KESSLER & KESSLER

FEDERAL CIRCUIT COURT OF AUSTRALIA

KESSLER & KESSLER

[2015] FCCA 195

Catchwords:
FAMILY LAW – Parenting and property dispute – father adopting recommendations of family report writer – sustained cross examination of writer – writer’s professional conclusions largely accepted but consequential conclusions not accepted – writer not wholly aware of relevant facts – mother always primary carer – both parents having difficulties but mother more so – vitriolic dispute between mother and father’s new partner – whether partner should be excluded from children – orders for children to live with mother in 10/4 regime – property dispute after 20 year relationship – contributions equal – loading to mother for care of young children – findings made about disputed items in the pool – parties to confer about appropriate orders.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Jones v Dunkel (1959) 101 CLR 298
Goode v Goode [2006] FamCA 1346
Stanford v Stanford [2012] HCA 52

Applicant:

MS KESSLER

Respondent:

MR KESSLER

File Number:

MLC 7082 of 2014

Judgment of:

Judge Burchardt

Hearing dates:

19 and 20 January 2015

Date of Last Submission:

20 January 2015

Delivered at:

Melbourne

Delivered on:

27 January 2015

REPRESENTATION

Counsel for the Applicant:

Ms Smallwood

Solicitors for the Applicant:

Carew Gartlan McClelland

The Respondent:

In person

ORDERS

Both parties have equal shared parental responsibility for the children of the relationship, [X] born [in] 2002 ("[X]") and [Y] born [in] 2005 ("[Y]") (“the children”).
Both parties do all things necessary forthwith to ensure [X] be enrolled and commence school at [M] School forthwith and not change school without the written consent of both parties.
Both parties do all things necessary forthwith to ensure [Y] be enrolled in and commence school at [M] Primary School forthwith and not change school without the written consent of both parties.
The children live with the Applicant and spend time with the Respondent as follows:
(a)from 30 January 2015, each alternate Friday after school until the following Monday at commencement of school.
(b)from 26 January 2015, each alternate Monday after school until the following Tuesday before school.
Despite the above the children otherwise spend times with their parents as follows (later listed provisions taking precedence over earlier ones):
(a)In term and Christmas holidays, on a week about basis, so that the parent first spending the weekend with the children after the conclusion of the prior school term spend from 4.30pm on the Friday preceding that weekend until 4.30pm on the Friday seven days later, such times then alternating at 4.30pm each Friday until the parent with the children on the weekend before the next school term commences treats such weekend as the weekend with them as set out at paragraph 4 as applicable and term time parenting arrangements continue from that weekend;
(b)On either child’s birthday, the parent not otherwise spending time with the child that evening shall collect the children from school/the other parent’s home at 4.30pm and return the children to the other parent’s home at 6.30pm;
(c)On either parent’s birthday, that parent shall collect the children from school/the other parent’s home at 4.30pm and return the children to school/the other parent’s home at 8.30 am (if otherwise the children would be spending time with the other parent on a non-school day) the next day;
(d)From noon Christmas Eve until noon Christmas Day in odd years with the Applicant and in even years with the Respondent; and from noon Christmas Day until noon Boxing Day in even years with the Applicant and in odd years with the Respondent;
(e)Otherwise as agreed between the parties.
Save as set out above or agreed otherwise, for changeovers between the parties all changeovers not at school shall take place so that the parent without the children collect them from the home of the parent with them.
Each party shall make the children available at 5:30pm on the third night they are not with the other parent for a telephone call made by the other parent to the party’s telephone number for up to fifteen minutes’ duration.
Both the Applicant and Respondent are to attend a family therapist and/or clinical psychologist with expertise in the area of Family Law, to assist them in their negotiations with each other and family issues raised in the Report of Dr K.
Both parties be restrained from abusing, insulting, belittling, rebuking or criticising the father to or in the presence or hearing of the children, or either of them, and from permitting any other person to do so.
The parents forthwith commence and maintain a communication book with respect to the children, which book shall travel with the children between the parties’ respective places of residence.
Until further Order, both parties, and his/her servants and agents, be and are hereby restrained by injunction from discussing the within proceedings with or in the presence or hearing of the children, and from permitting any other person so to do.
Both parties be and are hereby restrained from physically disciplining the children.
Neither party is to seek to change the surnames of the children save by agreement.
The matter be adjourned to this Court for mention before Judge Burchardt on 6 February 2015 at 9.30 am.

THE COURT NOTES THAT:

(a)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Kessler & Kessler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 7082 of 2014

MS KESSLER

Applicant

And

MR KESSLER

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting and property dispute. The issues with which the Court is required to be concerned include where the children are going to go to school this week. It has been heard as a matter of urgency, and these reasons for judgment have also been prepared on an urgent basis. This is not, of course, an ex tempore judgment, and, thus, only very minor revision will be effected when it is produced to writing, although I will insert the head notes I have in my notes.
The parties are not without their difficulties. There is a pronounced lack of insight on the part of both parents. It will, in part, be necessary to make findings critical of the parties. That is regrettable but unavoidable in the circumstances.

Agreed or uncontroversial facts

I turn to agreed or uncontroversial facts remove. I should note that I will endeavour to refer to the parties as wife or mother or husband or father, as the context makes appropriate.
The wife was born [omitted] 1972 and the husband [omitted] 1971. They commenced cohabitation in 1993, when, on any view of the matter, they were both very young. They married [omitted] 1996. Their eldest son, [X], was born [omitted] 2002. [Y], the youngest son, was born [omitted] 2005. The parties separated in April 2013. There is some slight dispute as to the exact date, but it seems that this was in early April.
The husband works as a self-employed [omitted], and conducts his business through trusts on the advice of his accountant. This device has led to certain difficulties in the property aspect of the matter. The wife is a [omitted] who worked until the children were born, and only worked spasmodically and part-time thereafter. She is now in the process of setting up a [business omitted].
In November 2013, the father re-partnered with Ms R. Much of the tension in the parenting dispute arises from the dislike between the mother and Ms R.

Parenting and children’s issues

I move now to parenting and children’s issues.
Given time constraints, I will only briefly paraphrase the parties’ affidavit material. Since the mother relied only on her trial affidavit, I will concentrate on that. The trial affidavit starts, so to speak, at separation. Although there might be differences of emphasis, it is as I understand it uncontroversial that prior to separation the father worked and provided the income, and the mother stayed at home and looked after the children.
The mother’s affidavit deposes that after separation, the children generally spent time with their father on alternate weekends from Friday after school till Sunday 4:00 pm, as well as some weekday meals. The mother deposed to the father consorting with drug using individuals, although that aspect of the matter seems rather to have slipped away as the trial has proceeded. The mother also deposed to an incident in October 2013 when the father sent [X] photographs of the father carrying a rifle, and also, at about the same time, told [X] on telephone that he, the father, was handcuffed on the side of the road and in a lot of trouble. The father admits this and expresses regret. The photographs – exhibits SK5 and SK6 would unquestionably have been very upsetting to the child.
The mother’s affidavit also deposes to the father turning up dressed wholly inappropriately to [X]’ grade 6 graduation ceremony. I would interpolate again and say that despite the father’s denials in cross-examination, it’s quite clear that he was wholly inappropriately dressed for such a function.
The mother’s affidavit then goes on – leaving aside matters of minor moment – to depose to the difficulties with Ms R. It was deposed that Ms R has a criminal history, up to and including 2014, and has been required to undertake a psychiatric program. The mother deposed to an incident on 27 June 2014 when Ms R allegedly assaulted the mother and a friend, Ms H. Whatever else happened on this occasion, the mother was taken to [omitted] Hospital.
Ms R was charged but the charges were subsequently withdrawn. The mother deposed that she did not know why. After this, the mother refused to let the children attend Ms R’s home where the father lives. She deposed that she sought orders prohibiting the father from spending time with the children in the presence of Ms R.
The rest of the affidavit is responsive to that of the father dated 30 September 2014. It is almost wholly self-exculpatory. I note, however, that at paragraph 31 of the affidavit, the mother admits slapping [X] on the head on one occasion.
Turning to the father’s affidavits. The father was self-represented at the time of the trial, although he was legally represented up to a late stage. I understood him to rely on all his affidavits.
His first affidavit was filed on 9 October 2014. It deposed initially to uncontroversial matters about the dates of cohabitation, separation and the births of the parties. He then deposed to Intervention Orders taken out against the mother. These are numerous. The allegations made by those taking them out are serious. The father deposed to the mother’s driving licence being cancelled on 30 May 2013 as the result of an excessive alcohol reading.
The father deposed to irregular and erratic time with the children since separation, and expressed concerns about the mother’s capacity to care for the children as the result of her mental health. The alleged abusive text messages on the part of the mother, I would interpolate again and say that while there is some dispute as to quantum, the mother admits sending abusive messages.
The father responded to the mother’s affidavit filed 12 August 2014. He admitted time had generally been spent with the children on alternate weekends with additional weekday time. He denied spending time with drug users. The father filed a further affidavit on 24 December 2014. It added a statement from Ms M – exhibit MDK11 – about the alleged assault on Ms M by the mother on 16 October 2013.
The affidavit indicated the father wanted the children to continue in 2015 at schools close to where he lives in [D]. He complained of excessive absences from school on the part of the children in 2014. He also referred to, and effectively adopted the report of Dr K to which I shall return. He sought to qualify some of the matters in Dr K’s report insofar as they related to him.

Report of Dr K – annexed to affidavit filed 19 January 2014

I turn next to the report of Dr K annexed to his affidavit he filed on 19 January 2014. The report speaks for itself, and I refer to all of it. For the moment I note the following points, although more will come out when I deal with the oral evidence. Allegations were made to Dr K that the relationship ended because the mother was unfaithful. This is something alleged in various occasions in the father’s affidavits. At paragraph 10 of the report, the mother told Dr K about an incident in June 2014 – wrongly described as July – with Ms R. It was asserted there was a significant incident in July 2014 where Ms Kessler “went to the father’s girlfriend’s home”.
Next, I note that Dr K recorded the mother as being opposed to any contact whatever between the children and Ms R. The mother admitted drinking up to two bottles of wine per night after separation. At paragraph 15, Dr K recorded that the mother said she was not aggressive to the children unless they deserve it, and that she would scream at them if they deserved it.
The mother admitted sending abusive text messages to the father. At paragraph 22, Dr K recorded that he thought that the mother had personality features – borderline features. He assessed the mother’s intellectual capacity as low to average, with a range of 72 to 85, and recorded that testing produced what he described as a fake/bad profile.
Dr K saw the children with the mother and all was well and unremarkable. Both children in their discussions with Dr K:
(a)knew the mother did not like Ms R;
(b)recorded that Ms R parented them appropriately;
(c)that the mother had a boyfriend called [Mr D], with two children, who is as far as I can see not revealed in the mother’s affidavits;
(d)the children both wanted overnight time with their father;
(e)the mother appears – from these accounts – to drink somewhat more than the father;
(f)both children wanted less changeovers and, in [Y]’s case, I think, very much so, and
(g)both said they wanted equal time with each parent.
I note that [X] told Dr K he wants to go to [M] School, and did not want blocks of one whole week away from either parent.
When interviewing the father, the father had revealed a concern about the mother’s alleged infidelity, including with Ms R’s former husband. The father admitted he has one joint per week with Ms R. He had been depressed in early 2013 and drinking too much, and taking anti-depressants. He took three months off work and drew on his income insurance. The father’s intellectual abilities were average in a range from 92 to 106, but he also produced what was described as a fake/bad profile.
Dr K also interviewed Ms R, and I note that she recorded being on anti-depressants – at least intermittently – for the last 13 years.
Dr K’s conclusions were first that he was more concerned by difficulties with the mother than the father, and described the mother as having personality difficulties. Second, he said that the father had parented better in the past than the mother, and that this led to the conclusion that the children should spend more time with him. Third, he said that the parenting skills of the parents were not markedly different, but the mother has personality difficulties and abuses alcohol. Fourth, the father was more likely to promote a relationship with the other parent than the mother.
Dr K went on to recommend a 9/5 arrangement in favour of the father. The time to be spent in one block with the mother to avoid conflict at changeover, and that school be close to the primary carer’s residence. He recommended therapy for both parents. The final affidavit filed is that of Mr H, who was not required for cross-examination. Until 2014 he was working at [L] School which [X] attended.
He recommends [M] School, and foreshadows that aids will be available at [M], although I note there were aids at [L] also. Mr H’s affidavit asserts that other schools are not able to provide what he described as “this specific level of support that [X] needs”. It is not clear, however, what that view was based on.

The evidence in the exhibits

Turning to the evidence in the exhibits. Victoria Police material revealed that the wife received a Community Corrections Order for 12 months on 19 June 2014 arising out of the assault on Ms M. The mother is subject to approximately 10 Intervention Orders, although some are taken up by the same individual.
Exhibit A2, which is material from Dr C & Associates, includes a number of handwritten notes which are hard to read, but I note that in these notes the mother admits insulting Ms R and admits putting her foot through a glass window, although it is not clear if this relates to Ms R or someone else. Exhibit A2, the full police file, reveals that it is clear that the mother was drinking on the occasion of the incident with Ms R on 27 June 2014. She was unable to drive and had, in fact, been with her friend for some hours watching an entire football game.
The material also reveals a conviction of Ms R for theft on 25 March 2014 when she was dealt with without conviction, but required to continue psychiatric treatment. She had been convicted for driving while disqualified in 2006. It is clear that the mother was, in fact, convicted on 19 June 2014. Her Community Corrections Order required a mental health assessment as treated or directed. This brings me to the evidence given at court.

The evidence given at court

Given time constraints, it has not been possible to reduce my paraphrase to writing, and I will simply do the best I can from my notes. I’m afraid it follows that what I will be saying will have about it a regrettable stream of consciousness quality.
The mother was called, and in evidence-in-chief said that she was doing casual [omitted] work. She confirmed the date of separation in April, and she asserted that she was keen to leave the matrimonial home as soon as possible, and obtained a rental property in July through an agent. She asserted that both she and the father dealt with the agent, and he came, so to speak, to help her look at the rental and to complete documentation.
She denied forging the husband’s signature on relevant documents. She dealt with an alleged offer for the former matrimonial home of $500,000 and said she was not aware of it. The agent had mentioned it to her and she had required it to be in writing but nothing happened so the matter, from her point of view, did not go further. She had not talked with the husband about this offer.
She said the children had been with the father in Ms R’s house when the incident in June 2014 took place. This is only two doors from her friend Ms H’s home. She was taken in an ambulance to the hospital and kept there overnight. The boys returned the following week and asked what had happened when they saw her face. [X] had told her that dad had said that she ought not to have been in the area. They said they had asked dad what was happening and he said, “You don’t want to know.” She confirmed the quantum of child support at $54 per month. This has been reduced following assessment.
Under cross-examination, the mother denied associating with people who were consuming illicit drugs, said that she had restricted phone calls because she was worried about the environment where the children were after she had been bashed. She said the father was a great parent who had spent lots of time with the boys, and there had been no problems before Ms R came on the scene.

She conceded that the incident with Ms M should never have occurred, but explained it because she had discovered, through her own father, that the father himself had had a relationship with Ms M, alleging an episode of sexual intercourse in a garage. Given that Ms Kessler had looked after Ms M’s children while Ms M was in a psych ward, this was said to have precipitated the assault.
When taxed with a number of school absences, she attributed a number of these to times when they were, in fact, in the father’s care. Evidence about medical treatment for the children, in my view, was unremarkable and not of any moment. She confirmed that she wants to work full-time after the court process is finished, and dealt with questions about how the children got to school, in my view, in an unremarkable way.
There was a certain amount of cross-examination about school expenses which, in my view, is not of any great moment. She also dealt with the treatment she had received from Dr C, and it emerged that she had only seen her twice before Christmas but had perhaps seen her thereafter. I should say that some of her answers were at times both argumentative and not entirely convincing. She did say, however, that she barely drinks now, because she has to drive; she has obviously got her licence back.
She did not agree she had any anger management issues, but said she was just disgusted by the husband’s alleged affair with Ms M. She said that she had not been required to undertake a mental health plan arising out of her Community Corrections Orders and that she had been told that it was all to do with the breakdown of the marriage. Cross-examination took place about minutiae of the parties’ finances but, for present purposes, it is not necessary to deal with that in any detail.
The father was called. He adopted his affidavits. He was then cross-examined at some length. He said that the parties separated by agreement. Concerns between them at that time were, so to speak, manageable. He was cross-examined about the Intervention Orders referred to in his affidavit material and was keen to draw the Court’s attention to the mother’s losing her driving licence. It was put to him that his position has only changed since Dr K’s report has come out, but he denied that, and it is to be noted that the father’s response did not, as counsel conceded, itself concede that the children should live primarily with the mother. When cross-examined about school absences, the father’s lack of action arising from it was, in my view, unconvincing.
He was also cross-examined in some detail about the incident in June 2014 with Ms R. It emerged that he was alerted to this after it had been going on for some time by a neighbour, and he was the person who came out and, so to speak, broke the fight up. He told the children not to come outside and stay in the house where they then were, and when he returned he told them, as he said, that there had been an altercation between the mother and Ms R. I frankly doubt that he would have used a word like “altercation” to describe the fight.
He said that he would come inside and fill them in as to what happened. It would seem that he gave them a very truncated description of it. After the fight, no overnight time took place and he continued to live with Ms R. Ms R is, indeed, the tenant of the property at which they live and commenced living there in June 2013. The father moved in in about November 2013 and they have been living together ever since. They moved in together relatively soon after they became intimate.
The father confirmed that the lease is for one year and, once that expired, he would consider making other arrangements. He intends in time to buy a block and build his own house, but he cannot do that until his assets are determined. He conceded that he was drinking significantly at the time of separation and, indeed, the doctor’s records tended to show a record of binge drinking at that stage. He also says he, like the wife, has addressed his alcohol difficulties and either reduced or very significantly reduced the amount that he drinks.
He did, however, concede that he told Dr K he would on occasion drink up to 10 stubbies a night. He did not, however, believe he had understated his drinking problems to Dr K. He is still a smoker, but always smokes outside. He conceded that he was the breadwinner during the relationship and the mother stayed home and looked after the children. He conceded that she looked after the children well and was an excellent mother. He conceded the youth of the parties at the time their relationship started.
He denied having an affair with Ms M but, for reasons I will come to, it is not necessary to take that matter particularly much further. He confirmed he did not know the mother’s friend Ms H, although he knew who she was. He confirmed, as I’ve already asserted, the way in which he broke up the fight between Ms R and Ms H and the mother and Ms R’s sister, as I understand it. So far as Ms R’s conviction for theft was concerned, the father said he was largely unaware of this until relatively recently.
He was cross-examined as to why Ms R was not being called to give evidence. Put shortly, it seemed to be suggested that Ms R was not attending because there was an altercation between her and the mother on the previous court date. I should interpolate and say I found this unpersuasive. The father is substantially larger than the mother. Were it necessary to protect Ms R, he would be well-equipped to do so. It emerges that Ms R has undertaken the psychiatric assessment ordered in relation to her conviction for theft.
The father dealt with the living arrangements where he lives and those, in my view, are unremarkable, notwithstanding that Ms R’s two children are there on various different schedules for a substantial proportion of the time. Essentially, the father’s position was that the children lived with him 9/5. The children would live with the mother from Wednesday afternoon till Monday morning and he would try to rearrange the roster, so to speak, so that the children in his household were able to spend time together. He described them as getting on well but not being close, but things have worked well so far.
There was further cross-examination about the incident with Ms R and the mother. He said that the children had heard the sirens of the ambulance and presumably the police arriving. He told them there was an altercation and the mother had been taken off in an ambulance. The children were upset, but he said they were calm and fine. Ms R was taken away for questioning by police. He was unable to say if she was angry or swearing. He told the children the mother should not have been there but did not say it was the mother’s fault.
It emerged that the two children and Ms R’s both attend different schools and these are different schools, in fact, to the schools he proposes that his own children attend. Nonetheless, he felt it would be possible, because the schools are relatively close to where he lives, to arrange for the children to attend the appropriate educational establishment. He said he would make sure the children were ready, and referred to his being self-employed and the resultant flexibility to which this gives rise.
The father was cross-examined about his participation in sports days and parent-teacher meetings. My impression was that he may not have been as involved as he might have been in the past but now wishes to be so. One aspect of his evidence that I did find credible, because it was said with conviction, was his suggestion that he had not signed rental documents, but in the end I do not think anything turns upon that. He was also cross-examined in relation to property issues, and some of the cross-examination related to what one might describe as a vintage [omitted] Holden.
It emerged that he has sold this to his sister-in-law for $3,000 but, in effect, has swapped it for the $9,700 worth of legal fees that she has paid. He described this vehicle as being kept in the family. As I would find, the sister-in-law [name omitted] is highly likely to give it back to him when the proceeding is over. It is transparently being alienated for these purposes. It emerged that the father’s time off work with depression and when he was on insurance income was between August 2013 and February 2014.
It appears that there is, according to the husband, no money in the trust through which he operated his business, which has only one bank account. I will return to that matter when I deal with property. And the rest of cross-examination dealt with property issues which, I think, can be sufficiently dealt with when I come to make my findings about those matters.
Dr K was called and was cross-examined by counsel for the mother. He had not seen Mr H’s evidence and queried whether aids were available at other schools. He had not seen subpoenaed material, nor the trial affidavits. He confirmed that the boys presented well and appeared well cared for, although he had made comments about their care. He said this was not based on what he was told by the parties but what he was told by the children. The children had indicated various difficulties.
He said there were at least two factors that concerned him about the mother. The first was personality and the second was alcohol. He described borderline personality difficulties as factors that related to difficulties with relationships. He said that the mother had difficulty with family relationships and vulnerability to impulsivity, both with others and with the children. This was not a disorder but a personality difficulty. He went on to explain in some detail what he meant by the word “borderline”. He said primarily this was to do with impulsivity and relationships and often mood.
He said the mother’s circumstances indicated personality traits and also substance difficulties. He conceded that the mother was always the primary carer, but said that the father had not told him she was a good parent. He said his report was a snapshot of more recent times and he conceded that his recommendation of a 9-5 regime would involve a complete change. He said the fact that the children were going well shows adaptation to difficulties, and he said it would be whitewashing the report to suggest that the boys are going well.
He said that there are no ideal solutions in this sort of context. He said it was not necessarily a problem if the children were not always together, that’s to say the children of Ms R and the father. Children in blended families often seek out time with their mother or father. He said it would be more a problem if all the children were there all the time. I should interpolate and say that from time to time, under what was reasonably energetic cross-examination, Dr K’s responses did become somewhat defensive.
He was not concerned by the schooling arrangement posited, and he conceded that the children would have been very upset when their mother was taken to hospital. When told that the husband had told the children that the mother walked to the ambulance, he said that this was an insightless answer, but he did say – and once again, I think this was somewhat defensive and it certainly was not responsive to a question – that memory is always difficult in these kind of traumatic circumstances. Indeed, I would record that Dr K was not fully aware of the extent of cooperation between the parents until Ms R came on the scene.
Dr K accepted that the father had had significant problems with alcohol and had indicated to him that he was drinking too much. He said both parents needed assistance in this regard and that the children had said both parents were drinking to excess. He said that a number of the difficulties obviously had related to the breakdown of the marriage. The husband had not raised with Dr K his concerns about the mother’s infidelity but, when taxed further, he conceded that he, in fact, had raised that matter.
He said he had not intended to say that the mother was worse than the father, but he was less concerned about the father’s problems and relationships. He noted that both parents blamed each other for the end of the relationship which is symptomatic as to why they were not able to negotiate. But he was firm that the father did not have borderline traits in the same way as the mother did. He had no doubt that both of them had behaved badly at times. He was not aware that Ms R had a criminal record and had been required to undertake psychiatric treatment as a result.
In relation to the fake/bad tests, Dr K said both parties had magnified their distress and that this was the most likely reason for the fake/bad tests. This was unusual because people normally try to pretend that they are perfect. He said he had done the test thousands of times and that the mother’s literacy difficulties were not a problem in assessing her for the test. I should say that his explanations in this regard struck me as being entirely credible.
He was then cross-examined briefly by the father but beyond standing by his conclusions and confirming that the mother was not, as the father suggested, one who had undertaken narcissistic behaviour, and that the mother should have a required treatment for her personality problems. I should emphasise, as I did at the start of this matter that taking one’s notes and dealing with them in paraphrase in this way is not entirely desirable but is unavoidable given the amount of time available to produce the judgment.

Findings

I move now to my findings. Both parents are either below or of average intellect. Both lack insight. By way of illustration only, the mother does not seem to see the impossibility of the requirement she imposes that father not spend time with the children in the presence of his partner when he lives with her. A similar lack of insight is displayed by the father sending these terrible photographs to [X]. They are most off-putting.
It is clear that the mother has impulse control difficulties. The attack on Ms M was unpardonable. She is subject to approximately 10 Intervention Orders which include multiple allegations of assault, even though, of course, these are not admitted, but that is a lot of Intervention Orders on any view. The father’s evidence was not always believable. I have dealt with some of his answers as I have traversed the evidence. Ms R was not called. The husband was put on notice in comprehensible terms of what lawyers would refer to as a Jones v Dunkel point.
His explanation for Ms R’s non-attendance is unconvincing. As I have said, he could easily protect her if necessary. However, it is not necessary for me to go so far as to make a Jones v Dunkel finding. The fact is that any assertions Ms R might wish to make are simply untested.
Dealing with Dr K, I’ve already said and I repeat that on occasions he became somewhat defensive, but he was strongly cross-examined. I accept his evidence that the mother has what Dr K recalled borderline traits. He was strongly cross-examined on this point and not moved. His evidence was given within his area of specialty and I accept it. I also accept, however, that Dr K was not fully aware of some aspects of the case, including, most particularly, the extent of cooperation between the parents before Ms R came upon the scene.

The statutory pathway

Turning to the statutory pathway, it is not necessary to read out but I refer to the case of Goode v Goode [2006] FamCA 1346 at paragraph [65]. The guidance given by the Full Court in that paragraph is still, in my respectful view, helpful despite some subsequent statutory amendment.
That brings us to the presumption of equal shared parental responsibility. As I understand it, all parties want it. The mother certainly does. The father’s response, filed on 9 October 2014, seeks it and that was filed when he was legally represented. His further response, filed on 24 December 2014, seeks, and I quote, “majority parental responsibility”. But clearly this related to a division of time between the parties only. Pursuant to s.61DA of the Family Law Act 1975 (“the Act”), the presumption must be applied unless there is abuse of the child, family violence or the order is rebutted as not being in the child’s best interests.
On one view, the materials would establish abuse. There has been slapping of [X] and the like and family violence in the repeated derogatory taunts that the parties have undoubtedly exchanged. But despite all the parties’ faults, things were essentially okay until Ms R entered the scene in November 2013, and overnight time only stopped after 27 June 2014 fight. Both sides further concede that the children should spend quite significant amounts of time with the other. In my view, this is a case where the parents, both of whom love the children and are loved by them, should exercise shared parental responsibility.
This leads to consideration of equal time. No parent seeks it.

Dr K did not recommend it. The children, to an extent, suggested to

Dr K they wanted equal time, but first, this was not thought through in any detail and second, it seems more related, as I read the report, to a desire to avoid an excessive amount of changeovers. The Court has to consider first, whether it is in the children’s best interests to have equal time, and second, whether it would be reasonably practicable.
The reasons why it is not in the children’s best interests will become clear when I deal with the question of time more generally. So far as practicability is concerned, there is nothing to suggest any insuperable practical problem.
I then deal with substantial and significant time, which the Court is also required to consider. I have done so. The outcome will be explained when I come to s.60CC to which I now turn.
Section 60CC(2) raises two issues: first, there is no question that the children will benefit from having a meaningful relationship with both parents. No one suggests otherwise.
The second aspect is the need to protect the children from harm and the like, as set out in s.60CC(2)(b), that being a factor to which greater emphasis is required to be given. There is such a need in this case but not such as to prevent the children spending time with each parent which both propose.

Section 60CC(3)(a)

Turning to the matters in s.60CC(3)(a), both children have expressed views to Dr K but they are only 12 and 9 years old. Also, to judge by Dr K’s reports, these views occupied only a very brief time in the interview and were not explored in any detail and were made in the context of complaints about excessive changeovers, particularly on [Y]’s part.

Section 60CC(3)(b)

The children have good relationships with both parents and they have good relationships with Ms R, despite her not being called. This is what they told Dr K who found that they were not coached. They apparently have at least satisfactory relationships with Ms R’s children and with the mother’s boyfriend, [Mr D], and his two sons.

Section 60CC(3)(c)

The parenting of the children prior to separation was, in my view, unremarkable. The father worked and the mother stayed at home, but there is nothing to suggest any significant failure by either parent under this heading. Although the pattern has changed to an extent because of the spend time regime since separation, which has had its hiccups and interruptions, the fact that both sides have prosecuted their case to finality speaks for itself.

Section 60CC(3)(ca)

There were no significant problems before separation. Although the mother complains about child support and general support since separation, such difficulties as have occurred reflect the turmoil of the immediate circumstances of and post-separation and are not, in my view, now of any moment.

Section 60CC(3)(d)

This is important in this case. It is quite clear the mother was always the primary carer. The father expressly concedes that she is an excellent mum. To move the children to a 9/5 arrangement with the father would clearly be an unprecedented step likely to be distressing to the children. There are also real issues as to who would do the caring if they were with the father. The father says he has flexibility at work, but it is not at all clear he has been taking the children to school when in his care. Inevitably, in what is a co-mingled household, Ms R would be performing much of the caring. It is clear that Ms R is at least adequate from what the children told Dr K, but it is more desirable the children be with their primary carer. It is not clear what the effects on Ms R’s children would be if the children of this relationship were to be with her 9/5 instead of 3/14.

Section 60CC(3)(e)

This has no discernible role to play.

Section 60CC(3)(f)

Dr K found there was little difference in the parties’ parenting skills and from the evidence, I agree. The father admits, after all, that the mother is an excellent mother. The children told Dr K that the father never did anything bad to them. Both the mother’s and father’s new partners, despite limited evidence, seem okay. And I should note that this is the case even though both parents have significant deficits.

Section 60CC(3)(g)

This is also important. The children’s maturity and so on, are unremarkable. [X] has audial problems but this is being into appropriate control. The mother has deficits. Despite counsels’ endeavours to portray the parents as essentially suffering from the same problems, it’s clear that the mother has difficulties in the form of borderline personality traits. There are clear problems with impulsivities, as evidenced by the assault on Ms M. She also drove while drunk.
The truth is that both parents were drinking to excess in 2013, but the father either did not drive while in excess of .05 or, at the very least, had the good fortune not to be caught. It was not put to him in terms that he had, in fact, driven while under the influence of alcohol. Also, it is clear from what the children told to Dr K that the mother drinks more than the father. The mother impressed me also, albeit on brief observation in the witness box, as prone to quick and unrestrained anger, as evidenced by her attack on Ms M.
The mother’s continuing endeavours, abandoned effectively in final submissions only, to exclude Ms R entirely from the scene show a complete lack of insight. Accepting that the mother genuinely thinks Ms R assaulted her, which I do, in the sense that I accept that that’s her belief, although I make it clear I can make no conclusion whether she’s correct, the fact is that Ms R is the father’s partner and with whom he lives. The father is also, to an extent, problematic. He lacks insight. He denigrates the mother to the children.
On 27 June 2014, he demonstrated no insight whatever in the way he told the children about the mother being taken to hospital. He was unable now to say a single positive thing about the mother in Court. He still routinely smokes marijuana with Ms R. Both these parties, I regret to say, impressed me as being immature for their years. They are both obsessed with infidelities on the part of the other, even though both of them have re-partnered. There is, regrettably, room for trenchant criticism of both.
Section 60CC(3)(h) is irrelevant, and section 60CC(3)(i) has already been largely dealt with in other subsections. Section 60CC(3)(j) of course must be considered in the light of the wide definition of family violence in s.4AB of the Act. There has clearly been some family violence. The mother has hit [X] and yells at the children, as she says, “if they deserve it”. The fight involving Ms R would clearly have frightened the children. This is so even where I am not able to say whose version of the assault is correct.
Section 60CC(3)(k) points the Court to the all too numerous Intervention Orders on all sides and the conviction of the mother for the assault on Ms M.

Section 60CC(3)(l)

It is clearly desirable to bring this litigation to an end. The mother is keen to move on with work and life and I got the clear impression the father also. It is clearly in the children’s best interests for the tension of this litigation between their parents to come to an end.

Section 60CC(3)(m)

Counsel for the mother urged the Court to consider the effect on the mother if the children were removed from her. I accept that this would be serious, but the Court cannot make orders in the children’s best interests merely because the loser will be deeply upset. It is inevitable that one or other party will be distressed by the ultimate outcome.
This brings me to the question of my conclusion, bearing in mind

Dr K’s report and the father’s position which is clearly almost wholly based on Dr K’s report, the outcome would be 9/5 in the father’s favour.
I accept Dr K’s analysis of the mother’s behavioural traits but disagree with his consequential conclusions. It would appear that most, if not all, of the mother’s more florid behaviour took place around about the time of separation and in the tumultuous period thereafter. For all her faults, she has always been the primary carer. I do not accept that the father was the better carer as Dr K suggests. He was unaware of the extent of cooperation post-separation and the only relatively recent interruptions to overnight time on the part of the father.
Some of Dr K’s perceptions of the evidence suggest an unconscious overstating of it, such as, for example, he said, “the mother wanting time overnight at places specific to her request.” That is true on view but also mistakes the matter. What the mother wanted was not to control venue per se but to exclude Ms R. Dr K’s report laid emphasis on poor parenting by the mother as a result of personality difficulties and excess drinking, but she has always had personality problems and was an excellent mother according to the father. Drinking is a problem, but there is no suggestion that the children have not thrived with their mother.
In all the circumstances, the children should remain in the primary care of their mother who has been their primary carer all their lives. So far as a regime is concerned, I propose a 10/4 regime with the mother. There is no exact science to these matters. Dr K thought 9-5 but the children have not spent anything like even four nights per fortnight with the father since separation.
I think to jump to five in one go is too much. I would be minded to order Thursday to Monday in one block which is of course substantial and significant time but [X] thought a week without seeing a parent would be too much. The parties will be given an opportunity to consider the matter. Thursday to Monday would be, as I say, substantial and significant time. I will order it if the parties agree. Otherwise, there will need to be a night in the off week and one night less in the block.
Otherwise, I propose to make orders generally as proposed by the mother and Dr K but I will not exclude Ms R. It’s clearly not in the children’s best interests as they like her and, in any event, it’s not, as I understand it, perhaps now pressed. I’ve prepared draft orders which I will hand down in a minute and the parties may consider these and make any further submissions.
This brings us to the matter that really is urgent, namely, which school the children will go to, I presume, on Thursday. It is implicit the children should go to school near where the primary carer lives.
The mother’s choice must therefore prevail. It is not impracticable for the father who says he has flexibility, in any event, and the distances from [D] to [G] where the parties live are not gigantic in the scheme of things.
I note that on 23 January 2015, I received correspondence from
Mr Kessler which raised two issues, namely, a deficiency alleged in vaccination of the children and seeking an order to prevent the mother from changing the surname of the children. Vaccination issues, if they were pressed, would require a separate application and it is too late now.
So far as any change or surname prohibition is concerned, I will hear any submissions in due course that the mother wishes to make. Prima facie it seems to me that there ought not be a change of name but the matter has been raised at very late notice after the evidence has all closed, so scarcely easy to immediately respond.

Property

This brings us to property matters which mercifully I will be able to deal with slightly faster. First, the first step is to consider the High Court’s decision in Stanford v Stanford [2012] HCA 52 (“Stanford”) and to identify the legal and equitable interests in property of the parties and decide if an alteration to those interests is appropriate. Clearly, in this instance it is. The marriage is over and both parties seek it.

The Pool

Moving to the question of the pool, it is a small pool and more money has been spent arguing about it than in my view is appropriate. There are a number of agreed items. There are funds in trust from the sale of the former matrimonial home in the sum of $68,868. The wife had a Mazda worth $17,600 although she had spent $15,000 on a new Territory. The fact is that what she got was worth 17,600.
There is the father’s [vehicle omitted]. Shannons valuation referred to was for insurance purposes only and is not convincing. The father conceded $10,000 in his Financial Statement and I accept that concession. The father has a Transit van worth $18,660 and [omitted] tools agreed worth a value of $13,382. Disputed items including the husband’s and the trust’s tax debts for the year 2013 to 2014 – these are clearly post separation – will be excluded. The wife has the balance remaining of a $20,000 interim payment.
She spent $8,000 of that $20,000 on a bond and prepayment to rent. In my view, those moneys are not lost. The bond is refundable. The expenses on rent are a post separation expense, in any event. The full $20,000 received by the wife and the $10,000 received by the husband should be taken into account. The trust account shows a sum of $23,323 repaid to the husband in 2013 to 2014. The husband denied that any such funds exist.
In my view, this entry is the usual smoke and mirrors that one so often sees in these sort of accounting exercises. While I have no doubt that the entry has been made, it is quite unclear to me whether any funds passed hands. The husband’s denials seem sincere to me even though they were made from the bar table in final submissions. There are no other accounts, as I accept, to which the money could have been transferred. Those funds should not, in my view, be included.
The next issue is the husband’s redraw on the mortgage of $34,381. As to this, one notes paragraph 25 of the husband’s two affidavits. $12,856 of this sum are attributable to house related bills and expense. The wife’s evidence is that post separation, she mainly lived in the house. These bills themselves were not expressly challenged in cross-examination and should be deducted. Thus, the total extant from the husband’s redraw is $21,525.
The husband has asserted the wife redrew $14,981. It is impossible to work out what occurred. The evidence does not satisfy me that the husband has proved any figure under this heading. I note that there is no figure included in the husband’s spreadsheet, exhibit R1, dealing with this issue.
The next item is the $5,500 allegedly expended on preparing the former matrimonial home for sale. In cross-examination, the husband said this was all while the parties were together and had nothing to do with his redraw of $34,381. It therefore follows this sum should not be included. I note that the asserted wages for the husband of $1,158 per week would clearly be appropriate, in any event.
The next item is the trust and business. The wife proposes that the husband keeps it and the wife be indemnified, and the husband did not dispute this. The liabilities of the trust and the business, in any event, are unclear.
So the pool relevantly is: the sale proceeds of $68,868; the husband’s drawdown of $10,000; the wife’s drawdown of $20,000; the husband’s drawdown on the mortgage, $21,525; the Mazda, $17,600; the trailer, $2,000; Transit van, $18,600; [vehicle omitted], $10,000; and [omitted] tools, $13,382. Subject to the usual catastrophe that happens when I get involved in arithmetic, it appears to be a total of $181,975. I note that it is accepted that the wife’s credit card is $27,000 in debt. The husband has superannuation of $60,314 and the wife $8,500.

Contributions

This brings us to the question of contributions. This was a 20-year relationship during which both parties did their best. It is clear that their contributions should be assessed as equal. Neither had any real assets of significance at the start and a small inheritance on the part of the father is long ago. The alleged loss of $50,000 on the sale of the matrimonial home is not, in my view, established. Contributions to the mortgage post separation, which both parties laboured in their affidavits, were small and, to the extent that the mother paid, she was of course getting the benefit of living there.
Quite clearly, there should be a split of 50/50 on this heading. This is appropriate as an assessment of contribution also for superannuation because it was all garnered during the relationship.

Future needs

Turning to the question of future needs. The parties’ ages are much the same and their health is unremarkable. The husband is a [occupation omitted]. His income is minimised through the trust and associated arrangements. There is no real indication, I note, in the materials as to how much was income split to the wife during the relationship but the father had income insurance and was off work and paid by that insurance from August 2013 to February 2014.
Even on his version in cross-examination, he conceded receipt of something like $20,000 for the roughly six-month period he was off work. Given that income insurance is not likely to represent 100 per cent of actual income, I suspect he will make more than this. Put shortly, he will make a living. He appears also to have some measure of indirect benefit from living with Ms R who has an income of $600 per week and presumably pays her own rent as she is the tenant. Ms R was, as I understand it, living in her current premises for approximately six months before the husband moved in with her.
The mother is only just starting to go back to work and will be limited by the care of the children who are only aged 12 and 9. She is setting up a [business], however, and will have income.
In all the circumstances, in my opinion, there should be a 12 per cent adjustment in favour of the wife under this heading. Of this, the husband already has: $10,000 drawdown from the house; the further $21,525 from the drawdown; the Transit van, $18,600; the [vehicle omitted], $10,000; the trailer, $2,000; and his tools, $13,382, which appears to me to be a total of $75,507. The wife already has $20,000 from the house, $17,600 from her car and has a credit card debt of $27,000.
Sorry. That’s the problem with doing this is I can hardly even understand that last entry.
The wife says, in effect, that superannuation should be included in the pool and I accept that contribution as to super should be accepted at 50/50. However, in circumstances where failure to include super means the wife will not get anything like 62 per cent of the pool in practical terms, I think it is just and equitable to include superannuation. There will be a division of the total pool 62 per cent in favour of the mother and 38 per cent to the father.
The mother’s claim for spousal maintenance can be dealt with briefly. It is clearly not possible for the father to pay it. I will give leave to the parties to work out the nuts and bolts. I have prepared draft orders which I will hand down to the parties now, please.

RECORDED : NOT TRANSCRIBED

ORDERS DELIVERED

The parties have two choices. They may confer today, which might profitably be done about the parenting issues. But in respect of the property matters, it seems to me subject to the view the parties have, that I should have these reasons for judgment transcribed as a matter of urgency which would mean turnaround in 48 hours, provide them to the parties and give them an opportunity to be heard further when they have a fair opportunity to assess what I have said.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 3 February 2015

[2015] FCCA 195

27 January 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness