is you are hiding from…
…you have destroyed what we had as a family, you will be going back 15 years financially,
I worked very hard to achieve what we had (did have) we had the world at our feet, now its all being given to the Lawyers… because some interfering lowlife told you to do it, one day you will curse that person because you blame them rather than blame yourself!
I gave you the world [Ms Hutton], we had everything and we could have built our dream home...
[C] will be home soon permanently.
I hope you are looking after all the hand made furniture I made, please don’t damage it and look after it...
Keep in touch regarding the weekend issue.
I would like to see you and talk, I still miss you and love you [Ms Hutton].
This email was written by the father in response to an email to swap a weekend.
The wife replies on 29 October 2007:
I am not asking for myself I am asking for [C]…
About child support you have given me $600. For the whole year except for [B]’s braces and some School fees (that you have stopped paying a long time ago)
I have payed half in except [B]’s braces you paid an extra $500 more then me, and as for School fees I have picked up the tab…
I am tired of telling you that no-one has influenced me to leave it was my decision no-one else’s…
And about it all going to the lawyers I offered you a fair agreement...
And the reason I will not call you and ask you things about the children, is look at the response I got from asking you about if I can change [C’s] weekend. I find what you say about me, is so not true and very hurtful and upsetting, and for the record I do not have a mental problem. [Mr Hutton] you need to accept the separation and move on…
When you make a decision please let me know via email.
The husband’s response is:
[C] is a young man who can ask his dad anything, he is so scared of what you are doing and hates every minute being with you, he now understands what you are about.
There are court orders in place, all of which you initiated and applied for.
I have no problem in paying an equal share of normal costs for the children as if they were at home, they have everything, they are established, I am not paying for your lifestyle, so sign an agreement on this…
You also took the children away from their home illegally and are now back dating the claim, you are a fraudster and you will go to jail one day.
You took several thousand dollars from my account without my authorisation and then paid for [B’s] brace and receipted in your name only, I need a receipt for my payment share
I will be contacting the TAX department regarding this and the false claims of the Family payment that you have claimed.
Also I need to know where all the Centrelink money has gone all of it) and where you have spent it…
All you ever did was spend all your money on yourself, you are a shopaholic and you get high when you spend spend spend on yourself…
Liar, you and the skank at Canberra spoke to each other and did it at the same time.
Also the interfering freak [F] sticks her ugly face into our personal affairs…
All you want is money money money, I will be fair, you can have the money that you put into the property, mmm? About five hundred dollars.
You never paid anything on the mortgage and bills. I have done it all myself.
I reached my goals before and now you are destroying it all, destroying yourself, destroying/destroyed your childrens future.
…you can only make lies, but I have the advantage, the truth and it will call come out in the wash.
As for the mental problem, I really hope that you have a mental problem because then there may be an excuse for the sad little person you are and every thing you have done to me, all of the lies, the name calling about my scars.
I have spoken to a councilar from the Burns Foundation of Australia and they are absolutely disgusted by your comments…
I want to see my daughter, I am worried about her welfare, you have wrecked her life, since you took her away she has turned into something I don’t like. You are leading her towards an immoral life and letting her accept the ways of the idiots you hang around with.
Stop letting her being around and listening to the lowlife guttertrash scumbags you now hang around.
You will be one too one day, you hang around crap, you end up smelling like crap.
In this email the husband’s comments were in bold and red and in email terms this is called “shouting”.
The wife’s reply on 5 November 2007:
Hi [Mr Hutton], in response to your email,
I really believe you should start rebuilding your relationship with [B], before it is to late. I have a suggestion, that maybe you meet [B] some where for lunch and talk to her about her and how she is going and just start again slowly, I am trying very hard to encourage her to spend time with you as you are her father, but you keep bringing me and my family and our issues relating to me and you when you speak to her on the phone. [B] has no control over what happens with you and me. [B] is a very good girl and you should be proud of her. Remember [Mr Hutton] [B] is only 14 nearly 15 a child.
We are both at fault for our marriage ending. I can say that but it seems you can’t cause you were so perfect. If you were so perfect why am I not with you any more.
I feel sad that you will not let me have [C] this week-end, cause I think [C] would have really enjoy himself spending time with [X] and [Y]. But I do understand if you have made other arrangements, as it is your time with [C].
If I was organising a weekend away I would have made sure it was on my time.
Maybe later down the track I hope we will be able to communicate for at least the children sake. With out any of this abuse, we are adults not children.
The father’s reply on 6 November 2007 at 7.42 am:
You and all the other interfering lowlifes have brainwashed [B] into the person she is now, don’t you see the change. I am helpless.
Why does she never call me..
It is outrageous that you have let her associate with people that are no good for her to be around...
Everybody you hang around are from broken relationships, professional welfare bludgers, welfare cheats, drug users and drug dealers plus most have criminal records.
And as for your halfwit junky criminal nephew keep him and the rest of your family away from my children
Do not let [C] or [B] sleep at his house or even visit him, do you understand.
You have let our children think its OK. I don’t, our children deserve to be around better people than that.
The cycle of your family is a pathetic joke.
Your sister lets drugos and criminals into her home for years and look how your nephews have started out in life…
Just because they are your family doesn’t mean I have to put up with them and I also do not want the children to think it is OK just because you say its alright.
I would never put up with those lowlife bastards.
If ever anything ever happens to [B], you will regret it as I will make sure that anybody who interferes with her life will face the full force of the Law.
Our marriage was overrun by your lesbian girlfriend [Ms M]…we were a family and you let it interfere in our marriage.
I asked her keep away numerous times…you didn’t seem to care why? because you are so lost inside and you do have a mental problem, you have the genetics of your mother and your grandfather, sick and twisted, up and down, do not know what you want, your mother went crazy when you were young and now you are doing exactly the same.
You feel sad because you can’t have [C] for the weekend, well [C] is very sad because he wants to know why you took him away from his home, he is desperate to come back home, this is his home and he wants to be with his dad.
He hates the fact that you give the two bastards that verbally and physically assault him attention, he wants to know why you don’t stand up for him and do what a normal mother would do, but you are gutless and would never stand up to [J], she is another person who controls you.
Why don’t you tell her to keep her sons away from [C], stand up for him, that’s what he wants. I will be doing it, no one has the right to interfere in my family especially my children. I will move mountains to make sure of that…
You say maybe down the track we might be able to communicate. I have tried to communicate since you left.
I sat back hurt emotionally scarred, not knowing what was going on, I just thought here she goes again, you did what you did because of outside influence.
I never thought it would turn out like this, our children will be emotional and mentally scarred for the rest of their lifes because what you have done.
You just care about yourself, you never put input into the financial affairs of our home, you worked and spent it on yourself…
You bought enough clothes, shoes, make-up, perfume and more for twenty women not one.
This is not abuse, everything I have written to you is FACT, but you don’t want to accept the truth…
You were not shown any guidance by your parents and thats why your family is the way they are today…
Let [B] come home, I need her more than ever. I have told her a long time ago about me.
Address the CSA issues, sign the agreement about shared care. Address the issue regarding welfare payments you received, wheres the money all gone.
Address the TAX issues you claimed parenting payment for 05/06 and will have to pay it all back plus maybe x10 the amount in fines.
[and in bold and red “shouting”]
WHEN YOU GET FULLY AUDITED YOU MIGHT EVEN GO TO JAIL..
YOU ARE LOST [MS HUTTON], YOU WILL LOOK BACK ONE DAY AND SAY WHAT HAVE I DONE.
This was an email in response to the mother’s very child focussed, reasonable and polite email that she hoped the father and the child [B] could meet to begin to repair their relationship.
The father makes no mention of his and his daughter’s relationship and how it can be repaired. No mention at all. The father became completely lost in his own emotions and in his continued abuse and running down of the mother.
The mother writes back on 6 November 2007:
…Don’t ever email me again.
The father in an attempt to justify his uncontrolled and appalling behaviour writes back. He says the mother must accept all he said about her, her family, her friends, and that the break-up is her fault and it is her fault if the children are suffering. He tells her she is the one with issues, that she needs help because she has been seeing a psychologist, she has been popping pills, she goes to different doctors for prescriptions, she defrauds the government with her prescriptions and parenting payments, she has friends get medication for her, she has pretended she is someone else and she tells people lies about him.
Still trying to communicate with the father despite his conduct, on
11 February 2008the mother writes:
Hi [Mr Hutton], just letting you know I am happy to do mediation, You can make an appointment with Relationships Australia at [L] number is 02[omitted]
I am not stopping you from seeing [B] you have her mobile number you can call her whenever you like. I always encourage [B] to go and see you but she does not want to because of the pressure and bad things that you say to her, so maybe focus on just her and nothing else and I am tired of repeating myself to you.
I feel that you need to come to terms with our separation. I am not coming back and maybe you should go and get some counselling. I am happy to come with you if that makes you deal with it……
I don’t know what else to say to you I feel like I am always saying the same thing over and over again…
Let me know when you make the appointment all I want is peace and you need to stop putting yourself through all this stress...[it] is no good for your health.
The father replies:
You have taken all my money, my emotions, my love and my dreams. All you are after is the money. You will be cursed for the rest of your life. Our children when they grow up will have nothing but disgust but also sympathy for you because I’ll make sure they understand the full facts and I’ll make sure they know the truth about you and everything you have done.
I am not quite sure what the father believes the mother has done that would justify his attitude towards her other than having the temerity to leave him.
The father writes a letter to the children concerning his MS in May 2008. This letter is annexed to the mother’s affidavit. With the letter the father sent them DVD’s and other information. The mother has no issue with the information rather the contents of his letter.
The letter is headed “Something for you to know now”. It is addressed “Dear [B], (and [C]). I have reproduced the third last part of the letter:
I am not sure if you care about me or just don’t show it, I have had MS for a long time, even longer than I was aware of, over ten + years now
I couldn’t tell anybody, I didn’t want anyone to know, and to deal with that and continue working hard to provide for my family and myself/my future while I could, as I knew my working future would be limited and then to deal with your mother’s selfish/mental problems was very hard, its just the last couple of years where the physical affects have started to damage me and now some people are aware of it.
And that was when your mother knew and then she did what she did, how low can a person get so low
If you cared for me like any daughter would you might think about your future and mine as I will need future help. I can’t just let [C] do it by himself, I do have 2 children. I have not spent one day with you and its been 18 months now, what is wrong with you? I am very worried about you and your welfare.
I would love to see you, I would like you to come home, its time you can never take back.
Why are you letting your mother do all of the cruel things, the lies + more to me or is it you just don’t know.
Please come home and help.
Love always
Dad :)
xxxooo
(Your Father) 10 May 2008
This is a letter sent to his children as little a time ago as two months and almost two years since separation. This father needs professional and targeted assistance to overcome his grief and loss. He is drowning in self-pity and anger. He is unable to see matters from his children’s perspective or to focus on their needs and right to have relationship with him and their mother.
With the father still suffering the effects of separation and I not having seen any sign from him that he recognises his urgent need to undergo counselling I am concerned he will never recover any emotional health or perspective.
This presents a significant risk for his son’s own healthy emotional development as I accept [C] genuinely wants to live primarily with his Dad.
I accept the mother’s complaint in paragraph 7 of her affidavit that she and the father cannot speak about the children. I accept her evidence that when she attempts to communicate with him he is abusive, critical of her, tells her she has mental issues and that she has ruined all their lives. He said so in his emails to her.
In the light of the father’s own evidence in his e-mails to the mother I accept her evidence that [C] has said to her after speaking to his father: “Dad says he wants the money back that you stole from him. He says he needs it for his wheelchair.” I accept that is exactly how the father sees this matter and believes it is appropriate [C] be his conduit to further criticise the mother.
I accept the mother’s evidence that the father called her a low life and slut on 11 May 2008. He used the same words in is emails to her.
I accept her evidence that he used those words in front of his son, turned to him and said “You think the same don’t you mate?” No doubt this is part of the father’s campaign to have [C] live with him at any cost including damaging his important relationship with his mother. The reality is he did not have to launch a campaign against the mother to secure his son’s affections. He has his son’s affections and his son genuinely wants to live with him.
I accept the mother’s version of events that in November 2007 she was having difficulty disciplining [C]. I accept he was being defiant would not have a shower and that she gave him a cuff on his shoulder. This was at a time shortly after orders were made for him to be returned.
The mother did not hurt the child on that occasion. The child was exhibiting testing behaviour. He rang his father and said his mother had bashed him. The father, rather than responding positively saying something like “Your mother would not do that, come on mate calm down” says “I’ll come and get you. Don’t you touch my son you mental bitch”. I accept the father said those words.
I accept the mother’s version of events with the incident in June 2007. [C] was testing his mother with his behaviour. I accept she wrote a note which said “You can go and live with your father” and put him out the front door. This was not the best way of dealing with her son’s disobedience. The mother was almost at her wits end. She was having difficulty controlling the child and not receiving any back up from the father with his discipline.
I accept that [C] rang his father and was upset. The father, rather than calming the child and assessing the situation for what it was, urges the child the retrieve the note which the mother had ripped up and thrown in the bin and which he has attached it to his affidavit.
No doubt the father believes the note has forensic value in his campaign to have his son live with him. It does not.
This conduct reinforces my view that the father involves the child in the dispute with a careless disregard for the child’s welfare and separate emotional needs if he believes there is an advantage to him in his war against the mother and campaign for his sons’ exclusive affections. He has failed in his campaign for [B]’s exclusive affections.
The mother reported to the school that her son had been very angry and she has had difficulty dealing with him. The school notes of 6 August 2007 say:
Spoke to [C]. He is not allowed to be part of the discussions on Friday at Court. Went back with his Mum. He will see Dad some weekends. He still says he wants to live with Dad and says Dad was upset and he is not sure how he is feeling. He is confused.
Those notes show that the father has embroiled the child in the dispute and is unable to protect him from his own feelings.
In August 2007 [B] and [C] were at their father’s home. This was the first occasion [B] was spending overnight with her father since March 2007. The mother had had the use of the Honda CRV since separation as the father had a work car. The Honda is registered in the father’s name.
The wife attended the home in early to collect [B]. [B] had telephoned her mother distressed wanting to come home. Her father was putting pressure on her to come home so that her mother would return to him. The father’s emails support the mother’s evidence
The father determined the car should be returned to him then and there on that night. The mother refused. The father took the mother’s keys which were keys to the car and her home thus leaving the mother with no way to return or enter her home.
When asked why he did this at this time the father said he wanted to check the oil was up-to-date as the car needed a service. I disregard that evidence. It was a recent invention. He took those car keys because he had his entire family captive. They were unable to leave.
Not surprisingly the police were called when the father would not return the mother’s keys to her. This behaviour was quite threatening to the wife and [B]. [C] saw what occurred. It is non-child focused, infantile and is an explanation of why [B] does not want to spend time with her father.
The issue of finances looms large. [C]’s school principal’s report of the father’s conversation with her in August 2007:
He wants his family back together. He is frustrated by the Court who seems to favour the mother. The child support payments are high and after the mortgage there is no money for himself. He is trying to fight back.
I accept the mother’s position that much of the father’s anger is fuelled by his obsession with money. Clearly the father was a good provider during the marriage and he and the mother must have been excellent savers as they had some $78,000 saved at separation. The father’s emails are littered with complaints that his wife has stolen his money, falsely claimed child support and spent all her income on her herself during the marriage.
The father forgets the $78,000 in the joint account was he and the mother’s money, not just his money.
I accept the mother’s evidence that she is not seeking both children live with her to maximise her entitlement to property. I am not so certain of the father’s motives. The father had, until the day of the hearing, asked for both children to live with him primarily in circumstances where his daughter has not seen him for almost twelve months. Money is clearly very important to the husband.
The wife agreed that she and the husband had separate accounts during the marriage. That is the way the husband liked it. Her husband was a good money manager and a good provider and there was always sufficient money. He would get very angry if she took his money.
I accept that evidence. The father’s emails to her say the same thing. Even though the mother took money from the joint account to pay for [B]’s braces and some other small accounts at a time the father was not paying her any child support he sought to criticise and vilify her conduct in his emails.
It is clear he is very angry at having arrears of child support debt of $5,380.40.
The mother has much evidence and justification for her well founded fears that if [C] lives primarily with his father his relationship with her will slowly disintegrate because the father has nothing positive to say about the mother. He cannot focus on repairing his relationship with his daughter even when the mother asks him to do so and gives positive suggestions how to go about this. He responds with rude, crude, disgraceful comments to the mother and his daughter as set out in the father’s email to the mother on 2 January 2008.
[B] has gone from a beautiful, young girl with lovely blonde hair to a person who looks like a ???? look at what she has done to her hair, brown/mullet cut, dread lock rat-tail things in her hair, I would never have allowed her to do that, why have you
Why are you letting her go to Canberra to see her boyfriend unsupervised without you, I am very worried about her welfare.
Stop abusing my son, [C] tells me you always yell at him and call him an ungrateful bastard.
[C] also tells me he has to lock himself in his room because he says you go psycho (his words) why are you treating him like this
I will not let you get away with this abuse, DOCS have been informed.
In cross-examination it became clear that the mother and father commenced their relationship when the mother was 14. They commenced to live together when she was 18. The father is very critical of [B]’s relationship with her boyfriend at age 15 but could give no concrete reason why.
[B]’s relationship with her boyfriend would be a significant source of comfort for her. I accept when she attends his home she and he are under the supervision of his parents and when he attends her home he and she are under the supervision of the mother. The father’s attitude to his daughter’s relationship is hypocritical. He does not have one positive thing to say about his daughter. Why? No doubt because [B] has not succumbed to his bullying and manipulative behaviour to feel sorry for him and demonise her mother as he has done.
[B] is able to withstand his pressure. [C] has not, no doubt due in part to his age, gender and his personality type. He is clearly a sensitive and shy child.
I do accept however that [C] is expressing a genuine wish to live primarily with his father.
The mother says she is happy with [C]’s current arrangement but would be quite happy for him to have another day with his father. However, the current arrangement is not meeting his needs to live with his dad. The mother did not accept that [C] would be distressed and dismayed if he did not live with his father. That is not the evidence. He would be. This attitude demonstrates a lack of insight by the mother into the needs of her son. One of the reasons he may wish to live with his father is because he believes his father is more in tune with him and he and father may share more interests in common than he and his mother.
I accept the mother’s belief that if he lived primarily with his father he would still miss her.
The mother was asked “If [C] stayed primarily living with her how would he cope when he has clearly been asking and saying he wants to live with his Dad?” The mother said he needed counselling. She agreed she had a number of calls from his school last year about his demeanour and sadness and that [C] is unsettled.
The mother could not concede that her son genuinely wants to live with his father. However, it seems clear on the evidence that he does. All the mother could accept was that her son wants to spend more time with his Dad. I understand her reluctance to accept his wishes having regard to the father’s treatment of her and [B].
The mother agreed she called the father a “cunt”. The mother admitted her own poor behaviour at times and that the incident when she wrote a note saying [C] could live with his father was traumatic for everyone and inappropriate in hindsight.
No such concessions were made by the father. He was, to use his words, “blameless”.
Father’s oral evidence
The father admitted he could easily pay the arrears of child support of $5,000 but he was disputing any arrears as is his entitlement. His wages have been garnisheed to pay for ongoing child support.
It became apparent that the father has a propensity to pay extremely small amounts to persons he owes money to if they have annoyed him. For example, on 6 June 2008 he made two separate payments of
69 cents and 55 cents to child support, on 15 June he paid 50 cents, on 17 June he paid 50 cents, on 5 June 2008 he made two separate payments of 50 cents.
When asked to explain the reason for theses miniscule payments he said he had had problems with B-Pay by someone hacking into his account. He did admit he made some of these payments manually. I find he caused all these miniscule and irritating payments to be made manually.
He has behaved in the same way with [B]’s school because he does not like paying the school fees as he does not like paying child support. This is the manner in which the husband paid [B] school fees in August 2007 when he assumed responsibility for some of them. He made a number of internet payments on 27 August 2007 of 22 cents,
66 cents, $6.66, $2.22, 13 cents, 11 cents, 6 cents, 57 cents, 2 cents, and 1 cent. On 26 August 2007 he made payments of $1.01 and then 69 cents all within seconds of each other. It was put to him that he was making a pest of himself at [B]’s school because he did not want to pay school fees and, “That is how you get back at people?” He did not answer.
The father was negligent in disclosing his superannuation entitlement in his financial statement of 2007. He made an independent decision to only disclose what his contribution to his superannuation had been. That was $65,112. His entitlement to superannuation is $190,000. The acquisition of money is very important to the husband.
He did not pay the mortgage from July 2007 to November 2007 no doubt because he was upset or hurt and he had retained his son for a time during that period. The husband again made a unilateral economic decision.
The father said he agreed with Mr Lemaire’s recommendation that he needed some therapy. When asked what he had done it transpired he has made a call to [L] Relationships Australia. His evidence did not impress me that he accepts the importance to his son and himself of therapy.
In his evidence he answered a several occasions, “I want to address the issue”. When asked: “Do you think you are in need of individual therapy?” the following exchange occurred:
He said “yes”.
What for?
To do with the family breakdown.
Why?
A professional may be able to assist.
How?
I don’t know.
Have you done anything about counselling for yourself?
At [L] Relationships Centre. We had one session for two hours.
The husband demonstrated no understanding that he needs to address the issue of his failure to deal with the marriage breakdown for his and his sons’ benefit.
The father agreed, as did the mother, that [C] had been saddened by his parents’ separation and was distressed by the conflict between his parents. The father had thought this for at least a year. The father has taken no steps to assist his son. He has left that up to the mother.
The mother rightly says without the father’s support counselling will not be effective.
The father said “Oh no I can differentiate between the marriage breakdown and conflict”. The father then said he did not agree there was conflict between him and his wife but that he cannot speak for [C] and his feelings. He was questioned again “The level of conflict between you and your wife is distressing for [C]?” The father said “Well, [Ms Hutton] stopped communicating with me so there is no conflict.”
The father had absolutely no idea what he was being asked to address namely the effect of the parent’s conflict on his sons’ emotional well being.
He was then asked what he had done to stop the conflict. The father said “What do you mean by conflict?” He was asked “Can’t you help us? You know this is an important case for [C]?” The father answered “Yes I do”. He was then asked “Well what have you done to stop the conflict?” The father answered “Oh, I’ve asked [C] how he feels. Tried to contact his mother and contact his school”. I do not accept that evidence. It is at odds with the evidence and the father’s own emails and letters as recent as May 2008.
The father was then asked whether had done anything in the last twelve months to contribute to the conflict. His answer was “no”. This answer was breathtaking in light of his correspondence with his wife and children
He did not agree that [C] may have aligned himself with him. He said “No, that would be bad if he had.” He was asked if he could see any problems for [C] if he took his side in the argument. He said “It’s up to [C]. He has a mother and father and he feels the same for both”. He was asked “Don’t you think you have any responsibility to keep [C] out of this conflict?” He replied “Yes”. When asked “What have you done?” the father answered “I don’t involve the children.” That answer is in direct conflict with the evidence and the father’s conduct.
He was asked about paragraph 29 of Mr Lemaire’s report where
Mr Lemaire reports he may have appropriated his son’s affection. “What do you think that means?” The father said “I think that might mean I’ve been doing extra stuff with my son”. The father either had no idea what Mr Lemaire was talking about or chose not to answer the question. He was asked “Did you read paragraph 30 of Mr Lemaire’s report?” which summarised the possibility that he may influence his son to be aligned with his father. He did not think his son had aligned with him. That is breathtaking when it is clear the child is aligned with his father.
I find [C] has to be aligned with his father in order to have a relationship with him. It is the only way he can, because his father has failed to satisfy me that he accepts [C] has a right to a relationship with him and his mother. That this is so is borne out by the father’s current attitude to [B] who would not succumb to the father’s pressure to impose upon her mother to return to the home and tolerate the father running her mother down.
The father’s answers to these questions and his inability to understand how he has embroiled his son in this dispute and that his son is aligned with him left me with little faith that he would cease to continue to enmesh the child in his loss.
I find that the father has set out on a course of conduct to appropriate his son’s affections at the expense of the child’s relationship with his mother. The father is engaged in a completely unnecessary and damaging competition for his son’s exclusive affections on a winner take all approach.
The father was asked if he there is a danger for [C] in that he had not adjusted to the separation. “No danger for [C]” said the father. It was put to him that he had a poor view of the mother and her leaving. “Yes, I think very poorly of her. I’m not angry. No.” That answer is not correct. It is inconsistent with an email he wrote to her as late as February 2008 when he shouted in red in email terms. He was clearly angry with her. He then said “I now do not show my anger when [C] is around.” I reject that answer. It is inconsistent with the evidence.
It was put to him that as his daughter [B] had rejected him there is a possibility that [C] might reject his mother. He said “I disagree. I would never do that. We have to deal with the issue”. I asked “What is the issue Mr Hutton?” and the father said this: “The issue is [Ms Hutton] leaving and we need to deal with the breakdown”. That is the issue for the husband: his wife leaving him; his lack of control over her and what happens with his family. It is not his wife’s issue or the children’s issue.
On the evidence there is a real possibility that [C] may reject his mother no matter with which parent he primarily lives.
The father said he did not discuss adult issues with the children. That is not correct. He does. He has told [C] he believes his mother has stolen money from him and that he needs the stolen money for a wheelchair. The father brought the child to Court in August 2007 to tell the Judge what he wanted to do. The father said he did not know what to do at that time. I reject that answer. Even if he did not know what to do, to bring an 11 year old to Court to speak to a Judge is clearly involving them directly in the adult dispute and any parent looking at matters from their child’s best interests would avoid that at all costs. [C] should have been at school not at Court.
The father agreed that the child support arrangements since separation between him and his wife had been ad hoc. He closed the joint account in June 2007 and he took what was available at that time when
[Ms Hutton] applied for child support. It was put to the father that when he retained [C] last year he applied for child support. He feigned no involvement or a lack of knowledge of this. I find he did make an application. On 15 June 2007 the mother received a letter from the Agency annexed to her affidavit and being Exhibit ICL3 which reads:
We have recently received an application from [MR HUTTON] claiming child support from you for [B] and [C].
That was not the mother making an application for support. It was the father at the time he retained [C] and from his emails he believed [B] would be living with him also. Yet he has criticised the mother and is angry with her for doing the very same thing when the children were both living with her.
In relation to the August 2007 car keys incident, the father was asked by Mr Thistleton:
On 3 August 2007 late at night, on a cold winter’s evening, this is the one time the wife was able to persuade [B] to come spend time with you and this is the conduct you engaged in?
The father could not see he had done anything wrong. He could not concede his conduct had continued the dispute with the mother at the expense of his relationship with [B]. The father, in a pathetic attempt to justify his behaviour, said he had put a reasonable request to the wife to check the oil on a cold winter’s night. It was an unreasonable request and demonstrates conduct of a person who wants to be in control.
The father could not answer how it was that [Ms Hutton] and his daughter would get home if he had her house keys. There is no answer. His behaviour was reprehensible on that occasion yet he does not accept any responsibility.
It was put to the father, in relation to the letter of 10 May 2008, that he was trying to blame the mother for his MS and that when she found out he had MS she decided to leave him by his words “how low can a person get”. The father said “[Ms Hutton] should have known.”
He was asked “There was no diagnosis of MS until after separation was there?” He had to answer “Yes”. Thus the father believes his wife should have known he had MS prior to its diagnosis.
The father, in an endeavour to justify his poor behaviour, said “I was just letting my daughter know what my medical condition was.” That is incorrect. He did send information to the children but the contents of his letter do little to inform his children of his condition. The father was telling [B] to come home, that he needs her, that they all need to be together to support him because [C] can not do it on his own, that he has been worried about [B] and that she should come home for his sake. I reject the father’s justification of this poor letter.
The father would not accept that he was involving [B] in the adult dispute by this letter. He was asked if he thought it was a good letter to write to his daughter. He answered “I had no intention of being negative to my daughter”. The father’s evidence was littered with a lack of responsibility as this answer attests.
This was not a child focussed letter. It attempted to lay at [B]’s feet responsibility for his ill health and further blame the mother for his illness. The father would not admit the reality of his letter. He will not take responsibility for his own actions. It is always someone else’s fault. The father said “Maybe I could have changed a few sentences”. There was not one positive thing about [B], about how she was feeling, about how she was travelling in the letter. The letter was all about him.
It was put to him that his response to the mother’s very child focused and reasonable request and ideas of how he could start his relationship with his daughter by her email of 5 November 2007 was just a verbal abuse of the wife, her family and her as a mother and a parent. The father could not answer. He was asked “do you have anything positive to say about your daughter?” He replied “Her dancing?” However this was qualified. He was positive only whilst she remained at the dance school she had attended during the marriage. The father is critical of her changing dance schools since separation.
The father said there was no conflict between he and his wife because his wife would not communicate with him. He is the one who cannot communicate with the wife. His emails and responses to her are offensive and full of vitriol and hatred and have little to do with the children’s welfare.
It was put to the father it was completely unnecessary to call the police in November 2007 when [C] would not go into the shower and his mother cuffed him on the shoulder. He would not accept that. I formed the view that the father took that situation out of context and he should have told his son to behave for his mother and get himself into the shower. Instead he used it as an opportunity to get back at the mother and involve the child in the dispute. He took the child to [omitted] Police Station where the child was interviewed by police to, as
Mr Thistleton said it, “dob” on his mother.
The father would not accept responsibility for the Police interview.
He said the police did it and it was not his doing. I reject that evidence. The police would not have interviewed the child if the father objected. It is the same as bringing a child to Court to speak to a Judge. This was the father’s choice and only his.
When the father obtained his AVO in June 2008 there was exception for Family Law purposes contained in the orders. He feigned ignorance of this and its consequences. He says he did not ask for an exception despite the mother’s AVO’s against him always having the Family Law exception.
The father did this on purpose as another piece of evidence against the mother and his campaign to take every avenue possible to ensure the mother could not approach him or the child just prior to the hearing.
He told the police on 11 June 2008 he had no fears for his safety.
In those circumstances the AVO should not have been taken out.
Yet the father would not accept any responsibly for this state of affairs when the responsibility is solely his.
It was put to the father that he criticised the mother in his emails.
The father said “I don’t think I criticised her”. The father could not have read his emails to have made that comment. They are rude and aggressive.
The father’s evidence was he had regarded his marriage over for at least the last 12 months or so. In his affidavit of 2007 he said he did not think separation was final. In order to cover up the inconsistency with his 2007 affidavit and the oral evidence before me he said he thought a marriage being over was the divorce. I reject that evidence. I doubt that even today he accepts his marriage is over Despite the vile emails sent to his wife, he would prefer her to return home and their prior life resume. This lack of reality and acceptance of his wife’s actions is quite a sad situation for the husband.
The father was asked why he did not take his son to soccer. The father answered “Well I didn’t want to deal with the wife’s allegations and I was threatened by her friend so [C] didn’t go”. It was put to him “Did you think of putting an alternative in place such as asking his Mum to pick him up?” The father answered “No”. So the child misses out because of the father’s needs. This is the difficulty with the father’s attitude to parenthood. It is centred on his needs not the child’s. I do not accept his proffered excuse. I will make an order that if the father does not take the child to soccer the mother will have that responsibility.
When it was put to the father that his son was missing out by this failure to take him to games his excuse was that that his son does not really want to play soccer and wants to play rugby. The father’s evidence is inconsistent with the wife and Mr Lemaire’s evidence that this is a slight built, sensitive child. How his father could accept this shy child would cope with playing rugby with large boys who can be nearly the size of men is beyond my comprehension. Either he has no idea what his son is like or, as I find, is making up the evidence to cover his failure as parent.
I find this child needs to play soccer and that soccer is something he loves. He has played soccer for some time and this will continue.
It suited the father’s campaign not to take the child to soccer. I accept the mother’s evidence that this child loves soccer and he will continue to play despite his father’s lethargy.
Re-examination
Re-examination was allowed after Mr Batey agitated he had been denied procedural fairness.
The mother in re-examination gave very impressive evidence. She said if the father does not want to take [C] to soccer or his training she will make sure he attends. I will make that order.
The mother said after she heard the evidence and heard what
Mr Lemaire said she now agrees [C] should spend some extra time with his Dad. She posited that if he spent almost equal time perhaps he may see that he does not have to choose between them. Further if [C] gets professional help and his father co-operates he will be able to deal with the situation a bit better. This was most insightful evidence from the wife.
The mother said she heard what Mr Lemaire said and said that “If the father and [C] had counselling they could move on from where they are and this would be best for all of us.” The mother said she would continue with her counselling.
It was put to the mother how would she deal with [C]’s ongoing discipline problem. She said: “With counselling [C] will accept that he spends time with his mother and his father. There need not be a contest between us or a pulling between us and that we should be sharing the same role as his parents.”
The mother conceded that although she does not believe [C] spending more time with his father than her was a good for him she agrees with Mr Lemaire that the success of such a living arrangement is dependent upon the father getting help.
The real concerns I have are:
If I accept that [C] should live for more time with his father than his mother there is a risk of harm and I must asses that risk. The risks of him living with his father are, at least, the capacity of the father to emotionally damage his son by:
a)embroiling him in the dispute due to the father’s lack of adjustment to the separation;
b)the negative attitude the father has to the mother; and
c)the loss of the benefit to him of his current relationship with his mother.
I accept [C] has a genuine desire to live with his father and that this has not just come about because of his father’s campaign to win him over to his side at all costs. It is a genuine need as Mr Lemaire points out in his report. However without the father seeking professional assistance I am most concerned that [C] will be unable to develop emotionally and separately from his dad and have different opinions to his father.
If that be the outcome I am concerned for his long term emotional health and ability to make any decisions for himself in the future let alone a decision to continue a relationship with his mother.
On the other hand :
a)If I do not act upon [C]’s strongly held and expressed wishes to live with his father will this:
i)damage his present good relationship with his mother because he will believe that she is at fault;
ii)result in him voting with his feet, leaving his mother and going to his father;
iii)deprive him of the emotional support he believes he will achieve living with his father rather than his mother;
b)If I make an order that [C] spend more time with his father than his mother do I risk him being alienated from his mother because:
i)of the poisonous attitude the father has to the mother which he expresses to the child;
ii)of the father’s proven incapacity to protect the child from his emotional distress at the breakdown of his marriage and to cease involving the child in his dispute; and
iii)the consequences to [C] of the father’s lack of willingness to engage in counselling for himself and his son.
I am struggling to find a balance which will maximise the potential for [C] to maintain his relationship with both parents and minimise the potential of a breakdown of his relationship with one or either of them as has happened with [B] and her father.
The law
Turning now to the matters I must consider under the Act to enable me to make an order in the child’s best interests.
All parties and the Independent Children’s Lawyer agree that the parents should continue to have equal shared parental responsibility for the children, and I will make that order.
Having so found I must consider whether the children should spend equal time with their parents or significant and substantial time, and if those orders are not in their best interests what other order I should make.
In relation to [B] I will not make any orders for time with. This is consistent with the Independent Children’s Lawyer’s Minute of Order, Mr Lemaire’s report, the mother’s position and the father’s position. [B] will not comply with any orders this court makes. It is a matter for the father to address the issues he has created with his daughter. I hope he accepts that he has this responsibility and no one else.
In relation to [C], the two primary considerations I must have regard to are s.60CC (2) (a) & (b).
a)Section 60CC(2)(a). I must endeavour to make an order to ensure the benefit to the child of a meaningful relationship with both parents.
b)Section 60CC(2)(b) . I must have regard to the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
Mr Lemaire indicated that equal time would not be suitable for [C]. [C] himself said that he did not want equal time. The father does not want it. The Independent Children’s Lawyer does not want it and, although the mother said in re-examination that a form of equal time might be easier, neither parent contends this child should spend equal time with each parent.
I have formed the view, consistent with Mr Lemaire’s recommendations, that it is important that [C] knows that he lives primarily with one parent and he spends significant and substantial time with the other parent.
[C] has been expressing to school teachers, Mr Lemaire, school counsellors, his mother, anyone who will listen to him that he wants to live with his father. His wishes are based upon his own belief. I accept those beliefs may have been coloured by his father’s manipulation and his attempts to have the child aligned with him. I have described the father’s conduct as a campaign during this judgement.
The father is still struggling with the breakdown of the marriage and the loss he feels, together with the diagnosis of MS. This comes out clearly in his letter to [B] and [C] of May 2008. The father presented as totally self absorbed throughout the hearing. Such a demeanour must have had an impact upon [C] and is one of the reasons [B] does not see him.
However, I also accept that [C]’s expressed need to spend more time with his father is genuinely held even in the face of such poor behaviour by his father and lack of insight into his needs. Thus I accept what Mr Lemaire says that to ensure [C]’s continued relationship with both parents the Court must take notice of [C]’s expressed wishes.
If the Court does not act upon his expressed wishes I, with Mr Lemaire, am concerned that [C]’s relationship with his mother will be damaged. The mother is having difficulty in disciplining [C] now. Much of that blame is at the father’s feet. The father does not support the mother in anything she does including disciplining the children. These problems may well worsen as [C] grows older.
Not acting on [C]’s wishes now may engender even more resentment towards his mother. If that occurs, the possible scenario may be that he loses his relationship with his mother forever.
If I accede to his strongly held wishes to live with his father due to the current strength of his relationship and attachment to his mother, as noted by Mr Lemaire, he is likely to withstand his father’s negative attitude to the mother and thus maintain his relationship with her.
Secondly his wishes will not have been thwarted by his mother and little resentment should flow from him towards her. On this scenario there is a reasonable prospect he will maintain a relationship with both parents rather than only one of his parents which is my real concern if I do not accede to his wishes.
Now, although [C] has not experienced any violence at the hand of either parent, he is clearly distressed by their conflict. The mother understands that, she said so in her evidence and in the report. The father’s evidence was that there was no conflict because the mother no longer speaks to him. That is wrong. There is high conflict. Mere mention of the mother’s name could send the father off as demonstrated by the disgraceful emails he sent in response to the mother as replies to her attempts to communicate concerning the children.
[C] has been harmed by his parent’s conflict which the father has maintained for nearly two years. There is the potential for him to continue to be harmed. This is particularly so when the father has shown no willingness or insight into the benefits of therapy to address these issues.
I must now consider the other matters under s.60CC(3) and (4) of the Act.
The wishes of [C] are very persuasive in this case. They have been one the most significant factors in this decision. If his wishes were not so strong and not so genuinely held his father’s non child focused conduct, almost hatred of the mother, inability to say anything positive about his daughter or his wife, inability to support the mother in parenting, inability to put the needs of the child before his own overwhelming need to win the campaign, lack of insight into the impact of his behaviour on his family, failure to take any responsibility for this situation on any issue at all, then I would have formed the view that I could not allow this child to spend any time with his father at all, if I had his best interests at the forefront.
However, that is not the case. [C]’s wish to live primarily with his father is at this time genuinely held. It is a genuine need. This genuine need must however be balanced with the significant risk of spending more time with his father resulting in his relationship with his mother being alienated over time.
If after this process the father takes on board the need to have counselling so that he can become the best parent he can be and to assist himself to deal with the consequences of Multiple Sclerosis, perhaps the concerns and fears the mother has that her relationship with her son will be jeopardised will not come to fruition. However, her fears are justified at this time and the future is unknown.
Allowing [C]’s wishes to be fulfilled will relieve some of the stress and anxiety he is currently suffering. This may change his circumstances for the better in that his wishes will have been achieved. This may result in a more peaceful relationship with his mother, rather than the conflicted relationship it is at this time. His father may calm down because he will see he has won the campaign.
I accept Mr Lemaire’s evidence that there would be no negative impact on [C] of being separated from his sister.
In relation to the capacity of the parents, I find that the mother has a far greater capacity to put the needs of the children before her own both emotionally, scholastically and financially. The father is completely self absorbed in his own needs being to amass as much money as he can, to ensure the children think ill of their mother and that they rally around him because his needs are so great.
However, I accept [C] is very attached to him and genuinely wants to live with him. If the father attends counselling with a view to getting help he will become a much better parent than he presently is and be able to promote his son having his own ideas, relationships and attitudes.
There is no direct family violence relevant to this matter.
The issue now is the form of the order I should make.
The Independent Children’s Lawyer’s submission was that if I formed the view that [C] should primarily live with his father, then I should mirror image the orders they put forward for the child to primarily live with his mother, that is [C] would spend six nights with the mother and eight nights with the father. The mother adopted that position.
Mr Batey vehemently opposed such an order putting it to me that it had not been put to Mr Lemaire and that I could only follow Mr Lemaire’s recommendation which was that the child spend alternate weekends with the mother and two evenings during the other week.
The father’s own position is that the child should spend time with his mother from Friday until Tuesday each alternate weekend, and then Monday afternoon to Tuesday morning in the alternate week. This is five nights with his mother and nine nights with his father. More time than the alternate weekends and two evenings a week proposed by
Mr Lemaire.
Much was made by Mr Batey of this one day difference in the position of the Independent Children’s Lawyer and the mother. Certainly for [C], Mr Lemaire was clear, one additional night per week fortnight than the current five would not be sufficient for [C] to have his wish to live primarily with his father fulfilled. This means [C] needs to live with his father somewhere between eight and nine nights per fortnight and spend between five to six nights a fortnight with his mother.
It is a very fine balance to be drawn between one additional night more or one night less a fortnight. The time itself is not significant for a boy of [C]’s age but it is certainly significant for [C] to know he is living primarily with his father. In those circumstances I have formed the view consistent that [C] should be spending 8 nights a fortnight with his father and 6 nights a fortnight with his mother.
This arrangement strikes the balance as I see between ensuring [C] maintains his beneficial relationship with his mother and fulfilling his need to live with his father.
I accept the orders put forward by the ICL and accepted by the mother that [C] should spend from after school Thursday to the commencement of school on Tuesday morning with his mother each alternate week and from after school Monday to the commencement of school Tuesday morning each week.
The fact that those precise days have not been put to Mr Lemaire and may be different from either party’s initial position is not material in this matter. The issue is the time the child should spend with each parent, not precisely when that time should occur.
The orders I put forward ensures the child knows he spends every Monday night with his mother and alternate weekends which commence on a Thursday night.
In relation to the other matters I will make orders that if the father does not take the child to soccer training or misses a match without a reasonable excuse that satisfies the mother, thereafter the mother will collect the child from school or the father’s home and take him to all soccer training and soccer matches and return the child to the father’s home if he is not otherwise living with her.
Otherwise I will make the orders as contended for by the Independent Children’s Lawyer set out in Independent Children’s Lawyer Exhibit 2 in terms of holidays, parental responsibility, counselling and the like.
I will make and order that the parties forthwith do all acts and things to cause the child, [C], to be assessed at Relationships Australia for the most appropriate form of counselling for him in order to deal with the consequences of the breakdown of the parent’s marriage
The father is to forthwith do all acts and things necessary to attend an intake at Relationships Australia in relation to counselling specifically designed to assist him to deal with the breakdown of his marriage, his inability to come to terms with that breakdown and the impact of the diagnosis of MS upon him.
I will not make any orders for the mother to attend counselling. She is already attending counselling and I accept she will continue to attend.
I will not make any orders for telephone time. These children are old enough to ring their parents and I will not restrict them or make any specific orders.
Property
That leaves the property issues.
Both the parents agree that the superannuation they each have should be equalised and a splitting order will be made in accordance with the orders put forward by the husband and agreed to by the wife.
The wife will receive superannuation being her own superannuation of $77,364.62 and the splitting payment from the husband’s superannuation of $52,840 a total of $130,205. The husband’s superannuation entitlement will be the same as the wife’s.
I do not need to include the superannuation in the matrimonial pool just note the fact that the parties will each receive superannuation to a value of $130,205.
The asset pool of the parties is as follows:
ASSETS Former Matrimonial Home $310,000 Property S property $250,000 Wife’s Car $18,250 Wife’s Savings $30,000 Husband’s Honda $10,500 Husband’s Toyota Seca $3,050 Husband’s pinball machines $1,000 Husband’s Bank Account $56,164 Add back of husband’s paid legal fees $15,000 Add back of wife’s paid legal fees $6,483 Wife’s furniture $15,000 TOTAL $715,447
The parties have agreed to the pick a pile process to divide the contents of the matrimonial home.
The wife’s furniture and her car were purchased after separation from her redundancy monies which also forms part of her savings.
This gives a total asset pool of $715,447.
The liabilities of the parties are the mortgage on Property O and Property S, which is a joint liability, of $131,251.
Thus there is a net asset pool of $584,196.
These parties are hard working and it is clear the husband is an excellent saver and money manager, as at separation the parties had some $78-79,000 in the bank account.
When the husband realised the wife was using some of that money to pay towards the children braces and some minor expenses of her own, he closed the account. He kept that money.
At the commencement of cohabitation the husband had savings of $20,000 and the wife agrees she was a mere teenager and had no savings. The husband’s parents lent them $14,000 and thus the husband’s contribution at the commencement of their marriage was some $34,000. This was in 1988, some twenty years ago.
This initial contribution was a significant contribution as it enabled the parties to purchase the land for the former matrimonial home. That contribution combined with their energy over the years, the husband as primary income earner and the wife as the primary parent and homemaker, their careful money management and somewhat frugal lifestyle, has resulted in this young couple having very minimal debts and having significant assets, totalling some $584,196 and raising two children.
Consistent with the principles set out in the decisions of Hickey & Hickey (2003) FLC 93-143 and Ferrero & Ferrero (1993) FLC 92-335, I am required under the law to take a four-stage approach.
The first stage is to identify the matrimonial property, its value and nature.
The second stage is to ascribe to each their entitlement to their assets expressed as a percentage having regard to the factors under s.79(1)(a), (b) and (c) being:
a)Section 79(1)(a) an assessment of the parties direct financial contribution;
b)Section 79(1)(b) an assessment of the parties indirect contribution; and
c)Section 79(1)(c) an assessment of each parties’ contribution as a parent and homemaker during the marriage.
The third stage, under s.79(4)(e), is to determine whether, having regard to the factors under s.75(2), I ought to vary the assessed percentage entitlement of either party to take into account their future needs.
The fourth stage is to look back at the consequences of the proposed orders to determine if they are just and equitable in all the circumstances.
Apart from the husband’s savings and the gift of $14,000 to the parties by the husband’s parents at the commencement of their marriage, I would find that these parties’ direct and indirect contribution to their present asset base in the past both by way of direct financial contribution, their energy and effort to have been equal
As to parenting and homemaking the husband worked hard and for long hours. He was away from the home frequently and for weeks and days at a time with his job. This left the wife with the primary obligation as parent and homemaker and she worked part time.
I accept that both these parents contributed the entirety of their income to the support of their family and each worked in their specific capacities to the maximum for the benefit of their children.
The contribution by the husband by way of the gift from his parents and his savings results in a superior financial contribution having been made by the husband at the commencement of the relationship and I will allow him a 2.5% adjustment for that.
I find that the wife made a superior contribution as parent and homemaker during the marriage due to the nature of the husband’s work and I allow her an adjustment of 2.5% for that contribution.
This then gives the parties and equality of contribution in the past.
The next issue is whether there should be an adjustment for either parties’ s.75(2)factors.
The wife will never earn the income of the husband. He has a secure long term job with the [organisation omitted]. He is clearly a skilled and valued employee.
The wife earns some three-quarters of the husband’s income. She does not have the access over the years to the superannuation entitlement he will have, though their superannuation entitlement is equal now, the husband’s will accrue at a greater rate due to his greater income earning capacity.
I accept that the wife has maximised her income earning capacity at this stage.
Both parents have, at this time, one child to primarily care for. [C] is only 12 and [B] is 16. The wife will be paying child support to the husband when [B] becomes self supporting and leaves her care in two to three years. The husband has some six years to support [C] primarily with assistance from the wife by way of child support and time with his mother of no less than five nights a week.
I accept the husband has had the benefit of occupation of the former matrimonial home whilst the wife has privately rented with the children.
The husband did not pay child support for many months after separation.
The most significant s.75 (2) factor is the husband’s diagnosis with multiple sclerosis.
There was no affidavit filed by the husband in relation to his MS but attached to his affidavit, to which no objection was made, was a report from Dr W, his neurologist, dated 23 October 2007. It says this:
I am the neurologist looking after [Mr Hutton]. He has been recently diagnosed with multiple sclerosis and is about to be commenced on Betaferon therapy. The natural history of multiple sclerosis is variable, but the vast majority of patients do very well over the first ten years and thus I am not expecting him to suffer from any significant disability over the next ten years.
The husband has commenced the Betaferon therapy.
The husband is currently forty-one.
From the multiple sclerosis material that the husband provided to me, it is clear that some patients have a significantly greater period of time than ten years with no symptoms, however that is unknown.
The wife on the other hand is thirty nine and is in excellent health.
The husband does have a greater need on two bases:
a)His primary care of the younger child of the marriage; and
b)His disease of multiple sclerosis, the prognosis of which is really unknown at this stage although I accept he will be symptom free for a minimum of ten years.
However when this is balanced with his significantly higher income earning capacity, his occupation of the former matrimonial home and lack of child support for 16 months I do not consider I ought to make any further adjustment. Thus each will share equally in their matrimonial property.
The final question is whether that division of property results in a just and equitable order in all the circumstances.
The totality of the matrimonial assets is $584,196. The husband seeks to buy out the wife’s interest in the home and I will give him that opportunity.
50% of the total assets for division is $292,098. The wife is presently seized of assets worth $69,733. To bring into effect the orders I propose to make and enable the husband to retain both the properties at Property O and Property S, a payment to her of $222,365 is required.
The division of the assets would leave the husband with assets of $292,098 consisting of the net equity in the matrimonial home at Property O and Property S, monies in a bank of $56,000 and motor vehicles and some pinball machines.
Each have equal superannuation entitlements.
I find these orders are just and equitable in all the circumstances as they provide the wife with a sum of money to assist her to rehouse herself and her daughter [B], and provide accommodation for [C] when he lives with her. The orders provide the husband with the opportunity to buy out his wife’s interest out in the matrimonial home which is something he is desirous of doing.
Therefore, I make orders as set out at the commencement of this judgment.
I certify that the preceding three hundred and twenty-two (322) paragraphs are a true copy of the reasons for judgment of Henderson FM
Deputy Associate: A. Morris
Date: 20 August 2008
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