INGLETON & INGLETON
[2019] FCCA 1644
•14 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| INGLETON & INGLETON | [2019] FCCA 1644 |
| Catchwords: FAMILY LAW – Parenting – family violence – cultural issues – parental responsibility – whether or not interim or final orders should be made – property – mother seeks lump sum payment but cannot identify source of payment – periodic maintenance. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 11F, 60B, 60B(1), 60B(2), 60CA, 60CC, |
| Cases cited: Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 |
| Applicant: | MR INGLETON |
| Respondent: | MS INGLETON |
| File Number: | MLC 11819 of 2017 |
| Judgment of: | Judge Harland |
| Hearing dates: | 11 and 12 February 2019 |
| Date of Last Submission: | 20 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 14 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Whitchurch |
| Solicitors for the Applicant: | Creative Family Law Solutions |
| Counsel for the Respondent: | Ms Juneja |
| Solicitors for the Respondent: | Women's Legal Service Victoria |
ORDERS
All previous orders be discharged.
That the children, [X] born … 2003, [Y] born on … 2010 and [Z] born … 201l, live with mother.
That the mother have sole parental responsibility for the education, religion and health of the children.
That the mother shall authorise all medical practitioners upon whom the children attend for treatment to provide the father, upon his request, with all details of the children’s attendance, prognoses and treatment at the cost of the father.
That the mother shall authorise the father to obtain any information, school photographs, circulars, newsletters of the like from any of the children’s schools or education providers normally provided to parents at the sole cost of the father.
That the parties be at liberty to provide a copy of the reasons and the family report to any family therapist and counsellor they and/or the children attend.
That pursuant to s.78 of the Family Law Act1975 (Cth) that each of the father and the mother shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a)all items of furniture, furnishings, personalty, chattels and jewellery;
(b)all monies (whether held in cash or in deposit with any financial institution);
(c)any motor vehicle;
(d)all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control in which either has an interest which are not otherwise dealt with in these orders.
Within 42 days of the date of these orders the parties are to submit a superannuation splitting order giving effect to paragraph [269] of these reasons together with evidence that procedural fairness has been accorded to the trustee of the father’s superannuation fund.
That the father pay to the mother the sum of $300 a week with the last payment being on 30 December 2020 by way of direct deposit into the mother’s bank account or as she directs.
IT IS NOTED that publication of this judgment under the pseudonym Ingleton & Ingleton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11819 of 2017
| MR INGLETON |
Applicant
And
| MS INGLETON |
Respondent
REASONS FOR JUDGMENT
This is a parenting and financial dispute.
The applicant father was born in Country A. He is 41 years old.
The respondent mother was born in Country B. She is 36 years old.
The parties met in Country D in 2007. They married in Country B in … 2008. When they met the father was working as a health care worker at a local employer. The mother was studying and working as a health care worker.
The parties have three children:
a)[X] born on … 2003, aged 16;
b)[Y] born on … 2008, aged 10; and
c)[Z] born … 2010, aged 8.
[X] is not the father’s biological child. The father adopted [X] in 2012.
The parties moved to Australia in 2014. They lived in Tasmania for 18 months. In January 2016 the mother and children moved to Melbourne. The father remained working in Tasmania for eight months, before joining his family in Melbourne. He visited the mother and children regularly during that eight month period.
The father says that the mother withheld the children from him from 11 September 2017 until 29 November 2017.
The father commenced proceedings on 13 November 2017 filing an urgent application seeking amongst other orders, a location order and a watchlist order. The application was returnable the following day. In the father’s accompanying notice of risk he stated that the mother denigrated the father in front of the children, that she had actively attempted to alienate the father from the children and made threats of self-harm in front of the children.
The mother was represented by the duty lawyer on 14 November 2017. I made orders for her to file material and for the parties and children to attend a family consultant pursuant to s.11F of the Family Law Act1975 (Cth) (“Family Law Act”).
The mother filed her responding documents on 23 November 2017 joining property issues to the proceedings. In her accompanying notice of risk she states that throughout the relationship the father was verbally abusive to the mother in front of the children and to the children directly, made threats to kill the mother in front of the children and attempted to sexually assault her in front of the children. She gave specific examples.
In response to the notices of risk filed by the parties, the Department of Health and Human Services (“the Department”) indicated that in accordance with protocol they would investigate the allegations.
Exhibit A is a copy of the s.67Z response dated 14 December 2017. The protective concerns the Department identified are:
· Family violence by the father towards the mother and the children;
· The father’s inappropriate physical discipline and verbal abuse of the children;
· The mother having inappropriate adult conversations about the violence within hearing distance of the children.
The Department interviewed the mother who spoke about the violence and abuse and her fear of the father. She advised that she has good community supports. She thought the children needed supports. When interviewed, the father denied all allegations of violence but said he pushed and encouraged the children with their maths homework. He said he and the mother argued about financial issues and that the mother had threatened and assaulted him. He was concerned about the mother’s mental health and was concerned about the children being manipulated by her and needing support. He felt that he did not need any support. The Department recommended that he contact the Children Protection Society – Caring Dads Program.
When the children were interviewed all three disclosed feeling unsafe with their father because he would shout at them, especially when they got maths answers wrong. [X] said he would live with a friend if the father returned home. [Y] said she felt under pressure and not good enough. [Z] cried and said she did not like it when their father called them wicked. The worker commented on the difference in demeanour in the children when they talked about their mother and their father.
The Department formed the view that there was a “strong likelihood that the children have experienced family violence perpetrated by Mr Ingleton towards them, and they have been exposed to family violence perpetrated by Mr Ingleton towards Ms Ingleton and that the risk of harm to the children is unlikely to reduce until the father addresses the protective concerns and develops insight into his behaviour and recommend that he only have supervised contact.”
Exhibit B is a copy of the s.11F memorandum dated 27 November 2017. The family consultant recorded that the mother made many detailed allegations of verbal, psychological, financial and sexual abuse including controlling behaviours. The father made allegations of verbal abuse by the mother against him. He denied the allegations of family violence.
The mother alleged that the father had physically disciplined [X] before they moved to Australia and also referred to the father’s verbal abuse of the children when he was teaching maths lessons. He became angry with them if they got questions wrong.
The family consultant records that the father expressed concerns about the mother being under mental stress and therefore being unpredictable.
The family consultant interviewed the children and recorded that all three children expressed varying degrees of fear of their father and were able to describe their experiences. She expressed concern that the mother may have allowed the children access to inappropriate information. She stated that any time spent with the father would need to be supervised in the short term and recommended that the father complete a men’s behaviour change program. She also recommended that the mother attend the referral from the Suburb E Family Relationship Centre for post separation counselling for the children.
On 30 November 2017 I made a series of orders which included listing the matter for an interim contested hearing on 22 February 2018; that the father pay the mother $5,000 within seven days and thereafter $400 a week by way of spousal maintenance and that the father spend two hours a fortnight with the children, supervised by the children’s contact service at Suburb F.
On 22 February 2018 I ordered that the father pay the sum of $1,520 for school expenses for the children to the mother and listed the matter for trial.
The family report was released on 6 August 2018. The recommendations in that report included for the father to attend a psychologist and after 10 sessions to obtain a report as to the progress of the counselling; the father to complete a Caring Dads Plus Program; the father’s time to be supervised until the father provides evidence that he has addressed the protective concerns raised by the Department and that an updated family report be prepared.
The matter could not be reached when the matter was listed for trial on 25 September 2018. The trial proceeded for two days on 11 and 12 February 2019.
The delay in the trial meant that the father had more time to address the concerns raised in the family report. When the trial commenced on 11 February 2019 the father’s Counsel informed the Court that the father had not attended upon a psychologist but had reasons for that being that the father is a very busy man and needs to support his children. He says he has no need of psychological treatment.
In her case outline the mother sought to raise child support. Putting this in a case outline does not enliven the Court’s jurisdiction.
The mother filed an updated trial affidavit on 24 January 2019 and financial statement on 17 January 2019 in accordance with my orders. The father chose not to file any updated material.
The parties’ proposals with respect to parenting
At the end of the trial the father sought to make written submissions in order to explore the orders he would seek in light of the evidence, particularly that of the family consultant. The father seeks that the parents have equal shared parental responsibility. He also seeks that interim orders be made and that the matter be adjourned for six months to enable the parties and children to undertake family therapy addressing the following issues:
a)the issues raised by the family report writer;
b)to discuss with the father the views of the children regarding their ongoing religious and educational needs;
c)to discuss with the father the impact of his behaviour on the children;
d)to understand the anxieties of the mother; and
e)to monitor the progress of the father’s time and in particular his relationship with the children;
f)to assist with communication between the parents regarding important issues in relation to the children;
g)to assess the need for ongoing substantial attendance, and
h)the appropriateness of progressing to overnight time.
The mother seeks an order for sole parental responsibility. She seeks that they attend family therapy with a female therapist.
At the end of the trial the parties agreed to the father’s time moving away from the contact centre provided that there was an agreed person in substantial attendance. The agreement was informal and not made as consent orders. As it was apparent from reading the written submissions the parties no longer agreed about interim arrangements I listed the matter for further submissions on this point. On 20 May 2019 the parties agreed to interim orders addressing family therapy and the father’s time.
Both now ask the Court to make interim parenting orders. This is not an ideal situation as it leaves the case in the court system for longer. It is unfortunate that the father did not address the concerns raised by experts earlier.
Parenting issues in dispute
The issues in dispute between parties which I must determine are:
a)whether the parties should have equal shared parental responsibility as the father seeks or if the mother should have sole parental responsibility;
b)whether or not the presumption that the parties should exercise equal shared parental responsibility is rebutted because of family violence;
c)whether or not the father poses a risk to the children’s psychological, emotional and physical well-being if he were to have unsupervised time or time without a suitable adult in substantial attendance.
Family life pre-separation
The father says that before they separated they were a close family and did many things together which he describes in his trial affidavit. He said he took the children to doctors when they needed that, gave them sports lessons and played sports with [X]. They also went fishing a lot when in Tasmania.
The father describes the children’s personalities in his affidavit and various activities and routines that they had.
The mother says that she has always been the children’s primary carer. She says the father worked long hours often past midnight and in his spare time often studied. She says he provided little assistance with looking after the children apart from his maths tutoring.
The mother also describes the children’s personalities and refers to their progress at school.
She says the children are settled at School G where they have been attending the last three years and that that provides a source of stability and support for them.
Separation
On 26 January 2017 the mother texted the father saying, amongst other things, that the marriage is over and that she would remain in the house and there was no need to worry about the visa issues. The mother started sleeping in the girls’ bedroom. The father says they finally separated under the same roof in April 2017.
The father says that in July 2017 he found the mother’s notebook in the study and as he thought she was planning to take the children away, he took it and he saw references to family violence orders, Safe Steps refuge and applying for an intervention order, maintenance and child support. The father says that he reached out to her relatives out of concern and that they went to marriage counselling but the mother “remained non-conciliatory”.
The mother says she tried to separate in August 2016 but the father threatened to take the girls and said that she would never see them again. The mother said she sought help from a psychologist and contacted the Department of Immigration and Border Control who referred her to Safe Steps. She also sought assistance from her church.
She says after she started sleeping in the girls bedroom in January 2017 the father would still come into the bedroom wanting her to have sex with him.
The mother denied that there was any agreement that after separation they would both stay in the house. She said there was discussion about separation but not discussion about that. She said she wanted his behaviour to stop. If he did not stop mistreating her and the children she would have to leave. She said the father did not think there were any issues in the marriage and that the mother was making it up. The mother said she told him that she could not continue and that she was scared so she wanted to leave. She agreed that the marriage was in trouble for some time but that both tried to make it work for the children’s sake.
On 11 September 2017 the mother called the police after she and the father got into an argument. [Y] was home sick from school. She said she took the other two children to school and the father was still sleeping when she came home and she continued in the kitchen. The mother says that the father said to her “you just want to ruin your life and everyone else’s lives”. She says the father said to [Y] “she is ruining your life” and the mother alleges that the father picked up a knife and pointed at her saying “if you think you are going to get any money from me you are mistaken. If you call the police, you are the one they will take away.” She said she asked him to put down the knife and told him that she would call the police if he did not. The mother called the police. She said after she finished the call the father quickly put the knife away. When the police attended they asked the father to leave the home.
The father denies threatening the mother with a knife.
The mother agreed she telephoned the police and says the police asked her whether the father had a weapon and she said she felt threatened that he had a knife. She said the police arrived and they took the father outside as he was shouting and she was inside crying. The mother said that because [Y] was there, there was much that she wanted to tell the police but could not. She told the police that she did not have anywhere to live and they said they would put him in touch with services.
The mother says that between 11 September 2017 and 14 September 2017 the father called the children and her several times quizzing them and threatening the mother that he had taken photos of her journal and would use them to show that she was crazy. After the father sent her a text message saying he would attend the home on Saturday 15 September to collect the children, the mother responded telling him that the police had advised her that the children could be removed from her if she did not keep them safe. The mother said after the father left the house he sent a few text messages and spoke to the children on the phone. She said she was not listening in but noticed that he said something that scared the children and that he only wanted the girls and not [X]. The mother was worried that the father would come and take the children. On 15 September 2017, Safe Steps helped the mother and children leave the home. The mother says the father rang the children after the move and the call was on speakerphone. She heard him interrogate the children about where they were living and also saying “has you mother turned you against me”, “don’t you love me?” and “can’t you tell your mother to bring you to your father.”
The mother attended the police station on 15 September 2017 and the police applied for an intervention order on her behalf. On 22 September 2017 Suburb H Magistrates’ Court made an interim no contact intervention order. The father applied for an intervention order against the mother that day but it was not granted.
The mother denied making abusive statements about him and denigrating him to the children. She also denied exaggerating.
She agreed that a few days later she did ask the father to collect the children from school. She said she does not remember sending the text at the time and that everything was confused. She was speaking to Safe Steps as she did not have any money and about having a home. She said she was trying not to be accused of kidnapping as he was insinuating, but denied being uncomfortable with him having the children.
She said, somewhat inconsistently with her earlier evidence, that she listened to the first phone call from the father and he was naturally upset because she called the police and he tried to explain to the children why she did that. She thought that was inappropriate and was not sure how to handle it. As she was giving this evidence the father was shaking his head dismissively.
The mother agreed that the father did not see the children until the s.11F interviews. She said that she did not think of making arrangements for the father to see the children during that period, that everything was being handled by Berry Street, InTouch and Legal Aid and that she did not feel safe about the father seeing the children.
She denied talking to [X] about the difficulties and said that he witnessed a lot of what happened. The mother said that after the incident with the knife and the police being called, [Y] blurted out everything that happened to [X] and [Z] when they came home from school and told them their father had a knife. The mother said she did not intervene when she heard her talking to the other children about it and that she went to do her own thing. She said she told the children that she felt scared and called the police and that is why the father left. She said [X] was very emotional as it was very stressful to him and that he was confused. She said she kept telling the children not to worry and that they would sort it out.
The mother says she received calls from friends and family asking her to forgive the father. They told her that the father was asking if they knew where the mother was living. The mother reported this to the police.
The mother says she arrived in Australia on a 457 Visa and was dependent on her marriage and that she and the children were listed as dependent family members. She is receiving assistance from Refugee Legal and applied for a visa for herself and the children on 12 December 2017. She was granted a Bridging Visa on 3 January 2018 which allows her to work and study. She says she has been advised that the timeline for the visa being processed is broad and could take up to three years. She says this makes it difficult for her to obtain long-term employment or a loan because of her visa status.
Family violence
The father denies any family violence and also denies coercing the mother into having sex. The mother refers to this in her affidavit and says the father would often demand that she comply with her matrimonial vows.
The mother says that when she went back to work in 2009 after [Y] was born, she would often have to come home early to make the father food or he would complain that her work was interfering with her motherly duties.
She says that from the end of 2009 until they separated the father frequently denigrated her calling her “useless”, “nobody”, “a bad parent” and other things.
She says that from late 2014 the father demanded that she and the children say good morning to him each morning and when they did not he would scream at them, saying things such as “you must greet me, you are wicked and have no respect for me”.
The father says that in his culture it is important to teach children to respect their elders and children are expected to greet their parents in the morning. The father says this is in the same way that a parent tells a child to say please and thank you and complains that the mother has exaggerated what happened.
The mother also says that the father was controlling of the parties’ finances and would not give her money unless it was an emergency.
The father complains that after separation the mother has been harassing him and is vindictively trying to get him convicted of a criminal offence. He claims that when they were arguing towards the end of their relationship the mother said to him “I will make sure you end up in gaol in this country.” He claims that when he appeared at the Magistrates’ Court of Victoria for an interim intervention order breach, the Magistrate indicated to the police that they should withdraw the charges as they were minor but that the mother insisted that they press charges and so the police did. He then said he was only found to have made one breach which was recorded as a non-conviction.
The father says the mother later attempted to have him charged with breaches of the intervention order complaining that he was sending her spam email. He says he does not have access to her email accounts and that he was interviewed by police who did not proceed with any charges. The mother says that she received a series of emails from dating websites addressed to the father at her former email address. She believes the father signed up to these websites using her email address to harass her.
The father also says that the mother used a chance encounter to try and reach him. He says that after a visit at the supervision centre he looked over and saw the mother driving and the children waving at him so he waved back. He said he was not familiar with the car or that the mother was driving at the time. The mother says that on 21 May 2018 the father was driving behind her and the children and she was worried that he would follow them home and find out their address. She says she pulled into a petrol station and the father followed. She says she was scared. She says on 26 May 2018 that the father again drove behind them after a contact centre visit and then drove in front of them glaring at her. Again, she says she was afraid that the father would follow them home.
Since separation the mother has been seeing a counsellor at Berry Street to assist her to deal with her experience of family violence and the stress of separation. She has a case manager from InTouch[1].
[1] InTouch Multicultural Centre against Family Violence which provides assistance to migrant and refugee victims of family violence.
There was a contested hearing in the Magistrates’ Court and on 4 October 2018 Magistrate Alger made an intervention order in favour of the mother and the children to remain in force until 3 October 2020. The orders include prohibiting the father from approaching or remaining within five metres of the protected persons and attending any address where the protected person lives, works or attends school. The mother relied on the affidavit of her lawyer affirmed and filed on 17 January 2019 which is a transcript of the audio recording of the hearing of the intervention order matter. The transcript contains the Magistrate’s reasons and submissions from Counsel for the mother and the father with respect to the duration of the order and the conditions which should apply. The father did not challenge the Order.
Magistrate Alger was satisfied on the balance of probabilities that the father committed family violence and is likely to do so again. He referred to the parties’ sworn evidence with respect to the events which took place on or about 11 September 2017 and found that the mother was more credible than the father. Magistrate Alger was also satisfied that the father approached and denigrated the mother to their daughter and pointed a knife in the mother’s direction also in front of their daughter. He did not conclude that the father intended to threaten the mother with the knife but was satisfied that it was done in a way that was intimidating and that the mother correctly interpreted it as intimidating and threatening. He also referred to there being other threatening incidents in April 2017 where he preferred the evidence of the mother to the father. He said the assessment of what happened in April 2017 was not as clear and that he did not need to determine that given he was satisfied that the events in September 2017 satisfied the requirements of the Family Violence Protection Act2008 (Vic) and he could make a finding that on the balance of probabilities there was an act of family violence.
Magistrate Alger then referred to the impact on the children of being involved with the Jehovah’s Witnesses and the maths education by the father. He said that neither of those were problems in themselves but that having observed and heard the father give evidence, he formed a view and said the following:
“In my view he is a person with some quite rigid and inflexible view about certain matters and in respect of this case, regarding the importance of his children receiving maths education, and the children being involved with the Jehovah's Witnesses. Now, I must emphasise that neither of these things are per se, a problem in themselves, nor that by themselves they could or do amount to acts of family violence. And indeed, I make the observation that I accept that a parent has a right to reasonably inculcate their children with matters or about matters that they believe to be important to the child's life, including things such as education and religious beliefs. But I have heard evidence which I accept of the respondent taking a hard line approach to the children doing maths at home, to the extent that on occasions he became angry, upset, and sometimes was abusive towards the children and denigrating, causing them to become upset. Especially with young children, I'm satisfied that becoming angry, and denigrating and abuse and causing them to become upset is conduct which is capable of being, and in this case I would categorize as act of family violence, in as much as it is emotionally abusive and potentially also coercive.”
He went on to say that given the father’s “hard-line views” about those issues he found, on the balance of probabilities, without an intervention order there was a likelihood of such events happening again and he further formed the view that the children should be included on the order as protected persons.
Both parties were represented by counsel in those proceedings who made submissions about the duration of the order and which conditions should be imposed. Magistrate Alger made the order for two years. He declined to make the order as suggested by the father’s Counsel that the children only be subject to conditions one and two of the intervention order. Magistrate Alger considered it appropriate that the children be covered by the full conditions of the order. The order includes the usual exception for family law orders. The only change to the interim orders was the removal of the order permitting the father to attend the home to collect his belongings in the presence of police and that issue had already been addressed and was no longer applicable.
It is a significant factor under s.60CC(3)(k) that a final intervention order has been made after a contested final hearing.
Both parents are on temporary visas. The father says that they talked about the difficulties they would face with respect to their immigration status if they separated. The father claims that the mother is exaggerating her claims of family violence for immigration purposes.
The father denies ever being abusive to the mother and says that the mother would complain about the way he spoke to her and that he did not listen. The father says at paragraph 34 of his affidavit filed 7 September 2018 “I would try to listen to her but sometime she said things and made proposals to me that I thought were illogical.” He says he would sometimes get annoyed that he would walk away if he was angry and spend time on his own.
The mother is receiving counselling assistance through the Berry Street program. She says that her fear has gotten better and that the two year intervention order also helps. She says she would be afraid if she saw the father at school.
The father’s Counsel suggested to the mother that as she had not seen the father for several months her fear was much less. Of course that does not follow at all. The mother replied that when she does see him she is afraid. She saw him three weeks ago for the first time outside of court proceedings at a shopping centre. She said she knows there is an intervention order but that she was still afraid. She usually tries to make it easy for him and gets out of that situation.
The father’s Counsel asked the mother an extraordinary question, asking the difference between a look and a glare. If Counsel had been able to see his client’s demeanour whilst the mother was giving evidence he need not have asked the question.
Religion
The father is a Jehovah’s Witness, as is his family. The mother says she became a Jehovah’s Witness shortly after they married. During the marriage they went to Jehovah’s Witness meetings as a family. Most of their friends and family have the same beliefs and the mother says they were not encouraged to associate with others who were not Jehovah’s Witnesses.
The mother stopped going to the meetings with the children after she and the father separated. The mother says she has been pressured by other Jehovah’s Witnesses to forgive the father and reconcile with him. She then goes on to say that no one from the Jehovah’s Witness communities talk to her or the children and she feels ostracised and no longer wants to be a Jehovah’s Witness.
The children attend a Christian school and receive religious instruction there. The mother says that she understands that this is a difficult issue because the father and his family have strong religious beliefs. She says Jehovah’s Witnesses have very strict rules and do not celebrate birthdays or other holidays. She says she would like the children to be exposed to a variety of religions and for them to make up their own minds when they are older.
The father denies that the mother has become unwelcome in the Jehovah’s Witness church community and says that she removed herself and it was her decision to stop going to church. He then said that the fact that the children no longer have a spiritual life would be a concern for any parent and he is disappointed as his spirituality is an important part of their lives and he would like to raise his children with the truth about God. He agreed that he has asked the children a few times about their faith since they stopped going to meetings and said that it is the life that the children have always known and that “it is very important to us.”
He agreed he talked to the children about the importance of reading the Bible as they were not attending meetings. He also agreed that he showed them a website on [X]’s iPad and said he needed to remind them of their religion. He then said that [X] took a picture of that website of his own volition. He also agreed that the contact worker talked to him about this and he said he thought that she was expressing her personal opinion when he told her that it was a very important part of their lives. He agreed that she told him it was inappropriate to talk to the children about this as they had no choice about going and he replied that that was her personal opinion that he told her that it is a matter of spirituality. The mother’s Counsel asked him if he ever thought that the children do not want to attend meetings. The father replied “no if their thoughts about meetings are changed in any way I would worry”.
He denied that his discussions about religion during contact visits made the children uncomfortable and he said that there was nothing that was not positive about those discussions and that he would worry if the children were uncomfortable about spiritual talk. He confirmed that he told the supervisor that if he could not talk about religion to the children he would not attend the visits. The father said that it would certainly take away from the visits as he wants to see the children but also wants to talk about religion with them.
At paragraph 34 of the family report the report writer records [X] telling her that he was uncomfortable about the father’s enquiries about attending Jehovah’s Witness meetings. The father said he was shocked that that was [X]’s opinion and felt saddened and that he was probably misguided. When asked if that made him decide if there was a better way to discuss religion the father said “not at all he is a child he needs to be guided”. He said he would worry if the children decided not to be part of that group [the Jehovah’s Witnesses] and he said “I am not trying to get them to belong to where they were born into that community. Their lives are currently disrupted”.
Physical discipline of the children
The father says that when living in Country B both parents would occasionally give the children a smack as discipline and that it was not needed very often. This was culturally acceptable in Country B and he says both parents were aware that it is not acceptable in Australia.
In her trial affidavit the mother says that during the first few months of their relationship in 2007 they were not living together but the father would stay at her house most nights. She said that [X] had his own bedroom but often slept in her room. She says the father did not like that and would hit [X] if he tried to come into her bedroom. She claims that the father would hit [X] with a belt and says that between 2007 and 2013 she thought this happened about 100 times.
Children’s education and father’s tutoring of the children
In his trial affidavit the father refers to the importance of education to him. He says he has always been very interested in his children’s education and makes time to assist them and encourages them to do their best.
The father says that the mother complains about the way he tutors the children but education is very important in his culture as it is the best way of improving one’s prospects of a better life. He goes on to say that if he did not excel at school when he was a child he would sometimes get a “knock on the head”. The father says he does not endorse that approach but has told the children about his childhood and has told them that having extra lessons up to twice a week is not bad. The father annexes the children’s 2017 and 2018 school reports.
The mother says that from late 2014 the father began holding maths sessions for the children because he did not think that the education in Australia was high enough. He obtained maths books from Country J and would give the children lessons most nights. She said they were complicated maths problems that the children had difficulty understanding. She says that the father would often call the children “stupid”, “dull”, and “useless” when they could not answer the question. He insisted that they stay in their chairs until they got all of their problems correct. The mother says that [Y] would often sit there crying. She says that when she tried to intervene the father would say “don’t talk while I’m talking stop you are spoiling the kids”. The mother says she soon realised that her intervening made it worse for the children.
She says she was scared to intervene when she saw the father hit [X] on the head with his knuckles which she says she saw occur during these maths lessons four or five times in the course of the year . She said that the father would also threaten the girls with his fist and say “do you want me to break your head”. The mother says he also would say to the children that they would end up like her if they did not study.
The mother says from the time that the children and she moved to Melbourne in … 2016 until … 2016, when the father moved to Melbourne, the children were happy and the maths lessons were not taking place. The maths lessons started up again in … 2016. The father told the mother he would stop the lessons if the mother paid for school fees and ran the sessions herself. She says she borrowed $8,000 from the father telling him it was for a business venture which she then paid to the school for the fees from January 2017 to June 2017. The father stopped the lessons during this period. During that time when she could no longer afford to pay the school fees the lessons started again and were more intense. The father said he knew the mother had money and that the mother borrowed money for the business and not to pay school fees.
The mother says that in March or early April 2017 when the father was doing maths homework with [Y], she had been crying for over an hour and the mother tried to get him to stop. She says the father got angry and said to her “I have been holding back from hurting you for the past nine years” and “I will kill you and I don’t care if I go to jail”. The children were present.
The father denies threatening or bullying the children during tutoring sessions with them. He says sometimes the children would complain because they wanted to do other things and that he would insist that they finish the lesson first.
The father says the mother often interrupted his tutoring sessions and complained about his teaching method. On one occasion the mother interrupted the father when he was helping [Y] prepare for the Naplan test. The father says he spoke sternly as he was annoyed at the “intrusion”.
The mother says that the father’s maths lessons have negatively impacted the children and that [X] is not confident at maths in particular.
The mother wants the children to remain at School G for the remainder of their education.
The mother’s Counsel suggested to the father in cross-examination that he is concerned that the mother is not guiding the children’s education. He said that her standard of education is different to his. He agreed that he has been giving the children maths lessons at home since 2014. It is important to him that the children know that if they work harder they can probably obtain their goals and if they do not work harder they will not.
The father said the maths lessons lasted for about an hour. He denied teaching the maths lessons five times a week. He said it was perhaps once or twice a week and in some weeks there were no lessons. He denied not allowing the children to move from their chairs and said they were not allowed to leave if they did not finish their work. He agreed that sometimes [Y] would cry because she did not want to do the work but said he was not so strict with her.
He denied hitting [X] on the head in late 2014 and denied hitting him on at least five other occasions as alleged by the mother.
He also denied that there was an incident in April 2017 when the mother says that she intervened after [Y] had been crying for an hour. He denied becoming angry and threatening to kill her. The father said that the mother intruded on the sessions and so he would ask her to back off.
It was suggested to the father that [X] reported many arguments and [Y] crying because of him shouting and saying that if the mother did not leave he would do something bad. The father replied that he recalled reading that in the family report and was surprised. He said maybe [X] felt that way but he was not sure and he could not make that call.
The mother’s Counsel again suggested that [X] disclosed the father shouting at the mother and telling her that if she did not leave he would do something bad to her. The father said that as he had said previously he told the mother to back off and that she was sending the wrong messages to the children.
The father denied threatening the children and said the children were very confident. He denied threatening the girls with his fists and telling them that he would break their heads. He said he read the s.11F report with shock when [Y] told the family consultant that the father scares her when he threatens the mother. When the mother’s Counsel asked the father if his position was that it was all lies, he replied that he was not sure, but to bear in mind the children have not been with him and he cannot tell what the mother has been infusing in them.
The father said he told the children on previous occasions that when he was a child he would get knocked on the head if he got a question wrong as that was part of his childhood but he did not do that to them. He said the police were misled by the Department. He said he is aware that in the reports the children are recorded as saying they feel unsafe with him but he queried what led them to say that.
He recalled reading [X]’s comments in the family report that he is very scary. He said that was not true. He said he would express disappointment if they did not do the work, but would not call them wicked and suggested that maybe they had been schooled to say that.
He agreed that the mother had asked him on many occasions to stop the lessons.
The mother says the father has never attended parent teacher interviews and was always invited including when they were married.
The mother agreed that at first she was supportive of the father’s maths lessons, supportive of the children learning and was happy for the father to teach them but got worried when the children started crying. She says that [X] gets very stressed when doing maths now and becomes teary. She said she started to speak up when the children became uncomfortable. The mother said she interrupted the lessons when it became too much. She says the father would show them once and then leave them to do the work and that he would walk off but when the children would cry he would come back and berate them when they could not work it out. It was on those occasions when the sessions went on for so long that she would interrupt the father. The mother also said that during school holidays the father would set them work to do whilst he was at work and that she would sit with them and try to help them with that work but some of it was too complicated for her. She said when he came home from work the children would have to show him their workbook. They would get nervous if they could not explain an answer and he would get upset with them and upset with her as well.
The father’s rigidity
My impression of the father is that he is a rigid man with fixed views. This was apparent at numerous points during the father’s cross-examination and also through his demeanour throughout the proceedings, particularly when the mother was being cross-examined.
The father agreed in cross-examination that when the parties separated he initially proposed making payments for the two girls but not for [X]. He agreed that was his position at the time and said it was because the mother was making parenting [X] almost impossible and referred to [X] being adopted.
When cross-examined about the argument which led to the police attending the home, the father denied that [Y] was frightened. He denied approaching the mother with a knife. He said the police attended about 15 to 20 minutes later and expressed surprise as to why they were there and told them that they should not argue in front of the children. When asked if he was aware that the police contacted the Department, the father said he was not and expressed surprise if they had. He did not think it would have been about that situation. He denied that the police asked him to leave the house. He agreed that the police applied for an interim intervention order protecting the children.
The father denied stealing the mother’s diary. He said he stumbled across it in their home office and what he read was quite shocking. He made copies of what he read as it was clear the mother was on a mission and he annexed those pages to his affidavit because he thought it gave insight as to what her motives were. Somewhat extraordinarily when the mother’s Counsel put to him that he invaded the mother’s privacy, he said he was not certain.
Supervised contact
The father says that the children have asked many times when they can see him under normal circumstances. He says he has requested unsupervised time through his solicitors and refers to the observation reports. He says that the mother refused his request because he had not completed a men’s behavioural change program. Significantly at paragraph 20 of his trial affidavit the father says:
“the matter of my attendance at a behaviour change program was previously deliberated in court and the court did not mandate it. In circumstances where the Mother’s allegations are unfounded, I do not see reason why I need to seek counselling, I participated in the Post Separation Parenting Course at the Family Relationships Centre in Suburb E.”
This was consistent with his attitude when cross-examined.
There are two affidavits by Ms K, an employee of the children’s contact service annexing the observation reports of the father’s supervised time. She was not required for cross-examination.
The first visit took place on 22 December 2017. It describes positive interactions between the children and the father. The father asked the children if they brought their school reports with them. They did not but [X] told him their reports were good.
The subsequent visits also describe positive interactions with all of them playing games and the father showing interest in the children.
At the visit on 5 April 2018 the children spoke about their school reports.
The father talked to them about the importance of reading the Bible as they were not attending meetings and talked about a website they could access on their iPads. They then moved on to other topics and played some games.
At the next visit on 8 April 2018 the father asked for their school reports. The children said they forgot them. The father also asked the children if they had been to any meetings.
On 26 May 2018 the father again asked the children if they had attended any meetings. The supervisor records the following:
“Mr Ingleton asked the children if they had been to the meetings. [X] said they had missed some as they had been doing other things. Mr Ingleton asked [X] if he had the number to call into the meetings as he looked it up on his phone. [X] said he thought he did but he would take it anyway and took a photo of the screen on his father's phone. The worker asked to see the screen shot and [X] showed her stating that it was the phone number for the meeting place they attend. The photo had details of the "Suburb L congregation". The worker asked what the meetings were and Mr Ingleton explained that they were all "Witnesses" and attended meetings regularly.”
After the meeting the supervisor told the mother about this conversation. The mother told the worker that it is an ongoing issue because she does not take the children to meetings anymore. The mother said that the children do not want to talk about it with their father. The worker told the mother the conversation was brief and the children did not appear distressed.
The worker also recorded talking to both parents about how the matter should progress. The mother said the father was required to do things pursuant to the court orders that he had not yet done. The father said that he does not need to do those things “as he runs the type of groups he has been ordered to do.”
The worker records the following exchange at the commencement of the next visit of 9 June 2018:
“Mr Ingleton arrived on time and waited in the children’s room. The worker spoke to Mr Ingleton about the conversations in relation to attending "meetings" being not appropriate in the visit. The worker explained that the children did not have a choice as to whether they were taken to the meetings or not and asking them about their attendance placed them in a difficult position. Mr Ingleton advised the worker that Religion was the most important thing in his life and the most important thing he could give to his children. Mr Ingleton said that if the children felt awkward it was because they were not attending the meeting and as a parent he needed to ensure that they did. The worker talked about the visit being a positive experience for the children and leaving these conversations aside for the moment. Mr Ingleton said that religious discussion were a fundamental thing he had to do as a parent and on this matter he could not negotiate.
Another worker explained that the children may be torn between what their father wants and what their mother does in regards to taking them to meetings. He explained that it was his fundamental right to encourage his children's spiritualty and as he only sees them here he had to do that. It was explained that we act in the best interest of children and believe that conversations regarding the children attending meetings should not be held at the service.
He said if he couldn't discuss religious matters at the service he wouldn't use the service.
He spoke of returning to court and the worker was advised him to discuss that matter there. Mr Ingleton said that in regards to the possibility of him having to move interstate for work he will know within the next month.
Ms Ingleton and the children arrived on time. The children sat and waited for the worker to finish talking to Mr Ingleton. The worker spoke with Ms Ingleton outside, letting her know that Mr Ingleton would most likely bring up with the children about attending meetings. Ms Ingleton said she wasn't surprised, but the children had felt anxious this morning about answering him. She advised the children to, "just tell the truth", as they have nothing to hide. It helped make the children feel better about coming today. The worker assured Ms Ingleton that if the children seem uncomfortable, the worker will move the conversation along to another topic. Ms Ingleton thanked the worker. She left, and the worker followed the children into the room where their father was waiting.
…
While the children sat and ate their lunch, Mr Ingleton asked [X] if they had been attending their "meetings". The girls nodded, and [X] replied that they haven't been attending because it doesn't fit into their busy schedule. Mr Ingleton then asked [X], "What are you doing that you can't commit to the calling'?" [X] informed his dad that he has been studying and the girls have been going to their friends' houses, Mr Ingleton asked all the children if they had been reading the Bible. [Y] replied that they had been reading the Bible at school and [Z] told her dad that she had initiated discussions at school about the Bible.”
During that same session the father asked the girls about their progress in maths. He took out pens and papers and worked on long division problems, laughing and talking with them.
At the commencement of the next supervised visit on 23 June 2018 the mother spoke to the worker about the previous visit and said that the children told her they tried to get the worker’s attention as they were uncomfortable when their father talked about maths and meetings. The worker told the mother that it was difficult as the parents had previously brought the children up in that manner and the parents would need to address it.
The worker spoke to the children about what to do when they felt uncomfortable. During the session the girls played some maths quizzes with their father whilst [X] played on his phone. The father did not mention meetings.
At the session on 7 July 2018 the father asked for the children’s school reports. They said they forgot them. The worker suggested he contact the school. The girls asked the father about Bible stories and they read the Bible together. They then all played card games.
At the visit on 4 August 2018 the father told the girls he had seen the school reports which were amazing. He told [X] he has some concerns about some inconsistencies in his report. [X] told him he was having some difficulty with maths. The father gave him some suggestions for getting assistance.
The conversation turned to religion. The worker recorded the following:
“[Y] called to her father to join them at the doll's house. Mr Ingleton came over to the doll's house and asked [Y] if she had called the "number for admission". [Y] said, "Not yet" and resumed her play. Mr Ingleton asked [Y] why she hadn't called and if she knew the number. Mr Ingleton asked [X] if he had called and [X] said that he was going to but hadn't yet. Mr Ingleton asked if he had the number and [X] said he had it in the back of his phone and started to look through his phone, Mr Ingleton said that he had been asking for several months now and nobody had done anything. Mr Ingleton asked [Y] if anyone read them the bible anymore, [Y] said her mother did and school did. Mr Ingleton asked [Y] if she had been on the JW .org site, [Y] said she had not. Mr Ingleton asked why not and the worker suggested that this was a difficult space for the children to navigate and asked that Mr Ingleton concentrate on playing with the children. Mr Ingleton told the worker that it was not difficult for the children and he did not want to come and just play with them. Mr Ingleton talked of it being important that he teach his children values and guide them and he was very concerned that they were not participating in their religion. Mr Ingleton explained that religion was the most important thing in their lives and if he could not talk about religion then there would be no point in the visits.
The worker said she did not want to make a big issue out of this but noticed that the girls looked uncomfortable and wanted everyone to enjoy their time. The worker asked the girls what they wanted to play with and [Y] said the puppet. [Y] and [Z] returned to their play and Mr Ingleton talked to them about school. [Y] talked about science and asked her father riddles. [Z] talked about food wastage and Mr Ingleton listened carefully. Mr Ingleton explained a number of science concepts to [Y]. [X] looked at his iPad and occasionally joined in the conversation.”
At the end of the visit on 8 October 2018 the worker records discussing “using the service in the community she said it will be good as he will not be having unsupervised time with the children.” This sentence is difficult to decipher. It is not clear as to whether the discussion was about continuing supervised time but for it to take place outside the centre or to move to unsupervised time. It was not possible to clarify this as the worker was not required for cross-examination. It is clear from the father’s evidence that he thought the worker was telling him his time did not need to be supervised. That is not consistent with exhibit C, an email dated 4 October 2018 from the contact centre informing the parties that another service would better accommodate the needs of the children.
During the visit on 20 October 2018 the father spoke with the children about the possibility of supervised visits taking place outside of the centre and where they might like to go. There were other visits which were uneventful.
The mother was cross-examined about the supervision. She wants supervision to continue and once the children are safe, she is happy for them to see their father. Her concern was not about whether it was supervised at a centre or not, just that it be supervised by an adult and that the children are safe. She agreed that the children enjoyed the positive interactions with their father and that most of the supervised reports are positive. The mother said she would not say that the children are happy to go but they do enjoy their time with their father.
The mother said she is not against the children spending time with their father but she just wants it to be safe. She said listening to the father in the past year and in court when he gave evidence, has caused her to believe that the father does not understand how he speaks to the children is unhealthy for them. She said that he also appears to have a lot of anger and that she worries about their physical safety because he is unpredictable. The looks the father was giving the mother while she gave this evidence was telling. Her comments about the father’s lack of insight are consistent with my own observations of him. At several points during the evidence of the other witnesses, the father would scoff and roll his eyes and had a general look of incredibility. It was difficult to tell whether he was showing honest disbelief or if he was putting on a show to overtly highlight that what was being said was not accurate. She said she did have some concerns about his time at the contact centre and that the children told her about the confrontation about religion. She said from what the children told her it sounded like he was being threatening.
The mother reported receiving a letter from the contact centre in October 2018 and said she thought there was a list of private supervisors in the community. She said as far as she was aware her lawyers were negotiating with his lawyers.
The father’s Counsel began to ask the mother how long supervision was needed and the father put his hand up and clearly wanted to say something. I invited his Counsel to speak to his client outside the courtroom.
When cross-examination resumed, the father’s Counsel suggested to the mother that there were plenty of times when she left the children with the father whilst she went shopping. She agreed and she said that the way the father plays with the children now at the contact centre is not how he would interact with them when they were in the relationship and that he would focus mostly on teaching maths or reading.
The mother said she was not surprised to read the positive observations of the children in the family report and said they enjoy their father’s company. The girls love their father and [X] has always wanted his attention.
The mother said she was not surprised when the children mentioned to the reporter that both parents get angry. She says she gets angry at times but does not call the children names and does not try and humiliate them. She agreed that they argued from time to time. The mother said that she left because gradually these arguments increased in intensity and crossed over into something threatening and the situation was getting dangerous. When the mother said this, the father visibly scoffed.
The father’s Counsel asked the mother about [X]’s comments in the family report that he feels a bit neglected by his father. The mother said at one point the father mostly interacted with [X] during the maths lessons and she spoke to the father when the sessions were getting worse. The father said to the mother that she could only say this because [X] is not his child and that she could not tell him what to do with the girls so he stopped interacting with [X] and that this went on for months. She said that she thought if she spoke to the father more he would see that these instances were hurting her and the children and that she tried to stick up for herself but then he threatened to kill her. In answer to the suggestion the father denies what the mother said, the father denies everything.
The father’s Counsel suggested to the mother that things have moved on in the 18 months since they separated and asked if there had been any joint discussions. The mother said that the father does not talk to her directly but has several people call her on his behalf. At this juncture I must say that my observation is that the father has not moved on at all.
The mother agreed they tried counselling but it was unsuccessful. When asked if she would attend counselling now, she said she would be willing to do anything to improve the situation for her children but she was not sure how that would work now they are in court.
When the father’s Counsel was cross-examining the mother he was unable to see his client whereas I had the advantage of seeing the father’s demeanour during the mother’s oral evidence. When the father’s Counsel suggested that it would be good if she and the father were able to trust each other more, the mother said that she thought they were beyond that at this point. She said that whilst she is not opposed to ever seeing him, in the corridor he glares at her and she is scared of him so she does not think that it is a matter of going to counselling but that he has to show that he is safe to be around. Given the way the father acted in the courtroom and the looks given to the mother, I have no doubt that he also behaves in that matter outside of the courtroom and that this would be frightening and intimidating for the mother.
The family report
Dr M prepared a family report which was released on 6 August 2018.
She comments on the positive supervised contact reports noting that the father comes well-prepared providing lunch and that the interactions are positive. She refers to the father asking about the children’s attendance at religious meetings and schooling because the children expressed concerns about this during the report interviews.
Dr M identifies the risk issues as being the mother alleging that the father was verbally and sexually abusive during the marriage and that he threatened to kill her in April 2017.
The father alleges that the mother has mental health issues and that she has made threats of self-harm in front of the children. The mother denies this and says she has been distressed because of the conflict in the relationship and with the father’s parenting of the children, in particular with respect to education.
The father alleges that the mother has alienated him from the children and denigrates him. The mother alleges that the father denigrates her in front of the children and the mother and children all say that the father calls them wicked.
Dr M identified the issues in dispute as whether or not the parents should exercise equal shared parental responsibility, whether or not the father’s time needs to be supervised and what time the parents should spend with the children.
She identified further issues, being the distant relationship between [X] and his father, [X]’s discomfort with his father talking about religion and the children’s reports of the father’s discipline, particularly during maths tutoring.
Dr M describes the father as placing high values on education and religion. He described his childhood in Country A where many live below the poverty line. His father was strict and violent.
The father told Dr M that he was shocked when the mother left the relationship and referred to not seeing the children for four months. He complained that his job and visa status was in danger because of the intervention order the mother has taken out against him and said he was convicted of breaching the intervention order because of having people contacting the mother on his behalf. He said he had been offered work in Queensland but has been unable to take that up because of pending allegations and the intervention order.
He said he was due to commence working in Queensland on 23rd of July 2018 and said he could have supervised visits once a month to spend time with the children on weekends.
The father expressed concerns about the mother not guiding the children in their education and said that the mother showed disrespect and contempt towards him. He says the mother was obsessed with wealth and did whatever she liked during the marriage. He denied her allegations of family violence. He said the mother had mental health issues, particularly anxiety and depression. At this point Dr M observed that the father had difficulty understanding that some of his actions led to the relationship’s demise rather than the mother’s mental health.
The father said that he reads the Bible daily, attends Jehovah’s Witness meetings five days a week and that he “leaves everything in God’s hands”.
Dr M described the mother as personable, happy and articulate. She described a long history of conflict in the relationship and wanting to leave the relationship on many occasions. She says she felt pressured by the church and that when the conflict escalated she felt intimidated and broken and sought community supports for herself and the children.
She said the father threatened to kill her and she spoke about the father’s treatment of the children particularly when he was giving maths lessons. She described lessons going for over one and a half hours with the children crying and being visibly upset. The mother says at first she tried to ignore the lessons and that when the children were crying she tried to intervene and that the children would give her pleading looks when they could not give the correct answers. She said this increased the conflict between them and that on occasions during the lessons the father would hit [X] on the head. Dr M notes that this is consistent with [X]’s reports to her.
The mother said she is not anxious or depressed but saw a general practitioner because of the stress of the relationship. She has been receiving fortnightly counselling with a clinical psychologist at Berry Street.
The mother says that after she intervened the father ignored [X] and did not talk to him and focused on the girls.
She expressed concerns about the paternal grandparents’ values and that when they visited the family prior to the separation, the paternal grandfather was aggressive and on occasions hit her, shouting “what type of parents argue, they should be helping you’’. The mother said instead of the father supporting her he colluded with his parents and she said that his passive and overt aggression towards her and the children increased.
The mother said the father’s time with the children, particularly the girls, was going well but she was concerned that the father had refused counselling during the relationship and was denying that there had been any family violence.
The parties gave very different descriptions of their relationship to Dr M. The father’s response to the allegations of family violence said “it depends on the definition you read, it is not unique to us… We had arguments”. He denied hitting the mother and threatening to kill her but he did say that the arguments would be heated at times. He complained that the mother is using the system to her advantage and plotted to leave him. He said both parents hit the children in Country B but neither parent hit the children once they moved to Australia. He denied being sexually abusive of the mother.
The mother said during the relationship she felt like she could not do anything right and felt unequal. She described the father as dominant and forceful.
The father told Dr M that the recommendation in the s.11F report that he attend a men’s behaviour change program was inappropriate given his work as a health care worker. He said he often provided that support to his clients. It is unclear what he means by this.
The mother said the children are on the waitlist for the counselling program called Restoring Childhood at Berry Street. She said that [X] needed the most help with the separation and the girls needed an explanation about the separation.
Dr M described [X] as emotionally sensitive who at times cried during the interview when speaking about his father talking to his sisters but not to him. Consequently he said he did not want a relationship with him but was still worried about letting him down and disappointing him. Dr M commented that he appeared to be longing for a father figure with whom he could have a meaningful relationship with.
When asked about supervised visits, [X] called his father a liar and said he was uncomfortable when his father asked about their attendance at Jehovah’s Witness meetings. He thought the father was trying to get back together with his mother through these groups and was angry about the father bringing up the Bible. [X] said he did not want to be part of the Jehovah’s Witness group.
[X] said he started feeling neglected by his father from the time he was 10 years old. The father engaged with the girls and not him. He felt left out. He was glad when his parents separated as his mother was always stressed and his parents argued about money and other things.
He feels close to his mother and feels she is supportive of him. He does not think his father cares about him.
[X] described his father as a disciplinarian with respect to education, commenting that “dad went too far and screamed at us if we got one question wrong, or put a knuckle to my head, threated to beat us”. He recalled his father beating him with a belt before they moved to Melbourne. He reported that both parents hit the children when they were younger. Before his parents separated his mother would also yell at them but his father would call them names including devil and evil.
Dr M described [Y] as a happy, engaging child. She spoke of her parents arguing and that she would go upstairs and cry. She said her father hurt her mother and when asked to expand on this, she said he “emotionally hurt mummy - she was sad and hurt, as dad was angry”. [Y] said that both parents got angry and shouted and both parents smacked the children when they did something wrong. She said her mother is “a little bit scary” and her father is “very scary.” She recalled being scared when the police attended the home when she was home from school.
She described spending time with her father at the contact centre as being mixed. She enjoyed having fun and playing games with him but was uncomfortable when he shouted and got angry. She enjoyed cooking and having fun with her mother.
[Z] was also an engaging, happy child. She enjoys school. She said she does not remember her parents living together. She enjoys spending time with her father but would like a more natural environment. She said her mother gets angry sometimes and her father became angry when they were doing maths and would yell and call them wicked.
The observations of the girls and their father was positive. [X] was less engaged but was sad that the father was not engaging with him as he was with the girls. Dr M said that the father was not attuned to [X]’s feelings. She said [X] appeared sensitive when watching the father and the girls’ interactions and “appeared to want to belong”.
The children were happy to be reunited with their mother. The mother and children appeared “close and emotionally connected”. The mother was responsive to the children’s cues and needs.
In her evaluation section of the report Dr M records the following at paragraphs 47 to 50:
“Mr Ingleton denies perpetuating any family violence. It is the writer’s understanding that it would be very difficult for Mr Ingleton to admit to any acts of family violence, as the consequences for him may impact on his visa status and his occupation. The writer was concerned to hear that Mr Ingleton had applied for employment in Queensland: his actions are not consistent with his proposals to spend time with the children five nights a fortnight.
From the interviews with the children, they report exposure to family violence and at times physical punishment from both their parents, when living in Country B. According to the reports of the children, their parents’ verbal conflicts escalated since living in Melbourne, reportedly triggered by financial issues. The children and mother report that the father’s method of teaching and disciplining the children was authoritarian, punitive, and often ended in verbal abuse and hostility. [X] also reported his father putting knuckles in his head when he answered incorrectly. In considering the father’s time to move from supervised to unsupervised, there are several concerns. It is unclear if the father will refrain from using these teaching and disciplining methods if the children are in his care. Also, conflict could arise if the children were made to attend meetings with the Jehovah’s Witnesses, as raised by [X] at interview.
The children’s reports of the father’s conduct during math lessons at home were consistent with the mother’s allegations. The children’s accounts were authentic and did not appear coached: each child had their own subjective experience of these encounters with their father, and this has resulted in the children experiencing mixed feelings towards him. [X]’s relationship is more fractured with his father that his sisters’.
It appears that Mr Ingleton’s family of origin and his own father’s high expectations in relation to schooling may have contributed to his children experiencing him as harsh and punitive when it came to their studies. It would be helpful if Mr Ingleton could instil his values around education in a way that the children found helpful and nurturing, which would in turn reinforce and encourage in them a desire to learn. It is recommended that Mr Ingleton attend upon counselling to discuss the impact on the paternal grandparents on his own values and way of parenting.”
Dr M expressed concern about the father having practical difficulty in meeting consistent commitments for the children and expressed concern about the father if he considered moving to Queensland which would have further practical difficulties in spending regular and consistent time with the children. She notes the number of moves the family has made. The children are happy at school and in their mother’s care, who has been their primary carer. The children experience their mother as available and attuned to their needs, whereas all the children reported their father as disciplining them in a way that was scary which “has impacted on their sense of trust in him.”
Dr M expressed concern that the father “could not acknowledge that the conflict, his methods of discipline, and his interactions with his family were experienced as abusive”. Until the father addresses these concerns and develops insight into how his behaviour affects the children, the risks to the children in his care remain. The father does not have this insight but blames the mother having mental health issues and not supporting his values with respect to education. Dr M observes the father to be well educated, intelligent, creative and loving if he addresses the protective concerns, but notes that the father has not addressed the protective concerns outlined by the Department.
The family report writer’s recommendations
Dr M made several recommendations including that the father see a psychologist to address his behaviours and attend a Caring Dads Plus Program. She recommended that the father’s time continue to be supervised until he addressed the protective concerns raised by the Department.
The father said he did not agree with those recommendations and suggested that before that session she had not read his affidavit so he was not sure how she reached those conclusions. He said he is a health care worker and a large chunk of his work includes psycho education.
He agreed that he had read the Department’s recommendations about him attending courses and he felt that they were putting him in a box that he did not belong in. He then said that people get assistance for problems and that he does not have any mental health issues, but rather he feels strongly about religion and education and does not think a psychologist should tell him not to express those views. He said he would be surprised that the reason the reporter was recommending he attend a psychologist was because of his emphasis on maths and religion. It was clear from his evidence that he did not take on board the disclosures of the children of being afraid of him as being a reason for his undergoing psychological treatment. He acknowledged reading those statements and feeling saddened by them, but it is clear that he does not accept that the children are afraid of him. The father also has great difficulty accepting that there are legitimate views that do not accord with his own.
The father said if he was ordered to attend by the Court he would because it is a court order and he would not breach that. However, he does not think it is necessary as he does not have any history of mental health issues whereas the mother has a history of depression and her family has a history of mental health issues.
Cross-examination of Dr M
Dr M confirmed that she has read the affidavits filed for the trial and the case outlines. She agreed that the contact notes were extensive and that it appeared that some progress had been made since December 2017. She was referred to exhibit C which is correspondence from the contact centre dated 4 October 2018. In that email Ms N from the centre informs the parties’ lawyers that she had spoken to the parents about using a community based service. It is clear that she was referring to supervised contact services that can supervise in a variety of locations.
Dr M did not agree with the father’s proposition that it is now appropriate for there to be unsupervised time. She said that there were a number of steps that need to be taken so that the children would not be at risk and that the likelihood of them experiencing dogmatic parenting practices was diminished. It would be good to work towards that and consider either substantial attendance or the engagement of a therapeutic counsellor.
The father’s Counsel filed submissions in reply arguing that education is very important to the father, which I acknowledge. He also submits that the family violence occurred during the relationship and that there is no evidence that the children have been subjected to family violence post separation. These submissions miss the point. The father has spent limited supervised time with the children. The interactions between the father and children at the supervised contact centre have been positive for the most part. Family violence towards the mother is also a relevant consideration. I have referred to the father’s rigidity and domineering attitude and inability to consider views of others that do not accord with his own. The father will not be excluded from meaningful involvement in the children’s lives by the mother having sole parental responsibility with respect to the children’s education, religion and health. It would be unworkable to expect the parties to be able to communicate about these issues and reach decisions together on the current state of the evidence.
Conclusion with respect to the parenting issues
At the conclusion of the trial the parties’ positions had changed and both sought that interim parenting orders and not final parenting orders be made.
They reached an informal agreement about the way forward being family therapy and for the father’s time to progress outside of the contact centre provided an independent person could be in substantial attendance. They did not seek orders to be made as they needed to make enquiries as to who could supervise.
I caused the matter to be relisted on 20 May 2019 after asking my staff to make enquiries as to whether the parties had reached agreement as to the way forward with respect to interim parenting orders, as they had not when they filed written submissions.
On 20 May 2019 they reached agreement with respect to these issues and I made interim orders.
Financial issues in dispute between the parties
At trial the mother sought that the father pay her the sum of $24,000, I pointed this out during the hearing. The difficulty with this aspect of the mother’s case is the inability to point to a source of funds. In her written submissions she reduced this sum to $4,800.
It is the father’s case that there is no property to divide apart from a modest amount of superannuation. He submits that it would not be just and equitable to make any property orders. The parties have virtually no property to divide. The mother has property in Country B but I do not have evidence as to value. I am satisfied that the only property order I should make is a declaration pursuant to s.78 of the Family Law Act that each party keep what they have in their possession.
The mother seeks periodic spousal maintenance in the sum of $400 a week for four years.
The father opposes a final maintenance order being made on the basis that he is paying child support and all of the children’s school fees in addition to paying the costs of family therapy.
The father says that in about 2011 the mother decided to open a business in Country B. He says after about a year he could see that the business was not sustainable.
In early 2012 they talked about moving to Australia where they would both have better career opportunities. They decided to move to Tasmania and the father secured a job there. The father completed the health care examinations, pre-employment structured interview, registration and other immigration requirements so that he could work in Australia. He moved to Tasmania in about … 2014 and the mother and children followed in about … 2014.
The mother says that she was unable to find work in rural Tasmania where the father obtained a job as a health care worker and felt isolated there.
The father claims that the mother hated Tasmania because it was boring and not busy and wanted to move to a bigger city such as Melbourne. The father says that as he wanted the mother to be happy he applied for jobs in Melbourne and obtained a job there. The mother and children moved to Melbourne first whilst the father remained in Tasmania working and travelling back and forth to spend time with the family. The father moved to Melbourne in … 2016. The mother denied hating Tasmania but said she wanted some space in the marriage as things were really tense in Tasmania.
The father claims that the mother was interested in money and financial status and thought that they would lead a wealthy lifestyle given she had married a health care worker. He says the mother has a distorted view of his income which he has repeatedly tried to explain to her. He said the mother refused to take steps to register as a health care worker in Australia claiming it was too expensive and daunting.
At paragraph 37 the father annexes to his affidavit private diary entries of the mother and refers to a quote she wrote where she says “I do not have a spending problem, I have a money problem” and “I will be a billionaire there is no other option.” He also annexes another entry where the mother has written “magic checks” to herself from the “gratitude bank of the universe.” He says the mother repeatedly complained that the father has a “negative energy” and a “pauper’s mindset” and told him that you can wish for things with positive affirmations. He annexes copies of affirmations she wrote out repeatedly. The father says he understands the benefit of positive thinking but he also places importance on the value of hard work and the children applying themselves in order to achieve their goals.
The father’s Counsel cross-examined the mother about her diary notes. She said they have been taken out of context. She agreed she would tell the father that he had was negative when he put down her opinions. She told him to stop breaking her spirit and that he was a wet blanket. I do not place any significance on these diary entries which were clearly not meant for anyone else’s eyes.
The father says he has always financially supported the family during and after the relationship.
The father says that in the past year he has had to take up extra work opportunities in order to meet his financial expenses including the children’s private school fees and spousal maintenance. He established a company called Company O Pty Ltd in order to carry out his work and says he has travelled interstate for this work. He says it is not sustainable for him to continue to travel interstate for work when he starts spending more time with the children.
The father says that the mother has substantial assets in Country B which she has not disclosed, including two houses which are being rented out providing the mother with a source of income. The father says the mother has failed to provide documents and failed to provide evidence of a trust that she alleges she is holding her property on trust for [X]. The father annexes some documents with respect to the properties in Country B.
The mother also claims that the father has an online business in Country A and owns a property in Country A.
The parties were living in Tasmania and initially the father gave the mother $350 a week for groceries and expenses for the children. He later increased this to $500 per week. When she and the children left Tasmania in January 2017 he increased it to $750 a week.
The father stopped making the payments in September 2017.
The mother says she inherited a few small parcels of land from her parents in 2004. She says most of these have sold and the money was used for the parties to travel, to pay for their studies and to start up her businesses in Country B and Country A. She says she has one property in Country B which she says she holds on trust for [X]. She does not annex any documents in relation to this property to her affidavit.
The mother says that in August 2016 she received $44,000 from the sale of a property in Country B which she used to pay for medical expenses, food, clothing, a car and household items.
The father agreed that the mother made financial contributions, that there are outstanding debts and that for the first few months of their relationship he supported them, but once he started working that changed.
The mother says she and the father paid a deposit of $40,000 for a house in Suburb P. She says she paid the deposit from her inheritance. The sale did not go ahead and she received $15,000 and the father received $25,000.
The father was cross-examined about his income. He takes home about $145,000 a year from the Suburb Q employer and in addition carries out casual work which is variable work but also well-paid.
The father says he has had to do a lot of casual work to meet his financial obligations including paying private school fees, child support maintenance and legal fees. He said payments for the children are a priority for him. He said the mother has the private health insurance cards for them and that there is no issue with him assisting with payments for the children. He mentioned that if the dentist has made an assessment about what his child needs he is not going to wait and he would want to be involved in the discussions with the dentist and the decision-making about treatment.
He agreed that he considered going to Queensland in July 2018 after being offered a permanent position with guaranteed income of $90,000 a year, but that that fell through because of his visa status.
The father also agreed that between June and December 2018 he sent a number of payments overseas and said he has family and friends overseas. Some of these payments were for significant amounts totalling several thousand dollars. This is something he did before the parties separated as well. He said that he would send funds to his ageing parents, to his sister who lives in Country A and also childhood friends. He said he would hear people’s stories and he would need to help.
The father’s Counsel sought to ask the father several questions in re-examination about his current financial status where it is clear that if there were significant changes such as tax owing, the father should have filed an updated financial statement.
The mother is working casually as a health care worker. She says she works directly for clients and there is no agency involved. She currently has three clients and works about 10 to 15 hours a week. The father’s Counsel suggested to her that there is plenty of work available. She replied that she has been trying.
The mother has started studying so that she can move into a health care role which would increase her earning capacity. She said with her current visa restrictions she cannot get work with a new company or agency because there is no timeline on her Bridging Visa. This makes sense and indeed the father ran into problems with his visa with his proposed employment in Brisbane. She also said it is difficult to work full-time when she has the care of the children and does not have any family support here.
The father’s Counsel cross-examined her about property she owns in Country B. The mother discloses in her financial statement that the value is unknown. The mother said she does not know the value because the property has not been accessible to her for some time. She says when they moved to Australia in 2014 there were two loans attached to the property. She said it is her family home. She says they rented the home before they left so that the loan could be repaid but that once they were no longer there it became messy. She says the bank put it into foreclosure. There is a store attached to the property. The mother says that half of that is held for [X]. The evidence with respect to this property is vague and unsatisfactory.
Legal Principles applying to property matters
Until the High Court decision in Stanford & Stanford (2012) 247 CLR 108, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court considered the operation of s.79 of the Family Law Act in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
“It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
1. Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
2. Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
3. Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.
The High Court also pointed out that what is just and equitable is different in every case. The father has superannuation entitlements totalling $21,002. He mother has superannuation totalling $5,209. Both seek a superannuation split from the father’s fund. The parties’ legal and equitable interests are modest. They both have credit card debts and the father has a tax debt. They will be responsible for their debts. Both parties have a car which they will retain. The mother also has her interest in the property in Country B.
In his written submissions the father seeks the following order with respect to superannuation:
“there be a splitting order whereby $10,000 be transferred from the Father’s superannuation fund to the Mother.”
This order is of course completely unenforceable for a number of reasons including that it is in the passive voice, without a timeframe and makes no reference to the father’s superannuation fund. As it appears the father’s legal representatives have not drafted a proper superannuation order, I assume that they have not accorded the father’s superannuation fund’s trustee with procedural fairness.
The father’s case outline filed in advance of the trial was drafted in the same form.
The mother’s case outline does have a superannuation splitting order that is drafted in the proper form. I do not know if her lawyers have accorded the superannuation trustee with procedural fairness.
I am satisfied that it is just and equitable to make a superannuation splitting order in favour of the mother. I will require the parties to file a superannuation splitting order in proper form together with evidence that the superannuation fund has been accorded procedural fairness within 60 days. Taking into account modest amount of superannuation and the lack of property to divide, as well as the father’s higher earning capacity I will order that the father pay $15,000 by way of a superannuation splitting order for the mother.
Maintenance
Section 72 addresses a spouse’s entitlement to maintenance. The court must consider two limbs. Firstly that the spouse seeking maintenance has established that he or she is unable to support himself or herself adequately because of having care and control of a child under 18, by reason of physical or mental incapacity for employment or for another adequate reason. Secondly that the other spouse has the capacity to pay. The Court is to have regard to the relevant factors listed in in s.75(2). Section 74 empowers the court to make an order for maintenance that it thinks proper.
The mother says she cannot afford to re-train as a health care worker in Australia as it would cost about $24,000 a year. She has been studying. She has been doing some casual work with the employer.
The mother wants to study a course which she estimates will cost around $6,000 to complete.
The mother seeks an order that the father pay spousal maintenance in the sum of $400 and to make a lump sum payment to the mother in the sum of $4,800 to assist the mother requalify. In her trial affidavit the mother deposes completing her studies through the … Institute and has commenced a certificate course. It will take one to two years to complete. The $4,800 she refers to is the fees for that course. She says she has entered into a payment plan where she pays $364.00 a month until January 2020. She says that after she completes her Diploma she wants to do a Bachelor degree. The mother does not refer to what income she expects to be able to earn upon completion of her Diploma and her Bachelor degree.
The mother said that currently she receives $2,837 a month in child support from the father. That was just reviewed a few weeks prior to the trial.
She said the reference to education expenses in her financial statement is not for the school fees which the father pays but for registration fees and items such as camping which the father does not pay for.
The father opposes paying the mother maintenance. In his written submissions he argues that the mother has a capacity to work and received significant benefits.
The father’s written submissions with respect to maintenance were sparse. He says that the mother exaggerated her expenses. I am not satisfied that this is the case. He also referred to her figures being estimates. Of course that is to be expected in financial statements.
The father’s weekly income is $3,380 which is made up of his salary from the employer he works at and his casual work. The mother’s weekly income is $1,409 made up of $300 in wages, $400 in maintenance and $709 a week in child support. For the purposes of considering the mother’s need for maintenance, I must disregard the child support and the expenses the mother claims for the children in her financial statement.
The father says the mother could work more hours. There is no evidence with respect to this. The father referred to uncertainty with respect to his employment because of his visa status. The same applies to the mother. She is not entitled to Centrelink benefits because of her visa status. Any income tested benefits received for the mother would be ignored for the purposes of considering maintenance.[2]
[2] Section 75(3).
In his written submissions the father submits that even without maintenance the mother will receive an income of $58,000 a year. That includes the child support she receives. The income she earns from her work is $15,600 a year.
Both parties show a shortfall in income to cover expenses on their financial statements but do not refer to how they are meeting this shortfall. Both have credit card debts and the mother deposes to a small personal loan. The father also deposes having a $20,000 debt for legal fees.
The father says he cannot afford to continue to pay maintenance to the mother as he has the costs of supervision and the costs of family therapy to pay for.
Both parties depose paying rent of $370 a week which is modest.
In his financial statement the father deposes having approximately $16,000 in his Westpac bank account. When re-examined he referred to actually having about $25,000 in his account but that that was money set aside to pay his tax and legal fees. The father said his financial circumstances have changed. Despite this, he did not file an updated financial statement.
She denied exaggerating her expenses on her financial statement. She said that she spends about $75 a week on petrol as much of her work involves driving around and that her employer does not pay for the petrol. She spends $35 a week on car maintenance because of the amount of driving she does. The father deposes spending $60 a week on petrol and $40 a week on car maintenance.
The father’s Counsel also criticised the mother’s expenditure on electricity and gas of $140 a week. The father deposes spending $90 a week on electricity and gas a week for a household of one not four.
The mother currently has sole care for the three children and is also studying. The mother is studying in order to improve her earning capacity in Australia. That is reasonable. She seeks an order that the father pay her maintenance for four years. Presumably that would allow her to complete a Bachelor’s degree as well as her diploma.
The father also gave evidence when cross-examined about funds he has sent overseas to assist family and friends. The mother refers to the subpoenaed documents in her trial affidavit and says that his bank statements show that he has continued to make overseas payments throughout 2018.
The father is paying significant support for the children by way of periodic maintenance and private school fees. Even after paying this support the father is in a stronger financial position than the mother. He has continued to make discretionary payments overseas.
I am satisfied that the mother cannot adequately support herself. Looking just at the mother’s expenses for herself they are $495.50 a week. This does not include her other expenses including rent. I am also satisfied that is reasonable for her to undertake a diploma in order to improve her qualifications. However I am not satisfied that the father should pay a lump sum of $4,800 for the fees that the mother has made arrangements to pay in instalments.
I am also not satisfied that it is proper to order the father to pay maintenance for four years. I find it is proper for the father to pay maintenance until 31 December 2020 which will enable her to complete her diploma.
I am satisfied that the father has capacity to pay the mother maintenance in the sum of $300 a week which takes into account that the father will be paying for supervision and family therapy for a period of time in addition to the periodic child support and school fees.
Child Support
The father pays child support in accordance as assessed and pays the children’s private school fees. In her case outline the mother sought orders that the father pay for various expenses for the children. As I pointed out the mother’s Counsel at the beginning of the trial, including such an order in a case outline does not enliven the Court’s jurisdiction with respect to child support. It should not have been included in her case outline.
I certify that the preceding two-hundred and ninety-three (293) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 14 June 2019
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Procedural Fairness
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Remedies
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