KINGSTON & HISS
[2016] FamCA 415
•30 May 2016
FAMILY COURT OF AUSTRALIA
| KINGSTON & HISS | [2016] FamCA 415 |
| FAMILY LAW – CHILDREN – Best interests – Where the children are at an unacceptable risk of emotional abuse in the mother’s care – Where the father has had sole parental responsibility of the children on an interim basis since trial – Where the mother’s time with the children is to be supervised until such time as agreed between the parties. FAMILY LAW – PROPERTY – De facto relationship – Where the mother denied the existence of a de facto relationship to receive Centrelink benefits – Whether just and equitable to make property adjustment orders – Where financial and non-financial contributions during relationship relatively equal – Where the father made a significant initial financial contribution – Where Registry manager ordered to send a copy of orders and reasons to Centrelink. |
| Family Law Act 1975 (Cth) ss 61DA , 90SF, 90SM |
| Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Mr Kingston |
| RESPONDENT: | Ms Hiss |
| INDEPENDENT CHILDREN’S LAWYER: | Patrick Dooley |
| FILE NUMBER: | BRC | 9067 | of | 2012 |
| DATE DELIVERED: | 30 May 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 9, 10, 11 & 13 February 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Shoebridge |
| SOLICITOR FOR THE APPLICANT: | Hooper Family Lawyers |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McDiarmid |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
Orders
Parenting
That all previous parenting Orders are discharged.
That the father shall have sole parental responsibility for the children, B born … 2008, C born … 2010 and D born … 2012, (“the children”) save for in respect of any decision to relocate the children to live in a place that makes it significantly more difficult for them to spend time with the mother pursuant to this parenting Order, which decisions shall be subject to shared parental responsibility.
That when the exercise of his sole parental responsibility, as provided for in paragraph 2 hereof, requires the father to make a decision about “major long-term issues”, as that term is defined in the Family Law Act 1975 (Cth) (“the Act”), in relation to the children, (save for the exclusion from that definition of decisions about the relocation of the children such that it makes it significantly more difficult for them to spend time with the mother as provided by paragraph 2 hereof), the father shall:
(a) inform the mother in writing of the decision to be made;
(b) invite written input from the mother;
(c)take the mother’s input into account when making the decision that is to be made; and
(d) inform the mother in writing of the decision he makes.
That the children shall live with the father.
That the children shall spend time with the mother as may be agreed in writing between the parties, but failing such agreement, on a supervised basis at the E Town Contact Centre:
(a)with all three children on each alternate week, or each week if available, on either Saturday or Sunday for the maximum period available at the E Town Contact Centre; and
(b)with the child D, for an additional period on one occasion each week until the child D commences school, for the maximum period available at the E Town Contact Centre.
That the parties shall share equally in all of the costs of the supervision of the children’s time with the mother conducted at the E Town Contact Centre.
That the children shall communicate by telephone with the mother between 6.00 pm and 7.00 pm each Wednesday and Sunday night (if they have not spent time with the mother on that day) with the father to make the call to the mobile telephone number provided to him by the mother for this purpose and the father to ensure that the children speak with the mother during such call, the father being entitled at his discretion to have the call on speaker phone at his end to monitor such call and, if he is satisfied that the mother is speaking inappropriately with the children, he may end the call but in such circumstances, if he does end the call for such reason, he must notify the mother in writing as soon as practicable thereafter of his reason for ending the call, setting out that which he asserts the mother has said to the children that he considered inappropriate to the extent of requiring him to end the call.
That the father shall authorise any school or day care centre attended by the children to give the mother information about the children’s educational and developmental progress and their involvement in school activities and to supply her, at the mother’s expense if necessary, with copies of school reports, photographs, certificates and awards obtained by the children.
That the father is restrained from:
(a)denigrating or criticising the mother to the children or allowing any third party to denigrate or criticise the mother within the presence or hearing of the children;
(b)discussing with the children these proceedings (save for the effect of the terms of these Orders insofar as the Orders affect the children).
That the mother is restrained from:
(a)denigrating or criticising the father to the children or allowing any third party to denigrate or criticise the father within the presence or hearing of the children;
(b)discussing with the children these proceedings (save for the effect of the terms of these Orders insofar as the Orders affect the children);
(c)being under the influence of alcohol or any illicit substances during any period in which the children or any of them spend time with her pursuant to these orders.
That the mother is restrained and an injunction hereby issues restraining her from permitting the children or any of them to come into physical or verbal contact with Mr F during any of the time that the children are spending time with her or communicating with her.
That the mother be at liberty to release copies of the two reports of Ms G, Social Worker, the report of Dr H, Psychiatrist, and any Reasons for Judgment of Justice Forrest to any counsellor, psychologist, psychiatrist, psychotherapist whom she may consult in the future.
That each of the mother and the father keep the other parent informed at all times of their residential address and mobile telephone contact numbers and each shall advise the other parent of any change to any of those details within 48 hours of such change.
That the Independent Children's Lawyer be discharged after one calendar month from the date hereof.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Property Adjustment and Costs
That the mother pay the father’s costs of and incidental to the contravention proceedings that were, in paragraph 16 of my order of 27 August 2013, fixed in the sum of $7,500.
It is declared that the mother and the father lived together in a de facto relationship, as that term is defined in the Act (as amended), for a period of approximately three years and four months ending on 16 February 2012.
That pursuant to s 90SM of the Act (as amended) the father shall pay the mother, within two calendar months of the date of these orders, the sum of $45,050 less:
(a)the sum of $1,500, being the amount of costs owed by the mother to the father pursuant to order of the E Town Magistrates Court; and
(b)the sum of $7,500 being the amount of costs owed by the mother to the father pursuant to paragraph (16) of these orders; and
(c)an amount being equal to half of the total fees paid by the father to Ms G, the family report writer in this matter, being the amount owed by the mother to the father pursuant to an order of the Federal Circuit Court.
That subject to paragraph (18) hereof, the father shall otherwise retain as his sole property all cash he holds in bank accounts, shares in companies registered in his name, all personal property, including any motor vehicle, in his possession, and any real property in which he has an interest.
That the father shall also retain as his solely all of his interests in any superannuation funds.
That the mother shall retain as her sole property all cash she holds in bank accounts, all personal property, including any motor vehicle, in her possession, and any real property in which she has an interest.
That the mother shall also retain as hers solely all of her interests in any superannuation funds.
That the father indemnifies the mother against any liability for debts in his name.
That the mother indemnifies the father against any liability for debts in her name.
That the Registry Manager of the Brisbane Registry of this Court is directed, forthwith upon determining who the appropriate person is within the Centrelink organisation or the Department of Human Services to whom suspected welfare fraud is to be reported, to send a copy of these orders and my reasons for judgment to that person.
All other applications for orders not dealt with in these orders are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kingston & Hiss has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 9067 of 2012
| Mr Kingston |
Applicant
And
| Ms Hiss |
Respondent
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
Over four days in February last year, I heard the trial in this parenting and property adjustment dispute between Mr Kingston and Ms Hiss who had lived in a de facto relationship for a few years and had three children of that relationship.
Because of events that occurred just prior to the trial, in which the three boys transitioned from the mother’s care to the father’s care, which gave rise to an interim application by the mother for their immediate return to her care, I made interim orders at the end of the trial and gave oral reasons for doing so at the time. By those orders, I left the children in the care of their father, gave him sole parental responsibility and provided for the time they spent in the mother’s care to be supervised. Essentially, I did that because I was satisfied on the balance of probabilities, notwithstanding her denials on the issues, that the mother’s capacity to care for the boys was impeded by her continued use of illicit drugs and because of the extremely turbulent nature of her relationship with her partner. In respect of the latter issue, I was also satisfied on the balance of probabilities that the mother was being subject to violence and abuse and that the children were subject to risk of physical and emotional harm if I returned them to the mother’s care. I determined that the best interests of the children were served at the time by leaving them in the full-time care of their father and I reserved my final judgment.
It is a matter of regret for me that my judgment has been reserved for as long as it has been. Such a long period of time between trial and delivery of a final judgment in parenting matters like this prolongs the uncertainty in the lives of the parents and in the lives of the subject children that being involved in a parenting dispute in the courts otherwise creates. The obligation to hear and determine so many other equally complex cases in the period since the trial concluded is the principal explanation for this delay. Having made an interim determination immediately after the trial concluded based on all of the evidence I had seen and heard, the concern the delay causes me is somewhat mitigated, particularly now as I have determined not to interfere with the father’s principal care of these three children on a final basis.
Some Background and Credibility Issues
At the time of trial the father was 44 years of age. He was working as a manager and was living in Suburb I. He was in a de facto relationship with Ms J. Their relationship had commenced in September 2012 and they had begun living together in September 2013. By the end of that year they had determined to marry. Ms J was employed as a manager in a supermarket.
The mother was 34 years of age at the time of trial. She was unemployed, also living on the E Town, though at the northern end, and was in receipt of Commonwealth income support benefits. She said she was doing some study towards obtaining qualifications that would qualify her to seek work.
Frankly, the mother’s credibility was a real problem for her during the trial. I found her to be a very unreliable and plainly dishonest witness. The evidence satisfied me that the mother was prepared to do and say whatever she thought might advance her position in life, and in Court proceedings she was involved in, including these proceedings, with scant regard paid to her obligations to be truthful.
I also found the mother’s partner at the time of the trial, Mr F, a very unimpressive witness. Indeed, though not an expert on the subject, I was quite concerned that he might have been giving his evidence in Court during the trial whilst under the influence of some illicit drug. His demeanour was quite extraordinary. My concern actually prompted me to ask him whether he had taken any drug prior to giving his evidence. He denied that he had, but I was far from convinced that was a truthful denial. Just as with the mother’s evidence, I considered Mr F’s evidence was generally untruthful and quite unreliable.
In contrast, I formed the impression that the father and his partner gave their evidence honestly. Consequently, where the evidence of the mother and her partner differed from the evidence of the father and his partner on matters of fact, I preferred the evidence of the father and his partner as far more likely to be representing the truth.
Some Relationship Background of the Mother and the Father
I am satisfied of the following facts.
The father and the mother started their relationship in April 2007. They met in the northern suburbs of Brisbane whilst both working in the hospitality industry. They broke up in January 2008, but soon thereafter they learned the mother was pregnant and determined to reconcile their relationship. The mother moved to the E Town, where the father was living, and in late September 2008 she moved into the place he was living in. That is when they commenced their de facto relationship in my determination. In or around July 2009, they moved into a rental property together at Suburb I. The father was still living in that same rental house at the time of the trial.
The couple’s eldest child, B, was born in 2008, just prior to their commencement of cohabitation. From then on, the mother engaged herself in full-time parenting and home duties, whilst the father continued to work in a management role in the hospitality industry. Their second son, C, was born in 2010.
The couple’s relationship foundered and they separated on a final basis in mid-February 2012, after just over three years and four months of cohabitation as a de facto married couple. Though they did not know it at the time of their final separation, the mother was again pregnant at that time and their third son, D, was born in 2012.
The circumstances of their separation were controversial. I accept the father’s evidence of what happened. An argument between them started when the mother expressed her distress at the fact that the father had brought flowers for her as a Valentine’s Day gift and brought them home to her at Suburb I rather than having them delivered to her at the place where she was undertaking a beauty therapy course at the time. The two little boys were present at the time of this argument.
The father walked away from the argument and went to the bathroom. A few moments later, the mother appeared in the bathroom holding a large knife and when the father asked her what she was doing she replied “I don’t know if I am going to use this on you or me”. The father grabbed the mother’s wrists and held her hands with one of his hands and removed the knife from her hands with his other hand. He took the knife back to the kitchen and put it away.
The father went back into the hallway and the mother then began to throw punches at his head. He restrained her arms and she began to knee him in the thigh. He turned her around so that she was facing away from him and held her at arm’s length from him with one hand on the back of her neck and one hand on her shoulder. He pushed her forward and stepped back to create distance between them. The mother then threw herself on the floor and started screaming out for the children to come to her, telling them their father was hitting her. The father told the boys everything was alright and he then left the home and subsequently moved out, moving back in after the mother and the boys moved out.
Sometime later, the mother brought an application for a protection order in the Magistrates Court at E Town based on a different version of events to that one. Essentially, she alleged that the father had been violent towards her in that incident and was the instigator of it. The father opposed that application and defended it. The mother asked the Magistrate for her application to be struck out on the day of the hearing after the father had incurred substantial legal costs in retaining his solicitors and a barrister to represent him.
Within a couple of weeks of that first application being struck out, the mother filed another application for a protection order based on the same incident, in which she made the same allegations she had made in the application she had just agreed to have struck out. Again, the father opposed it and engaged lawyers to represent him at the hearing. After that hearing, at which the mother gave oral evidence and was cross-examined, the Magistrate dismissed the mother’s application as being brought on a basis “which was deliberately false” and with “a lack of legitimate intent”. The Magistrate had expressly determined that he was “unpersuaded” that there had been any physical or sexual abuse of the mother by the father during their relationship as alleged or that there had been any economic abuse as alleged. He was not persuaded that there had been any domestic violence perpetrated by the father against the mother. The Magistrate also ordered the mother to pay the father’s costs of those proceedings.
Nevertheless, the mother maintained her allegations in this Court. However, like the Magistrate before me, I, too, was not persuaded that any of the allegations the mother made against the father about physical and sexual violence or financial abuse were true.
On the other hand, the father asserted that the mother would regularly yell and scream at him when she became angry during their relationship, seemingly struggling to deal with conflict any other way. He said she had, in fact, punched and kicked him during their time together. The father’s brother gave corroborating evidence about that. I accept that as truthful evidence. Importantly though, whilst the father said he worried about the mother’s impulse control around the children, he deposed to never having seen the mother inflict direct physical violence on any of the children. I accept that evidence, too.
After their separation, by agreement between the parents, the two little boys, B and C, began spending weekends with their father, going to him on Friday afternoons and being returned to their mother on Sunday afternoons. However, problems soon began to emerge in their co-parenting.
The mother started to criticise the father’s parenting capacities. At around the same time though, she began making financial demands on the father arising from her beliefs about her entitlements to property adjustment between them. She began linking these demands and her position in respect of her perceived financial entitlements to co-parenting arrangements.
The father made recordings of conversations he had with the mother from around mid-2012 without the mother’s knowledge and consent. He did so, he said, after the mother alleged that he had threatened to take the children from her and to harm them when he had not. I accept that as truthful. He adduced part transcripts of those conversations into evidence. Although the mother initially asserted they were “doctored”, she ultimately accepted she had said the things that were reflected in the transcripts. That evidence reflected poorly on the mother.
It was also around this time that the mother commenced her relationship with Mr F, the man who was still her partner at the time of the trial in February last year.
In or around August, 2012, the mother completely stopped allowing the two boys to spend time with their father. The father immediately sought the intervention and assistance of a family relationships centre and when mediation was unsuccessful in re-establishing the father’s time with the boys, he commenced these Court proceedings in the Federal Circuit Court (“the FCC”). Initially, the father just sought interim parenting orders that provided for the boys to continue living with the mother and to spend time with him on a regular basis over weekends and in school holiday periods. The final orders he sought, though, included orders providing for the boys to live with him and to spend time with their mother.
The couple’s third child, D, was born in 2012.
The mother did not permit the boys to spend time with the father right through until the time that the FCC made a parenting order in mid-February 2013 that provided for them to again start spending time with the father. The mother only filed her Response just prior to the first return of the father’s application before the Court. Although she had not permitted the boys to spend time with the father since August 2012, in her Response she sought orders that permitted them to spend time with him from then on. The mother also cross-applied for property adjustment orders to be made in the same proceedings.
Orders were made by the Court with the consent of both parents. The first orders made by the FCC provided for B and C to spend time with their father from 9.00 am until 3.00 pm on Saturdays with handovers taking place under the supervision of a private, commercial provider situated at the northern end of the E Town. The baby’s time with the father was limited to one hour at the end of that time, each fortnight, under the supervision of that commercial provider. The time with the two older boys was to progress back to overnight on weekends around mid-March that same year.
A family report from an experienced social worker was also ordered to be prepared to assist the Court.
The orders also provided for the father to make a payment of $10,000 to the mother by way of partial property settlement.
The first family report and emerging allegations of abuse
The family report writer saw the family in mid-March, had some follow up telephone communication with the mother and with the commercial supervisor, and then wrote her report in early April, 2013. A number of significant matters emerged through that reporting process.
Immediately after the interviews for the family report took place, the mother again unilaterally stopped the boys’ time with the father. Just after she did that, she made complaints to the Department of Communities, Child Safety and Disability Services (“the Department”) and to the police about things the boys had said and done and other matters that caused her to be concerned that the father could be sexually abusing them. The mother also told the family report writer after the report writer contacted her to discuss with her the reasons for unilaterally stopping the boys spending time with the father. Significantly, she had not mentioned any of these things when she was first interviewed by the report writer only days before.
The report writer had observed the two oldest boys and their father interacting warmly and naturally and was of the opinion that the boys very much enjoyed their time with their father. She had spoken to the commercial supervisor who she reported told her that the two older boys were both excited to see their father on each visit that had occurred.
The report writer expressed the view that the boys were well attached to both of their parents and raised some significant questions about the veracity of the mother’s accounts of their relationship history and thoughts of the father’s parenting role and capacity, particularly given the history of immediate post-separation agreed co-parenting. Quite appropriately, the report writer expressed the view that it was a matter for the Court to assess the veracity of the parents’ competing factual claims.
The report writer recommended the appointment of an Independent Children’s Lawyer (“ICL”) and that the boys’ time with the father be reinstated, subject to the Court’s satisfaction about risk in his care.
In mid-April 2013, the FCC Judge made further orders for the supervision of the children’s time with the father, appointing an ICL and transferring the proceedings to this Court.
The mother again unilaterally determined not to comply with that order and withheld the children from the father. In particular, at this time, the mother alleged that the children were being sexually abused by their father even whilst spending time with him under the supervision of the commercial provider. She alleged that the supervisor was not doing her job properly and that the abuse was even being directed at the baby when his nappy was being changed.
The complaints made by the mother were not substantiated by the Department and the police took the complaint no further after they interviewed the father, after already interviewing the boys and getting very non-specific disclosures that the father had touched them on the “willy”. The mother, nevertheless, started taking the boys to see a psychologist who subsequently reported disclosures made to her by the boys.
After no time with the children for the next few months, the father filed a contravention application. That came before me on 27 August, 2013 and when called on, the mother, represented by counsel, immediately pleaded guilty to contravention without a reasonable excuse. She made no defence based on a belief that the children had been sexually abused by the father. She consented to orders compensating the father for the time that he had been deprived of by her actions. She agreed to enter into a 12 month good behaviour bond. That was conditioned upon her compliance with the parenting orders and attendance upon a Parenting Orders Program conducted by Relationships Australia as well as a Triple P parenting course. At the trial, it was agreed that she had undertaken such courses.
After a few weekends of the reinstated visits, the commercial supervisor of the handovers withdrew her services, citing the mother’s behaviour as the reason for doing so. The mother then suggested the father’s time again be put on hold in the light of that supervisor’s withdrawal but the ICL insisted that handovers then take place outside the Suburb K Police Station. The mother was unhappy with that and initially refused.
In September 2013, the mother submitted to a drug test as requested by the ICL. The mother’s test results revealed that opiates were detected in her urine sample. Small amounts of codeine and morphine were detected. The father submitted to a test and it returned a clear result.
In mid-September 2013, a Registrar of the Court ordered the mother to attend at a children’s contact centre so that changeovers could begin happening again as soon as possible. The mother then asserted that she could not afford to travel to that contact centre and accepted that changeovers could then take place outside the Suburb K Police Station.
The changeovers began happening at the police station and the children then spent time with their father pursuant to the orders up until just prior to the trial. These changeovers were nevertheless attended by complaints made by each party against the other as to poor behaviour of the other parent (and the mother’s partner) displayed at the changeovers. I am quite satisfied that the complaints the father made against the mother and her partner were well-founded. I am satisfied the mother was taking the boys to spend time with their father under sufferance and misbehaving in conjunction with that.
In late 2013, the parties saw Dr H, psychiatrist. Dr H provided a report to the ICL and that was adduced into evidence at the trial. Whilst Dr H found that the father might have some personality vulnerabilities, including some obsessional features, he did not consider the father suffered from a personality disorder or any major mental illness. He also expressed the view that the mother did not suffer from a psychotic illness or a major mood disturbance but that she likely has significant personality vulnerabilities. He noted, interestingly, that the mother had withdrawn her allegations that the father had sexually abused the children in some way.
Dr H strongly recommended that the mother seek a referral to a suitably qualified mental health practitioner or psychiatrist to assist her in managing the complexities of a co-parenting relationship with the father given her strong negative views of him. Although she had seen a psychiatrist once in September, 2013, prior to the recommendation, there was no evidence that she had seen another by the time of the trial in February 2015.
The family report writer updated her report in April 2014. She again met with both of the parents. She also met their respective partners and she observed the children in their parents’ company and spoke with the children alone.
In her assessment and conclusions, the report writer again raised clear concerns about the mother’s honesty, in particular, in claiming that she and her partner did not live together and that she was just a tenant in his house whilst he lived on his yacht. She reported that the boys quite clearly told her that the mother’s partner did live with them.
The report writer was also very concerned about the fact that the eldest boy had again told her that his father had touched his “willy” and used to punch their mother. I got every impression that the report writer was particularly worried that the mother may have continued to espouse and reinforce those ideas, probably even encouraging the boy to tell the report writer these things before the interview, even though she purported to tell the report writer that she did not hold to the views that the boys had been sexually abused anymore.
The report writer went on to say that if the Court finds there is nothing in the sexual abuse allegations then the mother’s behaviour in respect of them amounts to a serious form of emotional and psychological abuse in itself. The report writer expressed the opinion that if the Court found that the mother was placing the children in such a compromising position because she wants to discredit the father at all costs then the question as to whether she is an appropriate person to be caring for the children needs to be asked. She said that whilst all three children are strongly attached to their mother, questions of comparative risk of harm to the emotional wellbeing of the boys would seriously need to be considered. She said that a continuation of the existing dynamic would ultimately place at risk all three children’s relationships with their father.
The report writer wrote that it is in the best interests of the three boys to have a positive and meaningful relationship with their father and that his ongoing presence in their lives is an essential balancing influence. She also expressed the view that the father’s new partner’s presence in their lives is likely to be another positive influence. The report writer recommended at that point that the children remain living with the mother and increase, over time, the amount of time they spent with their father. She concluded though by saying “if there is evidence to suggest that the mother is not supporting the children’s relationship with their father appropriately, then the Court may need to consider a change in the primary care arrangements for the children.”
In November, 2014, the mother submitted to a drug test requested by the ICL. She returned a clear test. The father also returned a clear drug test result. In December, 2014, the mother failed to submit to a drug test requested by the ICL and the father returned another clear test result. In January, 2015, the month before the trial, the mother again failed to submit to a drug test as requested by the ICL. Her evidence given at trial as to why she did not undertake these drug tests did not impress me nor persuade me to accept her stated reasons for not taking the drug tests. Those included that she thought the ICL was singling her out unfairly and that it had been less than a month since the previous request. The December test was indeed requested within a month of the November test but she did not undertake the December test and then again refused to undertake a test when asked in January, 2015, nearly two months after her last actual test. I was very worried from the evidence I read and heard and from my own observations of the mother that she was using drugs during this period in the lead up to trial. Her life was, by my assessment at least, chaotic and disordered at this time.
Indeed, the school records that were tendered into evidence showed that in 2014, the child B had missed quite a few school days, and, further, had been delivered late for school on many, many school days throughout the year.
At the compliance check a few weeks out from trial, the mother, by then representing herself, had not turned up to Court until an hour or so after the matter was called on and dealt with. During the trial the mother turned up late for the start of Court on more than one of the days. She could give no good explanation for the apparent turmoil all of these matters demonstrated in her life.
Critical evidence about the mother’s partner and events just before the trial
Significantly, there was no dispute that during the period of the cohabitation of the mother and the father between 2008 and 2012 (the period during which I am satisfied they lived together in a de facto relationship), the mother received sole parenting pension and related payments from the Commonwealth. Though she maintained the argument that she believed she was entitled to receive it as the father was allegedly not supporting her and the children during that time, I was quite satisfied that she was probably not lawfully entitled to receive those payments due to her personal relationship and living status and that she well knew that. In that respect, I also accept the father’s evidence that he told the mother that she should stop claiming such benefits when she was not entitled to, but that the mother refused to do so, telling the father that he just had to go along with it.
Proceeding from that circumstance, several months after the final separation of the parties, the mother met and commenced a relationship with Mr F. They met through an online dating website. Initially, the mother asserted that they were just friends and that she just took up residence with the boys at a property owned by Mr F at Suburb K which he provided to her on favourable rental terms as she would let him move in each second weekend when he had his own daughters of his former marriage spending time with him there. Both the mother and Mr F asserted in affidavit evidence and at the trial that they did not live together in a de facto relationship. It was asserted that Mr F lived on his yacht that he had moored at Suburb L. At trial, Mr F described himself as a self-funded retiree who made his money owning transport businesses and businesses associated with the mining industry. This was somewhat surprising as Mr F was far from normal retirement age, at least by my judgment.
All the time, the mother was again in receipt of the sole parenting pension and related payments from the Commonwealth, including, as I understand the evidence, rental assistance for allegedly being a tenant in the property owned by Mr F. Again, I am quite satisfied that both the mother and Mr F knew that she would not have been entitled to these benefits if she had declared to Centrelink that she was actually living in a de facto relationship with Mr F.
As the matter progressed towards trial, the mother began to describe Mr F as her boyfriend but still denied that she and he lived together. This contrasted with the relatively innocent transfer of information from the boys to the family report writer in which the boys left the report writer in absolutely no doubt that Mr F lived with them. They even were reported as referring to him as their “step-dad”.
I am satisfied that the mother and Mr F were actually living in a de facto relationship from when she moved into his Suburb K property in 2012 until the trial in February 2015.
Evidence adduced by the ICL from NSW Police revealed that Mr F had perpetrated some very serious physical violence against his former wife when they lived together in NSW in May 2011. The documents revealed that she had complained that he had attempted to smother her with a pillow and grabbed her around the throat and applied a choking hold for some time before telling her that he would kill her and kill the children and anyone associated with her. Those documents reveal that she complained that he said “this is nothing, what I have done. Go and call the fucking cops” and then pushed her out of the bedroom, before shutting the door behind him. She saw, in a mirror, that she had bruising under both eyes, a cut to her face and swelling to her nose. The documents revealed that she had complained that he then acted as if nothing had happened, ordered her to get the children into the car and took them all to the zoo. She complained that over the next five days he would not let her go anywhere, but that after a time, he kicked her and their children out of the home. Mr F’s former wife had obtained a protection order from a Court in that State, directed at protecting her from his violence. There were records of complaint of his breaching that order too. The records reflect complaints made against Mr F of drug abuse as well.
Under cross-examination during the trial, Mr F denied the substance of these events as revealed in the police records. He asserted that the allegations were made up against him by his former wife to damage him. I did not believe his denials. He denied the allegations of drug abuse. I did not believe those denials either.
On Wednesday 21 January, 2015, pursuant to the then current orders, the child, D, was to spend time with the father – a few hours. However, before that time began, the mother asked the father if he could take all three boys and look after them overnight and return them to her at 5.00 pm the next day. That was uncharacteristic of her. The father nevertheless agreed and looked after all three boys that night.
The next day, Thursday 22 January 2015, the father was driving the boys to the agreed drop off location at Suburb M when the mother texted him and asked him to drop the children to her at an address in Suburb N instead, which was unknown to him. The father said that as he approached the address with the boys, he saw the mother running down the road. He pulled over to ask her if she wanted a lift and she told him she would walk as it was just down the road. He drove to the address and waited. He said that the mother was acting in “a very scattered manner, very fidgety, nervous and apprehensive.” He said she appeared to be extremely thin and could not maintain eye contact with him. After he delivered the children into her care, he watched the children walk across the road with her and up the driveway into the property that was there.
When he got home, he sent the mother a text message out of concern for her and offered to look after the boys for her for a few days if she needed that help. She sent him a text a little while after telling him she needed to speak with him “without cameras or audio or partners”. He texted her back and said he would talk with her and he then asked her if she and the boys were okay. The mother’s blunt response was “no”. He telephoned her then. He said she sounded very distressed and he agreed to go and meet her. He took his partner, Ms J, with him.
At 8.20 pm, he arrived back in the street outside the place where he had left the boys with the mother. The mother and the boys were in the mother’s car and an RACQ roadside assistance van was there with her. It was raining heavily. The father noticed that the mother’s car was packed with personal belongings. The mother said to him “I don’t want you to say I told you so”. The father took the boys and put them in his car with Ms J and went back to talk to the mother alone.
The mother asked the father to pay the RACQ person for a new battery and he did. The father asked the mother what was going on with Mr F and she said he had “gone crazy”. The father said to her “we all know he is a nutter” and the mother responded “when did you work out he was a nutter?” The father said “from the start”. The mother said “I only worked it out about half way along”. She then said “you should see the messages he’s been sending me. They’re vicious.” The father asked her had she reported him to the police, to which she said she could not because [Mr F] would go to gaol if she did.
He then asked her if Mr F had hurt the children. The mother responded “not physically, only emotionally.” He asked the mother what she meant by that and she said “well, he has them believing he is their father.” The mother then asked the father if they could drive away from that spot as Mr F knew that house. The father said the mother seemed dazed and confused and appeared to have trouble focusing. He agreed though.
The father, his partner and the boys followed the mother’s car for about 2 kms before they stopped again. The father got out and approached the mother’s car again and asked her what she intended to do for the night. She said “I’ll just sleep in the car.” The father said to her “no, you can’t do that. Can you go and stay back at that house?” The mother said “no, the guy that lives there is just as crazy as [Mr F].” The father offered the mother $100 and she refused saying to him “we’ve been in motels since Friday” and have “already spent too much money”. They parted company shortly thereafter.
The father said that whilst he was driving the children and Ms J home, the mother called him again and asked him “Did you give me that $100” to which he responded “no, you didn’t want it.” He then offered to pay for a room, when she found one, by credit card over the phone. He told her to get reception to call him to arrange that. He said he did not get such a call.
The next day, Friday 23 January, 2015, the father texted the mother again about his concerns for her and the children in respect of her relationship with Mr F. Then the mother responded with the extraordinary assertion that the children and she and Mr F were fine. She then began accusing the father of playing games. The father consulted with his solicitors and determined to hold on to the children in the face of the mother’s demands that he immediately return them to her.
The mother applied to the Court for an urgent recovery order, saying nothing in her supporting affidavit about the events of Thursday evening 22 January 2015. When I read the father’s affidavit in response, I determined to leave the matter to be heard as part of the trial. As I have already said, I determined, at the end of the trial, to make interim orders leaving the children in the father’s care. I accepted all of the father’s evidence about the events in question and rejected the mother’s denials of it all.
At the trial, the mother denied that she had any trouble with Mr F at all or that she was trying to avoid him that night. Her case was that the father had made up most of the story he told about the night. The mother’s story did not fit together. It did not make sense. It was as if she had made up big parts of it in advance of the trial and was making up other parts of it on the go, in the witness box.
She said that she and Mr F and the boys had stayed at a hotel at Suburb O for a few days leading up to Wednesday 21 January, but she could not say when they had checked in there. She asserted that Mr F’s Suburb K property was undergoing some renovations that forced them out of the place. Critically, she could not give any explanation at all for why she had asked the father to take the three children overnight on Wednesday 21 January, apart from some assertion about the renovation of the Suburb K home that made it dangerous for the children. However, she said that she had stayed that night back at the Suburb K house. I did not believe the evidence about the house undergoing renovations and that being the reason for her being away from that property.
The mother denied that she was erratic on the night of 22 January, though she conceded she was “sooky” and crying. She said that night she was going to be staying at a motel with Mr F and not at the Suburb K house. She said she contacted the father to ask for his help with paying for the battery rather than Mr F as Mr F was away in Sydney. She said Mr F had driven down to Sydney that day to look at boat parts and she was awaiting his return that night. She said that her personal possessions were still in the car after having stayed at the hotel the few days before. She repeatedly denied being drug affected that night.
I did not believe the mother’s evidence. I did not believe Mr F’s evidence given in support of the mother’s. I was satisfied the mother was lying to cover up the seriousness of what her behaviour and words uttered to the father on Thursday 22 January, 2015 actually revealed.
The mother’s behaviour and evidence about Mr F during the course of the trial followed a dramatic course. At the outset of the trial, the mother was asserting that her relationship with Mr F was going well and that they had recently agreed to marry. She proudly displayed a ring on her finger featuring a rather large stone that looked like a diamond. She proudly asserted that it was her engagement ring given to her by Mr F. However, the mother asserted that she was unrepresented in the trial because she could not afford to pay for lawyers and when she was asked why Mr F, an apparently wealthy self-funded retiree, was not financially assisting her in this respect, she could not explain it. Indeed, her reaction to that line of questioning suggested some sudden developing concern about that issue on her own part.
Mr F gave his evidence after the mother on the third day of the trial. He was asked questions about his financial support of the mother, the woman he said he was going to marry. His answers were vague and unconvincing. The next day, the last day of the trial, the mother came to Court without Mr F and then told the Court that her engagement to him was now broken off and that she had suddenly moved out of his property. She effectively said that his evidence given the day before had been a revelation for her and that she no longer wanted a relationship with him.
These developments were all very troubling and contributed significantly to the decision I made at the end of the trial. So, too, did the father’s evidence, which I accepted as truthful, that the boys had told him since coming into his full-time care on 22 January that Mr F had hit them with a stick as a form of physical discipline and that they are frightened of him.
Some other important developments at the trial
At the very beginning of the trial, counsel for the ICL asked the Court if the mother could be asked to inform the Court if the allegations of sexual abuse of the children by the father formed part of her case or not. When asked, the mother told the Court, with little hesitation, that she no longer maintained the sexual abuse allegations against the father. In fact, during the course of the entire trial the mother tried valiantly to persuade the Court that she had now adopted a far more conciliatory, co-parenting approach with a view to reducing the amount of conflict the children might be exposed to. I was satisfied that this was nothing but the utterance of platitudes in the face of the reality that the children were now actually in the father’s care and the mother’s awareness of the fact that there was a high probability that they would remain in the father’s care after the trial.
Of further note, the mother had filed an affidavit sworn by her mother and sought to rely upon it in support of her case. The Court was informed that the mother’s mother was required for cross-examination on her evidence. The mother was told that this would require her mother to come to Brisbane and make herself available for cross-examination. The mother then informed the Court that her mother would not do that as she did not want to get involved in the case to any further extent. The other parties then objected to the reading of that affidavit and I upheld the objection and would not allow the mother to rely upon it.
The family report writer, Ms G also gave oral evidence at the end of the trial. She was told about the events that had happened on 21, 22 and 23 January and was asked to consider the matter as if the evidence of the father was accepted as representing the truth and the evidence of the mother was rejected. She was asked whether she thought that in such circumstances unsupervised time with the mother presented risks to the three boys. Ms G said that unless the Court could be satisfied that the mother had an attitudinal change there would be a real risk that she would continue to undermine the father’s place in the children’s lives and that would place the children in a very difficult position. Ms G expressed the view, based on an acceptance of the evidence of the father and rejection of the evidence of the mother, that supervision of the children’s time with the mother would probably need to continue until there was some level of satisfaction that the mother could behave appropriately around the boys. Ms G acknowledged that the mother would, in such circumstances, grieve and would need support whilst she dealt with the significantly changed arrangements until she adjusts and “gets in step with the new program”.
That expert evidence, which I accepted, added to the weight of the evidence that persuaded me to make the interim orders that I did at the end of the trial.
Final parenting orders
Dealing firstly with parental responsibility, I am satisfied that the conferral of sole parental responsibility for the children upon the father contained within the interim orders of 13 February, 2015 should continue, along with the continuation of the requirement for him to at least consult the mother when decisions about “major long-term issues” are to be made and to take any input she gives into account.
I am quite satisfied that the statutory presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility for them does not apply in this case, as the Family Law Act 1975 (Cth) (“the Act”) provides for in circumstances where a parent or a person who lives with a parent, has engaged in abuse of the child or family violence (s 61DA(2)). I am equally satisfied that the father has the capacity to appropriately exercise sole parental responsibility and to engage with the mother on that as required and that such is in the best interests of these children.
I will maintain the orders that I have made on an interim basis in respect of parental responsibility.
Further consideration of all of the evidence in this case does not lead me to change my previous determination that it is in the best interests of these three boys for them to live principally in the care of their father. The father demonstrated stability in his life, having worked as a manager for some time leading up to the trial and having entered a new relationship with a woman who also appeared to me to demonstrate stability and commitment to the relationship and to assisting the father to care for the three boys. The father had also demonstrated thoughtfulness about the schooling arrangements for the boys and also in respect of what flexibility he might need to have in his employment in order to accommodate in his household his full-time care for these three boys.
I am quite satisfied that the father had an appropriate attitude to the importance of the mother in the three boys’ lives and of the need for them to maintain and continue to develop meaningful relationships with her. Sadly, I could not find the same in respect of the mother.
The real issue for determination at this point in the matter, in my judgment, is the nature of the time that the children are to spend with the mother. Should that continue to be supervised? Should it progress now to unsupervised time?
The mother’s current circumstances are not known to the Court. It is impossible for the Court to say that the mother’s attitude has improved. The Court does not know if she did indeed terminate her relationship with Mr F. The Court does not know the mother’s current personal circumstances, her employment circumstances, her financial circumstances. The Court does not know if the mother has been consistent in attending at the children’s contact centre and maintaining contact with the three boys in the period since the trial.
I am, therefore minded to leave in place the requirement for the children’s time with the mother to be supervised for the foreseeable future, conscious of what I consider to be a number of important factors. Firstly, I accept that indefinite, long-term supervision of these three boys’ time with their mother is not likely to be in their best interests, particularly if the mother is able to get her life into some order and is able to ensure that the boys are not exposed to physical and emotional harm in her unsupervised care. I currently hold some degree of optimism about the prospects of that. Secondly, I am of the view that the father has demonstrated his clear capacity to act in the best interests of these three boys and that he understands the importance of them maintaining and continuing to develop a meaningful relationship with their mother. Indeed, the family report writer spoke positively of the protective stance the father had taken in this case when expressing the view that she thought he had the capacity to determine himself if the boys would benefit from any further counselling. Thirdly, I am satisfied that the mother has the capacity to advocate to the father for change to the arrangements if and when she considers that the time to move to unsupervised time with the boys has arrived. I also consider that she has the personal capacity and determination necessary to bring the matter back before a Court vested with jurisdiction under the Act for the matter of the boys’ time with her to be reviewed if she considers that the father is unreasonably refusing to move to an unsupervised co-parenting arrangement.
Of course, whether the mother is able to convince the father or the Court (if the father unreasonably refuses to vary the existing arrangements) that she is ready for unsupervised time with the boys, will very much depend upon all of her personal circumstances. Accordingly, she will need to be quite frank and honest with the father and, potentially, the Court about these things – far more honest than she was up to the time of the completion of the trial.
Accordingly, I will leave any transition from supervised time to unsupervised time to be determined by agreement between the mother and the father. I will not discharge the ICL until a date four weeks from the date of the delivery of this judgment, just so that the ICL may have some input in providing his own views about this question to the father and the mother with a view to promoting agreement between them on the issue, at least in the immediate future.
I will continue, on a final basis, all of the other interim parenting orders I made on 13 February 2015, considering them all still to be in the best interests of the three boys.
Property adjustment
The mother also sought property adjustment orders from the Court pursuant to the provisions of s 90SM of the Act. At the end of the trial, the mother handed up a draft of orders that she asked for. That included an order that the father pay her $100,000 if the children were to be living with the mother and that each party otherwise retains all assets, superannuation interests, shares and cash as they hold.
Interestingly, for the father it was pointed out that the mother had previously denied the existence of a de facto relationship between them both to Centrelink in claiming and receiving a sole parenting pension payment during the time of their cohabitation and also in the E Town Magistrates Court when seeking a protection order there pursuant to Queensland State family violence legislation. It was submitted that perhaps she ought to be held to that position in respect of this issue and thus be denied any benefit of this Court’s jurisdiction to make property adjustment orders between parties to a former de facto relationship that the Court considers appropriate and is satisfied is just and equitable.
However, although I accept that the mother did not declare the existence of the de facto relationship to Centrelink, she certainly deposed in this Court to living in a de facto relationship with the father from around the middle of 2009 until February 2012. The father says very much the same in his own affidavit of evidence in chief, never denying the existence of a de facto relationship between him and the mother. In fact, he asserts they commenced cohabitation in late September 2008, at the E Town, soon after their first son was born. Accordingly, I have no hesitation in determining and declaring that the mother and the father lived together in a de facto relationship, as that term is defined in the Act. I am satisfied that it existed for a period of around three years and four months ending on or around 16 February 2012 and will include that in my declaration.
That determination confirms the Court’s jurisdiction to make property adjustment orders as between the mother and the father pursuant to s 90SM of the Act where the Court is satisfied that, in all the circumstances, it is just and equitable to do so.
The property of the parties to the de facto relationship or either of them
The mother’s evidence at trial was that she had a 4WD which she said was worth $20,000, she owned $1,500 worth of household goods and she had $580 in a bank account that she held on trust for the three children. She deposed to having an interest of $4,295 in an AMP managed superannuation fund. She deposed to owing her parents $53,000, AGL the sum of $1,500 for an outstanding gas and electricity bill and $3,500 on her Mastercard. It is to be noted that she also had the benefit of $10,000 paid to her by the father by way of partial property adjustment after these proceedings were commenced. The mother said the father had $165,821 in three different superannuation funds and approximately $190,000 in various bank accounts and share portfolios as well as $3,000 worth of furniture. She said he had no liabilities.
For the father’s part, he gave evidence as follows in respect to their property, superannuation and liabilities:
ASSETS
No.
Ownership
Description
Value
1.
Husband
Westpac A/c: …
$76,045
2.
Husband
VZ Plus A/c: …
$90,047
3.
Husband
E-Trade Account
$2,391
4.
Husband
Shares
$24,994
5.
Husband
Household Contents
$2,500
6.
Husband
Jewellery
$500
7.
Husband
Motor vehicle
$4,000
8.
Wife
4WD
$25,777
9.
Wife
Household Contents
$5,000
10.
Wife
Term Deposit money transferred to Wife’s mother
$18,500
11.
Wife
Part property settlement referred to at 15 and 16 of the orders made 14.02.13
$10,000
$259,754
LIABILITIES
Nil
NET TOTAL
$259,754
SUPERANNUATION
No.
Ownership
Description
Value
12.
Husband
ANZ Super Advantage
$85,224
13.
Husband
Host-Plus Super
$57,699
14.
Wife
AMP Super 30.06.12
$3,787
$146,710
TOTAL NET ASSETS (including Super)
$406,464
Pursuant to the High Court decision of Stanford v Stanford (2012) 247 CLR 108 there is a need for the Court to be satisfied that it is just and equitable to make property adjustment orders at all, in all the circumstances of the case. In order to do that, I consider it necessary to set out and consider some more factual matters relating to the property of the parties or either of them.
The mother said that at the commencement of her cohabitation with the father she owned a car worth $8,000 (in respect of which there was a debt of the same amount owing). She said she also had $18,000 in a term deposit. She said that had come from employment separation payments she had received that she said totalled $10,600 and the Commonwealth Government’s $5,000 baby bonus. She said also that she had about $2,000 worth of personal possessions and $10,000 interest in a superannuation fund.
The mother also said that she owed her parents $11,000 at the commencement of cohabitation as they had taken over the debt incurred by her in the purchase of her car and they had also paid for $3,000 worth of essential baby needs.
The father took issue with the mother’s estimate of value of her car at the commencement of cohabitation. He said that it was only worth $3,000 in September 2008. In respect to the mother’s assertion that she had a term deposit of $18,000, his evidence was that she accumulated that money by depositing her pension payments after they were received. He does not specifically refer to her evidence as to the source of the funds she held in the term deposit, but the mother’s figures were $2,400 short of the $18,000 amount in any event. Without documentary evidence, on the balance of probabilities, particularly having regard to my findings on credit, I find that the mother received $10,600 on employment separation not long before the birth of their first child and did receive the $5,000 baby bonus after B was born, around the time, and probably after the commencement of cohabitation. Any further accumulation in the amount that was subsequently invested in the term deposit, I find was after cohabitation had commenced and probably came from the mother’s receipt of pension payments.
The father did not challenge the mother’s assertion that she owed her parents $11,000 at the start of their cohabitation. Accordingly, I accept that.
The father said that at the time they commenced cohabitation in late September 2008 he had approximately $147,000 in cash in bank accounts, $55,642 worth of shares and $75,426 in various superannuation funds. That is a total of $278,068. I accept that. The mother listed $218,124 worth of assets held by the husband at that time but acknowledged that was an estimate and that she was not able to “state with any certainty” what he did own.
The father’s evidence, which I also accept, is that at separation in February 2012 he had approximately $117,000 in cash in bank accounts, $114,230 worth of shares and $106,463 in superannuation funds. That is a total of $337,693. The table above shows that the husband said that by the time he swore his trial affidavit that had become $168,483 in cash in the bank, $24,994 in shares and $142,923 in superannuation funds. That is a total of $336,400. Though that was nearly as much as at separation, it was about $38,000 less in cash and shares with an increase in the valuation of his superannuation by nearly as much.
The mother said in her affidavit evidence that at the date of her separation from the father she still owed her parents the amount of $11,000. She also said that by the time she swore her affidavit, she owed her parents $53,000, even after having already repaid them the sum of $18,000 from the money she held in the term deposit at separation. She deposed to owing her parents this money as they had paid for the purchase of a new car for her, they had paid bond and rent money for her, they had paid removalist expenses for her, they had paid for the purchase of white goods for her and they had paid legal fees for her. The mother’s evidence is that the car was purchased post-separation. Although she does not expressly say it was, I am satisfied by the nature of the other things that she asserts her parents paid for that it was all post-separation expenditure.
Piecing the mother’s evidence together as best I can, on her case she owed her parents $11,000 at the end of the relationship (that she had owed at the commencement of cohabitation), and she seemingly owed them a total of $75,000 at one point post separation (having repaid them $18,000 from the term deposit and $4,000 out of superannuation entitlements she accessed post-separation). I consider that means she asserts she became indebted to her parents for a further sum of $64,000 post-separation. I am satisfied that the mother says that $11,000 of that related to the purchase of her car, leaving $53,000 relating to the other items of expenditure she had set out.
Exactly how much of that $53,000 had been spent on legal fees and how much on the remaining items of whitegoods, removalist expenses and bond/rent is not clear. I consider it safe to conclude that a large portion of that amount was spent on legal fees when the mother was paying for legal representation in these proceedings.
The father clearly accepts that the mother transferred the $18,000 that was in the term deposit to her mother just after separation. He does not accept it was in repayment of a debt. Without any other evidence, I am prepared to find that the $18,000 went to repaying debt owed to the mother’s parents, $11,000 of which was a debt owing at the commencement of cohabitation and $7,000 of which was incurred just after separation as part of the $64,000 that her parents loaned her or paid on her behalf.
It is common ground that the mother had a motor car at separation that the couple had bought for her use during their cohabitation. The father said it was worth $16,000 at separation. The mother said it was subsequently stolen and she received $12,000 for it from the insurance company which effectively went towards the purchase of the 4WD she owned at the time of trial. Without more, I accept the mother’s evidence in respect of the receipt and use of $12,000 from the insurance company.
As I have said, during the entire course of the de facto relationship the mother was engaged in parenting and home-making but also receiving Commonwealth pension payments from Centrelink. At the same time, the father was employed by a business entity in New South Wales and Queensland. He was employed with that group from September 2008 to April 2013 and he earned a taxable income of between $110,000 and $135,000 per annum during that period. In April 2013, when his employment with that group ceased he received a net cash payment of $63,951 and soon after, he commenced working where he remained employed at the time of the trial. His salary was $100,000 per annum before tax, including superannuation payments.
Whilst the mother apparently paid for her initial legal representation with the $10,000 partial property settlement she received in early 2013 and with money borrowed from her parents, the father said that he paid for his legal representation with money he earned in his employment. However, there is evidence that supports a finding that he withdrew two amounts totalling $23,000 in April and June 2013 from a bank account that was used to pay legal fees and the shares and the cash the father held in the bank at separation had reduced by $34,000. I find that he did pay for at least $23,000 in legal fees from cash he had in the bank.
Whilst I accept the father’s evidence that he made significant practical parenting contributions during the couples’ cohabitation, I am satisfied that the mother did the majority of parenting of the boys during cohabitation and then did most of it post separation up until January 2015. The father’s income principally supported the family during cohabitation, although the mother clearly used the pension payments she received as well. He has paid child support as assessed since separation.
The father and the mother considered purchasing a property to live in during their cohabitation but did not. At trial, they owned no real property. The father’s cash, shares and superannuation had increased from that which he had at the commencement of cohabitation by $58,000 but he had already paid $10,000 to the mother by way of partial property adjustment and paid $23,000 in legal fees. Notionally adding those back in would take the increase to $91,000, much of which is represented through the increase in his superannuation in that period.
The mother has had the benefit of receipt of the $10,000 part property settlement, retention of the car that was purchased partly funded by the insurance money received for the car the couple had purchased during their cohabitation, and the use of the $18,000 term deposit, close to $8,000 of which was money accumulated from the commencement of cohabitation. She has also had the use of $7,850 of her superannuation which stood at around $10,000 at the commencement of cohabitation.
In Stanford at [42] the High Court said:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
With particular regard to that passage, I am satisfied that it would be just and equitable to make a property adjustment order in this case where the de facto relationship was brought to an end by voluntary severance of their relationship. I am acutely conscious of the fact that the mother said at the end of the trial that the order she sought for the father to pay her $100,000 should only be made if the children were to live, by order, with her. She gave the impression that she did not expect an order for any adjustment if the children were to live, by order, with the father. However, I actually did not get a real sense that the mother was truly eschewing an order for property adjustment in circumstances where the children were to live, by order, with the father, as I have determined they will and I am satisfied that even in such circumstances it is just and equitable to make a property adjustment order in the case in favour of the mother.
For the purposes of undertaking the well understood process of considering the respective contributions of the mother and the father as s 90SM(4) requires and then converting findings on those matters to a quantitative assessment measured against property interests, I determine those property interests to be as set out in the table above in paragraph 97 but with the mother’s 4WD and personal possessions included at the values ascribed by the mother (there being no expert evidence at all about this). I intend also not to include any amount representing the term deposit used by the mother but also not to include any debt owed to the mother’s parents the original debt having been effectively extinguished by the payment to her parents of the term deposit monies and money drawn by the mother from her superannuation after separation, the rest of the debt being mostly for post-separation legal fees and other post-separation debts incurred by the mother to her benefit. I will not include other post-separation debt such as utility bills and credit card debt either.
I will include notionally the $10,000 paid to the mother by the father and I will also notionally include the $23,000 in legal fees paid by the father.
That makes a pool of property and notional property of $254,977 and superannuation interests of $142,923 for the father and $3,787 for the mother. That equals a total of $401,687 of property, notional property and superannuation.
Not including the initial contributions made by the parties, I assess the contributions made by the parties across all non-financial and financial aspects of their relationship during cohabitation and during the post-separation period to trial to be relatively equal.
Considering that finding against the acceptance of the fact that the father made a significant initial contribution of cash, shares and superannuation at the commencement of the relationship worth $278,068, which is the equivalent of about 69 per cent of the total of $401,687, I would ascribe a notional division of the applicable pool based on all contributions at 84 per cent/16 per cent in favour of the father.
Sixteen percent of the notional total equals $64,269. Taking that into account along with the relevant matters to be considered pursuant to s 90SF(3) through s 90SM(4)(e) such as:
·The father is 45 years of age, in reasonable health, employed in an apparently stable position earning $100,000 taxable, including superannuation per year;
·The father is living with a new partner and, at trial, planned to marry his partner who had stable employment and no dependents of her own;
·Pursuant to parenting orders the three children live with the father and will continue to do so, with the father being expected to provide significant financial support for them in the future, possibly without a lot of financial assistance from the mother;
·The mother is 35 years old and, apart from concerns about probable illicit drug use, is in reasonable health;
·The mother was in receipt of a Commonwealth pension at the time of the trial though said she was undertaking some vocational training to acquire qualifications to work in child care;
·The mother did have pre-cohabitation experience in the hotel industry and I accept that she could find suitable employment in a field of her choosing with some time and effort, though she is unlikely ever to earn as much as the father, partly because of the time out of her career devoted to parenting the couple’s three boys;
·The mother owes her parents a significant amount of money;
·The mother owes the father $1,500 pursuant to the costs order made against her by the Magistrate at E Town in the protection order proceedings;
·The mother owes the father half of the amount he paid for the family report writer’s fees;
·The mother potentially faces recovery action in respect of Commonwealth pension money received by her during her cohabitation with the father in a de facto relationship;
I am satisfied that adding an additional 4 per cent to the 16 per cent is appropriate in order to be able to make orders that I consider are just and equitable. That will take the division of the pool of property, notional addbacks, and superannuation in favour of the mother to 20 per cent.
Twenty percent of $401,687 equals $80,337. The mother already has the 4WD at $20,000, personal possessions at $1,500, the notional sum of $10,000 for the partial property adjustment already received and retains her small superannuation interest of $3,787. Those figures, added up, equal $35,287. Accordingly, in my judgement the mother is entitled to an additional $45,050.
I will order that the father pays her that further sum within two calendar months of the date of delivery of this judgment. The orders will permit deduction by the father, before payment, of the sum of $1,500 being the costs the mother was ordered to pay him in the E Town Magistrates’ Court but has not, and half the amount that the father paid to the family report writer for her reports that the mother was ordered to pay but has not.
Additionally, the father’s costs of and incidental to the contravention proceedings that he brought against the mother in which he was wholly successful were reserved, by consent, to the trial Judge. They were fixed, in the order that was made by me on 27 August 2013 at $7,500. I am quite satisfied that an order that the mother pay them is justified, particularly given her plea of guilty. I will make an order that the mother pay those costs of the father and my orders will permit the further deduction of that amount from the sum the father is to pay the mother pursuant to s 90SM by way of property adjustment.
Finally, I will direct the Registry Manager of the Brisbane Registry of this Court to send a copy of my orders and these reasons for judgment to the person within Centrelink or the Commonwealth Department of Human Services who is responsible for investigating welfare fraud. There is ample authority for the proposition that this Court can, and, in appropriate cases, should ensure that breaches of Commonwealth laws are brought to the attention of the executive branch of the Government.[1] I consider this to be an appropriate case in which to do this.
[1]T and T (1984) FLC 91-588, Georginas v Kostrati (1988) 49 SASR 371, Malpass and Mayson (2000) FLC 93-061.
I make the orders that are set out at the commencement of these reasons.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 30 May 2016.
Associate:
Date: 30 May 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Costs
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Remedies
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Standing
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Procedural Fairness
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