Koch and Koch
[2016] FamCA 214
•7 April 2016
FAMILY COURT OF AUSTRALIA
| KOCH & KOCH | [2016] FamCA 214 |
| FAMILY LAW – CHILDREN - where the two children of the parents' marriage are 17 and 11 years old respectively - where the oldest child lives with his mother - where the youngest child lives with his father - where the mother has a history of significant mental ill health - whether the mother's mental ill health poses an unacceptable risk to the children – where the mother has failed to lead any evidence in relation to the current state of her mental health – whether the father poses an unacceptable risk given the alleged history of family violence – whether any order should be made for the 17 year old |
FAMILY LAW – PROPERTY - whether it is just and equitable to make any order - where it is held to not be just and equitable to make an order adjusting the property interests of the parties.
| Child Protection Act 1999 (Cth) s18 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAC |
| APPLICANT: | Mr Koch |
| RESPONDENT: | Ms Koch |
| INDEPENDENT CHILDREN’S LAWYER: | Barbara Ellen Fox |
| FILE NUMBER: | BRC | 4667 | of | 2011 |
| DATE DELIVERED: | 7 April 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 4 - 5 April 2016 |
REPRESENTATION
| THE APPLICANT: | Self represented |
| THE RESPONDENT: | Self represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr. Hodges |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox |
Orders
Parenting
That all previous parenting Orders or parenting plans be discharged.
That the child B born … 2004 live with the Father.
That the Father have sole parental responsibility for the child’s long term welfare care and development.
That the child spend time with and communicate with the Mother at all times as agreed between the Mother and the Father.
That the consent of the Mother is dispensed with for the Father to obtain an Australia Passport for the child.
That the child be permitted to travel with the Father outside the Commonwealth of Australia at least once per year.
That neither parent denigrate the other Parent to or in the presence or hearing of the children.
That neither parent is to discuss these proceedings to or in the presence or hearing of the children.
That the Mother is to ensure that the child C attends school on a regular basis.
That these Orders be sufficient authority for the Father to obtain copies of C’s school progress reports and attend functions that parents normal attend including parent teacher meetings.
That the Mother provide the names and contact details of C’s treating medical and allied health practitioners and these Orders be sufficient authority for the Father to obtain copies of any medical reports for C and/or discuss any medical problems that C may have with his treating practitioners.
That each parent is to keep the other appraised of their current email address and advise of any change within 48 hours.
That each parent is to advise the other if either child requires any emergency medical treatment of a life threatening nature while in their care.
That the order for the appointment of the Independent Children’s Lawyer be discharged upon the making of these orders.
Property
That the Amended Initiating Application for a final order for property settlement filed 15 October 2014 be dismissed.
Miscellaneous
That all outstanding applications be dismissed and the matter be removed the list of cases awaiting a final determination.
Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Koch & Koch 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 |
FILE NUMBER: Brisbane 4667 of 2011
| Mr Koch |
Applicant
And
| Ms Koch |
Respondent
And
Barbara Ellen Fox
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The parties to this dispute are Mr Koch (“the father”) and Ms Koch (“the mother”). The dispute concerns parenting and property matters.
Background
The father and mother married in 2000 having commenced cohabitation in 1994. They separated on or about 19 December 2009 but had many prior separations. They divorced on 17 June 2015.
The father was born in 1972 and works as a technician. The mother was born in 1972 and works as a retail manager.
They have two children together, namely, C born in 1999 and B born in 2004.
The father re-partnered and commenced to cohabit with Ms D in late 2009. Ms D works in the same company as the father.
The father commenced these proceedings on 2 June 2011 when he sought an order for equal shared parental responsibility for the children and that he spend alternate weekend time with the children. He amended his Application on a number of occasions and is now seeking inter alia an order that B live with him and that he have sole parental responsibility for him.
The father had no contact with the children from in or about 2010 until 2013. On 3 May 2013 after the issuing of a warrant for the arrest of the mother and a recovery order for the children, an order was made that B live with the father and that he have sole parental responsibility for him. C was to remain living with the mother given his age and the assessment of his enmeshment with the mother. The mother was released on a bond.
B commenced school at E State School at the Gold Coast on 13 May 2013.
On 21 June 2013 C was assessed by the Department of Communities, Child Safety and Disability Services to be at immediate risk of harm if he was not immediately taken into custody pursuant to s18 of the Child Protection Act 1999. That same day a temporary assessment order was granted.
On 24 June 2013 Child Safety Officers interviewed B at his father’s home where he stated that he feels safe at his dad’s house and wouldn’t change anything.
The mother was a patient in the F Hospital pursuant to an involuntary treatment order (ITO) for the period in or about July to 3 October 2013. Originally the mother had presented as a voluntary patient but after she left the hospital on 27 June 2013 without being discharged, an ITO was made. A provisional diagnosis of delusional disorder was made and it was assessed that she was a risk of harm to herself and others.
On 3 July 2013 an order was made in the Children’s Court placing C in the care of the Chief Executive of the Department of Communities, Child Safety and Disability Services.
On 10 July 2013 the Federal Circuit Court made an order that the mother not spend any time with B until the mother produced a report from her treating psychiatrist stating that her mental health issues had stabilised and that upon production of that report the mother spend supervised time with B.
C absconded from his foster placement to live with his mother on or about 25 October 2013. The Department of Communities, Child Safety and Disability Services approved C’s return to his mother given his age, although he remained subject to a Protective Supervision Order until 27 November 2014.
The Department of Communities, Child Safety and Disability Services supervised some time between the father, B and C in 2013 and 2014 and by 15 November 2014 that time became unsupervised.
On 14 July 2014 the involuntary treatment order for the mother was extended and she remained under the supervision of the G Mental Health Unit as an outpatient until in or about mid 2015.
B has lived with his father and Ms D since 3 May 2013. C continues to live with his mother but spends time with the father and B, the most recent occasions being when they went go-carting for his birthday when they went to the Gold Coast and the Thursday before the commencement of this hearing when C spent the night and left for work about 3.30pm the following day. C now has his driver’s licence and a car. He is employed part time at a restaurant on H Town and continues his schooling at H Town College where he is completing grade 12. His latest school report indicates that he is struggling with his school work.
The mother spends no time with B pursuant to existing orders and last spoke to him on the telephone at Christmas time last year.
Material relied upon
The father relied upon the following material:
a)Amended Application for final property and parenting orders filed 15 October 2014 (as amended by leave on 4 April 2016);
b)Affidavit by the father filed 4 July 2014;
c)Affidavit by the father filed 4 December 2014;
d)Affidavit by Ms D filed 23 September 2015;
e)Financial statement filed 4 February 2015;
f)Affidavit filed 1 April 2015 including balance sheet;
g)Case Information Document filed 4 March 2010
h)Summary of Argument filed 6 March 2016.
The mother relied upon the following material:
a)Response filed 3 November 2014;
b)Affidavit by the mother filed 23 February 2016;
c)Notice of Risk of Child Abuse filed 10 May 2013.
The Independent Children’s Lawyer relied upon the following material:
a)Outline of Case filed 22 March 2016;
b)Affidavit of Dr I filed 5 July 2013;
c)Affidavit of Ms J filed 8 July 2013;
d)Affidavit of Ms K filed 28 November 2013;
e)Affidavit of Ms L filed 17 April 2015;
f)Affidavit of Ms L filed 22 March 2016;
g)Tender bundle of subpoenaed documents (by consent, save for page 32).
Only the parties were required for cross-examination.
Proposals of each party
The father adopted the form of Order sought by the Independent Children’s Lawyer in relation to parenting issues and like the Independent Children’s Lawyer he did not press for live with and parental responsibility orders in relation to C. In relation to property he effectively submitted that it was not just and equitable to make any order and that each party should retain whatever they currently have.
The mother sought an order for equal shared parental responsibility and for week about care of B. She sought an order for sole parental responsibility for C and that he live with her. In the property proceedings she sought ‘half of the father’s superannuation benefits’, half the balance of certain bank accounts and half of his holiday pay and compensation payment received during the marriage.
The Independent Children’s Lawyer sought an order which inter alia provided for B to live with the father, for the father to have sole parental responsibility for him, that he have time with his mother as agreed and that there be no order in relation to C.
Relevant statutory provisions
Part VII of the Family Law Act sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]
[1] Goode & Goode (2006) FLC 93-286; SCVG & KLD Hardie v Capris [2010] FamCA 1046 at [44] – [86]
Importantly, s60B(1) relevantly provides that the objects of the Act are to ensure that the best interests of children are met by:
a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) relevantly provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d) parents should agree about the future parenting of their children;
e) …
Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary and additional considerations that the court is to take into account in determining what is in the best interests of the child.
Section 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
Where the presumption does apply the court is required to consider s65DAA.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Relevant issues
There are two significant issues in this case. The first relates to the mother’s mental health and whether she presents an unacceptable risk of harm to B and the second is the mother’s allegation of family violence against the father and whether he presents an unacceptable risk of harm.
Mother’s mental health
Dr. I is a psychiatrist retained by the Independent Children’s Lawyer to assess the parents in 2013 as part of these proceedings. The father was assessed as not suffering from any mental disorder. The mother was assessed as suffering from a provisional diagnosis paranoid schizophrenia requiring treatment. Dr I opined that her mental state examination and history supported the view that her mind was severely affected by a psychotic disorder. He further opined that the mother posed:
…an unacceptable risk to herself and therefore urgent steps were taken for her to be admitted to hospital. Risk assessments of her personal safety [from herself] must be made daily whilst she is in hospital and weekly after she is discharged.
There is currently a total impairment of a profoundly severe loss of [Ms Koch’s] capacity to provide a safe, nurturing, stable environment for her children.
She has therefore at present lost her parenting capacity.
His mental state examination of the mother included the following:
…
Her self care was abnormal in that she was slightly dishevelled [hair and clothes untidy].
…
Her affect was abnormal in that she was expansive, exuberant, excessively and highly excited. Her mood was elevated and therefore very abnormal.
…
She was psychotic in that she was out of touch with reality.
She presented with flight of ideas [in that her thinking would jump from one thought to another thought with a rapidity that was so fast, that she could not keep up with her thinking, and the interviewer was left wondering, “where is she going with this”]
…
The stream of her thoughts was abnormal in that it was very rapid, pressured and very difficult to interrupt, control or deviate from her chosen mode of operations …
The thought content examination revealed a system of complex delusions of a paranoid nature about her family of origin, [Mr. Koch], and [Mr. Koch’s] family.
She was not aggressive, threatening or abusive.
… she would launch into other examples of what were bizarre examples of being threatened, stalked, monitored, followed, and being under surveillance.
…
[Ms Koch] had no insight into the abnormalities affecting her mind.
She had no awareness of her son’s needs at this examination, as she “paraded” him into the interview room … She had no awareness of her son being treated “like an exhibit” or about the impact of such a process on her son.
She appeared to have no understanding of the nature of the mental health issues in her life. …
The most recent medical evidence in relation to the mother’s mental health is as at 23 February 2015 when the mother was reviewed by the G Adult Mental Health Service which includes the following:
Profile
… [Ms Koch] is an involuntary consumer of the service with a diagnosis of a delusional disorder.
Progress over last 3/12
[Ms Koch] continues to present as superficial and aloof. She is compliant with treatment however she declines to engage other than for depot. [Ms Koch] continues to work full time.
There are no acute risks to herself identified however risks remain to her children given that [Ms Koch] refuses to accept that she has experienced any mental health difficulties and the detrimental effect this had on them prior to her being admitted to hospital.
Current presentation as per medical review
… Denies any delusional beliefs or perceptual abnormalities. … Insight remains poor – denies that she suffers from any mental illness …
There is no evidence before me from any current treating medical practitioner for the mother. When asked why that was, the mother responded:
I have finished treatment. That was ages ago.
This is despite her evidence that she had been consulting a Dr M, a General Medical Practitioner, for the last six months, whom she sees “every few months” having last seen him “about two months ago”. He prescribed her medication, Epilim, which she “takes nightly” at a dose of “3mls”. She says her understanding is that Epilim is a “mood stabiliser” and she has been prescribed it because her former treating psychiatrist, Dr N (the mother could not recall her surname) said the mother “suffered from delusions”.
The mother conceded that she knew previous court orders had been made that, upon her producing a report from her treating psychiatrist that her mental health issues had stabilised, she could have supervised time with B. She has not done so.
At page 42/43 of exhibit 3 being records from the Department of Child Safety, Communities and Disability Services and other records produced pursuant to subpoena, it is recorded:
On 02 May 2013 the notifier contacted the South East Regional Intake Service and advised the following information:
[redacted] …
When police attended [at the house where the mother and children were then staying] the boys tried to hide themselves underneath a sheet in the car. The children referred to themselves as A and B. The boys were terrified given that the mother had told them the father as out to kill them and that’s why they were fleeing.
[Ms Koch] advised that the children are homeschooled, although it is believed that the children are not getting any schooling as they talked about playing xbox all day. The boys were asked to produce their schooling material, which they couldn’t as they didn’t have any. The boys said that it is often reinforced to them, that their father is out to kill them. The boys reported they move every 2 wks. They have been staying with a woman [redacted] for 48 hrs. The mother admitted what the boys said. She was noted to be very paranoid – concerns she may have mental health issues. [Ms Koch] convinces the kids [Mr Koch] is hiding in the bushes and he’s going to break into the house. [Ms Koch] portrays [Mr Koch] as violent although there is no history of him being violent on police systems [B] indicated he could not remember when he last went to school and [C] said the last time he attended was in 2010 at [H Town] School.
When asked about this notification the mother:
·Stated she did not even own a car
·Denied that the boys hid under a sheet
·Stated the boys were inside the house when police arrived
·Stated the reference to the boys referring to themselves as A and B was just a nickname
·Denied the boys were terrified
·Denied she told the boys that the father was out to kill them
·Denied they were fleeing
·Denied she had made any admission
·Denied she convinces the boys that Mr Koch is hiding in the bushes
·Stated there were two DVO’s against the father
·Stated the children did attend school. In relation to B, he attended from prep to year 3 at either H Town State School or O School (spelt by the mother) moving between the two because she could not always afford the private school fees. She stated that when he attended O School he went to the school full time. In relation to C she stated he had attended either O School or H Town College. She denied he had ever attended H Town High School
·Stated that between 2010 and 2013 she and the children moved only once
·Stated they lived at P Street H Town for two to three years until moving in 2009 to I Street H Town for a year and moved to her current address (which is not disclosed to the father but the address is contained in a sealed envelope on the court file not to be opened without leave of the court)
Later in her evidence the mother conceded that she and the children had lived at J Street, H Town in 2012 for about a year and were living there when police attended on 29 October 2012.
When interviewed by Dr I on 19 June 2013 she gave as her home address K Street, H Town.
I note that during the interviews for the family report B referred to having moved regularly when living with his mother.
In his report, Dr I referred to the mother having delusional notions about her family of origin. In this context I note that during her oral evidence the mother confirmed that her biological mother was Ms L. She denied that she had ever told anyone that Ms L was not her biological mother. She stated that Ms L had said that. She denied that she had ever told anyone that she and her sister had been “forced adoptive” children or that she had told anyone that she had contacted Julia Gillard requesting further information. She denied having contacted Julia Gillard.
Contrary to that evidence, I note that page 26 of exhibit 3 is an assessment of the mother on 24 March 2013 and it is recorded as follows:
[Ms Koch] described her childhood with her identical twin sister and how they discovered they were “forced adoptive” children when they were in their teens. [Ms Koch] has had no contact with her adoptive family for the past four years and she is continuing to search for her biological family and has written to Julia Gillard requesting further information and support.
And, when interviewed by Dr I on 19 June 2013 the mother is recorded as having stated:[2]
That I was born? Melbourne. It was meant to be [T Hospital] but we believe that my real name is a different name and I’m not [Ms Koch] … born [Ms Koch] but force adopted by a 17 year old so I think the actual name might be [N], that’s all we’ve got but they’re going to do DNA’s because we are twins. … [who did you grow up with?] With this lady. … [Ms L], the midwife, and [Ms M] who put fake Orders in, she’s my sister, [Ms M], her husband’s just ran out, he’s a paedophile. …
[2] Dr I refers to this part of his report as being “a transcription from tape”
Further, when appearing in the Federal Circuit Court before Judge Purdon-Sully on 3 May 2013 the mother said:
I’m – in light of new evidence on my birthday, apparently I’m a victim of a forced adoption, myself and my identical twin sister, so we have to now give DNA evidence because the lady that actually – our fake mother is actually the midwife that stole us, so we’ve got to try and prove with DNA that’s not actually our family any more.
At page 68 of exhibit 3 it is reported that:
On 27 June 2013, CSO [O] and I interviewed [Ms L] via her mobile number and [Ms L] provided the following information:
a. [Ms Koch] is her biological daughter and that she ([Ms Koch]) has started saying to people that she is not
b. She was a mid-wife for forty (40) years and is now retired
c. [N] is her father’s mother’s maiden name
d. She has spoken in length to [Dr P] the treating psychiatrist for Ms Koch
e. Ms Koch and [Ms Q] are identical twins and they have come up with things that are not true
f. A few months ago they were saying they were adopted and it seems like she is becoming more delusional
g. [redacted]
h.…
i. …
j. She has been trying to get [Ms Koch] help for years
k. It has been stressful for twenty (20) years, she has not been able to confide in anyone, she loves both of them and wants to try and help
l. The adoption thing is fairly recent …
m. The paedophile allegations are recent for [Ms Koch]
In relation to the potential risk posed by the mother to B, I note at page 53 of exhibit 3 it is reported that:
Family Consultant [Mr R] noted that [Ms Koch] presents as emotionally volatile, as having ongoing paranoid ideas and as often unable to control her emotions. She is not accepting of feedback and has stopped cooperating with directions or requests.
…
[Mr R] noted that until there is evidence of change in [Ms Koch’s] behaviour [B] should not be exposed to her … even in visits supervised in the Child Dispute Services premises.
I note that Mr R’s evidence was extensively quoted by Her Honour Judge Purdon-Sully in her reasons for judgment delivered on 10 July 2013 (which were read in the Independent Children’s Lawyer’s case[3]) in which he also opined:
Until there is evidence of change in [Ms Koch’s] behaviour [B] should not be exposed to her or to [C], even in visits supervised in the Child Dispute Services premises. [Ms Koch’s] behaviour could not be managed in a contact centre.
[3] Exhibit 1
Impact of mother’s illness on the children
Page 14 of Exhibit 3 records an attendance by Police at a property occupied by the mother and two children (assumed to be the subject children) on the 29 October 2012. It is recorded that:
… Police have concerns for the welfare of 2 children … house was almost vacant with almost no furniture inside although a large number of bags which appeared to contain clothing were located in the lounge area. Police did not see the child [redacted] but saw the child [redacted] who appeared to be in good health but when enquiries were made as to why he was not at school his mother stated that he was on holidays as they were moving. Enquiries made with the local school showed that [redacted] left his school on the 16/04/2012 as his mother stated that they were moving interstate. It appears that they in fact haven’t moved and that the child has not been attending school. There are also concerns with regards for the mental health of the mother. Enquiries were made with [H Town] High School with regards to [redacted] could only reveal that he had left school on 21/03/2011 and they had no knowledge of any further schooling.
… The mother … stated that she was currently in between houses and staying with friends on and off as she was too afraid to stay at the offence location due to her being stalked by her ex-husband and her sister’s ex-husband … The offence that police attended for has been unsubstantiated as police do not believe there was a break in … as claimed by [Ms Koch] [the mother] states further that her ex-husband has been parked outside her house on a number of occasions stalking her but for reasons only known to herself she has never called the police. …
Page 18 of Exhibit 3 notes concerns for B by the H Town State School as follows:
Struggling with all areas of work. Year 2 – still does not know all sounds. Doesn’t complete a lot of work. Has asthma and has days off with illness. Poor gross and fine motor skills. Doesn’t talk much in class – little expressive vocabulary. Can count numbers to 10. Low energy. Poor concentration. Can’t work independently.
Page 22 of exhibit 3 records that B attended H Town State School from 27 January 2010 to 21 March 2011 and again from 22 February 2012 to 16 April 2012. There are no records of where B attended school in the intervening periods. He was assessed as operating academically well below the expected level for his class.
When B came into the father’s care at age eight he is described by the father as follows:
He was unable to read and did not know all the letters of the alphabet. He was unable to tell the time. He could not count money, his hygiene was poor, he was unused to daily washing, and used his t-shirt sleeves to blow his nose and clean himself. He had no road sense when crossing the road. His diet expectations were based around fast food, chips and soft drinks. He was fearful of being away from me in outdoor places, for example when shopping he became anxious if I walked round the end of the aisle without him. [B] collected empty boxes which he said ‘were to use for packing when we move’ …
Ms D corroborates these observations and I accept this evidence.
I am satisfied on the evidence that the mother has at least historically suffered severe mental illness and has been a risk to herself and the children. I find that the mother and children lived a chaotic life for a number of years and were on the move or many more occasions than admitted by the mother in these proceedings. The consequence of the mother’s illness was that the children suffered neglect and significant interruption to their schooling such that B required intensive intervention to bring him to an educational level of his peers. The mother’s condition came to the attention of State child welfare authorities in 2013 and C was removed from her care due to concerns for his welfare.
B’s progress since coming into the care of his father
B has settled well with his father and presented during the interviews for the family reports conducted on 27 March 2015 and 17 March 2016 as affectionate and loving with his father and Ms D. He expressed his wish to remain living with his father.
B’s report card for term one in 2014 shows a boy who is progressing well in most subjects with good attitude and participation in most subjects. His art and drama subjects need improvement. He was being assisted with remedial teaching in Maths and English. His most recent report card for semester 2 2015 shows considerable improvement. The father gave evidence that B no longer has a need for remedial assistance in Maths and English and I accept that evidence. B has clearly taken great strides in improving in all aspects of his education and confidence.
Ms L opines in her most recent report that B is “doing very well in his father’s care” and has made “outstanding progress in his father’s care and this needs to continue.” She also opines:
[B] does need to have some contact with his mother in the future if this is safe to occur … [Ms Koch’s] ongoing mental health is a real cause for concern especially given she is no longer being treated by a psychiatrist. … It causes me great concern that [Ms Koch] does not appear to accept the reason [B] was removed from her care and placed with the father. She continues to state this was due to [B] needing to build a relationship with his father and not due to any issue of neglect or that it was due in any way to her own unstable mental health.
…
At this stage I do not believe that formal orders should be made regarding contact.
I have considered Ms L assessment that B’s ambivalence about seeing his mother might be assisted by attendance upon an appropriately qualified professional (I would have thought a child psychiatrist) to assist him explore his past history in his mother’s care and for that professional to then explore with B his views and wishes about facilitating safe contact with the mother. While this is something I would encourage the father to consider it is a matter in my view best left to the father to assess. It is not only a matter of B’s wishes but an assessment that time with his mother could occur safely and that depends upon evidence as to her level of mental functioning. The Independent Children’s Lawyer does not seek orders in relation to this issue and I concur.
The father contends that when B has spoken by telephone to his mother she tells him he should be living on the mountain with her. B has declined to speak to his mother since Christmas and the father does not force him to do so but suggests to him that he might like to speak to her. B will often say “maybe later”. The mother contends that the father prevents B speaking to her. I do not accept that. I find that it is more likely to be a combination of the life B was exposed to when living with the mother and her pestering him to live with her during phone contact that causes him to avoid contact with her.
The father presented as a parent who only wants what is best for his sons and to his great credit he has persevered with C such that he now has a relationship with C and spends productive time with him and importantly has enabled B to maintain his relationship with C. He is not opposed to the mother having time with B but understandably needs to be satisfied that B will be safe with his mother. It has been made clear to the mother by past orders what she needs to do in order for her to be able to spend time with B but she has not done so. I accept the assessment of Ms L that the father will, when appropriate, facilitate time between B and his mother. This view is supported by the Independent Children’s Lawyer.
Family violence
The mother makes some very serious allegations of violence, drug use and alcohol abuse against the father. In particular, in her affidavit of evidence in chief, she alleges:
a)On 25 March 2008 the father attacked her and attempted to murder her, damaging and breaking her arm;
b)On 19 December 2009, while very intoxicated threatened to kill her and then proceeded to retrieve a large butcher’s knife from the kitchen of the property they then shared and to hunt for her in the children’s bedroom while holding the butcher’s knife in his hand;
c)In 2009 after drinking alcohol to excess and taking illegal drugs the father turned violent and choked his brother, Mr S Koch, almost to the state of unconsciousness.
The father did not address any allegations of violence in his affidavit material. As the father only relied upon older affidavits and the mother only a recent affidavit it is unclear whether the mother had raised these allegations in earlier material. In any event the father was cross-examined about some of the mother’s allegations.
During the mother’s cross-examination of the father, he offered the following evidence in relation to the incident that occurred on 23 March 2008:
I did cause bruising to the mother’s arm. She had hit me with a candelabra and was flailing at me so I grabbed her hands to stop her and pushed her back away from me. She went over the couch. She was kicking at me and I grabbed her foot. She was calling out “Stop” and a neighbour called the police. I was taken into custody by police and remained in custody over the Easter weekend. I was then released without charge.
The mother in her oral evidence denied that she or the father had ever owned a candelabra and she denied ever hitting the father with a candelabra or any other object.
Page 4 of Exhibit 3 is part of the records produced pursuant to subpoena from Queensland Police. The version provided by the mother to the police is inconsistent with the evidence contained in her affidavit of evidence in chief, her questions put to the father and her oral evidence in chief in a number of respects. For example the version recorded by police from the mother is that the altercation commenced outside the house when the father grabbed her by her forearms and twisted her off a hammock until she fell to the ground. The father denied there had been any altercation outside the house. It was noted by police that there were numerous drinking glasses and cans including a wine glass with wine in it that were still upright around the free standing hammock. Secondly, it is recorded that the mother said she had hit the father with a candle holder in self defence. Police observed scratches and blood on the fathers face and forearms and a lump on the back of his head. Police observed red marks on the mother’s forearms
The mother did not produce any medical evidence of a broken arm.
There are many inconsistencies in the mother’s accounts and she has failed to prove her allegations about this incident.
During the mother’s cross-examination of the father he offered evidence in relation to the incident that occurred in 2009 which included the following - I did have a knife. It was my birthday. I was cutting a chocolate cake. The mother was angry saying I had drunk too much. I stuck the knife into the chopping board. I watched a movie with my brother and went to sleep. The next I knew the police had arrived and were putting me in handcuffs and put me in the back of the police van. I was kept in over night. I was told that it was alleged that I had been chasing the mother with a knife and smashing doors. No charges were laid and I was released the morning after being taken into custody. I have seen a video the mother took that evening. You can’t see anyone. I did say “I could kill [Ms Koch]” but I didn’t mean it. It was just a throw away line said in the heat of the moment”.
The mother gave oral evidence in chief during which she stated she had a video recording of the incident that occurred on the 19 December 2009 that she would bring to court on day two of the trial. The video when produced and played in court did not show the alleged incident. The mother contended that it might be in another part of the video but despite being given the opportunity to play any further part which she contended assisted her case she declined to do so.
Page 7 of Exhibit 3 records the police involvement on the 19 December 2009. There are inconsistencies in the account attributed to the mother and her evidence in this court. The mother is reported as saying that the father walked into the kitchen saying words to the effect “I will kill [Ms Koch]” whereupon the mother locked herself and the two children in her bedroom where she stayed for an unknown amount of time. When she came out of the bedroom she noted the father passed out on the couch and then saw a kitchen knife stuck in the kitchen bench. The mother produced video footage, which is described as showing the knife sticking into the kitchen bench, but not how it got there. The record states that the father was “observed heavily intoxicated asleep on the lounge”. Police observed no signs of physical violence or damage to property but formed the view that the respondent’s actions were intimidating and caused fear to the mother. Accordingly, the father was arrested and taken to the Southport Watch House where he was charged with breaching a protection order made on 25 March 2008 which remained in force until 25 March 2010. No assault complaint was made and the children were not assessed to be at risk.
During her oral evidence the mother said that she had hidden behind a door with the children in a bedroom and the father came in wielding the knife but he did not see her. She later stated that the children had been asleep in two different bedrooms but woke up at some stage. She said at another point that she had seen the father moving the knife up and down above the bench in a threatening way before sticking it into the bench.
There are many inconsistencies in the account and the mother has failed to prove the incident occurred as alleged by her.
It seems that there were Protection Orders made at some time with the mother as the aggrieved but the Applications were not put before me nor was any evidence led as to the basis for the making of the orders. I note that the father pleaded guilty to breaching one order arising from the 2009 incident and was fined $800 with no conviction recorded.
The father was not cross-examined about the alleged incident involving his brother and there was no evidence from Mr S Koch. The mother has failed to prove this incident occurred.
The mother in her Notice of Risk of Abuse filed 10 May 2013 (7 days after B was removed from her care) stated:
8/5/13
… [B] distressed scared to speak and had a saw (sic) bottom believed to be from rape and attack by the father.
When cross-examined about this allegation she said that she had meant to say the paternal grandfather had attacked and raped B but that there was “insufficient space on the form” for her to set that out. She later contended that it was the father or the grandfather and that she thought B had been raped because he had a sore bottom.
This evidence is fanciful. Her allegations arose in some few days after B was removed from her care. It does her no credit at all that she would make an allegation that clearly had no truth to it and maintain the allegation in some form at trial. Not long after she made the allegation in the Notice of Risk she was assessed by Dr I to be acutely unwell and hospitalised.
Assessment of significant issues
Given the failure of the mother to call any evidence in relation to her current mental health I am unable to find that her condition is stable nor that she does not present as a risk to the children. Indeed her dismissal of the need to do so indicates a continued lack of insight into the seriousness of her mental health history and the impact it has had on the children.
The mother stated in her submissions that she loves her children and just wants to be able to give B “a cuddle and have him at his bedroom at home”. I accept the genuineness of the mother’s stated wishes but I cannot make an order enabling that to occur given the history and there being no evidence upon which I could find her psychiatric condition is stable and unlikely to cause harm to B.
Parental responsibility
This is a case where a parent has engaged in family violence as defined in the Family Law Act. Accordingly the presumption of equal shared parental responsibility does not apply. In any event it would not be in the children’s best interests for such an order to be made given the mother’s clear disdain for the father and her stated views in her oral evidence that he is a “pathological liar” and capable of “attacking and raping” his son.
Given C’s age and independence I do not propose to make any orders relating to C which accords with the final position of the Independent Children’s Lawyer.
I propose to order that the father to have sole parental responsibility for major long term issues for B.
Other findings of relevance
B currently has no relationship with his mother but has a warm and affectionate relationship with the father and Ms D. He sees his brother C often enough to maintain his relationship with him.
B has expressed clear views that he is happy and contented living with his father and has expressed anxiety about seeing his mother. Such was his anxiety that Ms L did not press for B to see his mother at either family report interview.
The mother has deprived the boys of their father for a considerable period and told them lies about him such as to cause them to be fearful of him. It may be that this was done not out of malice but as a result of her mental illness but the impact was serious for the boys.
Summary of proposed parenting orders
Given the findings I have made I do not propose to make the orders sought by the mother. Such orders would not be in the best interests of B. I do not propose to make any order for time between the mother and B other than as submitted by the Independent Children’s Lawyer and adopted by the father.
C is seventeen years of age. He absconded from a foster placement in 2013 to return to his mother and this was accepted by the Department of Child Safety. He is attending school and working part time. He has a car and makes his own arrangements to spend time with his father and B. I see no need to make orders in relation to him.
Property
Relevant statutory provisions
Section 4 of the Family Law Act 1975 (Cth) (“the Act”) defines property as meaning:
In relation to the parties to a marriage of either of them – means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.
Section 79 of the Act relevantly provides:
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them – altering the interests of the parties to the marriage in the property;
(b)…
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i)Either or both of the parties to the marriage; or
(ii) …
to make, for the benefit of either or both of the parties to the marriage … such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage of either of them, or otherwise in relation to the last mentioned property, whether or not that last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage of either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage of either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)… and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Relevant legal principles
The High Court has often stressed that the discretion exercised pursuant to s79 is extraordinarily wide.[4] That said it must be exercised in accordance with legal principle.[5]
[4] De Winter & De Winter (1979) FLC 90-605; Norbis v Norbis (1986) FLC 91-712; Stanfordv Stanford (2012) FLC 93-518.
[5] Ibid.
The starting point is to consider whether it is just and equitable to make an order at all, by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. Secondly, in exercising the discretion conferred by s79 it should be borne in mind that there is no presumption that the parties’ rights to or interests in property are or should be different from those that currently exist. Thirdly, the consideration of whether it is just and equitable to make an order should not be considered by reference only to the matters in s79(4).[6]
[6] Stanford (supra); Bevan & Bevan (2013) FLC 93-545.
The Full Court in Bevan observed that while the High Court did not disapprove of the ‘four step process’ neither did it approve of it. The Full Court noted:
71. Stanford will also serve as a reminder that the four step process “merely illuminates the path to the ultimate result”. Any future restatement of that process should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order.
Is it just and equitable to make an order?
The mother in these proceedings informed the court that she had filed a Financial Statement. Unfortunately no such document ever reached the court file. The mother was provided with a Financial Statement kit on the first day of trial but did not seek to rely upon such a document.
During her evidence in chief the mother gave evidence as to her current financial position. She owns no assets of significance. She has a 1993 motor vehicle, about $1,000 in savings and some furniture. She works part time as a retail manager earning $26 per hour. Her hours of work are between 16 – 20 per week. She receives a family tax benefit of about $250 per fortnight and child support from the father of $120 per week. She currently owes C’s school $5,000 for his fees this year and is paying them off when she can.
According to the father’s balance sheet he has a car, a motor bike and minimal savings. The value of his property is said to be $7,500. He has personal liabilities of $12,149. He contends that when the parties separated in 2009 they had no assets and this does not seem to be in contention. He also contends that at that time his superannuation benefits were worth about $13,000 and are now was a technician in IT and earns $1,500 per week. His total personal expenditure is $1,469 per week.
Neither party provided any evidence about contributions nor did the mother adduce any evidence relating to the father’s alleged holiday pay, compensation or superannuation about which she sought orders. No evidence of procedural fairness to the trustee of the father’s superannuation benefits was provided although this was brought to the attention of the mother on the first day of trial.
I note that the father pays child support for C.
In the circumstances of this case I am not satisfied that it is just and equitable to make an order for property adjustment or settlement. The only order sought by the father was for declaratory relief in effect, and as there is in fact no issue as to the ownership of the assets I do not propose to make any order.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 7 April 2016.
Associate:
Date: 7 April 2016
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