LANE & ESSERT
[2019] FCCA 3608
•19 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANE & ESSERT | [2019] FCCA 3608 |
| Catchwords: FAMILY LAW – PROPERTY – Eight year relationship – father owning property before start of relationship – father’s income far greater than mother’s – father seeking 50/50 division of the property pool – 50/50 division just and equitable in the circumstances. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CC, 75(2) |
| Cases cited: Goode v Goode [2006] FamCA 1346 Stanford v Stanford [2012] HCA 52 |
| Applicant: | MR LANE |
| Respondent: | MS ESSERT |
| File Number: | DGC 1838 of 2016 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 11, 12 & 15 November 2019 |
| Date of Last Submission: | 15 November 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 19 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hall |
| Solicitors for the Applicant: | Malkin Lawyers |
| Counsel for the Respondent: | Ms Howe |
| Solicitors for the Respondent: | Lander & Rogers |
| Counsel for the Independent Children’s Lawyer: | Mr Lynch |
| Solicitors for the Independent Children’s Lawyer: | Peter Lynch |
IT IS NOTED that publication of this judgment under the pseudonym Lane & Essert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1838 of 2016
| MR LANE |
Applicant
And
| MS ESSERT |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting dispute about two young children: [X], born … 2014, and [Y], born … 2016. [Y] was born very premature and spent the earliest period of her life in an intensive care unit. She continues to suffer from various health difficulties.
The applicant father seeks that the children live with him and spend time with the mother but only subject to a number of important caveats arising out of the mother’s alleged mental health difficulties. The respondent mother seeks that the children continue to live with her and spend time with the father pursuant to extant Court orders which, in effect, provide for a 10/4 regime, with time concentrated on the weekends. The Independent Children’s Lawyer supports the change of residence in the orders sought by the father.
For the reasons that follow, I propose to give the mother what is, in effect, a last opportunity both to address her mental health difficulties, which even now she does not fully acknowledge, and more particularly to demonstrate that she is truly capable of fomenting the relationship between the children and their father.
Agreed or Uncontroversial Matters
The father was born on … 1982. The mother was born on … 1981 in Country A but came to Australia in 1998. The husband suffered from cancer in July 2006, and the mother has an autoimmune disease.
The parties commenced a relationship in 2006, according to the father, which was followed by a separation and re‑engagement in 2009. The mother asserts that they met in 2006 and commenced cohabitation in 2008. They married on … 2012, and [X] and [Y] followed, as earlier indicated. They had to be born by IVF as the cancer had rendered the husband infertile. As earlier indicated, the birth of [Y] as a very premature baby presented significant health difficulties.
Although there are arguments as to why it may have occurred, there was plainly a period of separation from May 2016, when the mother took out an Intervention Order against the father, until a reconciliation at the end of 2016 (according to the husband). It is the wife’s position that the husband forced his way back into the matrimonial home in December 2017 and that the parties lived apart thereafter. The father’s position is that the parties reconciled and lived a normal married life. On any view, they were under the same roof until final separation in April 2018, when the father was served with another Intervention Order.
It should be noted that in June 2016, the father filed an Application in this Court seeking time with his children but filed a Notice of Discontinuance in November 2016. This tends to add weight to his suggestion that the parties effected some sort of reconciliation at that time. Following the Intervention Order in April 2018, this proceeding was commenced with alacrity on 18 April 2018, and matters have progressed, albeit hindered by various matters, through to trial.
At this point, it is appropriate to turn to the various professional reports.
Report of Dr B
Dr B is an extremely experienced forensic psychiatrist, having originally achieved his Bachelor of Medicine in 1971. Dr B noted the parties’ competing assertions as to the duration of the relationship and noted that [X] had suffered asthma since birth and that [Y] was born with chronic lung disease. He noted the Intervention Order applied for against the father and paternal grandfather on 5 April 2018, which was granted on 15 May 2018. Dr B noted that following the institution of court proceedings, the father had spent supervised contact for three hours each fortnight at a play centre supervised by Family Service C. The mother expressed dissatisfaction with these arrangements because she considered the supervisor was on the husband’s side because the husband had been paying for the visits. Dr B noted that the mother wished to relocate to Tasmania because her family was there, noting that, in fact, her mother and stepfather live in Melbourne and she has lived in Melbourne for over 20 years.
I note that the wife was of the view that there was no doubt that [Y]’s premature birth and developmental difficulties were caused by the stress that the husband had caused her along with the pressures and intrusions of his mother. The wife had various health issues, including an autoimmune disease, Osteopenia, and Rheumatoid arthritis but said she was otherwise well. The wife denied any previous personal or family history of psychiatric illness. I note that pages 6 to 7 under the heading “Talk”, the report said:
“Her speech was pressured. Her manner was intense. Thought content related to her negative perceptions of the Husband, alleging psychological, physical, financial and sexual abuse by him and his family, particularly intrusion into the marriage by his mother. Whilst there were no frank delusional beliefs or formal thought disorder in evidence, Ms Essert thinking contained numerous instances of conspiratorial thinking. There were anxious themes. There were no unusual notions or ideas, evidence of thought disorder or delusional beliefs.”
Under the heading “SUMMARY”, the report noted:
“It was Ms Essert account that her early life was stable and that subsequently on arrival in Australia she completed her education and found work. She denied any previous personal or family history of psychiatric illness and her account in regard to her relationship with Mr Lane was unremittingly critical, with evidence of conspiratorial thinking and fear of losing the children to the Husband and his family.
Her manner was intense and when interrupted or challenged became quite agitated and when questioned as to the Husband’s role in the children’s lives, her views of the Husband as an abuser were entrenched and it is clear that she experiences him as such a threat to her and the children and she wishes to have their name changed to hers, for the children not to be safe in his care in any other than supervised circumstances until they are 15.
Having assessed Ms Essert, I was left with considerable reservations as to her state of mental health and currently impresses as a no contact mother and there are indications of an unstable core personality style with borderline features. Notably there appear to have been concerns by DHHS when Ms Essert was visited by them, and given the extreme stress that she has encountered in the context of [Y]’s birth and ongoing health issues, it is quite possible that she may have suffered an untreated psychiatric illness, noting that she has not had a psychiatric assessment, nor has had the benefit of psychiatric treatment.
At no stage during the assessment did Ms Essert consider that she may be unwell, remaining trenchantly of the view that the Husband has caused the various difficulties that she has encountered with limited insight as to other possibilities involving her own mental health and personality functioning.”
The interview with Mr Lane plainly, from the terms of the report, was less intense than that of the mother. On page 12, under the heading “Talk”, the report noted:
“Mr Lane was a cogent detailed historian. His speech was normal in rate, rhythm, stream, flow and prosody. Thought form and possession were normal. Mr Lane was understated in his account which was delivered without rancour. There was a conveyed sense of distress and loss in the context of the more recent IVO and lack of contact with the children, and stress and strain related to the various false allegations he was being faced with. There were no unusual notions or ideas, evidence of thought disorder or delusional beliefs.”
The report went on under the heading “DIAGNOSIS” to note that:
“Mr Lane does not describe symptoms of a psychiatric condition.”
Under the heading “OPINION” on page 13, the report notes:
“1. Mr Lane and Ms Essert are a stark contrast.
2. Whilst Ms Essert makes serious allegations about Mr Lane and his family, her presentation was of concern. Her thinking was conspiratorial, unremittingly critical of Mr Lane, who presented in a very different manner to that described by her. When challenged Ms Essert emotional state became heightened bordering on agitation. Her account was grievance‑ridden in respect to Mr Lane and his family despite his parents’ longstanding involvement with the children. In my view Ms Essert has a serious psychiatric condition with paranoid features, possibly a Major Depressive Illness set against what appears to be a difficult developmental history involving abandonment with resultant attachment issues which are likely to have resulted in an unstable core personality style consistent with Borderline features.
3. Throughout her account Ms Essert demonstrated little in the way of insight and she impressed as bent on preventing a relationship between the children and their father who she considers should not have contact with him until they become teenagers (15 years) in anything other than supervised circumstances. She lacks insight into the nature and extent of her illness and personality dysfunction, and until such time as she receives appropriate treatment, Ms Essert presents a risk to the children and their relationship with the father.
4. In contrast, Mr Lane presented as an amenable man whose account was delivered without rancour or grievance, appeared genuinely concerned about Ms Essert poor mental health and state of mind, and he has faced a series of serious allegations with equanimity, and impressed as strongly wishing to maintain his relationship with his children as the main goal of the forthcoming proceedings.”
Report of Dr D
There is no formal report by Dr D. What the Court has from this practitioner is a letter dated 21 February 2019 addressed “To Whom It May Concern”, which is annexed to the wife’s affidavit filed 22 February 2019.
Dr D writes that he is a psychiatrist working at Location E. His report was based on his own assessments and the information obtained from the clinical file available to him at the time of writing the report. He also had the assessment from Dr B and other materials.
Dr D wrote that the wife was referred for a psychiatric assessment by her General Practitioner, and he saw her on 20 February 2019. The report noted the wife’s account of her circumstances, including:
“Ms Essert reported that she is a victim of family violence and cited multiple episodes of physical and verbal aggression from her husband. Ms Essert is a victim of physical, emotional, verbal, psychological and financial abuse.”
It is not necessary to set out the account that the wife gave Dr D in any detail as it is consistent with her affidavit allegations more generally. Under the heading “Mental State Examination” on page 4 of 5, the letter stated:
“Mental State examination showed a woman, average height, overweight, casually dressed, good eye contact, not restless and intermittently was close to tears during the interview. Ms Essert was cooperative with interview. Ms Essert describe her mood as okay and affect was euthymic. Her speech was coherent with normal tone and volume. There was no observable form of thought disorder, and she denied having any delusions or hallucinations. Ms Essert was able to concentrate on the interview and had good insight and judgement.
Opinion
• Ms Essert described ongoing worry that husband will take her children away from her.
• Ms Essert described being the victim of domestic violence perpetrated by her husband.
• Ms Essert appeared to be a credible historian.
• Information obtained from the reports from Hospital F, department of health and human services, subpoenaed complete medical records from Hospital G does not suggest that children are at risk from Ms Essert.
• Information from subpoenaed complete medical records from Hospital G described a period that Ms Essert was paranoid that husband wanted to poison her water. It is possible she might have had an acuate psychotic episode which has since cleared up.
• Information obtained from these reports suggested the Ms Essert has been caring very well for her children.
• Ms Essert has good support from her mother, stepfather and 4 brothers.
• Ms Essert is also well linked with organisations that are providing support like Hospital F, (omitted healthcare providers).
• Ms Essert sees a counsellor every 2 weeks since 2018 from co-health.
Diagnosis
• Ms Essert does not describe symptoms of a psychiatric condition.”
The report concludes “To be reviewed by the psychiatrist in the next 4 weeks”. It should be noted that I do not understand the wife to have attended either Dr D or any other psychiatrist four weeks later.
Report of Dr H
Once again, the report of Dr H is not formally exhibited to an affidavit by the practitioner. It is an exhibit to the wife’s affidavit filed 8 October 2019 and consists of a letter addressed “To whom it may concern” dated 30 August 2019.
Dr H deposes that he is a private psychiatrist with 19 years of experience in the clinical field. The letter, relevantly, reads:
“I am providing this medical certification on request of Ms. Essert. It seems that Ms Essert has significant marital conflict leading up to separation and custody issues.
I am providing this information based on one‑off assessment on Ms Essert. She attended alone. She needs no further follow up essentially.
Ms Essert attended this clinic for a second opinion. She was referred by Dr I, GP. The GP referral did not indicate the context or reason for second opinion. The same did not indicate any mention of past psychiatric conditions.
There is no reported past/personal or biological vulnerability.
on assessment today, Ms Essert reported no psychiatric symptoms. There was no active psychopathology on mental status examination. She came across reasonably organised and reactive. Ms Essert had reasonable judgement and adequate insight.
Based on her current presentation, Ms Essert has no psychiatric condition. This may change with collateral information. She has seen Dr D on few occasions. He may be able to provide better information. Dr D has apparently suggested her to see a psychologist; he did not diagnose any major mental illness nor prescribed any psychotropic medications.”
There are two observations I wish to make at this stage in passing about this medical evidence. First, no party sought to cross‑examine Dr B. Second, Dr B, unlike Dr D and Dr H, saw both of the parents. He did not have a narrative determined by one party alone.
The Letter from Ms J, Clinical Psychologist
Ms J has addressed a letter, 8 November 2019, “To whom it May Concern” about Ms Essert. Relevantly, she wrote:
“I am writing on behalf of my client named above who was referred to me for psychological support and intervention by her consultant psychiatrist Dr D.
I can confirm that Ms Essert attends appointments as scheduled and is engaging well in psychotherapy. To date she has attended five appointments since 01/10/2019.
Ms Essert has indicated that she is willing to continue engagement in treatment as required.”
Report of Dr K
Dr K’s report is annexed to her affidavit sworn 23 August 2019. Dr K noted the current arrangements and the relevant family background and the proposals of the parties. It is not necessary to detail Dr K’s account of her interviews, although, of course, I have had regard to the entirety of the report. Dr K had before her, inter alia, the report of Dr B. Unsurprisingly, much of the interviews were concerned with the wife’s allegations of violence and its denial by the husband.
I note that in her interview with [X], [X] had noted that his father did not live with him “because he was bad a long time ago” (paragraph 44). He nodded when Dr K said it looked like he felt very close to Dad, Mum, [Y] and Uncle L (paragraph 45). When asked if he had any feelings about his time at each house, [X] said, “I want to see Daddy more. I’d like to live with him a little bit” (paragraph 47).
It is worth setting out paragraph 58, in which Dr K paraphrased the affidavits of Ms M (contact supervisor from Family Service C) as, in my view, these are an accurate paraphrase:
“Ms M’s observations of the children’s interactions with the father over time appear generally positive. The paternal grandparents appear to have consistently attended time with the children following an initial moratorium. Ms M’s notes indicate several negative comments made about Mr Lane and his parents by Ms Essert and by the maternal grandmother in the children’s presence, including allegations that the paternal grandmother previously poisoned the children’s drinks to sedate them and that the paternal grandparents caused [Y]’s cerebral palsy. Comments by [X] to Mr Lane and Ms M about alleged violence by Mr Lane are noted on several occasions, with [X] indicating numerous times that the information was provided by Ms Essert. Other comments by [X] are documented where [X] states that his mother thinks his father is “a clown”. Ms M notes concerns about Ms Essert’s consistently late arrival to pick‑up, as well as concerns about [X]’s presentation on arrival (appearing flat, low warmth and affection towards his mother) and on one occasion of aggression by the maternal grandmother towards [X] (pick‑up, 9 February 2019).
On one occasion [X] is noted to appear reluctant to engage with the paternal family initially, but overall, he appears quick to warm up, and the interactions appear familiar, comfortable and positive. [Y] is noted to be familiar and comfortable with all three paternal family caregivers. In the final session (9 March 2019), [X] is noted to appear sad and fearful that he will not see his father and paternal grandparents again because he is going to Tasmania.”
In the passage under the heading “EVALUATION” at page 25 onwards in the report, Dr K noted a generally positive pattern of care by Ms Essert but noted that:
“62. … the observational notes from the supervised visits raise concerns about punitive behaviour by the maternal grandmother towards [X] and suggest that Ms Essert becomes uncontained under stress and has difficulty managing her commentary in relation to Mr Lane, including in the children’s presence.
63. On balance, the available information suggests that Ms Essert is likely able to manage the day‑to‑day tasks of parenting, though her behaviour appears to become more unpredictable and less child‑focused when confronted with the subject of Mr Lane or the paternal family. It is the writer’s opinion that Ms Essert does not willingly or genuinely support a relationship between Mr Lane (or the paternal family) and the children. In contrast, Mr Lane presented as being genuinely concerned about Ms Essert’s mental health and to hold the relationship between the mother and the children in high regard; his proposals for the children’s care arrangements reflect his expectation that she will always play a meaningful role in their lives.”
Dr K went on to assert correctly at paragraph 64 that the most significant issue facing the family was that of the wife’s mental health and whether her allegations of family violence were true. Dr K correctly opined that this was a matter of the Court but noted a number of implausible experiences asserted by the wife (paragraph 64). In paragraph 64, the report continued:
“… The writer shares Dr B’s concerns about Ms Essert’s personality structure (paranoid personality disorder traits) and delusional thinking. Ms Essert is highly invested in a narrative of persecution by the paternal family. There are significant risks for the children that they will be drawn into a shared delusion and adopt their mother’s views for themselves. The writer would support an order for psychiatric support for Ms Essert as being in the best interests of the children, both if they remain in her primary care or otherwise.”
Dr K emphasised the significance of the Court’s findings as to the accuracy of the wife’s allegations of family violence or otherwise and noted the likely difficulties in shared parental responsibility because of the parents’ pattern of poor communication (paragraph 69). In the ultimate, Dr K made alternate recommendations based on whether or not the allegations of family violence were established. She recommended a change of residence in the event that Ms Essert’s allegations were rejected.
The Parties’ Affidavits
The parties have filed all too much affidavit material. In my opinion, it is, in large part, prolix and repetitive. I have, of course, read it all and have regard to it, but, in my view, it is more profitable in this case to concentrate on what was actually said at Court.
The Evidence of the Husband
It should be noted that what follows is taken from my notes. It is self-evidently not a transcript. It records matters I found significant.
Counsel for the husband made a brief opening, noting that there was no application to cross-examine the Contact Service Manager or Dr B. The sale of the former matrimonial home is actively underway.
The husband adopted his affidavits as true and correct. He gave evidence about an event on the previous weekend where his son was concerned about going to the mother. The son purportedly said that he was scared because he needed to protect his mother. [X] said, “Daddy, I need to go home to mummy. She’s scared and I need to look after her.”
In September, [X] had been hysterical because he did not want to leave his mother. Changeover was at N Street. There were some words exchanged between the parents.
Under cross-examination by counsel for the wife, the husband confirmed that he had seen Dr K’s family report. There were not a great parenting relationship between him and the wife.
Contact with the wife is neutral and changeovers without interest. Communication is now by email, and the emails are amicable. The husband was positive about his capacity to create a cooperating parenting relationship. He appeared to me to be eager to volunteer that a change of residence would be good for all his children.
There was supervised time up until 10 April. Since then, there has been time from Thursday to Sunday. It has happened on every occasion it was due. There is little to no conversation at changeover, and no information is passed over between the parents.
His daughter has cerebral palsy. The children are not well looked after. The children mostly wear far too much clothing, with four to five layers, even when it is warm weather. They will wear five or six jumpers. The children were reaching their milestones. The son is meeting his milestones but the daughter is not. He agreed that [Y] has chronic lung problems, but said she had four to five layers on a 32 degree day. He had read the report from childcare which had no concerns and [Y] was doing well at Crèche. The children are happy. He did not believe, however, that the wife had done a good job caring for the children. He had not seen childcare correspondence since June. There were no concerns in that letter.
When it was put to him that [Y] has a secure relationship with the wife, the husband denied this. He said she had a secure relationship with both parents. [X] has raised concerns about the mother. Currently, he has a very good connection with the children. [Y] was in ICU for a long time.
Counsel put paragraph 28 of the husband’s 2016 affidavit to him in which he had deposed that the wife was a good mother. The husband responded that she is the mother and always will be, but gave instances of concerning behaviour since. He was not aware of the wife’s condition in 2016. They lived a quiet and peaceful life. They had marriage counselling in 2016 when false allegations were made. He has never raised his voice. They had disagreements. He does not yell. She has yelled. She assaulted him but he had not assaulted her.
He accepted that he contributed to arguments, but denied being abusive. He remembered calling the wife when she was in hospital. She called him. He visited the wife almost every day. He asked her to stop abusing his mother. There was an altercation between the wife and his mother in the hospital. It was put to the husband that he called the wife “a fucking bitch”, but he said he did not say these words. He was on speaker phone and not shouting. Counsel put to the husband a note taken on 3 April 2016 produced under subpoena in which it was recorded that there had been a phone call on loudspeaker with shouting, the wife in tears and he refusing to bring the son into her and causing issues with her mother and calling her “a fucking bitch”. The husband denied this and said he did not raise his voice.
It was put to the husband that when the wife was in hospital, [X] was cared for by her husband. The husband said he had no contact because the wife had turned off her mobile phone and he did not know who was caring for [X]. He went to the wife’s parents’ home with his parents and sought police assistance to get [X] back. He did not tell the hospital [X] had been taken. He was not informed which hospital. He took [X] to Hospital O. He did not say the maternal uncle would be with [X], and this was not true. He was more concerned about neglect and harm. He talked to the Hospital O and asked for [X] to be seen by a doctor. He told Hospital O about the wife having possible psychosis. The wife was in Hospital G. [X] was assessed as fine by Hospital O. There were some marks when he picked him up on his legs. His nappy had not been changed for many, many hours.
The husband said that the wife called him on the phone on 10 April 2016 and he took [X] to see her the next day. He denied family violence, and said there was no verbal abuse between them.
The first time she left him, the wife did so with the assistance of Safe Steps and the hospital. He had thought things were going smoothly apart from very rare disagreements. He was taken to the reference in the notes to a referral to a social worker, and said he was completely blindsided by it. The only disagreement was that he was delayed by a haircut from visiting the hospital.
He was aware of a Department of Health and Human Services report and Intervention Order in 2016. He had not pressured the wife to end her pregnancy. There were no arguments. The wife was hysterical because of the thickness of the child’s neck. She asked to have an abortion. He and the grandmother tried to calm her down. She did not want to live with the sort of problems, like her own brother who suffers severely from Downs Syndrome. The amniotic test was dangerous, and he paid $500 for it. She alleged that he was keen for an abortion in the Intervention Order application. There were disagreements. He threw food into the bin on Mother’s Day, but was not angry. The locks were changed in 2018 and one was changed in 2016 because the door would not open and shut properly. The wife had had quite a lot of low points during the relationship. They did not have arguments. They had disagreements. The wife’s pleading was before [Y] was born by C-section. She went to the counsellor herself and he went to the counsellor separately. He did not take her to the counsellor. He was concerned she would see it as controlling behaviour after the Intervention Order. She saw her General Practitioner to get a mental health care plan.
Counsel put it that when the wife moved in, she slept downstairs but the husband said no. She slept upstairs. She was only downstairs at the start. He had not sought sex when she did not want it. There was sex in 2017 to 2018, and this was consensual. This was once every few weeks. He worked about eight hours per day with some overtime. He moved back in in December 2016. When asked why he had not taken the wife for psychiatric or psychological treatment in 2016 to 2018, the husband said this would be controlling behaviour. He had concerns [Y] was off her oxygen. The wife was not diagnosed with postnatal depression. She was in pyjamas and unshowered.
Counsel cross-examined on property issues. They bought the property at P Street in 2004. There was a mortgage, but no valuation. The relationship did not start until 2010. They dated in 2007, but he broke it off for 18 months. They did not live together in 2008. She moved in in very late 2009 and they bought the property together in 2010 at Q Street, Suburb R. They subsequently bought the matrimonial home at S Street, Suburb R. This was on the market for sale.
His income was about $120,000 a year. He has Vehicle TVehicle T and sold Vehicle U in 2018. Then he had Vehicle V which he sold to buy the Vehicle T.
The husband has been paying Child Support since May. The wife refused an assessment in April 2019, but there was an assessment in September in 2019. He paid $250 per fortnight in May. He agreed to pay $10,000 per annum for each child for private schools. If the children were living with him, he would pay less Child Support.
The husband said he understood the wife saw a psychologist in August. This was not Court ordered. The proceeds from the cars went to legal fees. He received $26,000 for Vehicle U and $19,000 for Vehicle V. The rest was used to pay Dr B and Vehcile V was sold to pay Dr K. The husband said he had a legal bill of $120,000, of which he had paid $50,000 thus far.
The Husband under Cross-examination by the Independent Children’s Lawyer
The husband conceded that an Intervention Order had been made against him on 28 June 2018. He agreed without admissions and was not legally represented. He could not afford to fight both cases. The Intervention Order included the children but expired on 6 September 2019 and no extension has been sought. There was no police investigation.
The husband said he generally works eight hours a day on Monday to Friday with no weekends. Generally, from 7:00 am to 3:30 pm but it was very flexible. He usually started at 7:30 am. He works from home one day per week but might have to leave the house for three days per week between 7:00 am and 7:30 am. He would take the children to care or get his family to help. He knows his hours of work one week in advance.
[X] will start school next year and school drop off will be about 8:30 am. If the husband has to leave for work early there will be before and after school care. The schools are on his commute to work. Both his parents help and live about 5 to 10 minutes away. It is good that [Y] spends a few days per week in early learning and that she might spend one to two days with his mother. He intends that [X] goes to W College. He is a practising Christian but would not object to a mainstream public school if the wife objected. He has not discussed this with the wife. He intends that [Y] attend a Z school. This is a standout school close to the home which has experience with special needs. He has not discussed this with the wife.
Currently there is a 4/10 regime which has gone well for the last seven to eight weeks. He did not agree that it was in the best interests that the children remain with their mother. The wife needs psychiatric treatment to enable her to understand all her false allegations. He was not aware that the wife was seeking treatment. When it was put to him that the wife says she is seeing a psychiatrist and a psychologist, the husband said he was concerned that the wife had taken so long to seek treatment. The wife was not addressing the concerns of Dr K. She was reliant on Dr D. He was opposed to any adjournment to enable the wife to obtain treatment. He wanted the children to live with him.
The Husband in Re-examination
The husband said that the wife had made a series of false allegations. His son had expressed those concerns. There was physical harm for [Y] for which the wife blamed him. He referred to [Y]’s injured tooth. He referred to the wife telling [X] about his dead sister. There was ongoing psychological abuse of [X] who was told that he was a clown. He said that [X] had said, “Please tell daddy and I will tell them to stop.” [X] says, “Mummy says he is a bad daddy.” He was called bad names by the wife’s family. The children will deteriorate over time. The allegations are continuing and getting worse. There are serious allegations of sexual assault.
The wife said she did not need psychiatric treatment. She says there is nothing wrong with her.
They bought a property between $170,000 to $190,000 in 2004 and sold for $305,000 in about 2013. That is when they bought the matrimonial home. The mortgage was $140,000 when the wife moved in. He has spent $120,000 just on barristers and solicitors. Dr B cost him $8,800 in November 2018, and he paid Dr K $6,600 from the sale of Vehicle V in February 2019.
The Evidence of Ms A Lane
The paternal grandmother adopted her affidavits as true and correct.
Under cross-examination by counsel for the wife Ms A Lane said that they were good, happy children. [Y] has asthma and cerebral palsy but is generally happy. They have a good relationship with her and her husband. They love her husband. It was stressful during the marriage because there were arguments inside the household and outside. Ms A Lane accepted that the wife’s pregnancy was stressful for her. She said she was not critical of the wife but was just stating facts. She mentioned many times that the wife should get professional help. She was offended in April 2018 by a Facebook posting and confronted the wife and told her she needed help. The house looked like the wife was not coping. Her son did all the housework, as well as the gardening tasks. She repeated she was not critical of the wife. She sees her children every weekend.
Under cross-examination by counsel for the Independent Children’s Lawyer, Ms A Lane said there was an Intervention Order taken against her last year for 12 months which had expired. She had complied with it.
The distance from Officer to Suburb R is 10 minutes.
The children are going wonderfully well, and [X] is progressing.
The husband works on different sites and has flexible hours. She and her husband help if required. There have been some overnights by the children with them, but the husband stays. She is available to help every day. The paternal grandfather has flexible hours of work.
The Evidence of Mr B Lane
The paternal grandfather adopted his affidavit as true and correct. He is a Manager but had a career in the armed services before that.
Counsel for the wife cross-examined about the annexure “JSL-3” being photographs of the matrimonial home. Mr Lane conceded that his son was living there at the time and that both parents were responsible. The wife was caring for two young children. In previous years she put an Intervention Order on against the husband.
He had a great relationship with his grandchildren and has seen them since the Court orders. The children were happy. [Y] was under weight for her age, but he had not put this in his affidavit. The hygiene in the matrimonial home was unforgiveable. He tried to clean it up with his other daughter-in-law.
When asked if he could say anything positive about the wife, he was unable to do so.
Under cross-examination by the Independent Children’s Lawyer Mr Lane confirmed that an Intervention Order was taken out against him in 2018 with the children on it. He saw the children under supervision. He works full time Monday to Friday and occasional weekends, but his work is flexible, and he works from home. They have had the children a few times since September. At least once per fortnight. His son is always there. His son works similarly to him and has some flexibility.
In re-examination, Mr Lane confirmed that time with the paternal grandmother has mainly been on weekends.
The Evidence of Mr CC
Mr CC adopted his affidavit as true and correct.
Under cross-examination by counsel for the wife, Mr CC confirmed he was next door neighbour until late 2015. He caught up with Mr Lane (the husband) every day or second day. Their children played together but then there were incidents. He has seen Mr Lane since 2015 but he has not been to their house because the wife is there. He keeps in contact with Mr Lane because he is a close friend.
He has not seen the wife since 2015. She told him not to come back.
When asked if he could say anything positive about the wife, Mr CC said he did not wish anyone ill. He had not seen her as someone who would do ill to people. When the question was repeated Mr CC said that it takes a great deal of strength to have and raise a child. He can only go on what he has seen.
The Evidence of the Wife
In evidence-in-chief, the wife adopted her affidavits and Financial Statement as true and correct. She is a stay at home mother and student.
She saw Dr D in February 2019 and has seen Dr H since. She has had five sessions with Ms J who is on holiday for two weeks at the moment. She needs to find the confidence she once had for her children. She tendered as exhibit R1 the letter from Ms J, to which I have already referred.
Under cross-examination by counsel for the husband, the wife said she saw Dr B in November for an interview. She said it was likely he did not understand what she was communicating. She remembered the Court orders. She confirmed she complained about Family Service C. She did not tell Dr B her suspicions that Family Service C and the husband were acting against her.
The wife said she wanted to add her surname, not to remove the husband’s. When pressed, however, she admitted she had made an application to change the children’s name to her own. She told Dr B the husband did not support the children. She pays all their expenses. She had wanted to relocate to Tasmania but will not now be going to Tasmania. It is better here, and [Y] has ongoing doctors’ treatment. She said, “We did suffer but now we are healing.” She told Dr K that there should be no time with the father but this had changed. He can have time now. She had told Dr B time should be supervised until the children are 15 because she did not know the legal system. She said, “I’m trying to leave things in the past for the benefit of the children.” The husband is not trying to turn [X] against her. She does not now feel fearful. It is more important to have two beautiful children and she needs to focus on them. She asked rhetorically, “What’s the point of focussing on the past?”
She had thought Dr B was biased because he was paid by the husband. She had not put the need for an interpreter on Intervention Order forms. She had told Dr EE that Dr B was biased because he was paid by the husband. Dr B did not have her affidavit and was interrupted by phone calls. She did not accept Dr B’s opinion. Dr D says she is not unwell. If the Judge was to say she needed treatment she would do it. She does not really think that she has a mental illness. She got the Dr B report late last year and saw Dr D in February for the first time.
She remembered the Court orders on 21 March 2019 to obtain a referral to a different psychiatrist. She was opposed to this. She ended up seeing Dr H and she saw her once on 30 August 2019. She has been and seen a psychologist. When asked why she has not seen Dr H after the orders made on 4 September 2019, the wife said she decided to see her General Practitioner. She has not seen Dr H since the September 2019 orders. She said she would like counselling to get her confidence back. She saw Dr D four times every two weeks. There was no affidavit from Dr D. She had not seen Ms J because her daughter had been sick.
The wife was cross-examined about her assertions that the water in the hospital had been poisoned. The wife did not directly respond and said she was trying to leave what happened in the past behind her. The way she was feeling back then is not what she is feeling now. When it was put to her that she had thought that the husband had poisoned the water in the hospital, the wife gave a non-responsive answer. She went on to say it may have been medication. She said she did not want to believe that he had poisoned her, although it was clear from what she said and how she said it she still does believe this. When it was put to her that the husband denied the delay in coming to the hospital, the wife said that he might deny, but what happened happened. She did not think that the husband was seeking to have the children live with him just for money.
When it was put to her that separation took place in 2016, the wife said there was no separation until now. She stopped the husband seeing [Y] for several months while she was in ICU. The incident at hospital started the Intervention Order. She was worried during her pregnancy and was not sure what they would do. She was just being a protective mother until she got her strength.
When it was put to her that she had removed [X] from childcare at final separation in April 2018, the wife confirmed this was correct. She was helped by a family violence support service. She went to Town FF. She opposed time at the beginning and in September 2018. Time was supervised. She was not often late to changeover, but was not driving. When pressed, she admitted that there were occasions on which she was indeed late. She thought the husband could have time like any other family. She had told Dr K she would not relocate to Tasmania until the end of next year. She does not think that the husband is a danger to children. Things have changed since her affidavit of 8 October 2019. Whatever is in the past is in the past.
When pressed whether the husband was a danger to his children, the mother said that he was not at this time. The reports from Family Service C were positive. The husband is not now a risk, and that is why time has been extended.
She had taken out an Intervention Order against the grandparents, which prevented them having contact with the children. She did not know that it was served on the grandfather on his 60th birthday (an assertion I accept). When it was put that she really wants the children to spend no time with the husband, the wife responded that she gave him more time in the September 2019 orders. He has four nights unsupervised.
The wife conceded that she had made very serious allegations against the husband, including rape. When it was put to her that the rape was asserted to have happened on 28 February 2015 after a wedding, she said she remembered and was distraught. She was confronted with a photograph taken the following day, happily trying to catch the bride’s bouquet. She said this was a few days after the wedding. The husband told her not to tell anyone and she followed his instructions. She also asserted there was a rape in the presence of her daughter. This was not in the Intervention Order. She was scared to say more. The Intervention Orders from 2016 and 2018 were tendered as exhibits A1 and A2.
The wife was cross-examined about her assertion that she was hit with a spray can in early 2018. She said she had concussion and fractured her arm. When it was put that she had not told the medical clinic, her answer was unclear. She said he hit her at night and she was scared to tell the doctor.
She had not made allegations to stop the Court ordering time with the husband and had not made false allegations. The father farted at [X], and this was in her Intervention Order application. She went on to give a further unresponsive answer. She could not handle the husband’s tantrums. A lot of stuff happened, especially when the in-laws came to the house. The children needed to be safe. [X] asked once or twice where his father was and she said he was at work. Her son had nightmares because he saw what happened. Separation took place in 2016. The husband forced his way back into the house.
Counsel put to the wife an email of 15 September 2017 saying “I love you” but the wife said this was following the husband’s demands. She had not made things up because of the Department of Health and Human Services. She was receipt of Centrelink because the husband was not helping her financially.
The wife said that the husband cancelled her card and she could not pay her taxi when she finally left at separation. When she tried to pay the taxi, it was rejected and cost $120. The card was declined. She tried to pay about $70 at Coles for nappies, which was also declined.
The wife was cross-examined about her own brother. The brother is 37 years old and is an extreme case of cerebral palsy caused by lack of oxygen.
When cross-examined about the message she had sent about her health, the wife said that the husband forced her to send this message. Her answers were non-responsive and evasive, and I do not accept them.
When the matter resumed the following day, counsel cross-examined about bank documentation. These showed withdrawals at the time of the final separation.
The wife confirmed that Medicare funds her treatment with Ms J whom she saw on the doctor’s referral. This was to have counselling to help her deal with the court and family violence. She wants to regain her confidence. She has had five sessions and will continue when Ms J is back in two weeks. She is trying to feel her confidence, step-by-step, to not have fear that she had. She has told Ms J about Dr B. The wife was questioned about allegations in her trial affidavit at paragraphs 207 and 208 and said that these did occur. She did not understand why [X] asks about his dead sister because she does not mention it and does not say that to him. She was surprised that [X] says he needs to be with her to help her. She has not told him to come back quickly. Time with his dad is time with his dad.
The wife was adamant that the paternal grandparents had come to the matrimonial home on a date in which the grandmother was overseas. She said she might have got the date wrong, but it happened.
There was cross-examination about scratches on [Y], but I should make it plain that I am not in a position to make any findings about that matter or how it came to be that [Y]’s tooth was broken.
The wife confirmed that she attends classes since 1 August 2019 for one day per week. This is on a Friday. The children are in childcare on Tuesday, Wednesday and Thursday, but she has to change a date of Friday. The wife clarified that the children would be in childcare on Wednesday, Thursday and Friday, which includes [X]’s kinder. She spends $200 a week on childcare costs. The classes have now changed to Tuesdays. She studies across four days. She worked in childcare before her son was born for nine years. She is undertaking placements and assessments for which she is not paid.
There was cross-examination about Child Support. She was advised by a Child Support Agency officer not to apply for Child Support because the husband would not continue to pay. She denied that her own mother worked as a cleaner. She had stopped working. She denied working, herself, for cash as a cleaner. She does not now have any of the $26,000 superannuation she had when she was legally represented by Higgins Legal. Before the relationship, she was living on her own in a housing commission property. She left that in March 2008. A joint account was opened during the relationship and they had joint finances for a few months before the marriage. When it was put to her that she had no savings or assets at the date of cohabitation, the wife denied this. This is plainly incorrect if one looks at paragraph 292 of her trial affidavit, where she relevantly deposed “I did not own anything of significance”.
The Wife under Cross-Examination by the Independent Children's Lawyer
The wife said that, since the orders on 4 September 2019, the children have been to see the father each weekend. They take a taxi to the station and then the train to N Street McDonald’s. It takes less than one hour. They take a tram from Southern Cross to N Street, and the children enjoy the travel. She lives in Town FF and the husband lives in Suburb R. It would be easier by car, but the wife does not have a full licence. She wants to be close to her family and has friends in the Town FF area. The children have friends there. [X] is at GG College in Town FF, which is a local school. [Y] is going to kinder, which is the same centre as now. It is better for the children to be in a mainstream than special school, although [Y] will have support.
She had heard the husband’s evidence about schooling and he wanted a HH College. The wife’s answer was unclear. She said she was a Catholic and that childcare had advised enrolment at GG College. The state school would be better. When asked whether [Y] should attend a Z school, the wife said she wants [Y] to go to the same centre as previously. She is happy where she is. She has been living in Town FF for one year in December and she is aware that the husband seeks sole parental responsibility. She does not agree with this, and seeks joint responsibility. She understands she would have to deal with the husband. She said that was why she was doing counselling. It was step-by-step.
The Independent Children's Lawyer took the wife to Dr B’s report, which described her as paranoid. She did not agree with his diagnosis, and was surprised when she read the report. She understood that the Court might order treatment. She saw Dr D four to five times and he did not want to see her anymore. He had Dr B’s report. She then saw Dr H on 30 August 2019. There was a brief report. She has not seen him since because he did not want to see her anymore. She called Dr H to make an appointment but he told her to see Ms J. She has seen Ms J, who is helping. She would see a psychiatrist if ordered to do so.
In re-examination, the wife confirmed that her only income is Centrelink.
The Evidence of Ms FF, the Maternal Grandmother
Ms FF adopted her affidavit as true and correct. She works in aged care, but was previously working in health care.
Cross-examination proved tumultuous. From the beginning, it was immediately apparent that Ms FF was extremely defensive. After only one or two questions, it was apparent that the witness was going to be completely uncontrollable, and that her answers would bear no correlation with the questions put. The final question put was simply whether [X] had ever been naughty when at her home. The answer, and I should pay tribute to the interpreter, who amazingly managed to keep up, went on for minutes. I ceased further evidence. The witness’ answers were uniformly unresponsive rants. She is plainly vividly emotionally engaged with the dispute between her daughter and the Lane family. And I have no difficulty whatever, I am afraid, in inferring that her attitude towards them would be unremittingly critical and indeed, judging by her demeanour in Court, vituperatively so.
The Evidence of Dr K
Dr K adopted her affidavit, which appended her family report, as true and correct. Under questioning by the Independent Children's Lawyer, she confirmed that she had received the parties’ affidavit material and the Court orders made on 4 September 2019. She was questioned as to her capacity to make mental health assessments. She explained she has a doctorate in Child Clinical Psychology, and specialised in mental health in children and adolescents. She had read the affidavit of Dr B who was, of course, a medical practitioner. She explained that they used the same diagnostic manuals.
Under questioning by counsel for the husband, Dr K said the wife had not had sustained engagement with a psychiatrist or psychologist, nor had she been treatment compliant. A firm message from the Court might assist. She was not sure that having care of the children was any obstacle to treatment. The wife needs intensive regular treatment from someone experienced in paranoia. It is a challenging and long-term problem. The patient has to accept the diagnosis. She was pessimistic about the wife’s motivation to engage at the moment because this was the key to treatment efficacy.
When questioned whether the children would likely share her delusions, Dr K said that children rely upon adults and are very suggestible. The wife’s condition was very difficult to treat, and now was the chance to change things before things were too late.
Under questioning by counsel for the wife, Dr K confirmed that she had observed the mother with the children and saw no difficulties. [Y] was upset when she left the mother, but it was the reunion that was more important. Change of residence is a last resort. The wife’s paranoid condition did not necessarily affect her other capacities. Dr K’s said her job was to assess risk. The wife believes there is a need to protect the children from a violent father. Dr K was still very concerned.
The wife has been uncontained and exposed the children to adult views of the husband. There were long-term problems. She mostly referred to the observational report. The maternal grandmother had been punitive. The children were affected by the parents’ behaviour. The children have a positive and secure relationship with the father. The children are not alienated at the moment. Treatment efficacy would depend upon the wife’s desire to change.
Under further questioning by the Independent Children's Lawyer, Dr K confirmed she did not assess the wife. She could not see a major depressive illness. The children would be best served by the wife undertaking treatment. Community and mental health services should be tried or, alternatively, somebody with expertise in the mental health system with a private practice. They need expertise in this area because it is not a common condition. The public health system would be best for the wife.
Dr K confirmed that a change of residence for the children would be distressing, even though it might not be obvious to the untrained eye. She was able to recommend a clinician to assist the husband with this. She had reached the point where the wife had been given enough time to address her difficulties, but she had not heeded warnings. Giving the wife more time would not help.
The Final Submissions for the Independent Children's Lawyer
The Independent Children's Lawyer submitted the case was about the family violence, the wife’s health and the children’s relationship with the father. He submitted that there was not as much family violence as the wife has asserted. He referred to the recommendations made by Dr K and Dr B’s definite opinion. He had not been cross-examined, and Dr K supported his assessment. The recommendations at paragraph 72 of the family report (for a change of residence) were the way to go. There would need to be orders as to who treats the wife. It should be a community mental health centre. There should be a mental health specialist to assist the husband if there was a change of residence. One option was to leave matters as they are and to adjourn for a period of time, but the wife had had plenty of time. The Independent Children's Lawyer said Dr K’s opinion had tipped the scales for him. Further time was unlikely to assist and the matter should be determined.
Final Submissions by Counsel for the Wife
Counsel noted that the wife had attended Dr D four times, and then when told to see Dr H, had done so. They recommended treatment by a psychologist and the wife had done this also. She was prepared to undertake a psychiatric assessment if ordered. Counsel submitted that there was no nexus between the wife’s mental health difficulties and any problems. The children were well cared for and any difficulties had not impacted the relationship with the father or the grandparents. There is extreme stress at [Y]’s appointments, but they had all been attended. Counsel asked rhetorically if [X]’s disclosures were enough to make it appropriate to change residence. This should only occur where there are extreme risks. The husband’s household was likely to be entirely negative about the wife. There had been issues about the wife facilitating time in the past, but she was now doing so and the children were not alienated. The wife had agreed with the Dr B report to the counsellor.
So far as property was concerned, there was an issue of when the relationship started and finished. The wife said 2008 to 2016 and the husband said 2010 to 2018. It was an eight year relationship on any view. The husband had the house at the start of the relationship but there were no valuations. The husband said there was $100,000 equity at the commencement. The wife is 38 and the father is 36. The husband’s income is $120,000 and the wife is on statutory benefits. The husband’s superannuation is $189,000, and the wife has now only $10,000 left.
Final Submissions by Counsel for the Husband
Counsel referred to the Outline of Case, and in particular paragraphs 2 to 13, which traverse the findings to be made as to the evidence. He submitted that whatever steps the wife had taken had not led to any insight. Dr B and Dr K agree there is a risk if the children remain with the mother. Dr K was positive about the father, and [X]’s closest person was his father. There were no symptoms of alienation yet, but there will be. Allegations of violence had not been put to the husband, and there were photographs immediately after the alleged rape. Counsel emphasised s.60CC(2)(b), the risk of harm to the children. The wife had failed to address the risk. The husband adopted Dr K’s recommendations.
So far as property was concerned, the pool was described at page 19 of the Outline of Case. The matrimonial home is on the market with an anticipated return of some $580,000 to $600,000 dollars. The wife’s superannuation was $26,000 at separation. She has not disclosed her legal costs. An equalisation of superannuation would depend upon whether the $26,000 figure was adopted. He proposed an equalisation of superannuation. The husband owned a property at the start, and the wife refused to accept Child Support for months. There is a caveat by Higgins Legal protecting an alleged $30,000 owed. Costs orders were made in favour of the husband on 15 March 2019 and 4 September 2019. There was no need now for the wife to pay 50 per cent of Dr B’s costs but she should pay half of the $7,700 payable in respect of Dr K.
It should be noted that the position in the Outline of Case seeks an equal division of current assets and of superannuation.
Some Brief Findings about the Witnesses
It is always regrettable to make findings that may be distressing to the parties, or to witnesses, but it is not possible to resolve this matter without some measure of criticism. The wife was, on a number of occasions, very apparently non-responsive in her answers. Some of her evidence was incredible. She plainly still believes that the husband endeavoured to poison her while she was in hospital, but this is fanciful. Her allegations that she was raped are, I regret to say, completely inconsistent with the contemporaneous photographs tendered. I have no doubt that whatever may have occurred, and it is of course possible that sex may have taken place when she was not desiring to do so, it had no sequelae. She places the date of the rape on the night of a wedding and photographs taken only very shortly thereafter plainly show that she was in good spirits, something I am not prepared to accept would have been the case had she suffered the sort of trauma she asserts.
The wife’s assertions that the husband forced her to write emails of a laudatory nature at a point when she would have it the relationship was, in fact, sundered are simply ones I am not prepared in any way to accept.
The evidence of the paternal grandmother is best left largely aside. Her time in the witness box was tumultuous to say the least.
The husband was generally reasonably responsive to the questions put, although he was eager to volunteer additional information critical of the wife. He was in the habit of answering questions with questions. His assertion that there were no arguments is one that I refuse to accept. His description of all matters being disagreements is simply one, having seen him give his evidence, I do not accept. He was critical of the wife at every possible turn and his evidence in re-examination was little more than a litany of blame of the wife.
Findings about Some of the Matters That Are Significantly in Issue
Obviously, the first matter that falls to be considered is the question of family violence. As earlier indicated, I have no doubt that the husband did not rape the wife as she alleges. As already indicated, the photographs are, in my view, conclusive, and in any event, I have heard and seen the evidence and I believe the husband. He presented as being somewhat self-righteous, and although he describes himself as a practising Christian, charity towards the wife seems somewhat absent in his worldview. I have no doubt that he has sworn at the wife on occasion and called her “a fucking bitch” as she alleged. Equally, I have no doubt that the wife would have sworn at his family. She impressed me as being somewhat unrestrained. While it is neither necessary nor appropriate – and, indeed, possible – to make precise findings about each matter that is alleged, I should make it clear that I accept the indication of the Independent Children's Lawyer that whatever family violence occurred there was very substantially less than that alleged by the wife. I accept that the husband has, on occasion, yelled at and abused the wife, but I am not able to make any findings that he has actually assaulted her. I am not positively asserting the contrary, but I am simply not able to make a positive finding one way or the other, bearing in mind that these are serious matters which bring into play the operation of s.140 of the Evidence Act 1995.
What is also apparent is that the wife has not yet, in any significant way, accepted the diagnosis of Dr B which she did not, however, challenge in cross-examination. She has a tendency to paranoid thinking and, as Dr K said, this is a very difficult condition to treat. Having said that, however, I note that, on a number of occasions in her evidence, the wife sought to, as it were, put the past in the past and indicate a preparedness to move forward in an endeavour to address her mental health issues.
I now turn to the statutory pathway. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental Responsibility
The presumption as to equal shared parental responsibility is, of course, displaced by my findings that there has been family violence within the extended definition of s.4AB of the Family Law Act 1975. Nonetheless, it is a matter of considering the children’s best interests. In my view, and irrespective of who should be the primary residential parent, the children’s best interests will be met by an order for equal shared parental responsibility. True it is that communication between the parents is not, in any possible way, good. The evidence suggests that changeover is neutral and somewhat strained. Nonetheless, everyone agrees that these children have a good and settled relationship with each of their parents, and it is important, in my view, that each parent have an appropriate measure of input into major long-term decisions about the children’s welfare. This is all the more the case since there is an inherent element of tension between the parties differing views on religion. If the children are to benefit, then the parents are going to have to learn how to communicate and resolve issues in a sensible way. I do not think that this is impossible for reasons which I will elaborate below.
The Children’s Best Interests
The primary consideration -section 60CC(2) of the Act
Everyone agrees that it is in the best interests of these children to have a meaningful relationship with each of their parents. However, and this is plainly the position of the husband and the Independent Children's Lawyer, there is a need to protect the children from the risk of harm. Pursuant to s.60CC(2A), this is a matter that requires to be given greater weight. Plainly, the risk of the children becoming alienated from the father is a very important and significant consideration. I bear it well in mind. The weight to be given to it needs to be calibrated in light of all the relevant circumstances.
Section 60CC(3)(a)
The children are very young. [X] appeared to express a closeness to his father and a desire to spend more time with him. The children appeared to have a close and appropriate bond with each of their parents when observed by Dr K.
Section 60CC(3)(b)
There is no doubt that the wife has been the primary carer of these children all their lives. It is unsurprising that the children have a good relationship with her. It is concerning that the wife has exposed [X] to adult issues and there is no doubt in my mind, despite her denials, that it is from her that he has divulged these disturbing views about his dead sister and the need to protect his mother. This suggests, perhaps, an element of very unfortunate enmeshment. Notwithstanding this, however, the children have a good relationship with their father. I would doubt that the father’s family would say anything good about the mother at all. While there is clearly a good relationship between the children and the paternal grandparents, if the children were to live full-time in the father’s care, the risk of denigration of the mother is a very real one. By the same token, however, the risk of denigration by the maternal grandmother is stark and self-evident. I mention these matters because the relationship between the children and their parents and extended families is necessarily impacted and coloured by the likely negative qualities to which I refer.
Subsection 60CC(3)(b)
Both parents have sought, in my view, quite properly to participate in major decisions and to spend time and communicate with the children. It is not necessary to say more than this.
Section 60CC(3)(ca)
Once again, this matter may be disposed of shortly. The wife has plainly fulfilled her obligations to maintain the children and I find the husband has also. Indeed, the wife’s failure to access Child Support is quite extraordinary, and I do not accept her explanation for it.
Section 60CC(3)(d)
This, in my view, is the critical criterion in this case. Those advocating a change of residence plainly foresee that it would be a very difficult matter for the children. Dr K has gone so far as to recommend that the husband seek the help of a clinician to enable him to deal with the likely effects of it. The effects upon the wife are readily imaginable. She will be absolutely devastated in the event that the children are removed from her primary care. The husband says he is not opposed to time being spent by the children with the mother, but effectively, only if the mother’s mental health is satisfactory. As I discussed with the parties during the running of the trial, the risk that obtains is that, if the children are sent to live with the father, he will never be satisfied that the mother’s mental health has progressed to a point where she is sufficiently well to be safe with the children. She is likely, as a matter of practical politics, to be largely expunged from the children’s lives. This is made all the more difficult because, as I have found, the wife has not yet been able, as she ultimately has to, to confront her mental health difficulties in an appropriately informed and insightful way. In this regard, however, it should be noted that her position is, perhaps, not as captious as the Independent Children's Lawyer and the husband suggest. She saw Dr D for four consultations, and Dr D, who is himself a qualified psychiatrist, had a copy of Dr B’s report. As earlier indicated, I think Dr B’s report is plainly the one to be preferred for the reasons given, but it is readily understandable how the wife might cling to Dr D’s advice in a not unreasonable way. The same seems to be the case also with Dr H.
What gives me real hope that the sundering of the children’s primary residence with their mother may not be necessary are the repeated references by the wife to putting the past behind her and trying to move forward in her evidence. It might be thought that this is too little, too late. Nonetheless, the fact is that she has moved to this point. Furthermore, the fact is that, for all the difficulties the wife has, the relationship between the husband has not been sundered and there is no sign as yet that the children are expressing any reluctance whatever to spend time with him. Indeed, [X] has said he would like some more.
Counsel for the husband said that it was no good waiting until the children become alienated, and I accept that that is so, but the evidence does not go anywhere near far enough to proving that that point is imminent. Rather, I think that, in an albeit somewhat incipient way, the wife has realised that, if she fails to facilitate time with the father, then it is highly likely that the children will be taken from her primary care. Indeed, that is the position as I see it. The wife needs to understand that she must both address her mental health difficulties and concurrently ensure that the children spend quality time with their father, encouraged by her. Failure to do so is highly likely to lead to a change of residence.
Section 60CC(3)(e)
There are no practical difficulties in terms of expense of the children spending time with and communicating with either parent. It is true the parents live a long way apart, but the evidence that the children enjoy the travel was given with conviction and I accept it.
Section 60CC(3)(f)
In my view, each of these parents is capable to provide for the needs of the children, subject to the obvious qualifications arising from the wife’s mental health difficulties. She must address her difficulties or face the consequences.
The paternal grandparents struck me as being well-attuned to the needs of the children, although there was a marked rigidity of personality on the part of the paternal grandfather, particularly with regard to the wife. As I indicated during the trial, this is perhaps understandable, however, in the view of the – as they would see it – utterly unjustified Intervention Orders taken out against them. The maternal grandmother doubtless loves the children, but her capacity to provide for their needs is seriously compromised by the florid nature of her personality, and her undoubted detestation of the husband.
Section 60CC(3)(g)
Both the parents impressed me as being mature adults. The wife was understandably defensive about her mental health difficulties, and she plainly has a tendency to gross over-exaggeration. The husband, as I said, struck me as somewhat self-righteous and carping. Nonetheless, they are both perfectly adequate parents who obviously love their children dearly.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
This is an important subsection, but it has already largely been dealt with. Both these parents are loving parents. Their capacity to provide for their children is inhibited to an extent, more marked on the part of the wife than that of the husband, by their mutual dislike. They are otherwise properly attuned to their responsibilities as parents.
Section 60CC(3)(j)
As I have indicated, there has undoubtedly been family violence. The husband has sworn at the wife on at least one occasion. The wife, as I have found, would have certainly sworn at the paternal grandparents. I have been unable to make particular findings about a large number of the allegations made, and for the reasons given, it is not necessary to do so.
Section 60CC(3)(k)
There have been IVOs against both the husband and both his parents, but they are now expired. They are not now, in my view, relevant.
Section 60CC(3)(l)
The Independent Children's Lawyer and the husband have urged final orders. In truth, so too has the wife. I do not agree. I have, and I hope I have made this clear, paid detailed due regard to the cogent evidence of Dr K, whom I accept is well-qualified in her field. In the end, however, it is a matter for the Court to judge, not for Dr K. I think, contrary to her opinion, that the negative effects of removing the children from their wife’s primary care, which everybody agrees would be significant, are outweighed by the need to give the wife the opportunity to address the issues that stand before her. I think that interim orders should be made, and this matter should be revisited in six months’ time.
In the interim, I will be granting liberty to apply. If things go awry, then the matter can be brought rapidly back to Court. It is to be hoped that upon reading this judgment, and equally hopefully taking it properly on board, the wife continue to advance the incipient and entirely desirable steps she has taken to put the past behind her and to ensure that the relationship with the husband continues in an uninterrupted, satisfactory way.
Section 60CC(3)(m)
At the risk of repetition, what this case boils down to in my opinion, is this fundamental conundrum. On the one hand, there are the difficulties associated with the wife’s paranoia, a condition hard to treat and one she has not, in truth, accepted and may, indeed, struggle ever to do so. If she does not, the risk is that her paranoid view of the husband will cause her, over time, to alienate the children from him. On the other hand, it is not a risk but in my view a certainty, that a change in primary residence would be deeply traumatic for the children. Counsel for the wife is correct, in my view, to describe this as a last resort.
The fact is, that for all the wife’s distorted and untrue allegations, the children still have a well-developed, happy and close relationship, both with their father and his parents. While some of the things [X] has said are deeply troubling, they do not impact upon that reality. In my view, the children’s best interests will be met by making interim orders and, in effect, holding the sword of Damocles over the wife. I will be making orders accordingly.
Property Issues
Stanford v Stanford
The Court’s first task, of course, is to ascertain the legal and equitable interest of the parties in determining whether a property adjustment is appropriate. Both parties agree that it is, and they have, as in so many cases, adjusted their financial positions since separation. It is plainly just and equitable that there should be a property adjustment.
The pool
The pool consists of the former matrimonial home, with a joint valuation of $580,000, albeit that it is in the process of being sold. There are no other assets with any meaningful amount whatsoever. The liabilities are the mortgage in the sum of $355,000.
It would appear that the husband has a car loan, in the sum of some $25,000, but it also appears to me that this is a debt entirely engendered post-separation. Similarly, there seems to have been little, if anything, said about the JJ Bank personal loan.
The husband’s superannuation is some $189,000, and I accept the submission for Counsel for the husband, that the wife’s superannuation should be taken as at separation, in the sum of $26,000. There will be an equalisation.
Contributions
On any view of the matter, at the time cohabitation commenced (whether in 2008 or 2010), the wife had no assets of any moment, and the husband owned a property at P Street, Suburb KK. The exact equity in this property is not known, but equally on any view of the matter, it forms the springboard from which the parties’ current assets are derived. This is all the more the case, given that on both sides’ versions of the events, the relationship was one only of some eight years. That initial property, together with the husband’s far greater earnings, was what has enabled them to own the property they now have.
As against this, the wife worked until [X] was born and contributed as a homemaker throughout. As I find, the wife was the primary carer and homemaker. She was not pressed in cross-examination in any great detail as to these matters, and although the husband undoubtedly contributed, I find that the wife would have had more to do with looking after the children, and the household generally.
The husband has paid the mortgage since separation, and has paid Child Support despite the wife’s resistance.
I would accept the submission from Counsel of the husband that the contributions should be assessed 70 per cent in favour of the husband, and 30 per cent to the wife.
The section 75(2) factors
The wife is 38 years of age, and has the mental health difficulties with which this judgment has been so concerned. It is to be hoped that that will be on the way to improvement. Her employment is necessarily significantly limited by the fact that the children continue to live in her primary care, especially when [Y] has special needs. Her future earning capacity, despite her present studies, is likely to be extremely limited, both as to time and as to remuneration.
The husband is approximately 37 years of age, and in good health, and has an excellent earning capacity. He presently earns some $120,000 per annum. I would assess it is appropriate that there be a 20 per cent loading in favour of the wife under this heading.
Just and equitable
In my view, the outcome for which the husband contends, namely, an equal division of current assets and an equalisation of superannuation is, indeed, just and equitable in the circumstances.
Conclusion
It will be noted that there are many matters I have not felt it necessary to detail and/or determine in these reasons for judgment, which are quite long enough as it is. As I have indicated more than once, the parties’ materials were prolix and repetitive. This judgment gives emphasis to those aspects of the dispute that I feel properly denote the reasons why I have reached the conclusions I have. The failure to refer to any particular matter in dispute merely reveals that I did not regard it as sufficiently significant to require comment. I will give the parties an opportunity to study these reasons for judgment and hear them as to the form of orders that should be made.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 19 December 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Appeal
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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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