KOLAR & KERMIT
[2019] FCCA 817
•16 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KOLAR & KERMIT | [2019] FCCA 817 |
| Catchwords: FAMILY LAW – Parenting dispute – relocation – allegations of family violence – Property dispute – assessment of contributions – consideration of s.75(2) factors. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB(1), 60CC. 75(2), 79(2) |
| Cases cited: Kennon & Kennon [1997] FamCA 27 Keating & Keating [2019] FamCAFC 46 |
| Applicant: | MR KOLAR |
| Respondent: | MS KERMIT |
| File Number: | MLC 7120 of 2018 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 4, 5, 6, 7, 8 and 13 March 2019 |
| Date of Last Submission: | 19 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 16 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tulloch |
| Solicitors for the Applicant: | Voigt Lawyers |
| Counsel for the Respondent: | Ms Vohra, SC |
| Solicitors for the Respondent: | Forte Family Lawyers |
ORDERS
[Terms of Final Orders to be settled]
The matter be listed to 16 April 2019 at 4.30pm for the making of final orders.
IT IS NOTED that publication of this judgment under the pseudonym Kolar & Kermit is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7120 of 2018
| MR KOLAR |
Applicant
And
| MS KERMIT |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to both property and parenting arrangements, although the most significant issue in the matter is the mother’s application to relocate interstate with the children of the relationship. The father opposes this application, seeking that the children remain in Melbourne and live in close proximity with their current residence and continue to attend their current childcare centre and school. The mother had initially unilaterally relocated in early 2018, and then interim orders were made for her to return to Melbourne in the middle of 2018. As a result the trial was listed for an early hearing for four days. Despite careful case management restrictions the trial still ran for far longer than the initial four day estimate and some of the final addresses had to be in writing after six days had been consumed.
The father, who is 44 years old, works as a professional. The mother is 40 years old and works part time as a professional. The parties began cohabiting in approximately 2006, were married in late 2010 and separated on 6 March 2018. There are three children from the relationship, a boy aged 7 and twin boys who are almost 5 years old.
The mother seeks to relocate from Melbourne to a coastal city in New South Wales. She has the opportunity of work there and the support of her mother, stepfather and friends. The mother’s case is that there is also a history of family violence in the relationship between the parties. The father denies the allegations, other than when he alleges he was acting in self-defence. The father alleges a number of aberrant behaviours by the mother.
Background
The parties commenced living together in 2006.
When their first child was born the mother took maternity leave for 12 months the returned to work part time.
In around 2013 the mother alleges the father began to be verbally and physically aggressive towards her, and the father agreed to attend anger management counselling, which he attended for several sessions. The mother continues to allege further incidents of family violence from 2013 onwards.
The parties’ twins were born in 2014 and again the mother took 12 months maternity leave. The maternal grandmother lived with the parties and assisted the mother with the care of the children for 13 weeks. Following that maternity leave, the mother then returned to work part time.
In 2015 the mother was diagnosed as suffering depression and commenced taking Lexapro as prescribed by her medical practitioner. The father submits the mother’s mood became troubling and her alcohol consumption increased, as did their arguments. The mother commenced attending a psychologist in 2017.
In March 2018 the parties travelled interstate on a family holiday for the mother’s 40th birthday. After an incident the father told the mother he was leaving and the marriage was over. The mother asked the father to move out of the family home and some tension arose surrounding the separation.
On 6 March 2018, the mother flew interstate to her extended family home and applied for an Apprehended Domestic Violence Order (‘ADVO’). The mother texted the father that he could skype the children and informed him she had left. Skype calls were made to the father and his parents during this period. On 8 March 2018, the ADVO was varied and the father moved back into the former matrimonial home. In June the father attended an anger management course. That month the father also initiated these court proceedings.
On 9 July 2018 the father agreed to the ADVO without admissions for 2 years, with the mother and children listed as protected persons. Later that month the mother proposed supervised time between the father and children.
On 24 July 2018 court orders required the mother to return from NSW with the children to remain residing in Melbourne.
Between 8 March 2018 and 9 February 2019 the following breaches of the ADVO are alleged to have occurred:
(a)The father sent a letter to the mother, and during May and June he sent several emails;
(b)In September 2018 the father parked outside a changeover location so that the mother walked past him;
(c)On 26 August 2018 the father was charged with 4 breaches of the ADVO, 1 charge of assault and 1 charge of recklessly causing injury;
(d)On 6 November 2018 the father entered the same café as the mother and children;
(e)On 8 February 2019 the father drove past the children’s school at pick up time; and
(f)On 9 February 2019, the father drove past the children’s school at drop off and collection time.
Orders sought by the parties
Parenting
The father seeks equal shared parental responsibility for the children, a shared care arrangement (on a week about basis) and that the children remain living in Melbourne and continue to attend their current local schools and kindergarten.
At the outset of the trial the father did not propose orders in the alternative, in the event that the mother’s application for relocation with the children was successful. However, towards the end of the trial the father submitted that if the mother were to be successful, he would be willing to also relocate to NSW in order to be near the children and proposed a spend time arrangement of 6/8 nights per fortnight.
If successful in her application to relocate, the mother proposed that if the father chose to remain in Melbourne, that the children spend time with the father for a weekend once a month during school term and as agreed between the parties during the school holidays.
The mother proposed that if the father were also to relocate permanently to reside within a 50 kilometre residence of the mother’s new location (but still maintain the current distance of a 7 kilometre radius from her place of residence), that the father spend time with the children on alternate weekends and for one night during week 2 of a fortnightly cycle.
The mother sought sole parental responsibility for the children’s education (including extra-curricular activities) and that the parties otherwise share that responsibility in relation to health and other major long term issues.
Property
The value of items in the asset pool were largely agreed. There was no dispute that property orders were required. Both parties agree that the matrimonial home is to be sold.
The father seeks 70 per cent of the parties’ assets and superannuation. The mother sought an adjustment of the non-superannuation property pool of 65 per cent in her favour, with no adjustment to superannuation holdings.
Evidence relied upon
There were many affidavits and documents filed in these proceedings and many witnesses were called upon during the defended hearing, which was estimated to take 4 days, but spanned over 6 days. The parties ran out of time to deliver their entire oral submissions on the final day of the trial and orders were made for the parties to file written submissions, which were received following the hearing.
The father’s case centred on his view of the importance to the children of remaining in their current city and education arrangements because they are established with family and community. He argues that the children are well settled, active in local extra-curricular activities and that their need to spend time with their father will increase with age. The father does not believe his relationship with his children will be supported by the mother if they relocate.
The father alleges that the mother drinks too much and has mental health and anger management issues. He also raises concerns about the mother’s capacity to care for the children due to symptoms related to her alcohol consumption. He nevertheless sought equal time.
The mother seeks to relocate with the children so that she can live close to support networks and no longer be in the vicinity of the father, given the history of alleged family violence. The proposed relocation is to an interstate area familiar to the children who have had holidays there throughout their lives.
The mother says that she believes she has done all she can to promote the children’s time with the father, but maintains concerns about her own capacity to continue to deal with the father if she remains in close proximity with him, as he has had an effect on her mental health and capacity to effectively parent.
The mother accepted that the children have a generally good relationship with their father, although maintains concerns for their safety as a consequence of his alleged erratic behaviour and some threats made during the separation, as well as particularised incidences of verbal and physical violence during the relationship and separation. Despite the ADVO in place the mother alleges a number of breaches (as detailed above) and the father was charged by police.
The Witnesses
The Father
The father presented as an eager witness, leaning forward onto the witness box. His answers were lengthy and very forthright. At times he would recast questions and put them back to Counsel rather than giving a simple answer.
The father’s reaction to the proposition that he might move to NSW was quite odd – he claimed not to have thought about that before. It is difficult to accept that the father would not have given consideration to moving if the mother was permitted to move, at the very least during the preparation stages for trial. The father appeared overly confident that the mother would be required to stay.
The father’s reliability as an historian was questionable. For example, the mother received a black eye at one stage when they were together as a result of an accident when one of the children jumped on her. There was no suggestion of any wrongdoing on anyone’s part, however the picture of the mother’s eye was that of a clear textbook style image of a black eye. Remarkably the father said he could not remember the incident or injury. With respect to disputes between the parties he often seemed vague in his responses.
I found the father had a tendency to embellish his narrative about events. For example, with respect to an improvident loan to a friend, he insisted that it be referred to as an ‘investment’ rather than a loan. Whilst the informal document did provide for the possibility of owning 5% of a business that his friend ran (and was unable to finance at market rates) the substance of the transaction was that of a lender of last resort. Similarly, his agreement to ‘meet’ mortgage payments would reasonably have been understood by the mother to mean he would pay the repayments, but the father took the view he could wait until they had used up the amount they were in advance under the mortgage. Not only does this reflect upon his frankness, but it shows a lack of insight when it concerns a period after he obtained orders for the mother to be forced to return to Melbourne when she was expressing significant distrust of him.
Generally I did not find the father an impressive witness, and struggle to rely upon his evidence when it conflicts with that of others.
The Mother
The mother presented quite nervously in the witness box. I am persuaded that for her, giving evidence was quite difficult. The mother made real efforts to be precise and was clear about the positive things that the father offered the children.
I accept that her evidence was generally quite frank. Whilst not set out in her affidavit, the mother readily admitted in cross-examination that she had often placed her hand over the father’s mouth when arguments commenced (explaining she was worried the children would hear).
Whilst it was claimed that the mother kept photos and emails (with notes of events) to in some way ‘set-up’ the father, this was not the impression one obtained from seeing her in the witness box. Had the mother been setting out to fabricate a case of family violence, her picture of her black eye would have been a significant piece of evidence to support a false claim, which would be likely to have convinced most courts. However, the mother eschewed any suggestion that it was caused by the father as that was not the truth.
Generally I accept the evidence of the mother as genuine and reliable.
Ms B
Ms B is retired (the ‘maternal grandmother’).
The maternal grandmother confirmed she was involved in the family report interviews that took place in September 2018 and that she was interviewed alone.
If the mother had to remain in Melbourne
The maternal grandmother did not agree that the report writers summary was an accurate reflection of her view, where the report writer said:
In her interview, on 26 September 2018 the maternal grandmother… referred to her belief that [the mother] would be able to manage psychologically, should she remain living in Melbourne.
The maternal grandmother denied she said that to the report writer and said the report writer had made a mistake. However, she did confirm that she said the extended family would always regularly visit the mother in Melbourne.
The maternal grandmother also denied that she said the mother was ‘coping very well’ as was described in the family report and said that quote was also wrong. She also said the report writer was wrong in saying:
[The maternal grandmother] referred to her belief that [the mother] would be able to manage psychologically, should she remain living in Melbourne.
The maternal grandmother said there was nothing mentioned using the word ‘psychological’, which was later confirmed by the report writer. She said she was asked by the report writer if she thought the mother would cope with staying in Melbourne and the maternal grandmother said ‘Well, she would have no choice but to get on with it.’
The maternal grandmother confirmed she said ‘we’re only a phone call away and will always come down every four weeks’ and that is something she is able to do.
When asked about the Mother’s Group that the mother is a part of, the maternal grandmother affirmed they were good friends to the mother. She said she had no concerns about the drinking habits of the Mothers’ Group members. The maternal grandmother said that she has not observed the mother as having friendships in Melbourne since she came back from NSW.
Children’s relationship with father
The maternal grandmother acknowledged that when she initially met the father she liked him, and had a favourable impression of him, but noted that the parties had a long-distance relationship so his visits were short. She said that with time:
…we saw different aspects of [the father’s] personality. He was moody; agitated; argumentative and aggressive when he didn’t get his own way.
The maternal grandmother denied disliking the father but clarified she does not like what he does. When the father’s Counsel put it to the maternal grandmother that she does not like the father and is not able to conceal that from the children, she denied that. She said the children would think she likes him because she does not discourage anything with him, and she says positive things.
The maternal grandmother said she did not think the father was a competent parent and when asked why, she said ‘because he can’t cook and hasn’t done a lot for them’. When cross examined the maternal grandmother said she could not describe the children’s relationship with the father because she hasn’t seen him, but said the children are very close to their mother, that their father was not always there, and the mother did most things for them.
The mother’s travel to NSW in March 2018
The maternal grandmother said it was her initiative to suggest to the mother she come to NSW when she called from Melbourne in the lead up to March 2018, saying she was scared. The maternal grandmother said she helped book the flight for the mother. The maternal grandmother explained that when the mother arrived in NSW in March 2018, she went straight to a solicitor from the plane and then to the police to obtain an ADVO. The maternal grandmother said she read the ADVO and so the mother did not need to tell her anything, she said they tried not to discuss the matters subsequently.
I found the maternal grandmother very direct. She seemed quite driven in support of the mother. Whilst not openly derisory of the father, she had difficulty containing her dislike of him. My impression is that she is advocating for the mother and quite incensed by how things have unfolded. She will be supportive of the mother but likely to be rather inflexible.
Mr C
Mr C is the stepfather of the mother.
His observations are sell set out in his affidavit where he said:
When [the parties] found out they were pregnant with twins [the father] expressed how lucky and blessed they were…as the twins grew older [he] later expressed to me on several occasions how difficult life was for him now with three children and two of them being twins.
When asked by the father’s Counsel if the mother had to stay in Melbourne whether he and the maternal grandmother would visit on a fairly regular basis, he answered it would be hard to quantify. Mr C said they have commitments back home interstate, an elderly father who is recently widowed and a mother in a nursing home, but yes they would visit from time to time.
When asked about any financial impediment to fund travel he said that he and the maternal grandmother are retired and self-funded, but of course costs are always a concern. Mr C said he would support the maternal grandmother if she wanted to come to Melbourne by herself and that has happened in the past.
Mr C described the relationship between the mother and father before they separated as ‘okay’. He said he has spent one-on-one time with the father and enjoyed that time.
When asked about his observations of the father with the children, Mr C said the father is very interested in sport and tries to assist the children with their sport and recreational activities. Mr C said that was the main relationship he saw. He said the father loved his children, but noted he was concerned about some of the things he saw in terms of their relationship. Mr C said for the most part the children related well with the father.
Mr C said that insofar as the father is the father of his grandchildren, he believes he would personally be able to maintain some sort of relationship with the father, but finds it difficult to have a personal relationship with the father again based on some of the things he is now aware of. Mr C said that was a result of both what he had been told and his own experience.
Mr C confirmed he was not aware of the family violence allegations before March 2018. He became aware of these when the mother travelled to NSW and he accompanied her to the police.
I found Mr C a very impressive witness. He was open and frank in his answers and appeared to have considerable insight into the difficulties of the relationship, and also his own reactions to the issues. I accept his evidence.
Ms D
Ms D is a friend of the mother. She is the friend referred to in the father’s allegations associated with the Mother’s Group and drinking with the mother while their children were in their care.
Ms D said the group comprises of about three to eight mothers who catch up approximately every second to third Monday night at a group member’s house, on rotation. They met through a formal group organised when their children were born. She said her son attends school with the eldest child of the parties, and one other child from the group.
Ms D said the group catch-ups are usually from 4.30pm to 6.30pm, that the parents feed the children and some mothers have a drink, some don’t. Ms D said she is one of the people that would often have a glass of wine. She said she had not seen the mother have a glass of wine at the Mother’s Group for a year. She said prior to March 2018 she and the mother would probably have a glass of wine most weeks. She said she did not count her wines, but she was sure it was not a lot, because the children were present.
Ms D said they never drank excessively on a Monday night, but it is possible they did on other occasions. She said:-
There might be occasions where, for instance [the father] was away, because he was away a lot, and [the mother] was at home with the children by herself. She had twins, three children so her friends would come to her place. And we would have cheese and some wine and would have a discussion with the kids in bed.
Ms D said she expected they had more than one glass on those occasions. When asked about the father’s allegation that there were times when he would come home to six empty bottles she said she did not believe that was actually physically possible: she did not believe she and the mother could consume that amount.
When asked what the children did during the group catch-ups, Ms D said they would go and play, that they could have been in a separate room, possibly upstairs in their room. Ms D said she could recall one occasion where the children fell asleep on the couch when she might have stayed later than other group members. She thought on this occasion she went home around 2.00am. Ms D said she would walk to the mother’s house as she lived about a street away.
When asked about the mother’s behaviour and if it changed much when she drinks, Ms D said she does not believe so. Ms D said:
She might, I mean, like a lot of us, I suppose, maybe shows a bit of joy.
Ms D said she never witnessed any mood swings, confrontational or physically aggressive behaviour. In her affidavit she has said:
[The father] can be verbally aggressive, loud and argumentative. For example I have witnessed him on several occasions yell excessively at [his child] for soiling his pants. He frequently yells at his children and [the mother] and I rarely observe him to have pleasant and positive interactions with them.
Ms D confirmed these views as her opinion based on her observations of the father and his behaviour. Ms D said the father yells a lot, he’s an aggressive yelling man and that was the point of her affidavit.
When asked about what the father does well in relation to the children, Ms D said he is very good at doing physical activities with them such as riding bikes, skateboarding, kicking the ball etc. Ms D said the father can be very critical when they do something wrong but he is good at being active with them.
Ms D said she has a different philosophy in relation to how she might handle the children, and that she does not agree with the father’s approach.
Ms D agreed that she could be aggressive and yell if pushed, but not on a daily occurrence. She believed she was pushed on 22 February 2019. Ms D said the day before that date the father had told her to ‘Go and have another wine’. She did not yell at him at this stage.
Ms D said there was a training session at a facility and the father walked right passed her, within a metre and she spoke to him, and said things such as ‘What are you doing here?’ and ‘You should go back to [his suburb of residence].’ Ms D said that later in the carpark she said he was ‘evil’. Ms D told the father he had accused her son of hurting his son. She said this was not said in front of other parents. She said this in front of both their children. Ms D said she was angry but she did not raise her voice. She said she knew the father was blaming her children for his son’s behaviour (she based this on the fact that the father’s son came up to her at school and told her that his father told him that her children were naughty). Ms D said she made a mistake and regretted what she said and did in the carpark on this occasion.
Having observed Ms D and the father in the witness box it is not surprising that their personalities would have clashed. Whilst I generally accept her evidence, it is obvious that she has given a version that is a little more polished than day to day reality.
Mr E
Mr E is the mother’s brother.
Mr E lives in Tasmania but was previously living near the mother’s family in NSW, for about a decade. When the mother visited on a regular basis he frequently saw her on those occasions. Mr E said he did not regularly see her with the father in the time before the parties separated, but that the mother would come up with just the children.
Mr E confirmed he had paid money to the mother’s solicitors for her legal fees. Mr E said he paid $90,000 the previous week and that of what he has paid, $42,000 was by way of repayment to money he owed her before he started paying her legal fees. Mr E said he has no records of the amount he has repaid but trusts his sister to keep better records than him.
Mr E was questioned about his observations of the father, Mr E said the father would like the children to be quiet and in the background largely, and that he interacts when they are doing activities and play, but when it is the father’s time, it is the father’s time.
Mr E gave an example of concerns he had about the father’s interaction with the children. He recalled one incident in 2016 where the eldest son was ‘doing his words’ and the father was getting frustrated. The child was tired and not getting answers right and the father became more and more insistent on the child getting them right. Mr E said it got to the point where the child was crying and the father was belittling him by calling him names and that it was quite uncomfortable.
Mr E said the environment in the family home when the parties were together was stressful. He said he did not really have a good relationship with the father because he chose not to spend time with him.
Mr E said his perception of the mother in managing her role as a mother at present was that she’s managing fantastically well. When asked about the mother’s resilience, he got upset and said his sister is highly capable, but noted her resilience is all but gone. Mr E affirmed he would do whatever his sister needed in any situation.
Mr E was an unusual witness, presenting quite stiffly at first but then very emotional. He holds considerable anger at the mother’s treatment by the father.
Ms F
Ms F is an early childhood teacher. The twins were about three and a half while Ms F worked full time as their kindergarten teacher at the centre.
Ms F said that the twins were attached to the mother and emotionally in tune with her, and the father appeared to her to be loud and strict with them. When asked by the father’s Counsel she clarified by ‘loud’ that he had a projective voice and by ‘strict’ she meant he had strong, rigid values about the way the children learnt at the centre. The teacher confirmed this was not a criticism of the father, just her perception of him.
Ms F clarified that when she said in her affidavit that the twins were not responding positively to their father on some occasions, that she meant the transitions when the father dropped off the children were easier in that the children were eager to play rather than when their mother dropped them off as they wanted to stay with her.
Ms F was asked about the content in her affidavit describing what a former colleague reported that one of the twins said to her (in relation to the incident discussed in paragraph 144). The affidavit said:-
[X] approached her and said, “I got hit on the bottom” When the teacher asked [X] how, he responded, “Daddy hit me on the bottom.” [A] asked why and he responded, “Because I’m naughty.” [A] told me that [X] was very sad and said to A he didn’t like it. [X] also told A that he wanted a new daddy.
Ms F clarified the description in the affidavit was based on a report she wrote with colleague [‘A’] about five months ago. She had written some notes, documenting the conversation she had with her colleague. Ms F said she did not report the incident because it was second hand information to her.
Ms G
Ms G is also an early childhood teacher.
Ms G confirmed in cross examination that the twins are generally speaking, happy and come to the centre when they come with either the mother or the father. She confirmed that in her observation of drop-offs the separation between the twins and the mother was more difficult and that they were less inclined to hang on to the father. Ms G said the children are generally happy to greet both parents individually.
Ms G confirmed both parents are always courteous and polite and she has had positive and appropriate interactions with them both and says that it is fair to describe the twins as fairly physical boys.
Ms H
Ms H is a childcare worker at the centre the twins attend. She relied on an affidavit she swore on 25 September 2018 in support of the father’s case. She gave evidence pertaining to the allegation raised following a bruise on one of the children’s bottoms.
Ms H said she saw the bruise on the child’s bottom on 16 November 2018. Her colleagues saw the bruise. Ms H said she did not know if it had happened at day care or if it happened at home, so she called the mother to make sure it did not happen at home.
Ms H said she agreed with what her colleague V had put in a document (Exhibit #4) outlining the incident. Ms H said that her colleague F had asked the child ‘Did Mummy or Daddy hurt you?’. Ms H said that the staff documented the event exactly as it happened.
Ms H said that she was pretty sure she spoke to the mother who said it happened by falling, but she could not remember 100 per cent.
Ms H said she was not concerned because there was no other evidence of bruising around that area again, that she knew of, and that the children always came in with bruises, consistent with being very active boys.
All three child care workers presented as witnesses eager to avoid causing difficulty to either parent. Whilst I accept the general tenor of their version, I am not convinced they are clear on the details.
Dr I
Dr I is a General Practitioner who treated the mother as a patient He relied upon an affidavit sworn on 19 February 2019. Dr I was directed to give a mental health report for the mother.
Dr I says that the children attended the appointments on some occasions. He saw the father as a patient on two occasions in 2015.
Mother’s Medication
Dr I said that the medication he prescribed for the mother (Lexapro and Valdoxan) is not recommended with an excessive consumption of alcohol because it can make symptoms of anxiety and depression worse.
Dr I was asked by the father’s Counsel if Lexapro has a relationship with bruising, he said he has never had to cease a patient on that medication because of bruising. He said that bruising may be more prevalent in patients with abnormal liver function, and said this could be exacerbated by drinking.
Mother’s depressive symptoms
The doctor’s notes in his affidavit record that the mother sought treatment with respect to a significant depressive illness on 2 September 2015. Dr I said that he did not see a connection between the depression and the birth of the twins 18 months prior.
Dr I was cross examined about the medical report attached to his affidavit. He said he believed her depressive symptoms were dysthymic (a long standing history of intermittent depressive syndrome), spanning back maybe more than 10 years. The father’s Counsel asked if it was possible the mother suffered this before she met the father and the doctor said that was possible.
Dr I said on 6 August 2018 he observed the mother to be very teary during the consult and in cross-examination said that this was the first occasion in which she reported issues with family violence to the doctor. He said the mother had previously mentioned that communication issues with the father were discussed with her psychologist, but this consult was the first time she actually specifically spoke about physical violence. He could not recall if the children were present at that consult.
Dr I did not think the children were present on 13 August 2018 when the mother talked about the father threatening to kill her. On 28 August 2018, Dr I said the mother talked about a supervisor’s report, her ex-husband and the ADVO. He said at some point the mother mentioned a significant thumb injury sustained in a fall during a violent altercation with her father.
Dr I said he has seen the mother on two occasions since October 2018 for her psychological state and the legal issues she was having. When asked by the father’s Counsel if they discussed antidepressants in either of these consults, Dr I said the mother had previously mentioned that she was reluctant to take them as they would be used against her in legal proceedings. When asked if the mother would benefit from taking that medication, Dr I responded that when making an historical assessment, she described her period interstate as being stress-free, that her sleep, memory and concentration much improved and thus her depressive symptoms were absent when not in an environment that triggered them. Dr I said the symptoms were largely situational. Clearly the preferred treatments is to change the environment that is causing the symptoms.
The father’s Counsel put it to the doctor that if the mother did not have a choice to live interstate that there would be other things available to help her mental health, such as antidepressants or therapy and Dr I agreed those would be available.
I accept the doctor’s evidence. It appears most likely that the mother’s depression is situational in that it is a result of being in a dysfunctional relationship with the father.
Mr J
Mr J is a psychologist who saw the mother as a patient and swore an affidavit on 18 October 2018.
Mr J confirmed that in the mental health plan for the mother the information conveyed to him related to depression and anxiety. The handover document prepared for the psychologist described the ‘Presenting Problem’ and raised the issue of family violence. Mr J confirms that because of this he was aware of the family violence issues when he first saw the mother.
Mr J confirmed that when he prepared his report, it is based on the notes of the handover document from the initial psychologist. The original handover notes say:
[The mother] disclosed that she is experiencing family violence. She explained that her husband sometimes becomes physical with her, grabs her violently. She stated that this happens every couple of months. [The mother] expressed that she does not fear for her safety and stated that her husband has never been violent towards or in front of the children. [The mother] explained that she has never been hospitalised due to injuries. When asked again, [the mother] reiterated that she does not feel her safety is at risk.
Mr J confirmed that in his report, where he references her experience of family violence in a similar vein that he did not take the description from the above quote, but that the mother repeated the same content to him. He confirmed that each of the descriptions in his document were based on what the mother told him directly.
Mr J confirmed when the mother first attended she was wearing a wrist brace and that in the second session she stated the thumb injury was due to being grabbed by the father.
Mr J said the mother responded quite well to the five sessions she attended. He said the father never attended those sessions.
Mr J said the mother stopped seeing him after 5 sessions because she had tried to open up lines of communication with the father based on strategies he had recommended to her, but she felt it was not going very far and that relationship counselling might do better.
Mr J was an impressive witness and I accept his evidence.
Ms K
Ms K is a clinical psychologist and had 12 sessions with the mother for psychology treatment. Ms K confirmed she received the report prepared by Mr J and the family report from the court, but that she had not read either when she wrote her report.
Ms K confirmed the information she had in relation to the mother was primarily her own information that she gathered from those sessions, and that therefore the opinions she expresses in her report are based on the only source of information being the mother, and therefore her representations. This must be born in mind when having regard to comments that she made such as:
It’s possible that [the father] doesn’t understand the basic principles of raising children, or he may be deliberately mismanaging the children in order to cause difficulties for [the mother] when they are returned to her. This is a common practice among men who seek to control the other parent from a distance.
Ms K confirmed the mother has been responsive to the therapy insofar as she can, given that she still feels caught in a power imbalance. When asked by the father’s Counsel if the mother was prevented from moving interstate would therapy be helpful for her, Ms K said it would be of benefit. She said the mother would be capable of improving, however, it would be delayed and interrupted because of ongoing conflict with the father.
Ms K said that the mother is having trouble in her role as a mother only in the sense of wanting to protect her children from her own emotional turmoil and that she works very hard at hiding that from them to allow them to have a stable environment. Ms K said that as far as she knows the mother is successful at doing so.
Ms K said she usually does discuss with her clients if she thinks medication intervention would assist with their case, but for the mother she did not think that was necessary and her understanding was the mother was not taking any antidepressants or medication at the time.
The mother’s Counsel confirmed with the witness in re-examination that the beliefs of what the mother was going through were genuinely held, that it was her own reality.
The report was that of a treating practitioner, and thus did not have the level of detachment that one would expect in a forensic assessment, which I take into account in determining what weight to attach to Ms K’s evidence.
Ms L
Ms L was the family report writer for these proceedings. She conducted interviews on 26 September 2018 for her report. Ms L recommended that the mother remain in Melbourne and that children have significant time with the father. Ms L stopped short of recommending shared time due to the level of parental conflict. It was not apparent from her report that she had placed any real weight upon family violence issues.
The children
Ms L gave evidence on the developmental impacts of extended separation of children from the father (in relation to the period in March 2018 when the mother took them interstate), saying:
Children that young… require very consistent and reliable contact with a significant emotional figure, a parent, and with the children’s age their development is really crucial in terms of… their capacity to learn…to manage emotions and particularly how to manage anxiety, and when children are separated from parents like these young children had been, I would anticipate that their capacity to do all of those things had been compromised, and so my concern about a further extended separation would be that this would have an ongoing impact.”
Ms L said that separation from the father (if the mother moved) could have developmental and emotional impacts upon the children. The report writer said if the mother relocated with the children interstate she would be concerned about the security of the relationship for the children and their father, and their environment in which they’ve grown up do date. Ms L said they seemed well established in their community and with their relationship with the extended paternal extended family particularly.
When asked to clarify whether the case was really about developmental impact or emotional impact, Ms L appeared to acknowledge that developmental impacts were unlikely, save for consequential emotional effects on learning if the children were distressed and anxious about separation from their father and extended family. Ms L affirmed there is not specific research on this, but that it is a growing area of empirical support. However, in cross-examination Ms L agreed that their bond with the father appeared to remain strong even though there had been a period of separation after the mother moved to NSW, and that the important feature is the children being able to maintain a bond with the father if they moved. Ms L acknowledged that families do move and make care arrangements work.
In the first interview Ms L saw the mother was very distressed about the events surrounding the separation, but in a later interview said that the mother sounded more emotionally contained and was speaking more positively about the father and his capacity to parent.
Ms L thought the parties’ attitudes about each other would be evident to the children, but she said while the children have been exposed to conflict between the parties they have been relatively shielded.
Ms L thought that the mother would eventually learn to cope with living in Melbourne and facilitating the children having time with the father in a 6/8 type regime, plus half school holidays. Ms L confirmed she believed the mother would ultimately manage her emotional world and be able to make things work in a positive way.
Ms L seemed unaware that the father had made allegations that the mother drinks to excess, and has a psychiatric illness. Ms L did seem to be aware of the father’s claim that the mother is vindictively trying to exclude him from the children’s lives.
During cross examination on this issue the mother’s Counsel put to the report writer that she was criticising the mother for being more focused on her emotional distress than the children’s relationship with the father in the first interview. Counsel put it to the report writer that the report writer was aware of a history of significant violence from the father and the report writer affirmed that she placed more weight on her observations of the interactions than the claims of each of the parents regarding those allegations. Ms L initially appeared to indicate that the report was made on the assumption there was no violence to take into account because she was unable to determine whether it had occurred. Although as she explained further, I concluded that that may be too critical a description of her position.
It is difficult to conclude that Ms L gave serious consideration to the family violence issues, given that she appeared critical of the mother’s resistance to remaining in a room with the father for a changeover (the mother had asked ‘Do I have to?’). Yet when the mother was pressed to do so she responded to the children excitedly about their father’s arrival and looked interested in and focused upon the children. Ms L said she was critical of the mother asking about whether she had to participate in change over with the father, in front of the children, however, the mother was placed in that position by Ms L asking when the children were there.
It is difficult to see how Ms L factored in the issue of family violence in the report. When asked if she proceeded on the assumption that the mother or father was correct about the family violence issues she said she ‘was not sure about the truthfulness of both parents views and so I put more weight on the observations of the interactions’. This preceded the following exchange:
So on the assumption that there is no violence to take into account because you’re unable to determine that: --- Yes. Yes.
Perhaps realising the difficulty of this answer, Ms L reverted back to saying she assumed there was some mutual violence.
Other aspects of the process were difficult. For example Ms L appears to have had the mother wait in the same waiting area as the father. On reading the reports of the mother’s psychologist and doctor, Ms L agreed that there are significant concerns about the mother’s capacity to function appropriately and parent at her best if she remains living in Melbourne away from support.
Ms L affirmed that in her interview of the maternal grandmother, in her notes about the mother coping she says that at the end of the interview she asked if there would be anything helpful for the court to know, and the maternal grandmother said:
‘She’s on tenterhooks, but with time I think that will settle.’
When asked how she thought the father would cope if they all moved interstate, Ms L said that the father is an adult and mature and capable. She recognised it would be a difficult decision for him to move away from his social network and family but that he demonstrates psychological resilience.
In answer to a question about the father’s insight and parenting skills, Ms L said he spoke very thoughtfully and in detail about each of his children’s development and their particular needs. The father had undertaken personal development with counselling, anger management and understood about communication strategies with the mother and spoke about very positive underlying principles about parenting.
The father’s Counsel put it to Ms L, that the gist of the mother’s view is that the father is overly strict on the children and won’t let them express their feelings and emotions adequately, and that in his evidence he denies this. Counsel put to Ms L that it is the mother’s case that both parents have a difference of parenting styles and values, and both are within the realm of normal and acceptable. Ms L agreed with this and said she sees both parents as capable of developing further skills and knowledge of their parenting obligations and the children’s needs.
Ms L agreed that although the father had had relatively limited time with the children he had a meaningful relationship with them and a strong loving bond. Ms L agreed that because of the strength of that bond, if the mother relocated, but the children saw their father on a regular basis, that meaningful bond would be maintained.
Ms L said that her impression of the father is that he conveyed respect towards the mother as a parent, but not trust, although noted she thought he trusted her parenting abilities. Whilst this is the impression that the father gave Ms L, it is difficult to reconcile with the other evidence of the father.
I found Ms L unimpressive as an expert witness. She appears to have approached the case without considering the difficult nuances that arise in cases involving family violence. Whilst I accept that she could not determine whether the violence had occurred, her report ought to have been expressed in more circumspect terms, or provided alternative analyses of her observations depending upon the findings as to the family violence allegations. I accept her evidence that the children have a strong and secure bond with the father. I also find that the conduct of the mother, which she observed when asking the mother to perform a handover to the father, demonstrated the mother’s resolve to place the children’s needs before her own, even in situations that are very stressful for the mother. Beyond this, I was not greatly assisted by Ms L‘s report.
Specific Issues
There are a large number of issues that arose in the context of this case. Whilst I have had regard to all of the evidence, there are some issues, however, that warrant specific findings.
Family Violence
Smacking the children
The mother alleges several instances of child abuse by the father:
On 19 October 2013, the father is alleged to have smacked the eldest child so hard that he left large red welts on him. The father admitted he did smack the child but says he absolutely did not leave welts on him. The father also said he had not smacked the child as often as the mother had. The mother acknowledged that they both do smack the children but maintained that that on this occasion the father’s smack was inappropriate as it caused marks on the child for a long time afterwards.
I accept that the father did smack the child with sufficient force to leave a red mark, although I am not persuaded that it resulted in ‘welts’. It was an event that occurred many years ago, and was an isolated event at the time.
On 16 November 2016 when the mother went to collect the children from their childcare centre, one of the child care workers said to her, ‘What are those marks on [the child’s] bottom? It appears to be a handprint?’ The mother replied that the children were with the father the night before. When she got home she asked him if he smacked the child on the bottom last night, and she says that the father said yes. The mother says that the father had hit the child so hard that the child had bruises on his bottom.
The father says that the children, the night before were playing up and down the timber stairwell while he was cleaning. He said they were racing naked up and down, the father saw this and thought to himself ‘Ooh, that’s going to hurt’, but they kept racing and the father was proud they were so brave. The father acknowledged that he smacked the children that night on the bottom because they would not go to bed, but believed the child in question had the print because he was the only one bouncing down the stairs on his bottom, whereas the other children were sliding on their fronts down the stairs.
The father says that when the childcare worker asked the child if his dad smacked him, and the child said yes, it was because he was misbehaving and that the childcare worker has made the association the smack is what caused the bruise. The father said he explained this to the mother, but not the childcare worker.
In her cross-examination evidence the mother said the father never gave her this reason or told her about the stairs, that it was another day.
The evidence on this issue is difficult. Much of the evidence from the workers at the kindergarten was either based upon evidence of others, or in part upon leading questions to the child. I am not convinced that the childcare workers have a particularly clear recollection of the detail surrounding this particular incident. No doubt from their perspective, once they were satisfied that it was not an incident of such significance as would require intervention of the Department of Health & Human Services they took little further note of the events, until they were asked to give evidence.
I am not persuaded that the mother was ever convinced that the marks on the child’s bottom were simply the result of sliding down the stairs. The mechanism of sliding or bouncing down the stairs seems an unlikely one for a child, although possible. The photograph that has been placed in evidence does not show a clear handprint on the child’s bottom.
Considering the evidence as a whole I am persuaded that the father smacked the child, with sufficient force to cause pain, and a sufficiently strong memory resulting in it being raised at the childcare centre. I also have some concerns about the extent to which the father was supervising the children, if they were allowed to continue to bounce down the stairs on their backsides, resulting in the bruising as shown in the photograph.
Physical violence against the mother
The mother alleges that the father was generally aggressive, verbally and physically towards her and that the father was violent to her on some occasions during arguments. The mother particularises these incidents of family violence against her. The father says that is not true, he was not aggressive towards her verbally or physically. The father goes further, and claims that the mother kept notes and photographs as part of a long-term campaign to be in a position to have a strong case against him.
The mother recorded evidence of her alleged abuse by sending emails with descriptions and photos of the injuries to her work email over a period of approximately 5 years starting in October 2013. The father said he was aware she was doing this from about November 2016 onwards.
The mother gave evidence that she had a florid black eye caused to her by their young son in November 2016, but the father said he had no memory of that injury which the mother alleged occurred when the child reared his head back and caused her to have a big black eye for weeks. As already identified, if the mother had been making up allegations of violence against the father it would be remarkable if she would not have included this injury, given the clarity of the photograph.
The father agreed the mother sent emails to herself, but he says she makes the descriptions all up because she thought she would need evidence one day. The father’s case is that she made up the allegations in order to move interstate. The father says they talked of divorce for a long time so it is clear she was gathering or making up evidence for a while. Having observed both parties in the witness box at length, I am not persuaded that this was some form of long-term plot by the mother. Rather, I accept her evidence that as these events occurred she made some records or notes.
Bending her over with her arms
The mother says that on 20 February 2015 she and the father had an argument which ended up with him grabbing her around both arms and bending her over saying ‘what are you going to do about it?”. The mother said that after getting away, the father followed her into the bedroom and stood over her in a threatening way.
The father says he has no recollection of anything like that ever happening, and that he thinks ‘that’s all crazy’, it didn’t happen. The father said the pictures of bruising look like she was sunburnt, but if there was bruising it could have been from the gym, the kids or a whole lot of things.
I bear in mind that if the father’s version is correct, it is difficult for him to say more than to state a bare denial. I also note that the photographs do not show extreme injury, but sufficient to indicate that something physical has occurred.
Ultimately I am persuaded that the events unfolded as the mother alleges.
Bruising and red marks
On 12 January 2016 there was a physical altercation. The mother produced photos of bruises and injuries which she said remained for 5 days.
The father denies any recollection of this happening. He says the only conversation he had with the mother about her bruises was that every time she was picking up the children she would get bruises. They would cause them by jumping and kicking her. The father said that the mother would say that she ‘bruises like a peach’. The father gave evidence that many of the bruises that were attached to photos to the mother’s affidavit could have just been caused by the children.
I accept that many parents receive minor red marks, and sometimes slight bruises, from time to time from boisterous young children, in play and sometimes when holding children pressed against them. I am not persuaded that the mother was regularly bruised simply by interacting with the children. I prefer the mother’s evidence on this issue.
On 1 November 2016, the parties had an argument about the father fixing the shower tap. The mother left to take the children to the paternal grandmother’s place and returned shortly after. In the mother’s version of the events the argument continued and became heated. The mother said to the father ‘Don’t you care about your kids?’ The father allegedly grabbed her wrist and said ‘I had a good life without you.’ The father pushed her hard against the wall. The mother attempted to escape but he refused to let her go and kept repeating ‘I had a good life without you’ and pushed her against the wall again. When the father let her go, the mother ran into the children’s bedroom and said ‘another bruise to add to the photos.’ The father followed her into the room, closed the door and said ‘You aren’t getting out of here alive.’ The mother tried to push past him several times. Because he would not let her go she opened the window and screamed ‘Help! Call the Police!’, and then he let her out of the room.
The father said he remembered this argument and made a general admission that there were occasions where the mother would come up to him and he would push her away or try to get her off him, but he denied grabbing her by the wrist or pushing her hard against the wall. The father said this absolutely did not happen.
The father conceded that the mother yelled out the window ‘help’, but in his version of events the mother came into the room after him, and she continued the argument from downstairs. The father said it was actually him trying to get out of the room when the mother started hyperventilating. The father said he was suspicious of her hyperventilating and he asked her ‘why are you doing this?’ He said he didn’t know if she was putting it on, and eventually the mother went out onto the window and yelled. He said that he was thinking ‘what is wrong with you?’ He said this was part of her general madness and there was something wrong.
The father also agreed that the mother did say ‘another bruise to add to the photos’ but he says that the injuries are consistent with bruising caused by pushing her away in self-defence from trying to slap him and putting her hand on his mouth. The father said the mother was not allowing him to get away, the father first said she punched him, hit him, then that she slapped him, and that there was a hand print on his face. The father said he did not go to the doctor and did attend work the next day. The father said he took a photograph of his red face and that she deleted this from his phone.
The mother admitted in her cross-examination that on two occasions she slapped the father after he held her and would not let her go. The mother said this occurred in this incident, and she cannot recall the other one.
With respect to this incident it is difficult not to conclude that the mother was fearful given that she was calling for assistance from the window. The fact that she may have struck the father across the face or put her hand to his mouth to stop him from speaking does not lessen his own conduct. That the mother may have engaged in these acts does not in some way cancel out the event. It is important to see events of this type in context, and consider the difference in the conduct of the parties and its impact upon them.
I am not persuaded that the mother hit the father with sufficient force as to leave a red mark on his face that lasted for any significant period of time. I prefer the mother’s version of events, although accept that she had to some extent minimised some of her own conduct in the altercation. However, the overwhelming effect of the altercation was that of the father exercising violent control over the mother.
On 6 May 2017 the parties were involved in another altercation where the father grabbed the mother’s arms, causing her to feel pain and left red marks and bruises.
The father does not have any specific recollection of this incident but again submits that the bruises are consistent with a defensive manoeuvre. The father also alleges these injuries were consistent with grabbing the mother in order to get her away from him, although he doesn’t have a specific recollection of the incident.
I do not accept the mother’s injuries were from defensive movements of the father. The father is obviously a fit and capable man well able to choose to leave a situation of the type he describes.
On 15 January 2018 the mother said to the father in the evening ‘I am not having dinner now, I’m going to go for a run’. The mother says that in response the father grabbed a frozen meal from the freezer and became frustrated, so she offered to help and he yelled, ‘I have to prepare my own dinner because you have to go for a run’. The mother told him to stop screaming because the children could hear, he followed her as she went upstairs and continued to scream so she put her hand over his mouth so the children would not hear him. The father grabbed her, threw her against the wall and then threw her onto a bed and stood over her with his fist cocked as if he was going to punch her. The mother says she put her hands up to protect herself, and the father then left the house. The mother says she received multiple scratches and bruises from this altercation, she provided photos of the injuries as evidence.
The father says he remembers this argument but that he does not remember yelling at her about preparing his own dinner or the mother saying ‘stop screaming’ because the children could hear. He acknowledged in his cross-examination evidence that the children probably could have heard the argument.
The father said he went upstairs and then the mother came too and the argument continued. The father says the mother put her hand on his mouth forcefully and so he did grab her wrist to get her hand of his mouth, and submits this is account is consistent with her injuries. The father denies throwing the mother against the wall on onto the bed and standing with his fist cocked. Again he says he grabbed her arm to get her away from him.
I am not persuaded that the mother would have followed the father upstairs in the course of these events. The altercation commenced because she had prepared herself to go running, and the father wished to have dinner. It makes little sense that she would have followed him upstairs unless she were in effect the instigator or desiring to continue the argument. It is inconsistent with earlier events that I have accepted occurred, that she would follow him to pursue such an altercation while arguing. I prefer the mother’s version of events with respect to this incident.
Thumb dislocation
On 5 June 2017 the parties had an argument The mother alleges that later in the day, she expressed she was upset with how she was treated in the morning and alleges the father punched the cupboard door in the kitchen right next to wear she was standing. The mother said this made her scared. She said the father started walking away calling her names, then he walked quickly back and grabbed her and pushed her against the wall. The mother says she fell on her back and braced herself with her hands. She says the father then pulled her up screaming at her. The mother saw her thumb was dislocated, she said ‘You’ve broken my thumb, get out’ and the father left. The doctor she visited the next day said she had a grade 3 tendon tear and l needed a splint, which she was in for 8 weeks.
This allegation forms part of criminal charges before a Magistrate Court. I do not take into account that the police may have laid charges as they have not been the subject of a finding by a court, nor is it even certain that the police will press the charges to a hearing.
The father denies this is what occurred. The father says there was an altercation but he was trying to get the mother off him. He alleges the mother tried to choke him and strangle him so he grabbed her thumb and that’s how it became dislocated (noting he said he thought it was severely bruised rather than dislocated). The father says he was trying to get the mother’s arms off him and he was holding her with his two arms and that is when she said ‘Ahh, you’ve hurt my hand.’ The father says that the whole thing about pushing her onto the ground was a lie, that she fell and that is how she dislocated her thumb.
I am not persuaded that the father’s version of events is credible, and prefer the mother’s version.
Overall the father said that the mother attacked him in every single incident, and that she was the aggressor. On the father’s evidence he only ever defended himself, and that no physical incidents happened in front of the children. The father admits that they had arguments, that they raised their voices and would swear at each other, but he did not agree that he ever attacked her. I reject the father’s evidence in this regard.
Verbal abuse towards the mother
The mother alleges that over the years the father made comments to her such as ‘you fucking mole’, ‘I’m going to make your life miserable’, ‘I won’t let you see your family’, ‘I hate you and wish you would leave’, ‘you are a bitch’, ‘psycho bitch’ and ‘I never loved you.’ The mother says these comments were made in front of the children.
The father says that he does not remember making comments like that. The father says he remembers the parties swearing at each other but he does not remember calling the mother a ‘fucking mole’, or saying he won’t let her see her family. The father denies all these allegations, except he concedes he probably did call her a ‘bitch’ and a ‘psycho bitch’ throughout their 13 years together. The father also acknowledged he said ‘I hate you and I wish you would leave.’ The father said that many times he was begging her to leave very early on in the relationship. The father had also said he never loved her, but denied this was said in front of the children.
I prefer the mother’s version with respect to the verbal abuse, and find that the father’s version minimises his conduct.
The father said the parties would often fight and did scream in arguments in the car with the children present, but that he would ‘absolutely not’ call her a ‘fucking mole’ in front of them. Clearly the children would have been aware of significant offensive comments and heated arguments between the parties.
On 11 July 2013 the mother alleges the father said to her that he was going to make her life miserable and that she replied he could not make it any worse, to which he said ‘You won’t see your family’. She says the father said he would take her credit card and yelled and screamed and called her names as he went up the stairs.
The father says he does not remember this event. The father acknowledges the parties had some pretty bad fights in front of the children and while the children have been exposed to terrible behaviour, but the father says he does not swear in front of them.
I prefer the mother’s evidence with respect this issue.
Separation
After the mother said she would take the children and leave him, the father replied, ‘I will take your credit card and you will have no money to support yourself.’ The mother says she believed him and was too scared to leave because she would not be able to support the children and herself independently.
In March 2018 the family went on holiday together with the maternal grandparents. The mother said that on this trip she was discussing an incident with her family where another child hit her child, explaining that in that incident she comforted the child and then he continued to play. The father said to the mother in an aggressive way, ‘What were you doing? How come you didn’t tell me about this?’
The mother said she became scared of the father in that moment and the maternal grandmother defended her and said it was not the mother’s fault and said it was time for bed. In private the mother told the father she was upset with the way he spoke to her in front of her family. He said, ‘Your family is a bunch of know-it-alls’, ‘you’re drunken alcoholics’ and ‘are all dumb’. The parties began arguing about the holiday and he called her names like ‘fucked up stupid mole’ and said ‘you’re so stupid you can’t even string two words together.’
The father denies he was aggressive, instead he says he asked why he had not been told about the incident and then walked away from the table to his room. The father said he did not want to have that conversation with the mother in front of the maternal grandmother to protect her because he thought the maternal grandmother would be appalled if she heard the mother was drinking whilst in charge of children and that her son was attacked by the mother’s friend’s child. The father said he remembered having an argument and thought he probably did call her a ‘fucked up, stupid mole,’ and say ‘you’re so stupid, you can’t even string two words together.’
The next morning both the mother and father agreed that the father said he was ‘leaving for good’ and took one of the children into a bedroom and closed the door (of the hotel room). The mother says she followed and the father got angry and aggressive and said ‘can’t you let me say a final goodbye to my son?!’
The mother says that the father appeared agitated and upset and so she was worried about him alone with the child. After about 10 minutes of waiting outside the room the mother entered and said, ‘that’s enough’. The father said ‘the twins are too young to understand this I’m not going to say goodbye, you can enjoy everything now. It is all yours now.’ The mother replied ‘You’re not going, it’s not fair on the kids, you’re not doing this to me.’ The mother left the father in the room where he stayed all day. The mother said she entered the room at one point and the father’s mood was angry and he said ‘this is the happiest day of my life leaving you for good’.
The father says he remembered saying that and that the mother was probably outside the room. The father said he was crying saying goodbye, and that it was a very hard time, it is noted that he was the one leaving. The father admitted it was not appropriate to spend 10 minutes crying in front of the child, but said that they were emotional times.
I generally prefer the mother’s evidence of these events. I do not accept that the father had any ideas of self-harm. I also accept that this was an emotional event for the father, and that his conduct would have had a significant impact on the children. At best it shows a degree of frailty on his part, and at worse a degree of manipulation in his conduct.
The next day at lunch the children were playing with their iPads with head phones in and the mother said to the father ‘Please stop being erratic and threatening to end it all. I want this to be amicable so we can still spend Christmas and birthdays together.’ The father replied ‘you must be delusional if you think this will be amicable. I am taking the kids. I will spend everything to make sure you and your hillbilly family are not raising my kids.’ The mother stayed up for the last two nights of the holiday to make sure the father did not do anything to the children or herself.
On the way home the maternal grandparents had the children and in the car alone, the mother says that the father said to her, ‘can’t you move to your mothers when we get home?’ The father started screaming ‘I am going to call you pig from now on, PIG!’ The father just kept repeating ‘pig’ and punching the steering wheel. The mother says she was frightened. The father said ‘I am not going and you are not having the kids! It will be with my last dying breath that you are taking the kids.’ When they arrived home the father said ‘I hate you, I hate this life, I’m happy it’s over’ repeatedly.
The father said he recalled this argument and having this kind of conversation. The father said he did not want to have that conversation at that time. The father agrees he probably did thump the steering wheel and might have called her ‘pig’ and that he probably did scream at the mother, but he did not agree that the mother might have been terrified. The father questioned why the mother would be frightened when he was telling her he wanted to divorce her.
On 5 March 2018 the mother said to the father, ‘You should speak to your parents about moving in with them.’ The father started yelling, he took the children to his car to take them to his parent’s house. The children were screaming and crying saying ‘I don’t want to go with daddy, he’s a cranky man.’ The mother said she was not comfortable with the children going because she was scared of the father in that moment because he was acting aggressively. The mother feared putting the children at more risk if she aggravated the father further.
That evening the mother says she tried to have a more calm conversation about the father moving to his parent’s house. The father replied, ‘why do you want me to move out? Do you have a cunt around the corner that you want to move in? You’re a stupid fucked up mole.’ The mother said she did not want to fight and asked what did he want, and the father replied, ‘I need more time, I need two weeks’ and ‘I need to decide if I want you.’ The mother said he was acting erratically so she stopped the conversation. The mother booked flights for herself and the children to NSW the next day.
The mother said she left because the father was becoming more erratic, she was worried he would do something reckless, and he was insisting on staying at the house. The mother says she was genuinely scared he would arrange to harm her or have her killed.
I prefer the mother’s version of these events. I accept that the mother’s fear of the father was genuinely held. Having regard to the nature of the father’s conduct in the period after it became apparent that separation would occur, I am persuaded that it is reasonable that she would have held these fears. It appears that the father’s distress at the breakdown of the relationship had manifested itself primarily as angry outbursts, after his initial grief when speaking to the children. These events indicate that the father was not self-regulating effectively at this time.
Apprehended Domestic Violence Order
On 9 July 2018 the father consented to an ADVO on a without admissions basis. The order was put in place for 2 years and lists the mother and children as protected persons. The ADVO states the father must not try to find the mother and the children, approach them unless through a lawyer, unless for court-approved counselling, or as ordered by a court or as agreed in writing between the parties.
The mother says that despite the ADVO in place she still did not feel safe. The mother said that even though the ADVO prevented the father from trying to locate her, he sent letters to the maternal grandmother’s house on more than one occasion and she was fearful that he would attend at the residence.
The father is facing criminal charges arising from allegations made by the mother which mirror the allegations made in these proceedings. The father acknowledged that some of the offences were with respect to breaching the ADVO by contacting the mother by email after the ADVO had been served upon him. The father said he intends to plead guilty to the communication related charges. As set out above I draw no inference from the fact that charges may have been laid.
Whilst the communications breaches are relatively minor, they greatly aggravated the difficulties of the parties. The very purpose of obtaining an order is to create boundaries between parties who are unable to communicate and to ensure that they are able to feel safe. Whilst, fortunately, the father’s conduct did not involve physical attendance at the mother’s residence it nonetheless undermined the central purpose of the order. Worse, from the perspective of the father’s case, is that it undermined any confidence the mother could have that court orders would be sufficient to ensure that she did not have to be careful that the father would be in her immediate living environment or seeking to contact her in the future.
The children’s relationship with the father
The mother said that that during the marriage the father told the children they could not cry as it was a sign of weakness and that these concerns have exacerbated since overnight time commenced. The father denies this and says it is absolutely not true. The father does also go on to say that he advises the children that it is okay to cry, but that it is not okay to whinge and whine. Having seen both of the parties in the witness box, my impression is that this reflects significant differences in their parenting styles and attitudes. The father is boisterous and physical focused, enjoying sport and outdoor activities. Encouraging children to strike an appropriate balance between expressing themselves, and maintaining resilience is a difficult task for parents. I am persuaded that the father believes a more stoic attitude is appropriate, and the mother sees a more emotive and empathetic side of life. I am not persuaded that this difference is significant in the context of determining the parenting capacity of the parties, so much as demonstrating a further difficulty in the parents co-parenting in this case.
On 22 February 2018 the mother alleges that when she picked up the twins from childcare the teacher told her one of the children ‘did a drawing today and broke down several times crying, saying ‘I want a new daddy, one that doesn’t yell and hurt everyone. He calls me names and makes everyone cry.’’
The father said he did not know why the child said that. The father said that during that period, the mother worked really hard to get the twins toilet-trained so the last thing he would say to the twins when dropping them off in the morning was, ‘Boys you had better not…soil your pants today. Please make sure you go to the toilet.’
This comment to the childcare worker appears to be consistent with the theme that emerges from the evidence of the father having difficulty regulating his emotions and engaging in angry outbursts.
Suicidal threats
The mother alleges that she believed the father had suicidal tendencies. On 3 March 2018 the father spoke with one of the children about funerals and made comments that he wanted to say a ‘final goodbye’ to the child and said he was ‘leaving for good.’ The mother was worried about her safety and the safety of the children. The father had also mentioned on previous occasions to the mother about ‘driving off a cliff/off the road’ with him and the children in the car.
The father said he got emotional when the child said to him ‘Dad, don’t worry. Whatever happens, I will turn up to your funeral.’ The father says that it was silly of the mother to take that discussion about funerals to be a threat by the father to kill himself because if she would have asked the child, the child who would have told her ‘Grandma was talking about it.’
Having heard the father’s evidence I accept that the father did not actually have any suicidal ideations during this incident. However, I also accept that the father would have been content with, what was at best, ambiguity and the emotionally manipulative effect it was likely to have upon the mother directly and through her reaction if the children were concerned. This was a time for clarity and reassurance of the children, even if the children had raised such an odd comment, even if an elderly relative may have used the quip about being prepared to still go to someone’s funeral.
Geography of living arrangements
Geographical proximity of the parties was one of the issues that gave rise to the mother’s application for relocation. After separation the mother moved to NSW, until ordered to return by the court. The mother then remained living in the former matrimonial home and the father was required to live elsewhere.
The father’s parents reside in a suburb very nearby to the former matrimonial home (approximately 1-2 kilometres away), and the father’s brother owned a business in the suburb where she was residing.
In the orders requiring the mother to return to Victoria, it was also ordered that the father live at least 7 kilometres away. However, the mother expressed concerns that the father was frequently in the suburb she resides in, attending his brother’s business, his parent’s house and local cafes.
Section 60CC(3)(f) requires consideration of the capacity of each of the parents and other persons involved in the child’s life to provide for the needs of the children including their emotional and intellectual needs. The father strengths lie in his capacity to meet the children’s needs for engagement in sports, physical activities, controlled risk-taking, and exploration of the world. The mother’s strengths lie in her demonstrated capacity as a nurturing caregiver to the children over many years providing for their day-to-day needs and emotional support. I accept the mother’s claims that the father has angry outbursts and that this frailty on the father’s part is likely to have an adverse impact upon the children over time. I am not persuaded that the mother suffers the suite of frailties alleged by the father. I am satisfied that on the balance of probabilities, if she is permitted to relocate with the children, that her depression is likely to resolve and that she will focus her efforts and energy upon the highest quality parenting she is able to for the children.
I have considered the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and the children’s parents as required by s.60CC(3)(g). I note the young ages of the children. In this case it is clear that the children have European heritage on the father’s side, and will be exposed to the traditions, cultures and language of the European community, particularly when with father. The mother is not of European heritage, however she is agreeable to facilitating the children’s attendance at Cultural school, and appears supportive of them being immersed in their cultural heritage. I accept that a greater degree of immersion in their cultural heritage on the father’s side is likely to occur in Melbourne due to the presence of the father’s extended family, than is likely to occur in NSW where the mother intends to reside.
None of the children in this case are of Aboriginal or Torres Strait Islander heritage and therefore this consideration is not relevant in these proceedings.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the child’s parents is a further consideration under s.60CC(3)(i). These issues have been discussed above. Of particular importance in the context of this case is the conduct of the parents when in dispute at times when the children were likely to become aware of their arguments and violent interactions. The evidence of the mother attempting to place a hand on the father’s mouth when arguments occurred demonstrates the instinctive sense of responsibility as a parent in attempting to shield the children from being aware of the events. The father’s inability to interact with the mother, without interaction resulting in bruising and violence shows a lack of responsibility on his part. I have accepted that the mother has undertaken most of the day-to-day responsibilities with respect to the children. I have had specific regard to the mother’s unilateral relocation which would ordinarily sound strongly against the conclusion that a person is a responsible parent. However, having now heard the evidence I am persuaded that whilst it may have ultimately been better for the children and the mother not to unilaterally leave Melbourne, her circumstances were such that it would be unreasonable to be critical of her in that regard in the context of this case.
Family violence and the family violence order must be considered under s.60CC(3)(j) and (k). The incidents of family violence and their contexts are discussed in detail above and need not be repeated. I note, however, that the existing family violence orders are not based upon any findings by the state courts as to specific events having occurred, and rely solely upon the findings that I have made on the evidence before me.
This is a case where it is clearly preferable to make an order that would be least likely to lead to the institution of further proceedings: see s.60CC(3)(l). The orders proposed by both parties are for the purpose of finalising the parenting issues. Both orders are intended to avoid further proceedings. However, having regard to the conduct of the parties between separation and trial it seems likely that the father may attempt to adjust or ‘tweak’ the orders as time passes. At least in the short term this is likely to be particularly draining upon the mother. If the children are permitted to relocate with the mother to NSW there is slightly less chance of further proceedings, although it appears so minimal that it is not a factor of significance for the parenting decision.
Primary considerations
Section s.60CC(2)(a) requires consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. This is one of the primary considerations. The children do have strong and meaningful relationships with both parents at present. I am satisfied that the mother will not attempt to undermine the children’s relationship with the father. Whether the children are in Melbourne or NSW they are likely to be able to maintain a meaningful relationship with their father. Whilst I am also satisfied that they will be able to maintain a meaningful relationship with their mother in both locations, the depth and quality of that relationship is likely to be adversely impacted upon by the mother’s psychological state if she is required to remain in Melbourne.
I am satisfied that there has been family violence in this case. It is important to protect children from exposure to any ongoing forms of family violence, which extends beyond the most simplistic ideas of an assault by one partner upon another. In the context of this case, difficult arguments between the parties, and the mother’s fears of being stalked by the father, are fears that she genuinely holds. The children will inevitably become aware of these concerns. If the children were placed in the primary care of the father, or a substantially shared care arrangement I would also have concerns as to his capacity to cope with the day-to-day frustrations that can be presented by children in this age bracket when they must be kept in a routine for kindergarten and school.
Whilst not a consideration with respect to the best interests of the children, I also have regard to the mother’s right to freedom of movement, reflected in this case in her right to choose to live near to her family supports rather than being required to live near to the father and his family supports. Of course, the father similarly has a right to choose where to live.
Parental responsibility
I am satisfied that the presumption in favour of equal shared parental responsibility does not apply in this case as a result of the family violence. Even if I am wrong in this regard, it does not appear to me that it could be said to be in the children’s best interests for there to be equal shared parental responsibility as the parties are clearly unable to negotiate and reach agreements on a reasonable basis, as the example with respect to Cultural school demonstrates. This is not a case where the parties are so oppositional that no agreement could ever be expected, but one where it would simply be oppressive to the mother to be placed in a position where she had to reach an agreement with the father in order to properly exercise joint parental responsibility. However, I am persuaded that the father has important views to consider with respect to these decisions and that therefore the most appropriate order to meet the best interests of the children is for the mother to have the capacity to make a determination to long-term issues, after consultation with the father. This ensures that the father has input, and can, if necessary, approach the court.
The mother puts forward a form of orders that is in my view, generous towards the father in this respect. In the circumstances I will make parental responsibility orders as sought by the mother.
Even if s.65DAA were to be engaged I am not persuaded that ‘equal time’ would be in the best interests of these children, even if the parties are living in the same city. The level of conflict between the parties is so great and the mothers genuine subjective fears such that equal time would simply not be workable.
Conclusion with respect to parenting time
As with all parenting cases the ultimate determination of the matter requires a balance of numerous factors. The material that has been put forward in this case is long and complex. In stepping back and looking at the matter as a whole I am persuaded that the best interests of the children in this case are served by the children living with their mother in NSW. I am satisfied that this is the appropriate order to make under the Act.
I am persuaded that the mother’s proposed orders for the details of the children’s time with the father make provisions that are in the best interests of the children and are largely appropriate. There are a number of specific issues that were addressed in submissions about the details of the orders proposed by the mother that require some adjustment to the orders she proposes.
I accept that if the father is traveling with the children to Melbourne for the weekend, there is some sense in permitting him to take the children from school a little earlier on Friday to enable access to more flights, and potentially having the children arrive in Melbourne a little earlier in the day. Whilst this does result in some loss of school attendance, it appears to be in the children’s best interests given their young age and the likelihood that in the context of the capacity of the parents in this case it will not have any significant adverse impact upon their education. Whilst the father’s Counsel suggests 2pm, it would be less unsettling if it were simply at the time of the school’s lunch period (in case lunch is earlier and the children are back in class for a brief period before pickup).
It was agreed that the father should have Easter with the children each year.
I am not persuaded that the mother having control over decisions about extracurricular activities will result in her using that power to frustrate the father’s time with the children. The nature of their relationship is such that they are unlikely to be able to negotiate or agree on these things. I am persuaded that the mother will make decisions in the interests of the children, bearing in mind the practical consequences for time. Clearly weekend activities should not stop time if the father has the children for weekends in Melbourne from time to time, and the orders should note this (even if he is living in NSW).
If the father is living within an hour’s drive of the school it is convenient for him to have time from conclusion of school until the commencement of school, thus avoiding changeovers with the parents, and allowing greater connection between the father and the school activities.
The father also argues that if he lives in NSW that school holidays should still be split at Christmas time so that he can take the children to Melbourne to see his family. I accept that Family Christmases in Melbourne from time to time will likely be a very enriching activity for the children. It also seems likely that the father will spend Christmas in Melbourne with his extended family. The orders provide for the father to have the first half of the long Summer vacation each second year with telephone time for the children with the other parent. There is provision for the parent who is to have the second half of the long holidays to have a short period of contact over Christmas. I am of the view this is sufficient, provided it takes place where the children would otherwise be through the Christmas period. Thus, if the father takes the children to Melbourne for the first half of the long holidays, the mother would have to travel to Melbourne to exercise her Christmas time in person.
Issues have been raised about attendance upon the children if they are in hospital. If the parents do not have an agreement in writing that they are able to both provide to the Nurse Unit Manager (NUM), then the father should have time twice daily for up to 2 hours each time as directed by the NUM directly based upon the NUM’s assessment of the child’s needs and the efficient operation of the ward. Both parties should comply with the directions of the NUM. Clearly arrangements should also be made for the father to be able to speak to the treating doctors and other medical professionals the children may see from time to time.
Property
Having regard to the circumstances of the parties there is no doubt that it is just and equitable to make orders settling their property interests under s.79(2) of the Act. At the very least the mother will no longer have the use of the former matrimonial home which is in the name of the father, despite her significant non-financial contributions of raising three young children, and the future impact that her parenting obligations will have upon her.
The property and superannuation available for settlement
Most of the assets have agreed values. There are three disputes: (i) the value of the loan to the mother’s brother, (ii) the parties’ current bank balances and (iii) the value of the mother’s defined superannuation benefit fund.
For the reasons set out below I am not satisfied that there is anything more owing from the mother’s brother. Whilst commonly parties’ day to day bank accounts are not taken up in the list of assets as they fluctuate from pay to pay and bill to bill, larger savings accounts are included. In this case the mother has two smaller accounts, and the father an account with a balance of over $8,000. I am persuaded that these accounts should be taken up in the assets of the parties presently available to them.
The father complains that the value assigned to the mother’s superannuation by the superannuation fund M on the face of the statement is greater than that determined under the relevant regulations. The regulations establish a methodology for valuing superannuation interests of parties for family law proceedings. No expert evidence has been led to show why the valuation under the regulations should be seen as less accurate than the figure placed upon the statement by the fund. As a result I adopt the figure struck in accordance with the regulations.
I therefore find that the property of the parties, and their liabilities and superannuation interests are as follows:
| Description | Owner | Value |
| Property N | Father | $1,075,000.00 |
| Property O | Father | $970,000.00 |
| Vehicle P (driven by Mother) | Father | $3,300.00 |
| Vehicle Q | Father | $12,500.00 |
| Vehicle R | Father | $19,000.00 |
| Vehicle S (driven by Mother) | Father | $850.00 |
| Westpac account T | Mother | $682.00 |
| Westpac account U | Mother | $305.00 |
| Bank of Melbourne account | Father | $8,704.00 |
| Investment account W | Father | $2,165.00 |
| ANZ Investments | Father | $831.00 |
| Subtotal: assets | $2,093,337.00 |
It is accepted by the parties that each has received funds that they have used to pay legal expenses that should be accounted for, and would otherwise be property for division:
| Mother's legal costs (Loan to Mr X) | Joint | $42,000.00 |
| Father's legal costs (drawdown against mortgage Y 14 and 15 March 2018) | Father | $19,250.00 |
| Add Back mortgage repayments not made | Father | $9,080.00 |
| Father's legal costs expenses post March 2018 (Portfolio loan) | Father | $29,128.00 |
| Total | $99,458.00 |
The parties debts are agreed:
| Home Loan (Property N) | Father | $359,126.00 |
| Home Loan (Property O) | Father | $390,898.00 |
| Portfolio Loan Account | Father | $ 29,128.00 |
| Westpac personal loan | Mother | $ 32,141.00 |
| Westpac credit card | Mother | $ 5,612.00 |
| Citibank credit card at separation | Mother | $ 7,347.00 |
| Citibank account at separation | Mother | $ 4,441.00 |
| Credit card X at separation | Father | $ 5,273.00 |
| Total | $833,966.00 |
I find that the superannuation interests of the parties are:
| Superannuation Y | Father | $411,745.00 |
| Superannuation fund M | Mother | $190,465.00 |
| Superannuation Z | Mother | $16,332.00 |
| Total | $618,542.00 |
I therefore find that the totals are as follows:
a)Assets (including add backs) $2,192,795.00
b)Liabilities ($833,966.00)
c)Total $1,358,829.00
d)Superannuation $618,542.00
e)Overall total $1,977,371.00
Contributions
At the commencement of the relationship the father owned a property he bought with his parents in 2000 for $250,000 that has since been transferred to him. The mother agreed that the father brought into the relationship a property and in 2009 it was valued at $700,000 and had a mortgage secured against it of approximately $190,000. The father also had around $18,000 and owned a motor vehicle which he estimates was worth around $50,000. The father also held superannuation interests of around $67,000. Thus the father brought to the relationship around $645,000.
The former matrimonial home was purchased in 2007 for approximately $500,000 in the father’s sole name with a mortgage of $530,000 in his sole name.
In September 2008 the father’s parents gifted the parties $100,000. The mother concedes that the father’s parents provided a further $50,000, making a total of $150,000.
The father says the following further sums were advanced:
a)In February 2008, a cash deposit to his account of $30,000
b)In September 2009 a bank cheque to his account of $10,000
c)In November 2010 a bank cheque for $10,000 (said to be a wedding gift)
d)In November 2013 a bank cheque for $25,000
e)In February 2014 a cash deposit of $20,000
Few financial records were made available, and those that were available were discovered very late. The father’s mother was not called as a witness, even though the father said that much of the money was provided in cash. The father was recalled late in the trial to give evidence of some transactions for which he located documents:
It appears that in February 2008 he deposited $30,000 in cash into his account which he says came from his mother. It appears to have reduced the mortgage payments. I accept that these monies were received by him. Whilst the evidence of the father is that they were from his mother, there is no other evidence as to the provenance of these funds.
Ultimately they were funds that came into the account for the parties benefit. Whilst it is possible they were associated with a former business venture the father may have had with his brother in a business, there is no evidence of this. Ultimately I accept that this $30,000 should be considered a contribution by the father from his family.
The father produced three documents that appear to be bank cheque receipts (the part of the cheque that the payer tears off and retains). They contain a bank stamp and what appears to be teller’s initials. They indicate that the cheques were made out to the father. They are for $10,000, $10,000 and $25,000 respectively on 16 November 2009, 4 November 2010 and 6 November 2013. They are not the father’s documents. There is no evidence from a business operator that they are business records (for example the bank). They do not show, on their face, who purchased the bank cheques. I am not persuaded that the documents are admissible through the father as they are not his documents and he says he obtained them from his mother.
The father produced a bank statement showing $20,000 deposited in cash into his account on 18 February 2014.
At one point the father also entered into a loan agreement with his mother for $200,000, which does not appear to match any of the transactions. The father maintains that his parents hold large sums in cash in a safe in their house as they do not trust banks, pointing to their life history as European immigrants to explain their mistrust of banks.
Whilst I have considerable misgivings as to the father’s reliability as a witness, on balance I am persuaded that these sums of money did come into his accounts and were available for his use. These sums are contributions on the father’s part. I am not persuaded that they are repayable loans, rather gifts from his parents.
Loans made by the parties
In 2010, the father made a loan to his friend of around $347,000. The father says the parties agreed on this as an investment. The mother says she found out about this loan a week before their wedding, which was in November 2010. In 2012 the recipient of the money was made bankrupt. Only approximately $26,000 of the loan has been repaid, which caused a loss of approximately $320,000. Remarkably the loan was evidenced by a one page handwritten document. It was unsecured, despite the very large amount involved. The terms provided for the borrower (a Pty Ltd company) to pay interest at the rate at which the father could borrow together with an additional 5% (giving the example that if the father was borrowing at 6% the repayments would be at 11%). It also provided for the father to be given a 5% interest in the company on repayment. The father’s friend signed the loan agreement as a director of a company: although given that he is now bankrupt, a personal guarantee would have provided little assistance. Given the terms of the loan it is apparent that the father must have been a lender of last resort. There is no evidence of any review of the business books or records to assess the business’s viability.
However, whilst the father’s narrative of the transaction is one of a business investment it appears more likely that is was an act of friendship by the father to the borrower: it was not the parties choosing what to do with their assets nor simply a business decision (whether highly speculative or not). The source of the funds was based upon assets that the father brought to the relationship, not those accumulated when the parties were together nor, at that stage at least, contributed to by the mother. I do not accept that the mother was in agreement with the transaction.
Having seen both parties give evidence it is difficult to imagine the mother agreeing to such a transaction. This is not a case where roles of spouses resulted in one acquiescing or becoming disinterested in the financial affairs of the household – the mother is a professional and would have significant financial literacy. The mother also presented as focused and careful in her manner and approach. I accept that the decision was made by the father alone and is not one that the mother would have agreed to, at least on the terms the loan was made. However, it is important to note that this was finds form a resource brought to the relationship by the father and used in the early stages of the relationship, pursuant to a transaction agreed to by the father (in substance at least) prior to the formal marriage.
Given that the funds are now gone, without any real prospect of recovering them, it does not appear appropriate to treat them as a notional asset that can be added back to the pool.
The funds lost effectively represent a unilateral use by the father of assets the father brought to the relationship. As such it is a factor that I take into account in determining the contributions the father brought to the relationship.
In 2011 the parties agreed to lend the mother’s brother $80,000. The mother says that this has now been repaid, listing a number of repayments from when the parties were together. The mother identifies specific payments totalling $29,971 up to April 2017. The mother also lists further specific payments from December 2017 totalling $16,000. She also accounts for a further significant sum ($42,000) paid by her brother towards her legal fees which she accepts is either an ‘add back’ or early property distribution to her use.
Whilst the parties are in dispute as to the precise repayments, there is no evidence from either as to keeping a record of the amounts, nor calculating any interest. There was no claim or demand ever made against the brother. Much was made of one repayment on the case of the father. The parties arranged a significant birthday meal with family costing over $1,600. The mother’s brother paid the bill, on her case as a part payment of the debt. The father maintains that this was a gift by the mother’s brother. I prefer the evidence of the mother on this matter, particularly given the size of the bill.
As counsel for the father identifies, ‘the evidence of both parties about this matter is confusing and unhelpful’. This was clearly a family transaction and not a business loan. It was agreed to by both parties. Estimates by counsel of what interest rates may have been over the years, and assumptions that no other payments were made really amounts to supposition. On the evidence at trial I am not persuaded that the parties could prove that further amounts are either owing by the brother or have been offset by the payment of the mother’s legal fees.
Mortgage payments after separation
After separation the father had the use of the former matrimonial home until the mother was required to return to Melbourne in mid-2018. The father also had the use of Property O that he had rented out on Air BnB from time to time. Whilst no clear accounting was given for the earnings of that property, he conceded $4,000 to $5,000 was received but said that he also paid the rates and insurances etc.
During the period from the mother’s return to Melbourne until trial the father relied upon the advances that the parties had made on their mortgage debts rather than meeting month to month repayments. Effectively this used up $55,112 by which the parties were in advance. In the orders requiring the mother’s return there was a notation that the father would be responsible for the mortgage payments. Whilst he did not pay the monthly payments, it does not appear he was in breach of an order of the court. Of course, during this period the mother continued to make considerable contributions by way of child caring and the father was earning over $220,000 per annum but making no significant contributions to the parties’ assets. The father did have to arrange his own accommodation and had living expenses together with child support expenses of around $674 per week. There was a later order (in November) requiring payment to be made, which was breached. In this respect counsel for the father concedes $9,080 should be added back. Whilst counsel for the father complains that payment of the mortgages would be too onerous, it was ordered in November last year on the father’s circumstances. I am persuaded that the November order would have been made earlier had the father’s intention to ‘meet’ the payments by allowing equity to be dissipated been known to the mother.
Ultimately, being mindful of the fact that the money was neither withdrawn, nor identifiable in another location at present, I do not treat more than the conceded amount as an ‘add back’ but take the balance into account as reflecting a lesser contribution by the father during that period.
Ultimately I assess contributions on the basis of 60/40 in favour of the father.
Section 75(2) Factors
There are three significant areas that must be considered under s.75(2) of the Act: the earnings of the parties, their responsibilities for child caring, and the impact of family violence during and after the relationship.
As I have taken account of the loans in assessing contributions I make no further adjustment for loans pursuant to s75(2).
The mother has a lower earning capacity compared to that of the father. She also has primary care of the children and will be working part time for some time given the young ages of the children, even with the support of the maternal grandmother and friends in NSW. The income differential of the parties is likely to be well over $100,000 per annum. However, I must factor in that the father will have significant travel costs to see the children regularly, and may have the costs of moving closer to the mother’s residence. If he chooses to move he may have a reduced income.
I am persuaded that the mother’s significant psychological reaction to the father’s violence is most likely to abate once she moves and that no ongoing adjustment is appropriate for this factor into the future.
As set out above, the conduct of the father has resulted in the mother suffering considerably during the relationship, affecting her capacity to function psychologically, and making her parenting of the children much more difficult. I am satisfied that the level of family violence in this case is such as to fall within the category described in Kennon v Kennon [1997] FamCA 27.
I am not persuaded that the mother was the instigator of arguments, nor that the act of placing her hand over the father’s mouth at times in disputes was borne of aggression so much as desire to protect the children from hearing the dispute. Similarly the fact she may have retaliated with a slap to his face does, in the context of this case, indicate that she was the instigator of violence. The extremely broad definition of family violence under the Act may include this conduct (as it is coercive behaviour attempting to control the father (albeit to a very limited extent) as defined in s.4AB(1). However, it is unnecessary to determine this technical question in this case as it is not conduct that in any sense can be said to have provoked or caused the incidents and would certainly not attract a Kennon’s Case adjustment, on either approach as outlined in Keating & Keating [2019] FamCAFC 46.
Whilst there is a long and complex definition of ‘family violence’ in the Act, it is important not to be distracted by definitional disputes. Rather, it is necessary to look at the conduct of the parties in the context of their relationship. I am satisfied that the mother’s psychological condition was, on the balance of probabilities caused by the father’s family violence and that this has had a significant impact on her capacity to parent, making her role far more arduous. I have made detailed findings in this regard above with respect to the parenting issues.
I note that the mother specifically did not make a claim for tortious damages, only an adjustment to any property division on the basis of the impacts of the family violence on the issue of contributions, and I approach the case on that basis, but through s.79(2)(o) (rather than in the assessment of contributions set out above).
Having regard to the matter as a whole an adjustment of 15% in favour of the mother is appropriate under s.75(2).
Property conclusions
As a result I will make orders dividing property 55/45 in favour of the mother in this case. The mother seeks a greater cash payment and less superannuation, however it appears to me that it is appropriate that the same percentage be applied over the whole of the property and superannuation of the parties. To merely equalise superannuation would be to ignore the real impacts upon long term superannuation accumulation of the mother having a much lower income amount as superannuation is accumulated by receipt of a percentage of salary.
The result is that the mother should retain $747,356.95 in assets and $340,198.10 in superannuation. This requires a split of $133,401.10 from the father’s superannuation fund.
As the mother has $5,137 in assets and has received $42,000 from her brother, she notionally holds $47,137 and therefore requires a payment of $306,483.30 from the non-Property N assets to effect a 55% split of the non-Property N assets. In addition she should receive 55% of the net proceeds of the Property N sale. This is most conveniently effected by a formula whereby the mother receives 55% of the net sale proceeds together with an additional $306,483.30 and the father the balance.
I find that the result of the orders is appropriate under s.79, and just and equitable.
Terms of the final orders
Given the length and complexity of all of the orders in this matter, I have provided a set of draft orders to the parties so that they may make submissions with respect to the terms of the draft to ensure that it reflects these reasons.
I certify that the preceding three hundred and twenty-one (321) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 16 April 2019
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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