Kelleher and Kelleher and Anor
[2011] FMCAfam 940
•24 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KELLEHER & KELLEHER & ANOR | [2011] FMCAfam 940 |
| FAMILY LAW – Treatment of family violence – consideration of broader context and definition of family violence – Father incarcerated following conviction for assaults on Mother – orders for no contact or communication – restraints pursuant to s.68B – impact of violence on meaningful relationship – transactions to defeat claims and protect assets – setting aside transactions – s.75(2) adjustments with small pool. |
| Family Law Act 1975, ss.68B, 44, 106B, 78, 106A, 69ZX, 60CA, 61DA, 60CC, 79 |
| Goode & Goode [2006] FamCA 1346 Merryman (1994) FLC 92-497 Weir & Weir (1993) FLC 92-338 Black & Kellner (1992) FLC 92 – 287 Kennon & Kennon (1997) FLC 92 – 757 Pierce & Pierce [1998] FamCA 74 Paisie & Paisie and Anor [2010] FamCA 719 |
| Applicant: | MR KELLEHER |
| First Respondent: | MS KELLEHER |
| Second Respondent: | MS CARMONDY |
| File Number: | AYC 12 of 2008 |
| Judgment of: | Harman FM |
| Hearing dates: | 20 and 21 March 2011 |
| Date of Last Submission: | 21 March 2011 |
| Delivered at: | Albury |
| Delivered on: | 24 March 2011 |
REPRESENTATION
| Counsel for the Respondents: | Ms Boyle |
| Solicitors for the Respondents: | Ms Rama |
ORDERS
That the children [X] and [Y] shall live with their mother.
That Ms Kelleher shall have sole parental responsibility for [X] and [Y].
Pursuant to s.68 of the Family Law Act 1975 that Mr Kelleher the father of [X] and [Y] shall be restrained and injuncted from:
(a)Assaulting, molesting, harassing or otherwise interfering with Ms Kelleher or the children [X] and [Y].
(b)Contacting Ms Kelleher or the children [X] and [Y] or any of them by any means or whatsoever including through third parties.
(c)Approaching Ms Kelleher or the children [X] and [Y] at any time or causing or encouraging any other person to do so on his behalf.
(d)Attending at or being within 500 metres of any address at which Ms Kelleher resides from time to time or words.
(e)Attending at or being within 500 metres of any address at which the children [X] and/or [Y] reside.
(f)Contacting or attending at or being within 500 metres of any school attended by the children [X] and [Y] or either of them.
Pursuant to s.44(3) of the Act, leave is granted to the wife to commence proceedings for property adjustment.
Pursuant to s.106B of the Act, the transfer by the husband to the Second Respondent Ms Carmody of the property at Property C hereafter referred to as the Property C property shall be set aside.
The wife shall forthwith be appointed as trustee for management and sale of that property.
The wife shall forthwith do all things, sign all documents and give all consents and instructions and authorities necessary to list the sale and sell by private treaty the Property C property for the best price reasonably obtainable and using an agent and solicitor selected by her.
Pending sale of the home, the wife should cause all net rental proceeds from the property to be applied as follows in payment of managing agent’s fees, in payment of insurance premiums for the property, in payment of the mortgage encumbering the property, payment of council water rates as to any balance remaining to the wife.
Upon completion of the sale, the wife shall cause the net proceeds then resulting to be applied as following payment of sales, costs and agents commission.
(a)Discharge of the mortgage
(b)As to the balance to the wife.
Pending completion of the sale:
(a)The husband and the second respondent shall be restrained from attending at the Property C property or from causing any other person to do so on their behalf.
(b)The second respondent should be restrained from dealing with drawing upon or increasing the present mortgage and.
(c)The second respondent should be restrained from contacting the existing tenants or the managing agent which will have no authority to give any notice or direction to either.
Pursuant to s.78 and subject to only to the above orders, each party is declared as against the other to be the sole and absolute owner of:
(a)all items of furniture, furnishings, chattels and personalty in their respective possession, custody or control;
(b)all contributions to and benefits and entitlements arising from membership of any fund of superannuation,
(c)any motor vehicles in their possession, custody or control,
(d)all moneys held by them.
Save as provided by these orders, each party shall be solely liable for and indemnify the other with respect to any debt in their name.
In the event that either party shall fail, neglect or refuse to sign any deed, document or instrument required by or to give effect to these orders then the Registrar of the Federal Magistrates Court shall be and is hereby authorised, directed and empowered to sign such deed, document or instrument in the name of the defaulting party (same to be proved by production of an affidavit by the party requesting signature) and to thereafter do all things and acts necessary to give validity and operation to same.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Liberty to the wife to apply to me in chambers by email in the event of any difficultly arising from implementation and enforcement of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Kelleher & Kelleher & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ALBURY |
AYC 12 of 2008
| MR KELLEHER |
Applicant
And
| MS KELLEHER |
First Respondent
| MS CARMONDY |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
These are proceedings with respect to both property adjustments and parenting orders.
With respect to the parenting aspect of the matter there are two children the subject of the proceedings, [X] born [in] 2003 and [Y] born [in] 2006. [X] is presently seven years of age and [Y] is presently four years of age.
The parties to the proceedings include [X] and [Y]’s parents being the applicant Mr Kelleher who is now 45 years of age and the respondent Ms Kelleher who is 28 years of age. There is also a second respondent to these proceedings being Ms Carmody who is the sister in law of
Mr Kelleher. Her involvement relates only to the property proceedings.
Background and past arrangements
The factual background for this matter is, in many ways, uncomplicated.
The parties commenced to cohabit sometime during 1999 although there is some controversy as to when.
The parents were married [in] 2001 and two years thereafter [X] was born.
In December 2005 an incident occurred between the parties at their home as a consequence of which the police were called. As a consequence of the police involvement Mr Kelleher was arrested, charged and subsequently convicted of some offences.
In January 2006, the parties separated although only for a short period. In March 2006, the parties reconciled their relationship although there is controversy between them as to whether they resumed full time cohabitation and, if so, at which address that cohabitation occurred.
In any event, as a consequence of that reunion and [in] 2006, [Y] was born. The parties seem to agree based on their evidence although it wasn’t clear from their affidavit material that after [Y]’s birth if not before it they had commenced to cohabit together but only for a very short time and in early 2007 the parties separated on a final basis.
At separation Ms Kelleher left the then matrimonial home with [X] and [Y]. The property in which the parties were residing at separation is the property the subject of the property dispute between these parties.
The parties have lived apart since 21 December, 2006.
The parties did not engage immediately in litigation other than an application for divorce which was dealt with on 1 May 2008. Whether as a consequence of that divorce application or other events very shortly after and on 12 May Mr Kelleher retained the children in his care following a period of time that he had spent with them. Up and until that time it seems common ground between these parties that the youngest of the children [Y] had not been separated from his mother overnight before. There is again some controversy between the parties as to what arrangements had been in place for [X] leading up to that incident but it would be fair to describe, on either version of events, that [X] had lived in some form of shared care arrangement between her parents.
At the time that the children were retained on 12 May 2008 or shortly prior there to a relative of Ms Kelleher had left her care. She had been residing with her for a period of at least 12 months. The 17 year old relative then having left went to reside instead at Mr Kelleher’s home.
There is inferentially from the evidence that there was some concern about that occurring but on what basis is unclear. In any event tales were then related by this young woman and as a consequence primarily of those tales but also an alleged disclosure by [X] that she had been pushed and so that her head struck a table leaving a bruise, the children were retained by Mr Kelleher in his care.
An application was then filed on 13 May 2008 by Mr Kelleher and
Ms Kelleher attended the registry at the same time or at least on the same day. She also then filed material seeking the children’s return to her care.
Mr Kelleher’s affidavit, prepared when he was self-represented and the document being hand written and there is no criticism of him for that, contained two paragraphs raising an allegation that the children were being beaten and abused by their mother and secondly that Ms Kelleher had never been alone to care for the children without assistance previously. There is some doubt as to whether either of those statements are, in fact, wholly correct.
In any event on 13 May, Henderson FM dealt with the proceedings by way of interim hearing leading oral evidence and delivering a short judgment wherein the children were returned to their mother’s care. [X] was then to live with her father from 12 noon Saturday until 5 pm Monday and [Y] was to spend time with his father each Saturday and each Monday and the children were otherwise to live with their mother. Both parties were restrained from denigrating each other or physically chastising the children. An Independent Children's Lawyer was appointed at that very early stage being the day that the matter had commenced.
The proceedings had a number of procedural mentions and on 22 July further interim orders were made and after far more fulsome material had been filed by the parties.
On 19 September 2008 an incident that has become very much the focal point of these proceedings occurred. On that date the father accompanied by his sister Ms K perpetrated what is commonly referred to as a home invasion at the home of the mother. The mother was at that time, about 10.30pm, at home and having consumed three to five drinks with a friend Ms B. Ms B is described, at different points, as being the mother’s then partner and it is clear that she is and was the former partner of the father’s sister Ms K.
Ms B was not called as a witness in the proceedings but assumed enormous importance in the proceedings.
On 19 September there is no real factual dispute and in any event and to the extent that it might be contested there is a public record of a conviction being recorded with respect to the offences that Mr Kelleher had been charged with and he was sentenced to a period of imprisonment.
The facts alleged and the basis of the conviction were that Mr Kelleher had kicked down the door of the home, entered the premises and assaulted Ms B. During his cross-examination it was sought to be suggested by Mr Kelleher that, in fact, he had pleaded guilty to that aspect of the matter for a variety of reasons but that he had not perpetrated the assault upon Ms B. It was sought to be suggested that, indeed, the assault had been perpetrated upon Ms B by Ms Kelleher who had swung [Y]’s high chair trying to hit Mr Kelleher, he having ducked or Ms Kelleher having missed and Ms Kelleher struck Ms B.
In any event as I have indicated I am satisfied that I am entitled in reliance upon s.69ZX(3) to rely upon the record of conviction and the plea of guilty to the charge and accordingly I do not accept that portion of Mr Kelleher’s evidence. Indeed as was described by the Independent Children's Lawyer in submissions I find that a most disingenuous attempt to deflect attention from his own criminal and violently, vicious behaviour.
The children were at the home at the time of these events but asleep in their beds. It is suggested in Ms Kelleher’s evidence that she had made that known to Mr Kelleher the moment he entered the home but notwithstanding that knowledge assaults continued by Mr Kelleher upon Ms B and by Ms K upon Ms Kelleher.
The father in his evidence also suggested that he was aware that Ms B was at the home, was not certain whether Ms Kelleher was there, had telephoned her but she had failed to answer the phone and accordingly, he assumed, she was not home and that the children were, accordingly, being minded by Ms B.
Mr Kelleher in his evidence suggested that Ms B was a “bad person”, someone that he would not want his children near let alone being minded by. No real basis for that was ever advanced other than to make very clear his absolute repulsion at any consideration of Ms B. Whenever she was mentioned and whenever she was the subject of evidence Mr Kelleher became highly agitated and visibly distressed. Cleary his hatred for this woman continues.
The children awoke at some point in time and again there is controversy about it. Mr Kelleher suggests that from what he has been told he does not believe the children witnessed either the event or the aftermath whether visibly or orally. But of course he was not there.
Ms Kelleher was. She says that the children and in particular [X] witnessed at least the aftermath of this event whether they were woken by the event or by the subsequent police attendance and that they saw both their mother and Ms B covered in blood and Ms B taken by ambulance to the hospital where she was required to undergo surgery to deal with her injuries.
The involvement of Ms B in the father’s actions is curious. She is his sister’s former partner. There is clear evidence from material produced on subpoena of an event whereby Mr Kelleher has attended in what one can only assume is an entirely intoxicated state and caused malicious damage to a vehicle which it is suggested was Ms B’s but
Mr Kelleher in his evidence asserted it was somebody else’s. In any event the police record of that matter shows that Mr Kelleher again pleaded guilty and was convicted notwithstanding that he asserts that he has no memory of the event at all as a consequence of an injury he suffered when neighbours intervened to stop him perpetrating violence involved him attacking the motor vehicle with a machete. Mr Kelleher also have evidence that his sister Ms K who was, at that time, in a relationship with Ms B, had come to the [omitted] Club to collect him when he was in a highly intoxicated state and in his words “being an arsehole”.
The basis upon which Mr Kelleher seeks to justify, and I use that term advisedly, his actions on the night of 19 September is that he had gone to the property to remove his children from what he perceived to be the danger of Ms B’s presence. The difficulty is that once he arrived, if one is to accept his version of events that he had not gone with premeditated intent to inflict violence or to cause damage to the property as he ultimately did, he immediately became aware that Ms B was not alone with his children but indeed the children’s mother
Ms Kelleher was there with them. He has expressed his concern that he felt the need to attend at the premises and remove these children immediately and yet did not do so once he arrived to find Ms B in their presence and notwithstanding they were asleep in bed.
Instead what he did was to become entirely overcome by his rage, his loathing and repulsion of Ms B and to attack her and to do so whilst his sister attacked the mother of these children, his former partner. There can be no explanation or justification for that action and the complete lack of contrition and the complete inability to accept responsibility for or to acknowledge the entirely inappropriate nature of those actions is a matter of some real concern. In fact it is of such concern that a copy of these reasons should be forwarded to the Department of Corrective Services for consideration in any parole hearing.
One would think that any parole hearing would consider, as an element of some importance, whether any degree of contrition or at least reflection upon the events that have been committed is apparent so that if to be released the community could feel that a lesson had been learnt by three and a half years of incarceration being a discount of 18 months on the sentence in fact imposed.
The events of 19 September led to the entire termination of time between Mr Kelleher and these children.
What is also concerning about it the incident is Mr Kelleher’s evidence that, having perpetrated this assault and his sister having perpetrated an assault upon Ms Kelleher of a serious nature, that rather than having any ongoing concern for his children, the very expressed purpose that he asserts and which I find he disingenuously and misleadingly asserts to the Court as the reason for his attendance, Mr Kelleher does not intervene to protect their welfare or the asserted concern for their welfare by removing them from the danger that he has attended to address but instead leaves, on his evidence, to get his sister “out of there so that she is not arrested”.
Mr Kelleher was subsequently charged as was Ms K. Both of them were dealt by the Court. It is unclear from the evidence what penalty if any was imposed on Ms K but clearly Mr Kelleher, on 18 December 2009, was sentenced to five years of imprisonment with a three and a half year non parole period backdated to the date of the incident. Accordingly with parole Mr Kelleher would be entitled to release in the earlier part of 2012.
The other issues in relation to criminal behaviour that were put to
Mr Kelleher do him no credit. He clearly has a long and extensive criminal history including periods of incarceration and including a substantial number of incidents relating to violence and antisocial behaviour. This is after all the father of these two children. A father who purports to have acted in their best interests on the night in question and who purports to have a genuine, abiding desire to be a part of the lives of and a role model to these children.
The father has also since commencing his present and continuing period of incarceration been the subject of disciplinary offences. Like all aspects of his evidence, where he felt that he would not be challenged or no one would have any means of verifying the untruth of his statements, Mr Kelleher lied.
Mr Kelleher sought to suggest that he was moved from [omitted] Correctional Centre being a prison farm at [T] and a low security institution to the high security institution at [omitted] so that he could pursue a course. With not much testing it soon became apparent that, indeed, the move was in response to a disciplinary offence and it was that offence that had led him there rather than being able to engage in a course.
As to the Court having any satisfaction that Mr Kelleher has learnt from or accepts any responsibility for or has any regret or remorse for his behaviour in the past Mr Kelleher offers the fact that he has undertaken an anger management course whilst at [T]. There was no material with respect to it but in any event and again, as observed by the independent children's lawyer in submissions, previous anger management programs undertaken by Mr Kelleher as a consequence of his conviction for assaults on Ms Kelleher in 2005 clearly were a waste of everyone’s time and tax payers’ money. He didn’t learn much.
Judging by his actions on the night of 19 September 2008 and being satisfied from his evidence and his demeanour in giving that evidence I accept that he has still learnt nothing and one gets the distinct impression that if Ms B was placed in front of him today the same events would unfold.
My concern is if Ms Kelleher was placed in front of him the same events may well unfold as it would appear that rather than reflecting upon those offences and learning to adjust his behaviour and complete absence of impulse control during this period of incarceration all
Mr Kelleher has done is build a seething anger and resentment and one would assume the desire for revenge.
In relation to parenting there is very little evidence beyond that to which I have referred and very little which postdates the incident of September 2008 at least insofar as these children’s relationship with their father is concerned. But there is a great deal of evidence in
Ms Kelleher’s case as to the impact that those events have had upon her. Clearly, as is made abundantly clear from the counsellor’s notes and reports and the counsellor’s affidavit, Ms Kelleher has some real difficulties coping at the moment. She has two children who have special needs. [X] has her own special needs particularly connected with her eyes and regrettably young [Y] has real problems with his heart and will require further open heart surgery. There are burdens created by that.
This is clearly a mother who does all of the parenting for these two children.
Mr Kelleher sought to criticise Ms Kelleher as having a history of depression. Ms Kelleher does not seek to hide that. She has been depressed since [X]’s birth. Mr Kelleher, however, rejected, denied and indeed found it humorous that it would be suggested that Ms Kelleher’s depression would have been in anyway aggravated or made worse by his actions and those of his sister, let alone the impact of the financial distress and anxiety arising from the collusive transfer of the property from his name into his relative’s names without any real consideration.
The complete inability to acknowledge or recognise that his actions may well have had some impact on the mother of his children and whether directly or indirectly his children is alarming. That a person can so lack insight and so lack any appreciation of the impact of their actions upon others speaks loudly to me that Mr Kelleher is a parent who does not deserve that title. Indeed his actions prior to his incarceration and not just his incarceration suggest that Ms Kelleher has endured a somewhat controlling and violent relationship having commenced that relationship with Mr Kelleher when he was many years her senior and she was still at school.
The difficulties that I have with Mr Kelleher’s evidence I do not have with Ms Kelleher’s. She was clearly criticised by Mr Kelleher but then again she was criticised for everything she has said or done.
Ms Kelleher has difficulties remembering dates with any specificity but that does not concern me substantially. What I am more interested in is that she can recall the events and recall the impact of them quite clearly.
Mr Kelleher on the other hand does not seek to speak about the events that occurred on in September 2008 other than to blame anyone but himself and on other occasions prefers to suggest that he cannot remember a thing about those and other violent acting outs but notwithstanding that complete lack of memory pleads guilty to charges of a serious nature including carrying weapons in public.
Equally concerning is the suggestion by Mr Kelleher that he had pleaded guilty to the offences that had lead to his present incarceration purely to avoid a stiffer sentence in front of the judge before whom the matter was listed at the time. Again, that Mr Kelleher was seriously suggesting that he could plead guilty to having broken into the home and committed assaults but was innocent and that he does not appreciate that the events have aggravated Ms Kelleher’s difficulties on an ongoing basis suggests that he has not learned very much at all from his 25 years of involvement in the criminal justice system
In relation to the property aspect of the proceedings events are more convoluted.
The major asset that is available to these parties (or perhaps more correctly it was at the time of separation available to these parents), is a home in [omitted] which I will refer to in these reasons as the Property C property.
That home, there is no dispute, was owned by Mr Kelleher at the commencement of the relationship and subject to a mortgage. The property was purchased by him depending on whose version is accepted in either 1990 or 1993. But in any event there is no dispute it was his at cohabitation. The best evidence that is available as to that property and its value at the time is a valuation that was undertaken at a time that Mr Kelleher had sought to refinance the mortgage and that was $110,000 at about the time of initial separation of these parties.
Again, typically of Mr Kelleher’s evidence, he was somewhat disingenuous in seeking to suggest that the valuation provided for the mortgagee’s purposes was inflated and because he hadn’t had the opportunity of speaking with the agent and making clear to the agent that the valuation wasn’t being obtained for a sale but a refinance. It beggars belief that a bank would send a valuer to value a property that was to be sold and the complete contradictory nature of that assertion was entirely lost on Mr Kelleher. I am satisfied it was simply a deliberate attempt to divert attention away from the real issue that the property had a value some years ago of $110,000.
At the time the relationship commenced, as best one can make out from the material produced on subpoena from the St George Bank, the home was encumbered by a mortgage of close to $62,000. By the time that the property left Mr Kelleher’s ownership in December 2008 the mortgage payout was about $63,000 and that is notwithstanding that during the course of the relationship there had been extensions to the mortgage of over $27,000. Clearly the mortgage was paid diligently.
The first refinancing that occurred was an advance of $9,946 which occurred very early in the relationship and at a time when Mr Kelleher allowed substantial arrears of council rates to accrue. Based on
Ms Carmody’s assertion the rates were about $1,200 a year the arrears then accrued represented seven to eight years worth of council rates.
Perhaps Ms Kelleher’s introduction to Mr Kelleher’s life produced some valuable contribution to the regularity with which he attended to pay of his bills. Notwithstanding that Mr Kelleher, in his evidence, has little if anything positive to say about Ms Kelleher or any contribution she made either to the children or the marriage.
The Property C property as I have indicated is the only real asset that was or could be available for division between these parties. After the event in September 2008 the evidence would appear to make it clear that Mr K, Mr Kelleher’s brother and the wife of Ms Carmody, visited his brother in the police cells and spoke with him briefly about what he wanted done with a number of things including his pets and this property.
The evidence of Mr K was otherwise highly unhelpful and unimpressive. Mr K suggested, both in his affidavit and during cross-examination, that in September 2008 he had gone to speak to his brother who he otherwise expressed loathing for. Consistent with that opinion he suggested that he would never do a favour for his brother yet that is exactly what he did. He went out of his way to do a favour for him either on his version of events being to help his brother make sure that his affairs were looked after whilst he was clearly going to be incarcerated for his violent attack on Ms Kelleher and others or whether for his own benefit. I am satisfied from his evidence that probably both had some element to play.
Mr K and Ms Carmody both asserted that they were separated and yet they were somewhat inseparable at Court. They suggested that is because unlike Mr and Ms Kelleher they know how to get on. I severely doubt whether they are indeed separated.
Mr K suggested that he doesn’t have much to do with any of his family and yet Mr Kelleher’s co-accused Ms K miraculously arrived at Court to obtain keys from her brother during the course of cross-examination.
Mr K’s evidence is quite illuminating, however, with respect to the financial aspects of the proceedings.
Mr K says that he spoke to his brother and an agreement was reached that they would place into storage and look after Mr Kelleher’s possessions, motor vehicles, caravan, motor bike and other things and that they would discharge the mortgage in return for the transfer of the Property C property to Ms Carmody. They agreed that once everything was settled being the transfer of the property that they would then store his stuff and clear his debts for him and he ended that answer with, “And we got a house”.
Mr Kelleher in his evidence was equally unimpressive when it came to the financial aspect of the proceedings and indeed during submissions Mr Kelleher perhaps let slip what it was really all about.
Mr Kelleher indicated that he had not done anything with respect to the property adjustment portion of these proceedings. It is to be noted that indeed nothing was filed by Mr Kelleher and the property adjustment proceedings, insofar as they are between Mr and Ms Kelleher, are undefended by Mr Kelleher. He has not even filed a document setting out any orders he proposes. But he indicates that he did nothing as
Ms Kelleher had proposed an equal division of the house and he thought that would be all right because that would still clear his debts. But he then let slip “when I get out they [being Mr K and Ms Carmody] would help me get a unit”.
During his submissions and his evidence Mr Kelleher was quite clear that he had sold the house not only to Ms Carmody but also to his brother jointly and as a couple. That was put to each of Ms Carmody and Mr K but they each denied it. In fact I have no doubt at all that
Ms Carmody was very little other than a pawn used to ensure that there was something apparently genuine and above board about this transaction. In that regard Mr K’s evidence again is illuminating. He indicated that before they conclude the transaction to it had been necessary to organise a solicitor to go and see Mr Kelleher in jail and sign a transfer and explain the transaction to him and on the basis that the conveyance was “a bit dodgy”. I think that is a highly euphemistic description of the transaction.
My satisfaction that Ms Carmody has been wittingly or unwittingly used by Mr Kelleher and Mr K as a pawn in this transaction comes about from her evidence. Ms Kelleher was entirely unclear as to what was paid out on the mortgage to St George notwithstanding that she was supposedly purchasing this property in her sole name. It was made quite clear that the transaction was not really to purchase the home for $67,000 but $67,000 plus other aspects of the bargain such as paying out a credit card debt, looking after Mr Kelleher’s stuff and looking after him when he got out.
Quite clearly that was potentially a fraud on the Office of State Revenue as the purchase price of the property, notwithstanding the supposed contract which was referred to but never introduced into evidence, was not $67,000 (being the amount upon which duty was paid). But that is not a matter I propose to refer to further as I am satisfied that effectively the transaction that occurred was between
Mr Kelleher and Mr K and Ms Carmody has been used and misused in this transaction. That having been said it is quite clear that the basis for the transaction was an intention to protect Mr Kelleher’s assets and his position once he was released from jail.
Much was made of the fact that Ms Kelleher had not, at the time of the transfer of this property to Ms Carmody, taken any action with respect to property adjustment and, indeed, was out of time by the time she filed proceedings with this Court seeking property adjustment orders. It was submitted that clearly this must evince a lack of interest on her part with respect to the property. However, the time for bringing an application for property settlement following divorce still had a sizeable portion to run by the time this transaction occurred.
There was no notice to Ms Kelleher, there was no attempt to engage her or notify her of the proposed transaction. There was nothing but a pure sense of entitlement that Ms Kelleher had no rights with respect to the property and need not be consulted.
I am satisfied by Ms Kelleher’s evidence because it is corroborated by Mr K to the extent that she asserts that the first she knew of the proposed transfer of this property from Mr Kelleher’s name to his sister-in-law was after the deal was done, the transfer registered and the property transferred.
The evidence of Mr K, as I have indicated, was anything but impressive. When it was put to him that he was an integral part of the transaction he denied this fervently. This was so notwithstanding that he had sat next to Ms Carmody throughout her evidence, she not having been able to answer or ask a question without him providing it to her and he was asked to leave the Court as a consequence of his trying to communicate with Ms Carmody whilst she was in the witness box. He sought to suggest that all of the property that he and
Ms Carmody had ever owned was always in Ms Carmody’s name and that the Property C property was all hers. I do not accept that for one moment.
It was otherwise indicated by Mr K that in relation to the transaction of transferring the property into Ms Carmody’s name, “I wasn’t going to do it for nothing.”
And again I accept that that is entirely so. There was great self-interest by Mr K in this transaction just as there was by Mr Kelleher.
The parties proposals
In relation to the parenting aspects of the matter Mr Kelleher proposes that whilst he remains incarcerated that there be telephone calls and, if it can be arranged, face to face visits by somebody bringing the children to the jail and/or video conferencing calls such as the means by which Mr Kelleher has attended in this hearing.
Ms Kelleher proposes that there be no contact.
The independent children's lawyer goes further and proposes that the absence of time or communication be reinforced by orders pursuant to s.68B which of course and pursuant to s.68C carry an automatic power of arrest for breach.
Bona Fide Purchasers
I have been referred by counsel for the wife to a number of decision of the New South Wales Supreme Court dealing with the nature of the bona fide purchaser. For the purposes of these proceedings, that is a matter of some real importance as s.106B of the Act, which deals with transactions to defeat claims invests this Court with jurisdiction to:
“…set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order".
On a strict reading of the word paragraph, the transaction which has occurred could not be described as a transaction designed to defeat an existing or anticipated order in these proceedings as there were no proceedings on foot. However, I am satisfied that the power given by s.106B is far broader than that. The decision of Collier J in Paisie & Paisie and Anor [2010] FamCA 719 referred to by counsel for the wife make that abundantly clear.
Disposition is defined by the section to include:
a)a sale or gift; and
b)the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or a trust.
A disposal or “sale” has clearly occurred.
Subsection (3) of s.106B provides:
The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested
The issue is then whether Ms Carmody can be expressed to be a bona fide purchaser.
I am satisfied without any disrespect to Ms Carmody who as I indicated earlier I am satisfied has been used and misused by each of her brother and brother-in-law to her detriment that she was not a bona fide purchaser. It was quite clear from the evidence of all three -
Ms Carmody, Mr Kelleher and Mr K - that indeed the purpose of the transaction was to protect the property by transferring it out of
Mr Kelleher’s hands whether to escape a claim by Ms Kelleher or by the victim’s compensation Tribunal or anyone else and to ensure that all of Mr Kelleher’s debts were paid “and I would be looked after when I got out.”
To the extent that Mr Kelleher’s expectation is that he would not only be debt free but that his brother and sister-in-law would help him out with getting a unit when he got out. That could not possibly be described as a bona fide transaction.
Against that also background the bona fide transaction must be for valuable consideration and at market price.
A great deal of the evidence turned on the state of repair of the property and seeking to justify the purchase price of $67,000. The difficulty with that is that Ms Carmody’s own lender, the ANZ Bank, prepared a valuation of the property for the purpose of lending and that valuation clearly took into account the state of repair of the property and valued the property at $130,000 i.e. very nearly double that which was paid because that which was paid effectively paid out the mortgage and a credit card debt and nothing else.
The valuation prepared by the Bank also indicates as follows:
“The subject property is currently under contract for $67,000. The transfer of ownership is between family members and appears to be significantly below market value. Having regard to comparable sales evidence and recent market trends in the area it is considered that an estimated market value of $130,000 appears realistic for prudent lending purposes.”
Prudent lending purposes would suggest that the mortgagee’s valuation is not intended, necessarily, to reflect true market value but purely that which the bank could expect to recover if they needed to call on their security.
The legislative framework
In parenting proceedings, I am required to commence by considering the objects and principles of the Act. The objects and principles do not operate as substantive provisions within the legislation but inform the manner in which the balance of the legislation is applied.
The objects provide that the Court should endeavour to ensure the children’s best interests are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their life to the maximum extent consistent with their best interests. The important aspect of that object is that any involvement must be consistent with the children’s best interests.
The objects also provide for protecting children from physical or psychological harm, ensuring that children receive adequate and proper parenting and ensuring that parents fulfil their duties and meet their responsibilities.
The principles underlying the objects refer to children, subject to it being consistent with their best interests, having a right to know and be cared for by both of their parents, spending time and communicating with both parents, parents sharing duties and responsibilities, agreeing on future parenting and children having a right to enjoy their culture with other people from their culture including their parents.
Any determination of a parenting case is ultimately governed by s.60CA which provides that the paramount consideration is and must always be the best interests of the child.
I am required to then turn to s.61DA and the presumption of equal shared parental responsibility and to determine whether it applies and, if so, whether it is rebutted.
I am satisfied that the presumption does not apply.
Subsection (2) of s.61DA provides that the presumption does not apply when there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or family violence. I am satisfied on both of those grounds as abuse and violence towards a parent is of itself abuse of a child whether they directly witness it or not.
I am also satisfied that the presumption would be rebutted by findings pursuant to sub.s(4) and lest I am wrong in its non-application in that I am clearly satisfied that it would not be in the best interests of these children for their parents to have equal shared parental responsibility. It would be a nonsense. It would not and could not operate effectively on any level.
As the presumption does not and cannot, in my mind, apply, I am not mandated to consider the time arrangements set out in s.65DAA. Lest I am wrong in that regard, however, I note that I could not and would not be satisfied that equal or substantial and significant time between these children and their father could possibly occur as he is incarcerated.
Sub-s (5) of that section is still relevant as it deals with practicality of any arrangement that might be ordered. It provides that I must consider how far apart parents live, the parents’ current and future capacity to implement an arrangement and the parents’ current and future capacity to communicate and resolve difficulties.
Quite clearly Mr Kelleher resolves difficulties through a complete inability to control his own anger and impulses and by acting out violently.
The impact of any arrangement on child is, perhaps, in my mind, the most important aspect of practicality. I will return to that shortly by adopting the course highlighted by the Full Court in Goode & Goode [2006] FamCA 1346 and by considering s.65DAA(5) considerations as part of the exercise of considering s.60CC.
The primary considerations under that section headed “how a court determines what is in a child’s best interests are twofold” being:
a)The benefit to a child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm.
It is perhaps relevant that on the day that this matter is determined, the Attorney General has introduced to parliament amendments to the Act to strengthen and prioritise family violence as a consideration and to give precedence over any benefit that a child might otherwise derive from a meaningful relationship to considerations of violence. That is how the competing primary considerations, whenever they fall into competition can, should and are applied.
To suggest that a parent who perpetrates violence and, accordingly, exposes both the child’s other parent and the children themselves to abuse could possibly form a meaningful relationship with their child is difficult to accept. The demonstration of that behaviour, by itself, suggests that the relationship would not and could not be meaningful. It would be based upon the false premise that the children are controlled and exposed to violence and, accordingly, continuously at risk.
In any event, I am satisfied in the circumstances of this case that [Y] does not presently have even a passing recollection of his father. That is apparent from the family report. These parents separated before [Y]’s birth and Mr Kelleher last saw [Y] immediately prior to his heinous acts on 19 September 2008 when this child was about 12 months old. This child would not remember his father.
[X] on the other hand quite clearly does remember her father. She was somewhat older than her brother in September, 2008. However, I have some real concerns as to whether I could genuinely describe the relationship that [X] had with her father, at that point in time, as meaningful. It more correctly be described as enmeshed. There was an overt level of control of Ms Kelleher in dictation of arrangements, an almost obsessive compulsive approach towards that relationship but, in any event and if I am wrong in that regard, at this point in time, [X] clearly does not have a meaningful relationship.
To the extent that either of these children have a relationship with their father or might benefit from one I am concerned that I must prioritise the need to protect these children directly or indirectly from physical or psychological harm.
The additional considerations in the legislation deal with a number of matters
Views
There was no real evidence about these children’s view regarding their father other than as reported in the Family Report and which suggests that [Y] has no recollection and [X] has some curiosity to see but some concerns about seeing her father.
The Nature of the Relationship of the Children with Each Parent
These children clearly have an excellent relationship with their mother. She is their sole source of support and has been since September 2008.
Mr Kelleher is critical of Ms Kelleher for this. He asserts that she should have made greater efforts to introduce him into their lives. How anyone could expect their victim to show up to the place of incarceration, in this case many hundreds of kilometres away, to introduce the children to their assailant is difficult to comprehend but perhaps makes some sense in Mr Kelleher’s mind.
These children have an excellent relationship with their mother and it is the only meaningful relationship with a parent that they presently have. The Court must be concerned to protect and preserve that relationship.
The Willingness and Ability of Each Parent to Facilitate the Child’s Relationship
Again Ms Kelleher is criticised by Mr Kelleher for her lack of effort in allowing communication between he and the children. Indeed, a card that he had sent from jail before Christmas 2008 was returned to him.
I can understand why that might be so when one has just been the victim of assaults not only by Mr Kelleher but by his sister,
Ms Kelleher’s sister-in-law, in her own living room and witnessed the companion who was there injured to the extent that they required surgery.
The likely effect of any change in the child’s circumstances including separation from either parent
These children are and have, for two and a half years, been separated from their father. Mr Kelleher brought that about. He need be under no illusion that anyone other than him is responsible for terminating his relationship with his children. His actions caused it, not Ms Kelleher’s.
The practical difficulty and expense of the children spending time
At the moment there are manifest and insurmountable practical difficulties.
The capacity of each of the children’s parents to provide for the children including their emotional and intellectual needs
I have no concerns whatsoever regarding Ms Kelleher’s ability to meet these children’s needs.
I have nothing but concerns as to Mr Kelleher’s ability to meet these children’s needs especially their emotional needs.
That a parent can act in such a heinous fashion as Mr Kelleher has and two and a half years later be so recalcitrant, remorseless and, indeed, find humour in discussing the incidents that are referred to, in my mind, can only be described as despicable.
The maturity, sex, lifestyle and background of the children
This factor is relevant as these are incredibly vulnerable, fragile young children. They have special needs which must be met and anything that would undermine the capacity or ability of their mother to meet those needs must be excluded.
Aboriginal or Torres Straight Islander background
There is no suggestion that the children are from an aboriginal Torres Strait Islander background.
The attitude to the child and to the responsibilities of parenthood
This consideration looms large in this case.
Ms Kelleher is criticised up hill and down dale by Mr Kelleher for everything she has ever done in relation to parenting these children. Nothing she has ever done warrants objective criticism. On the other hand, Mr Kelleher’s attitude is demonstrated by matters such as:
a)His unilateral retention of the children in May 2008.
b)His actions in assaulting the mother in 2005.
c)His actions in September 2008.
All of those actions demonstrate a parent who is unable to prioritise his children’s needs ahead of his own need, selfish or otherwise, to find a vent for his anger.
Any family violence involving the child or a member of the child’s family
Mr Kelleher was at pains to point out that the children did not witness his assaults upon either Ms Kelleher or her companion. However, that is to completely misunderstand the nature of domestic violence.
Family violence is defined in s.4 of the Act. The present definition is limited and objective (but still clearly established in this case).
Subsection (m) of s.60CC allows any other fact or circumstance that the Court thinks relevant to be taken into account and that includes the broader context of family violence as defined in social science literature. Family violence is somewhat dignified by giving it the adjective of “family”. It might be taken to suggest that this then makes it a special category of violence as, historically, events that have occurred within the family and behind closed doors are seen as being not in the public domain.
Those days are well and truly past, especially in this Court. Violence is violence. Violence begets violence. Violence is not a way to parent or role model children as observed by Mullane J in Merryman (1994) FLC 92-497 and violence does nothing but to corrupt and destroy, in the most insidious fashion, relationships between all concerned.
To suggest disingenuously that these children have never been exposed to violence by their father is laughable. They have been. They have seen their mother covered in blood. They have seen their mother’s companion covered in blood. They have seen the police attending on at least two occasions. I am that the father has not only engaged in two violent actions that are brought to the attention of the police and that other violence not reported to the Police has occurred They have seen their father behaving in a manner that is violence and pathetic let alone reprehensible.
Family Violence Orders
There are no family violence orders in force at present. There have been but they have expired.
Whether it is preferable to make an order that will least likely lead to the institution of future proceedings
I am satisfied that the only course that I can adopt is that urged upon me by the independent children’s lawyer and to cease all communication between these children and their father.
There has been co communication for two and a half years and there is no suggestion that this has been detrimental to these children. Indeed they have continued to blossom and develop within the parameters of their disabilities and their mother’s impoverishment made worse by
Mr Kelleher’s actions in seeking to quarantine the home from any suit on her part. But regardless these children have done well.
I am not satisfied that leaving the door open with arrangements proposed by Mr Kelleher are appropriate. I am satisfied
a)I have no evidence to show those arrangements are practicable,
b)I have nothing to suggest that such arrangements would actually succeed or produce a benefit to the children whereas they may well to Mr Kelleher, and
c)
Such arrangements would do nothing more than expose
Ms Kelleher to physical danger and psychological undermining whether as a consequence of dealing with those orders and their implementation or as a consequence of Mr Kelleher’s actions particularly upon his release.
Accordingly, I do propose to make orders largely as proposed by the independent children’s lawyer but perhaps going somewhat further than proposed.
I had previously on concluding the evidence in the matter on 21 March made an order pursuant to s.44(3) which for the sake of convenience will be incorporated into the sealed orders to be issued by me today and granting leave to commence property proceedings
In relation to the financial aspect of the proceedings, as would be clear from the reasons given above, I am satisfied that the transaction that occurred with the transfer of the Property C property was anything but bona fides and accordingly it will be set aside.
That then leaves as between Mr and Ms Kelleher the property issue. That is governed by s.79.
I am required to take a four-step approach and to:
a)Firstly ascertain the pool of property;
b)Secondly, to determine the party’s respective contributions;
c)Thirdly, to consider the factors set out in s.75(2); and,
d)Lastly, to satisfy myself that the orders I propose to make are, in accordance with ss.79(4) and (2), just and equitable.
The starting point of formulating a pool is difficult. The only real asset that had existed was transferred but it will be transferred back or at least orders will be made which will result in its net proceeds of sale being available for distribution.
The other assets that are available are not known largely and by reference to Weir & Weir (1993) FLC 92-338 and Black & Kellner (1992) FLC 92-287 because Mr Kelleher has determined to sit on his hands and do nothing. I do not accept that his doing nothing was because he was content with the orders proposed by Ms Kelleher because he has clearly opposed the setting aside of the transaction which removed the matrimonial home. Accordingly, and again, that is simply a disingenuous statement. He has done nothing because he chose to do nothing or perhaps because there are other matters that he did not wish to disclose.
In any event, doing the best I can, I can be satisfied that there are the motor vehicles and other items that are being stored for Mr Kelleher by his brother and there is the net pool that would arise from the sale of the matrimonial home.
I do not know the value of any of the items other than having some indication of the value of the home at $130,000.
In relation to contributions clearly Mr Kelleher has made a substantial initial contribution. He owned this property before the relationship commenced. However, as was made clear by the Full Court in Pierce& Pierce [1998] FamCA 74 an initial contribution is just that, a contribution. It must be balance against the other categories of contribution during the relationship and post separation including direct and indirect financial and non-financial contributions and, most importantly in this case, contributions as a homemaker and parent.
I am not urged by counsel for Ms Kelleher to pursue a Kennon & Kennon (1997) FLC 92-757 path on the basis of the conduct of
Mr Kelleher. In any event and for the sake of clarity, the evidence is not there to support it. But that is not to suggest that I cannot help but feel that Ms Kelleher’s life has been made somewhat miserable even if her contributions have not been made more onerous by Mr Kelleher’s behaviour and general presentation.
The contributions that each of these parties made during the relationship relate largely to parenting. Neither party had any substantial employment. Mr Kelleher was in receipt of workers compensation benefits until his incarceration. Ms Kelleher has had some very limited employment but that is not a matter of great moment. Her real contribution has been as a home maker and parent and through jointly participating in the maintenance, renovation and improvement of the property.
Overall and balancing the initial contribution with the contributions made by Ms Kelleher and particularly noting that since separation and especially since May 2008 and in even more concrete terms since September 2008, Ms Kelleher’s sole homemaker and parent contribution has kept these children afloat.
On balance, I am satisfied that the parties’ contribution should be assessed overall as equal.
In turning to s.75(2) I note that the pool of property available for division between these parties is very small. I note that a number of matters favour Ms Kelleher. She does not have income, property or financial resources available to her from any other source whereas
Mr Kelleher’s evidence and that of Mr K would suggest that they are there to support him, in Mr Kelleher’s own words “They will look after me when I get out.”
Ms Kelleher, I find, does not have any real skills for gainful employment. She has the care of two special needs children. She has been in a relationship with Mr Kelleher straight from school and has never really participated in the workforce in any meaningful or continuous way. Her prospects of future employment are dim.
Ms Kelleher has the care and control of the two children under the age of 18 years and has, in the most fulsome sense, their full time sole care and has had so for some years and will continue to do so into the future. These children also have special needs which would, in all likelihood, preclude her from present employment even if she had skills.
Ms Kelleher has commitments necessary to enable her to support herself and the children. She did not after separation and until
Mr Kelleher’s incarceration receive child support, certainly since
Mr Kelleher’s incarceration has not received child support and I am satisfied she will not at any time in the foreseeable future. The minimal child support assessment that has existed is in arrears in an amount of $600 that, in all probability, will never be recovered.
Ms Kelleher is in receipt of Centrelink benefits and that is how she supports herself. Ms Kelleher’s standard of living has plummeted since separation and if I do not make orders that assist at this point in time, both she and these two children will live in fairly abject poverty.
The orders that I propose to make will not impact upon any creditor as I propose to ensure the ANZ Bank is paid out in full.
The marriage had not subsisted for any substantial period of time but sufficient time to ensure that Ms Kelleher is fairly financially depleted. Ms Kelleher is left with little ability to participate in paid employment, little or no skills to pursue employment and certainly no realistic prospect of engaging in employment having regard to the care of the children and no realistic prospect of ever receiving financial support other than Centrelink benefits which I must disregard.
For all of those reason, I am satisfied having regard to the fact that the pool of property following the sale of the property and payment out of sales costs and the mortgage will be, at best, around $40,000, that an adjustment of 50 per cent is warranted.
As to whether the orders are just and equitable, I am satisfied that the orders that I propose to make will provide a very small fund of money to Ms Kelleher. From that she will no doubt be assessed to repay by contribution to the Legal Aid Commission a portion if not all of the funds that have been expended in conducting her case. That is regrettable but it is a simple reality of the funding provided and the need to recover funds whenever they can be recovered.
The effect of the orders that I shall make in relation to property is that I am not ordering the execution of a transfer to put the property into
Ms Kelleher’s name. It will, until the completion of the sale, remain in Ms Carmody’s name but Ms Kelleher will be trustee for sale and management which means that it will be she who deals with the agent, whether the managing agent or the listing agent, and she who will have conduct of the sale but it does mean that if something goes horribly wrong, such as the property burns down or the tenants are evicted, then the person whose name the property is registered in will be liable not Ms Kelleher. That is to safeguard the property and compliance with these orders.
I certify that the preceding one hundred and fifty five (155) paragraphs are a true copy of the reasons for judgment of Harman FM
Associate:
Date: 27 September 2011
Corrections
In Order (2) “and” was inserted between [X] and [Y].
“Mr K” was corrected to “Mr K” in para.81.
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